In the case of Thomas Bonham v College of Physicians decided in 1610 by the Court of Common Pleas, Sir Edward Coke held that “in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void”. The case and the decision are controversial seeming, as they do, to contradict the doctrine of the Supremacy of Parliament in favour of the supremacy of Common Law. It has been celebrated in the United States as the possible origin of certain elements of US constitutional law. The Common Law in question in Dr Bonham’s case would be the aboriginal Common Law from which the English Common Law derives its legitimacy the lex naturalis: the light of the Divine Countenance sealed upon human nature itself. It is indeed the case that laws, both civil and ecclesiastical, contrary to the Natural Law are null and void (although whether the Court of Common Pleas is the competent tribunal to determine the existence of such a conflict is another matter).
How does this relate to the danger of schism in the Church at the present time? Dr Bonham’s case concerned an instance in which a (juridical) person, in this case the College of Physicians, had acted as judge in its own cause. Despite having the authority of an Act of Parliament to do so Sir Edward Coke determined that to act as judge in one’s own cause is so repugnant to reason and natural law that the statutory provisions could not stand.
Cardinal Burke has stated that, if the four Cardinals who have placed the Dubia before Pope Francis concerning Amoris Laetitia and the perennial teaching of the Church continue to receive no reply, he will be compelled to proceed to a “formal act of correction of [the Roman Pontiff in] a serious error”. According to the tradition of the Church if the Roman Pontiff is admonished twice by his proper counsellors for teaching heresy he is separated from the body of the Church and deposed. This is in accordance with the doctrine of St Paul in Titus 3:10 ‘A man that is a heretic, after the first and second admonition, avoid’. The Church cannot avoid the Roman Pontiff so if she were compelled to do so in virtue of Divine Law when such a person were admonished twice he would ipso facto cease to be the Roman Pontiff at the second admonition. Therefore, if a Cardinal were to issue a formal act of correction a process would have begun against Jorge Mario Bergoglio and until the Sacred College formally voted once (if negatively) or twice (if positively) concerning that admonition they would be constituted as the judges in that process.
The Dean of the Roman Rota, Archbishop Pio Vito Pinto, has warned that Pope Francis could strip the four Cardinals of their membership of the Sacred College. There are precedents for such a degradation. However, from the moment a formal act of correction were issued by Cardinal Burke and/or any of his brother Cardinals such a degradation would be null and void. As it is contrary to natural law for anyone to be judge in their own cause, and as ecclesiastical positive law (a fortiori executive edict) cannot validly transgress natural law, it would seem the Pope cannot remove or institute Cardinals from the moment such a process had begun until it is terminated in acquittal, censure or (after a second admonition) deposition. This could, of course, create a serious problem at the next conclave if the Pope seeks to remove or, as even more likely, add members of the Sacred College during such a period.
This is because the potential is created (were the Pope to die before the hypothetical process were terminated) for the appearance of two formally distinct sets of putative Papal electors: the set of those who recognise only the Cardinals appointed prior to the formal act of correction and the set of those those who recognise those created subsequently. If the first group (or even some of the first group) refused to sit in conclave with ‘Cardinals’ created after the formal act of correction these Cardinals (a sub-set of the first group) would have the right to sit themselves as the only true conclave.
In the midst of the imminent apostasy of the post-conciliar period a hidden schism has developed beneath the external unity of the Church. The first stage in curing any disease is recognising its existence. Perhaps this formal act of correction cannot come soon enough.
Laodicea 
December 1, 2016 at 1:10 pm
Reblogged this on Leftfooter's Blog.
December 1, 2016 at 11:43 pm
It seems a big leap from Titus 3.10 to deposing a pope!
It is far from self evident that the Sacred College has the authority to do that and in any case I suspect the Pope would win a vote of confidence if it came to that. So what would be the position if only a minority of cardinals declared that pope a heretic?
December 1, 2016 at 11:49 pm
Its not actually controversial in the tradition (although it has been forgotten since Vatican I). Even Innocent III taught the Pope could be deposed for heresy. I’m not so sure that if there were a vote the Pope would win it. The really interesting question is what would happen is more than 50% but less that 66% voted to admonish.
December 5, 2016 at 9:06 am
“According to the tradition of the Church if the Roman Pontiff is admonished twice by his proper counsellors for teaching heresy he is separated from the body of the Church and deposed.”
