CANON LAW, DISCIPLINE, AND THE RESOLUTION OF DOUBTS OF LAW IN THE CHURCH TODAY

(To guarantee that the subject discussed is 'properly understood, we would like to ask the readers to review once more pages 292 to 357 and pages 407 and 408 of WILL THE CATHOLIC CHURCH SURVIVE THE TWENTIETH CENTURY before reading this commentary.)

Already we have noted that 'Cum ex' governs the laws on canonical elections, heresy and deposition. As such it is the source for these canons and must be adhered to whenever there is a doubt of law or fact. (Canon 6 #4) A reader has expressed doubt as to whether we may use the laws for canonical elections in electing a Pope, since Canon 160 states that only the law of Pope St. Pius X (and subsequently Pope Pius XII) may be used for a papal election. When in doubt, we look to the old -law governing the qualification of electors, which happens to be .'Cum ex'. There. we find that express mention is made of the Pope being included under the scope of qualification of electors in paragraph six, which specifically deals with heresy as invalidating an election to an ecclesiastical office. This also agrees with the exclusion of deposed Cardinals from a papal election by Pius XII, for Canon 188 14 has also for its source 'Cum ex'. In doubt as to whether the deposition must be made by declaratory sentence, or whether it suffices that it be incurred automatically by commission of a certain crime, we return to 'Cum ex' which states that the deposition for heresy is incurred by the act, and takes place without any further declaration (paragraph six). (We should also note, that the dogmatic decree 'Ineffabilis Deus' mentioned earlier in this issue, states that heretics are condemned by their own judgement, which mirrors the statement, 'without any further declaration', of both Canon 188 »4 and 'Cum ex'-editor) While Pius XII specifically mentions deposition as disqualifying Cardinals from the election, it fails to deal with the consequences of an election posited by Cardinals who have been deposed but fail to heed the dictates of Pius XII's Constitution. No other laws governing the qualification of electors exist in the Code. And it is hardly possible to obtain any records of elections held prior to 1059 and the law limiting election to Cardinals, since even Rev. Philips admits that the Church has been forced to de-emphasize the role of the laity owing to conciliarism and the move toward liturgical reform begun in the forties. We attempted to acquire these books as early as the late '7O's only to find that they were impossible to obtain. The enemy obviously targeted such books for destruction early on, that an end run might not be attempted to foil their plans. As we observed earlier, Pope St. Pius X's law (as well as Pope Pius XII's) treats mainly of .the election PROCESS and not the qualification of electors or validity of the election. When we examine paragraph six of 'Cum ex' we discover that the most necessary qualification of. ANY voter is absolute Catholicity, regardless of who those voters might be. On pages 300 and 301 of the book we learned that the law of Pope Leo the Great (according to Rev. Parsons) was never abrogated, but only fell into desuetude. Even Nicolas II admits it would be lawful to return to it. Rev. Parsons' observation that the law of Pope Leo the Great, with over 700 years of custom behind it, would be lawful were it returned to has a sound basis in fact. As we know from our examination of 'Cum ex', a law which exempts from abrogation is excluded from the scope of Canon 6 96. Even if Pope Leo the Great's law WAS so excluded, it can be invoked under Canon 20:, for Rev. Neuberger in writing of laws abrogated by the Code states: 'In very rare cases will the legislator tolerate recourse to these discarded laws. Whenever there is a gap in the legislation be it general or particular, the canonist may appeal to laws enacted in similar circumstances. In such a case the old law may serve as a norm for supplying the deficient legislation.' (page 63. Here a footnote is made citing Canon 20) Neuberger states that this is the 'sole exception' to these norms of the Code concerning abrogation. It becomes clear now why Canon 18 must first be consulted before appealing to Canon 20.

Canon 6#6 also has application to the one other case in history similar to our own: the election of Martin V, a subdeacon, by extraordinary electors at the Council of Constance in 1417. Here we have the case of a PARTICULAR law, also excluded. from abrogation under this note of Canon 6, for Cicognani states that particular law is one not universal in nature. (page 57) The election law at Constance was used only for that particular circumstance and was not universal by nature. Even had it been abrogated, it could be cited under Canon 20 as a law for a similar case. The method of selecting delegates can be applied to our situation from this law as we mention in the book.

