Written by John F. Salza, Esq.
Part One of a Two-Part Series
Part I – Part II
Now that it has been published (on November 14, 2016) that Pope Francis has refused to answer the dubia of the four Cardinals (Brandmüller, Burke, Caffarra and Meisner) issued to him on September 16, 2016 concerning his erroneous and even heretical teachings in Amoris Laetitia, many Catholics are wondering what happens next. Some may be tempted to jump the gun and declare, on their own authority, that Francis’ refusal to answer proves he is a formal heretic and thus has lost his office. Is that true? Does Francis’ refusal to answer the dubia mean he has “judged himself” a formal heretic? Does his refusal prove the element of pertinacity which is required for the crime of heresy and loss of office? No. Not yet. We have a way to go. But the canonical process that could eventually lead to a charge and conviction of the crime of heresy has indeed begun, and thus, we are no doubt entering into a very tumultuous time for the Church, as we approach the centenary of the Fatima apparitions.
A dubium is an official request for an authoritative and final response from the Holy See on a doctrinal, liturgical or canonical question. Dubia are customarily submitted by bishops to seek a definitive answer on a matter that pertains to the faithful in their diocese and the exercise of their apostolic ministry. It is not an accusation of heresy, and thus a Pope’s refusal to respond to a dubia, as extraordinary as that may be, does not establish the element of pertinacity necessary for the crime of heresy. Even in the secular legal process, one must be charged with a crime before he can be found guilty of it. That goes without saying.
We might recall that John Paul II did not directly respond to Archbishop Lefebvre’s dubia, submitted in October 1985 concerning Vatican II’s erroneous teaching on religious liberty in Dignitatis Humanae, and it took the Congregation for the Doctrine of the Faith a year and a half to issue a response (and which did little more than affirm the council’s teaching). For those who argue that Francis’ three month absence of a response proves his pertinacity and convicts him of heresy (even though the canonical norm for replying actually grants six months), does that mean John Paul II also lost his office after his three months of silence? What about his six months of silence? What about his year of silence? Or what about after the Congregation’s tardy response failed to reconcile Dignitatis Humanae’s novel teachings with Quanta Cura and the Syllabus of Errors?  These rhetorical questions underscore that a Pope’s failure to respond to a dubia does not prove him guilty of the canonical crime of heresy. That is because the Church has another means by which the crime of heresy is established: They are ecclesiastical warnings.
The Pope Must Be Formally Warned by Church Authorities
Ecclesiastical warnings are issued by the Cardinals (who are the next highest authorities in the Church), which accuse the suspect of heresy and require him to respond with a correction of his errors within six months.This is what Cardinal Burke was referring to in his interview with the National Catholic Register when he said: “There is, in the Tradition of the Church, the practice of correction of the Roman Pontiff. It is something that is clearly quite rare. But if there is no response to these questions, then I would say that it would be a question of taking a formal act of correction of a serious error.” If the Pope would fail to respond to these warnings, the Church would presume that the Pope is incorrigible and hardened in his heresy.
As we explain in detail in our book True or False Pope?, the Church’s ability to warn and ultimately judge a Pope for heresy by establishing his pertinacity was taught by Pope Innocent III, Pope Adrian, St. Bellarmine, Francisco Suarez, John of St. Thomas, the famous Decretal Si Papa, and others, and remains the common teaching of the Church’s Doctors and theologians. Establishing a Pope’s pertinacity is more difficult than judging the matter of heresy (e.g., the teachings), because it involves something that exists within the internal forum (the realm of conscience). If a person does not openly leave the Church, or publicly admit that he knowingly rejects what the Church definitively teaches on faith or morals (neither of which Francis has done), pertinacity would need to be established another way. The other way, according to Divine law and canon law, is by issuing an ecclesiastical warning to the suspect or, as Cardinal Burke described it, a “formal act of correction.”
