The Bull Cum Ex Apostolatus Officio: Void and of No Authority

It seems Pope Paul IV had a serious persecution complex. To try to derail the restoration of the Faith, just so he could unjustly punish Reginald, Cardinal Pole!

From One Peter Five

By Ryan Grant, BA

Since Vatican II, there has been a renewed interest in documents from the Tradition not just from researchers, but Catholics trying to make sense of what is happening in the Church. The fruit of that is several documents not particularly well known to Catholics in the past appeared in books (and much later), on the internet. Among the body of documents to which some have had recourse, is the 16th century document Cum ex Apostolatus Officio, issued by Pope Paul IV in 1558. In this document, Pope Paul IV, worried about the danger of his enemy becoming Pope, and being convinced that he was a heretic, established that no one may attain any office, secular or ecclesiastical, especially that of Pope or Cardinal, if they were heretics prior to their election. Although historically, it has been some sedevacantists who have appealed to this document against the legitimacy of modern Popes,[1] more recently, those espousing the theory that Pope Benedict did not in fact resign his office have taken it up. Fr. Altman, and Dr. Edmund Mazza[2] have used it to suggest that Pope Francis was not validly elected, and the latter, while on some woman’s podcast, has suggested Leo is not either. Br. Alexis Bugnolo, although he does not maintain this Bull is an infallible doctrine, he does claim its penal sanctions are still in force.

It is not my intention to delve into arguments against any form of sedevacantism, nor to suggest that without this document this position is refuted, as though it depended upon it. Rather, as more people seem to take an interest in this document, it is worthwhile to discuss how it came about, what it imposes, and how it was understood in the Church’s tradition prior to Vatican II. In doing this we will demonstrate irrefutably that this document was never infallible, and today carries no authority whatsoever.

History of the Document

Gian Pietro Carafa became Pope Paul IV on 23 May 1555, during the turbulent years between the 2nd and 3rd periods of the Council of Trent. The work of reform in the Roman curia had hitherto proceeded with all the speed and agility of a hibernating bear. The main efforts were being moved independently, by fledgling religious orders like the Theatines, the Jesuits, and a handful of reforming clergy.

Carafa had been a reforming bishop, and in the 1530s reform of the Church gained new energy with the election of Paul III. Convicted of the need for reform, Paul III as Cardinal Farnese reformed his life and upon becoming Pope in 1533, decided to appoint Cardinals equipped for the reform of the Church. Chief among them was St. John Fisher, the greatest theologian of the age, but sadly that holy bishop had his appointment with martyrdom for Christ under Henry VIII’s axe at Tyburn. Just the same there were no lack of reforming prelates, among them would be Carafa, Giovonni Morone, the bishop of Modena, and the English prelate Reginald Pole. The three would be intrinsically linked in the early period of Trent, and the chief players in the drama leading to the creation of the bull Cum ex.

It is not known at what point Carafa fell out with Morone and Pole, but the first we see the animosity between them is in the conclave of 1549, after the death of Paul III. Pole was the leading candidate, and all but expected to be elected when Carafa came before the conclave and declared that Pole could not be elected, because he was a heretic. What heresy he held was not precisely defined, though at one time Pole had in fact embraced an erroneous opinion on Justification, but prior to Trent’s teaching in its 6th session to which he had publicly subscribed. Though there was never any trial, Pole’s standing fell, and after his allies had tried everything, Pole quipped, “God has need of an ass, but not this ass!” Pole would go on to become Archbishop of Canterbury after Queen Mary I’s accession, where he would lead the short-lived English Counter-Reformation.

Morone is another story. He continued as a Papal diplomat, and labored for peace between the Hapsburgs and the French crown, as well as administering his diocese, which he resigned in 1550, but was later appointed to the bishopric of Novera, and had also been a member of the Roman Inquisition. He was considered not only a distinguished but also virtuous member of the Cardinalate.[3] This was all to change shortly, seeing that Carafa became Pope in 1555. As Paul IV, he was convinced that heretics were everywhere, and had to be dealt with harshly, and the chief of these, as he quipped to the Venetian ambassador, were Pole and Morone. In 1557, the Pope had Morone imprisoned in the Castel Sant’Angelo, under twenty-one charges of heresy. Morone answered these, provided documentation, and had even shown the witnesses against him were themselves heterodox. He had vindicated himself so thoroughly that the Inquisition could find no evidence of his heresy. But Paul IV would not hear of it, so affixed in his mind was Morone’s guilt. Moreover, considering Pole to be the true heresiarch and Morone merely the disciple, he attempted to derail the entire effort at restoring the faith in England so as to have Pole returned to Rome to share Morone’s fate.[4] Yet, the Inquisition had shown that there were no grounds upon which to accuse Morone, and he should be set at liberty. As the historian Pastor relates:

In spite of this Paul IV was anything but satisfied of the innocence of Morone, for a conviction to the contrary was too deeply rooted in his mind. The Cardinal remained in the strictest confinement, and was, from the first, treated more like a convicted heretic than a prisoner under examination. His request to be allowed to say Mass was refused, indeed, he was not even permitted to hear Mass. … For this reason, Morone refused to purchase his freedom by an abjuration of heresy in general. He rightly understood that by so doing he would acknowledge that he had been found wanting in matters of faith.[5]