1) The tradition of the Church supports the claim that a pope can lose his office for heresy, but not your particular theory of how this happens, which is at most one theological opinion among others. Your theory cannot be part of Sacred Tradition, because public revelation ended with the death of the last apostle, when the college of cardinals did not yet exist.
2) What happens when the cardinals mistakenly admonish the pope twice for a perfectly orthodox opinion? I hope you don’t claim the college of cardinals is infallible when it declares a particular papal opinion to be heretical.
3) Suppose a pope is correctly admonished twice for heresy. Isn’t it possible that he falsely believes the cardinals to be mistaken? If so, wouldn’t that mean he isn’t a heretic (i.e., someone who knows his beliefs to be heretical)? Note that even culpable ignorance of the fact that your beliefs are heretical means you are not a heretic.
4) You appear to say the cardinals can conduct some kind of trial against the pope while he is still in office, which implies they have a certain authority over him. That is heretical according to the First Vatican Council. The (non-infallible) statement by Innocent III which you alluded to says (if I remember correctly) that nobody can judge the pope except if he commits heresy. After Vatican I, this can only be interpreted as an unfortunately-worded way of saying the Church can condemn a former pope for heresy when he has already lost his office.
5) The college of cardinals is an institution of human law, not divine law, and therefore has only the power which canon law attibutes to it. I don’t think there is a legal provision in canon law on which your theory could be based.
6) According to Pius XII’s encyclical “Mystici Corporis” (1943), some sins, such as heresy (I think he means only public heresy), automatically lead to loss of membership in the Church, without any formal proceeding. A pope can be a public heretic without having been admonished by anyone. This means he can lose his membership in the Church (in other words, be seperated from the body of the Church) even before the cardinals admonish him. That supports St. Robert Bellarmine’s theory that a pope automatically loses his office when he is a “manifest heretic,” except if you agree with Fr. Garrigou-Lagrange that such a pope would retain his jurisdiction even while no longer a Catholic.
December 5, 2016 at 5:26 pm
1) Yes. I think he can loose his office in other ways. The key group to identify is not the Cardinals per se who, as you say, are an institution of ecclesiastical positive law but rather the pope’s proper counsellors. Accordingly, the patriarchs, the bishops, the cardinals and clergy of the Roman Church would all seem to have a claim.
2) I agree this is a problem created by the scenario of a pope who teaches heresy. However, the indefectibility of the Roman Church would seem to provide some guarantee (which is why the electors of that church seem the most appropriate of the potential judges of fact in this case).
3) Yes, but see above.
4) This claim was retained in canon law until 1917. There are various resolutions of the ‘judged by no man’ problem. It seems that the cardinals would be pure judges of fact (like the jurors in common law) the judge of law is God. This is why there can be no procedures other than those contained in Divine and Natural Law. I have not come across the claim that the judgement alluded to in canon law can only be post mortem. Has anyone made it historically? Cajetan, Bellarmine, Suarez and John of St Thomas all hold it may occur in this life (although Bellarmine thinks as a matter of fact the Lord will not allow the Pope to fall into heresy).
5) see 1
6) There are a number of accounts of how this happens and what its canonical effects would be on a hierarch. So far as I know none of them involve an occult loss of jurisdiction without due process (which in this case must be founded elusively on Divine and Natural Law).
December 6, 2016 at 2:21 am
2) I don’t think the indefectibility of the Church helps your point. Suppose the pope’s counselors mistakenly admonish him twice for an orthodox opinion, he correctly rejects their admonitions, and they falsely declare him deposed, thereby going into schism themselves. As far as I can see, that would be compatible with the indefectibility of the Church. I vaguely remember having read there was a time during the Great Western Schism when all cardinals supported the antipope in Avignon.
Your theory in practice means that papal counselors have the power to depose a pope who disagrees with them on matters of faith. That power could be used by orthodox papal conselors to depose a heretical pope, but also and just as easily by heretical papal counselors to depose an orthodox pope. The latter would be more likely because the pope’s counselors enjoy less protection from error than the pope himself.
