Excommunication of Cardinals

CFeb 1, 2019, 4:27 PM (2 days ago)
to me

Your Excellency Bishop Rene H. Gracida:

Of all the perplexing issues facing Catholics in this time of crisis, the most delicate topic of them all deals with the validity of the current papacy. It is an area in which canonists must tread lightly, and my usual policy, when asked for my opinion, is to leave the question open. However, I am writing now, after having read this recent blog post, due to some concerns I have with the author’s reasoning.

First it would seem prudent to clarify that I fully believe that due to the arguments Your Excellency has made regarding Universi Dominici Gregis, as well as arguments in favour of the invalidity of Benedict XVI’s resignation, there is enough cause for doubt. In addition, in voicing my objections to the post, I am not attempting to defend Francis (or his various heresies) in any way, shape, or form, and I believe there definitely should be an investigation into the validity of his papacy. If an investigation were to reveal that he was never a true Pope, I would be happy for the Church to be freed from this scourge. And yet, before this investigation is done, it appears that in some instances we have come dangerously close to putting the cart before the horse. 

At this stage, I do not feel comfortable taking sides in the debate regarding the validity of Benedict’s resignation; however, it is not necessary in order to point out that Br. Bugnolo’s arguments concerning excommunication are flawed because the invalidity of Benedict XVI’s resignation has not been proved in the external forum, and because allegations of canonical crime can only be definitely ascertained by the competent authority. While he is correct in stating that “to call a conclave when there is still a true Pope…is illicit”, his appeal to canon 359 is a non-starter. It is not up to any individual Catholic, using his own private judgement, to declare a conclave invalid. If the College of Cardinals has the authority to elect the new Pope during periods of sede vacante, they likewise have the authority to determine when this is necessary. Though these Cardinals could very well be in error regarding the (in)validity of Benedict XVI’s resignation, rendering an investigation necessary, Br. Bugnolo errs in building his entire argument upon an alleged fact not yet proved in the external forum. 

Even assuming that he is correct in his belief that the resignation of Benedict XVI was invalid, thus making Francis an usurper, the logic he employs in his attempt to prove that the Cardinals are excommunicated contain quite a few canonical errors. To begin, he appears to have a misunderstanding of canon 1382, as though episcopal consecrations performed without a pontifical mandate are intrinsically schismatic actions. This is impossible, as demonstrated by the fact that under the 1917 Code of Canon Law, the penalty for illicit consecrations was “merely” suspension, rather than excommunication (c. 2370). Thus, his use of the word “ordain” throughout his article is misleading; “appoint” would be more appropriate to describe the situation in the case he outlines. Merely consecrating a bishop without the proper mandate is not an act of schism, unless those performing the consecration pretend to confer jurisdiction upon the newly ordained, implying that the consecrating bishop is appointing somebody to begin a rival hierarchy. 

Pius XII, who changed the old canon 2370 and set the precedent for canon 1382 of the new Code, saw the schismatic action as referring to the unapproved appointment of the bishop to an ecclesiastical office with jurisdiction, rather than the sacramental consecration itself. He speaks of the “canonical appointment” of bishops, decreeing that no one except for the Supreme Pontiff “can claim the right of nominating bishops; that no one can lawfully confer episcopal consecration unless he has received the mandate of the Apostolic See” (Ad Apostolorum Principis, 47). What is schismatic is not the consecration itself, but the pretended conferral of jurisdiction signifying canonical appointment, because “jurisdiction passes to bishops only through the Roman Pontiff” (ibid., 39). Performing the unauthorized juridic act of appointing a bishop without papal approval is indeed schismatic, but performing the unauthorized sacramental act of consecration in itself is not. 