As the year passed to 1558, Morone still languished in prison, the proceedings stalled for lack of evidence, and the Pope had failed to get King Philip II to permit the extradition of Cardinal Pole. The Pope whom some historians describe as half mad and utterly paranoid, now feared that Morone, whom he was certain—contrary to all evidence—was a heretic, would succeed him as Pope. Thus, something had to be done. At the end of 1558, the Pope prepared a bull which would declare that anyone who had been convicted of heresy or even suspected by the Inquisition should be deprived of their active and passive voting rights in the conclave.[6] The Cardinals refused to approve a bull of this sort as too extreme, and the Pope was force to remodel it into the form we have in Cum ex Apostolatus Officio, signed by all the Cardinals on 15th February, which we will review shortly. There was no doubt that this bull was principally aimed at Morone.[7]

The epilogue of the case of Cardinal Morone is that Paul IV continued to press the case, and although threatening him that he could have a pyre with or without a trial, Morone held on as any man convicted of nothing but his own innocence. At length, Paul IV died on 18 August 1559. While the Roman populace who detested Papa Carafa sacked the palace of the holy office and overturned emblems of his reign,[8] Morone was released and took part in the conclave, which turned out to be acrimonious, but in December elected Giovanni Angelo d’Medici as Pius IV. Morone would then go on to be a key figure along with Sts. Peter Canisius and Charles Borromeo in restarting the Council of Trent, and played an important role in guiding the Conciliar debates.

The Bull Cum Ex Apostolatus Officio

The Bull is easily accessible in English translation online, so it is not necessary to reprint it here. We will cover its salient points.

By virtue of the Apostolic office, which has been entrusted to Us by God, despite our unworthiness, we are responsible for the general care of the flock of the Lord. Because of this, in order that the flock may be faithfully guarded and beneficially directed, We are bound to be diligently watchful after the manner of a vigilant Shepherd and to ensure most carefully that certain people who consider the study of the truth beneath them should be driven out of the sheepfold of Christ and no longer continue to disseminate error from positions of authority. We refer in particular to those who in this age, impelled by their sinfulness and supported by their cunning, are attacking with unusual learning and malice the discipline of the orthodox Faith, and who, moreover, by perverting the import of Holy Scripture, are striving to rend the unity of the Catholic Church and the seamless tunic of the Lord.

This introductory section of the Bull merely lays out the authority and purpose for the Bull. In spite of the historical backdrop viz. Cardinal Morone, there had been defections from the faith, and it is moving to see a shepherd worried about the flock rather than perfectly content to see those denying what the Church has always and everywhere believed serving as Jesuits—er uh— priests and bishops.

…we now enact as follows: In respect of each and every sentence of excommunication, suspension, interdict and privation and any other sentences, censures and penalties against heretics or schismatics, enforced and promulgated in any way whatsoever by any of our predecessors the Roman Pontiffs, or by any who were held to be such, also by their letters extravagantes,  … all these measures, by Apostolic authority, we approve and renew, that they may and must be observed in perpetuity and, if perchance they be no longer in lively observance, that they be restored to it.

The Bull continues from there to impose these renewed penalties upon anyone who has been convicted in any way of a deviation from the Catholic faith, incurred schism, fallen into heresy, or will do so in the future. Further, it declares that anyone in Ecclesiastical dignity, as well as secular rank such as king, emperor, and all lesser aristocracy or offices of state, will also incur these sanctions, making clear the effects of these penalties in nos. 3-5.[9]

In number 6, Cum Ex bears upon the matter which many in our day are concerned about:

Additionally, if ever at any time it will have become apparent that some bishop (even if he is managing the place of an Archbishop, or Patriarch, or Primate), or a Cardinal of the aforesaid Roman Church, or already advanced, a Legate or even the Roman Pontiff before his promotion, or assumption either as a Cardinal or the Roman Pontiff, has deviated from the Catholic faith or fallen into some heresy: (my emphasis)

i) The promotion or assumption in his regard, even if it took place in peace from the unanimous assent of all the Cardinals, is void and worthless; etc.

The further provisions make clear the consequences, that all their acts shall be null and void, etc. This is why, as we noted in the introduction, certain Sedevacantists had used this Bull to argue against the Popes after Vatican II.

The first observation is that it only addresses what a Pope had done prior to his election; the law makes no attempt to address a deviation from faith after. Secondly, the nature of a law like this is that it would require discovery and judgment, as is stipulated in the Bull itself when it says, “That the Roman Pontiff, who stands in place of God and Our Lord Jesus Christ in this world, … who judges all and is judged by no one in this world,[10]” and then at the end, “… Even the Roman Pontiff, prior to his … elevation as Roman Pontiff.”[11] Quasi dicere: The Pope is judged by no one on earth, but a trial which can determine whether he had deviated from the faith prior to becoming Pope is permissible, and necessary by the tenor of the Bull, since it would demonstrate a question of fact. Moreover, Cardinal Morone’s legal counsel, the canonist Marcantonius Borghesius said, “The Bull includes only those who were caught, convicted, or confessed to have fallen into heresy.”[12] And it is not hard to see why. If there were neither a public trial nor confession necessary for the penalties of the Bull to take effect, the essential import would be that secret heretics lose all office and jurisdiction. The result would be that no one could possibly know if anyone was ever a valid Pope, or Bishop, etc, or, since it applies to the temporal sphere, whether anyone was really king. Consequently discovery is necessary for such penalties envisioned in this Bull to take place.

