Heretics can't excommunicate: Drawing the arguments together
Having dealt with the issue from different perspectives across several articles, this essay brings together everything we published on why heretics cannot excommunicate.
Having dealt with the issue from different perspectives across several articles, this essay brings together everything we published on why heretics cannot excommunicate.
In the lead-up and aftermath of the SSPX episcopal consecrations, I published a number of articles about excommunications, whether those who preach heresy can excommunicate, and a translation of Causa XXIV, Quest. I, from Gratian’s Decretum on this topic. The occasion for these articles was the imminent probability, swiftly confirmed, that the Vatican would declare the SSPX to be excommunicated following the episcopal consecrations.1
This article brings the disparate points together in one place.
Introduction
Around 1140 AD, an Italian monk named Gratian collected and ordered the great mass of canonical legislation which had built up over the centuries before. Prior to the codification of Canon Law in 1917, the Church’s law was considerably less neat and tidy – but Gratian’s work marked the beginning of a new period of order.
This work came to be known as Gratian’s Decree, or Decretum. In some ways similar to Denzinger’s work, Gratian’s Decretum was not an official work, but – as Bouscaren et al. put it – “it was so useful that it soon became the best-known book of canon law.” After Gratian’s death, it was supplemented with other collections, such as the Decretals of Gregory IX, and collections by Boniface VIII, John XXII and others.
The Decretum is far from being solely a book of legislation. It contains many theological texts from magisterial and patristic texts, as well as Gratian’s comments. Its influence is clear, when we consider that these theological texts are cited by theologians, with the references customarily assigned to them in the Decretum.
As already mentioned, the texts cited in the Decretum have their own intrinsic and theological authority, given that they are derived from Popes, saints and fathers. As such, the codification of Canon Law in 1917 – which abrogated various laws which it did not expressly contain – does not touch the theological reasoning and authority of various points cited in the Decretum, or the Decretum’s own witness to the tradition of the Church.
Causa XXIV is no exception. Doctor of the Church St Robert Bellarmine, as well as Cardinal Juan de Turrcremata OP and others, refer to this section of the Decretum, and in particular its canon Audivimus.
This canon, and the discussion as a whole, deals with the question of whether heretics can validly excommunicate non-Catholics.
The C. IV Audivimus
Audivimus (“We have heard”) appears in the second part of the Decretum, in Causa XXIV, Quest. I.
Gratian opens the discussion with the following:
“A certain bishop, having lapsed into heresy, deprived some of his priests of their office and marked them with a sentence of excommunication. After his death he is accused of heresy and condemned, together with his followers and his entire household.
“(Qu. I.) Here it is first asked whether one who has lapsed into heresy can deprive anyone of office or mark them with a sentence [of excommunication].
“(Qu. II.) Secondly, whether anyone can be excommunicated after death.
“(Qu. III.) Thirdly, whether an entire household is to be excommunicated for the sin of one person.”
Audivimus is the fourth canon in Quest. I, which starts with the following statement:
“That someone cannot be deposed or excommunicated by a heretic is easily proved.”
Here is Audivimus itself, which is taken from a letter of Pope Alexander II:
C. IV. [Audivimus] An excommunicated person cannot excommunicate another.
We have heard that Henry, called Archbishop of Ravenna, has attempted to excommunicate you. But since, being excommunicated, he could not excommunicate you, by apostolic authority we command you, absolving you and your people, never to trouble yourselves about it.
Audivimus is immediately followed by Gratian’s commentary. Having already explained at the outset that one who has “lapsed into a heresy already condemned” is condemned by the existing legislation, and cannot condemn others, Gratian also makes clear that the “excommunicated person” in question is especially one excommunicated for heresy.
Gratian also explains the canon in the terms mentioned in c. XXXV and XXXVI below – namely that the inability to excommunicate arises “from the moment [the heretic] began to preach such things” opposed to the faith:
“But if he fabricated a new heresy from his own heart, from the moment he began to preach such things, he could condemn no one – because one who is already prostrate cannot cast down another.
“For the power of binding or loosing was given by the Lord to true priests, not to false ones. For when He was about to say to the Apostles, ‘Whose sins you shall remit,’ etc., He first said, ‘Receive the Holy Ghost,’ so as to show clearly to all that he who does not have the Holy Ghost cannot retain or remit sins. Moreover, no one receives the Holy Ghost except within the Church, because the Spirit Himself creates that very unity through grace.
“§. 1. Whence, ‘Receive the Holy Ghost’ was said only to those gathered together in one place, nor did the Holy Ghost descend on the day of Pentecost except upon those gathered together in one place. And just as He is not received outside the Church, so He effects nothing outside her. Since, therefore, as the Apostle says, the Spirit makes us ask and the Spirit obtains, outside the Church He neither causes us to ask nor to obtain. Whence the Lord, about to say, ‘Whatever you shall ask,’ etc., first said, ‘If two of you shall agree on earth,’ etc. And again: ‘Wherever two or three are gathered in my name, there I am in the midst of them;’ showing clearly to all that He does not dwell in the hearts of those who, following the singularity of pride, tear themselves away from the structure of the Body of Christ.
“But in those in whom Christ does not dwell, the Holy Ghost, fleeing the divisions of minds, has no place. Since, therefore, to remit or retain sins, to excommunicate or reconcile, is the work of the Holy Ghost and the power of Christ, it is manifest that those who are outside the Church can neither bind nor loose, nor restore to ecclesiastical communion by reconciliation, nor deprive of that fellowship by excommunication – a fellowship which they themselves, polluted by heresy or schism or branded by sentence, are proved to lack entirely. Whence, when the Lord gave to all the disciples equal power of binding and loosing, He promised to Peter, for all and before all, the keys of the kingdom of heaven, saying: ‘I will give to you the keys of the kingdom of heaven.’
“Whoever, therefore, has been estranged from the unity of the Church (which is understood through Peter), cannot execrate, cannot consecrate; he has no power of excommunication or reconciliation. Whence the Apostle, when he wrote that the fornicator of Corinth was to be excommunicated, said: ‘I indeed, absent in body but present in spirit, have already judged as if present him who has so acted, in the name of our Lord Jesus Christ, you being gathered together, and my spirit, with the power of our Lord Jesus Christ, to deliver such a one to Satan for the destruction of the flesh.’
“In this, showing the form of excommunication, he taught that only a faithful person is to be censured, and only by a faithful person. For in the name of the Lord and with His power cooperating, only a faithful person can effect anything, since no one can say ‘Lord Jesus’ except in the Holy Ghost. Likewise, since the Lord forbids the lamb to be eaten outside the Catholic Church, those who by their profession of faith are estranged from her are not expelled from a participation which they abandoned of their own will, but are allowed to depart – just as those who, hearing ‘Unless you eat the flesh of the Son of Man and drink His blood,”’etc., said: ‘This is a hard saying, and who can hear it?’ and so went away backwards, not repelled but allowed to depart.
“Hence also the Apostle, when treating of those to be excommunicated, prefaced his words with: ‘If anyone who is called a brother;’ but regarding unbelievers he added, saying: ‘Those who are outside, God will judge.’ But regarding those who are within, He has committed judgment to us. Just as it is apparent from the Apostle’s word “brother,” and from what he added concerning believers and unbelievers, that only a believer is to be excommunicated, so from the fact that this is written only to the faithful – or rather, because just as he who blesses is greater than him who is blessed, so he who curses by office is greater than him who is cursed – it is perfectly clear that he who departs from the integrity of the Catholic faith has no power whatsoever of malediction or benediction.
“For he cannot curse a Catholic, since the Catholic is his superior; nor can he pass sentence upon one estranged from the faith, as upon one equal to himself.
“Now these things which have been said about heretics, schismatics, and excommunicated persons – namely, that they do not have the power of binding or loosing – are proved by the authorities of many.”2
Other authorities in Causa XXIV, Quest. I
Gratian proceeds to present many other authorities and comments about the status of the Roman Church, which can be found in the full text. However, nearly thirty canons later, he returns to the same subject again:
C. XXXI. Heretics utterly lack the power of sacred office.
Likewise Cyprian, greeting Magnus his son [Book I, Letter 6].
We say that absolutely all heretics and schismatics possess nothing of power or right.
