On the Juridical Impossibility for a Purely Occult Heresy Revealed Post Mortem
to Cause the Ipso Facto Loss of an Ecclesiastical Office, Including the Papacy
Table of Contents
- Introduction
- Certain Theological and Canonical Principles
2.1 The Church Has Jurisdiction Only over the External and Manifest Forum
2.2 Confirmation by the 1917 Code of Canon Law
2.3 Cumulative and Indispensable Conditions for a Public or Notorious
Formal Heresy
2.4 Distinction between the Moral Order and the Canonical Order
2.5 A Purely Occult Heresy, Even a Most Grave One, Entails No Loss of
Office as Long as It Remains Occult
- Application to the Bull Cum ex Apostolatus Officio of Paul IV of 1559
- Certain Juridical Consequences
4.1 A Purely Occult Heresy Never Manifested by a Public External Act during
the Subject’s Lifetime Remains Juridically Non-Existent as Regards the External Forum of the Church
4.2 An Occult Heresy Revealed Only after the Death of the Subject Remains
Occult Ab Aeterno as Regards the External Forum
4.3 Consequently
4.4 Confirmation by Reduction to the Absurd and Principles of Law
4.5 Confirmation by the Doctrine of Dogmatic Facts
4.6 Confirmation by the Divine Constitution of the Church
- Certain Theological Conclusion
- Main References
- Introduction
The question of whether a purely internal occult heresy or an occult heresy discovered only after the death of the subject can entail the ipso facto loss of an ecclesiastical office, including the papacy, has been resolved in a manner unanimously admitted by classical theologians and canonists. This study demonstrates by certain and uncontested sources that such a loss is juridically impossible.
In conformity with authentic Catholic doctrine and in logical reasoning according to Saint Thomas Aquinas with the essential distinctions proportionate to the matter, we proceed by distinguishing the principles, the application to the bull of Paul IV, and the consequences. This certain truth confirms that the See of Peter is vacant since the public heresy of Paul VI in 1964 with Lumen Gentium, but that an occult heresy even revealed post mortem could not retroactively invalidate a legitimate charge.
- Certain Theological and Canonical Principles
2.1 The Church Has Jurisdiction Only over the External and Manifest Forum
Saint Thomas Aquinas teaches: De occultis non judicat Ecclesia, IIa IIae, question 60, article 3, corpus. Circa occulta non habet Ecclesia judicare, Quodlibet IX, question 7, article 15, corpus. Translation: The Church does not judge hidden things. The Church has no power to judge hidden realities.
Indeed, canon law, like Roman law from which it largely proceeds, produces juridical effects only on facts objectively ascertainable in the external forum. A fact that remains absolutely occult does not constitute a juridical fact. It may be a moral fact before God, but it does not exist juridically for the Church.
This doctrine is taken up by all approved authors: Cajetan, In IIam IIae, question 60, article 3; Suárez, De fide, dissertation X, section 3, number 6; Billuart, Cursus theologiae, tractatus De regulis fidei, dissertation IV, article 4, paragraph 3.
Therefore the Church, a visible society, judges only external manifest acts. An occult heresy remains invisible to the external forum and therefore without juridical effect. This rule flows from a fundamental principle of canon law. Every ecclesiastical law supposes an object susceptible of being known and ascertained in the external forum. A law cannot produce juridical effects on a fact which, by hypothesis, remains absolutely unknowable to the competent authority. Otherwise the juridical security of the Church would be destroyed, since a simple later discovery of a private writing could retroactively call into question offices, acts of jurisdiction, and the stability of ecclesiastical government. The law of the Church, like every true juridical order, can attach canonical consequences only to facts objectively ascertainable.
2.2 Confirmation by the 1917 Code of Canon Law
Canon 2197 juridically distinguishes the occult delict, the public delict, and the notorious delict. This distinction is not merely descriptive. It produces essential juridical consequences. As long as a delict remains occult, it does not belong to the external forum as a juridically established fact. Therefore the canonical effects attached to public or notorious delicts cannot be extended to a heresy that has remained purely occult.
The canonists then apply this principle to the loss of ecclesiastical offices. By interpreting together canon 2197, canon 188 paragraph 4, and the traditional doctrine on the external forum, they unanimously teach that a heresy that has remained purely occult does not produce the juridical effects attached to a public or notorious heresy. This fundamental distinction of the Code constitutes the juridical foundation of the developments of classical canonists such as Wernz Vidal, Coronata, Cappello, Prümmer, and Vermeersch Creusen.
