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Canon Law

Obstinate heresy, salus aniarum suprema lex, epikeia, jurisdictio

Rev. Rama Coomaraswamy


'Necessity makes licit what is illicit.'
Pope Gregory IX

'It is true that one sins against the rule who adheres to the letter and leaves aside the spirit'
Pope Boniface XIII

'The highest law is the salvation of Souls'
Pope Pius X


A priest can legitimately disobey his bishop or the pope only if:
i) he is commanded to do something sinful,
ii) if his superior commands without authority.

In the present circumstances when priests are commanded to accept the teachings of Vatican II as part of the 'supreme magisterium,' and to use rites which are not Catholic, both can be said to apply. There is no problem with the first, for reason tells us that no one can demand that we accept black as being white or error as truth. However the second principal also applies, for the Church cannot allow one who denies the faith to wield authority over the faithful.

To say that the second principle applies is to say that the post-Conciliar hierarchy has defected from the Faith. Again reason tells us that a person who leaves the Catholic Faith is no longer a Catholic, and if he held a position or authority within the Mystical Body of Christ, he would, as a result or his defection, simultaneously loose it. Now one cannot go around accusing people of being heretics and apostates without clear-cut definitions of what is meant. The Church provides such within her Canon Law.

A 'heretic' is defined in Canon 1325 as: 'Any baptized person who, while retaining the name of Christian, obstinately denies or doubts any of the truths proposed for belief by the Divine and Catholic Faith'.

For the law to be clear certain terms must be explained. The First point to be made is that to be a heretic one need only deny or doubt a single truth of the Divine and Catholic Faith. Thus for example when Pius XII defined the dogma of the Assumption of the Blessed Virgin, he stated that 'it anyone, which God forbid, should dare willfully to deny or call into doubt that which we have defined, let him know that he has fallen away completely from the Divine and Catholic Faith' (Munificentissimus Deus). In a similar manner Pope Leo XIII said in his Encyclical Sapaentiae Christianae that for a Catholic 'to refuse to believe in any one of (the dogmatic teachings of the Church) is equivalent to rejecting all of them.'

Next, the Canon pertains to those TRUTHS PROPOSED FOR BELIEF BY THE DIVINE AND CATHOLIC FAITH, truths defined as such by the Church, and falling within the realm of the 'Solemn' or the 'Ordinary and Universal' Magisterium. There are many truths which the Church holds 'infallibly', but which have not yet been defined as such - should one doubt or disbelieve in one of these one could well be a 'heretic', but not within the province of this Canon. The point is important for the post-Conciliar hierarchy has with almost diabolic cleverness tried to keep to within these bounds. They deny innumerable infallible truths taught by the Church, Scripture and the Fathers, and yet claim that they have never denied anything that is 'de fide'. Of course Vatican II does deny de fide teachings of the Church, and when this is pointed out they claim that they have not contradicted anything that is proclaimed ex cathedra which they falsely limit to pronouncements of the Extraordinary Magisterium; with regard to the Ordinary Magisterium, they teach that it can change.

Now, a person can even be in error about the 'defined' teachings of the Church without being a 'heretic' within the definition of this Canon, for it is not heresy, but OBSTINATE heresy that is under consideration. OBSTINACY does not imply any particular duration of time, or even any duration or time at all. According to Bousearen and Ellis 'Pertinaciter (obstinacy) does not imply duration, nor violence; it simply means setting up one's mind against the known mind of the Church'.

