Cum ex Apostolatus Officio History and Status

Cum ex Apostolatus Officio History and Status

The following is a slightly revised version of the treatment of the Papal Bull, Cum ex Apostolatus Officio, taken from the soon-to-be-released 2nd edition of True or False Pope?

       One of the favorite documents used by Sedevacantists to defend their position is the papal Bull of Pope Paul IV, Cum Ex Apostolatus Officio, which was issued February 15, 1559. It is generally agreed that the purpose of the Bull was to prevent Cardinal Morone, whom Paul IV suspected of heresy, from being elected to the papacy.[1]  To that end, amongst other things, the bull taught that the election of a pope, who is found to have deviated from the faith prior to his election, is null and void – even if he was elected by the unanimous consent of all the Cardinals.
       In this article, we will show the following:

1                   The bull does not concern the loss of office due to post election heresy (which is how many Sedevacantists have sought to interpret it), but rather to the invalidity of an election due to pre-election heresy.

2                   For the bull to have any legal or practical effect, the office holder would have to admit to pre-election heresy, or the pre-election heresy would have to be legally established by the Church, as the more informed Sedevacantists admit.

3                   The bull itself was disciplinary; its teachings were never enforced; and it was derogated (rendered obsolete) by the 1917 Code (this too is admitted by the more informed Sedevacantists, as we will show).

4                    The penal sanctions contained in the bull were considered so unjust and problematic that those who rejected papal infallibility at the time of the First Vatican Council, brought the bull out from obscurity and used to “prove” that the pope is not infallible and hence that the Church erred in defining it as a dogma

5                    In response to the above objection, the proponents of Papal Infallibility did not attempt to defend the bull itself, but instead proved that it did not meet the conditions for Papal Infallibility set forth by Vatican I.  Consequently, the problematic aspects do not touch on the question of papal infallibility.

Cum Ex Apostolatus Officio

       After a brief opening paragraph, the Bull teaches that if a Roman Pontiff is found to have deviated from the Faith, he who is “judged by no one” can nevertheless be contradicted:

"In assessing Our duty and the situation now prevailing, We have been weighed upon by the thought that a matter of this kind is so grave and so dangerous that the Roman Pontiff, who is the representative upon earth of God and our God and Lord Jesus Christ, who holds the fullness of power over peoples and kingdoms, who may judge all and be judged by none in this world, may nonetheless be contradicted if he be found to have deviated from the Faith (si deprehendatur a fide devius - same wording as found in c. Si Papa, Dist. 40). Remembering also that, where danger is greater, it must be more fully and more diligently counteracted."[2]

       After teaching that it is licit to contradict a Roman Pontiff who has deviated from the faith after being elected, the Bull goes on to say that if a Bishop, Archbishop, Cardinal or even the Roman Pontiff himself, is found to have deviated from the faith prior to be being elected to office, his election is null and void:

"If ever at any time it shall appear that any Bishop, even if he be acting as an Archbishop, Patriarch or Primate; or any Cardinal of the aforesaid Roman Church, or, as has already been mentioned, any legate, or even the Roman Pontiff, prior to his promotion or his elevation as Cardinal or Roman Pontiff, has deviated from the Catholic Faith or fallen into some heresy:

(i) the promotion or elevation, even if it shall have been uncontested and [accepted] by the unanimous assent of all the Cardinals, shall be null, void and worthless."[3]

       In light of this teaching, because the Sedevacantists personally believe the last six Popes deviated from the faith prior to their elections, they believe they are entirely justified in considering their elections null, and then publicly declaring them to be antipopes. Our old friend Richard Ibranyi (who believes the past 102 Popes – including Paul IV who issued Cum Ex Apostolatus – have been false Popes), provides us with the Sedevacantist interpretation and application of the document in question.  In the following quotation, the reader will notice that Ibranyi’s personal interpretation and application of this document is founded on Fr. Cekada’s “sin of heresy against Divine Law” theory.  He writes:

“Even though Paul IV’s Bull Cum ex Apostolatus Officio of 1559 is invalid and fallible because he was an apostate antipope, it nevertheless teaches the ordinary Magisterium dogma that all formal heretics, and hence even secret ones, cannot hold offices.”