2.3 Cumulative and Indispensable Conditions for a Public or Notorious Formal Heresy
Public formal heresy requires three cumulative conditions: an external act proper to the subject (not a mere imputation or a publication under his name without certain proof of his approval); manifested publicly during his lifetime; accompanied by actual pertinacity (either explicit refusal after legitimate admonition or evidence so clear that it is equivalent to moral pertinacity).
The following authors teach this unanimously: Suárez, De fide, dissertation X, section 3, number 7; Billot, De Ecclesia Christi, thesis XXIX, paragraph 4, 1927 edition; Salaverri, Sacrae Theologiae Summa, tractatus De Ecclesia Catholica, book I, fourth edition, number 645, 1950; Wernz Vidal, Ius Canonicum, volume II, De personis, number 453, 1927; Cappello, Summa Iuris Canonici, volume I, number 319, 1938; Prümmer, Manuale Iuris Canonici, question 318, 1927; Coronata, Institutiones Iuris Canonici, volume I, number 367, 1950.
An occult heresy revealed post mortem lacks these conditions, rendering any ipso facto loss impossible.
2.4 Distinction between the Moral Order and the Canonical Order
It is also fitting to carefully distinguish sin considered in the moral order and the juridical effects that flow from it in the canonical order. A fault may exist before God without producing any effect in the external forum of the Church. The internal forum pertains to divine judgment and conscience. The external forum pertains to ecclesiastical jurisdiction. To confuse these two orders would be to attribute to the Church a power to judge the secret realities of consciences, contrary to the principle constantly taught by Saint Thomas Aquinas: De occultis non judicat Ecclesia.
It is precisely for this reason that canonists require, in order for a heresy to produce juridical effects, that it be externally manifested and juridically ascertainable.
2.5 A Purely Occult Heresy, Even a Most Grave One, Entails No Loss of Office as Long as It Remains Occult
Saint Robert Bellarmine affirms: Papa haereticus occultus adhuc est papa. De Romano Pontifice, book II, chapter 30, 1610 edition, column 420. Translation: The occult heretic pope is still pope.
Billuart in Cursus theologiae, volume VI, tractatus De fide, dissertation IV, article 4, paragraph 3, authentic 18th century edition, teaches: Haereticus pure occultus manet adhuc membrum Ecclesiae ergo nec amittit jurisdictionem nec alia ecclesiastica officia. Ratio est quia haeresis occulta nec per se separat a corpore Ecclesiae nec ab unitate externa cum Ecclesia. Manus porro Ecclesiae non attingit haeresim juxta se occultam ideo nec potest ferri ulla sententia declaratoria. Si autem haeresis talis post mortem detegatur nihilominus vivens eadem fuit mere occulta nec unquam ab Ecclesia fuit separatus.
Translation: A purely occult heretic remains still a member of the Church; therefore he loses neither jurisdiction nor other ecclesiastical offices. The reason is that occult heresy in itself separates neither from the body of the Church nor from external unity with the Church. Moreover, the hand of the Church does not reach a heresy that is hidden in itself; therefore no declaratory sentence can be issued. If however such a heresy is detected after death, nevertheless while he was living it was entirely occult, and he was never separated from the Church.
This text is authentic and it expresses perfectly: no loss of jurisdiction, no loss of office, no declaratory sentence, no separation from the Church, as long as the heresy is strictly occult.
It is fitting to carefully distinguish two questions that certain authors treat separately. The first is that of the precise moment when a publicly manifested heretic would lose his ecclesiastical office. This question has given rise to various explanations among theologians. The second, which alone is examined in the present study, is that of a heresy that has remained entirely occult and discovered only after the death of the subject. On this point the doctrine of classical canonists and theologians is constant: a heresy that has remained purely occult produces no juridical effect in the external forum. Discussions relating to the case of a public heresy therefore cannot be invoked to call this principle into question.
- Application to the Bull Cum ex Apostolatus Officio of Paul IV of 1559
The very text of the bull strictly limits its field of application: Si jam unquam aliquando contigerit quod Episcopus vel etiam Romanus Pontifex ante promotionem suam vel assumptionem in Cardinalem vel Romanum Pontificem a fide catholica deviasse vel in aliquam haeresim incidisse sive illa deviato manifesta fuerit sive publica sive tam evidens ut nulla possit tergiversatione celari aut excusatione defendi, paragraph 6.
Translation: If it ever happens at any time that a Bishop or even the Roman Pontiff before his promotion or elevation to the dignity of Cardinal or Sovereign Pontiff has deviated from the Catholic faith or fallen into some heresy, whether that deviation was manifest or public or so evident that it cannot be concealed by any tergiversation nor defended by any excuse.