The third observation, contrary to those who claim that this document is infallible, there is not a single doctrine or article of faith that has been declared for our belief. Rather, we have crimes, and penalties. Pope Paul makes it clear enough in number 3: “And just the same, considering it just that those who do not refrain from evil deeds by love of virtue should be averted from them by fear of punishments [poenae], …” All throughout, the bull lays down crimes, such as heresy, schism, and apostasy, who is embraced by it, and what will happen to them, namely loss of benefices, deprivation from office, etc. Nowhere does it say, “x is a dogma of faith to be believed.”

Now, someone will say, “but heresy concerns a matter faith.”

Necessarily human beings differentiate between propositions, and acts that demonstrate their understanding of some proposition. Or again, a law may touch upon opinions, or take principles as part of their reasoning, but it is not giving a treatise to which those bound by the laws are expected to assent. Quasi dicere: If an American legislature were to base a law on an argument from James Madison, those obliged by that law are not thereby required to believe what Madison thought, but merely to follow the provisions of that law.

Next, every part of Canon Law touches upon either faith and morals in some way; yet throughout the history of the Church canons have changed, been abrogated, or modified, etc. Consequently, Cum ex can only be an immutable doctrine of faith if it were to teach a doctrine to be held as de fide, and then were given to the Universal Church according to the conditions laid down at Vatican I.[13]

We can confirm this in three ways.

Firstly, the fact that no mention of Cum ex is made in Denzinger, nor treated as a doctrine in any work of dogmatic theology. We do, however, find numerous references to Cum ex in the tradition — in Canonical manuals, or legal citations in a work of moral theology to show how the law bears on this or that moral question.

For example, in the work of Franciscan Moral Theologian Clement Pisellus, discussing excommunications in the Bull In Coena, he turns his attention to Cum ex Apostolatus Officio:

Whoever is unwilling to obey the Pope insofar as he exercises the pontifical office in the power conferred on him by Christ incurs the excommunication of this Bull [Cum ex], because he refuses him obedience as the head of the Church. It is otherwise if he is unwilling to obey him as a temporal prince, or as a private person on account of some particular dispute or out of ill will toward him; for although he withholds obedience from him, he does not withhold it from him as the head of the Church.[14]

There, you see a penalty for an action, but no mention of any doctrine.

Again, explicitly discussing Cum ex, the Canonist Novarius says, “It is declared, first, that for the execution of this Bull a declaratory sentence is required before deprivation comes about de facto (cap. Cum secundum, De haereticis, Sext.), for although before such a declaratory sentence benefices can be obtained as though vacant, nevertheless the heretic who is charged is not bound to resign possession; and therefore, on the basis of this vacancy, the person provided could not take possession if the intruder had not been cited and the case had not first been argued with him.”[15]

There again, the discussion is strictly on the way the Bull increases previous penalties, and applies new ones, and the result is a further consideration of the Canonical process, but no mention anywhere of any sort of doctrine or dogma. Moreover, it again requires a formal sentence or decree for the penalties to take effect, which is to say, they are not ipso facto.

The eminent Jesuit, Cardinal de Lugo, also addresses penalties in the bull,[16] but nowhere any word about a dogmatic import. And the citations can be applied ad infinitum.

Secondly, according to the Bull (n. 6), anyone who was formerly a heretic cannot be made a Cardinal: yet Pope Clement VIII in the 17th century had elevated the former Calvinist, i.e. heretic, Jacque Davy du Perron to the Cardinalate.[17] Did Clement VIII become an Anti-Pope for denying the Bull of Paul IV? What of Bl. Pius IX who made John Henry Newman and Nicholas Wiseman cardinals? Manifestly not, because the bull was a legal document, which is in a Pope’s power to dispense.

Thirdly, it is a simple fact that prior to Vatican II, the only individuals who argued that this bull is infallible were heretics, while eminent Catholic theologians explained why it is not.

During the argumentation leading up to Vatican I, Ignaz von Döllinger (who used the pseudonym “Janus”) became the first man to argue that this Bull would have to be a solemn judgement, and infallible. The reasoning was, since the Church had practically forgotten the existence of the document, and surely by its language it is infallible, then how could an infallible document of this sort be forgotten; unless there is no infallibility in the Pope. Against this argument, the first Cardinal-prefect of the Vatican Archives, Dr. Joseph Hergenrother, made a clear refutation:

Appeal is also made to the Bull of Paul IV, Cum ex apostolatus officio, of 15th Feb. 1559, to which our opponents are most eager to attach the character of a dogmatic ex-cathedra decision, saying that if this Bull is not a universally binding doctrinal decree (on the point of the Papal authority), no single Papal decree can claim to be such. But none of the exponents of dogmatic theology have as yet discovered this character in the Bull, which has been universally regarded as an emanation of the spiritual penal authority, not a decision of the doctrinal authority.

We see the tactics of the Church’s opponents have been reversed: formerly the Jansenists and lawyers of the French parliament denied that the Bull Unigenitus was dogmatic, though all Catholic theologians regarded it as such; now the Janus party and jurists who protest against the Vatican Council assert that the Bull of Paul IV is dogmatic, though all Catholic theologians deny it to be such. In truth neither the wording of this last-named Bull, nor its contents as a whole, nor the rules universally received among theologians, allow it to be regarded as a dogmatic decision.