This error aside, Br. Bugnolo is correct in stating that if Pope Francis were not validly elected, the Cardinals who elected him, as well as the Bishops appointed by him, would have been cooperating in acts of usurpation, objectively speaking. (Whether they are subjectively culpable is another matter.) He is also correct in stating that those who are guilty of supporting an Antipope are liable to a latae sententiae excommunication for schism, in accordance with canon 1364. However, to conclude from here that these prelates are excommunicated due to their cooperation, as per canon 1329 §2, is still an act of rash judgement. Here, Br. Bugnolo demonstrates a misunderstanding of the true nature of latae sententiae penalties, first indicated by his misleading translation of the precise Latin term as “automatic”, which subsequently leads to an error regarding the need (or lack thereof) for competent authority in such cases.

Ascertaining a latae sententiae penalty also requires canonical competence, something not possessed by just any ordinary individual, even though the penalty occurs “by the law itself”. This is not to say that an individual Catholic does not have the ability to recognize canonical crimes when he sees them, but merely that he has no right to ascertain, on his own, that a latae sententiaecensure has taken place, and hold to that opinion definitively. It is only through due process, established by ecclesiastical law, that the entire Church may know for certain who has incurred a censure. Because the Pope is the sole judge of the Cardinals (c. 1405 §1, 2°), and in such cases the incompetence of any other judge is absolute (c. 1406 §2), his authority is necessary to definitively ascertain a canonical crime on the part of any Cardinal, even if he does not subsequently confirm this judgement with a decree. If the 2013 Conclave were indeed invalid (again, this is not certain), then as of now, only Benedict XVI would have the authority to determine if any Cardinals are guilty of usurpation. 

Furthermore, Br. Bugnolo’s appeal to canon 15 §2, which establishes that “ignorance or error about a law, a penalty, a fact concerning oneself, or a notorious fact concerning another is not presumed” is irrelevant. An assertion, legally speaking, cannot be considered a true “fact” until it is proved in the external forum, while the invalidity of Benedict XVI’s resignation has not yet been held up to this type of scrutiny yet. Therefore, his claim that any Cardinal who reads the text of Benedict XVI’s resignation and notices the problematic uses of munus and ministerium is ipso facto culpable is incorrect, and for another reason as well. If a Cardinal concluded today that the resignation was invalid, and supposing his conclusion is ultimately proved correct by an ecclesiastical tribunal, how can it be presumed that he was of a similar mind in 2013 and thus engaged in the election while having guilty knowledge? 

Finally, Br. Bugnolo’s point regarding the Cardinals not “verifying” the validity of Benedict XVI’s resignation, added almost as an afterthought, is a strange remark. Not only does he not provide any citations for the claim that “in the case of a papal resignation, there is no such presumption [of validity]”, his own citation of canon 322 §2 undermines his own argument. A Pope’s resignation does not have to be accepted by anyone for validity, and nor is it written that the Cardinals are responsible for letting the rest of the world know about this, if the Pope himself has manifested his intention. 

In short, it is not up for an individual Catholic to decide on something which has never been investigated by the competent authorities in the external forum. One may honestly hold to the opinion that Benedict XVI’s resignation was invalid, or that the validity Francis’s election is subject to positive doubt, but to behave as though this is the only correct viewpoint betrays a schismatic mentality. To go even further and be as audacious as to judge the Cardinals excommunicated without due process is also contrary to the law of justice, usurping the authority which belongs to the Supreme Pontiff alone and denying the canonical rights of these Cardinals to be judged with canonical equity. 

To present a position such as Br. Bugnolo’s without making it explicitly clear that this is private opinion, has the potential to give scandal to the faithful who are already bewildered over today’s crisis.  It is not at all conducive to the salvation of souls, the Church’s mission and supreme law. 

I will keep Your Excellency in my prayers, trusting you will do the same for me. 

Respectfully in Christ, 

credidimus caritati

About abyssum

I am a retired Roman Catholic Bishop, Bishop Emeritus of Corpus Christi, Texas
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  1. Gavan Podbury says:

    Thank you. This seems a thorough & researched article.
    I’d be very keen to read a selection of what this writer identifies are the ‘various heresies’ of Francis that he alludes to in his second paragraph. And whether or not a heresy committed by a Pope invalidates the role anyway.

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