Then, after quoting the pertinent section of the Cum Ex Apostolatus, he writes:

"Therefore, even the secret sin of formal heresy bans one from holding offices in the Catholic Church. Hence even if the so-called pope is unanimously elected, enthroned, and given ‘universal obedience’ and thus believed to be the pope by every Catholic in the world, he is not the pope if he has fallen into formal heresy."[4]

       First, as we have amply demonstrated, the internal sin of heresy alone does not cause a prelate to lose his office, nor does it prevent one from licitly acquiring office. If it did, Catholics would have absolutely no way of knowing which Popes or bishops (past or present), validly held office and which did not.  Hence, they would have no way of knowing for sure which councils were ratified by true Popes, and which were ratified by false “Popes,” who lost the faith before or after their election.
       Second, the judgment and determination that the one elected to the papacy fell into heresy prior to his election, is not based upon the private judgment of individual Catholics, who personally believe a sin of heresy was committed before the election. The judgment would have to be rendered by the proper authorities before the election would be rendered null. As St. Thomas teaches, a public judgment must come from the public authority. Cum Ex Apostolatus was a disciplinary decree that attached a retroactive penalty to one who was authoritatively judged by the Church (not by private individuals) to have deviated from the faith prior to their promotion or election. 
       This was confirmed by two canonists who lived at the time the Bull was issued. The canonist, Maurcus Antobius Borghesius, said “the Bull [Cum Ex Apostolatus] includes only those who were caught, convicted or confessed to have fallen into heresy.”[5] The canonist, Antonio Massa, teaches the same: “The Bull of Pope Paul does not prescribe it in the manner of one having been discharged, unless he being taken up in a crime either confessed of his own will or was convicted by others” (nec bulla Pauli pontificis modo defuncti id disponit, nisi ille in crimine deprehensus vel sponte confessus vel ab aliis convictus.)[6]  For the bull to have any legal or practical effect, the pope would have to admit to being guilty of pre-election heresy, or he would have to be found guilty by the Church. Even the Sedevacantist bishop, Donald Sanborn, acknowledges this point.  Writing at the time that Benedict XVI (Joseph Ratzinger) was pope, he explains:

"Cum ex apostolatus is an apostolic constitution, a law, made by Pope Paul IV, which says that if a pope should be a heretic, his elevation to this dignity would be null. It was made in order to ensure that no Protestant could ever become the Pope. It does not apply to the present case for two reasons. The first is that it is no longer the law. It was derogated (made obsolete) by the 1917 Code of Canon Law.  The second reason, and the more important, is that even if it should for some cause still have force, it could only apply to Ratzinger if he were legally recognized as a public heretic. But, as we have seen, there is no legal condemnation of Ratzinger. Before the law of the Church he does not have the status of heretic because (1) he himself does not hold himself guilty of heresy, and (2) no legitimate superior holds him guilty of heresy."[7]

       An admission of guilt, or an authoritative judgment, is a condition required for the election to be juridically rendered null.  Without it, the man is and remains the true pope quoad nos, and all his acts of jurisdiction remain valid. 

Titulus Coloratus

       Both secular and ecclesiastical law recognize that titulus coloratus (the color of title), combined with common error, suffices for a man to enjoy, in actu, the authority of the office that he is believed to legitimately hold.  If there were an impediment that legally prevented him from acquiring the office, or one that legally resulted in the loss of office, the impediment would have to be legally established before it would have any juridical effect, and before the acts of the office holder would lack authority.  As the 17th century Franciscan theologian, John Vincent Canes, observes: “If titulus coloratus and moral evidence do not suffice [for] us, we can be sure of no authority, either spiritual or civil in this world.”[8]    
       A secular example to illustrate this point is the controversy surrounding President Obama’s place of birth.  Many were convinced that he was born in Kenya, and therefore did not meet the “natural born citizen” requirement to be elected to the presidency.  Nevertheless, since the accusation was never legally proven, he remained president and the laws he promulgated remain in force.

Cum Ex Apostolatus:
Neither Ex-Cathedra Nor Irrevocable

       Not only have Sedevacantists failed to understand that the retroactive penalties listed in the Bull would only take effect upon a judgment by the proper authorities, but they’ve also failed to properly understand the nature of the document, imagining it to be an infallible ex cathedra decree that remains in force, rather than merely a disciplinary document of penal legislation, which have been derogated. For example, a popular Sedevacantist website writes the following in their introduction to the papal Bull:

"During the time of the Council of Trent Pope Paul IV issued his Apostolic Constitution Cum Ex Apostolic (sic) Officio of February 15, 1559. (…) Because it deals with faith and morals and was issued ex cathedra (from the Chair of Peter) [it is] therefore considered not only infallible, but to be held in perpetuity."[9]

       The former Sedevacantist David Bawden, aka “Pope Michael” (elected “Pope” by six lay people, including himself and his parents), also claims that Cum Ex Apostolatus is infallible. In his book, 54 Years that Changed the World, he wrote:

"This Bull of Pope Paul IV deserves special consideration, especially in light of the fact that it has been ignored by many. … this Bull appears in the Fontes of the Code of Canon Law in several places. It is considered infallible because it teaches on a matter of Faith."[10]