For this reason Novatian neither ought nor can be exempted from himself being counted among the adversaries and antichrists, since he stands outside the Church and acts against the peace and love of Christ. […]
Gratian also presents a canon which relate to the heretic Nestorius. In the 420s AD, Nestorius, the Patriarch of Constantinople, preached the first of his sermons against the term Theotokos, or Mother of God – denying its legitimacy in reference to Our Lady. These sermons caused an outcry, notably from the layman Eusebius, who denounced Nestorius in the church. Eusebius later became a bishop, and a saint.
Similarly, St Hypatius also ceased naming Nestorius in the diptychs of the Mass – whilst maintaining communion with Bishop Eulalius, who disagreed with this course of action.3
Nestorius proceeded to excommunicate and depose those who opposed him (as well as use physical violence against them). Monks of Constantinople approvingly reported to the emperors that the populace had come to exclaim:
“We have an emperor, but we do not have a bishop.”4
Nestorius was later condemned by the Council of Ephesus. In response to the excommunications and depositions, Pope St. Celestine was reported as teaching, on more than one occasion, that “from the time (Nestorius and his allies) began to preach (their errors),” they were unable to excommunicate or depose anyone. These texts are included in the Decretum and, as is clear from the subtitles, reaffirmed by Pope St Nicholas the Great.
C. XXXV. From the moment a bishop teaches things contrary to the faith, he cannot despoil another.
Likewise Pope Nicholas writes to the Emperor Michael [Letter VII].
Pope Celestine says, writing to the Eastern bishops:
“If anyone has been excommunicated or stripped of the dignity of bishop or cleric by Bishop Nestorius, or by others who follow him, from the time they began to preach such things, it is manifest that this person has persisted and does persist in our communion; and we do not consider him removed, because the sentence of one who had already shown himself deserving of removal could not remove anyone.”
C. XXXVI. Those who are excommunicated by heretics are not to be considered excommunicated.
The same [Pope Celestine], to the Clergy of Constantinople.
“The authority of our See,” he says, “has openly decreed that no bishop, nor cleric, nor anyone of any Christian profession, who has been cast down from communion or from his position by Nestorius or those like him, from the time they began to preach such things, is to be regarded as having been cast out or excommunicated; but all of these continue to this day in our communion, because one who wavered in preaching such things could not cast down or remove anyone.
“Do you understand, Emperor, from the above-mentioned authorities, that those who had themselves long since been removed could not remove – I will not say their own superior – but anyone at all; nor could those already prostrate cast down anyone else?”5
St Cyril of Alexandria also refers to these letters in one of his own letters to Nestorius:
“With all those who have been excommunicated or deposed by your devoutness on account of the faith, both laymen and clergy, all of us are in communion, for it is not right that those committed to orthodox tenets should be wronged by your verdicts, because they acted admirably in opposing you; this fact you mentioned in the letter you wrote to our colleague the most holy Celestine bishop of great Rome.”6
It might be objected that Nestorius was later condemned by the Council of Ephesus and the Pope, and that for this reason a declaration is necessary in order for “the layman in the pew” to realise that a given person lacks the ability to excommunicate. But on the contrary, St Eusebius was a “layman in the pew”, and denounced Nestorius in Church – and his memory is glorious for this act.
Further, Pope St Celestine said specifically that Nestorius lacked the ability to excommunicate and depose “from the moment” he began preaching his heresies – rather than at some later date, or upon an official intervention. Gratian and those whom he cites also place great stress on “the moment” at which the person “began to preach” his heresies. It is from this “moment” that the inability arises, rather than at some later date, or upon an official intervention. This objection is essentially a denial of what Pope St Celestine et al. said; and these texts were taken up by the tradition of the Church in the way described in this argument.
Therefore, the objection falls.
Other theologians addressing these authorities
How have the great theologians of the Church have understood the texts cited above?
St Thomas Aquinas set out the principle, without reference to Gratian. He wrote:
“[T]he 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.
“Accordingly when it is said that such like persons [schismatics] have no spiritual power, it is to be understood as referring either to the second power [viz., jurisdictional], or if it be referred to the first power [viz., sacramental], not as referring to the essence of the power, but to its lawful use.”7
The fourtheenth century Dominican William Peter de Godino OP, in his Tractatus de causa immediata ecclesiastice potestatis (often attributed to Peter de Paludanus OP) recognised the application of the principle in question, citing Causa XXIV and Audivimus. In his defence of the premise Christ did not confer any power of jurisdiction upon the other Apostles apart from Peter, he wrote:
“Fifthly, neither through the sacerdotal power of consecrating [the Eucharist], which they received at the Supper, because even a degraded cleric, a schismatic, and a heretic possesses that power, and all of them truly confect the Body of Christ, among whom nevertheless there is no power of jurisdiction.
“Because they cannot loose or bind, as is said in 24 q. 1 Audivimus (Gratian, C.24 q.1 c.4), where it reads: ‘Those who are outside the Church can neither bind nor loose’ – yet they can confect true sacraments, as Augustine says Contra Faustum, and it is found in q. 4, Quid faciat (Gratian, C.23 q.4 c.25).”8
St Robert Bellarmine, Doctor of the Church, refers to C. XXXV and XXXVI (citing Pope St Celestine) in his treatment of the “heretical pope” question as part of his case for the fifth opinion. They form part of his evidence that “the Holy Fathers teach unanimously not only that heretics are outside of the Church, but also that they are “ipso facto” deprived of all ecclesiastical jurisdiction and dignity.”
He also refers to these texts and C. IV Audivimus in his tome De Ecclesia, in which he discusses the differences between open and secret heretics:
“Next the same thing [viz. that secret heretics remain members of the Church] is proven from the testimonies of those Fathers who teach in a common consensus that those who are outside the Church have no authority or jurisdiction in the Church. Moreover, right reason manifestly teaches the same thing: By what arrangement can it be devised or imagined that one might have jurisdiction and hence be the head of the Church, who is not a member of the Church? Whoever heard of a head which was not a member?
“Moreover it is certain, whatever one or another might think, a secret heretic, if he might be a Bishop, or even the Supreme Pontiff, does not lose jurisdiction, nor dignity, or the name of the head in the Church, until either he separates himself publicly from the Church, or being convicted of heresy is separated against his will; for this reason, Celestine and Nicholas say (loc. cit.) that a heretical Bishop, to the extent that he began to preach heresy, could bind and loose no one although without a doubt if he had already conceived the error, were it before he began to preach publicly, he could still bind and loose.
“The fact is likewise confirmed from the canon Audivimus, 24, quaest. 1, where we read: ‘But if he will have devised a new heresy in their heart, to the extent that he begins to preach such things, he can condemn no man.’”9
Merely misspeaking or erring in good faith is most probably not sufficient for the man to become unable to excommunicate. But provided the preacher is not simply misspeaking, or speaking under correction, this “moment” at which he “began to preach” is when the heresy is externalized in a public fashion, and thus the moment at which the previously secretly heretical member of the Church becomes a non-Catholic and loses his office.10
Before Bellarmine, Cardinal Juan de Turrecremata (Torquemada) OP also referred to Audivimus (and the wider Causa XXIV, and a later gloss on its C. I, Achatius) in the context of a heretic “pope” ceasing to be Pope:
“Fourthly, this is gathered from the same St Thomas in the fourth book, distinction 19, where he states that if the pope falls into heresy he becomes less than any of the faithful whatsoever. And the Gloss on cap. Achatius, 24 quaest. 1, has the same, saying thus: ‘This is the case in which a pope can bind a pope, in which the pope falls under a canon of latae sententiae.’ Nor does the rule stand against this: an equal cannot loose or bind an equal; because if the pope is a heretic, insofar as he is a heretic he is less than any Catholic. So says the Gloss.
“Fifthly, this appears to be gathered from many chapters in the Decree: such as from cap. Quod autem, and cap. Achatius, and cap. Audivimus, 24 quaest. 1; whence in cap. Audivimus it is expressly stated: ‘But if he has devised in his heart a new heresy, from the moment he began to preach such things, he was unable to condemn anyone, because he who is already cast down cannot cast down another.’ Likewise from cap. Omnis qui recedit et non permanet in doctrina Christi, etc., cap. cau. et quaest., and from cap. Didicimus, in the same place, where blessed Cyprian says thus: ‘We say that all heretics and schismatics whatsoever have no power or right.’ Likewise from 6, with these authorities, in the same cause and question, where it is stated thus: ‘By these authorities it is plainly shown that from the moment anyone begins to teach anything against the faith, he can neither cast down nor condemn anyone.’
