9. Next we enter the thorny paths of heresy, membership in the Church, jurisdiction, excommunication, canon law, and divine law. Fr. Boulet has not considered all of the things that must be considered to treat this matter properly. Here is his text.

3.2. Incompatibility between heresy and ecclesiastical jurisdiction: Both Holy Scripture and Tradition teach clearly that there is a deep incompatibility in radice (in the root) between the condition of a heretic and the possession of an ecclesiastical jurisdiction, because a heretic ceases to be member of the Church. However, such incompatibility is not absolute, that is why theologians are using the term in radice (in the root). In the same manner as a plant can still stay green for a while after it had been rooted up, likewise, jurisdiction could be maintained, in a precarious manner though, even after the Churchman had fallen into heresy (cf. Suarez). Theologians are basing their argumentation mostly on Canon Law, Can. 2314: “All apostates from the Christian faith and each and every heretic and schismatic incur the excommunication ipso facto. Unless they respect warnings, they are deprived of benefice, dignity, pension office … and if clerics, with the warning being repeated, they are deposed.” Then, Can. 2264 declares unlawful, but not automatically invalid, the acts of jurisdiction coming from someone who has been excommunicated: “An act of jurisdiction carried out by an excommunicated person, whether in the internal or the external forum, is illicit; and if a condemnatory or declaratory sentence has been pronounced, it is also invalid, without prejudice to c. 2261, §3; otherwise it is valid.” Thus the heretical cleric does not lose automatically his functions, but he has to be deposed by the lawful authority. From this, we can conclude that heresy, even external, does not automatically eliminate jurisdiction. Against it, it may be argued from Canon 188 # 4: “Any office becomes vacant upon the fact and without declaration by tacit resignation recognized by the law itself if a cleric: 4. publicly defects from the Catholic faith.” Sedevacantists are using this canon as a weighty proof of their thesis, however, such canon cannot be considered as a final proof that a heretical Pope had lost his office. One has to remember that the Pope is always above the dispositions of the positive law, as the one of Can. 188. Such argument would be final only if it was being proved that the canonical disposition of Can. 188 belongs to the divine-positive law of the Church. One would have also to prove that this divine-positive law applies properly to the specific case of the Pope. But, it is precisely on that matter that the greatest theologians have been in disagreement for centuries.

Having admitted, following da Silveira, that there is a radical incompatibility between the status of heretic and the possession of habitual jurisdiction, Fr. Boulet makes the startling comment that “such incompatibility is not absolute, that is why theologians are using the term in radice (in the root).” There is no basis that I am aware of for this remarkable claim, and indeed I think the correct inference is quite the contrary – it is precisely to emphasise absolute incompatibility that theologians and philosophers employ the term radical. Fr. Boulet, instead, proceeds with the analogy, “In the same manner as a plant can still stay green for a while after it had been rooted up, likewise, jurisdiction could be maintained, in a precarious manner though, even after the Churchman had fallen into heresy (cf. Suarez).” Here he follows da Silviera, who appears to have confused habitual with supplied jurisdiction, a failure which disorders the entire subject.

Here is St. Thomas on the point. “On the other hand, the power of jurisdiction is that which is conferred by a mere human appointment. Such a power as this does not adhere to the recipient immovably: so that it does not remain in heretics and schismatics; and consequently they neither absolve nor excommunicate, nor grant indulgence, nor do anything of the kind, and if they do, it is invalid.” [S. Th. II-II, Q. 39, Art 3.]

St. Robert Bellarmine summarises this as follows, “St. Thomas also teaches (S. Theol., II-II, q. 39, a. 3) that schismatics immediately lose all jurisdiction, and that anything they try to do on the basis of any jurisdiction will be null.” (Emphasis added.)

St. Thomas and St. Robert are both referring to that jurisdiction which is attached to an ecclesiastical office – which is habitual jurisdiction. (Ordinary jurisdiction, the jurisdiction of bishops, is a kind of habitual jurisdiction.) In my reading this is the common doctrine, as one would expect, since all Catholic teachers are bound by the doctrine of St. Thomas. But let’s take a look at da Silveira, Fr. Boulet’s source, for he argues this away with what appear to be solid authorities.

Scripture and Tradition make clear the existence of a profound incompatibility, in radice (in its root) between the condition of heretic and the possession of ecclesiastical jurisdiction, since the heretic ceases to be a member of the Church.

This incompatibility is such that normally the condition of heretic and the holding of ecclesiastical jurisdiction cannot be harmonized. Nevertheless, this is not absolute, or, that is, it is not such that, falling into internal heresy, or even external, the holder of ecclesiastical jurisdiction is destituted of his charge ipso facto, in every case and immediately.

The arguments presented by the divers authors in connection with this ultimate point are decisive, and particularly the arguments drawn from the practice of the Church: by the Code of Canon law the heretic only loses jurisdiction when a condemnatory and declaratory sentence is passed against him; priests who have abandoned the Church have jurisdiction to give absolution to persons in peril of their lives; it is commonly admitted that the schismatic eastern rite bishops (they are also heretics) possess a jurisdiction which the Popes tacitly concede to them; etc.

Therefore, we do not qualify that incompatibility as absolute, but we speak only of incompatibility in radice. Heresy cuts the root and foundation of jurisdiction, this is, the faith and the condition of being a member of the Church. But it does not eliminate ipso facto and necessarily the jurisdiction itself. Just as a tree can conserve life even for some time after its roots are cut off, so also, in frequent cases, the jurisdiction perdures even after the fall into heresy of him who possessed it.[Arnaldo Xavier da Silveira, op.cit.]