       Richard Ibranyi also attributed an infallible character to the document. The following was written before Mr. Ibranyi discovered “conclusive evidence” that Pope Paul IV - along with every other Pope since Innocent II (A.D. 1130) - was an antipope:

"In 1559 Paul IV in his Bull Cum ex Apostolatus Officio infallibly teaches that a so-called officeholder who is a formal heretic does not actually hold the office and thus all his acts are null and void even if everyone thinks he is an officeholder."[11]

     The Sedevacantist website, Today’s Catholic World, also declares Cum Ex Apostolatus to be an infallible ex cathedra document. In the unfortunate but common Sedevacantist tone, under the heading, “Very Useful Idiots,” the author writes:

"The absolutely intellectually dishonest Phony Opposition false traditionalist groups, such as: the priestless SSPX, Una Voce, John Vennari’s “Catholic” Family News, Michael Matt’s (truly lost) Remnant etc., by willfully refusing to accept the Church’s Ex Cathedra (Infallible) teaching of Cum ex Apostolatus Officio which unmistakenly [sic] condemns imposters like Ratzinger a.k.a Anti-Pope Benedict XVI …"[12]
       As with all sophists, once one gets past their demagoguery, here riddled with inflammatory invective (“idiots,” “dishonest,” “false,” “priestless,” “lost,” “imposters” – and all in one sentence!), one generally discovers the sheer barrenness of their argumentation, which seeks to appeal to the will, rather than the intellect. Not only does the author entirely mischaracterize the nature of the document (which was never intended to be an infallible decree), he reveals much about himself by cloaking his error in such demagoguery and insulting rhetoric.

Heretics Appeal to Cum Ex Apostolic Officio to Disprove Papal Infallibility

       During the debates surrounding the definition of papal infallibility, Cum Ex Apostolatus Officio was brought to light by the dissenters in an attempt to prevent the Church from defining the doctrine. Their mode of operation was thus: First, they attempted to attribute an infallible dogmatic character to the Bull. Next, they pointed to the various penal sanctions as being utterly tyrannical and contrary to Catholic principles. Finally, they argued that such tyrannical and unjust sanctions prove the Pope is not infallible. 
       One of the main voices opposing the doctrine was that of Johann Joseph Ignaz von Döllinger, a fierce opponent of papal infallibility. In his famous book, The Pope and the Council, written under the pen-name Janus, Döllinger attempted to demonstrate the unjust character of Cum Ex Apostolatus. After listing a number of penal sanctions in the document, he wrote:

"Such, then, is this most solemn declaration, issued as late as 1558, subscribed by the cardinals, and afterwards expressly confirmed and renewed by Pius V, that the Pope, by virtue of his absolute authority, can depose every monarch, hand over every country to foreign invasion, deprive every one of his property, and that without any legal formality, and not only on account of dissent from the doctrines approved at Rome, or separation from the Church, but for merely offering an asylum to such dissidents, so that no rights of dynasty or nation are respected, but nations are to be given up to all the horrors of a war of conquest. And to all this is finally subjoined the doctrine, that all official and sacramental acts of a Pope or Bishop, who has ever — say twenty or thirty years before — been  heretically minded on any single point of doctrine, are null and void! This last definition contains so emphatic and flat a contradiction of the principles on the validity of sacraments universally received in the Church, although mistakes have sometimes been made about it at Rome, that they must have seemed to theologians utterly incomprehensible. The serious inconveniences which at former periods such doctrines had led to in the Church would have been reproduced now, had not even the most decided adherents of the infallibility theory, the Jesuit divines, shrunk from adopting the principle laid down by this Pope and his cardinals, though Paul IV threatened all who resisted his decrees with the wrath of God. Bellarmine himself, forty years later, said in Rome itself that a bishop or Pope did not lose his power by becoming or by having been a concealed (occult) heretic, or [else] everything would be reduced to uncertainty, and the whole Church thrown into confusion."[13]

       Döllinger never accepted the dogma of papal infallibility and on April 18, 1871, one year after the close of the First Vatican Council, he was excommunicated by name for heresy; and although he never officially joined the schismatic Old Catholic Church, Döllinger’s writings contributed greatly to its establishment. 
     In response to the arguments of Döllinger and company, the proponents of the dogma did not attempt to defend the Bull of Paul IV against accusations that the penalties were extreme, unjust, or harmful to the common good. Rather, they defended papal infallibility by noting that the Bull was not a dogmatic decree and, therefore, any problems with the document in no way undermined the infallibility of the Pope. 
     In an 1870 article that was published in The Dublin Review, the author confirmed that Cum Ex Apostolatus does indeed require careful consideration, due to the issues raised by Döllinger and company, but not because of any violation of infallibility, since, as he said: “there is literally no pretext for thinking that this Bull was dogmatic in any sense.” From the article:

"The most formidable-looking of all Janus’s citations [against papal infallibility] is Paul IV’s Bull ‘Cum ex Apostolatus officio,’ (p. 382): nor, indeed, do we at all deny that that Bull requires very careful consideration, though on totally different grounds from those alleged by Janus. But (…) There is literally no pretext for thinking that this Bull was dogmatic in any sense whatever: the only dogmatic statement which Janus quotes - that which he numbers ‘(1)’ - so far from being defined in the Bull, comes in quite accidentally and parenthetically."[14]

       Another authority confirming that Cum Ex Apostolatus is not an infallible ex cathedra decree is the Church historian, canonist, and first Cardinal-Prefect of the Vatican Archives, Dr. Joseph Hergenrother. In his 1876 book, Catholic Church and Christian State, he responds to the accusation of “Janus.” In so doing, he readily concedes that the Bull “may be perhaps considered too severe, injudicious, and immoderate in its punishments,” but he defends papal infallibility by explaining, in no uncertain terms, that the document is not an infallible decree, but only concerns penal sanctions. We cite the Cardinal at length:

"Appeal is also made to the Bull of Paul IV., ‘Cum ex apostolatus officio,’ of 15th Feb. 1559,[15] to which our opponents are most eager to attach the character of a dogmatic ex-cathedra decision,[16] saying that if this Bull is not an universally binding doctrinal decree (on the point of the Papal authority), no single Papal decree can claim to be such.[17] But none of the exponents of dogmatic theology have as yet discovered this character in the Bull,[18] which has been universally regarded as an emanation of the spiritual penal authority, not a decision of the doctrinal authority.[19] 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 [i.e., Döllinger] 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 [particular] 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. Introductions quite similar are to be found in laws relating purely to matters of discipline, as any one may see who consults the Bullarium.[20] As to the enjoining portion of the Bull in question, it only contains penal sanctions against heresy, which unquestionably belong to disciplinary laws alone.”[21]

       Cardinal Hergenrother goes on to explain that Cum Ex Apostolatus was simply renewing earlier penal sanctions against heresy and adding new penalties which, by their very nature, are disciplinary:

"(…) 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.[22] 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,[23] which equally belongs to the sphere of discipline. (…)

"The Pope does not here speak as teacher (ex cathedra), but as the watchful shepherd eager to keep the wolves from the sheep, [24]and in a time when the actual or imminent falling away even of bishops and cardinals[25] demanded the greatest watchfulness and the strongest measures. The Bull of Paul IV may be perhaps considered too severe, injudicious, and immoderate in its punishments, but it certainly cannot be considered an ex cathedra doctrinal decision. No Catholic theologian has considered it as such, or placed it in a collection of dogmatic decisions; and to have done so would have only deserved ridicule; for if this Bull is to be considered as a doctrinal decision, so must every ecclesiastical penal law. Papal Infallibility, it is most true, excludes any error as to moral teaching, so that the Pope can never [definitively] declare anything morally bad to be good, and vice versa; but infallibility only relates to moral precepts, to the general principles which the Pope prescribes to all Christians as a rule of conduct, not to the application of these principles to individual cases,[26] and thus by no means excludes the possibility of the Pope making mistakes in his government by too great severity or otherwise. (…)"[27]
       One of the potential problems with the penal sanctions enunciated in the Bull (which Cardinal Hergenrother said could be considered “severe,” “injudicious” and immoderate”) is that it could be interpreted by some to imply that a Pope could be peacefully and universally accepted by the entire Church, and then later declared to have never been validly elected, which is not possible.[28] Although the document does not explicitly teach this,[29] some Sedevacantists have interpreted the Bull it in this fashion and ended by denying the teaching regarding the peaceful and universal acceptance of a Pope. The problematic wording (which has led these Sedevacantists into error) is another clue as to the fallible, disciplinary nature of the now-defunct document.
       Continuing with his commentary on Cum Ex Apostolatus, Cardinal Hergenrother responded to those who opposed papal infallibility by asserting that if the Pope was really infallible, the document should have been covered by infallibility since it was directed to the entire Church (ex cathedra), and was published in solemn form. The Cardinal responded to this objection as follows:

But it is said: ‘This Bull is directed to the whole Church, is subscribed by the Cardinals, and thus has been published in the most solemn form, and is certainly ex cathedra.’[30] These characteristics, however, do not suffice for a dogmatic doctrinal decision. … The sort of proofs our opponents bring forward in this matter show an entire ignorance of Papal Bulls.[31] Compare, for example, another Bull of the same Pope directed against the ambitious endeavours of those who coveted the Papal dignity;[32] this Bull has equally the agreement of the Cardinals, is published out of the plenitude of the Papal power, is declared to be forever in force, threatens equally all spiritual and temporal dignitaries without exception, etc. And yet it is undoubtedly not in the least a dogmatic Bull.[33]

       As the Cardinal explained above, just because a Magisterial document issued by a Pope teaches that it is to remain in force in perpetuity (constitutio in perpetuum valitura) does not necessarily mean it cannot be abrogated by a future Pope. It depends upon the nature of the decree (doctrinal versus disciplinary). According to the ancient principle “equals do not have power over equals” (par in parem potestatem non habet), a Pope cannot bind a future Pope to merely disciplinary matters and ecclesiastical governance. A Pope cannot change Catholic doctrine, or abrogate a defined dogma, but he can alter disciplines, such as the punishment for certain crimes.
       We will provide one final reference to confirm that Cum Ex Apostolatus is not an ex cathedra, irreformable decree, but only punitive legislation. In his book True and False Infallibility of the Pope, Bishop Joseph Fessler, the secretary of the First Vatican Council, responded to the argument of Professor von Schulte, another opponent of papal infallibility who used Cum Ex Apostolatus as his weapon of choice. Bishop Fessler wrote: 

Dr. Schulte [apologist for the Old Catholic sect] proceeds with another Bull of Pope Paul IV [Cum ex Apostolatus], issued in the year 1559,[34] which is rightly described in the collection of Papal Bulls under the title of ‘Renewal of previous censures and punishments against heretics and schismatics, with the addition of further penalties.’ Why, the very title, which gives a true account of its contents, is of itself alone enough to show everyone who reads it, that this Papal delivery is not a definition de fide, and cannot, therefore, be an utterance ex cathedra. (…) it is beyond all question certain, that this Bull is not a definition of faith or morals, not an utterance ex cathedra. It is simply an outcome of the supreme Papal authority as legislator, and an instance of his exercising his power of punishing; it is not done in the exercise of his power as supreme teacher.[35]

       In light of what we have seen, it is “beyond all question” that Cum Ex Apostolatus is not an ex cathedra and therefore irreformable decree, as some Sedevacantists have claimed, but is instead a document of penal legislation which, by its very nature, is only disciplinary. In fact, after a thorough study of Cum Ex Apostolatus, which included some of the above-cited quotations, one Sedevacantist was forced to concede this point. He wrote:

Pope Paul IV’s 1559 Bull, Cum ex Apostolatus officio, is often cited by many Catholics today for its significance in regard to the current crisis of the Church. Some of us have believed this to be an infallible document, and have used that point to add force to our [Sedevacantist] arguments. At other times we have, in thinking the Bull was infallible, declared as heretics those who seem to contradict the Bull. Although this papal bull is certainly significant for our times, we would be entirely mistaken and in error to refer to the Bull as infallible or dogmatic. Cum ex Apostolatus Officio is not infallible, nor dogmatic, but merely a disciplinary statute.[36]

       After citing a number of reputable authorities confirming that the Bull was not infallible, the Sedevacantist author concluded:

Some of the greatest Catholic experts on the subject have made it clear that Cum ex Apostolatus officio is not infallible, while the only persons of any standing who have considered it to be infallible have been excommunicated and opposed by the Church. The Catholic experts state that it is beyond certain that the Bull is not infallible, and that it is a ridiculous and enormous blunder to consider it to be such. In light of this information, we [Sedevacantists] are obliged to discontinue referring to Cum ex Apostolatus officio as infallible. Not only would it be very deceptive and dishonest to erroneously refer to the Bull as infallible, but such an erroneous statement greatly damages the argument we are trying to make, along with our overall credibility on religious matters.[37]

       Now, since Cum Ex Apostolatus was only concerned with “the practical execution of previous penal laws, which by their nature are disciplinary,” as Cardinal Hergenrother explained, its penalties could be and indeed were abrogated when the 1917 Code of Canon law came into force. Canon 5.2 explains:

That which pertains to penalties, of which there is no mention made in this Code, be they spiritual or temporal, remedial or, as they call it, punitive, automatic or declared through a judgment, they are to be held as abrogated.