“Whence, properly speaking, a pope is not deposed by a council on account of heresy, but rather is declared not to be pope, when it is shown that he has fallen into heresy and perseveres in it obstinately and incorrigibly. Whence the Gloss on cap. 1, extra, De schismaticis, on the word careant firmitate, says: ‘Because when the Church has a heretical or schismatic pastor, it is understood to be vacant,’ above, De praescrip., cap. 1. But that one who has pertinaciously fallen into heretical depravity is deprived ipso iure of all ecclesiastical power, we shall show more fully, God helping, in the fourth book of this work, when the discussion concerns heretics.”11
He makes the same argument in Book IV, Part II, Chapter XVIII:
“Sixthly, to the same effect there is c. Achatius, C. 24, q. 1, where Gelasius says that whosoever falls into a heresy once condemned involves himself in its condemnation. The gloss says: ‘Here is a case in which a pope can bind a pope, in which the pope falls under a sentence latae sententiae. Nor does the rule oppose this — ‘an equal cannot loose or bind an equal’ — because if the pope is a heretic, in that he is a heretic he is less than any Catholic” (C. 12, q. 1, Scimus, § Promulgator), ‘because the law marks the deed even without a sentence’ (cf. Dig., De ritu nupt., l. Palam, § ult.).
“Seven, to the same effect, in c. 2 Achatius, § Si ergo, it says thus: ‘If therefore that bishop fell into a condemned heresy, one who is condemned by an established excommunication cannot condemn others; for an excommunicated person cannot excommunicate others.’
“Eight, to the same effect there is c. Audivimus, where it says thus: ‘If however he has devised a new heresy in his heart, from the moment he began to preach such things he could condemn no one, because one who is already prostrate cannot cast down another.’
“Nine, [sic; continuing from Audivimus] to the same effect is what is read at the end of the same chapter, where it says thus: ‘It is clear that he who has departed from the integrity of the Catholic faith has in no wise the power of cursing or blessing — inasmuch as he who cannot curse one superior to himself cannot pass sentence upon one who, as an alien from the faith, is as it were his equal.’”
We see here that the inability of the preacher of heresy to excommunicate rests on the fact that he is not the superior of the Catholic. Although the inability to excommunicate is the more fundamental fact, and can perhaps be accepted whilst continuing to hold that the preacher remains the superior of a Catholic in some sense, the loss of office and jurisdiction appears to be the most consistent way of explaining it.
The seventeenth century moral theologian Juan Azor SJ, also referred to the principle and Audivimus in the following terms:
“It is asked, first, whether the Roman Pontiff who has fallen into heresy loses the Pontifical power by right.
“[T]he Church is the congregation of the faithful, c. Ecclesia, de consec. dist. 1; therefore a heretic is outside the Church, and consequently is not reckoned a member of the Church. How, then, can he be head of the Church who is not a member of the Church?
“Finally, the same conclusion appears to be deduced from c. Quod autem, c. Achasius, c. Audivimus, 24. q. 1; c. Omnis qui recedit, c. Didicimus, and § His auctoribus, same cause and question — in which places it is laid down that heretics possess no right and no power; and because a heretic is excommunicated by divine right, according to those words of Christ the Lord: ‘Let him be to thee as the heathen and the publican’ (Matt. 18:17), if he will not hear the Church.”
Azor himself leaned towards what he treated as the second opinion – which Bellarmine would have called the “fourth” – namely, “that a Pope who has become a heretic is removed from his power and the dignity of jurisdiction by divine right; rather, he is to be removed.” However, Azor held that the principle in question, and the authorities in Causa XXIV, pointed towards an ipso facto loss of office by heretics.
Azor’s text is reproduced in the works of the nineteenth century canonists Eugène Roquette de Malvies and D. Craisson to the same effect.12 Although these men also leaned towards the “fourth position” (viz. that the heretic Pope should be deposed), they followed Azor in treating Audivimus, and the principle in question, as evidence for an ipso facto loss of office.
Application to our time
In short, Gratian’s comment provides modern Catholics with everything they need to combat the modernists occupying our structures, and preaching heresy.
However, while the theological principles behind this ancient canon and its commentary are easily applicable to Leo XIV, his colleagues, and his predecessors, it is incumbent on those allegedly excommunicated to make the argument – viz., to insist that it applies to these men as preachers of heresy, and not simply to seek refuge in arguments about “the salvation of souls” or “unjust excommunications.”
It is not even slightly difficult to establish that Leo XIV preaches heresy. Leaving aside the question of Vatican II and his post-conciliar predecessors, Leo XIV preached heresy before the May 2025 conclave (along with taking part in Pachamama worship), and the period since has featured a constant series of denials of the Catholic faith, including:
Alleging that a unity of faith exists with heretics, and communion with Muslims
Denying the legitimacy of the death penalty (which he also did on several occasions prior to his election)
Praising the interreligious prayer meeting of Assisi in 1986, and the Abu Dhabi declaration
Denying the dogma Outside the Church there is no salvation through his endorsement of his predecessor’s error of the “ecumenism of blood”
Praising Fiducia Supplicans and Amoris Laetitia
Denying the immutability of Catholic dogma, by countenancing the possibility of changes if “attitudes” change
Presenting a naturalistic vision for world politics, along with errors condemned by previous Popes
Preaching the undiluted doctrine of modernism very soon after his election, with what appear to be many deliberate allusions to Pope St. Pius X’s condemnation of the heresy.
The SSPX recently released a 154-point Profession of Faith, which contains points denied by Leo XIV and his recent predecessors. The very purpose of such a document is to respond to the preaching of heresy.
In short, neither Leo XIV, nor his colleagues, nor his recent predecessors, are capable of excommunicating anyone. No-one who considers Amoris Laetitia, Fiducia Supplicans, and all the rest to be manifest departures from the faith has any reason to be scrupulous about excommunications levelled by men such as Leo XIV; and scrupulous is precisely what such anxieties are. It is irrational to condemn the heretical teaching and laws of the Conciliar/Synodal Church on the one hand, and then on the other hand respect the excommunications and sanctions of its teachers and legislators.
But while it is easy to establish that these men are preachers of heresy, some shrink from doing so – perhaps because of the implications of such an assertion, or previous rejections of the possibility of establishing heresy without a declaration from authority. For this reason, they cut themselves off from recourse to this argument.
And yet we can note that Archbishop Marcel Lefebvre was not afraid to make this argument in advance of his own “excommunication” in 1988.
The witness of Archbishop Marcel Lefebvre in 1988
In a press conference on 15 June 1988, Archbishop Marcel Lefevbvre expressed the same argument. At the end of an explanation of the rationale behind the episcopal consecrations, he said:
The Osservatore Romano will probably publish the excommunication, a declaration of schism, naturally. What does all that mean?
Bon. Excommunication by whom?
By a modernist Rome. By a Rome which no longer fully holds the Catholic faith, which no longer thinks in a Catholic way, which no longer acts in a Catholic way.
One cannot say that when there is a gathering such as Assisi, one is still Catholic. It is not possible. One cannot say that, when there is Kyoto, and the declarations which were made to the Jews at the Synagogue, and the ceremony which took place at Santa Maria in Trastevere last year, no? In the heart of Rome! C’est scandaleux, absolumment scandaleux. It is not Catholic any more.
So we are excommunicated, by the modernists: by the people who have been condemned by the previous popes.
Alors, what could that really do to us? We are condemned by people who are themselves condemned, because they are people who should condemned publicly. Alors, it is indifferent to us. It hasn’t, it has no value, obviously.
Declaration of schism. Schism with what? Schism with the Pope, successor of Peter? Non.
Schism with the modernist Pope? Oui.
Schism with the ideas which the Pope spreads everywhere – the ideas of the Revolution, modern ideas, no? Oui. We are in schism with that. We do not accept it, of course.