An ecclesiastical warning serves as an effective means for establishing pertinacity, since the response will determine, with a sufficient degree of certitude, whether or not the person who has professed heresy (not a lesser error) is truly pertinacious (he is consciously departing from a dogma of Faith), rather than merely mistaken – which still might be a sin, but not necessarily the sin of heresy. Because pertinacity is itself a necessary element of heresy, it does not suffice that its presence be presumed, especially by Catholics with no ecclesiastical authority; it must beproven, and by the Church’s authorities. The ecclesiastical warnings accomplish this by removing any chance of innocent ignorance.
This is why St. Robert Bellarmine said that a cleric “shows himself to be manifestly obstinate” in his heresy by virtueof the two warnings. Wrote Bellarmine:
“For, in the first place, it is proven with arguments from authority and from reason that the manifest heretic is ipso facto deposed. The argument from authority is based on Saint Paul (Titus, 3:10), who orders that the heretic be avoided after two warnings, that is, after showing himself to be manifestly obstinate…”
In his Commentary on St. Paul’s Epistle to Titus, St. Thomas Aquinas confirms that the admonitions spoken of in Titus 3:10 come from official, ecclesiastical authority, and not from any Catholic in the pew. Speaking of a person who has deviated from the Faith, St. Thomas wrote: “Such a person should be warned, and if he does not desist, he should be avoided. And he [the Apostle] says, after the first and second admonition, for that is the way the Church proceeds in excommunicating.”
In the Summa, St. Thomas confirms the same point when he notes that “the Church” condemns, not at once, but after the first and second warning, according to the teaching of St. Paul. He wrote:
“On the part of the Church, however, there is mercy which looks to the conversion of the wanderer, wherefore she condemns not at once, but ‘after the first and second admonition,’ as the Apostle directs: after that, if he is yet stubborn, the Church no longer hoping for his conversion, looks to the salvation of others, by excommunicating him and separating him from the Church, and furthermore delivers him to the secular tribunal to be exterminated thereby from the world by death.”
In a 1909 article published in The American Catholic Quarterly Review, Fr. Maurice Hassett also confirmed that the admonitions spoken of by St. Paul must come from the proper ecclesiastical authorities:
“From the earliest Christian times heresy was universally regarded as the most heinous of sins. The heretic, St. Paul instructs Titus, shall be admonished a first and a second time of the grave character of his offense; if he will not heed, he must be avoided by Christians as a man in evident bad faith, who stands self-condemned – Titus 3:10. (…) Heretics were consequently cut off from all association with the faithful, who must hold no relations with them so long as they obstinately refuse to heed the official remonstrances of the Church authorities.”
Thus, in order to establish pertinacity (that the heretic is “manifestly obstinate”), canon law requires that the Churchissue warnings to a prelate before he is deposed for the crime of heresy. As Bellarmine indicates, this aspect of canon law is founded upon Divine law, as revealed in Scripture (cf. Tit. 3:10), and is considered so necessary that even in the extreme case in which a cleric publicly joins a false religion (which Francis has also not done), he must be duly warned by the Church before being degraded. Because the Church has no authority over the Pope, these warnings do not constitute an act of jurisdiction (as they would for other Catholics), but only an act of charity, as St. Thomas teaches in regard to fraternal correction. Although the Pope is not subject to the positive law of the Church, because these warnings are rooted in Divine Law, and are afforded to lesser clerics in the hope of their amendment, they most certainly are afforded to the Vicar of Christ, both as a matter of justice as well as under the philosophical principle omne majus continet in se minus – “the greater includes the lesser.”
