In a time where the ordinary structure and functioning of the Catholic Church has disappeared, much of what was once quite clear has become difficult to understand, specifically in how to apply the laws of the Church, which were written for times very different than ours. The Church, being guided by God, foresaw such circumstances, and a principle of Church Law known as epikeia exists which allows us to understand the application of Canon Law in our times. Once understood, and seen in the proper light, it is clear that this principle plays a key role in determining how us few remaining Catholics ought to act in our difficult circumstances. Of utmost importance, then, is for us to understand what the principle of Epikeia is, how it has historically been applied, and how it relates to our situation.
Epikeia, or “equity,” is a principle of the Church as regards the proper understanding of Church Law. St. Thomas Aquinas, the Angelic Doctor, explains it thus in the Summa Theologica:
As stated above (I-II, 96, 6), when we were treating of laws, since human actions, with which laws are concerned, are composed of contingent singulars and are innumerable in their diversity, it was not possible to lay down rules of law that would apply to every single case. Legislators in framing laws attend to what commonly happens: although if the law be applied to certain cases it will frustrate the equality of justice and be injurious to the common good, which the law has in view. Thus the law requires deposits to be restored, because in the majority of cases this is just. Yet it happens sometimes to be injurious–for instance, if a madman were to put his sword in deposit, and demand its delivery while in a state of madness, or if a man were to seek the return of his deposit in order to fight against his country. On these and like cases it is bad to follow the law, and it is good to set aside the letter of the law and to follow the dictates of justice and the common good. This is the object of “epikeia” which we call equity. Therefore it is evident that “epikeia” is a virtue.
Another explanation is given here:
Canon Law a Text and Commentary, by Bouscaren and Ellis, commentary on Canon 18 (hereafter called CTC) : “Epikeia is an interpretation exempting one from the law contrary to the clear words of the law and in accordance with the mind of the legislator. It is evidently a very exceptional thing. It may be used with prudent discretion, and is justified, only in a particular case where: a) the strict interpretation of the law would work a great hardship; and b) in view of the usual interpretation it may be prudently conjectured that, in this particular case, the legislator would not wish the law to be strictly applied.”
Epikeia, which St. Aquinas describes as a virtue, is essentially to follow the spirit of the higher laws which exist before and beyond those codified laws which are written for the common good. The legislators of Canon Law, for instance, never intended the application of Canon Law to be injurious to the common good of the Church itself or the salvation of souls, which are the highest priority of the Church.
This principle applies not only to human laws, but also to Church Law, even those aspects of it which are Divine Law:
The History, Nature, & Use of Epikeia in Moral Theology, by Fr. Lawrence Joseph Riley (hereafter called HNUE): “Salmanticenses. According to the opinion of the Salmanticenses, epikeia may be used, with regard not only to human law, but also to divine positive law. The basic reason for their view arises from the fact that they believe that divine positive law, like human law, may be deficient owing to the universality of its expression, and hence require correction by epikeia. Furthermore, it is not necessary to suppose, as a basis for epikeia, the lawgiver’s limitation of knowledge which prevented his foreseeing all possible cases. This condition obviously can apply only to human legislators. But, it is quite possible—and for this statement the Salmanticenses cite the Angelic Doctor—that in order to avoid prolixity and confusion in his law, the legislator was unwilling to express in particular all the cases he wished to exempt, even though actually he foresaw them. That this is the situation which is verified in the case of divine positive laws the Salmanticenses strongly maintain. For God well understood that making use of the virtue of epikeia, men could correct a universal or general law when the occasion presented itself, and could interpret His Will in accordance with circumstances as they arose. In support of this position, the Salmanticenses allege the instances of David’s partaking of the loaves of proposition, and the Machabees’ interpretation that they were not obliged to observe the Sabbath by abstaining in all circumstances from the shedding of blood.”
As can be seen, it is well established that the following of the strict letter of the law, when actually injurious and contrary to the intention of the lawgiver, is actually an evil thing, and can in fact be sinful, as in the case mentioned by St. Thomas Aquinas above. The question does remain, however, as to when epikeia can be applied, which is also addressed in these same works:
HNUE: “In cases where it is certain that the lawmaker would be unwilling to urge obligation, epikeia may always be used without recourse to authority; in cases of doubt, an authority with power to dispense must be consulted if time allows, otherwise the words of the law are to be observed; in cases of probability, an authority must be resorted to; but if this is impossible, epikeia may be used.”