It is possible to watch his frank and matter of fact delivery of this argument in the following video:
As Lefebvre noted, there is indeed a schism; but the schism on the side of those who are adhering the heresies and the new, false religion of Vatican II. He himself said in 1987:
“Schism?” retorted the Archbishop. “If there is a schism, it is because of what the Vatican did at Assisi and how you replied to our Dubia: the Church is breaking with the traditional Magisterium. But the Church against her past and her Tradition is not the Catholic Church; this is why being excommunicated by a liberal, ecumenical, and revolutionary Church is a matter of indifference to us.”
This explanation has nothing to do with “grave fear” or canonical loopholes. It is also completely clear: the problem is on the side of the Vatican. While one might wish that the Archbishop had simply stated the illegitimacy of its occupants, he certainly stated the principle which we have been defending, and he was certainly the one on the offensive.13
By contrast, it is a temptation, when dealing with situations like the excommunications of the SSPX, for Catholics to adopt a legalistic mentality and search for canonical technicalities as the basis of ignoring these penalties. In so doing, they forget two key points.
First, few are convinced by such arguments. Generally, such arguments only convince those who want to be convinced; they are also complicated, and can lack certainty. Without an authoritative repeal or quashing of the sentence, all the legal loopholes in the world would remain insufficient and unconvincing to most men.
Second, even if these arguments held, the presumption is in favour of the superior. If, as many hold, Leo XIV is the true Pope, and his officers hold authority, then they enjoy the benefit of the doubt.
Third, such technicalities ultimately do not matter. Consider the following from Pope Pius IX in Quartus Supra:
“For any man to be able to prove his Catholic faith and affirm that he is truly a Catholic, he must be able to convince the Apostolic See of this. For this See is predominant and with it the faithful of the whole Church should agree. And the man who abandons the See of Peter can only be falsely confident that he is in the Church.”
“All these traditions dictate that whoever the Roman Pontiff judges to be a schismatic for not expressly admitting and reverencing his power must stop calling himself Catholic.”
“Most men feel that the Church’s supreme head and shepherd should decide who are Catholics and who are not.”
If the Roman Pontiff, or those whom he delegates to act on his behalf, declares that a man or group is excommunicated, or in schism, and sets up legal machinery reflective of this for the rest of those subject to him, then such legalistic arguments are to no avail.
This is the additional problem caused around the disputed force of unjust and invalid excommunications.
Unjust excommunications should be feared
St Thomas Aquinas taught the following of an unjust excommunication:
“[I]f the error on the part of the sentence be such as to render the sentence void, this has no effect, for there is no excommunication; but if the error does not annul the sentence, this takes effect, and the person excommunicated should humbly submit (which will be credited to him as a merit), and either seek absolution from the person who has excommunicated him, or appeal to a higher judge. If, however, he were to contemn the sentence, he would ipso facto sin mortally.”14
Before publishing these article, the canon lawyer Mr Marc Balestrieri (who also assisted with finding the best edition of Gratian) drew my attention to the following by the sixteenth century Dominican Bartolomeo Fumo:
“Excommunication, even if it be unjust – so long as it is not null,15 and even if it ought to be annulled – is to be feared, according to Petrus] de Paludanus (4. sent., dist. 18. q. 1. art. 3). [This is so] whether it be unjust on the part of the excommunicated person, who is innocent, or on the part of the one excommunicating, who does not issue it from zeal for justice but from hatred or some other bad motive, or on the part of the procedure, because it proceeded by false witnesses, or without a warning, or the like.
“And he who should despise it would sin mortally on account of disobedience to the Church and would incur the penalties of the law; and then it is just. Absolution is therefore to be sought, and [the excommunication] is to be observed.
“But if it is entirely null, and by not observing it no scandal follows, it is neither to be feared nor to be observed. If, however, by not observing it scandal follows for others, it is to be observed on account of the scandal. But if it is unjust but secret, see what is said under the actual effect of excommunication.”16
These principles are confirmed by the magisterium of the Church. Consider the following proposition of the English heretic John Wycliffe, condemned in the letter Super periculosis of 1377:
“A curse or excommunication does not bind absolutely except when it is given against an opponent of the law of Christ.” (DH 1131)
The same document condemned the following:
“Excommunication by the pope or by any prelate is not to be feared, because it is the censure of the Antichrist.” (DH 1180)
Wycliffe, like the Protestants who followed him, believed the papacy to be an Antichrist institution. Notwithstanding certain comments made by Lefebvre about recent claimants being “antichrists”, this is clearly not what the SSPX believe.
In 1418, Pope Martin V confirmed a decree condemning a number of propositions of John Hus. The erroneous propositions included the following:
17. A priest of Christ who lives according to his law, knows Scripture, and has a desire to edify the people ought to preach, notwithstanding an alleged excommunication. And farther on: if the pope or any superior orders a priest so disposed not to preach, the subordinate ought not to obey.
18. Whoever enters the priesthood receives a binding duty to preach; and this mandate ought to be carried out, notwithstanding an alleged excommunication. (DH 1217–8)
Pope Clement XI also condemned the following propositions of the Janesnists in the Bull Unigenitus:
91. The fear of an unjust excommunication should never hinder us from fulfilling our duty; never are we separated from the Church, even when by the wickedness of men we seem to be expelled from her, as long we are attached to God, to Jesus Christ, and to the Church herself by charity. —Jn 9:22-23.
92. To suffer in peace an excommunication and an unjust anathema rather than betray truth is to imitate St. Paul; it is far from rebelling against authority or destroying unity. —Rom 9:3 (DH nn. 2491–2)
The global censure given he gave to the various condemned propositions is as follows:
“We declare, condemn, and reject ... the preceding propositions, as the case may be, as false, fraudulent, evil-sounding, offensive to pious ears, scandalous, pernicious, rash, injurious to the Church and her practice, insulting not only to the Church but also the secular powers, seditious, impious, blasphemous, suspect of heresy, and having the flavor of heresy itself, and, besides, favoring heretics and heresies and also schisms, erroneous, close to heresy, many times condemned, and finally heretical, clearly renewing many heresies respectively and most especially those that are contained in the infamous propositions of Jansen and, indeed, accepted in that sense in which these have been condemned.” (DH 2502)
Pope Pius IX later referred to these condemned errors in the following terms:
“[The ‘neo-schismatics’] follow the example of heretics of more recent times. They argue that the sentence of schism and excommunication pronounced against them by the Archbishop of Tyana, the Apostolic Delegate in Constantinople, was unjust, and consequently void of strength and influence. They have claimed also that they are unable to accept the sentence because the faithful might desert to the heretics if deprived of their ministration. These novel arguments were wholly unknown and unheard of by the ancient Fathers of the Church. For ‘the whole Church throughout the world knows that the See of the blessed Apostle Peter has the right of loosing again what any pontiffs have bound, since this See possesses the right of judging the whole Church, and no one may judge its judgment.’
“The Jansenist heretics dared to teach such doctrines as that an excommunication pronounced by a lawful prelate could be ignored on a pretext of injustice. Each person should perform, as they said, his own particular duty despite an excommunication. Our predecessor of happy memory Clement XI in his constitution Unigenitus against the errors of Quesnell forbade and condemned statements of this kind. These statements were scarcely in any way different from some of John Wyclif’s which had previously been condemned by the Council of Constance and Martin V.
“Through human weakness a person could be unjustly punished with censure by his prelate. But it is still necessary, as Our predecessor St. Gregory the Great warned, ‘for a bishop’s subordinates to fear even an unjust condemnation and not to blame the judgment of the bishop rashly in case the fault which did not exist, since the condemnation was unjust, develops out of the pride of heated reproof.’
“But if one should be afraid even of an unjust condemnation by one’s bishop, what must be said of those men who have been condemned for rebelling against their bishop and this Apostolic See and tearing to pieces as they are now doing by a new schism the seamless garment of Christ, which is the Church?” (Pope Pius IX, Quartus Supra, n. 10. 1873.)