Thus a Catholic (even a priest) who believed or taught an heretical doctrine would not be considered obstinate, and thus a heretic within the meaning of the law, until the correct doctrine had been pointed out to him together with the evidence supporting it, and he against such evidence continued to maintain his erroneous belief. Now the error he held to in ignorance is still an error, so it is called 'material' heresy; only when 'obstinacy' is introduced, does material, heresy becomes 'formal'. A Catholic who adhered to a theological error in ignorance would be a material heretic, but if he knew that he believed something that the Church taught was an error, or refused to believe something that he knew the Church taught as truth, he would be a formal heretic. (The Church allows a period of six months before declaring that a material heretic who has been corrected, is a formal one.) Note that the error doesn't change, but only the attitude of the individual towards it. (Catholics who knowingly accept Protestant or Modernist principles that are against the teaching of the Church are 'formal' heretics.) The distinction between the two lies in the fact that in the latter situation the individual adds the component of his 'will' to the error, and by 'willing' to believe an error he becomes guilty of heresy. All sin involves the will.

The Church cannot and never has allowed public obstinate heretics, even if they are validly ordained clerics, to perform spiritual functions with her approval. Pope Paul IV in 1559 summarized this principle in his Apostolic Bull CUM EX APOSTOLATUS OFFICIO, from which I quote the following pertinent paragraphs:
'Should it happen that a bishop, cardinal, legate or even the Roman Pontiff had deviated from the Catholic Faith or had fallen into some heresy before his nomination as bishop, cardinal or pope, the following dispositions are compulsory. The promotion or election, even if the cardinals have consented to this of common accord, are null and void. They cannot acquire validity by the fact of the subject's entry into function or by the fact of consecration or subsequent exercise of authority, nor - in the case of a pope by the fact of enthronement, of the act of veneration or subsequent general obedience, whatever may be the duration of this situation nor can they be considered as partially legitimate.'
'Nor can they confer upon such persons promoted to the dignity or bishop, archbishop, or primate, or called to the dignity of cardinal, or to occupy the See of Peter, any power to command either in the spiritual or the temporal domain. On the contrary, ail their words, actions, and dispositions, and their consequences, have not the least juridical effect and do not confer the slightest right upon anybody.'
'Persons promoted or called in this way lose, by that very fact, and without further declaration, their dignity, position, honor, title, authority, function, and power all at the same time.'
'To all persons promoted or called in this way - all the members or the secular clergy, all religious clerics, laymen, and also the cardinals who have participated in the ejection or a pope who already deviates from the Catholic Faith, have the right to refuse obedience and veneration towards these people thus promoted or called, and with impunity. They have the right to avoid them like warlocks, pagans, publicans and heresiarchs...'
'Whoever does not refuse fidelity and obedience to such persons thus promoted or called are tearing the Lord's robe and will consequently be chastised by censures and penalties.'
'No one is permitted to reduce the bearing of this document.., nor to act against it. Let whoever presumes to attack this document know that he calls down the wrath of Almighty God and of the holy Apostles Peter and Paul.'

In the Code of Canon Law promulgated in 1917 the penalty imposed for obstinate ('formal') heresy is enshrined in Canon 188, which Canon makes reference to this document as its source. The reference is important because it is this document which is to be used to clarify any doubt about the meaning of the Canon. Canon 188 states: 'Through tacit resignation, accepted by the Law itself, all offices become vacant by the fact itself (ipso facto) and without any declaration if a cleric ... (the canon gives eight possible occurrences of which the fourth is) ... has publicly defected from the Catholic Faith.'

In order that the text be fully understood certain terms need explanation:
TACIT means 'understood' or 'without being stated' i.e., by the person resigning. Canon 186 had stated that the resignations must be made either in writing or before two witnesses; so the word tacit is necessary in order to waive this requirement. ACCEPTED BY THE LAW ITSELF means that the resignation does not have to be accepted by a superior ( as do 'resignations' not covered by Canon 188). ALL OFFICES: an 'Office' is defined in Canon 145 as any employment which is legitimately practiced for a spiritual purpose and entailing some participation at least in ecclesiastical power, whether of orders or jurisdiction. Reference to the Apostolic Bull CUM EX APOSTOLATUS OFFICIO makes it clear that this phrase includes the papal Office. IPSO FACTO means that no warning by a superior is required for this law to take effect. It is a 'latae sententiae' penalty which 'is incurred by the mere fact of the commission or the offence', WITHOUT ANY DECLARATION. These words are also found in the Bull Cum Ex Apostolatus Officio and make it clear that each member of the faithful is free to use his own judgment and is not obliged to rely upon the assistance of any official member of the hierarchy. Obviously, with the case of a usurping Pope, such assistance is impossible, for no one and no court whatever has the power to subject the Pope to a juridical trial (Canon 1556). PUBLICLY means self-evident.