If there is to be a doctrinal decree binding on all, it is requisite that a doctrine to be held or proposition to be rejected be placed before the faithful in terms implying obligation, and be prescribed by the full authority of the Church’s teaching office. This is not the case with this Bull. True enough in the introduction the Papal power is spoken of, and in accordance with the view of it held universally in the Middle Ages. But here, as in every other Bull, the rule already spoken of holds good, that not the introduction and the reasons alleged, but simply and only the enjoining (dispositive) portion, the decision itself, has binding force.

… As to the enjoining portion of the Bull in question, it only contains penal sanctions against heresy, which unquestionably belong to disciplinary laws alone. To deduce from the introduction a doctrinal decision on the Papal authority is simply ridiculous. This has been seen by other opponents, who have not therefore, like Janus and Huber, deduced a dogmatic definition from the Pope’s introductory words, but have deduced from the enjoining portion a definition as to morals. [Janus argues] ‘For how a Catholic should behave towards heretics and heretical rulers, whether an action be theft or lawful occupation, whether one is bound in conscience to recognize a claim for succession or other legal claims, —these and similar questions must be reckoned as belonging to Christian morality even by the most milk-and-water infallibilist.’ Such a statement in anyone who has really read the Bull leaves us little hope that he understands at all what he is speaking about. Paul IV renews the earlier censures and penal laws, which his predecessors, acting in concert with the emperors, had issued against various heresies; he desires that they be observed everywhere, and put in force where they have been unenforced. The point, then, is about the practical execution of previous penal laws, which by their nature are disciplinary, and proceed not from divine revelation, but from the ecclesiastical and civil penal authority. Besides the renewal of old there is an addition of new punishments, which equally belongs to the sphere of discipline.[18]

Döllinger continues, however, that this was subscribed by all the Cardinals, and promulgated to the whole Church. Cardinal Hergenrother answers this too:

These characteristics, however, do not suffice for a dogmatic doctrinal decision. Universally binding laws as to discipline have also been subscribed by the Cardinals, and solemnly proclaimed. Even the Bull ‘Cum divina’ of Alexander VII (26th March 1661), which imposed on all ecclesiastical property in Italy certain tithes to help the Venetians in their struggle against the Turks, was subscribed by the Cardinals.

Canonical Arguments

That is how the Bull was understood as of the First Vatican Council. If we look at the 20th century, we find that Cum ex Apostolatus Officio was fully abrogated by the imposition of the 1917 Code of Canon Law. In Canon 6 of the 1917 code, we find:

Canon 6. The Code for the most part retains the discipline hitherto in force, although it introduces appropriate changes. Therefore:

1. Any laws, whether universal or particular, that are opposed to the prescriptions of this Code are abrogated, unless something else is expressly provided regarding particular laws.

2. Canons which reproduce the old law in its entirety are to be assessed on the authority of the old law and, accordingly, according to the interpretations received among approved authors.

3. Canons which agree only in part with the old law are to be assessed, insofar as they agree, by the old law; insofar as they differ, they are to be judged by their own meaning.

4. When in doubt whether some provision of the canons differs from the old law, one should not depart from the old law.

5. As regards penalties of which no mention is made in the Code—whether spiritual or temporal, medicinal or, as they say, vindicative, latae sententiae or ferendae sententiae, they are held to be abrogated;

6. If any of the other disciplinary laws that have been in force up to now are contained neither explicitly nor implicitly in the Code, it is to be held to have lost all binding force, unless it is found in approved liturgical books, or is of divine law, whether positive or natural.

The purpose for which the Code of 1917 was compiled was to simplify the vast array of laws governing the life of the Church, which were scattered among numerous Bulls, Constitutions, particular laws, or Conciliar acts. Therefore, this canon was necessary to make clear that the only laws, penalties, etc. of previous legislation still in effect were those explicitly included in the code. As Pope Benedict XV remarked:

Over the centuries, in fact, a great many laws had been promulgated; some of these were abrogated by the supreme authority of the Church or fell into disuse; others appeared difficult to apply given the times, or less useful to the common good, or less appropriate. Added to this was the fact that the number of canon laws had grown so large, and they were so uncoordinated and scattered that many of them were unknown not only to the common people, but even to legal experts.[19]

Now, as we have seen, Cum ex Apostolatus Officio is a canonical document which imposes penalties for certain crimes (e.g. heresy, schism, etc.,) and thus it is abrogated by paragraph 5 of canon 6 of the code. It should really be as simple as that.

Yet, even there, we find some who would suggest that is not so. In the preamble, we mentioned Benevacantist Br. Bugnolo’s argument that the canonical import of the Bull is still in force. This he bases on an argument made from Canon 6:

As regards section 1°, it is clear that since n. 6 of the Constitution of Paul IV is not opposed to any Canon the Code of 1917, because this Code says nothing about how such an election of such a man is to be regarded, it does not fall under this provision, for to say “opposed” is to signify that it withstands, or is in disagreement; viz. to say one thing, when the other says something else. Juridical opposition occurs when the precept of one directs that a thing to be done while the precept of the other directs that another thing be done. But since in the Code of 1917, there is nothing said about whether the election of a man as Roman Pontiff is to be held to be juridically valid in the case spoken of in n. 6 of Paul IV’s Constitution, there is no “opposition”. In general, the Code of 1917 says nothing about Papal Elections since the law on papal elections was a special particular law published by Saint Pius X.

