30 Opinion 5 is Common Doctrine “Pope Loses Office Ipso facto by public Heresy”

FIFTH OPINION IS COMMON DOCTRINE:

HAVING FALLEN INTO MANIFEST HERESY,

THE POPE LOSES THE PONTIFICATE IPSO FACTO

 

Main Source: The masterful work “La Nouvelle Messe de Paul VI : qu’en penser ?”

by Professor Arnaldo Vidigal Xavier da Silveira, theologian of Campos, Brazil.

 

Table of contents

Introduction: this fifth opinion is the common doctrine of the Church in this matter

1. This fifth opinion is defended by many renowned theologians

1.1. Defence of this opinion by Saint Robert Bellarmin

1.2. Defence of this opinion by Fr. Pietro Ballerini

1.3. Subdivision of this fifth opinion

1.4. Appreciation of this opinion

2. In defence of the fifth opinion enumerated by Saint Robert Bellarmin

2.1. Possibility of a heretical Pope

2.2. Incompatibility at root

2.3. The jurisdiction of the heretic

2.4. The central question

2.5. The necessity of a declaration is excluded

2.6. Degree of notoriety and public divulgation

3. Conclusion

N.B.

Notes

 

Introduction:

 

We return to what was said in the chapter on the 5 opinions of St Bellarmin: that this fifth opinion is that of almost all authors, including Dr. St Bellarmin himself, and it is advocated by the First Vatican Council of 1870 of which here are the details:

1. The First Vatican Council of 1870 affirms following Saint Bellarmin

At the July session of the First Vatican Council, the general rapporteur, Mgr. Vinzenz Gasser from 1809 to 1879, rejected the accusation formulated against the Deputation by certain conciliar Fathers, according to which they followed the opinion of Alberto Pighius, according to which the Pope could never fall into heresy, even as a private person.

He explained that the doctrine of the Vatican Council was neither that of Alberto Pighius, nor the extreme opinion of any school, but indeed that of Saint Robert Bellarmin, who admits this possibility in his Controversies. Mansi, volume 52, column 1218.

Historical context of the citation

The reported declaration comes from the official intervention called relatio pronounced on 11 July 1870 by Mgr Vincent Gasser bishop of Brixen, general rapporteur of the Deputation of Faith, during the 45th general congregation of the Council, with a view to the definition of the dogma of papal infallibility in the constitution Pastor aeternus, chapter 4.

This relatio defends the doctrinal schema against the accusations brought by certain conciliar Fathers such as Mgr Riccio di Mondragone, who reproached the Deputation for following the extreme opinion of Alberto Pighius or Pigge, Dutch theologian of the 16th century, died in 1542, according to which the Pope could never fall into heresy, even as a private person.

Mgr Gasser rejects this accusation by explaining that the doctrine of the schema is neither that of Pighius alone judged extreme by some, nor an isolated opinion, but indeed that of saint Robert Bellarmin theologian of the 16th century, died in 1621, who admits this possibility that is to say the potential fall of the Pope into heresy as a private person, without this affecting his infallible office.

The original text of Mgr Gasser’s relatio

Here is the relevant extract from the relatio:

Latin original taken from Collectio Lacensis, volume 7, columns 530 to 531: Quod ad doctrinam, quae in Schemate proponitur, attinet, iniuste Deputatio accusatur, quasi velimus extremam cuiusdam scholae theologorum opinionem, videlicet Alberti Pighii, ad dogmaticam dignitatem evolvere. Nam Alberti Pighii sententia, quam Bellarminus quidem piæ et probabiles nominat, fuit, Pontificem ut personam privatam aut doctorem privatum ex quadam ignorantia errare posse, sed nunquam in haeresim incidere aut haeresim docere posse. De sententia autem Bellarmini haec dicuntur. At doctrina, quae in Schemate proponitur, nec Alberti Pighii est, nec alicuius scholae extremæ, sed Bellarmini, qui hanc possibilitatem in suis Controversiis admittit.

Literal translation: As regards the doctrine which is proposed in the Schema, the Deputation is unjustly accused, as if we wanted to elevate to dogmatic dignity the extreme opinion of a certain school of theologians, namely that of Alberto Pighius. For the opinion of Alberto Pighius, which Bellarmin indeed calls pious and probable, was that the Pontiff, as a private person or private doctor, could err by a certain ignorance, but could never fall into heresy nor teach heresy. Concerning the opinion of Bellarmin, this is said. But the doctrine which is proposed in the Schema is neither that of Alberto Pighius, nor the extreme opinion of any school, but indeed that of Bellarmin, who admits this possibility in his Controversies.