4) I wasn’t talking about a post-mortem judgement. (Though Pope Honorius was condemned post mortem by an ecumenical council for failure to suppress heresy.) My claim is that a living ex-pope who has already lost his office due to notorious heresy can be tried and punished by the Church just like any other baptized heretic. That was the position of Cardinal Bellarmine (who claimed it to be the consensus of the Church fathers) and I think also Cardinal Louis Billot; it is also shared by contemporary sedevacantists such as Fr. Cekada (I am not a sedevacantist).
The First Vatican Council, in defining the dogma of the supreme jurisdiction of the pope, did not mention any exceptions. It is impossible for a dogmatic definition to omit a necessary qualification or exception.
Paul IV wrote in his bull “Cum ex Apostolatus Officio” (1559) that a notorious heretic cannot be validly elected pope, even if the cardinals unanimously vote for him, and that such an election would be invalid “by itself and without any declaration being further made” (“eo ipso absque aliqua desuper facienda declaratione,” §6).
6) I would not use the expression “occult loss of jurisdiction without due process” because the heresy needs to be notorious (“ita ut nulla tergiversatione celari possit,” as the theologians say), so that no judicial process is necessary. The best example would be a pope who declares publicly that he is no longer Catholic but wants to retain the papacy in order to harm and embarrass the Church. If a pope does not explicitly admit his opinion to be heretical, it seems to me that it will usually be impossible to exclude the possibility that he may have deluded himself into believing his opinion to be orthodox. In those cases, there seems to be no possibility of getting rid of such a pope, but I think divine providence will ensure he does not even non-infallibly teach his opinion as a doctrine to be adhered to by the whole Church (this rest on an analogy with the disciplinary infallibility of the Church).
December 6, 2016 at 6:53 am
I was not speaking of the indefectibility of the Church in general but of the indefectibility of the Roman Church. Many of the patristic testimonies to the special place of the Roman Church are to the place of the Roman Church rather than specifically of the Roman Bishop. I think this gives a special status to the electors of the Roman Church when it comes to this situation. As St Paul says of the Roman Christians “I give thanks to my God, through Jesus Christ, for you all, because your faith is spoken of in the whole world.” The Cardinals did not seek to depose Urban VI for heresy they denied they had validly elected him so his case does not fall under the provisions of Corpus Iuris Canonici for the deposition of a Pope who strays from the faith. The other scenarios you mention do not arise if the Cardinals are competent to judge the fact that the Pope has taught heresy and continued to do so after formal admonition.
December 6, 2016 at 2:07 pm
Your quote comes from St. Paul’s letter to St. Titus, a diosesan bishop on the island of Crete. St. Paul tells St. Titus how to deal with those who are under his episcopal jurisdiction. This is inapplicable to the pope, who has no bishop above him.
Fr. Augustin Arndt SJ’s bible commentary (6. edition, 1914, with approbation of St. Pius X and the Sacred Congregation of the Index) says the following about Titus 3:10:
“Die Zurechtweisung muß mit Geltendmachung der amtlichen Stellung des Bischofes geschehen und mit der Androhung der Ausschließung verbunden sein.”
My translation:
“The reprimand must happen under assertion of the bishop’s official position and must be combined with the threat of exclusion.”
Cornelius a Lapide writes that Titus 3:10 does not refer to cases where it is clear that the person knows his opinion to be heretical; in those cases, punishment can be imposed without even a single admonition.
December 6, 2016 at 2:58 pm
The event I had in mind was not the rebellion of the French cardinals against Urban VI in 1378, but the Council of Pisa in 1409. Both Pope Gregory XII (Rome) and Antipope Benedict XIII (Avignon) were deserted by their respective colleges of (quasi-)cardinals, who then held an illicit council in Pisa, together with numerous bishops. The council declared that both Gregory and Benedict, being notorious heretics, had ipso facto lost all authority and even their membership in the Church and then unanimously elected Antipope Alexander V. The latter “was acknowledged by the majority of the Church” according to the Catholic Encyclopedia (entry “Council of Pisa”).
On the one hand, this shows that we cannot trust the cardinals in such matters, even when they are unanimous. On the other hand, the council fathers of Pisa supported the thesis that a pope is ipso facto deposed when he becomes a notorious heretic, although they incorrectly applied that thesis to the concrete facts of the case.
The horrible situation of the Church during the Great Western Schism led many theologians to come up with dubious or heretical remedies (such as conciliarism) which made everything even worse (e.g., two instead of three papal claimants). We should not make the same mistake.
