Part I

       In a recent article titled “The Impossibility of Judging a Pope,” Mario Derksen of NovusOrdoWatch, argues that because the First Vatican Council teaches that “the First See is judged by no one,” it follows that an heretical Pope cannot be deposed. He writes:

       “[I]t is high time we looked at what the Catholic Church teaches on the (im)possibility of judging and removing a valid Pope. In this post, therefore, we will examine two things: (1) What “judging the Pope” really means; and (2) whether a validly reigning Pope can be removed or “deposed. ... if Francis is a true Pope now, then no one can take the pontificate away from him. He cannot be removed from office; he cannot be deposed. You’re simply stuck with him. Welcome to Catholic teaching on the papacy.”

       The problem with Mr. Derksen’s position is two-fold: First, the famous axiom, “the first see is judged by no one” did not originate with Vatican I, but has existed since the earlier years of the Church.  Second, it has never been understood as precluding the possibility that a heretical Pope can be deposed, nor did the First Vatican Council define it as meaning such a thing. If Mr. Derksen believes the famous axiom prevent an heretical pope from being deposed (or declared deposed), it is due to his private interpretation of the axiom, which is contrary to how it has always been understood.
      In True or False Pope?, we spend three lengthy chapters, quoting theologian after theologian, to explain how a heretical Pope can be deposed without the Church having to claim jurisdiction over him, and without violating the famous axiom.   Simply put, if a Pope publicly holds to a heretical doctrine (not simply an error, but a true heresy), the proper authorities in the Church issue solemn warnings (as a matter of charity, not jurisdiction), informing the Pope that the doctrine he holds is heretical, and providing him an opportunity to renounce the error.  If he fails to do so, one opinion holds that he ceases to be Pope and is declared deprived of the pontificate, another opinion maintains that he is authoritatively deposed by Christ when the Church performs a ministerial act.  Both of these opinions are just as acceptable today as they were before Vatican I.
       Since the teaching of the theologians and canonists we cite in the book contradict Mr. Derksen’s position, he seeks to discredit them by making the blanket claim that what they taught can no longer be held after Vatican I. He writes:

       “Before we proceed to various quotes proving our position with respect to how the Church understands her teaching that a Pope cannot be judged, we must emphasize that all the evidence we adduce is deliberately chosen only from the time of 1870 onwards — that is, from the time of the First Vatican Council, which settled a lot of Catholic doctrine regarding the papacy and made it untenable to hold a number of theories that had still been permissible to hold up until that time. In this we distinguish ourselves from the recognize-and-resist proponents, specifically Messrs. Salza and Siscoe, who in large part advance ideas that were abandoned after Vatican I because they could no longer be held in light of the council’s teachings — which is why nearly all of the proof texts they use come from theologians and canonists who wrote before the First Vatican Council, such as Cardinal Thomas Cajetan, Fr. Francisco Suarez, John of St. Thomas, Fr. Paul Laymann, and others. Yet, if these theories were still acceptable after Vatican I, how come Salza and Siscoe never cite any theologians or canonists from the twentieth century on these points?”

       The notion that “the first see is judged by not one” originated at Vatican I is a common error amongst Sedevacantists, which they have appealed to for years in an attempt to discredit the authorities who directly contradict their position. For example, the Sedevacantist apologist, John Lane, used this tactic in order to discredit the teaching of Suarez, when he wrote:

       “Francisco Suarez did in fact hold the discredited minority position that a public heretic would have to be deposed by the Church. But since his time the [First] Vatican Council has decreed that the First See is judged by no one.”

      The famous axiom did not originate with Vatican I, but  dates back to the early 4th century.  It is found in the Synod of Parma (501-502 A.D.), and was used by Pope St. Nicholas in Proposueramus Quidem (685 A.D.), by Pope St. Leo IX in the Epistle In Terra Pax Hominibus (1053 A.D.) and by Pope St. Gregory VII, in Dictatus Papae, (1075 A.D.). 
       In fact, Suarez himself used the phrase in the very treatise Mr. Lane referred to above, when discussing the case of Pope Macellinus, who guilty of offering incense to idols.  Commenting on this, Suarez wrote:

       “Moreover, the Council gathered on this matter in the time of Pope Marcellus [i.e., Marcellinus], when it declared ‘The First see is judged by no one,’ it said that concerning the very person of Marcellus, who was certainly a private person…”

       Suarez was well aware of the axiom, yet did not believe it prevented an heretical Pope from being deposed.  We can see this from the following quotation, taken from the same treatise, in which he explains how a heretical Pope is removed from office, without the Church having to exercise jurisdiction over him:

       “Therefore, others affirm the Church is superior to the Pope in the case of heresy, but this is difficult to say. For Christ the Lord constituted the Pope as supreme judge absolutely; even the canons indifferently and generally affirm this; and at length [teach that] the Church does not validly exercise any act of jurisdiction against the Pope, nor is the power conferred to it by election, rather [the Church] merely designates a person upon whom Christ confers the power by himself. Therefore on deposing a heretical Pope, the Church would not act as superior to him, but juridically and by the consent of Christ she would declare him a heretic and therefore unworthy of Pontifical honors; he would then ipso facto and immediately be deposed by Christ…”.

       Notice that Suarez carefully navigates the famous axiom by saying that the Church does not act superior to the Pope, but only declares him a heretic and unworthy of the papacy, at which time Christ authoritatively deposes him.
       Commenting on this teaching of Suarez, Lane wrote:

       “Suarez’s idea that the Church could … ‘declare him a heretic’ is completely indefensible. After all, what else is a ‘juridical determination’ but a public judgment?”

       Mr. Lane obviously believes it is permissible for a private person to “judge” a Pope to be guilty of heresy and declare the “fact” publicly (as he and his fellow Sedevacantist have done with the recent Popes), but does not believe it is permissible for the Bishops to do so.  On the contrary, the Church does indeed have the authority to judge papal heresy (the matter of heresy), as well as the right to establish if the Pope is pertinacious - neither of which violate the axiom “the first see is judged by no one”.
       What the teaching of Suarez shows is that he was well aware of the famous axiom – which was later repeated (not invented) by Vatican I - and did not believe his position violated it; neither did any of the other theologians we quote in the book, as evidenced by the fact that they all refer to it.  Since Vatican I did not define the precise meaning of the phrase, but merely repeated the axiom itself, it cannot be said that the meaning the earlier theologians attributed to the phrase can no longer be held.
       These facts show how mistaken Mr. Derksen was to accuse the authors of True or False Pope? of  spilling “their ink advancing positions by Cajetan, Suarez, and John of St. Thomas, who wrote well over 200 years before the First Vatican Council, the teachings of which rendered their theories on deposing a Pope untenableas we already said.

Can the Church Judge Papal Heresy?

       That a Pope can be judged by the Church in the case of heresy (not authoritatively, but in the manner discussed above), is taught by Pope Innocent III (on two separate occaisions), and by the famous canon, Si Papa, dist. 40, which was a part of canon law for eight centuries. The famous canon, which comes from the twelfth century Decretum of Gratian (1150), reads:

       “Let no mortal man presume to accuse the Pope of fault, for, it being incumbent upon him to judge all, he should be judged by no one [i.e. ‘the first see is judged by no one], unless he is suddenly caught deviating from the faith.”

       This canon clearly teaches that heresy is the exception to the general rule, and this is how it has always been interpreted by the Church’s approved theologians. For example, John of St. Thomas wrote:

       “There is an agreement among the Doctors on the fact that the Pope may be deposed in case of heresy. A specific text is found in the Decree of Gratian, Distinction 40, chapter ‘Si Papa,’ where it is said: ‘On earth, no mortal should presume to reproach the Pontiff for any fault, because he who has to judge others, should not be judged by anyone, unless he is found deviating from the Faith’ (Pars I, D 40, c. 6). This exception obviously means that in case of heresy, a judgment could be made about the PopeThe same thing is confirmed by the letter of Pope Hadrian, reported in the Eighth General Council...”

       Pope Innocent III [d. 1216), who Fr. Cekada said was “one of the greatest canonists of his time,” teaches the same:

       “For me the faith is so necessary that, whereas for other sins my only judge is God [i.e. first see is judged by no one], for the slightest sin committed in the matter of the faith I could be judged by the Church.”

       Now, in case Mr. Derksen objects that these quotations are
from before Vatican I, we will quote a recent author whose authority we are sure he will accept – namely, his mentor, Fr. Cekada.  Before doing so, however, we should note that Fr. Cekada praised Mr. Derksen’s article, declaring it to be “dynamite demolition of True or False Pope”.  Here is a screen shot taken from Fr. Cekada’s twitter account.
       Now, we find this to be quite curious, since Fr. Cekada himself has argued that “the first see is judged by no one” does not preclude the Church from judging a pope in the case of heresy. In response to an article written by Chris Ferrara, Fr. Cekada argued that the famous axiom is merely 1) a procedural norm which exempts the Pope from coercive juridical power (e.g., summonses, appeals from his decisions, etc.), and 2) means the final decisions of the Pope on doctrinal and disciplinary matters are binding, and cannot be appealed to a general council.
       We will begin by quoting the words of Mr. Ferrara, followed by Fr. Cekada’s objection:

“5. FIRST SEE JUDGED BY NO ONE: “Prima Sedes a nemine iudicatur — no one may judge the First See… That no one may judge the Pope — that is, his personal sin of heresy as opposed to the heretical import of his words — is a fundamental truth of our religion…” (p.13.)