2. Since during and in this infallible ecumenical Council of Vatican I in 1870, it was affirmed by an official intervention, a Relatio, that the Fathers of the Council followed Saint Bellarmin on the question of a heretical pope, we too shall follow Saint Bellarmin rather than other authors such as Cajetan, because this relatio constitutes a particularly important testimony on the thought of the drafters of Pastor Aeternus.

 

1. This opinion is defended by many renowned theologians, such as saint Robert Bellarmin, Sylvius, Pietro Ballerini, Wernz-Vidal, cardinal Billot.

 

1.1. Defence of this opinion by saint Robert Bellarmin

 

After having refuted the other opinions on the subject, saint Robert Bellarmin exposes his position in these terms:

Therefore, the true opinion is the fifth, according to which the Pope as head, in the same way that he ceases by himself to be a Christian and member of the body of the Church; and that is why he can be judged and punished by the Church. Such is the opinion of all the ancient Fathers, who teach that manifest heretics lose all jurisdiction immediately, and notably of saint Cyprian book 4, epistle 2, who expresses himself thus concerning Novatian, who was antipope in the schism that occurred during the pontificate of saint Cornelius: He could not conserve the episcopate, and, if he had been made bishop beforehand, he has distanced himself from the body of those who like him were bishops and from the unity of the Church. According to what saint Cyprian says in this passage, even if Novatian had been true and legitimate Pope, he would nevertheless have fallen automatically from the pontificate if he had separated himself from the Church.

Such is the opinion of great recent doctors, like Jean Driedo book 4 de Script. et dogmat. Eccles. cap. 2, par. 2, sent. 2, who teaches that only those separate from the Church who are expelled, like the excommunicated, and those who by themselves distance themselves from it and oppose it, like the heretics and schismatics. And, in his seventh assertion, he maintains that among those who have distanced themselves from the Church, there remains absolutely no spiritual power over those who are in the Church. The same says Melchior Cano book 4 de loc., cap. 2, teaching that heretics are neither parts nor members of the Church, and that one cannot even conceive that someone is head and Pope, without being member and part cap. ult. ad argument. 12. And he teaches in the same place, with clear words, that occult heretics are still of the Church, are parts and members, and that therefore the occult heretical Pope is still Pope. Such is also the opinion of the other authors whom we cite in book 1 De Eccles.

The foundation of this opinion is that the manifest heretic is in no way a member of the Church, that is to say neither spiritually nor corporally, which means that he is neither by internal union nor by external union. For even bad Catholics are united and are members, spiritually by faith, corporally by the confession of the faith and by participation in the visible sacraments; occult heretics are united and are members, although only by external union; on the contrary, good catechumens belong to the Church only by an internal union, not by the external; but manifest heretics belong in no way, as we have already proved.

 

Editorial note:

indeed, there exists an essential incompatibility between the quality of visible head of the Church and the public state of heresy. Indeed, the Roman Pontiff is the visible principle of the unity of faith. Now the manifest heretic is precisely the one who publicly breaks this unity. It would be contradictory that one and the same subject be simultaneously the juridical principle of unity and the public principle of division. This contradiction is not simply disciplinary but flows from the very nature of the Church as a visible society founded on the unity of faith.

 

1.2. Defence of this opinion by Fr. Pietro Ballerini

It seems to us very enlightening the explanation that gives of his position another defender of this fifth opinion, Fr. Pietro Ballerini, eminent Italian theologian of the 18th century. After having observed that the Council could not pronounce on the heretical Pope except if the latter were already deposed, Fr. Ballerini considers:

A danger for the faith so imminent and among all most grave, like that of a Pontiff who, although only in private, propagated heresy, could not bear delays. For, then, to wait for the remedy to come from a general Council, whose convocation is not easy? Is it not true that, before such a danger for the faith, any subjects can by fraternal correction warn their superior, resist him to his face, refute him and, if necessary, interpellate him and press him so that he repents? The cardinals will be able to do it, who are his counsellors; or the Roman clergy; or the Roman Synod if, assembled, it judges it opportune. For any person, even private, the words of saint Paul to Titus hold: Avoid the heretic, after the first and second correction, knowing that such a man is perverted and sins, once he has been condemned by his own judgment Titus 3, 10-11. For the person who, warned once or twice, does not repent, but maintains himself pertinacious in an opinion contrary to a manifest or defined dogma – not being able, because of this public pertinacity, to be excused in any way from heresy properly so called, which requires pertinacity – this person declares himself openly heretic. She reveals that by her own will she has distanced herself from the Catholic faith and from the Church, so that it is no longer necessary any declaration or opinion of anyone to cut her off from the body of the Church. Very clear in this matter is the argument given by saint Jerome concerning the cited words of saint Paul: That is why it is said that the heretic has condemned himself: because the fornicator, the adulterer, the homicide and the other sinners are expelled from the Church by the priests; but the heretics pronounce the opinion against themselves, excluding themselves from the Church spontaneously: exclusion which is their condemnation by their own conscience. Therefore the Pontiff who, after such a solemn and public warning by the cardinals, by the Roman clergy or even by the Synod, would maintain himself hardened in heresy and would openly distance himself from the Church, should be avoided, in accordance with the precept of saint Paul. So that he does not cause harm to others, his heresy and his contumacy should be proclaimed publicly, so that all can also take precautions with regard to him. Thus, the opinion that he has pronounced against himself would be proposed to the whole Church, making clear that by his own will he has distanced himself and separated from the body of the Church, and that in some way he has abdicated from the pontificate, which no one enjoys or can enjoy if he does not belong to the Church. One sees therefore that in case of heresy, to which the Pontiff would adhere in private, there would be an immediate and efficacious remedy, without convocation of the general Council: for in this hypothesis what would be done against him before the declaration of his contumacy and heresy, with the aim of calling him to reason, would constitute a duty of charity, not of jurisdiction; and after his distancing from the Church has been manifested, if an opinion were pronounced against him by the Council, such an opinion would be borne against one who is already no longer Pope nor superior to the Council.

 

1.3. Subdivision of this fifth opinion

 

In our opinion, this fifth opinion should be subdivided into three.

1. Certain authors affirm that the Pope loses ipso facto the pontificate at the moment when he exteriorises his heresy.
2. Others maintain that this loss occurs when the heresy comes to the knowledge of a certain number of persons, even reduced.
3. Others, finally, judge that the heretical Pope falls from the Roman See only when his heresy becomes notorious and publicly divulged.

This divergence is linked to the multisecular dispute, which still divides theologians today, on the exact moment when the heretic ceases to be a member of the Church. We do not judge it necessary to expose here, in detail, the particularities of the various subdivisions of this fifth opinion. It seems to us dispensable, also, to indicate in a precise manner the position of each adept of this opinion – all the more so since many of them are not clear on this subject. We shall make only brief observations on the thought of saint Robert Bellarmin and of Wernz-Vidal.

 

Salvo meliori judicio, it seems to us that saint Robert Bellarmin has not left sufficiently clear his thesis on the moment when the heretical Pope would lose ipso facto the pontificate.

He says that this would occur when the heresy would become manifest; and he opposes the concept of manifest to that of occult. Now, occult heresy can be internal occult per se, as it can be external but unknown to others occult per accidens. If one attributes to saint Robert Bellarmin the first of these interpretations, the Pope would lose the pontificate at the moment when he would exteriorise his heresy, even if no one perceived it. If one attributes to him the second interpretation, the loss of the pontificate would occur when some other persons – perhaps only one – would know of the fact.

Would there still be a third interpretation? Could one understand as occult heresy that which is already to the knowledge of many persons, but has not yet reached the general public, has not yet become notorious and publicly divulged? Such an interpretation is adopted by Wernz-Vidal, who affirms even, without hesitation, that according to saint Robert Bellarmin the heretical Pope would be deposed only when his defection in the faith would become notorious and publicly divulged.

 

1.4. Appreciation of this opinion

We dispense ourselves from presenting again the reasons that can be alleged against this fifth opinion. They have already been exposed in the preceding pages.

As we shall say in the following chapter, we judge that this fifth opinion is the true one, and that Wernz-Vidal is right to say – in interpreting saint Robert Bellarmin – that the eventually heretical Pope loses the pontificate ipso facto, at the moment when his heresy becomes notorious and publicly divulged.