In fact, Cajetan says that it is because a Pope is not subject to canon law that ecclesiastical warnings are absolutely necessary for him before being declared a heretic. He explains that because other heretics may automatically incurlatae sententiae excommunication (the censure) by operation of canon law (to which the Pope is not subject), it is not absolutely necessary for the Church to issue warnings to these before declaring them excommunicated.However, because the Pope is not subject to the ecclesiastical censure, the teaching of St. Paul to Titus should logically be followed to the letter. In Cajetan’s own words:
“The second consequence is that a heretic pope should not be deposed before the admonitions: for he is not excommunicated on account of heresy, but should be excommunicated by being deposed. Therefore, the apostle’s command concerning the double admonition, which need not be observed [to the letter] in the case of others, who are inferiors, on account of the addition of excommunication latae sententiae, which the Church imposes on heretics, should be observed to the letter with him.”
The renowned eighteenth century theologian, Fr. Pietro Ballerini, who subscribed to Bellarmine’s famous Fifth Opinion on a heretical Pope, explains how the warnings would serve to demonstrate pertinacity for a reigning Pope who publicly professed heresy, as well as who exactly in the Church would be responsible for issuing them, and the effect that they would produce:
“Is it not true that, confronted with such a danger to the faith [a Pope teaching heresy], any subject can, by fraternal correction, warn their superior, resist him to his face, refute him and, if necessary, summon him and press him to repent? The Cardinals, who are his counselors, can do this; or the Roman Clergy, or the Roman Synod, if, being met, they judge this opportune. For any person, even a private person, the words of Saint Paul to Titus hold: ‘Avoid the heretic, after a first and second correction, knowing that such a man is perverted and sins, since he is condemned by his own judgment’ (Tit. 3, 10-11). For the person, who, admonished once or twice, does not repent, but continues pertinacious in an opinion contrary to a manifest or defined dogma – not being able, on account of this public pertinacityto be excused, by any means, of heresy properly so called, which requires pertinacity – this persondeclares himself openly a heretic. He reveals that by his own will he has turned away from the Catholic Faith and the Church, in such a way that now no declaration or sentence of anyone whatsoever is necessary to cut him from the body of the Church. Therefore the Pontiff who after such a solemn and public warning by the Cardinals, by the Roman Clergy or even by the Synod, would remain himself hardened in heresy and openly turn himself away from the Church, would have to be avoided, according to the precept of Saint Paul. So that he might not cause damage to the rest, he would have to have his heresy and contumacy publicly proclaimed, so that all might be able to be equally on guard in relation to him. Thus, the sentence which he had pronounced against himself would be made known to all the Church, making clear that by his own will he had turned away and separated himself from the body of the Church, and that in a certain way he had abdicated the Pontificate…”
Thus, before Pope Francis could be considered a public heretic, he would have to be issued “a first and second correction” (warnings) by “the Cardinals” (or other official Church authority, such as a “Roman Synod”), and would then have to “continue pertinacious in an opinion contrary to a manifest or defined dogma” after at least six months (such as his material heresies that no one is condemned forever or that intrinsically evil acts admit of exceptions). Because these warnings are public and issued by the proper authorities, a refusal to heed them would establish “public pertinacity” which is necessary to convict someone of public (that is, the crime of) heresy. That means we have a way to go with Pope Francis, because the authorities have not even issued the first warning. Not yet.
In the next installment, we will address what happens if the Cardinals issue the requisite warnings to Pope Francis and he still refuses to respond or fails to correct his errors.
Originally published at The Remnant. Reprinted with permission.
 I have a copy of the CDF’s March 9, 1987 reply which conspicuously fails to reconcile Dignitatis Humanae’s teaching with the perennial teaching of the Church. Furthermore, the Congregation admits the possibility of further study of the problem (“…demeure la possibilité d’une étude ultérieure de ce problème…”). If such matters were left to private judgment, one could have “convicted” of John Paul II for his failure to respond to Archbishop Lefebvre’s dubia.
