22 Aug 2016

A Reply to John Salza and Robert Siscoe (Part II)

                                       
By Father Paul Kramer    

John Salza               
Nescierunt, neque intellexerunt, in tenebris ambulant" - (Ps. 81:5)

The Salza/Siscoe doctrine that the heretic is not ipso facto, i.e., by the act of heresy itself, immediately severed from communion with the Church, and thus auto-excommunicated, presupposes the heretical premise that the bond of communion can exist between the Church and an unbeliever, and is not severed until the crime has been proven by Church authority.

As I quoted earlier, Salza claims, "Again, Pope Pius XII is referring to the 'offense' or CRIME (not SIN) of heresy, which severs one from the Body of the Church, after the formal and material elements have been proven by the Church. After the crime has been established, the heretic is automatically severed from the BODY (not SOUL) of the Church without further declaration (although most theologians maintain that the Church must also issue a declaration of deprivation)."

The sin of heresy can be distinguished from the crime solely according to the circumstance of whether or not the sin was committed internally, i.e. in thought, or by an external act. The internal sin severs one from the soul of the Church, because it is by the internal act of faith that one is united to the soul of the Church; but the internal act of infidelity does not separate one from the body of the Church. The internal sin of heresy, therefore, constitutes a grave sin against faith, but is not properly an act of heresy which separates one visibly from communion with the Church. Like the sin of murder, one is not actually a murderer guilty of murder unless one commits the external act of killing; and one is not properly called a heretic, until the act of severing communion by an external act has been committed.

The external act can be occult or public, and even the occult act incurs the latæ sententiæ excommunication, since the act itself incurs the latæ sententiæ excommunication: "Can. 1364 — § 1. Apostata a fide, haereticus vel schismaticus in excommunicationem latae sententiae incurrit . . ."

By the act itself, the heretic, apostate or schismatic self inflicts the penalty of excommunication upon himself. This has always been the case, and remains so under the 1983 Code of Canon Law. In the Canon Law Society of America commentary, we read: "The anomaly about the severe consequences is that some of the most serious of them are 'automatic or self imposed' (ipso iure, ipso facto, latæ sententiæ) - (James A. Coriden, Thomas J. Green, Donald E. Heintschel; THE CODE OF CANON LAW, A Text and Commentary, Commissioned by THE CANON LAW SOCI ETY OF AMERICA, p. 915). The Canon explicitly states that the heretic, schismatic or apostate INCURS the excommunication LATÆ SENTENTIÆ -- thus, the heretic excommunicates himself, exactly as Pope St. Celestine I explained in the heresy judgment against Nestorius. While excommunication per se does not entail the loss of office, the crime of heresy effects the consequence of both the immediate excommunication and loss of office by the heretic. This is clearly not a mere canonical provision pertaining to "merely ecclesiastical law" (Can. 11 "legibus mere ecclesiasticis"), but pertains to the divine constitution of the Church. Since, as Bellarmine in the earlier quoted passage stated it was the unanimous teaching of the ancient Fathers that heretics lose office, it would therefore appear to be heretical to say that one who commits the public act of heresy does not lose office until the crime is declared by ecclesiastical authority.

Salza's explanations on excommunication reveal a profound ignorance of the subject matter. There is not a canonist in the entire world who agrees with his eccentric interpretations of Canon Law on excommunication. During the years I spent in Rome, I read many works of diverse authors on Canon Law and spoke with a good number of professors of Canon Law. They all knew perfectly well what excommunicatio latæ sententiæ means – only Salza and Siscoe do not.

The Catholic Encyclopaedia explanation on excommunication is in total agreement with every canonist I have ever heard or read. Here are the most salient points:

"A jure and ab homine

Excommunication is either a jure (by law) or ab homine (by judicial act of man, i.e. by a judge). The first is provided by the law itself, which declares that whosoever shall have been guilty of a definite crime will incur the penalty of excommunication. The second is inflicted by an ecclesiastical prelate, either when he issues a serious order under pain of excommunication or imposes this penalty by judicial sentence and after a criminal trial.