December 6, 2016 at 5:44 pm
It is certainly not the case that St Paul’s words to Titus have been taken as applying only to the ordinary of Crete! If Cardinals unite with other clerics created ‘Cardinals’ by an Anti-Pope they cannot function as the Sacred College.
December 7, 2016 at 12:09 am
My point was that St. Paul’s words apply to an ecclesiastical superior admonishing his subjects, not to the subjects admonishing their superior.
“If Cardinals unite with other clerics created ‘Cardinals’ by an Anti-Pope they cannot function as the Sacred College.”
Yes, and by the same token, if cardinals presume to sit in judgement over the pope, they cannot function as the Sacred College because they claim jurisdiction over him who has supreme jurisdiction, which is heretical:
“If anyone thus speaks, that the Roman Pontiff has only the office of inspection or direction, but not the full and supreme power of jurisdiction over the universal Church, not only in things which pertain to faith and morals, but also in those which pertain to the discipline and government of the Church spread over the whole world; or, that he possesses only the more important parts, but not the whole plenitude of this supreme power; or that this power of his is not ordinary and immediate, or over the churches altogether and individually, and over the pastors and the faithful altogether and individually: let him be anathema.” (Vatican I, Dogmatic Constitution “Pastor Aeternus”)
December 7, 2016 at 1:25 am
They function only as judges of fact (like jurors). So far as I know there was no suggestion at Vatican I that the definition you quote was overthrowing the theological consensus concerning the deposition of the Roman Pontiff for heresy.
December 7, 2016 at 2:27 am
There was no such consensus, since Cardinal Bellarmine, Francis de Sales and Alphonsus de Liguori supported the thesis which I am now propounding (loss of office due to notorious heresy even without any declaration), while Pope Paul IV taught an analogous thesis (invalidity of papal election due to notorious heresy even without any declaration).
Even if you consider the cardinals mere judges of fact, your thesis still seems heretical because the cardinals’ judgement that the pope is a heretic would have more authority than the pope’s own judgement that he is not. This would imply that the cardinals have, under some circumstances, a greater “power of jurisdiction” than the pope, in contradiction to the dogmatic definition I quoted. Since the pope is the Church’s supreme judge, he is also the supreme judge of fact.
December 7, 2016 at 3:56 am
Your account of Bellarmine is not as I remember the matter but I would have to go back and look. Regardless, the Pope’s jurisdiction would not have been superseded as you suggest both because judgement of fact (will God as judge of law) does not not constitute a jurisdictional claim any more than jurors are making such a claim and because the Pope could at any time prior to the second admonition solemnly define the truth of the position he is upholding.
December 7, 2016 at 3:57 pm
Maybe judgement of facts concerning a person does not by itself imply a jurisdictional claim over that person, but my point was that if I make a factual judgement which you can’t overturn, you clearly don’t have “full and supreme” judicial authority.
I think it is insufficient to respond that the pope can overturn the cardinals first judgement by an ex-cathedra definition. That is because the pope has “full and supreme power of jurisdiction […] not only in things which pertain to faith and morals, but also in those which pertain to the discipline and government of the Church spread over the whole world,” which implies that he can overturn the cardinals judgement directly by exercising his judicial authority and not just indirectly by exercising his doctrinal authority.
Here’s a different way of putting it: If the cardinals are able to issue a factual judgement concerning the pope’s alleged heresy without also issuing a dogmatic definition, then the pope must have the same power (otherwise, he would “possess[] only the more important parts, but not the whole plenitude of this supreme power”). If, on the other hand, you claim that the cardinals must issue a dogmatic definition alongside their factual judgement, then you have just invented the novel theory that the power to issue dogmatic definitions belongs not only to the pope and to ecumenical councils, but also to the college of cardinals.
In addition, Paul IV’s bull “Cum ex Apostolatus Officio” declares the ipso-facto invalidity of the unanimous election of a notorious heretic to the papacy, which suggests that the cardinals are not the judges of fact in such matters, even when they are unanimously agreed.
December 7, 2016 at 4:34 pm
But the fact that the Pope has the fullness of jurisdiction does not alter the fact that he cannot act contrary to Natural or Divine Law and we know that popes have invalidly dispensed contrary to Divine Law in the past. Natural Law forbids him to be judge in his own cause. I am not at all suggesting the cardinals can make definitions.