Yet our situation may make. the participation of the clergy in this election difficult indeed, since they have incurred excommunication for censures reserved to the Holy See, which could be absolved by their Ordinary in certain circumstances if one existed. In his canonical dissertation 'Ignorance in to Imputability of Delicts', Rev. Robert Swoboda writes that while the laity are often considered ignorant of canonical censures, they are generally excluded from them; the the clergy incur them for the simple reason that they CANNOT plead ignorance as a rule. (pages 185-186) This is in keeping with Canon 2207 which we mentioned in our discussion of 'Cum ex'. To whom more is given, more is expected. Also it is probable that the clergy were the last class of electors to fall under the devolution principal, and they, too, forfeited their right to this election many years ago. Devolution would surely include the clergy as a class under devolution in Papal Elections. The reasoning is simple: clergy are ordinarily the only ones who can vote in Canonical Elections, therefore in devolution they must have precedence over the laity as a class.-editor) In Part Three of the book (Section IIB, page 303) we take great pains to prove that the Popes of this century granted a share of the hierarchy to. the laity owing to a shortage of priests.  This commission granted us by these Popes was intended to be exercised under the direction of the hierarchy, yet Pius XII specifically stated that the laity could assume all those duties of the hierarchy not incompatible with liturgical laws and laws governing ecclesiastical discipline. We need not worry that we are violating ecclesiastical discipline, because we HAVE none now, and are seeking to restore, not escape, it. If this discipline, too, is infallible, the Church has left a way out. We map the way out of our diIemna using Canon 20 and the opinion of six canonists. In this manner we prove that the Church cannot be said to self-destruct or incur 'autodemolition'. Various Canons can be invoked to reconcile a lay election with Pius XII's Constitution and the laws of Leo the Great and Constance. Among these are Canons 15, 18 and 20. (We will provide a progression table depicting the application of these laws in our conclusions.)

Now we must move on to the reason for our preceding arguments: Canon 9. This Canon allows three months for the promulgation of law, and some have accused us of invoking it unnecessarily, since we have not announced a new law. Yet this is NOT the reason why we have invoked it. In his thesis, Rev. Swoboda writes concerning the duty of pastors to their flocks: "When an abuse becomes prevalent it becomes the duty of pastors and especially bishops to :instruct the faithful and warn them concerning ecclesiastical penalties." (page 322) We speak of promulgating the law only insofar as we restate 'these penalties and make known the studies completed under Canons 18 and 20. Today there ARE none to warn us, none to make us aware of our own duties and obligations under these laws. Generally the laity are not expected to know these laws, but we know of NO priests who have brought them to the attention of the faithful. Rev. Cicognani tells us under Canon 9 that, no method of promulgation has been determined by the NATURE OF THE MATTER since any mode, however simple, is sufficient, provided knowledge of (the) law can reach in due time the entire community... Promulgation was always valid", even when "made at Rome only." ('Canon Law', page 548) Elsewhere Cicognani notes that, "... promulgation takes place not by the mere insertion of the law in the... 'Acts' but by its PUBLICATION." (page 550) For the Canon reads that laws are promulgated, "by their publication." The date to be applied to the law is the, "date affixed to the cover of the Acta..." (page 552) or in our case, the date the book was delivered by the printers to the publisher, Christ the King Library and first distributed. (January 25th, 1990) The three months, according to Cicognani, are to be reckoned as calendar months according to Canon 34#3;2. The example of August 1, 1918 to November 1, 1918 is given, and this is indeed how we have reckoned this time limit and that required for canonical election. (See announcement of election date, above.)

Here it is primarily the election time limit laws and the devolution principle which need promulgation, for Cicognani teaches that: 'Declarations of the Divine law, dogmatic laws on faith and morals, by their very nature require that they take effect immediately, e.g., the condemnation of a certain book or a censure inflicted against a certain person, etc...' (page 552) Therefore, even the six month time limit is a generous one, since it is normally assumed that the faithful are informed of immediate things immediately by their pastors. Actually we have made use of the principle of epikeia here, since the Ordinary of a place can decree an extended time limit for any law. The time limit could not be justified at all if the laity were ordinarily presumed to be well-versed in the lesser known Canons. If Cardinals yet existed to elect a Pope, the 18 day time limit would yet apply, but they HAVE ceased to exist. In the first millennia of Christianity, during enemy occupation of Rome and civil wars, the election of a Pope often took a good deal longer than the laws for the time limit then in existence specified.