Also, it is clear that 5° does not apply  to n. 6 of this Constitution, because an election in conformity with a papal law for the election of the Roman Pontiff, cannot be punished, since an election which is according to the laws in force is not a criminal act.  Again, “punishments” (poenae) must be read in a restricted sense, regarding persons not things. Therefore, the censure contained in n. 6 of Paul IV’s Apostolic Constitution, since it does not regard, in the strict sense, a punishment or penal precept against a person, is thus not abolished by this section of canon 6.[20] (Emphasis in the original).

To summarize Bugnolo’s argument, while it is true that all penal sanctions of Cum ex are abrogated in paragraph 5 of Canon 6, the section of the Bull (n. 6) which deals with the election of the Roman Pontiff is not penal by nature, because it imposes no penalty, but only a discipline, per the language of the code, and thus under paragraph 6 of the same canon, it would have to be explicitly abrogated, otherwise it is still in force. This is easily refuted. St. Pius X had already abrogated this clause of Cum ex by his own constitution Vacante sede apostolica of December 25, 1904 (§29), where he abrogated all previous laws considering the voting in papal elections.

In their work Jus Canonicum, after reviewing the relevant legislation, and naming Cum ex Apostolatus Officio and its provisions on Papal election, Frs. Wernz-Vidal write,

Finally, Pius X, lest the law on the election of the Roman Pontiff remain scattered among various constitutions or contain provisions which, with the circumstances of the times and men’s customs having changed had already become obsolete, gathered that law into a single constitution, abrogating all the preceding ones except the aforementioned constitution of Leo XIII with the attached instruction.[21]

Moreover, with respect to his argument that nothing in Cum Ex Apostolatus Officio is opposed to the prescriptions of the 1917 Code, this argument was already answered by the eminent Jesuit canonist, Fr. Creusen, in an article on abrogation in Nouvelle Revue Théologique of 1923:

If that were so, the legislator would have had to abrogate explicitly all the laws and general customs he did not wish to maintain, and he could have suppressed none by preterition. One would search in vain in can. 6 or in the rest of the Code for such a principle. If it were correct, the Code would cease to meet one of the principal aims of its drafting: to remedy the ignorance and nonobservance of the law that resulted from the multiplicity of its sources.[22]

Just the same, Bugnolo adds another argument:

Section 6°, does not abrogate this provision of Paul IV. First, because the exclusion of a heretic from being elected is contained in canon 2265 of the 1917 code, and thus to this extent, n. 6 of Paul IV’s Bull is implicitly contained in the code, even if the Code forbids the person from being elected, whereas the Constitution of Paul IV sanctions his election as invalid.

Firstly, can. 2265 says the excommunicated are excluded from obtaining offices, benefices, etc., and although heretics are excommunicated ipso facto by Canon 2314 §1 and thus it is logical that they are embraced by this canon, just the same, the two laws are not precisely the same; the 1917 code has a different scope. Moreover, it does not specifically address the situation with the Roman Pontiff, and the code is silent about how to proceed in that case, leaving us to turn to the dogmatic theologians,[23] and that question is beyond our purposes here. Nevertheless, if it were the case that this precisely mirrors Cum ex Apostolatus Officio, even there Creusen gives the principles to understand this.

The Code generally preserves the discipline hitherto in force, although it brings suitable modifications’ (can. 6). We deliberately translate “discipline” and not “legislation.” Practically speaking, the meaning is the same: generally the Code does not change the rights and obligations of the clergy and the faithful as they existed before Pentecost 1917. But the word “legislation” could lead one to believe that the earlier laws keep their binding force, remain in force. Juridically, this is quite incorrect, for they are replaced by the canons of the Code.

For example: It is forbidden for clerics to engage in trade. This obligation is not modified by the Code, which preserves the old discipline; but henceforth it is by virtue of can. 142 that trade is forbidden, no longer by virtue of the Constitutions of Urban VIII, of Clement IX, etc., or of the instructions of the Holy Office relative to this matter. In other words, the Code almost always materially retains the former legislation, although formally it replaces it.[24]

Thus, we can apply the same principle to the matter at hand. In the 1917 code, it is by virtue of can. 2265 that a heretic cannot be elected Pope, not in virtue of Cum ex Apostolatus Officio, and it is entirely unreasonable to assign it any authority, or appeal to its many abrogated punishments on that basis.

If he were to respond that it is a distinction without a difference, because a heretic in both laws cannot be elected to office, the response is the two laws are different, as the 1917 abrogates rather than renewing all the ancient penalties which Cum ex Apostolatus Officio means to apply to n. 6. Next, where canon 2265 of the 1917 says that the excommunicated cannot participate in elections, this too, as far as participation in elections, was modified by Pope Pius XII in his Constitution Vacantis Apostolicae Sedis, to allow Cardinals who were excommunicated to participate in the elections of the Pope.[25] What would happen then, if we were to posit an absurd scenario, say a Cardinal excommunicated for heresy were to take part in the conclave under the prescriptions of Pius XII’s constitution, and then be elected? Then we would turn to the dogmatic theologians, not to the abrogated Cum Ex Apostolatus Officio. Even if one wishes to argue this was not a prudent change to law, both Pius X and Pius XII have shown that the mind of the legislator is not to include that bull into the Church’s current law.

