POPE FRANCIS - A HERETIC? ON THE PUNISHMENT OF HERETICS AND ESPECIALLY OF THE POPE WHO HAS BECOME A HERETIC WILLIAM OF OCKHAM Dial. 6 CHP. XLV

Pope Francis & Gang Of 8

Chapter 45

Student: The arguments which you advanced earlier in various chapters in order to prove that the catholics who can do this are necessarily obligated to defend the opponents of a heretic pope, appear to be conclusive only with respect to those who know and believe the pope to be a heretic. They imply, namely, that only those who know or believe the pope to be a heretic are bound of necessity of salvation to defend, if they can, the opponents of such a pope. But the arguments do not seem to demonstrate that catholics who do not know the pope to be a heretic are obligated to defend those who oppose him for heretical wickedness. Reveal therefore what the learned feel concerning this issue.

Master: The reasons in question, many of them at least, seem to hold not only with respect to those who know the pope to be a heretic, but also with respect to those who do not actually know this but harbour doubts about it. Whence some learned individuals think that just as, if someone were to appeal in effect from a catholic pope by charging him with heresy, his appeal would have to be legally honoured before it became clear that such an appeal was not legitimate, so by analogy if some oppose a heretic pope, other catholics who do not know the pope to be a heretic and are ignorant as to whether the pope's opponents are opposing him with truth and justice, would be obligated to defend such opponents if they can.

Student: According to what you are saying, this is the proper context in which to deal with the third conclusion of those who hold that it is permitted to appeal from the supreme pontiff, a conclusion which you recited earlier in chapter 17 [1 Dial. 6.17] and have now reiterated. Therefore, to begin with, try to argue in support of this conclusion.

Master: It seems possible to prove in many ways that an appeal from a catholic pope issued for cause of heresy must be legally honoured before it becomes clear that the appeal is not legitimate. And the first proof is this. One must defer no less to an appeal issued for a cause of heresy than to appeals issued for spiritual grievances and grievances of a lighter nature, because a appeal issued for the cause of faith pertains to public law and the common utility, therefore it must not enjoy a lesser privilege than an appeal issued for a private cause. But one must defer to other appeals so long as it does not appear that they are illegitimate due to the argued case not having been proved. Therefore much more strongly must one defer to an appeal from the pope issued for cause of heresy, so long as it does not appear that it is illegitimate.

Student: Those with slower wits are frequently influenced by obvious examples, therefore provide an obvious example of the issuing of an appeal from a catholic pope.

Master: As I clearly indicated to you at the beginning of our discussion concerning this subject matter, [1 Dial. 6.18] those who hold the assertion that an appeal from a catholic pope must be deferred to before it becomes manifest that the appeal is illegitimate, do not wish to be bound to the most precise meaning of "appeal", but use the term "appeal" in as wide an acceptance as they can, namely as referring to a challenge in the widest sense, indeed one that includes a demurrer, if usage allows. Their intention is thus to maintain that when a cause is argued which would be considered legitimate if proved, one must entirely defer to such an appeal from or demurrer against a catholic pope.

On the basis of such terminology, let us assume that someone appeals from or demurs against a pope, arguing and firmly advancing an intention to prove that the pope held and asserted the Christian faith to be false and a sham, concluding that this pope neither can nor must continue to exercise the papal office. On this assumption, these theorists say that even if the case argued by the appellant is false, nevertheless since it is a case which would be considered legitimate if proved, the pope and all other catholics (before the individual arguing the case is convicted of slander or fails to prove his contention or appears worthy of rejection because of some other legitimate consideration or some other appropriate process) must defer to this appeal, challenge, or demurrer with respect to the challenger or the one offering a demurrer, and must not proceed to any modification of the situation before it has been established that the appellant acted with malice. Indeed for the time being such an appellant is exempt from the jurisdiction of the supreme pontiff.

Having laid out this example, one proves that both the supreme pontiff and others are obligated to defer in the manner just stated to such an appeal or demurrer. The first proof is this. According to the laws many privileges are enacted in favour of religion, which seem contrary to reason, but are ultimately recognized as compatible with truth when properly understood, because the Christian religion is known to be worthy of greater favour than any private cause. From this one concludes that the words of the law should be broadened in favour of religion and in no way restricted, and consequently that all canon and civil laws enacted in favour of the appellant should be understood in the broadest sense when the appellant asserts that he is appealing in the interest of the Christian religion and the catholic faith. But according to canon and civil laws it is established that the judge from whom appeal is made, and others, are bound to defer to the appeal of one who appeals for a cause other than a cause of faith, if he argues a case which if it were proved would be considered legitimate. Therefore by the same laws one proves that when an appellant from the pope argues that the pope holds and asserts the Christian faith to be false, the pope and others are bound to defer to his appeal or demurrer, since if this case were proved it would have to be considered legitimate. Indeed, if such an appellant were to prove legitimately that the pope holds the Christian faith to be false, the pope would have jurisdiction neither over the appellant nor over any other Christian.