       None of the prescriptions contained in Cum Ex Apostolatus Officio were included in the 1917 Code, and consequently they were all officially and authoritatively abrogated.
       The Sedevacantist bishop, Donald Sanborn, also acknowledges the papal Bull is no longer in force. Wrote Sanborn:

Cum ex apostolatus is an apostolic constitution, a law, made by Pope Paul IV, which says that if a pope should be a heretic, his elevation to this dignity would be null. It was made in order to ensure that no Protestant could ever become the Pope. It does not apply to the present case for two reasons. The first is that it is no longer the law. It was derogated (made obsolete) by the 1917 Code of Canon Law.”[38]

Canon Gregory Hesse, who held a Ph.D in theology and canon law teaches the same in this video.

Cum Ex Apostolatus and Canon 188, §4

       Faced with the proof that Cum Ex Apostolatus was abrogated when the 1917 Code came into force, some Sedevacantists will argue that its penal legislation was not mere based on ecclesiastical law, but on Divine law, and therefore remains in force. They will then point to the fact that Cum 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 Cum Ex Apostolatus pertain to pre-election heresy.  Cum Ex did not teach that a validly elected cleric who later “deviates from the faith” automatically loses office. So the penalties contained in Cum 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 Cum 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]
       Fourth, it is certainly not a matter of Divine law that the election of a person who had previously deviated from the faith is null and void.  The great Cardinal Manning, for example, not only deviated from the faith he received at baptism, but he went so far as to become a pseudo-bishop of the Anglican sect. Yet, in spite of this, he was later received into the Catholic Church and raised to the office of bishop and then Cardinal. The same is true with Cardinal Newman.  This elevation to one of the highest offices in the Church occurred in spite of irrefutable proof that they had both deviated from the faith prior to their elevation. Now, if someone claims that Cum ex Apostolatus' teaching concerning pre-election heresy does not apply in the case of one who later renounces his errors, he will have to point to the section of the bull that refers to this exception. Yet this section will not be found, because it does not exist. In fact, this was one of the objections that Döllinger raised against the bull. He wrote:

And to all this is finally subjoined the doctrine, that all official and sacramental acts of a Pope or Bishop, who has ever - say twenty or thirty years before - been  heretically minded on any single point of doctrine, are null and void![40]

     The penal sanctions of Cum Ex make no exception for a person who deviated from the faith and then later renounced his error. The Bull simply stated that the election of one who had previously deviated from the faith, or previously embraced a heresy, is null and void.
       If Sedevacantists are going to argue that the penal sanctions in this Bull are still in force today, and that they take effect without an authoritative judgment by the proper authorities, they will have to explain how Cardinal Manning was elevated to bishop and then Cardinal during the reign of Pius IX, and Newman elevated to Cardinal during the reign of Leo XIII, in the face of irrefutable proof that he had “deviated from the faith” prior to their elevation.
       The reality is that the penal sanctions in Cum Ex Apostolatus were never enforced, and consequently the legislation had slipped into obsolescence even before it was derogated when the 1917 Code of Canon law was enacted.  The case of Cardinals Manning and Cardinal Newman proves that someone who publicly defects from the Faith is not barred by “Divine law” from being elevated to the episcopacy (or the papacy) at a later date.
       We conclude by noting that at the time of the First Vatican council, the opponents of papal infallibility unearthed the Bull Cum Ex Apostolatus (which had all but disappeared from the mind of the Church), and used its problematic penal sanctions to defend their heresy (denial of Papal Infallibility), to "prove" that the Church had defected, and to justify their separation from the Church, "outside of which there is no salvation". These heretics went on to form the Old Catholic sect, which was condemned by Pius IX in Esti Multa, 1873). 

In our day, the exact same document – now legally defunct and thus void of any authority - has again resurfaced. This time the bull serves as the weapon of choice for the Sedevacantist - whose first bishop, Francis Schuckardt, was illicitly consecrated by a pseudo-bishop of the Old Catholic sect!), who use the penal sanctions of the bull, not as the basis for denying a particular charism of the Pope (infallibility), but as the basis for rejecting the Pope himself and justifying their separation from him - to whom subjection is “absolutely necessary for salvation,”[41] and, in the end, like their pre-Conciliar counterparts, to "prove" that the indefectible Church has defected.  

In the end, the Sedevacantists have fallen into the same heresy as the the Old Catholics. As Pius IX wrote in Esti Multo:  

“...they boldly affirm that the Roman Pontiff and all the bishops, the priests and the people conjoined with him in the unity of faith and communion fell into heresy .... Therefore they deny also the indefectibility of the Church and blasphemously declare that it has perished throughout the world and that its visible Head and the bishops have erred. ...  These unhappy men undermine the foundations of religion, overturn all its marks and properties, and invent so many foul errors, or rather, draw forth from the ancient store of heretics and gather them together and publish them. Yet they do not blush to call themselves Catholics, and "Old Catholics"… these men having progressed more boldly in the ways of wickedness and destruction, as happens to heretical sects from God’s just judgment, have wished to create a hierarchy also for themselves, as we have intimated. They have chosen and set up a pseudo-bishop, a certain notorious apostate from the Catholic faith, Joseph Hubert Reinkens.