"Latæ and Ferendæ Sententiæ

Excommunication, especially a jure, is either latæ or ferendæ sententiæ. The first is incurred as soon as the offence is committed and by reason of the offence itself (eo ipso) without intervention of any ecclesiastical judge; it is recognized in the terms used by the legislator, for instance: "the culprit will be excommunicated at once, by the fact itself [statim, ipso facto]". The second is indeed foreseen by the law as a penalty, but is inflicted on the culprit only by a judicial sentence; in other words, the delinquent is rather threatened than visited with the penalty, and incurs it only when the judge has summoned him before his tribunal, declared him guilty, and punished him according to the terms of the law.

"Public and occult

Excommunication ferendæ sententiæ can be public only, as it must be the object of a declaratory sentence pronounced by a judge; but excommunication latæ sententiæ may be either public or occult. It is public through the publicity of the law when it is imposed and published by ecclesiastical authority; it is public through notoriety of fact when the offence that has incurred it is known to the majority in the locality, as in the case of those who have publicly done violence to clerics, or of the purchasers of church property. On the contrary, excommunication is occult when the offence entailing it is known to no one or almost no one. The first is valid in the forum externum and consequently in the forum internum; the second is valid in the forum internum only. The practical difference is very important. He who has incurred occult excommunication should treat himself as excommunicated and be absolved as soon as possible, submitting to whatever conditions will be imposed upon him, but this is only in the tribunal of conscience; he is not obliged to denounce himself to a judge nor to abstain from external acts connected with the exercise of jurisdiction, and he may ask absolution without making himself known either in confession or to the Sacred Penitentiaria. According to the teaching of Benedict XIV (De synodo, X, i, 5), "a sentence declaratory of the offence is always necessary in the forum externum, since in this tribunal no one is presumed to be excommunicated unless convicted of a crime that entails such a penalty". Public excommunication, on the other hand, is removed only by a public absolution; when it is question of simple publicity of fact (see above), the absolution, while not judicial, is nevertheless public, inasmuch as it is given to a known person and appears as an act of the forum externum."

The excommunication for heresy is a jure, and is latæ sententiæ. The key passage in the above cited quote is: "Excommunication, especially a jure, is either latæ or ferendæ sententiæ. The first is incurred as soon as the offence is committed and by reason of the offence itself (eo ipso) without intervention of any ecclesiastical judge; it is recognized in the terms used by the legislator, for instance: "the culprit will be excommunicated at once, by the fact itself [statim, ipso facto]". Thus, the heretic is excommunicated by the commission of the act itself, incurred ipso facto without any declaration by a judge, and not "after the formal and material elements have been proven by the Church", as Salza maintains.

For a public crime, no declaratory sentence is required: The teaching of Benedict XIV quoted by the Encyclopaedia refers exclusively to excommunication for occult crimes. The excommunication is public either by declaration by a judge, OR BY THE NOTORIETY OF THE FACT OF THE CRIME: "It is public through the publicity of the law when it is imposed and published by ecclesiastical authority; it is public through notoriety of fact when the offence that has incurred it is known to the majority in the locality, as in the case of those who have publicly done violence to clerics, or of the purchasers of church property."

Thus, a public heretic ceases to be in communion with the Church by the very fact of his crime; ceases to be a member of the Church and ipso facto loses all ecclesiastical office.

According to Salza's crackpot theory, the doctrine which I have presented on the topic of a heretical pope self excommunicating himself and ipso facto losing office is heterodox; yet it is taught by Doctors of the Church, and is still acknowledged today as "an accepted opinion": “Communion becomes a real issue when it is threatened or even lost. This occurs especially through heresy, apostasy and schism. Classical canonists discussed the question whether a pope, in his private or personal opinions, could go into heresy, apostasy or schism.” The foot note refers to S. Sipos, Enchiridion Iuris Canonici, 7th ed. (Rome: Herder, 1960) “cites Bellarmine and Wernz in support of his position; this view, however, is termed ‘antiquated’ by F. Cappello, Summa Iuris Canonici (Rome: Pontificia Universitas Gregoriana, 1961), 297.”

The Commentary continues: “If he were to do so in a notoriously and widely publicised manner, he would break communion and, according to an accepted opinion, lose his office ipso facto (c. 194 par. 1, n. 2). Since no one can judge the pope (c. 1404) no one could depose a pope for such crimes, and the authors are divided as to how his loss of office would be declared in such a way that a vacancy could then be filled by a new election.” – James A. Coriden, Thomas J. Green, Donald E. Heintschel; Ibid., p. 272

(To be continued).

See also: A Reply to John Salza (Part I)


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