Next, some (including Bugnolo[26]) argue that there is a footnote to Canon 188.4 of that code which cites Cum ex by name, therefore its provisions are still in force. But again, this gives the other side nothing. In the Code of Canon Law, there are no footnotes. The fact that some annotated edition has a footnote means merely the compilers of that edition felt some aspect of the abrogated law would have bearing on the interpretation of a specific canon. It does not, nor could mean that such a Bull is still in force. As the Dominican Frere Albert explains,

In this regard one can draw a parallel with canon 589 §1 and the 1909 decrees cited a moment ago: canon 188 §4 takes up the earlier discipline in general, but without adopting the particular prescriptions, in place of which it has substituted its own provisions, which alone now bind. If the legislator had wished to take up Paul IV’s precise rule concerning a heretical pope, he could have done so. The omission of this rule is, consequently, deliberate, and one cannot assert that it subsists in the Code.[27]

Finally, to repeat what Fr. Creusan said, it is entirely contrary to the mind of the legislator, in this case St. Pius X, to overcomplicate when he meant to simplify.

But now, someone might say “wait a minute, the Bull says in perpetuum valitura, ‘it will be valid in perpetuity;’ why say that if it is not so? Don’t words mean what they say?”

The answer to this is simple. It is a canonical phrase which reflects the Aristotelian concept of law, namely that a law should be perfectly suited to its purpose, and not replaced unless the progress of time requires a better and more efficient law to govern its object. If laws are constantly changing, people lose respect for the law. Moreover, there are numerous instances where this phrase has been used and then the document was modified or withdrawn by a subsequent Pope.

Pope Innocent VIII in his document Non debet reprehensibile of 31 Dec. 1487, established that the Papal secretaries will number twenty-four, in perpetuum valitura.

The same Pope in Quoniam intelleximus of 15 July 1489, issued regulations on debtors: “And so that this our present decree may obtain perpetual force and effect, we order that, for the perpetual remembrance of the matter, it be written and recorded in the volume of the Statutes of the said Ripa and Ripetta.[28] (My emphasis).

Pius IV, in Apostolicae Servitutis Officium of 17 Nov. 1565, voids all alienations and concessions of possessions of the Holy Roman Church which might have been made without proper remuneration or without the benefit to the Roman See, “Out of our certain knowledge and by the fullness of apostolic power … that these present decrees are to have the force of a perpetual law.”[29] (My emphasis).

Pope St. Pius V, in his Bull Cum vices ejus of 12 February 1572, forbade anyone from carrying any sort of dagger or pistol. First, he reviews that Pope Pius IV had done this:

And since by experience we have learned that very many crimes are daily being committed and perpetrated by means of shorter weapons, which can be carried concealed and seem more apt for inflicting death and almost unavoidable, we, following in the footsteps of our predecessor of happy memory, Pope Pius IV, who, wishing utterly and entirely to destroy this treacherous, abominable, and detestable kind of arms and to eliminate it completely from the Eternal City and the other lands of our ecclesiastical state, by a Motu Proprio and by a constitution that will be valid in perpetuity, decreed that it is lawful for no one, of whatever dignity, rank, order, condition, or preeminence, to have or carry firearms commonly called “archibusetta,” of the shorter measure of 6 inches, etc.[30] (My emphasis).

He continues by adding his own law, which likewise,

By a constitution that will be valid in perpetuity, we decree that it shall be permitted to no one, of whatever dignity, rank, order, condition, or preeminence, to carry daggers, knives, or any other kind of weapon of the shorter measure of 9 inches (with the exception, however, of knives suitable for cutting bread, which nevertheless may not be of greater length than three inches, and must be without a point—commonly called “spontani”), in our City, in the cities and places of our Ecclesiastical State, and in the suburbs, in any manner whatsoever, or even under any pretext of military service or the execution of justice.[31] (my emphasis).

Now, although St. Pius V did not seem to incur the wrath of Peter and Paul for changing his predecessor’s constitution, if, as our interlocutors say, words mean what they mean, therefore, anyone who has ever bought a replica dagger over 3 inches in a Roman giftshop and carried it is excommunicated, by infallible decree!

Among seemingly endless examples of the same, we can conclude with Sixtus V, in Immensa æterni Dei of 1 Feb 1588, on the reorganization of the Roman Curia. In this bull, Sixtus establishes fifteen permanent congregations of the Curia, assigns them their functions, declares that this constitution is perpetual and numbered among the Apostolic constitutions, and closes with the solemn penal sanction which forbids anyone to infringe or go against his constitution, invoking the indignation of almighty God and the wrath of SS. Peter and Paul.

Let these letters be made known as soon as possible everywhere, in all places and among all peoples, which we number among the other Apostolic and perpetual constitutions. … Therefore let it be permitted to no one at all to infringe this page of our decrees, … or to oppose it with rash daring. But if anyone should presume to attempt this, let him know that he will incur the indignation of Almighty God and of His blessed Apostles Peter and Paul.[32] (My emphasis).

Yet, not much fearing the wrath of the holy Apostles Peter and Paul, St. Pius X, in Sapienti consilio of 29 Jun 1908, again reorganizes the Curia, after having openly related that changes were introduced after Sixtus V all the way up to his own time. Yet we do not see dogmatic theologians telling him that he excommunicated himself, because Sixtus’ bull is infallible on the basis of the phrase valitura in perpetuum or some variation thereof.