St. Bernard's crusade to gain Innocent II's acceptance as the true Pope took nearly two years. Constance deliberated for three years. Today, communications can be made with lightening speed, and air travel takes not more than a maximum of two days to any place. Three months to promulgate and three to elect walks the middle road between the 18 day time limit required in Papal Elections and the three months required to assemble and elect religious, yet makes additional allowances for extenuated circumstances which require the laity to exercise an authority they scarcely realized they had. The law is not so rigorous that is would require us to assemble so quickly that many of those capable of voting could not be assembled. Yet neither is it to be seen as so benign that the interests of the Roman Pontiff and the Church's Mission Of salvation are sacrificed to observe it to the letter. The SPIRIT of the law requires timely action AND legitimate convocation. We feel confident that the law has been sufficiently reconciled to reflect both, but we will give some space to the consideration of the time limit allowed under Canon 161 below.

A brief summary of Rev. Parsons work 'Canonical Elections' will reveal the following concerning the three month time limit:

1. "Questions of knowledge do not depend on majorities. A fact is said to be known in a certain locality even if here and now, relatively few know of it.: (page 25°; Here we see that it suffices only that the vacancy of the Holy See be known in a general way and the duty to fill it become general knowledge within the three month time limit.)

2. Canonists before the Code held that the interests of the Church must be placed before the interests of the individual voter. The person unable to attend .he election within the three month period was not considered a voter for all practical purposes page 96). (Note well: Pius XlI's Constitution, also provides for immediate voting by available Cardinals, allowing for those who arrive late to enter whenever they arrive. Yet they have no right to delay the election.- editor) Since the safety of the Church must be our utmost concern, and since we have already taken liberties by extending the time limit from 18 days to three months, we feel this old law yet obtains, being the HIGHER LAW. It is a general principle of law that the rights of the faithful AS A WHOLE are to be considered superior to those of any individual.

3. Ayrinhac maintains that, "All who have a right to vote must be convoked." (page 101) Many Catholics have publicly surrendered their right to vote owing to notorious heresy. These need not be summoned. We are bound only to summon those who have a RIGHT to vote and, "... Whom it is possible to reach." (Parsons page 102) As long as we made every reasonable effort to reach all those possible, we cannot be accused of failing to convoke qualified electors within three months.

4. "A voter may renounce his vote." (page 103)

5. "Any method of convocation will be valid... if the voter can arrive in due time." (page 104) The election summons can be declared invalid if insufficient time is allowed.

6. "The place must be convenient for the voters... where no law fixes the place, the advantage of the voters should be considered." (Ibid) More qualified voters reside in the United States and Australia than in Europe. Americans are not fluent in -European languages; also an adequate English library is available here, and most Europeans can read and speak English. Generally speaking it is also less expensive for Europeans to travel to the United States than vice versa. America is also more convenient to the Australians, Asians and Africans.

7, 'If the time limit is close to expiration and attempts to obtain a legitimate convocation have failed the voters, can come together without formal convocation, lest they be deprived of the right to vote." (page 100) We have waited 31 years for a formal summons and none has been issued. We are NOT duly appointed officials so we cannot issue an OFFICIAL summons. Notice only of day, date, place and time of the intended election is required, and if no OFFICIAL summons is forthcoming, the voters may assemble before the time limit expires.  An official summons could only be issued by the hierarchy duly established, or some high-ranking national official, as happened in the case of Sigismund at Constance.

Since all irregularly consecrated bishops of the Thuc line .and other 'lines' are excommunicated and these excommunications are reserved specialissimi modo to the poly See, (for proceeding in violation of the law), they cannot issue an official summons or qualify as voters. The laity are not fit to judge excusing circumstances in their case, and so all must be referred to the Holy See, (after the presumptions Of Canon 2200 are observed) until the judgement of the Holy See can be obtained.

8. Those who respond to the unofficial summons and appear on the specified day, elect, for Parsons writes: "... the RIGHT to vote pertains to those who have assembled on the day set ... only one voter ... may proceed with the election." Numbers do not matter. As few as six Cardinals have posited a valid election. The preoccupation with numbers so prevalent among Traditionalists has to do only with a desire for credibility (i.e. human respect) and has nothing to do with liciety or validity. If all those qualified are duly summoned (and we have given away many copies of the book to insure they are) THEN WHOEVER APPEARS CONSTITUTES THE UNIVERSAL CHURCH.

9. Parsons tells us that in the early ages of election law, "An early election was important and a period of three months was considered the extreme time limit." (page 108) Owing to reasons already mentioned and listed in the book, it is just as important today.

10. Only, "If more than half the voters are legitimately impeded from holding the election...", may the time limit be extended beyond the three months.  Even then, the extensions granted are only of two weeks duration. (page 108) The three month time limit is to be interpreted strictly, and the election can only be postponed for grave reasons.