 

2. IN DEFENCE OF THE FIFTH OPINION ENUMERATED BY SAINT ROBERT BELLARMIN

 

Throughout the preceding chapters we have already made some reflections on the arguments alleged by the various schools. We desire now to present an overall view of the conclusions to which the examination of the subject has led us.

 

2.1. Possibility of a heretical Pope

 

One does not find, in Scripture and Tradition, reasons that demonstrate the impossibility of the fall of a Pope into heresy. On the contrary, many testimonies of Tradition speak in favour of the possibility of such a fall. Given that, we must consider as theologically possible that a Pope falls into heresy, and study the consequences that such a fact would bring to the life of the Church.

 

2.2. Incompatibility at root

 

Scripture and Tradition make patent the existence of a profound incompatibility, at root, between the condition of heretic and the possession of ecclesiastical jurisdiction, once the heretic ceases to be a member of the Church.

This incompatibility is such that normally the condition of heretic and the holding of an ecclesiastical jurisdiction do not coexist. Nevertheless, it is not absolute, that is to say it is not such that, falling into internal heresy, or even external, the holder of the ecclesiastical jurisdiction is deposed from the office ipso facto, in all cases and immediately.

The arguments presented by the various authors on this last point are decisive, and particularly so are the arguments drawn from the practice of the Church: by the Code of canon law the heretic loses jurisdiction only when a condemnatory or declaratory opinion is pronounced against him; the priests who have abandoned the Church have jurisdiction to give absolution to persons in danger of death; it is commonly admitted that the Oriental schismatic bishops who are also heretics enjoy a jurisdiction that the Popes concede to them tacitly; etc.

That is why we do not call this incompatibility absolute, but we speak only of incompatibility at root. Heresy cuts the root and foundation of jurisdiction, that is to say faith and the condition of member of the Church. But it does not eliminate ipso facto and necessarily jurisdiction itself. Just as a tree can conserve life still some time after its root has been cut, so also, in frequent cases, jurisdiction persists even after the fall into heresy of the one who possessed it.

However, jurisdiction is conserved in the person of the heretic only on a precarious title, in a state of violence and to the measure that a precise and evident reason, dictated by the good of the Church or of souls, requires it. Thus is eliminated the position according to which in no hypothesis the heretical Pope would lose his office third opinion enumerated by saint Robert Bellarmin; moreover, this position has against it other weighty arguments drawn from Tradition and from natural reason.

 

If the Pontiff could durably conserve the pontificate after having become publicly heretic, the faithful would be morally obliged to obey exteriorly the very head who publicly destroys the principal object of this obedience, namely the Catholic faith. Such a consequence appears incompatible with the very end of ecclesiastical authority, which is instituted to conserve the faith and not to put it publicly in peril.

 

2.3. The jurisdiction of the heretic

Already cut at its root, the jurisdiction of the heretic subsists only to the measure that it is sustained by others. It is thus that the Pope sustains, for the good of souls and for the safeguard of the juridical order in the Church, the jurisdiction of the heretical bishop still not deposed.

If it is the Sovereign Pontiff who falls into heresy, who will be able to sustain jurisdiction in him? The Church? We do not believe so, because the latter, as considered in opposition to the Pope, is not superior to him, and therefore cannot sustain jurisdiction for him. The Pope is not subject to ecclesiastical law. Jesus Christ? Yes, to the measure that it is licit to attribute to Him the intention of sustaining jurisdiction in the person of the heretical Pontiff.

 

2.4. The central question

There arises here the central question: are there circumstances in which one can and must say that Our Lord has established that He would sustain, at least for some time, the jurisdiction of an eventually heretical Pope?

Nothing exists, in Holy Scripture and Tradition, that constitutes a sure and definitive answer to this question. As we do not seek here only arguments of probability, but principally reasons that justify a certainty, we must investigate if elsewhere we find sure elements to answer the proposed question.

As is evident, in theological matter one cannot conceive an argumentation that does not start from at least one revealed premise. What we seek, therefore, is a minor premise, drawn not from Revelation but from natural reason, and which, united to a major revealed premise, furnishes a sure solution to the question presented above.

We judge that the adequate revealed major premise from which we must start is the dogma according to which the Church is a visible and perfect society. As minor premise, we must posit the principle, drawn from nature itself, according to which the facts of the public and official life of a visible and perfect society must be notorious and publicly divulged. From there it would be concluded that an eventual deposition of the head of the Church would not be a juridically consummated fact as long as it would not become notorious and publicly divulged.