In our present circumstance, recourse to authority is not generally going to be an option, naturally. Therefore we can establish a fair rule regarding the application of epikeia: if it is certain or probable that following the law would be contrary to the lawgiver’s intention, then we may apply the principle of epikeia. If it is doubtful, however, we ought instead to follow the letter of the law.
When it comes to the practical application of epikeia, we have many instances in the past which we can use as a guide. These historical examples show us that even when the law seems explicit and clear, and clearly for the common good, it can at times be injurious and therefore must be disregarded. Note that this is not a judgment on the law itself, when epikeia is applied, but merely of its particular application in an unforeseen circumstance. The law itself still stands, and would naturally still apply whenever ordinary circumstances prevailed.
A good example of epikeia is provided by the declarations on marriage from the Council of Trent. The declaration Tametsi, by the Council, stated that marriages without a priest present were de facto null and void:
Council of Trent, “Tametsi,” On the reformation of matrimony, Session 29, Chapter 1, 1563: “Those who shall attempt to contract marriage otherwise than in the presence of the parish priest, or of some other priest by permission of the said parish priest, or of the Ordinary, and in the presence of two or three witnesses; the holy Synod renders such wholly incapable of thus contracting and declares such contracts invalid and null, as by the present decree It invalidates and annuls them.”
This law, being from the great Ecumenical Council of Trent, was naturally binding upon all the faithful; however, if the letter of the law were to be followed in all cases, this leaves certain individuals in an impossible bind. What of those faithful who live in lands where they have no access or recourse to a priest, where the option will simply not present itself, and they have no means of traveling to one? In following the letter of the law, these people would simply be deprived of the ability to marry altogether, something clearly contrary to the will of the Church and Her lawgivers:
HNUE: “Now, it cannot be denied that in some instances invalidating laws, if they should continue to be possessed of obligating force, would despot certain subjects of basic human rights. Suppose, for example, that, in a region where the regulations of the Council of Trent regarding clandestine marriages had been promulgated, all the priests had been slain because of a persecution of the Church. If there was no possibility of any priests re-entering the territory for an indefinitely long period, then to insist upon the binding force of the decree Tametsi would be equivalent to the confiscation of the natural right to marry.”
The Council intended something entirely different than to deprive certain Catholics in persecuted lands from marrying – of this there can be no doubt. Yet it was not until 1625 that the Holy Office addressed this issue:
The Holy Office, Common Law Marriage, 1625: “If it should eventuate that two Catholics desirous of marriage should not be able to find a parish priest or bishop within their reach, and such a condition were to last for a month, in such cases consent expressed before two witnesses would suffice for a valid marriage (S.C. de Prop. Fide, 13 iun., 1625—Ius Pontificium, I, pars 2 n. 15.).”
Are we to believe, then, that from 1563 until 1625, a period of 62 years, that no marriage between two Catholics in these persecuted lands was valid, that these people were left without recourse to one of the most basic God-given rights: the right to marry? Are we to believe that the Catholics in such regions were so bound by the letter of the law that they ought to have allowed the populations of Catholic faithful to simply die off (for without marriage, there cannot be procreation among good Catholics) rather than disobey the literal wording of the Council of Trent? Of course not.
Here is a prime example of how the principle of epikeia ought to be applied: the literal rendering of the Church’s laws placed certain people in such a circumstance that it deprived them of their God-given right to marry, of those Divinely-ordained duties the Church promotes so vehemently. So it is clear, then, that even though they disobeyed the literal rendering of the words of the Council, they were in fact following God’s will, and the spirit of the Law, of the primary intentions of the Church, and doing what was holy and just.
This is of paramount importance. The Church has duties and principles which are its primary purpose for existing. The most primary of these is the salvation of souls. From this principle, many other elements – namely those necessary for the creation, continuance, growth, strengthening, and sanctification of the faithful – are seen to be the principles held most dear to the Church. Any law, therefore, that in certain applications would deprive the faithful of these necessary elements for the salvation of souls and the sustainment of Catholic communities, ought to be disobeyed, out of a devotion to the higher principles, the most basic principles, of the Church.