"So that nothing be lacking in their impudence, for his consecration they have had refuge to those very Jansenists of Utrecht, whom they themselves, before they separated from the Church, considered as heretics and schismatics, as do all other Catholics." (Pius IX, Esti Multa).

As Pius IX noted, after splitting from the Church following the First Vatican Council, the Old Catholics turned to the Jansenists of Utrecht - who they acknowledged as heretics before leaving the Church - to have their first bishops consecrated.

Similarly, after splitting from the Church following the Second Vatican Council, the first Sedevacantist sect (the CMRI) turned to the Old Catholics - who were declared heretics by Pius IX, and who they themselves acknowledged as heretics before leaving the Church - to have their first bishop (Francis Schuckardt aka Antipope Hadrian VII) consecrated.

The similarities between the Old Catholics and the Sedevacantists are striking, as we have seen in previous chapters.  In yet another similarity, they both appeal to the same problematic and now defunct papal bull, Cum ex Apostolatus officio, to "prove" the central point they use to justify their separation from the Church.

For more on Cum ex See:

 * Canon Gregory on Cum ex Apostolatus: video.

* Canonist Fr. Coronata also explains that Cum ex Apostaolatus is null: Institutiones Iuris Canonici. 

[1] On the day the Bulls was issued, Cardinal Pacheco wrote to King Phillip II and notified him that it was aimed at Cardinal Morone.
[2] Pope Paul IV, Cum ex Apostolatus Officio, February 15, 1559.
[3] Ibid.
[4] Ibranyi, “Banned from Office for Simony or Secret Formal Heresy,” (February, 2013), at (emphasis added).
[5] Firpo, 1:235.
[6] Firpo, 3.333.
[7] Sanborn, “Explanation Of The Thesis Of Bishop Guérard Des Lauriers,” June 29, 2002.
[8] Vincent, J. C., Diaphanta, or, Three Letters Declaring, 1672.
[9] at (emphasis added).
[10] “Pope” Michael, 54 Years That Changed the Catholic Church: 1958-2012, (CreateSpace Independent Publishing Platform, 2011), p. 33.
[11] Ibranyi, “Putative Officeholders and Laws,” December 2012, http://www.john
[13] Janus, The Pope and the Council, (London, Oxford, Cambridge: Rivingtons, 1869), pp. 383-384.
[14] Dublin Review, vol. XIV, New Series (London, Burns and Oats, January - April 1870), p. 204 (emphasis added).
[15] Lib. Sept. c. ix. de Haeret. v. 3. Raynald. a. 1559, n. 14, M. Bull. i. 840. Sentis, Lib. Septimus, v. 5, 23, p. 164 (citation in original).
[16] Janus, p. 405 seq. Schulte, ii. 12 (citation in original).
[17] Huber, p. 47 (citation in original).
[18] Professor Denzinger has collected all dogmatic decisions in his Enchiridion Definitionum, which since 1853 has gone through four editions, been recommended by many bishops, and much praised by the Holy Father. No theological reviewer in all of Christendom has complained of the omission of the Bull in question; all would much rather have considered a demand for its insertion ridiculous (citation in original).
[19] Dr. Fessler, p. 44. Cf. Anti-Janus, p. 168 seq. Votum on the Vatican Council, Mainz, 1871, p. 45 seq. (citation in original).
[20] E.g., Urban VIII. Const. 12, d. 7, Mart. 1624 (Bull. ed. Lux. t. v. p. 40):  “Romanus pontifex, in quo dispositione incommutabili divina providentia universalis Ecclesiae constituit principatum, auctoritatem a Christo per B. Petrum Apostolorum culmen sibi traditam intelligens, ut noxia evellat, et destruat, utiliaque plantet et aedificet,” &c. The entire Bull relates to the Constitutions of the Fratres Reformati strictioris observantiae Ordinis S. Francisci. Similarly, Const. 64 d. 6 Feb. 1626, relating to the abolition of a congregation of Franciscans (ib. p. 119, § 1) (citation in original).
[21] Cardinal Hergenrother, Catholic Church and the Christian State, vol. I (London: Burns and Oats, 1876), p. 42 (emphasis added).
[22]Omnes et singulas excommunicationis, suspensionis, et interdicti ac privationis et quasvis alias sententias, censuras, et poenas .... contra haereticos aut schismaticos quomodolibet latas et promulgatas apostolica auctoritate approbamus et innovamus ac perpetuo observari et in viridi observantia, si forsan in ea non sint, reponi et esse debere, nec non quoscunque .... (haereticos cujuscunque status) censuras et poenas praedictas incurrere volumus atque decernimus” (citation in original).