In short, unjust excommunications are not without effect – and, for similar reasons, even invalid declaratory sentences by legitimate authority also have real consequences, and (all things being equal) must be observed until they are repealed.17
This is not the case, however, for those issued by preachers of heresy, as is clear from the authorities cited throughout this article. The simple, straightforward argument presented – based on unimpeachable authorities, and expressed by Archbishop Lefebvre himself – is manifestly sufficient to explain why the Vatican’s interventions are without force, and why they should be disregarded (viz. not observed).
It has become clear, however, that many associated with these excommunications prefer to have recourse to the canonical arguments, and to prescind from the argument presented here.
Summary of the argument
As we arrive at the end of this survey, we can summarise our argument relevance for the Society of St Pius X – or anyone else excommunicated by modernists.
The idea that one should simply ignore an unjust excommunication, and continue to fulfil one’s duties for the salvation of souls, seems to be condemned by the Church. The same also seems to apply to unjust declaratory sentences. All things being equal, it appears to be necessary to treat even invalid or unjust declaratory and condemnatory sentences as valid until such time as they can be overturned (although this duty would seem to be a question of prudence, and to turn on the facts.)
However, the preacher of heresy does not have the power to excommunicate; he also seems to be deprived of the power to issue declaratory sentences of automatic excommunications
It would appear that the SSPX could have recourse to the principle discussed in this article: that the preachers of heresy cannot excommunicate Catholics.
But to have recourse to this principle, it would be necessary to assert that Leo XIV et al. are indeed preachers of heresy, at least in some sense.
The heresy preached is not even slightly difficult to establish, but it may be difficult for some to hold, given the implications.
The implications are made clear in Gratian’s Decretum: “he cannot curse a Catholic, since the Catholic is his superior” (comment on C. IV); this is because “heretics utterly lack the power of sacred office” (C. XXXI); they are also not “able to have the weight of ecclesiastical authority against those same persons” (Comment at C. XXXVII).
The Church’s theologians – including St Robert Bellarmine and Cardinal Juan de Turrecremata – make the same point, and explain further: the heretic cannot excommunicate a Catholic because he is not a Catholic, has lost jurisdiction, and has no authority.
As should be clear, none of this constitutes a canonical argument on behalf of anyone excommunicated by the modernist Vatican – not least because a canonical argument would have to have reference to the Code of Canon Law, rather than the Decretum of Gratian and the theologians. It also prescinds from the legitimacy of the episcopal consecrations in question, and deals only with the effects of authoritative sentences. Further, it is a theological argument, based on the underlying theological principles expressed by the authorities in the Decretum.
Does this involve saying the preacher is a heretic, or has lost office?
Based on the authorities cited above, I concluded the following a previous article about the SSPX excommunications:
“[S]uch an argument would only make sense on behalf of the SSPX if they wish to recognise that Leo XIV is a heretic – and accept the consequences of such a conclusion.
“Without such a recognition, it is difficult to see how they could consistently disregard a positive condemnation of excommunication from him and those whom he has putatively empowered.”
I stand by this. However, there are a number of points to observe. First, let us note how these authorities proceed.
The tradition enshrined in the Decretum – that heretics cannot excommunicate – is the primary fact, and the primary certainty. It is the datum used to reach other conclusions.
The conclusion that this inability is based on a loss of office is an explanation of that primary fact, and it is based on subsequent reasoning.
I believe that this reasoning is correct, and that we can and should follow St Robert Bellarmine and the others in their interpretation.
However, we must acknowledge that terms like “jurisdiction” admitted of a variety of different terms, and that as a result, these texts are sometimes explained in ways that appear to contradict Bellarmine’s interpretation. For example, Gratian himself states that “both powers” – viz. that the power of baptising and the power of office – remain in heretics.”18 He also states that “the power of office is one thing, and its execution another”, and that sometimes the latter is taken away without the former.
St Thomas appears to say something similar in IV Sentences (D18. Q2. A2. Q3. Resp. 1), stating that an excommunicate “does not lose his jurisdiction, nevertheless he loses the use of his jurisdiction.”19
Confusion arises from passages such as this, because terms like power, jurisdiction and the keys can sometimes be used interchangeably, and sometimes with quite distinct meanings. By way of example, in the second reply of the same question (D18. Q2. A2. Q3. Resp. 2), St Thomas writes:
“To consecrate follows on the power of the character, which is indelible… but it is different with excommunication, which follows on jurisdiction, which can be taken away and bound.”20
If jurisdiction meant the same thing in both replies, St Thomas would be contradicting himself within a matter of lines – affirming that the excommunicated does not lose his jurisdiction in one, and then that he does lose it in the next. But while he is not contradicting himself, this shows the importance of paying attention to the use of the terms in question.
Further, Rev. Joaquin M. Alonso CMF explains that St Thomas’ concept of jurisdiction “does not exactly coincide with that of contemporary canonists and ecclesiologists”,21 and that the Angelic Doctor sometimes employs the term jurisdiction or power of office to indicate a radical capacity for jurisdiction (which, being rooted in Holy Orders, cannot be lost), or the exercise of jurisdiction.22
What can we take from this, with regards to the question at hand?
Conclusion: Application of the principle is not restricted to ‘sedevacantists’
The conclusion that someone like Leo XIV has no power to excommunicate rests on the recognition that he preaches heresy, and is not the superior of any Catholic. If one wishes to claim that he is one’s superior in spite of this preaching of heresy, one must argue that only the power to excommunicate is restricted – and this is not the argument followed by the Church’s doctors and theologians.
However, it would be understandable that some may accept the principle that heretics cannot excommunicate, without concluding that heretics have lost office. It would also understandable that some will hold that merely expressing heretical ideas – even if by mistake, or in good faith – is enough to deprive someone of the ability to excommunicate, without the “excommunicator” being personally heretical.
I follow St Robert Bellarmine’s thesis, is that the heretic lacks the ability to excommunicate because he is “deprived of all ecclesiastical jurisdiction and dignity.” I think that any conclusion other than the vacant See is mistaken, and inconsistent with the logic of the argument. I think that any other explanation will ultimately lead to contradictions with truths that must be held, and to absurdities.
But while inconsistency might be a mark of error, there is no “Consistency Police Force”; and if there was, my personal views would not be the standard which it would enforce.
I do not make this concession out of any uncertainty of the conclusion. I am merely making clear that the fundamental certainty is that Leo XIV et al. cannot excommunicate, and that this explanation is based on subsequent arguments; arguments which I believe to be certain, but of a lower degree of certainty than what is established by the authorities cited. I would rather see people hold to the fundamental principle in an inconsistent way, than to reject it – especially if this drives them back to the arms of the modernists.
Nonetheless, as already stated, the line being pursued (at least for now) is one which considers Leo XIV and his Vatican as having the ability to excommunicate and issue declaratory sentences, and bases itself on canonical recourse, defensive legal reasoning, and even an organisation’s supposed right to consecrate bishops.
One may hope that this changes, if and when the canonical routes fail. In the meantime, it is regrettable. On the one hand, “the best defence is a good offence”; on the other, the world very badly needs to hear “a spade called a spade” – namely, that Leo XIV and his collaborators are not simply “bad fathers” who give stones, serpents and scorpions – but preachers of heresy.
Postscript: Answers to objections
Since these articles have been published, a few misunderstandings or objections have been presented.
Obj. 1. If this argument was true, anyone could invent an accusation of heresy against a prelate, and thus do whatever he wanted to do. This would be chaos, and therefore it is wrong.
Resp. 1. Such hypothetical consequences are not refutations. Further, we are already living in chaos, and this chaos is principally caused by those who have treated these men as if they have papal authority. Finally, anybody who denies that these men have been preaching heresies for the last sixty years, and compares this to someone inventing an accusation, demonstrates that they are living on another planet.
Obj. 2. The layman has no authority to declare anyone else a heretic. Therefore no one is bound by his judgments, and he is to be ignored.
Resp. 2. Indeed, the layman has no authority to render an authoritative judgment with legal effect or binding upon anyone else. However, he is competent to make a cognitive judgment; indeed, he is bound to do so when presented with teaching which contradicts that to which he is already bound, or told that he is excommunicated, or must desist from a particular line of conduct. He must judge the right thing to do, enlightened by faith, prudence and conscience.
Further, there is no reason for him to be ignored; on the contrary, his arguments should be refuted if they are false.
