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.