Another, far more relevant example applies as well: from 1268 until 1271, there was no Pope; the college of cardinals could not agree on a successor for 3 years. During that period, twenty-one vacancies occurred in diocese around the world. In opposition to the literal wording of the law, those 21 sees were filled by bishops consecrated and placed in position without a papal mandate (seeing as none was possible at the time). When Blessed Gregory X was finally elected on September 1, 1271, he both condoned this action and recognized the lawful jurisdiction of each of the twenty-one elected.
Why is this? Because they were following the higher law of the Church, the Supreme Law of Salvation, which must always be obeyed, even if it contradicts the literal rendering of Canon Law. We see here in this case, something of great importance. Jurisdiction to a particular diocese is supplied directly by the Pope, and yet we see clearly that jurisdiction was supplied to individual bishops when there was no Pope. What is the explanation?
Again, we must have recourse to the intention of the lawgivers, and above all to the Supreme Law of Salvation of the Church. Jurisdiction was clearly supplied to bishops consecrated and elevated to sees during an interregnum, because the Church needed it, essentially. Epikeia allowed for those bishops to be supplied jurisdiction because of the need presented to the Church. If the salvation of souls is the Supreme Law of the Church, and the continuation of the clergy is necessary for the reception of the Sacraments (the primary means of salvation themselves), then the Church will supply jurisdiction to those who cannot ordinarily obtain it, such as during an interregnum.
Let us take a hypothetical: let us say that after those bishops were appointed, there was an assault on the Vatican, and all the Cardinals were killed, causing the interregnum to last, for one reason or another, 200 years. Would not the same principle that applied to the appointment of those twenty-one bishops during an interregnum apply to the appointment of all of the other diocese (which, over 200 years, would all also need to be filled, multiple times)? If the principle applied in a case of 3 years, why would it not apply in the case of 200?
In our case, there was an interregnum, and virtually every diocese ended up vacant on account of virtually all bishops falling into heresy (through their consent of Vatican II, if they were not heretics earlier). If some bishops, however, remained, the same principle would apply: they would be able to consecrate and appoint bishops to fill the emptied sees during the interregnum, and when a new Pope was elected, he could confirm those appointments.
We see that epikeia, then, does supply jurisdiction, and even ordinary jurisdiction, because it has, as a matter of historical fact, done so in the past. Anyone who denies that it can do so simply denies the historical facts of its application in the Church, which was approved by Pope Blessed Gregory X. We see that epikeia holds us to the Supreme Law of Salvation, of the preservation and growth of the Church, of the salvation of souls, above whatever codified laws exist (when those codified laws contradict the essential purpose for which they were framed in certain circumstances).
Let us say, for a moment, that the principle of epikeia does not apply in these circumstances, and follow the letter of Canon Law with such rigidity that no exception, however legitimate, is allowed. We run into a number of problems.
First of all, Mr. Patrick Henry, who is opposed to such exceptions, would not himself be allowed to publish the very articles he has written:
Canon 1384. The Church has the right to demand that Catholics shall not publish any books without first submitting them for her judgment and approval, and to forbid for a good reason the reading of books published by anyone. Whatever is prescribed under this title regarding books, shall be applied also to newspapers, periodicals, and all other published writings, unless the contrary is certain.”
“Canon 1385, §1. Without previous ecclesiastical approval, even laymen are not allowed to publish: (1) the books of Sacred Scripture, or annotations and commentaries on the same: (2) books treating of Sacred Scripture, theology, church history, canon law, natural theology, ethics, or other religious or moral sciences… Canon 1385, §2. The permission to publish books…may be given either by proper local Ordinary of the author, or by the local Ordinary of the place where the books… are published, or the local Ordinary of the place where they are printed… Religious authors must also obtain the permission of their major superior before publication.”
As a layman, he would not be allowed to publish these works without approval, which he does not believe he can receive from any Traditional Catholics. Yet he allows for epikeia to apply, evidently, in his own case, while not allowing it in a case where it has been historically demonstrated and Papally approved?
Any priest who remained, who was faithful, but lost his bishop to heresy, would not be allowed to preach. And since that would be a universal or near-universal case, then essentially no priest would be allowed to preach:
Pope Gregory XVI, Mirrari Vos: “8. …Nor may the priests ever forget that they are forbidden by ancient canons to undertake ministry and to assume the tasks of teaching and preaching without the permission of their bishop.”