Obj. 3. This theory is very convenient for you. Therefore this theory is wrong.
Resp. 3. This is a worthless objection in itself. As an argument, it does not follow (the hidden minor premise to make it follow would need to be “That which is convenient for you is wrong”, which is obvious nonsense). It is also implicitly blasphemous, in that it suggests that Christ’s Church must function solely on inconvenience; whereas in fact, faith is the foundation of Christ’s Church, and it is very fitting that there be convenient solutions for problems relating to heresy, which is opposed to faith.
Obj. 4. It does not matter how bad the authority is. It is the authority, and you must accept it.
Resp. 4. We agree that the person holding authority can be morally bad. But the question is not about the morality of the person, but whether he is a heretic, and/or whether he teaches that which is heretical.
We should respond to such an objection by saying that it presupposes an entirely voluntaristic and naturalistic notion of authority, and thereby shows itself to be faulty.
Obj. 5. You are saying that papal authority only applies when you agree with the Pope.
Resp. 5. No, I am saying that we are obliged to assent to divine revelation and the teaching of the Church. When someone, even a prelate, attempts to impose propositions upon us which are contrary to what we are already bound to believe, we are obliged to either reject the new teaching in favour of the old, or the old in favour of the new. It is not possible to hold two contradictory propositions at the same time. Further, this is precisely what St Paul tells us to do in Galatians, and the saints and theologians have interpreted him in precisely this way.
Obj. 6. You are a Protestant, because you believe in a “right of scrutiny” over papal teaching.
Resp. 6. See Mgr Guérard des Lauriers’ treatment of this issue below:
‘The Right of Scrutiny’ and the drawing of consequences
Fr (later Bishop) Guérard des Lauriers. Cahiers de Cassicicum, n. 1.
We can now see in what sense it may be affirmed that: “every Catholic exercises a legitimate right of scrutiny over Authority and over the form of its decrees.”
This is true simpliciter, that is, absolutely, a priori and positively, within a human collective that belongs solely to the natural order. Whereas in the human collective that is the “Church,” whose Authority and norms are divinely instituted, the right of scrutiny belongs to subordinates only a posteriori and negatively.
We say a posteriori, because the object of this “right of scrutiny” is neither Authority in itself, nor the very form of its decrees; rather, the object of this right is the consequences of the acts performed by Authority. The “right of scrutiny” formally concerns the consequence. It is a posteriori.
We say negatively, because it does not belong to the faithful to judge positively that such-and-such an act of Authority is truly in conformity with the “marks” of the Church. But it is excluded that anything which truly emanates from Authority – whether in word or in deed – should sustain a contradiction, or practically a contrariety, with the “marks” of the Church. The faithful have the right of scrutiny regarding this exclusion; that is, they have the right to observe that this exclusion is concretely manifested, under the form of antagonisms and tensions, in reality. Thus, the consequences of what truly emanates – whether in word or in deed – from Authority must not entail contradiction or contrariety with the marks of the Church. In this sense, then, the “right of scrutiny” may be exercised; and it can be seen that this must be done only negatively: MUST NOT.
It must further be added that, with this right of scrutiny thus specified, to exercise it is not merely a right – it is a duty; a duty impelled by the instinct of Faith, and expressed in the testimony of Faith.
Fulfilling this duty never entails that the faithful have positively, a priori, a “right of scrutiny” over Authority. For if the opposition which is by right excluded is manifestly and continually present – if, in fact, there is real contradiction and actual contrariety between, on the one hand, the marks of the Church, and, on the other, what emanates from what appears to be Authority – then the faithful must conclude that, in reality, there is no exercise of Authority, or even that Authority no longer exists. The “right of scrutiny” of the faithful thus pertains not to Authority, but to the fact that Authority does not exist.
This right and this duty consist in observing that a given “subject” is no longer metaphysically capable – according to the ontology proper to the divinely instituted order – of exercising Authority, even though he occupies the See of Authority. This subject holds “authority” materialiter, but he is not invested with it formaliter. Therefore, the faithful never have to oppose Authority formaliter. The so-called “duty to disobey” is nothing but a mirage, whose artificiality takes shape only by the elasticity of language.
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Read Next:
Can heretics excommunicate? Foundational canonical text says they cannot
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Abp. Lefebvre and the ‘heretics can’t excommunicate’ argument
History repeating itself? A closer look at the Vatican’s SSPX excommunications
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It is important to note that the Vatican’s decrees purport to declare the existence of an automatic excommunication, rather than to impose an excommunication directly. This essay is dealing with the inability of those who preach heresy to excommunicate others; it applies to the declaration of automatic excommunications by analogy. However, Leo XIV and Cardinal Fernández’s inability to excommunicate or issue declaratory sentences would not prevent the automatic excommunications from taking effect; whether this is the case or not is outside the scope of these article.
Comment on C. IV, Causa XXIV, Quest. I, n. 40–67. p. 967. The base translation was created from Claude AI from the text at Münchener DigitalisierungsZentrum, and verified against Aemilius Friedberg’s Corpus Iuris Canonici, Pars Prior (Decretum Magistri Gratiani), Akademische Druck, U. Verlagsanstalt, Graz, 1959, pp. 965–983. With thanks to Mr Marc Balestrieri for his advice and pointers in this matter.
St Hypatius’ disciple Callinicus writes:
“And having learnt that Nestorius thought otherwise than ought to be thought, Hypatius immediately, in the church of the Apostle, removed his name, so that it should not be exalted in the oblation [i.e. not commemorated in the liturgical offering, equivalent to the Canon of the Mass].
“The most circumspect Bishop Eulalius having learned this and fearing the outcome of the event and since the word was out, and Nestorius ordered him to rebuke Hypatius, for that man was still in control in the city, and Eulalius spoke thus to Hypatius: ‘Why have you removed his name without considering the probable outcome?’
“To which Hypatius said, ‘Ever since I learned that he prattles unjust things about my Lord [i.e. makes heterodox statements about Christ], I am not in communion with him neither do I exalt his name [i.e. commemorate him liturgically in the Eucharist], for that man is not a bishop.’
“Then the bishop said in anger, ‘Away with you and put right what you have done, for I shall be taking action against you.’
“But Hypatius answered: ‘Do as you wish, for I have made up my mind to suffer all things [rather than desist] and thus I did this.”
And yet, both Bishop Eulalius and St Hypatius were preset at the Council together when Nestorius was condemned.
Life of Saint Hypatius of Bithynia, Abbot of Rufiniana, translated by Mr John Daly from the 1895 Leipzig edition of the Greek life of Saint Hypatius, written c. 447-50 by his disciple the monk Callinicus.
Doc. (27), ‘Petition from Basil the Deacon and Other Monks’, in The Council of Ephesus 431, Documents and Proceedings, (Translated Texts for Historians, Vol. 72) pp. 190-1. Trans. Richard Price, Liverpool University Press, Liverpool, 2020.
Gratian himself comments on these canons – explaining why heretics retain certain powers but not others.
“By these authorities it is clearly shown that, from the moment anyone begins to teach anything against the faith, he can neither cast down nor condemn anyone.
Ҥ. 1. However, the following statement of Augustine is objected:
“‘Those departing from the faith lose neither baptism nor the power of baptising.’
“Since, therefore, both powers – namely, that of baptising and that of excommunicating – follow the priestly anointing, those departing from the faith will either retain both or lack both.
“But the power of office is one thing, and its execution is another. Often the power of office is either received without its execution – as by monks in the priestly anointing – or, once received, is retained without its execution – as by the suspended, from whom administration is taken away but power is not removed.
“From those departing from the faith, therefore, the power is not taken away, just as it is not restored to those returning, lest injury seem to be done not to the man but to the sacrament. Whence those baptised or ordained by heretics, when they return to the unity of the Catholic faith, if perchance for the sake of ecclesiastical peace they are received in their own orders, the sacrament will not be repeated that is proved to have been administered in the form of the Church; but through the imposition of hands the virtue of the sacrament will be bestowed, which outside the Church is taught to have been conferred on no one.
“Since, therefore, both powers remain in heretics, if a heretic excommunicates a Catholic or another heretic, in order to draw him into communion with his heresy, the sentence lacks force, because it is unjust.”
