About John XXIII and an eventual heresy
discovered after death.
The heresy that remained
occult until after death
Does not permit declaring
the vacancy of the pontifical office
Table of contents
- Introduction
- Theological and canonical principles
2.1 What the Church can judge in the external forum
2.2 The distinctions of the 1917 Code of Canon Law
2.3 Public defection, exterior act and pertinacity
2.4 Distinction between the moral order, the delict and the office
2.5 The conservation of the office in the thesis of Bellarmine
- Application to the bull Cum ex apostolatus officio of Paul IV
- Consequences for a heresy revealed after death
4.1 The office and the acts of government during life
4.2 What a later discovery can establish
4.3 The exact scope of canon 188, 4°
4.4 Stability of government and burden of proof
4.5 Universal and peaceful adherence
4.6 The visible constitution of the Church
- Conclusion
- Principal references
- Introduction
The question is that of a legitimately elected pontiff who would afterwards fall into a heresy that remained unknown to all during his life and was discovered only after his death. This hypothesis must be distinguished from heresy prior to the election, from heresy made public during the pontificate and from simple interior error. It is a matter of determining whether this fact, still ignored by the Church throughout the government of the pontiff, would permit holding retrospectively his office and his acts to be null.
The analysis will follow the distinctions of the theologians and of the 1917 Code. It defends, with Bellarmine and the line followed by several canonists, the conservation of the office in the defined case. The application to a discovery after death follows from the principles set forth on the duration of the occultation. The thesis that the author upholds elsewhere concerning a public heresy of Paul VI in 1964, regarding Lumen gentium, is distinct and is not established by the present study.
- Theological and canonical principles
2.1 What the Church can judge in the external forum
Saint Thomas Aquinas writes, concerning fraternal correction: “Quia praelatus non est iudex occultorum, sed solus Deus” (Summa theologica, II-II, question 33, article 7, reply to the fifth objection), that is to say: “For the prelate is not judge of hidden things, God alone is.” He does not treat in this passage of the loss of the papacy; his principle forbids attributing to a human judgment the immediate knowledge of the secret of consciences.
Franzelin specifies that the power of jurisdiction, in the visible kingdom of Christ, relates immediately to exterior acts and not to interior acts alone (Theses de Ecclesia Christi, 1887, p. 61–62). The sin accomplished solely in thought falls under the judgment of God and of conscience. An exterior manifestation of heresy, even unknown to others, is however something other than a simple act of thought. The opposition between interior and exterior must not be replaced by an identity between exterior and public.
For the precise object of this study, the additional question is that of the pontifical title and of the public exercise of its jurisdiction. So long as the defection remains absolutely unknown, no one in the Church has the fact that would permit treating publicly the see as vacant or the acts of government as emanating from a private person. This practical observation does not by itself prejudge all the theses proposed concerning a possible effect of divine law.
2.2 The distinctions of the 1917 Code of Canon Law
Canon 2195, § 1, requires for the delict an exterior and morally imputable violation of the law. Canon 2197 distinguishes the public delict, the notorious delict and the occult delict. Its category of the occult delict shows precisely that an exterior act can be delictual without being public. A thought not manifested and a private writing drafted then hidden are therefore not juridically qualifiable in the same way.
Canon 188, 4°, provides for the vacancy of certain offices by public defection from the Catholic faith: “A fide catholica publice defecerit”, that is “if he has publicly abandoned the Catholic faith”. Publicity belongs to the condition expressed by this text. A defection that remained hidden throughout the life of the titular does not realize this condition. The particular application of this canon to the discussions on the papacy must nevertheless be distinguished from the theological question of an alleged loss by divine law.
Canon 2232 treats of penalties incurred by law and of their declaration; it does not mean that every occult delict is without any canonical effect. The penal rules do not furnish, by themselves, a rule of vacancy of the papacy. They invite specifying the effect examined instead of concluding indiscriminately to the juridical non-existence of every hidden fact.
2.3 Public defection, exterior act and pertinacity
The proof of a formal heresy requires distinguishing the statement materially contrary to the faith from the pertinacious adhesion to that statement: canon 1325, § 2, understands heresy as the pertinacious denial or doubt of a truth to be believed by divine and Catholic faith by a baptized person. It is further necessary to attribute with certainty to the subject the alleged act. A publication under his name or a draft found later therefore requires an examination of authenticity, of meaning, of imputability and of pertinacity.