       In response, Fr. Cekada will provide: (A) the context of the maxim, (B) a canonical source for it, and (C) two papal quotes to support his position. Pay close attention to the canonical source and the Pope that Fr. Cekada quotes:

 “(A) ContextAny first-year canon law student knows that it says no such thing. The maxim “the First See is judged by no one” is incorporated into the Code of Canon Law as canon 1556. … which prescribes which ecclesiastical courts have jurisdiction to try which types of cases.

While it is true that the pope has the final say on doctrinal and disciplinary matters in the Church … the maxim itself merely means that there is no ecclesiastical tribunal before which one could summon the pope or to which one could appeal the pope’s final judicial decision.

Here is an explanation from a standard canon law manual:

‘Immunity of the Roman Pontiff. ‘The First See is judged by no one.’ (Canon 1556). This concerns the Apostolic See or the Roman Pontiff who by the divine law itself enjoys full and absolute immunity.” (Cappello, Summa Juris Canonici 3:19.) The judicial immunity of the pope was disputed in church history by partisans of Gallicanism and Conciliarism, who also maintained that a pope’s decisions could be appealed to a general council.’

The maxim ‘the First See is judged by no one’ is a procedural norm, then.

(B) Sources: One of the canonical sources for the maxim, the Decree of Gratian (ca. 1150) [i.e., Si Papa], reads as follows:

‘Whose sins [the pope’s] no mortal man presumes to rebuke, for he shall judge all and is to be judged by no one, unless he is suddenly caught deviating from the faith [nisi deprehendatur a fide devius].” (Decree, I, dist. 60 (sic), ch. 6.)”

       If anything, one can conclude from this the very opposite of what Mr. Ferrara maintains: defection from the faith is the one sin of a pope we are permitted to judge.

“(C) Papal Teaching: In two of his coronation sermons, Pope Innocent III (1198-1216) — considered one of the greatest canonists of his time — explained how a pope who falls into the sin of heresy is “judged.”

Without faith it is impossible to please God.… To this end faith is so necessary for me that, though I have for other sins God alone as my judge, it is alone for a sin committed against faith that I may be judged by the Church. [propter solum peccatum quod in fide commititur possem ab Ecclesia judicari.] For ‘he who does not believe is already judged’.”(Sermo 2: In Consecratione, PL 218:656)

‘You are the salt of the earth… Still less can the Roman Pontiff boast, for he can be judged by men — or rather he can be shown to be judged, if he manifestly ‘loses his savor’ in heresy. [quia potest ab hominibus judicari, vel potius judicatus ostendi, si videlicet evanescit in haeresim.] For he who does not believe is already judged.” (Sermo 4: In Consecratione, PL 218:670)

“A pope who commits the sin of heresy, then, can indeed be “shown to be judged.”

       Now, if we didn’t know any better, we might have guessed that Mr. Derksen’s mentor, Fr. Cekada, got the foregoing explanation straight out of our book, since that is pretty close to how we explained it, even if we use a little more nuance and provide a more thorough explanation.


       As we have seen, Vatican I repeated (not invented) the famous maxim that “the First See is judged by no one,” and its affirmation (not definition) of this ancient maxim obviously does not nullify the centuries old teaching that heresy is the exception to the rule. The maxim and the exception have always co-existed, and both have been quoted by Popes, canonists, and theologians going back to the earliest centuries of the Church. The theologians we quote in our book were all well aware of the famous maxim, and they were all careful to avoid violating it when they explained how the Church can oversee the deposition of a heretical Pope.
       In Part II, we will address the Second and Third Opinions of Bellarmine, and see that Bellarmine himself quoted Pope Innocent and the Canon Si Papa when defending that an heretical Pope can be judged by the Church.  We will also comment on a quotation from Billot, which Derksen cites in an attempt to show that Bellarmine did not mean what he explicitly said. We will show that Mr. Derksen has taken the quotation out of context (which he actually admits) and that it in no way suggests what he claims.