Adherence to the erroneous teachings of Vatican II is clearly both public and self-evident. According to Father Augustine, DEFECTION FROM THE CATHOLIC FAITH, if public, deprives the individual of all ecclesiastical offices he may hold. Thus a 'formal heretic' automatically loses his 'jurisdiction', all his 'offices' and all his spiritual functions.

Even if one were to argue that we can only suspect the current pontiffs and the 'bishops in union with them' of heresy, the problem is not solved. Where a 'suspicion of heresy' is raised, Cation 2315 applies.

'A person who is suspected of heresy, and who after admonition has not reinoved the cause for suspicion, shall be forbidden to exercise legal ecclesiastical acts; if he is a cleric, and after repeated admonition has not removed the cause for suspicion, lie shall be suspended 'a divinis' ('from divine things', such as administering the sacraments. If a person suspected of heresy is punished with the penalties here stated, and does not amend within six months of their imposition, lie shall be considered a heretic and liable to the penalties of heresy.'

The criminal actions incurring 'suspicion of heresy' are detailed in Canon 2316 and include helping to propagate heresy and taking part in sacred rites with heretics as well as those who defend or fail to denounce heretics; Canon 2119 which includes agreeing to educate one's children as non-Catholics, or procuring their baptism or education outside the Catholic Faith; Canon 2320 which includes sacrilegious abuse of the Holy Sacrament, Canon 2332 which includes the appealing of a decree of a Roman Pontiff to a ecumenical council; Canon 2340 which includes stubborn per severance in excommunication for one year; and Canon 2371 which includes the reception or orders through simony or ordaining or administering other sacraments through simony.

Now, if one holds that the post-Conciliar hierarchy is such that one can only suspect them of heresy - and certainly they have violated Canon 2316 innumerable times and had more than six months to amend - then they become guilty or heresy under the rules of Canon 2315 and once again Canon 188 applies.


The argument that a laymen cannot state his firm conviction that a cleric of whatever rank is a heretic can hold no water. Reason tells us that if a layman cannot make such a judgment, then he cannot be held responsible for following a heretic and being one himself. Canon Law however makes the issue quite clear. Canon 1935 state:

'Any member of the faithful may at all times denounce the offence of another, and the obligation of denouncing another becomes urgent... when one is obliged to do so in virtue of the natural law where there is danger to faith or religion or other imminent public evil.'

Clearly such is the case today when many through ignorance of the Faith give their allegiance to false shepherds.


It must also be recognized that many priests 'went along' with the New Church without in any way intending to separate themselves from the Catholic Church. Such priests cannot be considered as 'formal heretics' for they never willed to adhere to error, and once the errors of the post-Conciliar Church became clear to them, they acted appropriately to denounce same and separate themselves from them.

The same is also true of the laity. Speaking from personal experience, many traditional Catholics went along with the teachings of Vatican II because they thought these teachings represented the Magisterium established by Christ. Few actually read the documents which are lengthy and boring, and quite naturally thought that statements by the hierarchy which did not coincide with the previous teachings of the Church were misinterpretations of what had been said. With time however they became familiar with the documents and realized that error was being introduced into the bosom of the Church. While they did not know who was responsible, they continued to be members or the post-Conciliar Church while separating themselves from such errors. In a similar manner, they realized that the new Sacraments were not Catholic and were of dubious validity. This led to their returning to the traditional rites of the Church. And even today there are people who accept the fact that dubious individuals sit on the Chair of Peter, that they do not know the 'Status' of such individuals, but who steadfastly refuse to follow them in their false teachings or to accept the dubious post-Conciliar rites on their authority.