It has been necessary to use Canon 20 in the case of Canon 162 to clarify what must be done in an unprecedented case. Certainly Pius XII's law has not provided for this situation. We also interpret Canon 178 under the provisions of Canon 20 since the principle of devolution cannot be understood in light of our circumstances without such a detailed examination. Finally we use Canon 15, Canon 18 (epikeia) AND Canon 20 to knock down the last objection to Pius XII's legislation which demands that ONLY Cardinals may elect a Pope.

First we must establish the fact that Pius XII's Constitution is only ecclesiastical law. This is obviously the case, since nowhere does Divine revelation mention a preferred method of (or any method) of election. The very fact that these laws have changed throughout the centuries is evidence that these were never even partially based on Divine law, which CANNOT change. The only constant which has NOT changed is the election principle itself. The Popes have always been chosen by election.

We find Canon 15 listed under the heading of 'Ecclesiastical Laws' in the Code, and Cicognani states that it is only to these that it should be applied. It is clear from Cicognani's description of a doubt of law that we indeed have an actual doubt of the LAW in our case, and not the fact, Cicognani describes a doubt of law as: "If I doubt ... that it includes this particular case, or that under certain circumstances, I am obliged by (it.)" (page 585) Most know that the legal maxim reads, "A doubtful law is no law." We KNOW that Peter must have perpetual successors, and knowing this we doubt that the law binds us under these circumstances, and for this particular case, since to obey this law would be to disobey the higher law of perpetuity, proclaimed by the Vatican Council. Here we also have a conflict of law, where the higher law prevails.

We complied with Canon 18 in the book by drawing parallel cases between Canons 2261 43 and Canon 209, both of which concern the same things, i.e. making an exception to the law. In addition, the principle of epikeia is generally listed under Canon 18, and has application here. Cicgonani tells us that epikeia may be used, when the law ceases contrariwise;... in some ... case to observe the law would work evil ... or its observance becomes morally impossible." (page 613) In our situation both provisions can be seen to be true. Failure to. elect a Pope has worked and would continue to work evil, and we cannot continue to acknowledge the See as vacant and not fill it if we wish to remain Catholic.

Finally Canon 20 allows us to employ the rules of law to assist us in arriving at a legal solution. One of these rules reads, "... presumption (of the law) must yield to truth." Pius XII obviously never envisioned that the Church would be without Cardinals. Since none now exist who have not been deposed, presumption must yield to truth, and this portion of the law ceases to bind. We cannot discard any parts of Pius XII's Constitution not dealing with the Cardinals, for it is yet the higher law, superior in its institution and application to that of the process of canonical elections. In the book (pages 328-330), we use the six opinions of theologians to supply the requisite certainty and fulfill the precepts of Canon 20 concerning the validity of an election posited by extraordinary electors other than Cardinals. We have also the precedent of Constance. But more importantly we demonstrate the MIND OF THE LEGISLATOR, (Pius XII) under Canon 18 in the book, by proving that Pius XII wished the laity to act in the stead 'of the hierarchy, whenever the hierarchy were imprisoned or otherwise incapable of acting. Without such a definite indication of the lawgiver's mind in this matter, we could not act with a clear conscience.

Below we wish to summarize the various Canons invoked to resolve the questions concerning the binding nature of Pius XII's Constitution, 'Vacantis Apostolica Sedis', the publication of the law, the cessation of law, equity according to the law, analogies of law, laws laid down in similar cases, and the common opinion of theologians.

1. Canon 9 has been invoked in order to make laws governing canonical elections known to the faithful, since they generally are ignorant of these laws and their application to our situation. Failure to promulgate the law sufficiently could invalidate the election, since the time limit for the election and its utilization must first be known and understood; :hat qualified voters might assemble to elect before :he time limit ends.

2. Canon 15 has been invoked to prove Pius XII's law on papal elections not binding in our case, since the law does not allow for our particular case or circumstance.

3. Canon 13 under the heading of epikeia has been invoked:

a. to adopt the more lenient time limit, since few are aware of Canon Law's application to us, and so few understand these laws;

b. since to observe Pius XII's law is morally impossible and would work evil. (In the book, Part III, Section.IIB, we present parallels in law and examine other decrees of Pius XII to determine the mind of the lawgiver in our situation. Parallel passages are also consulted BY FOLLOWING THE LAWS FOR CANONICAL ELECTIONS.)

4. Canon 20 has been used to:

a. invoke the rules of law to disqualify Cardinals as electors;

b. consult the laws for similar cases, i.e., the election laws of Constance and former elections prior to 1059;

c. assay the common opinion of theologians, used to demonstrate support for the devolution of the right to vote to the universal Church.