Is this truly what the Church of Christ desires? When its laws were set down, were they set with such an intention of severity that God would rather no priest on earth preached the Faith (and no laymen either, as we saw above) than violate what was codified for general and very different circumstances?
Next, we see what is one of the strongest proofs that epikeia applies in a broad sense to our times; for without applying epikeia, no one in these days would even be able to convert and enter the Catholic Church!
The Delict of Heresy: “Absolution from Heresy – …The heretic must make reparation from the scandal given by his delict by endeavoring to arrest the activities of teachers of heresy. To this end, he must denounce any such persons that he knows. Also, he must make known any Catholic clergy who were accomplices in his delict. Finally, he must recant his heresy and make this known to those who heard him manifest his doubts or denials of revealed truth. These denunciations and recantations must either precede the absolution, or else must be seriously promised by the penitent. Secondly, the penitent must abjure his erroneous tenets in the presence of the Bishop or the priest who absolves him. …The Roman Ritual provides a formula of abjuration and profession of Catholic faith which is designed especially for converts. Delinquent Catholics would be held to make a more specific abjuration of the particular error which was involved in their delict. The essential necessity is that the delinquent abjure his particular error, and profess full belief in the opposite Catholic dogma, together with a sincere acceptance of the doctrinal authority of God and of the Church.”
Without a bishop or a priest to absolve him, he could not abjure from these heresies, and therefore could not enter the Church at all. Is this, again, what God wants? Or does He desire that we prescribe first and foremost to the first principle of the Church, the Supreme Law of Salvation?
Again we see that by Canon Law, strictly followed, the Holy Orders themselves could not continue in these times, when there is no Pope:
“Canon 2370. The bishop who, contrary to canon 953, confers episcopal consecration and the assistant bishops or the priest taking their place, as well as the one who receives episcopal consecration without having obtained an Apostolic Mandate, are suspended ipso jure until the Holy See has granted a dispensation.”
This is the very law (albeit codified in the 1917 Code of Canon Law here) which those twenty-one bishops in the past violated when they were consecrated during the interregnum. And if followed strictly today, even if there are Catholic bishops, they are not able to lawfully consecrate other Catholic bishops, guaranteeing the extinction of the Catholic clergy, of the Holy Orders began by Christ Himself, within a generation. Can any sincere Catholic believe that this is what God desires – the extinction of the Holy Orders, simply because of a specific Canon written 90 years ago which was intended for far different circumstances?
By strict adherence to these laws, without epikeia, not even repentant clergy could re-enter the Church and resume their duties:
“Canon 2372. Reception of Orders from Unworthy Prelates: All persons who presume to receive orders from a prelate who has been excommunicated, suspended, or interdicted by a declaratory or condemnatory sentence, or from a notorious apostate, heretic, or schismatic, automatically incur suspension a divinis reserved to the Apostolic See. Any person who has been ordained in good faith by such a man forfeits the right to exercise the order thus received until he obtains a dispensation from the prohibition.”
They are suspended and unable to have such a suspension lifted except by the Holy See, which is empty for an unknown length of time. Again, I ask, is this God’s intentions, His plan for His Church, that She would have codified herself unto extinction, denying any of the faithful of ever having the opportunity of receiving the Sacraments, destroying any chance that the hierarchy which He instituted could ever be restored, simply because of a strict interpretation of of general laws?