Now to accuse such individuals of being 'formal heretics' is to state that in acting in this manner they willed to separate themselves from the Mystical Body or Christ. Such is clearly not the case. Even those who in the present confusion continue to accept -the 'popes' as having some sort or authority, but who in no way accept their heresies, cannot be accused of being 'formal heretics'. The problem is that despite their intentions, their participation in the rites and their listening to sermons by the clergy of the post-Conciliar establishment, slowly corrupts their faith. Their children, having no grounding in the true faith are inevitably turned into Protestants or worse.


Far different is the situation of those who knowingly and with full intent embrace the Modernist deviation. Modernism is a condemned 'heresy' and the Oath against Modernism falls within the realm of what is 'de fide'. If the Conciliar Religion teaches doctrines contrary to Divine and Catholic Faith, it is a heretical religion. Those who publicly and obstinately embrace it would clearly become heretics and would loose their office and jurisdiction.


As a result, there are many priests in every country who refuse obedience to the post-Conciliar establishment. Whether or not they do this formally, by insisting on using the traditional rites of the Church they are in fact 'disobedient,' not to Christ and the true Church, but to the new or Conciliar Church. As such, they clearly cannot have jurisdiction.

Traditional priests were either ordained prior to 1969 or were ordained by traditional bishops who were themselves consecrated by traditional rites. Few indeed were the priests who saw the problems from the start - most remained for a time 'in obedience' and then separated themselves from this Church in order to retain their Catholic faith.

None of these priests can claim to have 'jurisdiction' through normal channels, because none of them recognize the governing bishops or are recognized by said bishops. If and when they provide the faithful with the Sacraments, they do so or seem to do so 'illicitly.' (licit essentially means legal.) It is important to understand that in the present circumstances these priests are in fact provided with jurisdiction by the Church, and that their function is entirely licit. The principle involved is enshrined in Canon Law under the title of Epikeia.


Yet these priests continue to hear confession and to administer the Sacraments. How can they do this without violating the laws or the Church? The answer stems from the principle that the supreme law or the Church is the Salvation or Souls. Canon laws derive from two sources. The first is the divine law which can never be violated. The second is the law of. the Church which has as its immediate aim the safeguarding of the divine law and as its ultimate aim the salvation of souls. Divine Law was established by Our Lord and the Apostles, while the remainder of Canon Law was established by the hierarchy of the Church. Now, the canonical rules which regulate the normal exercise of sacerdotal functions are always subject and subordinated to the Divine Law which remains supreme. When the formal observation or the ecclesiastical law impedes or acts against the fulfilment of the divine law, it is the latter which must prevail. As St. Thomas Aquinas says, 'the power of jurisdiction is not granted a man for his own benefit, but for the good of the people and for the glory or God' and further, 'since necessity knows no law, in cases of necessity the ordinance of the Church does not hinder' (Summa, Suppl. Q. 8, Art. 5 and 6).

We do not live in normal circumstances. Valid and orthodox priests are caught in a seeming dilemma. Are they to obey the letter of the law or are they to fulfill the requirements of charity and justice. Putting it in different terms, are they to follow the ecclesiastical laws legitimately established by man, but which in the present circumstances act to frustrate the intent of the Church and her founder, or are they to follow the higher law of charity and justice established by God. According to the moral theologians, 'in a conflict of obligations the higher one takes precedence. Duties conflict when two laws apparently oblige simultaneously and only one can be observed. In such circumstances, only the more important one actually obliges'.


The principal involved is covered by what the Canonists call Epikeia. Epikeia is explained by St. Thomas Aquinas as a virtue that guides one in those cases where the law fails because of its universality, in such wise that to observe it strictly according to its letter manifestly defeats the 'spirit' or very purpose of law to provide for the common good. In such exceptional cases epikeia directs us to disregard the literal sense of the law and be guided rather by the obvious intent of the legislator which is the Church acting in persona Christi (Summa 11-Ila, q. 120, a. 1, and I-IIa, q. 94, a. 6).