[23] E.g., loss ipso facto of all offices and dignities, incapacity to hold others, confiscation of goods, etc (citation in original).
[24] Paul IV nowhere in the Bull calls himself “doctor”; he acts “more vigilis pastoris, pro munere pastorali vulpes vineam Domini demoliri satagentes capere et lupos ab ovibus arcere” (§ 1) (citation in original).
[25] As Bishop Victor of Bergamo (Raynald. a. 1558, n. 20), Bishop Jacob of Nevers (ib. a. 1559, n. 13), Archbishop Bartholomew (ib. a. 1560, n. 22), the Bishop of Nantes (ib. n. 35), Cardinal Chatillon Bishop of Beauvais (ib. a. 1561, n. 86), &c. Cf. the Brief of Paul IV against the bishops suspected of heresy, ib. a. 1559, n. 19: “Cum sicut nuper” (citation in original).
[26] cf. Suarez, de Fide, disp. 5, § 8, n. 7. Also Schaetzler, Die Papstliche Unfehlbarkeit, Freiburg, 1870, p. 197; and Merkle in the Augsburg Pastoralblatt, 11 Feb. 1871, pp. 47-50. (Citation in original).
[27] Hergenrother, Catholic Church and the Christian State, pp. 42-43 (emphasis added).
[28] In light of the earlier teaching about the “peaceful and universal acceptance” of a Pope, it could never happen that the election of a Pope, who was accepted peacefully and universally by the entire Church (not simply elected by the unanimous consent of the Cardinals), would later be rendered null, since, as we saw, the peaceful and universal acceptance of a Pope provides infallible certitude of his legitimacy, as well as all of the conditions required for legitimacy. The election or promotion of a bishop or Cardinal would not have the same guarantee, but such a guarantee does exist with a Pope. This means that if a papal election were ever rendered null after the fact (which some claim happened at the 1903 Conclave, when the Bishop of Kraków allegedly vetoed the election of Cardinal Mariano Rampolla, paving the way for the election of St. Pius X), during the time intervening between the election and the declaration rendering the election null, the Pope would not have been accepted peacefully and universally by the Church. Either his election (following a questionable resignation of a former Pope, for example) would be doubted by the faithful, or he would be doubtful for other reasons. Once thing is certain: it has never occurred, and will never occur, that a Pope who was peacefully and universally accepted by the entire Church, was later declared to have never been Pope due to a defect in the election. 
[29] The document speaks of the Pope being elected by a “unanimous assent of all the Cardinals,” and then to “the obedience accorded to such [the elect] by all.” Neither of these fallible statements directly contradicts the teaching that a Pope who is peacefully and universally accepted by the Church is, in fact, a legitimate Pope. 
[30] Schulte, i. p. 34, n. 1 (citation in original).
[31] See my review of Schulte in the Archiv fur Kirchenrecht, 1871. vol. xxv. p. cxxix. § 17; also Fessler, I.e. p. 82 seq. (citation in original).
[32] Cap. i. Cum secundum Apostolum. 1. v. 10, de Ambitu in lib. vii. Decret (citation in original).
[33] Hergenrother, Catholic Church and the Christian State, Vol I (London: Burns and Oats, 1876), pp. 44-45 (emphasis added).
[34] Vide the Bull Cum Ex Aposlolalus, in the Bullar. Rom., ed. cit. t. iv. p i. p. 354. “Innovatio quarumcumque censurarum et poenarum contra haereticos et schismaticos,” etc. (citation in original).
[35] Fessler, The True and False Infallibility of the Popes (New York: The Catholic Publication Society, No. 9, Warren Street, 1875), pp. 88-89 (emphasis added).
[36] Christopher Conlon, “The Non-Infallibility of Cum Ex Apostolatus Officio,” (2013). latusOfficio.
[37] Ibid (emphasis added).
[38] Sanborn, “Explanation Of The Thesis Of Bishop Guérard Des Lauriers,” June 29, 2002.
[39] See, for example, Fr. Albert, O.P., “La Constitution Apostolique Cum ex Apostolatus de Paul IV,” Le Sel de la Terre, No. 33.
[40] Janus, The Pope and the Council, pp. 383-384.
[41] In the Bull of Pope Boniface VIII, Unam Sanctam, promulgated November 18, 1302, the following was defined as a dogma of faith: “We declare, we proclaim, we define that it is absolutely necessary for salvation that every human creature be subject to the Roman Pontiff.”