by Br. Alexis Bugnolo

Traduction française — Versione Italiana

Here, I wish to discuss a special case of juridical right, wherein the Church must confront the necessity of removing a heretical pope from office. Since that there is a juridically valid way to do this is a necessary presupposition of the Sutri Initiative, and since Cardinals as eminent as Burke have publicly said there is no canonical solution to such a problem, I will now publicly explain how it can be done, to give food for thought for all who like to see expounded how it can be that Cardinal Burke is incorrect in his opinion.

First, let me say, that this solution to be canonically valid must not violate any canon of the Code of Canon Law, published by John Paul II, which forbids in canon 334 that there be any innovation in Church law when the Apostolic See is impeded or vacant, that is, when the Roman Pontiff does not promulgate it. For the Code of 1983, see here.

Second, it must also not violate the juridical principal and dictum of the Faith, that sedes prima a nemine judicatur, namely, the first see is judged by no one. And this, understood as the learned Cardinal Bellarmine, held it to be understood, namely, that it is licit to no one in the Church to judge the person of the Roman Pontiff.

Third, against the sentence of the Roman Pontiff, there can be no appeal (canon 333 § 3). Thus one cannot overturn his decrees, though one can urge him to withdraw them for a legitimate reason.

NOTE WELL: Here, I use “judge” not in reference to the formation of a personal conviction in the faithful who considers the Roman Pontiff, but a juridical act by which a sentence is proclaimed or a juridical fact is discerned.

That the Roman Pontiff, as Pontiff, cannot be removed from office by men

It follows from these two principals, that the Roman Pontiff strictly speaking can not and can never be removed by office, except by a direct act of his Superior, the Lord Jesus Christ, which is only done by death.

I say strictly speaking, that is, when we speak of the man who is the Roman Pontiff, as the Roman Pontiff. In this sense, he is called the Roman Pontiff, or the person of the Roman Pontiff. And it is thus that Canon Law always speaks of him, for this is the juridical norm in all canonical discourse and law. For as the Roman Pontiff he can be judged by no one, and is not subject to the authority of any subjects.

That the Roman Pontiff, as the man, can be judged

That the man who is the Roman Pontiff can be judged, however, is clear, because it is the teaching of the Papal Magisterium, handed down by Pope Innocent III — an eminent canonist — and because it is clear that the man, as a man, is also subject to Christ and to the authority of the Church.

That no man in the Church can be judged except by legitimate authority

This follows directly from the fact that Christ gave His authority to the Church to shepherd all His flock, both collectively and individually. And since no one but one who holds authority over a man, can judge a man — this is a natural principal of all right (ius) — only a man’s Bishop, or the Pope, or those holding ecclesiastical authority in the region, can judge a man.

That a Provincial Council can judge all men within its province

A provincial council of all the Bishops of an ecclesiastical province holds authority over all Catholics in a province, as Canon 432 §1 declares. Indeed, the Provincial Council has the status of a juridical person, as Canon 432 §2 declares.

This means that a Provincial Council can judge any Catholic who resides in its territory, both by discerning juridical or moral facts about the man, or by imposing canonical penalties or sentences.

That a Provincial Council in the ecclesiastical province of Rome can judge the man who is the Roman Pontiff

It follows from the above that a Provincial Council in the province of Rome can judge the man who is the Roman Pontiff, as a man, that is, as regards juridical or moral facts about the man, namely, whether he be a Catholic and whether he have a valid claim to the office of the Roman Pontiff. For in such things, the Council does not judge the office which he claims.

That a Roman Provincial Council can be convened by the Bishops of the Province without and against the will of the man who is the Roman Pontiff in cases of heresy and invalidity of claim to office

Canon 442 §2 grants to the Bishops of a province to convene a provincial council when the Metropolitan See of the province is legitimately impeded. Here the Latin reads:

Metropolitanae, eoque legitime impedito, Episcopi suffraganei ab aliis Episcopis suffraganeis electi est concilio provinciali praeesse.

The concept of “legitimately” impeded refers not to the norms of canon law nor to the norms of any papal law, but to a morally valid reason or cause which prevents the Metropolitan from acting. Such as physical or moral duress, incompetance or incapacity.

For example if the Metropolitan be kidnapped or held by hostile forces; under arrest; in a coma; having suffered a stroke or mental or emotional collapse, preventing use of right reason; in hiding for fear of capture; or otherwise incapable of communication. These are objective factors for the exercise of his munus.

But if the man be a heretic or schismatic or an apostate, but has not yet been deprived of office, the same follows, by reason of the juridical principal, that where there be a force majeur, that is a greater intervening or obstructing power, than those cited in normal cases for an impediment, all the more is it legitimate to hold that the see be impeded.

So, since the Roman Pontiff is the Metropolitan of the Roman Province, when the man who is the Roman Pontiff be a heretic or apostate or schismatic, then he can be judged in a Provincial Council.