In scholastic form, we could redact the following sorites:

The Church is a visible and perfect society.

Now, the facts of the official and public life of a visible and perfect society become juridically consummated only when they are notorious and publicly divulged.

Now, the loss of the pontificate is a fact of the public and official life of the Church.

Therefore, the loss of the pontificate becomes juridically consummated only when it is notorious and publicly divulged.

Such a conclusion, flowing from a revealed truth and from a premise evident to natural reason, expresses the certain will of Our Lord. It would not be a formally revealed truth, but a virtually revealed truth, a theological conclusion.

Indeed, the contrary hypothesis would lead to rendering it impossible for the faithful to know with certainty who really possesses supreme authority in the Church. Now a visible society instituted by Our Lord to lead all men to salvation cannot durably depend on a juridically objectively indeterminable state. If the loss of the Pontificate could occur before the defection in the faith has become notoriously and publicly known, the very identity of the visible head of the Church would then depend on a fact that remained occult for the majority of the faithful. The essential visibility of the Church would find itself gravely compromised, since it would become impossible to determine objectively who really possesses supreme jurisdiction. It is precisely to safeguard this visibility that the loss of the Pontificate cannot become juridically effective before the heresy has become notorious and publicly divulged.

Our Lord Jesus Christ himself, therefore, would sustain the jurisdiction of the heretical Pope until the moment when his defection in the faith would become notorious and publicly divulged.

Consequently, all the jurisdictional acts practised by the Pope during this period would be valid. Let us imagine even the case where he would utter a dogmatic definition, supposing the purely theoretical hypothesis that such a Pontiff still fulfilled all the required conditions for an ex cathedra act before his defection becomes notorious and publicly divulged,

it would be infallible. The Holy Ghost, in such a hypothesis, would speak through him as He spoke by the mule of Balaam.

Note that the argumentation that we use is not the same as that of saint Robert Bellarmin, taken up by Wernz-Vidal. They start from the principle that he who is, in no sense, a member of the Church, cannot be its head. Such an argument seems to us true, provided that one adds to it a clause according to which Our Lord would sustain the jurisdiction of the heretical Pope as long as his heresy would not become notorious and publicly divulged. Nevertheless, even thus formulated, this argument raises another question, extremely disputed: the exact moment when the heretic ceases to be a member of the Church. According to what we think, whatever that moment may be, the eventually heretical Pope would effectively fall from the pontificate only when his defection in the faith would become notorious and publicly divulged.

 

2.5. The necessity of a declaration is excluded

In our opinion, the arguments presented above eliminate the opinions according to which the Pope would lose the pontificate at the moment when he would fall into internal heresy, into occult external heresy, and into external manifest heresy but not notorious and publicly divulged.

There would still remain standing two positions: the ipso facto loss by notorious and publicly divulged heresy, and the loss by declaration.

Now, this latter seems untenable, because, as saint Robert Bellarmin demonstrated in his argumentation against Cajetan, it does not coexist with the principle according to which the Pope cannot be judged by any man.

 

2.6. Degree of notoriety and of public divulgation

 

What degree of notoriety and of public divulgation is necessary so that the eventually heretical Pope is considered deposed? In answer to this question we must initially observe that there would be a certain degree of notoriety and of public divulgation in which, without any doubt, the loss of the office would have occurred. The problem would arise yes with regard to the precise moment when the deposition would occur. As for this particular, the proposed question could be fully answered only in function of the concrete circumstances. The concepts of notorious and publicly divulged seem to us in theory clear; their application to the concrete order would require the examination of a very vast casuistry, of which it does not belong to us here to treat.

It suffices, at the moment, to recall an observation that we have made above: it is not because in practice this opinion could bring dissensions of great extent, that one must hold it for false.

 

3. Conclusion, the 5th Opinion is Common Doctrine of the Church in this matter.

 

In summary: we believe that a careful examination of the question of the heretical Pope, with the theological elements that we have at our disposal today, permits concluding that an eventual heretical Pope would lose the office at the moment when his heresy would become notorious and publicly divulged. And we think that this opinion is not only intrinsically probable, but certain, since the reasons that can be made to prevail in its favour seem to us absolutely determining. Moreover, in the works that we have consulted, we have found no argument that persuaded us of the contrary.

 

N.B.