The canonists and theologians unanimously interpret this bull as aiming only at manifest, public, or notoriously evident heresy during the subject’s lifetime: Franzelin, Tractatus de divina Traditione et Scriptura, thesis XIX, third edition, Rome 1882, page 317: B. Pauli IV non respicit haeresim occultam. Translation: the bull of Paul IV does not regard occult heresy.
Wernz Vidal, Ius Canonicum, volume II, number 453, note 113: Cum ex apostolatus officio non extenditur ad haeresim mere occultam nec ad eam quae post mortem detecta fuerit. Translation: Cum ex apostolatus officio does not extend to purely occult heresy nor to that which would be detected after death.
Coronata, Institutiones, volume I, number 367: Lex Pauli IV non valet pro delictis occultis. Translation: The law of Paul IV is not valid for occult delicts.
They teach the same doctrine: Vermeersch Creusen, Epitome Iuris Canonici, volume I, number 568, 1937; Merklebach, Summa theologiae moralis, volume III, number 812, 1939.
An occult heresy post mortem does not enter this field, rendering any ipso facto invalidation impossible.
- Certain Juridical Consequences
4.1 A Purely Occult Heresy Never Manifested by a Public External Act during the Subject’s Lifetime Remains Juridically Non-Existent as Regards the External Forum of the Church
This distinction is confirmed by canon 2232 of the 1917 Code. This canon shows that the legislator carefully distinguishes the juridical effects of occult delicts from those of public delicts. Even when a penalty is incurred, the law takes into account the occult character of the delict and does not automatically draw all the consequences in the external forum. This provision once more manifests that canon law refuses to assimilate a fact that has remained hidden to a fact juridically public or notorious.
4.2 An Occult Heresy Revealed Only after the Death of the Subject, for Example in Private Notes, Drafts, or Unpublished Correspondence, Remains Occult Ab Aeterno as Regards the External Forum
4.3 Consequently
No ipso facto loss of office (canon 188 paragraph 4 of the 1917 Code), no retroactive nullity of election or peaceful acceptance, absolute impossibility of declaring the see vacant ab initio on account of an occult heresy detected post mortem.
The common good of the Church requires juridical stability. If purely private heresies discovered after death could retroactively annul a pontificate, no pontifical act would ever be definitively certain.
This conclusion is also in conformity with divine Providence. Our Lord constituted His Church as a visible society and entrusted to it a visible government. It would be contrary to this constitution that the validity of a pontificate or of any other ecclesiastical office could depend on a fact that the Church, by its very nature, was absolutely incapable of knowing when it had to govern the faithful. God never imposes on His Church an impossible obligation. He therefore could not have attached juridical consequences to a fact that remained entirely unknowable in the external forum. This theological reason confirms the principles of canon law set forth above and shows that the impossibility of a retroactive nullity is not only a positive rule but flows from the very constitution of the Church willed by Christ.
Thus canon 2197 provides the juridical qualification of the different species of delicts; canon 188 paragraph 4 provides for the ipso facto loss of certain offices; finally the canonists determine, in the light of these texts and of the principle De occultis non judicat Ecclesia, that this loss cannot concern a heresy that has remained purely occult.
4.4 Confirmation by Reduction to the Absurd and Principles of Law
If a heresy that remained totally occult during the whole life of a pontiff could be discovered after his death and render his pontificate retroactively null, no juridical certainty would subsist in the government of the Church. It would suffice, years or centuries later, to discover a private writing containing a doctrinal error in order to claim to annul retroactively his election, his jurisdiction, the nominations he would have made, the cardinals he would have created, and by consequence the subsequent pontifical elections. The juridical history of the Church would thus remain perpetually revisable at the whim of later archival discoveries. Such a consequence is manifestly incompatible with the visibility, indefectibility, and stability of the divine constitution of the Church.
This conclusion is further confirmed by a fundamental principle of all law: Ei incumbit probatio qui dicit, non qui negat. The proof falls on him who affirms, not on him who denies. He who claims that a Pontiff would have lost his office retroactively on account of a heresy that remained entirely occult bears the burden of demonstrating not only the existence of this heresy but also that it was juridically relevant in the external forum of the Church. Now, by hypothesis, a purely occult heresy was never known or ascertained by the competent ecclesiastical authority. What remained juridically non-existent at the time when the Church was governing cannot become, after the fact, the foundation of a retroactive nullity.
It is therefore not sufficient to produce, after the death of a Pontiff, a private document or unpublished correspondence; it is still necessary to demonstrate that the conditions to which the law attaches juridical effects were effectively fulfilled in the external forum. It is precisely this that the hypothesis of a purely occult heresy excludes. The interpretation of the law that leads to such an absurdity must therefore be rejected.