Before proceeding to examine these arguments a fundamental point must be made. There can be no intelligible discussion of this matter if the distinction between occult and manifest heresy is omitted, for it is upon the relative publicity of the crime of heresy that membership in the Church depends; and it is upon membership in the Church that the loss of (habitual) jurisdiction depends, as da Silveira has noticed. And as this erudite man has also noted, whilst the authors are not all exactly consistent with each other in their use of these terms, and they do differ subtly in their understanding of each of the degrees of publicity and precisely where to draw each line, there is certainly sufficient agreement for practical purposes. This agreement could be summarised, I think, as that occult heresy does not result in loss of membership in the Church, and public heresy does. “Manifest” as employed by St. Robert Bellarmine appears to equate to “public” as defined by the Code of Canon Law.

Da Silveira, however, appears to have covered this ground in a hurry, for he makes the most inexplicable error, right at the beginning. He admits, following Bellarmine’s lucid teaching, that “Scripture and Tradition make clear the existence of a profound incompatibility, in radice (in its root) between the condition of heretic and the possession of ecclesiastical jurisdiction, since the heretic ceases to be a member of the Church.” And in those few words traces the effect and the cause with complete precision, viz. that the loss of jurisdiction – the effect – is caused by the loss of membership in the Church. This is entirely clear and sound. Only a member of the Church may possess habitual jurisdiction, as Bellarmine says.

But then da Silveira proceeds to state that this loss of jurisdiction “is not absolute, or, that is, it is not such that, falling into internal heresy, or even external, the holder of ecclesiastical jurisdiction is destituted of his charge ipso facto, in every case and immediately.” We see here perhaps the key to this whole treatment, which is that da Silveira seems to forget that internal heresy has no effect whatsoever upon membership in the Church. Heresy which remains hidden in the culprit’s breast is a sin, but not a crime. That is, it has no effect on the social unity of the Church, and does not result in the culprit incurring any censures, and it does not cause the loss of ecclesiastical membership, or the loss of office which follows automatically upon that loss of membership. This was demonstrated above.

So why does da Silveira mention internal heresy, in a discussion about the loss of jurisdiction resulting from the loss of membership in the Church? Either he adopts the discredited minority view that merely internal heresy results in the loss of membership of the Church, which does not seem to be apparent in his text, and seems exceedingly unlikely given his propensity to learn chiefly from the weightiest authorities, or at this point of his study he simply winked, as even the best scholars do occasionally.

At any rate, it is true that if somebody falls into interior heresy he does not lose any jurisdiction he may possess ipso facto. But that is not relevant to the thesis under discussion, and mentioning it in this place only serves to confuse the entire question.

Building upon this confusion, da Silveira then immediately claims, “by the Code of Canon law the heretic only loses jurisdiction when a condemnatory and declaratory sentence is passed against him.” I answer, insofar as his heresy is occult, this is conceded. But insofar as his heresy is public, I deny. Canon 188,4 establishes that in cases of public heresy, all offices are automatically vacated ipso facto and without any need for a declaration.

Da Silveira further asserts, “priests who have abandoned the Church have jurisdiction to give absolution to persons in peril of their lives.” I answer, this relates to supplied jurisdiction, which is granted to such ministers for the act, and only for the act, for which they need it. But we are not discussing supplied jurisdiction, we are discussing habitual jurisdiction, which St. Thomas teaches, “does not remain in heretics and schismatics.”

To supply jurisdiction means to give it in the very acts which are placed without jurisdiction from any other source. Hence when jurisdiction is supplied by the Church, the person acting is entirely without jurisdiction both before and after the act in question; he has jurisdiction, supplied by the Church, only in the act itself.

[Bouscaren & Ellis, Canon Law, A Text and Commentary, 2nd Ed. Bruce, Milwaukee, 1953, p. 141. Emphasis in the original.]

Finally, it is alleged by da Silveira that, “it is commonly admitted that the schismatic eastern rite bishops (they are also heretics) possess a jurisdiction which the Popes tacitly concede to them.” If he refers to ordinary jurisdiction, then I deny that this is factual. It is not “commonly admitted” at all. It is commonly denied, as far as I have read. What is somewhat commonly admitted, but by no means universally, is that the priests of the Oriental schismatic sects may absolve validly by supplied jurisdiction.

For example, speaking of the oriental schismatics, Mura says, “As a rule we must make exception for the sacrament of penance, which requires for its validity not only the power of order but also the power of jurisdiction. Since jurisdiction resides only in legitimate pastors, it follows that schismatics are habitually deprived of it and cannot absolve validly except in danger of death, when the Church grants jurisdiction to all priests.” [The Nature of the Mystical Body, Ernest Mura, R.S.V., Herder, 1963 (translated from the French, first published in 1936), p. 275.] This is the pure doctrine of St. Thomas and indeed, the common teaching of theologians, as far as I am aware.

But of course, this has nothing to do with habitual jurisdiction, with which we are exclusively concerned.

Consequent upon each of these points, da Silveira’s conclusion is also denied, by which he argues that heresy “does not eliminate ipso facto and necessarily the jurisdiction itself. Just as a tree can conserve life even for some time after its roots are cut off, so also, in frequent cases, the jurisdiction perdures even after the fall into heresy of him who possessed it.” This conclusion is directly contrary to the doctrine of St. Thomas, and of St. Robert, and to the Code of Canon Law, and as I hope has been illustrated, it rests upon faulty arguments anyway.