St. Alphonsus Liguori defines epikeia as 'a presumption, at least probable, that the legislator in a certain set of circumstances did [or, would] not wish to bind [the subject]'. St. Antoninus taught the judicious use of epikeia was a special virtue given by God to the subject of a law, to enable him to recognize when he may discount the words of the law, and follow instead what he deems to be the intention or the legislator. Cajetan taught that the purpose of the law is signified by its words, and that this constitutes the intrinsic end of the law; whereas the intention of the lawmaker is the extrinsic end. The ultimate and extrinsic purpose of every law (that is to say, the intention or the legislator) is the good of the citizens for whom it is enacted. Consequently, if a conflict should arise between the extrinsic end and the intrinsic end (that is, the proximate purpose of the law as evidenced by its words), the former must prevail.

Father Riley summarizes the teaching of St. Thomas Aquinas on this virtue (slightly adapted): 'He clearly taught that epikeia is a judgment of a subject about the case at hand, and not about the law itself... That the public good must in some way be involved before an individual subject may deviate from the letter of the law... The use of epikeia in cases where the literal observance of the law would be evil, is certainly justified. Possibly also in other cases in which the lawmaker would not be willing to bind the subject where he, the legislator present. It seems to be the preferable opinion is that St. Thomas teaches that in cases where it is certain that the lawmaker would be unwilling to urge obligation, epikeia may always be used without recourse to authority. In cases of doubt, an authority with power to dispense must be consulted if time allows. In cases of probability an authority must be resorted to, but if this is impossible, epikeia may be resorted to.'

Moral theologians in the Church are quite clear on this principle. Herbert Jone states that 'a law that falls short of these qualifications [i.e. does not fulfill the purpose in the mind of the lawmaker] and which does not serve the common welfare has no binding force.' Father Dominic Prummer states that 'with the complete destruction or the law's purpose or adequate motive the law itself ceases to exist'.

Now obviously the invoking of Epikeia is not without certain dangers. It was never meant to allow for any individual to use it to interpret the law for his own convenience. Canon Law was developed and codified to handle all the circumstances that those responsible foresaw. Clearly the true Church, like a loving mother, has provided within her laws for almost every conceivable circumstance. Despite the apocalyptic circumstances of the present day, priests can legitimately provide the Sacraments and sacramentals of the Church without placing themselves in violation of her laws. Moreover, she goes further and states that under such circumstances, she provides the necessary jurisdiction. Canon 209 (1917) states: 'The Church supplies the necessary jurisdiction when a common error or a positive doubt arises.'

Father Waywod comments on this to the effect that 'common error exists in the erroneous belief of all or nearly all the people of a place, parish, community, that a man has jurisdiction' and 'the fact that a person knows that he has no Jurisdiction does not interfere with the validity of his acts if by common error he is believed to have jurisdiction.' He continues: the Church likewise supplies jurisdiction in a positive and probable doubt... For example, the reasons for and against the existence of jurisdiction in a certain case create a positive doubt; and if the reasons on both sides are of such weight so as to create a bona fide doubt, the Church supplies the jurisdiction, even though actually the person does not possess it.'

Can the principle of Epikeia be applied to the interpretation of the law in present circumstances?. There are not lacking those who would deny its use. However, if the present circumstances are not such as to legitimately invoke it, then I would find it very difficult to imagine when it could be applied. The most important function of the Church is, as has been pointed out, the salvation of souls. This is the supreme law. Now the laws of the Church were created to safeguard just this purpose. And when these laws act so as to prevent and frustrate this purpose, epikeia should and does apply.

gregory IX, boniface XIII, heretic, obstinate heresy, salus aniarum suprema lex, epikeia, jurisdictio

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