That the Bishops of the Roman Province have the right to demand the proof of the claim of the man to be the Roman Pontiff

Since the Bishops of the Province cannot presume that a man is guilty or that a fact be such before judging the fact, it is necessary that by interrogating the man who claims to be the Pope, they establish that he refuses to demonstrate that his claim is valid or that he be a Catholic. Such a refusal in person or by written communication proves juridically and canonically that there is an objective doubt from which there consequently and immediately arises an impediment of the Apostolic See by reason of the man, who claims the office, refusal to demonstrate to the Bishops of the Province the validity of his claim to rule over them.

Failing a spontaneous offer of proof, a Provincial Council can be convoked to request special and extraordinary proof

This is by natural right, namely, by natural right every lord has the duty to demonstrate to his subjects the legitimacy of his claim to lordship over them. This demonstration must be all the more solemn and collegial when his peers ask for the proof.

Asking for such a proof is a right of the subject and a demonstration of his honesty. As it injures no one’s right, it harms no one, and is not a crime. And thus, such a request cannot be refused.

Normally, this is done by the promulgation of the election or nomination of the man to hold the office of superior by the person or body which has the authority to nominate him.

But when objective facts intervene which put this in doubt, proof can be requested by his peers by right, since as holders of local jurisdiction under him they have the natural right to the most certain proofs.

And thus when through personal contact and by writing a spontaneous proof of the Catholicity of the man who claims to be the Pope or the validity of his election be refused, the Bishops do NOT presume, when they use the right granted to them on account of an impeded See to convoke a provincial council without or against the will of the man who claims to be the pope.

That such a Provincial Council, called without or against the will of the man who is the Roman Pontiff cannot be obstructed by any authority

Such a council cannot be impeded by any act of any ecclesiastical authority, since, neither does anyone have authority over the Bishops of the Roman Province but the Roman Pontiff, nor does the man who claims to be the Roman Pontiff but who refuses the spontaneous sufficient proofs in the normal course of things legitimately exercise the authority of the office of Roman Pontiff to obstruct or forbid such a convocation. Since by his refusal he has impeded the Apostolic See, and with the see impeded, its powers cannot be used over its subjects for any legitimate purpose.

That such a Provincial Council can legitimately summon the man who claims to be the Pope

That such a Council can legitimately, that is canonically constrain, the man who claims to be he pope to attend follows from their authority granted in Canon 432. It also follows from Canon 443, which requires that all who claim offices of Bishop in the territory be summoned to every Provincial Council and from Canon 444 §1, that requires all summoned attend. Nor can he claim impediment, if he can freely travel or speak with men.

That such a Provincial Council should first remonstrate with the man, who appears to be a heretic, schismatic or apostate, yet claims the papacy

There is an order in Charity, and so first the Council Fathers should proceed by expounding their reasons for convening the Council and ask that those with the right to vote confirm the convocation. Then, they should expound the reasons for convoking the man who claims to be the pope, to give solemn certain proofs that his election was juridically valid and that his claim to the office remains legitimate. Then they should interrogate the man to elicit solemn proofs of his claim’s validity or invalidity. And with his responses given, propose to issue a solemn declaration as to their coherence, asking for a vote of the Council to approve, that the man is or is not eligible to hold the office he claims, has a valid claim or has lost his claim. Whereupon, if the Council Fathers find his responses insufficient or doubtful, the Council should solemnly remonstrate with the man a second time, and judge his responses by vote a second time, and even a third time if necessary. After which if he persists in his invalid responses, the Council can solemnly declare that the juridical facts are objective that said man in virtue of the canon of the church applicable has never held the office, or does not now hold it, by reason of not being a Catholic or not being Catholic.

That Such a Provincial Council imposes no sentence or deprivation of office, and therefore need not have its acts approved by the Roman Pontiff

A finding of fact is an act of discernment by an authority competent to do so. A Roman provincial council is the highest and most competent juridical person to determine such facts by investigation and interrogation of all Catholics in the Roman Province. Only in the case of fraud, could the judgement of such a council be impugned. Therefore, if such a council find that the man be not a Catholic, then they can declare him excommunicate by reason of canon 1364, and thus ipso facto deprived from office, since no excommunicate can claim an office in the Church, as per Canon 1331.

That the man who claims to be Roman Pontiff and who refuses to give spontaneous and solemn proofs of the legitimacy of his claim to hold the office can be declared ipso facto deposed if he refuse to attend such a Provincial Council

That such a man, if he refuse to attend any part of such a Provincial Council, where he might give solemn and juridical proof of his claims, can be declared deposed, follows from the principals enunciated above, for no man with an honest claim would refuse such proofs. That a validly elected Pope, Benedict IX, was declared contumacious and deposed for refusing to attend such a provincial council in December of 1046, at Sutri, Italy, is a fact of history, accepted as valid by the Apostolic See for nearly 1000 years:  and acceptance which is equipollent to the approval, approbation and confirmation of the above argument, their reasons of natural and ecclesiastical right, and their validity by the law of custom.

Ergo quod erat demonstrandum, demonstratum est.

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