I submit that the very idea is itself heresy:
“Therefore, just as He (Christ) sent the Apostles, whom He had chosen for Himself out of the world, as He Himself was sent by the Father (John 20:21), so also He wished shepherds and teachers to be in His Church until the consummation of the world” (Matt. 28:20) (First Vatican Council)
“Between Christ and those that are of Christ, that is the Church, for ascending to Heaven He left them on earth; between the Church and the end there is no interval, since it was to last until the end…whoever then is rash enough to say that the Church is dead, calls into question the goodness, diligence, and wisdom of this great Reformer [Christ].” – St. Frances de Sales
“Shall it be necessary again to sow the good seed, whereas from the time of its sowing it is to grow till the harvest? If you say that what the Apostles sowed has everywhere perished, we answer to you: read this to us from the Holy Scriptures: this you shall never do without having first shown us that this is false which is written, saying, that the seed which was sown in the beginning should grow till the time of the harvest… say not then that the good seed is destroyed or choked, for it grows even to the consummation of the world.” – St. Augustine
“The fold of Our Lord is to last till the consummation of the world, in visible unity: the unity then of external government must remain in it, and nobody has the authority to change the form of administration save Our Lord who established it. All this has been well proven above, and it follows therefrom that St. Peter has had successors, has them in these days, and will have them even to the end of the ages.” – St. Francis de Sales
It is a clear, consistent teaching of the Church that She must exist, both with believers and with her external government (though certainly not with every position filled at all times), until the end times, a teaching which was declared De Fide at the First Vatican Council. Anyone who then claims that, on account of strict interpretations of Canon Law, the Church’s hierarchy is permanently and irrevocably destroyed, is a heretic.
The Supreme Law of Salvation, that very dictum of the Church which is its mandate and purpose, is the source of the principle of epikeia. It is the notion that God’s higher laws, His mission for the Church itself, takes priority over any individual, codified law, when that law runs contrary to the core mandate of the Church.
It is abundantly clear in the case of all of these laws – those denying heretics to re-enter the Church, those preventing clergy from conversion, those that prevent under any circumstances any clergy from performing any of the Sacraments or having any jurisdiction, those that prevent laymen in desperate times from defending the Faith, those that prevent even priests from preaching – were for a time and a circumstance not our own, and that they directly damage that Law above laws, the mandate of the Church to save souls. It is therefore irrefutable that the principle of epikeia apply to them.
It has been proven historically that jurisdiction is and can be supplied by the Church to bishops elected and appointed during an interregnum. One can naturally infer the same principle to then apply to priests in areas where no bishop is available. We are in an interregnum and in dire need of bishops, priests, and guidance. The conclusion, then, is inescapable: such individuals are supplied by the Church with the necessary jurisdiction to act for the faithful.
Now, whether they are supplied ordinary jurisdiction so as to function like an ordinary diocese, or the supplied jurisdiction given in certain cases, or the Papal jurisdiction given to missionaries in lands without any formal Catholic hierarchy, (for we certainly cannot consider these places as ordinary Catholic lands anymore) I don’t know.
Determining the details of that would take a lot of time, effort, and was not the goal of this essay. The goal was to demonstrate that, through epikeia, those traditionalist Catholics operating around the world have supplied jurisdiction to administer to the faithful. And that, I believe, is quite clear.
Concerning Canons 1258 and 2261
On a related issue to receiving the Sacraments in these days is a proper interpretation and application of Canons 1258 and 2261. The principle of epikeia, in fact, does not even normally need to be invoked for the reception of the Sacraments from priests, even those who are excommunicated:
“Canon 2261, §2. Except as provided in 2261.3, the faithful can for any just cause ask for sacraments or sacramentals of one who is excommunicated, especially if there is no one else to give them; and in such cases the excommunicated person so asked may administer them and is not obliged to ask the reason for the request.”
This canon, so wisely added to the 1917 Code, makes it clear that for those of us who lack any other option, Catholics may receive the Sacraments from the excommunicated by supplied jurisdiction, especially if there is no one else to give them.
Some, however, come to issue with this canon in its practical application on account of Canon 1258, which explicitly condemns the faithful from having any participation in the worship of non-Catholics. The excommunicated, however, are not considered non-Catholics. But what of the reception of the sacraments from an heretical priest?
Canon 1258 specifically refers to attending worship services that are non-Catholic in nature, and not simply services that non-Catholics happen to attend. A certain quote from Cardinal De Lugo, may help. Cardinal de Lugo, who was a prominent theologian of the 17th century, and was oft-quoted by St. Alphonsus, addresses this very issue:
“The second chief doubt is whether we may communicate with an undeclared heretic only in civil and human affairs or even in sacred and spiritual things. It is certain that we cannot communicate with heretics in the rites proper to a heretical sect, because this would be contrary to the precept of confessing the faith and would contain an implicit profession of error. But the question relates to sacred matters containing no error, e.g. whether it is lawful to hear Mass with a heretic, or to celebrate in his presence, or to be present while he celebrates in the Catholic rite, etc.
