Well, I had already declared that I wished to bow out of the conversation, as I don't like getting acromonious all the time (especially at Christmas), but you guys are calling me back in, so here we go again:
cuм Ex Apostolatus and Canon 188, §4 Faced with the proof that cuм Ex Apostolatus was abrogated when the 1917 Code came into force, some Sedevacantists will argue that its penal legislation was not merely based on ecclesiastical law, but on Divine law, and therefore remains in force. They will then point to the fact that cuм Ex Apostolatus is referenced as a footnote to canon 188, §4 (1917 Code), and claim that this proves its automatic penalties are still in effect. This argument is erroneous for the following reasons.
First, there is no Divine Law (nor has there even been an ecclesiastical law) teaching that a prelate who falls into the sin of heresy, and is judged by private judgment to be a heretic, automatically loses his office. As we saw above, the impediment would have to be legally proven before it would have any juridical effect. Without being legally established, the titulus coloratus would suffice for the acts of the office holder to remain valid.
Second, as we saw in Chapter Eight, canon 188, §4 applies to clerics validly elected to office, who publicly defect from the Faith by joining a non-Catholic sect (or publicly apostatizing) after being elected, whereas the penalties contained in cuм Ex Apostolatus pertain to pre-election heresy. cuм Ex did not teach that a validly elected cleric who later “deviates from the faith” automatically loses office. So the penalties contained in cuм Ex Apostolatus and canon 188, §4 are clearly not the same.
Third, footnotes are not part of the Church’s law (they have no authority in themselves), and are often cited (by editors) to show legislative history related to certain canons. As applied here, the footnote to cuм Ex Apostolatus is nothing more than a reference to prior legislation which prevented certain clerics from holding office in the Church. The purpose is to simply provide some legislative precedent for the current legislation, not to affirm a mythical “Divine law” that prevents heretics from holding office based upon individual private judgment.
[39] http://www.trueorfalsepope.com/p/blog-page_19.html