4.5 Confirmation by the Doctrine of Dogmatic Facts
The universal and peaceful acceptance of a Pontiff by the Church belongs to dogmatic facts, that is, to historical facts whose certainty is guaranteed by reason of their necessary link with a revealed truth. Now a dogmatic fact must be objectively certain for the whole Church. It could not depend on a fact that remained totally unknown and unknowable to the Church at the very moment when she recognized her visible head. If a purely occult heresy discovered only after death could retroactively annul a pontificate, the very certainty of dogmatic facts would disappear, which is incompatible with the assistance promised by Christ to His Church.
4.6 Confirmation by the Divine Constitution of the Church
Christ instituted His Church as a visible society endowed with a visible hierarchy and a visible government. The acts of this authority must therefore rest on facts objectively knowable in the external forum. It would be contrary to this divine constitution that the existence or validity of an ecclesiastical authority could depend on a fact that remained entirely hidden from the whole Church. The object of jurisdiction must be proportionate to the means of knowledge available to the authority. A purely occult heresy, precisely because it remains inaccessible to the judgment of the Church, cannot therefore constitute the immediate foundation of juridical effects in the external order.
Thus the principle of Saint Thomas De occultis non judicat Ecclesia, the distinctions of the Code of Canon Law, the constant teaching of theologians and canonists, the doctrine of dogmatic facts, and the visible constitution of the Church converge toward one and the same conclusion: a heresy that has remained purely occult, even discovered after death, can never entail retroactively the loss of an ecclesiastical office.
Here is one support of authority: the First Vatican Council, Pastor aeternus, DS 3050-3075, on the visible and permanent constitution of the primacy; Leo XIII, Satis cognitum, 1896, on the visibility of the Church; Pius XII, Mystici Corporis, 1943, on the visible society founded by Christ.
- Certain Theological Conclusion
It is theologically certain (sententia certa et communis omnium theologorum approbatorum ante annum 1963) that a purely occult heresy, even discovered after death, can never entail the ipso facto loss of an ecclesiastical office, including the papacy, nor render null a canonically accepted election by the universal Church.
This doctrine rests on divine law (jurisdiction of the Church limited to the external forum), on the unanimous consent of traditional Catholic theologians and canonists, and on the authentic interpretation of the bull Cum ex apostolatus officio itself.
Whoever would maintain the contrary would oppose the doctrine commonly taught by classical theologians and canonists.
May the Blessed Virgin Mary, Mother of the Church and Destroyer of all heresies, obtain for us the grace to remain firm in this integral truth.
- Main References
Thomas Aquinas, Summa Theologica, IIa IIae, question 60, article 3.
Thomas Aquinas, Quodlibet IX, question 7, article 15.
Cajetan, In IIam IIae, question 60, article 3.
Suárez, De fide, dissertation X, section 3, numbers 6-7.
Billuart, Cursus theologiae, tractatus De regulis fidei, dissertation IV, article 4, paragraph 3, and tractatus De fide, dissertation IV, article 4, paragraph 3.
Billot, De Ecclesia Christi, thesis XXIX, paragraph 4, 1927.
Salaverri, Sacrae Theologiae Summa, tractatus De Ecclesia Catholica, book I, fourth edition, number 645, 1950.
Wernz Vidal, Ius Canonicum, volume II, De personis, number 453, 1927.
Cappello, Summa Iuris Canonici, volume I, number 319, 1938.
Prümmer, Manuale Iuris Canonici, question 318, 1927.
Coronata, Institutiones Iuris Canonici, volume I, number 367, 1950.
Robert Bellarmine, De Romano Pontifice, book II, chapter 30, 1610 edition, column 420.
Paul IV, Bull Cum ex apostolatus officio, paragraph 6, 1559.
Franzelin, Tractatus de divina Traditione et Scriptura, thesis XIX, third edition, Rome 1882, page 317.
Vermeersch Creusen, Epitome Iuris Canonici, volume I, number 568, 1937.
Merklebach, Summa theologiae moralis, volume III, number 812, 1939.
Code of Canon Law of 1917, canon 188 paragraph 4.
Note: Since in the sedevacantist world several confreres, including a certain number of bishops and priests, hold an opinion different from mine, I accept and apply the adage in fide unitas, in opiniis libertas, in omnibus caritas. Since they are quite numerous, it is necessary to take into account an extrinsic evidence in their favor, although the force of the arguments that I employ in the text above seems to give it the value of an intrinsic evidence. In any case I submit in advance to any decision of the Church in this matter.