(Comment on C. XXXVII, Causa XXIV, Quest. I, n. 588b–598. p. 981)
This section contains some phrases which appear problematic – although this arises from the ambiguity inherent in earlier uses of the terms jurisidiction and potestas – and a careful examination of texts resolves this. In the meantime, let us recall that the texts of St Celestine in question are explained and deployed by St Robert Bellarmine as evidence for the proposition, “the Holy Fathers teach unanimously not only that heretics are outside of the Church, but also that they are ipso facto deprived of all ecclesiastical jurisdiction and dignity.” The concepts under discussion – the retention of the radical potestas and the loss of its exercise – are entirely consistent with this conclusion, and supply its explanation: the potestas (radical capacity) remains because it is indelible and sacramental; the jurisdiction ceases because the communion on which it depends has been dissolved by the nature of the act of public heresy. Further, even prescinding from the foregoing analysis, the true authority of the canonical texts under discussion is derived from the relevant Popes; further, St Robert Bellarmine, a Doctor of the Church, is an authority of greater weight than Gratian.
Gratian then considers the distinct question of whether heretics have the power to excommunicate wicked Catholics, or other heretics.
Ҥ. 2. But if he passes sentence upon a Catholic living wickedly, or upon a heretic given over to shameful deeds or crimes, so that each may return to the rule of right living, whether both, or only the heretic, is bound by his sentence seems a question worthy of investigation.
“But it can be said that a Catholic is by no means bound by the sentence of a heretic. For he cannot strike with the sword of the mouth one whom he cannot accuse, or against whom he cannot testify.
“For if those whom divine testimonies do not support – because they are outside the Church – have lost the weight of human testimony against those who appear to be in the Church, neither will those who have been proved to have departed from her faith – and have therefore been condemned by the Church – be able to have the weight of ecclesiastical authority against those same persons.
“But a heretic seems to have power over a heretic, just as the devil too has power over the wicked, as over his own flock. (Comment on C. XXXVII, Causa XXIV, Quest. I, n. 597–602. p. 981)
He then proceeds to give examples in which the Church should respect the judgements of heretics against other heretics – for example, when a heretic seeking reconciliation with the Church has been censured by another heretic for disciplinary matters or crimes. In such a circumstance, their sentences themselves are reckoned as null, but the “sentenced” should still receive some penance.
Doc (20), Third Letter of Cyril to Nestorius. The Council of Ephesus 431, Documents and Proceedings, (Translated Texts for Historians, Vol. 72) pp. 162. Trans. Richard Price, Liverpool University Press, Liverpool, 2020.
Summa Theologica, IIa IIae, Q. 39, A3
Guillaume de Pierre Godin, ‘Tractatus de Causa Immediata Ecclesiastice Potestatis’, 2.945–951. In The Theory of Papal Monarchy in the Fourteenth Century, p. 151, ed. WM. D. McCready, p. Pontifical Institute of Mediaeval Studies, Toronot, Ontario, 1982.
St Robert Bellarmine, from De Controversiis: Tomus II, On the Church Vol. I, Book III (On the Church Militant), Ch. X, Secret Infidels. Trans. Ryan Grant, Mediatrix Press, Post Falls ID, 2017, p 294–5.
We should note that even the occult heretic incurs an automatic excommunication when he externalizes his heresy – although this excommunication is not sufficient to deprive him of office or membership of the Church, as it remains private or occult, rather than public. Dom Charles Augustine writes in reference to Can. 2242:
“External is here used in opposition, not to occult, but merely to internal sinful acts, as, for instance, an internal heresy which remains entirely within the mind and is never manifested.9 A crime on the other hand ( for instance, homicide), may be wholly occult, and yet external.”
Fn. 9 reads:
“Ibid., [Ballerini-Palmier, l. c., n. 48.] p. 64, n. 133: “neque sufficit, quod quis, v.g., intendens haeresim confirmare, mensam percutiat aut dicat: ita est, quia per hoc non significatur haeresis exerius.” But if one would say to himself: “I don’t believe,” or purposely and with heretical intent refuse to genuflect or bow (like the Greeks) to the Blessed Sacrament, he would manifest his heretical belief externally.”
Vol. VIII, p. 115. https://archive.org/details/OnTheNewCodeOfCanonLawV8/page/115/mode/2up
In the same work, Augustine writes:
“The crime of apostasy, heresy, or schism must be exteriorly manifested, either in words, writings, or acts which betray defection from the Christian Church, denial of some article of faith, or separation from the unity of the Church, according to can. 2195, §1 ; because merely internal apostasy, heresy, or schism do not belong to the external forum and therefore are not intended here.6 From merely internal transgressions, even though they be grievously sinful, any confessor may absolve.”
Footnote 6 reads:
“See Hollweck, l. c., p. 162; D’Annibale, l. c., says it does not matter whether the words or facts betraying the crime were heard or witnessed by bystanders; they are public if they could have been heard or seen (l. c., p. 24).”
Ibid., p. 278.
The fact that an excommunication can be incurred without depriving a person of office or membership of the Church may explain how it could be possible for the ability to excommunicate could be restricted in the “sedeplenist” paradigm.
Juan de Turrecremata, Summa de Ecclesia, Book II, Chapter CII.
As he himself said in 1975, “It is I, the accused, who should be judging you!”
Summa Theologica III, Sup., Q21. A4. See also:
Article 4. Whether an excommunication unjustly pronounced has any effect?
Objection 1. It would seem that an excommunication which is pronounced unjustly has no effect at all. Because excommunication deprives a man of the protection and grace of God, which cannot be forfeited unjustly. Therefore excommunication has no effect if it be unjustly pronounced.
Objection 2. Further, Jerome says (on Matthew 16:19: “I will give to thee the keys”): “It is a pharisaical severity to reckon as really bound or loosed, that which is bound or loosed unjustly.” But that severity was proud and erroneous. Therefore an unjust excommunication has no effect.
On the contrary, According to Gregory (Hom. xxvi in Evang.), “the sentence of the pastor is to be feared whether it be just or unjust.” Now there would be no reason to fear an unjust excommunication if it did not hurt. Therefore, etc.
I answer that, An excommunication may be unjust for two reasons. First, on the part of its author, as when anyone excommunicates through hatred or anger, and then, nevertheless, the excommunication takes effect, though its author sins, because the one who is excommunicated suffers justly, even if the author act wrongly in excommunicating him. Secondly, on the part of the excommunication, through there being no proper cause, or through the sentence being passed without the forms of law being observed. In this case, if the error, on the part of the sentence, be such as to render the sentence void, this has no effect, for there is no excommunication; but if the error does not annul the sentence, this takes effect, and the person excommunicated should humbly submit (which will be credited to him as a merit), and either seek absolution from the person who has excommunicated him, or appeal to a higher judge. If, however, he were to contemn the sentence, he would “ipso facto” sin mortally.
But sometimes it happens that there is sufficient cause on the part of the excommunicator, but not on the part of the excommunicated, as when a man is excommunicated for a crime which he has not committed, but which has been proved against him: in this case, if he submit humbly, the merit of his humility will compensate him for the harm of excommunication.
Reply to Objection 1. Although a man cannot lose God’s grace unjustly, yet he can unjustly lose those things which on our part dispose us to receive grace. for instance, a man may be deprived of the instruction which he ought to have. It is in this sense that excommunication is said to deprive a man of God’s grace, as was explained above (Article 2, Reply to Objection 3).
Reply to Objection 2. Jerome is speaking of sin not of its punishments, which can be inflicted unjustly by ecclesiastical superiors.
What might make an excommunication null? St Joan of Arc’s trial, condemnation and excommunication were declared null, following a retrial in 1456. This led to the declaration of the Archbishop of Reims
“I’n consideration of the request of the d’Arc family against the Bishop of Beauvais, the promoter of criminal proceedings, and the inquisitor of Rouen... in consideration of the informations... and juridical consultations... in consideration of the facts, in consideration of the defamatory (or dishonourable) articles...
“We, in session of our court and having God only before our eyes, say, pronounce, decree and declare that the said trial and sentence (of condemnation) being tainted with fraud (dolus malus), calumny, iniquity, contradiction and manifest errors of fact and of law, including the abjuration, execution and all their consequences, to have been and to be null, invalid, worthless, without effect and annihilated... We break and annul them and declare that they must be destroyed (lit. lacerated)...