An express admonition can furnish a proof of pertinacity; it is not posited here as a universal and necessary condition of every case. It is finally necessary to distinguish this question of proof from the publicity required by canon 188, 4°. A private document can subsequently attest an exterior act without establishing that the titular publicly defected during his life. Prümmer speaks of a “certain and notorious” heresy in his exposition of the opinions on the loss of pontifical power (Manuale iuris canonici, 1927, question 95, p. 130–131).
2.4 Distinction between the moral order, the delict and the office
Billuart formulates clearly the first distinction: the “only interior” heretic is such before God and in his conscience, but not in the external forum and before the Church (Summa Summae S. Thomae, Secunda Secundae, De fide, 1834, p. 840). Franzelin specifies also that this person remains counted among the members of the Church in the external forum, despite his interior separation before God (Theses de Ecclesia Christi, p. 407). Billuart adds that an exterior manifestation, even without hearer or witness, can fall under the external forum and under excommunication; the impossibility of proving it does not render it interior by nature (p. 840–841). This penal analysis does not say that such a manifestation would cause the loss of the pontifical office.
Suárez also envisages, in a distinct patrimonial matter, consequences of an exterior and occult heresy discovered after death (De fide, dispute XXII, section I, nos 5–8, p. 558–559). One cannot therefore erect as a general principle that a later discovery is incapable of producing any juridical effect. The proposition upheld here bears more narrowly on the continuity of the pontifical office, on the acts of government and on the condition of publicity provided by canon 188, 4°.
2.5 The conservation of the office in the thesis of Bellarmine
Bellarmine, discussing the position of Melchior Cano, approves this conclusion: “atque adeo Papam haereticum occultum adhuc esse Papam” (De Romano Pontifice, book II, chapter 30, edition of Prague, 1721, p. 386), that is to say: “and consequently the secretly heretical pope is still pope”. He also explains that the occult heretic cannot be judged by man (p. 384). His argument concerning the visible bond to the Church answers directly the question of the office, and not only that of individual conscience.
Suárez sets forth the consequences of the contrary thesis: if the occult heretical pope lost by law his dignity, all the acts accomplished by him would be invalid (De fide, dispute X, section VI, no 4, p. 316). He takes further the case of an exterior but hidden heresy followed by a secret repentance: penance could not restore to this man the pontifical dignity without a new election; yet the continuity of his pontificate is admitted in the argument he develops in the same place. He expressly refuses to attribute a loss of dignity to interior heresy alone (no 5, p. 317). The reasoning starts from a juridical hypothesis; it does not suppose that the faithful had a motive for suspecting a fault that remained unknown.
Wernz and Vidal set forth the opinions on occult heresy, then retain the loss of the office by public heresy and reject the premise that would exclude from the outset the occult heretic from the visible society (Ius canonicum, tome II, De personis, 2nd edition, 1928, no 453, p. 437–439). Vermeersch and Creusen report the public defection of canon 188, 4°, and the discussion on the manifest heresy of the pope (Epitome iuris canonici, tome I, 4th edition, 1929, nos 268 and 300, p. 199 and 222).
There exists however a real opposition: Torquemada, Summa de Ecclesia, part II, book IV, chapter 20, fol. 393–395, refuses that secret heresy necessarily leaves intact the papacy of divine law and discusses even aptitude for acts of jurisdiction. His thesis is not limited to the forum of conscience alone. It does not furnish however, in the hypothesis of a fact that remained entirely unknown until death, any public fact on which contemporaries could have founded a decision of government. This divergence forbids presenting the solution of Bellarmine as a unanimous opinion of all authors, but well a common doctrine.
- Application to the bull Cum ex apostolatus officio of Paul IV
Paragraph 6 of the bull Cum ex apostolatus officio (1559) envisages the case where “si ullo unquam tempore apparuerit” that a person elevated, notably, to the pontificate had “ante ejus promotionem” deviated from the Catholic faith. In other words, “if it appears at any time that, before his elevation, he had deviated from the Catholic faith”. The text declares null the elevation in question, even in the presence of an acceptance and of a lapse of time. This passage does not contain a clause imposing that the deviation have been manifest or public during the life of the subject.
The bull bears here on a vice prior to the election or to the promotion; it does not decide, by these words, the different case of a pope validly elected who would become secretly heretical later. The text does not say expressly that a discovery after death is excluded. The nullity of the elevation for a prior vice must thus be examined apart from the possible loss of an office already acquired. The arguments of the authors on heresy occurring after the election do not constitute a textual restriction of the bull.