Therefore is erroneous the following thought: Whatever the case, other opinions remain extrinsically probable, seeing that they have in their favour weighty authors. Therefore, in the order of concrete action it would not be licit to take a determined position, seeking to impose it without more. It is for this reason that, as we have said at the beginning, we invite the specialists in the matter to restudy the question. Only thus will it be possible to arrive at a general agreement among the theologians, so that a determined opinion can be classified as theologically certain.

Why erroneous: because one opposes an external probability to an internal probability.

 

Indeed prof Da silveira poses this note in his introduction to part II of his work: A proposition or opinion is called probable when it has in its favour reasons or motives of such weight, that a prudent person can assent to it, not in a firm manner as in the case of certainty, but with fear of error Noldin-Schmitt-Heinzel, Summa Theol. Mor., volume I, page 215, number 225.

Intrinsic or internal probability is founded on reasons drawn from the very nature of the thing; extrinsic or external probability is based directly on the authority of the learned idem, ibidem, page 215, number 226.

External probability per se supposes the internal, that is to say supposes that the learned have been led by internal reasons to embrace the truth idem, ibidem, page 215, number 226.

Admitted that external probability is based essentially on the internal, it is not licit to appeal to external probability when one knows that the opinion is false and has no internal probability of being correct, even if authors of great name defend it. External probability without internal probability can be invoked only when one treats of an obscure matter, enveloped in difficulties, and still not sufficiently clarified by the authors idem, ibidem, page 225, number 238.

 

Notes

 

1. Saint Robert Bellarmin: text that we cite hereafter; Sylvius: ad II-II, q. 39, a. 1; Pietro Ballerini: text that we cite on pages 27 to 28; Wernz-Vidal: Ius Can., tome II, pages 517 and following; Billot: text that we cite on page 7.
2. Saint Robert Bellarmin, De Rom. Pont., liber II, caput 30, page 420.
3. Pietro Ballerini, De Potestate Ecclesiastica…, pages 104 to 105.
4. We indicate this subdivision in the observations to position B-II-2 of the synoptic table on page 6. To this tripartite division alludes, for example, Suarez in De Leg., liber IV, caput VII, number 6, page 360.
5. Notoria et palam divulgata – The expression is of Wernz-Vidal: Ius Can., volume II, page 517.
6. As we have already observed, there does not however exist an absolute correspondence between the position assumed by each author as to the moment when the heretic is excluded from the Church, and his opinion on the question of the heretical Pope: see pages 16 to 17.
7. De Rom. Pont., liber II, caput 30. See also De Ecclesia Militante, liber III, caput 4 to 10.
8. We would exceed the limits of this exposition if we sought to analyse how fluctuating, even among the best authors, are the concepts of occult, manifest, public, notorious, etc. We cite here only some bibliography on this subject: Cod. de Dir. Can., canon 2197; canon 2259, paragraph 2; canon 2275, 1; Billot, Tract. de Eccl. Christi, tome II, page 617; Lercher, Instit. Theol. Dogm., volume I, page 233, number 407; Hervé, manuale Theol. Dogm., volume I, page 448; Sipos, Ench. Iuris Can., page 774, item a; page 810; page 833, item b; Salaverri, De Eccl. Christi, page 879, number 1047; Miguélez-Alonso-Cabreros, Cod. de Der. Can., commentary on canon 2197.
9. See especially the citations that we have made of Suarez on pages 21 and following and Bouix on pages 18 and following.
10. See pages 8 and following. The Tradition in the broad sense, to which we refer, includes both divine Tradition and ecclesiastical. We know it through conciliar acts, pontifical documents, patristic writings, works of theologians, etc. see Pesch, Praelect. Dogm., tomus I, nn. 564, 571.
11. See the texts of saint Robert Bellarmin and Suarez that we transcribe, respectively, on pages 24 and following and 16 to 17.
12. On the moment when the heretic ceases to be a member of the Church, see page 17, note 2.
13. See the reasons alleged by Suarez, reproduced by us on pages 16 to 17.
14. Canon 2264. This canon, by itself alone, would suffice to demonstrate that the texts of the Fathers of the Church referring to the incompatibility between heresy and jurisdiction cannot be understood in the sense of an absolute and omnimode incompatibility.
15. Canon 882. In the absence of another priest, the others can also administer the other sacraments and sacramentals to persons in danger of death: canon 2261, paragraph 3.
16. See Hervé, Man. Theol. Dogm., volume I, page 449, number 453, note 1, and bibliography indicated there.
17. As says Suarez in text cited on pages 45 and following, in this case the heretical Pope is not a member of the Church as to the substance and to the form that constitute the members of the Church, but is head as to the office and to the action.
18. See pages 16 to 17, 20, 27 and following.
19. Normally one says that, in certain cases foreseen by the Law, the jurisdiction of one who does not have it is supplied by the Pope or by the Church. In the hypothesis of common error, for example, the Church supplies the non-existent jurisdiction, in accordance with canon 209. Nevertheless, according to what the authors teach, supplied jurisdiction exists only as act, not as habitus Lehmkuhl, Theologia Moralis, volume II, page 281, number 387; Wernz-Vidal, Ius Can., tome II, page 439; Vermeersch-Creusen, Epit. Iuris Can., tome I, page 278. Now, in the hypothesis that we envisage, jurisdiction would exist as habitus, and not only as act. It is not known to us that there is a technical term that indicates such a juridical situation. Given that, we say that jurisdiction is then sustained in the person of the heretic.
20. Certain authors, especially ancient, have not considered that jurisdiction can be sustained in the heretic, in view of an eminent interest of souls or of the Church. That is why, even saint Robert Bellarmin, as we have indicated in note 1 of page 25, seems to deny the possibility of the permanence of jurisdiction in the manifest heretic – permanence that the practice of the Church in the last centuries, especially in relation to heretical bishops still not deposed, obliges to admit as legitimate.
21. See: Denz.-Umb, systematic index, item Ia; Denz.-Sch., systematic index, item G4a.
22. We believe that this minor premise dispenses demonstration, but requires some explanations.