5. We have also used Canon 6#4 to guide us in the use of Canon 167 (the disqualification of electors.) The source of this law is 'Cum ex', as ascertained by Parsons and Mock. Pius XII's Constitution also refers us to 'Cum ex' since the disqualification of Cardinals who are deposed is the only disqualification expressly mentioned in the Constitution and can only lead us to Canon 188 1t4. If this route be used to disqualify ALL the Cardinals, what would Pius XII have us do for electors?

In closing we wish to remind the readers of the absolute preeminence of the law. Had all these floating priests and bishops ESTEEMED the law, many of our problems today would not exist. We have been accused of 'exaggerated insistence' on Canon Law, and misapplication of the Canons. -But it goes with the territory. For Cicognani writes: "Canon Law may be defined as ... the body of laws made by the lawful ecclesiastical authority for the government of the Church. The lawful ecclesiastical authority for the Universal Church is the Supreme Pontiff." (page 43) Canon law has as its end, the government of the Church and the guidance of the faithful to sanctification and life eternal." (page 45) The principles of Canon Law are, ... certain, for they are founded on reason, and more particularly on Divine revelation... (while) many ecclesiastical laws are DETERMINATIONS of the natural law ... its laws are holy ordinances." (page 63) Psalm 118, (which is read EVERY Sunday and on many feasts in the Divine Office) proclaims, "Much peace have they who love the law", and Proverbs 6:23 tells us: ... the commandment is a lamp, and the law a light, and reproofs of instruction are the way of life." (pages 54-55) One cannot underestimate or contemn Canon Law without calling into question the very means necessary to salvation, and the legislative authority of the Roman Pontiff himself. If we are to be true champions of the papacy, we must be zealous for ALL law emanating from the Pontiffs throughout the centuries.

Those who yet pretend that the Church can be backed into a corner with Her own laws, and that because of this She has rendered it impossible to elect a Pope, should consider the following: 'The Church is infallible in its discipline as a secondary object of infallibility.., nothing in the discipline of the Church can be found which is contrary to faith or morals... The Mission of the Church is to keep the faith in its integrity and to lead the people to salvation by teaching them to observe all things which Christ commands. The discipline could not therefore prescribe or enjoin or tolerate anything contrary to faith or morals, or create a hazard for souls." (Neuberger, 'Canon 6', pages 30-31. Neuberger quotes DZ 954, 1504 and 1505 as proof of the above. We recommend the reader look these up.) The Catholic Encyclopedia (under Law, Canon) tells us that it is the unanimous teaching of theologians that the Church cannot contradict Herself in any of Her laws, or legislate in such a way that Her laws could work evil against Her. That the Church was infallibly instituted by Christ, who granted Peter and his successors a unique legislative power to rule, regulate and edify the faithful is taught as de fide by the Vatican Council. (DZ 1831)

As we stated earlier, the Church cannot fall victim to 'auto-demolition' or ever be seen to contradict Herself. To say that the election law of Pius XII yet binds and that laymen may not vote on pain of excommunication is to say that Christ created an imperfect system capable of failure. Say it and you have denied that Christ is true to His promises; you have called Him a liar. There cannot NOT be a way our of this crises; for the disciplines of Canon Law emanate from the Pontiffs and cannot be used to destroy the Church. The Nazi Stormtroopers successfully used terror and intimidation tactics in gathering up the Jews and sending them to concentration camps. Most of them made' no resistance, regardless of whether they were personally guilty of the 'crimes' attributed to them by the Nazis (usually given as just being non-Aryans) The Nazis played on the built-in tendency of the Jews to self-pity and self-blame to good effect, and only very rarely did these people fight their arrest or escape their captors. Today's treacherous thought police have done much the same to Catholics by playing on their ready obedience to authority and over-dependence on the hierarchy to do all their thinking for them. Like the Jews, Catholics have made little resistance in this battle, save for verbal diatribe. Like the Jews, they have meekly been led as lambs to the (spiritual) slaughter. If the end is indeed imminent, and the Church's glory all in Her past, we prefer to do that one thing which will assure Her passage from this earth to the New Jerusalem intact: provide Her with a Head. For if Christ is to soon come a second tire, He must find the Church existing as He left it. If this is the only reason for such an election, is it not a noble one?

Teresa Stanfill Benns

Michael Fighting

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"Michael…who   standeth  for…thy  people," —  Dan. 12:1-12