Chapter 18

Student: I am not at this point asking for additional arguments in support of the three aforementioned assertions, because I shall later have the opportunity to speak about some of them. Proceed therefore to the second main conclusion, and attempt to present arguments proving that one is permitted to appeal from a heretic pope.

Master: Before adducing arguments that it is permissible to appeal from a heretic pope, it is perhaps convenient to explain this proposition to you more explicitly, so that you may better grasp the arguments in question.

Student: This is what I want.

Master: Those who contend that it is permitted to appeal from a heretic pope would not wish to be bound by the most precise understanding of what constitutes an "appeal".

Student: Therefore an appeal can mean many things.

Master: Alexander III (in Extra, De appellationibus, c. Cum sit romana) [col. 411] openly suggests that the term "appeal" has many meanings, saying: "the sacred canons allow one to occasionally appeal even outside of the judicial process; such statements are not usually called appeals but challenges to appear in court". The gloss [col. 909] explains this as follows: "he speaks of appeals from an opponent made outside of the courtroom, lest this opponent do something prejudicing the appellant on the substance of his appeal. Such appeals are, so to speak, challenges to appear in court. Such appeals must be legally honoured (see below, same section, c. Bone) [col. 429]. Clerks are frequently involved in such appeals among themselves, in matters of elections and other ecclesiastical affairs (see above, De electione, c. Consideravimus [col. 53], and c. Bone [col. 66], and c. Auditis [col. 74], and below, De hiis que fiunt a maiori parte capituli, c. 1[col. 506] ". One gathers from these words that an appeal has many meanings. For one type of appeal is that which complains of an unjust sentence, and here the appeal is from a judge; while another type of appeal is that which does not complain of an unjust sentence, and which is sometimes not an appeal from a judge, but a kind of challenge to appear in court, so that nothing would be done illegally.

Student: Apply this to the matter at hand.

Master: The aforementioned theorists say that they want to use the term "appeal" in the widest sense, lest they might appear to concede that he who appeals from a heretic pope recognizes the heretic pope as a judge by the very fact of the appeal; because by the very fact that someone appeals from a heretic pope, that someone refuses to recognize him as a judge, intending nevertheless to challenge the heretic pope to appear in court, lest he exercise the papal office to the prejudice of the appellant and of all catholics.

Student: What has just been said appears to involve contradictions. Indeed, if it is permissible to appeal from a heretic pope, an appeal from him would be allowed above all if the pope were to render a definitive judgement against the faith when someone was legally appearing before him on a matter of faith. For instance, were someone to accuse another of holding the view that Christ was not born of a virgin, if the pope gave a definitive judgement in favour of the accused by defining that Christ was not born of a virgin, the accuser would be allowed to appeal from the pope's sentence. And such an appeal would be a most proper one, because it would be a challenge to an unjust sentence involving a complaint. Therefore these theorists should speak not only of an appeal in the widest sense but also of an appeal in the strictest sense.

Master: They say that this objection is frivolous to the point of not requiring a response. For although they do say that they want to speak of an appeal in the widest sense, they do not for all that say that they never want to speak of an appeal in the strict sense. Furthermore, the stated objection gives me an opportunity to explain their position.

Student: Explain it.

Master: These theorists make two statements. The first is that one may occasionally launch an appeal in the strict sense from a heretic pope, that is to say an appeal that challenges an unjust sentence and involves a complaint. This can be done, for instance, if some persons litigate before the pope on a question of faith, and the pope renders a definitive sentence against the faith, which favours one of the litigants (either the accuser or the accused). Secondly, they say that if the pope becomes a heretic for whatever reason, then even someone who is not pursuing the case in the pope's court may appeal against him, and this appeal will then be a challenge rather than an appeal in the proper sense.

Student: It appears probable that if the pope were to render an unjust definitive judgement against the catholic faith, prejudicing someone litigating before him on a question of faith, it would be permissible for that someone to appeal from this unjust sentence. But the option of an appeal would not be allowed to anyone else: the issue would be none of his business since the judgement is not rendered against him. Furthermore, although someone can be accused of a crime committed outside of the courtroom, one should nevertheless not appeal against him. Therefore although the pope who has become a heretic outside of the courtroom may be accused of heresy, one must nevertheless not appeal from him, just as one should not appeal from any criminal even though any criminal may be subject to an accusation.

Master: The answer to the first objection is that a question of faith is a common question, which pertains to all Christians. Pope Nicholas states in dis. 96 c. Ubinam: [col. 338] "where have you read that the emperors, your predecessors, were present at synodal gatherings? Unless perhaps at some where the faith, which is universal, which is the common concern of all, which pertains not only to clerks but also to laymen and to all Christians whatsoever, was being discussed". Therefore it is the business not just of the litigant but also of any catholic to appeal from an unjust sentence of the pope rendered against the faith, because such a judgement is known to prejudice any Christian. The answer to the second objection is that on various occasions the accusation of a criminal serves a different purpose than the appeal from some criminal. For a criminal is accused so that he may be punished on account of the committed crime, while one appeals from someone lest he attempt something in the future which would prejudice the appellant. And thus if a heretic pope were to wholly cease to perform papal functions by renouncing the papacy, he could be accused of heresy but it would not be necessary to appeal from him. But if a heretic pope would not desist from exercising the papal office, then since this would redound to any Christian's prejudice, any Christian might appeal from a heretic pope or against him by challenging him to appear in court and answer for his case.

Student: What is the point of a distinction between an appeal that is made after a definitive judgement, and an appeal that is made outside of the legal process.

Master: The distinction is made because in an appeal issued after a definitive judgement one doesn't need to specifically mention the substance of the case; it merely suffices to state that the judgement is unjust. Thus if two people were to litigate before the pope with respect to some identifiable question of faith (for instance, if one of them were to accuse the other of being a heretic because he had pertinaciously claimed that usury was not a sin, or that Christ's passion and crucifixion were not the results of contingent choices but were absolutely determined, or that the apostles had not experienced for a single day a state of common life with others after the arrival of the Holy Spirit, or that the Christian law was neither true nor holy, or that Christ was a false prophet), and the pope were to render a definitive judgement in favour of the accused, confirming that he was no heretic because his assertion was catholic, the accuser would be permitted to appeal from the pope, alleging only that his sentence was unjust, nor would he be required to explain specifically the particulars as to which the pope's sentence clashed with the faith. But if someone wanted to appeal outside of the judicial process or before the rendering of a definitive judgement, he would need to argue the specifics of the case, and that if proved in court the case would be considered legitimate. For in this second type of appeal it does not suffice (in order for it to be considered legitimate) to merely state that the pope is a heretic. One needs to express the particulars of his heresy, for instance that he is a heretic because he pertinaciously teaches or holds that the Christian faith is untrue, or that Christ was not a descendant of David, or that there were not two substances in Christ's nature, or something similar which is opposed to orthodox faith.