“‘In consideration of Joan’s appeal to the Holy See... in consideration of the threats of torture ... We proclaim that Joan did not contract any taint of infamy and that she shall be and is washed clean of such and, if need be, we wash her clean of such absolutely...”
“One of the original copies of the articles of accusation was then symbolically torn-up (”lacerated”’); the whole court and assembly then moved to the cemetery of Saint-Ouen where the ‘abiuration’ had taken place, and the verdict just given was repeated. On the following day this was done yet again, this time at the Old Market, where there also took place a solemn preaching and the erection of a cross ‘in perpeutal memory and that prayer for the salvation of her soul and those of the other dead be here offered up.’”
It is difficult to see how these grounds could benefit those who may be excommunicated under the current circumstances – if Leo XIV is the Pope. For a start, St Joan appealed to the Pope, which should have stayed her execution; but if Leo XIV is the Pope, and excommunications are inflicted by his Holy See and with his approval, then no verbal appeal can stay the penalty.
From Régine Pernoud, Joan of Arc by Herself and Her Witnesses, p. 269. Trans. Edward Hyams, Heron Books, 1962.
Bartolomeo Fumo OP, ‘Excommunicatio’, n. 10., Summa aurea armilla, p. 367. Venetia, 1578.
We can note that an SSPX defence of the organization’s position stated the following:
Canon law stipulates that when a Catholic commits a crime, he or she may be punished. However, certain conditions must be met for such a punishment to be incurred. It is not enough that an act materially constitutes a crime; it must also, as stipulated in paragraph 2 of canon 1321, be morally imputable to the perpetrator. The adage “nula poena sine culpa“ (no punishment without fault) is a fundamental principle of canon penal law, so that one who has not committed a sin is exempt from all canonical censure or punishment.
This is why Cardinal Journet could write: “The innocent person, legitimately excommunicated on the basis of apparently convincing evidence, is in truth not excommunicated.” In the same vein, the canonist Raoul Naz writes: “The absence of grave guilt excuses a qualibet poena, tum latae tum ferendae sententiae (can. 2218, § 2). Therefore, any penalty can only be inflicted or incurred for a grave fault, both materially and formally.”
The reference given was to a French edition of Journet’s Church of the Word Incarnate (Cardinal Charles Journet, The Church of the Incarnate Word , DDB, 1951, vol. 2, p. 849.). Here is the English text, which is found in Vol. I:
“From this, we may see that it is only the virtuous use of the coercive power that the Church takes upon herself.
“Even when virtuous, this use will not be infallible in every given case. For judicial sentences belong to the domain of particular decisions, where error is always possible. The divine assistance is here assured—not for each individual case in its individuality but only in general and for the due functioning of the whole. We can imagine, as an extreme case, a sentence of excommunication prudently and virtuously pronounced but falling by sheer mistake on an innocent person. The moralists say that, at bottom, such an excommunication would be invalid since where there is no offence (that is to say, no morally imputable violation of a law), no ecclesiastical sentence properly so-called can be pronounced; and that no one would be bound to obey it (for example, by refraining from the sacraments) save only for the scandal that might otherwise be caused.
“We can even imagine a case, unlikely perhaps, but possible (not that of Joan of Arc, who was condemned by men whose hearts were far from clean) of a judicial sentence, motivated by the purest love of justice, which by some unavoidable misapprehension shall have declared heretical and delivered to the secular arm one whose error was in fact not culpable, whose death was magnanimous, whose charity was heroic, and whose sanctity would be later on proclaimed; so that from both sides, that of the judge and that of the accused, there would be equal love of God and desire for justice. Such misunderstandings are always possible here below. Love might even be increased by them: aquae multae non potuerunt extinguere caritatem. The light of the Church triumphant alone will be able to definitively dissipate them.” (p. 272)
While aspects of this, and the defence offered by the SSPX, are in keeping with canonical principles, it is difficult to reconcile them with the teaching of the magisterium cited in this article.
Gratian says:
“But the power of office is one thing, and its execution is another. Often the power of office is either received without its execution – as by monks in the priestly anointing – or, once received, is retained without its execution – as by the suspended, from whom administration is taken away but power is not removed.
“From those departing from the faith, therefore, the power is not taken away, just as it is not restored to those returning, lest injury seem to be done not to the man but to the sacrament. Whence those baptised or ordained by heretics, when they return to the unity of the Catholic faith, if perchance for the sake of ecclesiastical peace they are received in their own orders, the sacrament will not be repeated that is proved to have been administered in the form of the Church; but through the imposition of hands the virtue of the sacrament will be bestowed, which outside the Church is taught to have been conferred on no one.
“Since, therefore, both powers remain in heretics, if a heretic excommunicates a Catholic or another heretic, in order to draw him into communion with his heresy, the sentence lacks force, because it is unjust.” (Emphasis added)
St Thomas writes:
“For someone who is excommunicated or suspended loses neither his holy orders nor his jurisdiction, for when he is absolved, he is neither re-ordained nor is his post committed to him again.”
This forms part of an objection to the thesis that an excommunicated person cannot excommunicate another. However, St Thomas accepts the principle, and states:
“Although he does not lose his jurisdiction, nevertheless he loses the use of his jurisdiction.”
The confusion arises here because of the different senses in which these terms are used. See the next footnote.
Rev. Joaquin M. Alonso CMF, ‘Santo Tomás y el Llamada “Sacerdocio de los Fieles”’, XIII Semana Española de Teología 14-19 Sept. 1953, p 155. Ediciones Aldecoa, Madrid, 1954.
Alonso writes:
Thus, first of all, it is true that St. Thomas uses the terminology of “potestas iurisdictionis” (187) and “clavis iurisdictionis” (188); but it is also true that jurisdiction, in St. Thomas’s mind, is not understood—as modern authors do (189)—in the broad sense of “imperial authority, ” but is instead referred specifically to the penitential forum; and it is clearly distinguished from the “key of knowledge” (clavis scientiae), which in modern terminology corresponds to the potestas magisterii.
But let us look more closely at the texts themselves. St. Thomas sometimes calls it “potestas iurisdictionis,” as we have said (190); at other times “clavis iurisdictionis” (191). In both cases, however, he is presupposing the essential unity with the character of Holy Orders (192), and this both in the internal penitential forum (193) and in the external judicial forum (194).
On other occasions, rather than the potestas itself, it signifies its “use” (195); and then it is true that: “jurisdiction is not lost, but the use of jurisdiction is lost” (196). The “defect of jurisdiction” does not affect the power itself (197). Therefore, “jurisdiction, ” insofar as it is a potestas, cannot be defined in St. Thomas by a purely material element (198), nor by the merely “juridical” element of an “imposition” (iniunctio) (199).
St. Thomas takes jurisdiction as a potestas that is essentially one with character, with imperium, with auctoritas, and with praeeminentia; and insofar as it is distinct in its actual exercise from the power of order, he understands it only as the “clavis iurisdictionis in foro causarum” (200).
Now, in this purely forensic order, it “does not directly tend toward heaven… it is not properly called a key of heaven, but rather a certain disposition toward it” (201). For this reason St. Thomas hesitates to call this aspect of jurisdiction a “key of jurisdiction” (202). In all this one can see the Thomistic theological mindset of always understanding the concept of “key” (clavis) through sacramental power and character (203).
Now, to conclude this section, and assuming as evident in St. Thomas’s mind the impossibility de jure—not merely de facto—of a lay jurisdiction, which would imply a theological contradiction in terms, we would like to make the following brief remarks on the doctrinal difference between modern canonists and ecclesiologists and St. Thomas.
These differences fundamentally arise because St. Thomas places the potestas iurisdictionis within a more precise sacramental framework—more exact, in our view, than that of these authors; who, moreover, have not yet achieved a serious study of the origin and nature of jurisdictional power (204).
Alonso, pp. 157–159.
Nestorius bound people to believe error. As bad as those in Rome are today, none of them have done that. Nor have they anathematized the Truth as, again, Nestorius did.
That study group 9 thing was the closest I ever saw to doing that, but it's authority is at the least very uncertain.