“But the opposite view [i.e. that attendance at such a Mass is lawful] is general [communis] and true, unless it should be illicit for some other reason on account of scandal or implicit denial of the faith, or because charity obliges one to impede the sin of the heretical minister administering unworthily where necessity does not urge. This is the teaching of Navarro and Sanchez, Suarez, Hurtado and is what I have said in speaking of the sacrament of penance and of matrimony and the other sacraments. It is also certain by virtue of the said litterae extravagantes [i.e. Ad evitanda scandala] in which communication with excommunicati tolerati is conceded to the faithful in the reception and administration of the sacraments.
“So as these heretics are not declared excommunicates or notoriously guilty of striking a cleric, there is no reason why we should be prevented from receiving the sacraments from them because of their excommunication, although on other grounds this may often be illicit unless necessity excuse as I have explained in the said places.” (Cardinal John de Lugo S.J. (1583-1660), Tractatus de Virtute Fidei Divinae: Disputatio XXII, Sectio . According to The Catholic Encyclopedia, St. Alphonsus regarded Cardinal de Lugo as second only to St. Thomas as a theologian.)
As is made quite clear by Cardinal de Lugo, the condemnation in Canon 1258 is a condemnation of participation in worship services that are non-Catholic in nature – that is, that are composed of non-Catholic rites (the Novus Ordo rites, for instance). This means that, if properly understood, Canon 1258 does not prevent Catholics from attending the services of an excommunicated or even heretical priest, at least in principle, and Canon 2261 can apply in such cases.
So even according to the law itself, without invoking epikeia (when issues of jurisdiction have been settled at least, or of consecration, etc.), it is clear that Catholics can attend such services, according to the conditions set down here by Cardinal de Lugo.
Concerning the Writings of Patrick Henry
Mr. Henry’s approach is very scattershot, and that presents a lot of problems in trying to address his writings in a point-by-point fashion. I thought it prudent instead to write a positive position paper than try to address everything that he mentions. However, I will say this: one can easily be misled and take everything that he says in his writings as true simply because he states it.
For instance, he states, as though it were an established fact, that epikeia never supplies jurisdiction when it is lacking, that its nature is purely negative. As I demonstrated in the case of the 21 bishops elected during an interregnum, that is simply not the case. This means that his understanding of epikeia as a concept is faulty, and that therefore some of the arguments which he derives from that supposedly established point are de facto null and void.
I don’t have the time nor the inclination to go through everything in his rather meandering work, but the example concerning the nature of epikeia is enough to call into question his entire approach to the issue. What could be more fundamental, after all, than an understanding of whether jurisdiction can be applied via epikeia in a time like this?
His lack of understanding on so fundamental a matter would lead me to conclude that reading his – for lack of a better word, rantings – may in itself just not be a good idea. Their scattershot format alone will only breed confusion, because he’s making no attempt to propose a comprehensive view of the issue, but instead simply criticize the statements of others. He makes certain points which are correct (the whole distinction between the Roman Pontiff and the Supreme Pontiff argument is patently absurd, as he shows), but I think that only adds to the confusion his work generates.
If he does have a desire to propose an actual view of the matter, in a way that can be analyzed and approached in a scholarly manner, proposing individual points for debate, establishing facts through Church teaching and so on, then I would certainly agree that his writings ought to be given due consideration, if only to address if and where he errs. But that is not what he has done, and until he does so, I see no reason to treat it as a respectable work, and thereby allow it to influence anyone’s view of things.
Someone else may decide, perhaps, to write a systematic description of what it is he is trying to say, but until there is such a thing, I see nothing but a series of ramblings by a man claiming to seek truth while at the same time misunderstanding the fundamentals required to comprehend that truth. As it stands, it is impossible to address whatever arguments he proposes in a systematic manner because he himself does not do so. His writing format does not allow for scholarly debate on the issue.
This essay has demonstrated a fundamental flaw in his understanding of the situation. That, I believe, is enough to discredit treating the work seriously unless and until a positive, consistent statement by the man is presented. One should not have to scan sixty pages of ramblings to find two possible points of contention. It is enough to show that, at its most fundamental, Mr. Henry does not understand the issue.
mundicide 
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