- Consequences for a heresy revealed after death
4.1 The office and the acts of government during life
If one retains, with Bellarmine, that the pope who has become secretly heretical remains pope so long as this heresy remains hidden, and if it remains by hypothesis hidden until his death, he conserves the office throughout the duration of his life. His acts of government do not become the acts of a private person by the sole fact of this heresy. The conclusion results from the application of the premises of Bellarmine to the entire duration of the pontificate; it is not a literal citation from a treatise on post-mortem discovery.
In the public life of the Church, the secret that remained absolute offers neither a motive for declaring the see vacant nor a known basis for refusing the jurisdiction exercised. There is no reason to invent among the faithful a doubt concerning a fault of which no one has knowledge. It is exact, in this circumscribed sense, that the rival doctrine of a secret loss changes no measure of government during life if the fact remains unknown. The theoretical disagreement on the title and the validity of the acts is not thereby erased.
4.2 What a later discovery can establish
Private letters or notes found after death can establish, under reserve of a sufficient proof, that a thought was expressed in an exterior act in the course of life. They do not render this expression publicly known at the date when it was written. It is necessary to distinguish the date of the fact, its qualification as interior or exterior act, the date of its discovery and the conditions attached to each consequence of law.
A late discovery can clarify the personal history of the deceased. In the thesis of Bellarmine applied to the present case, it does not retrospectively transform a pontificate conserved throughout life into a sequence of acts without titular. This conclusion concerns the office and the jurisdiction; the penal and patrimonial examples studied by Billuart and Suárez show why one must avoid the unrestricted formula according to which “nothing” hidden could ever produce an effect in the law of the Church.
4.3 The exact scope of canon 188, 4°
Since canon 188, 4°, requires a public defection, it does not permit concluding to the automatic vacancy of an office by virtue of this number from a defection that was never public during the life of the titular. This does not resolve by simple reading of the canon all the theses of divine law discussed by Torquemada and Bellarmine. It does not resolve further the different case of a vice prior to the election of which paragraph 6 of Cum ex apostolatus officio treats.
The proposition defended therefore remains precise: for a pontiff whose election was valid and whose subsequent heresy remained secret until death, neither the condition of publicity of this canon nor the thesis of Bellarmine on the conservation of the office founds a retroactive vacancy of the pontificate. An alleged nullity for another cause would require its own text, its own conditions and its proof.
4.4 Stability of government and burden of proof
The stability of nominations and of pontifical acts is a serious argument in favor of the solution retained by Bellarmine and Suárez. If an ignored fault could, without other condition, secretly withdraw the pontifical dignity, the identity of the titular from whom these acts proceed would be susceptible of a late revision. Suárez expressly advances this consequence as to the validity of the acts. The argument brings to light the difficulty of the contrary thesis; it does not replace, by itself, the examination of the sources and of the juridical distinctions.
The maxim “Ei incumbit probatio qui dicit, non qui negat” (Digest, 22, 3, 2) means: “The proof falls upon him who affirms, not upon him who denies.” He who claims a loss of office must prove the alleged fact, its date, its formal character and the foundation that attaches precisely this effect to it. If a private writing is produced, its existence can be proved after death; it remains to establish that it satisfied, at the pertinent moment, the conditions of the rule of vacancy invoked. The absence of publicity prevents notably subsuming it under canon 188, 4°.
4.5 Universal and peaceful adherence
Billot qualifies the adherence of the universal Church to a pontiff as an infallible sign of the legitimacy of his person and treats, in this framework, of the certainty of his election (Tractatus de Ecclesia Christi, tome I, 3rd edition, 1909, thesis XXIX, § 3, p. 620–621). Such an argument supposes that universal and peaceful adherence be effectively established for the case considered. It concerns first the legitimacy of the recognized pontiff and could not be substituted without explanation for the analysis of a subsequent secret act.
If this initial adherence is established, it supports the starting point of our hypothesis: the election of a legitimate pontiff. In the thesis of Bellarmine, the subsequent heresy that remained occult does not withdraw from him the office. The discovery after his death adds no period of manifestation during his life. This reasoning gathers two distinct premises and must not be presented either as an express text of Billot on post-mortem discovery or as the historical proof of adherence in a particular election.