Thus, Cardinal Hergenrother rightly concludes:

And other Papal disciplinary laws have been issued ‘out of the fulness of power’ (de plenitudine potestatis); the word ‘define’ is used in other places also of judicial judgments; and laws designated as to be in force for ever (constitutio in perpetuum valitura) have been soon afterwards repealed, because they were found to be of no service to the Church.[33]

In conclusion, we have seen that the Bull came forth from the severity of Pope Paul IV, who damaged the reputation of the Roman Inquisition, relations with the Hapsburgs, the Counter-Reformation in England, and the welfare of the city of Rome to prosecute his delusions about two Cardinals. Subsequently, Popes had no problem dispensing from it, so little was it observed, and it was lost to history until Döllinger and the anti-infallibility party dredged it up as argumentation before Vatican I. We have also seen, that it was formally abrogated under St. Pius X, and all of this attested by unimpeachable sources prior to Vatican II. The only ones in the tradition who considered the Bull Cum Ex Apostolatus Officio infallible were heretics like von Döllinger. Therefore, whatever one’s other positions on modern controversies concerning the Papacy, it is time to relegate this document to a curiosity of the Renaissance period rather than make oneself the spiritual descendants of those who rejected Vatican I.

Photo by Nicolas Jehly on Unsplash

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[1] I say certain, because there are many Sedevacantists who also see the truth of the matter, that this document enjoys no infallibility at all, such as the late Fr. Anthony Cekada, and again Bishop Donald Sanborn. Moreover, this article is not intended as a criticism of sedevacantist positions per se, but strictly the understanding of the bull Cum ex Apostolatus Officio.

[2] Interview “Is Leo XIV a True Pope” on Steven Kokx’s YouTube channel. https://www.youtube.com/watch?v=VK1Gc-ftifM.

[3] Ludwig Freiherr von Pastor, History of the Popes (Herder, St. Louis 1924), vol. 14, 289.

[4] Adam Patrick Robinson, The Career of Cardinal Giovanni Morone (Ashgate Publishing, 2012), 100-101.

[5] Pastor, op. cit., 298-299.

[6] Ibid.

[7] Bernadino Pia to Cesare Gonzaga, 15 February 1559, PM, V, 414-419, cited in Robinson, p. 106

[8] Robinson, 107.

[9] Even Catholic princes opposed this bull, as it seemed to threaten their positions by the Pope’s arbitrary judgment, and given how Paul had proceeded against Morone, there was legitimate fear of this. Philip II completely broke off diplomatic relations with the Pope on account of Cum ex Apostolatus Officio. See Robinson, loc. cit.

[10] Romanus Pontifex, qui Dei et Domini Nostri Jesu Christi vices gerit in terris, … omnesque judicat, a nemine in hoc saeculo judicandus.

[11] Etiam Romanum Pontificem ante ejus in Romanum Pontificem assumptionem.

[12] Firpo, 1:235.

[13] Although Vatican I was still 300 years off, it drafted its formulation on Papal Infallibility based on the manner in which the Popes have made solemn judgments.

[14] Theologiae Moralis Summa, vol. 2 part 3, tr. 2, p. 235. Qui non vult obedire Papae quatenus fungitur munere Pontificio in potestate sibi collata a Christo, incurrit excommunicationem hujus Bullae, quia negat ei obedientiam tamquam Ecclesiae capiti. Secus vero si nolit ei obedire quatenus Principi temporali, vel quatenus personae privatae ex aliquo particulari dissidio, vel pravo in ipsum affectu quia licet ipsi obedientiam nengant; hanc tamen non ei negat tamquam Ecclesiae capiti.

[15] Joannis Antonius Novarius, Summae Bullarum sive Apostolicarum Constitutiones, pars. sec.: “Declaratur primo pro exequutione hujus Bullae requiri sententiam declaratioriam, antequam deveniatur ad privationem dee facto ca. cum secundum de haeretic. in sexto, nam quamvis ante hujusmodi declaratoriam possint beneficia veluti vacantia impetrari, non tamen tenetur haereticus postulatus se abdicare a possessione, et ideo ex hac vacatione non posset provisus capere possessionem intruso non citato, et negotio prius cum eo non discusso.”

[16] Joannis Card. De Lugo, Tractatus De Virtute Fidei Divinae, Disputatio XXV, sect. III, p. 255.

[17] Rev. Charles Albert Dubray, “Jacques-Davy Duperron,” The Catholic Encyclopedia (New York: Robert Appleton, 1909), vol. 5

[18] Hergenrother, Catholic Church and Christian State, London, Burns and Oats, 1876, vol. 1, pp. 41-43. Many pages could be filled with citations from Catholic Theologians repeating what Cardinal Hergenrother says here. cf. Bishop Joseph Fessler, The True and False Infallibility of the Popes, pp. 20-23, and 80-91.

[19] Providentissima Mater: “Nel corso dei secoli, infatti, erano state promulgate moltissime leggi; alcune di queste furono abrogate dalla suprema autorità della Chiesa oppure caddero in disuso; altre apparvero di difficile applicazione in rapporto ai tempi o meno utili al bene comune o meno adeguate. A ciò si aggiunge il fatto che il numero delle leggi canoniche si era tanto accresciuto, ed esse vagavano così scoordinate e disperse, che molte di esse risultavano sconosciute non soltanto al popolo, ma agli stessi esperti di diritto.”

[20] Why the Bull Cum ex Apostolatus Officio was not abrogated by the 1917 code, on his website “From Rome” 19 August 2025.