As we read from Fr. Augustine’s commentary on canon law: “If, after the lapse of six months, to be reckoned from the moment the penalty has been contracted, the person suspected of heresy has not amended, he must be regarded as a heretic, amenable to the penalties set forth in canon 2314. Whilst the penalties enumerated under (b) are ferendae sententiae, to be inflicted according to can. 2223, 3, the penalties stated under (c) are a iure and latae sententiae.” Augustine, A Commentary on the New Code of Canon Law, vol. VIII, bk. 5, pp. 288-289. Fr. Henry Ayrinhac also notes: “A cleric should receive a second warning, and if this too remained fruitless he should be suspended a divinis. After inflicting these punishments, six months more may be allowed, and if at the end of this time the party suspected of heresy has shown no signs of amendment, he is to be considered as a heretic and punished accordingly.”
 Bellarmine wrote: “Firstly, that a heretical Pope can be judged is expressly held in Can. Si Papa dist. 40, and by Innocent III (Serm. II de Consec. Pontif.) Furthermore, in the 8th Council, (act. 7) the acts of the Roman Council under Pope Hadrian are recited, in which one finds that Pope Honorius appears to be justly anathematized, because he had been convicted of heresy…” (De Romano Pontifice, bk. 2, ch. 30).
 “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, unless he is suddenly caught deviating from the faith”(Si Papa Dist 40). Latin found in Brian Tierney, The Crisis of Church and State (Englewood Cliffs, New Jersey: Prentice-Hall, 1964), p. 124.
 De Romano Pontifice, bk. 2, ch. 30.
 ST, II-II, q. 11, a. 3, sed contra. As we can see, contrary to the teachings of Pope Francis, St. Thomas also affirms the justice of capital punishment to the extent it is in proportion to the severity of the crime (and the death penalty is proportionate to the crime of harming “the salvation of others”). See, for example, ST, II-II, q. 11, a. 3; q. 64, a. 3; Gen. 9:6; Lk 19:27; Rom 13:4.
 Hassett, “Church and State in the Fourth Century,” published in The American Catholic Quarterly Review, vol. 34, January – October, 1909, pp. 301-302.
 Canon 2314.1-2 says: “All apostates from the Christian faith and each and every heretic or schismatic: Unless they respect warnings, they are deprived of benefice, dignity, pension, office, or other duty that they have in the Church, they are declared infamous, and [if] clerics, with the warning being repeated, [they are] deposed.”
 “A cleric must, besides, be degraded if, after having been duly warned, he persists in being a member of such a society (non-Catholic sect). All the offices he may hold become vacant, ipso facto, without any further declaration. This is tacit resignation recognized by law (Canon 188.4) and therefore the vacancy is one de facto et iure (by fact and by law).” Augustine, A Commentary on the New Code of Canon Law, vol. 8, bk. 5, p. 280 (emphasis added).
 On whether a man is bound to correct his prelate, St. Thomas teaches: “A subject is not competent to administer to his prelate the correction which is an act of justice through the coercive nature of punishment: but the fraternal correction which is an act of charity is within the competency of everyone in respect of any person towards whom he is bound by charity, provided there be something in that person which requires correction.” ST, II-II, q. 33, a. 4.
 Here we can think of certain Catholic politicians who openly acknowledge and defy Catholic teaching (e.g., abortion) to the world, thereby establishing their pertinacity as notorious by notoriety of fact. As non-clerics, their excommunication may be recognized by the Church without the need for ecclesiastical warning or censure.
 “Neither is it always demanded in the external forum that there be a warning and a reprimand as described above for somebody to be punished as heretical and pertinacious, and such a requirement is by no means always admitted in practice by the Holy Office” (De Lugo, disp. XX, sect. IV, n. l57-158, cited in “Essay on Heresy,” by Arnaldo da Silveira).
 De Comparatione Auctoritatis Papae et Concilii, p. 103.
 See Silveira, “La Nouvelle Messe de Paul VI: Qu’en penser,” p. 168.
 De Potestate Ecclesiastica, (Monasterii Westphalorum, Deiters, 1847) ch. 6, sec. 2, pp. 124-125 (emphasis added).