It dispenses demonstration because one could not conceive that the public and official life of a visible and perfect society develops through occult facts. Suarez exposes this principle in text that we reproduce on pages 16 to 17. And Domingo Soto uses a particularly happy expression in saying that, if there were depositions of prelates by reason of causes not ascertainable exteriorly, all jurisdictions would become ambiguous and confused omnes jurisdictiones versarentur in ambiguo et in confuso – Comment. in IV Sent., dist. 22, q. 2, a. 2, page 1022. By analogous reason the authors say that papal renunciation is consummated only at the moment when it is communicated to the Church see Coronata, Instit. Iuris Can., volume I, page 366.

 

Some necessary explanations (taken literally from the book of Prof da Silveira):

1 We have already observed note 2 of page 29 (in the book of Prof da S.) that the concept of notoriety does not have in Canon Law an entirely defined sense. We understand here by notorious that which, of right and of fact, fulfils all the conditions necessary so that it can be known, by all subjects, with certainty and without great difficulty.

2 We understand by publicly divulged that which of fact has already come to the knowledge of the general public, or at least of a number of persons sufficient so that the process of its divulgation to the general public has already become irreversible.

3 The expression notorious and publicly divulged is found in Wernz-Vidal, as we have already indicated in note 3 of page 28.

 

23. See note 1 of page 7. In the same sense pronounces itself Laymann, Theol. Mor., liber II, tract. I, caput VII, number 1, page 146.
24. See pages 24 and following and 29.
25. See pages 16 to 17.
26. Second opinion referred by saint Robert Bellarmin. See pages 16 and following.
27. First subdivision proposed by us to the fifth opinion referred by saint Robert Bellarmin See page 28.
28. Second subdivision proposed by us to the fifth opinion. See page 28.
29. Third subdivision proposed by us to the fifth opinion. See page 28.
30. Fourth opinion referred by saint Robert Bellarmin. See pages 21 and following.
31. We transcribe this long argumentation on pages 24 and following. See also note 2 of page 23.
32. One must see there no suspicion of conciliarism, that yes, in the principle according to which ecclesiastical organisms, like the Council, can emit a declaratory pronouncement of an eventual cessation of functions of a heretical Pope, provided that these organisms do not claim to have any other right than that which every faithful enjoys. By motives of pure convenience and courtesy, to these organisms could belong, in the first place, to make such a declaration; but this priority would not constitute for them a proper right, and even less an exclusive one.

Note that the concepts of notorious and publicly divulged do not seem to us in theory clear; their application to the concrete order would require the examination of a very vast casuistry, of which it does not belong to us here to treat.

33. See page 29, note 2.