[21] Wernz-Vidal, Jus Canonicum, t. 2, Rome, 1928. Tit. VIII, n. 413, p. 403. Tandem Pius X ne jus de electione R. Pontificis in diversas Constitutiones maneret dispersum aut ea contineret, quae temporum rationibus hominumque moribus mutatis jam obsoleta evaserant, illud jus in unicam constitutionem collegit, abrogatis omnibus praecedentibus praeter memoratam Const. Leonis XIII cum adnexa instructione.

[22] Nouvelle Revue Théologique, “Le abgrogation de l’ancien droit”, Tournai, 1923. S’il en est ainsi, le législateur a dû abroger explicitement toutes les lois et coutumes générales qu’il ne désirait pas maintenir et il n’a pu en supprimer aucune par prétérition. On chercherait vainement dans le can. 6 ou dans le reste du code semblable principe. S’il était exact, le code cesserait de répondre à un des buts principaux de sa rédaction : remédier à l’ignorance et à l’inobservance du droit qui résultaient de la multiplicité de ses sources.”

[23] Frs. Wernz-Vidal discuss the question of the loss of office due to heresy in the Pope in their 7 volume Jus Canonicum (vol. 2, Tit. VII, n. 453), but they do not address this as a result of any canon, rather, a conclusion of dogmatic theology.

[24] Ibid., p. 197. “Le Code garde généralement la discipline jusqu’ici en vigueur, bien qu’il apporte des modifications opportunes” (c. 6). Nous traduisons à dessein la discipline et non la législation. Pratiquement, le sens est le même : généralement le Code ne modifie pas les droits et les obligations du clergé et des fidèles, tels qu’ils existaient avant la Pentecôte 1917. Mais le mot législation pourrait faire croire que les lois antérieures gardent leur obligation, restent en vigueur. Juridiquement, c’est tout à fait inexact, car elles sont remplacées par les canons du Code.”

Ex.: Il est défendu aux clercs de se livrer au négoce. Cette obligation n’est pas modifiée par le Code, qui garde l’ancienne discipline, mais désormais, c’est en vertu du c. 142 que le négoce est défendu, non plus en vertu des Constitutions d’Urbain VIII, de Clément IX, etc., ou des instructions du S. Office, relatives à cette matière. En d’autres termes, le Code garde presque toujours matériellement l’ancienne législation, bien que formellement il se substitue à elle.

[25] n. 34.

[26] Ibid.

[27] Fr. Albert, O.P., “La Constitution Apostolique Cum ex Apostolatus de Paul IV,” Le Sel de la Terre, No. 33. On peut faire à cet égard un parallèle avec le canon 589 §1 et les décrets de 1909 cités tout à l’heure : le canon 188 §4 reprend la discipline antérieure en gé­néral, mais sans en assumer les prescriptions particulières auxquelles elle a sub­stitué ses propres dispositions, qui seules obligent désormais. Si le législateur avait voulu reprendre la règle précise de Paul IV concernant un pape hérétique, il aurait pu le faire. L’omission de cette règle est, par conséquent, volontaire, et on ne peut pas affirmer qu’elle subsiste dans le code.”

[28] Et ut praesens nostrum decretum perpetuum robur, et effectum obtineat, quod ad perpetuam rei memoriam in volumine Statutorum dictae Ripae, et Ripettae describi, et registrari mandamus.

[29] Ex certa nostra scientia, ac de Apostolicae potestatis plenitudine … decernentes praesentes vim perpetuae legis habere.

[30] Et quia experentia cognovimus quamplura ex armis brevioribus, quae occulto deferri possint, ad necem inferendam aptiora et fere inevitabilia esse videntur in dies, committi et perpetrari, inhaerentes vestigiis fel. mem. Pii Papae IV praedecessoris nostri, qui volens proditorium, et abominabile et detestandum armorum genus hujusmodi penitus et omnino destruere, et Alma Urbe, aliisque terris status nostri Ecclesiastici in totum eliminare, Motu suo proprio, et in perpetuum valitura constitutione sancivit, nemini cujuscumque dignitatis, gradus, ordinis conditionis, aut praeeminentiae licere tormenta ignea, archibusetta vulgariter nuncupata brevioris mensurae duorum palmorum.

[31] … in perpetuum valitura constitutione sancimus, nemii cujuscumque dignitatis, gradus ordinis, conditionis, aut praeminentiae existat, licere pugiones cutellos, nec aliud quovis genus armorum brevioris mensurae trium palmorum (exceptis tamen cutellis aptis ad incidendum panem, qui tamen esse non possint majoris longitudinis unius palmi, et sine cuspide, et ut vulgo dicitur ‘sponati’) in Urbe nostra, Civitatibus et locis Status nostri Ecclesiastici, et suburbiis quovis modo, aut etiam quovis militiae, aut executionis justitiae praetextu deferre.

[32] Hae literæ quamprimum ubique locorum et genitum innotescant, quas inter alias Apostolicas, perpetuasque constitutiones annumeramus; … nulli ergo omnino hominum liceat hanc paginam nostrorum decretorum, … infringere, vel ei ausu temerario contraire. Si quis qutem hoc attentare praesumpserit, indignationem Omnipotentis Dei, ac beatorum Petri et Pauli Apostolorum ejus, se noverit incursurum.

[33] Loc. cit., p. 44.