4.6 The visible constitution of the Church
Vatican I teaches the perpetuity of the primacy of Peter in his successors (Pastor aeternus, chapter 2). Leo XIII sets forth the visible constitution and unity of the Church (Satis cognitum, 1896); Pius XII recalls that the Mystical Body of Christ is also a visible society (Mystici Corporis, 1943). These teachings render intelligible the exigency of certainty in the identification and the government of the visible head. They support the argument of convenience in favor of the continuity of the office in the defined hypothesis.
These texts do not formulate however, by themselves, a technical rule according to which no occult fact could have a juridical effect or be established after death. The precise reasoning on the papacy rests on the distinction of the facts, the scope of the rules invoked and the theological position that one adopts in the controversy between Bellarmine and Torquemada.
- Conclusion
In the case of a pontiff legitimately elected, become heretical afterwards, whose heresy remained unknown throughout life and is discovered only after his death, the thesis of Bellarmine leads to maintaining the office and the jurisdiction until death. Canon 188, 4°, which requires a public defection, does not permit declaring a vacancy under this title for a fact that remained secret. The argument of Suárez on the continuity of the dignity and of the acts of government reinforces this conclusion.
It does not follow either that every hidden exterior heresy is non-existent in the external forum, or that all the canonical consequences of an occult delict are impossible, or that Cum ex apostolatus officio textually excludes a later discovery of a vice prior to the election. The solution of subsequent heresy that remained occult is not the unanimous sentence of all theologians, since Torquemada upholds another analysis of divine law.
But on the plane of the governance lived by the Church, a secret that no one knew until death furnished during the pontificate no public fact from which to contest the exercise of the office.
May the Blessed Virgin Mary, Mother of the Church and Destroyer of all heresies, obtain for us the grace of remaining firm in the integral truth.
- Principal references
Thomas Aquinas, Summa theologica, II-II, question 33, article 7, reply to the fifth objection.
Code of Canon Law of 1917, canons 188, 4°; 1325, § 2; 2195, § 1; 2197; 2232.
Robert Bellarmine, De Romano Pontifice, book II, chapter 30, edition of Prague, 1721, p. 384 and 386.
Francisco Suárez, Opera omnia, tome XII, De fide, dispute X, section VI, nos 3–5, Paris, Louis Vivès, 1858, p. 316–317; dispute XXII, section I, nos 5–8, p. 558–559.
Charles-René Billuart, Summa Summae S. Thomae sive Compendium theologiae, Secunda Secundae, Rome, Crispinus Puccinelli, 1834, treatise De fide, p. 840–841.
Jean-Baptiste Franzelin, Theses de Ecclesia Christi, posthumous work, Rome, Typographia Polyglotta S. C. de Propaganda Fide, 1887, p. 61–62, 231 and 407.
Juan de Torquemada, Summa de Ecclesia, part II, book IV, chapter 20, fol. 393–395.
Paul IV, Cum ex apostolatus officio, 15 February 1559, § 6; Magnum Bullarium Romanum, tome I, p. 842.
Louis Billot, Tractatus de Ecclesia Christi, tome I, 3rd edition, Prato, Giachetti Filii et Soc., 1909, thesis XXIX, § 2–3, p. 617–621.
Franz Xaver Wernz and Pierre Vidal, Ius canonicum, tome II, De personis, 2nd edition, Rome, Apud Aedes Universitatis Gregorianae, 1928, no 453, p. 437–439.
Arthur Vermeersch and Joseph Creusen, Epitome iuris canonici cum commentariis, tome I, 4th edition, Malines, H. Dessain, 1929, nos 268 and 300, p. 199 and 222.
Dominicus Prümmer, Manuale iuris canonici in usum scholarum, Fribourg-en-Brisgau, Herder, 1927, questions 95 and 557, p. 130–131 and 641–642.
Digest, 22, 3, 2, “De probationibus et praesumptionibus”.
Council of Vatican I, constitution Pastor aeternus, chapter 2; Leo XIII, Satis cognitum, 29 June 1896; Pius XII, Mystici Corporis, 29 June 1943.
Note of the author: Since, in the sedevacantist world, several confreres, including bishops and priests, hold an opinion different from mine, I accept and apply the adage “In fide unitas, in opinionibus libertas, in omnibus caritas”: in the faith, unity; in opinions, liberty; in all things, charity. Their number constitutes a motive for taking seriously into consideration their position, even if the arguments developed above seem to me convincing. In every hypothesis, I submit myself in advance to any decision of the Church in this matter.