The second reason is this. One must defer to an appeal or demurrer of someone who is allowed to appeal from or enter a demurrer against another in the case which he is arguing before it is established that he has proceeded with calculated hindrance or malice. Because just as one must defer to every legitimate appeal or demurrer, so must one likewise defer to every appeal or demurrer which has not been shown to be illegitimate. But a catholic is allowed to appeal from or enter a demurrer against the pope if the pope asserts that the Christian faith is false. Therefore if someone appeals from the pope for this cause, or enters a demurrer against him as judge, such an appeal or demurrer must be honoured before its illegitimacy is established. But it cannot be established that such an appeal or demurrer is illegitimate unless it were established that the cause alleged was false. Therefore prior to it being established that the cause alleged is false, one must defer to an appeal or demurrer of this kind.

The third reason is this. If such an appeal or demurrer is not to be honoured, this is (1) because the cause alleged in the appeal or demurrer, if proved, would not have to be considered legitimate; or (2) because he from whom appeal is made or against whom demurrer is entered is a person from whom one is not allowed to appeal in such a cause; or (3) because the appellant or the one entering a demurrer is the kind of person especially forbidden by law to appeal for such a cause; or (4) because the appellant or the one entering a demurrer does not appeal or enter a demurrer within the time frame specified by the law, or does not follow up on his appeal or demurrer; or (5) because some elements which ought to have been included are omitted in the form of the appeal. For if a particular appeal or demurrer is rejected, it must be rejected either because a cause would not be legitimate even if proved, or because of a defect in the appeal or the ensuing procedure, or because of a lapse in the time frame specified by the law, or because of the position of the person who is being appealed from or against whom demurrer is entered, or because of the position of the person appealing or entering a demurrer.

But the first option does not entitle one to say that one must not defer to such an appeal or demurrer, since the cause alleged, if proved (namely that the pope holds and asserts the Christian faith to be false) is such as ought to be considered sufficient and legitimate by all catholics. The second option is no better, because it is permitted to appeal from a pope if he asserts and holds that the Christian faith is false; indeed such a pope must be avoided by all catholics. Nor must one refrain from honouring such an appeal or demurrer because of the third option, since the assumption is that the appellant or the one entering a demurrer is of good reputation at the moment of his appeal or demurrer and the sort of person against whom nothing can be objected; indeed assume him to be a king, or a bishop, or of such reputation or fame that no legitimate exception can be leveled against his person. Nor does the fourth option entitle one to refrain from honouring such an appeal or demurrer, because, as was demonstrated, [1 Dial. 6.24, 30] prescription cannot run against an appellant or someone entering a demurrer, since it is normally unnecessary to appeal for such a cause, and because one may assume that the appeal is made or the demurrer entered within the time frame specified by law, and subsequently followed through. Nor does the fifth option entitle one to refrain from deferring to such an appeal or demurrer, because in this case the Christian faith is privileged in that it is unnecessary to observe the subtleties of the law, and because one may assume that the appellant in question or the person who enters a demurrer does not omit any of the subtleties and contingencies of the law. It is thus clear that no reason can be argued as to why one ought not to defer to such an appeal. There is no reason from the perspective of the cause alleged, nor is there one from that of the appellant, nor from the point of view of the person from whom the appeal is made, nor from the perspective of the time frame, nor from that of the form of the appeal. And so it must be stated according to these theorists that such an appeal or demurrer is to be completely honoured.

Student: One could say that a reason might be offered as to why such an appeal or demurrer must not be honoured from the perspective of the cause: since the cause is false, in that according to this case the pope is a catholic.

Master: This is deemed to be a frivolous response, because the falsity of the cause hardly prevents the obligation of honouring an appeal or demurrer before this falsity is demonstrated or before one offering to prove the cause will have failed in the task. For otherwise no appeal which had been reasonably deferred to by a judge or someone else could ever be rejected, and this is surely a false contention. If indeed a judge pronounces a just sentence against someone and that someone decides to appeal by claiming that the sentence is unjust, then the judge must defer to the appeal even though he knows the appeal is unjust and the cause is false, because the latter has not yet been demonstrated to be false in the context of the appeal, nor has the appellant as yet failed to provide the needed proof. But once the appellant shall have been convicted of issuing a criminal appeal, justice demands that he be severely punished.

Student: Resume the presentation of further reasons on behalf of the main point we are discussing.

Master: A fourth reason for the assertion under scrutiny is this. One must defer to the appeal or demurrer of a person who appeals or enters a demurrer for a cause which would have to be considered legitimate if proved, and whose accusation and testimony against a superior in the same cause must be admitted in court. But if someone wanted to accuse the pope of the aforementioned heresy, or to testify against him, and was otherwise a person of good standing, then both his accusation and his testimony would have to be admitted in court. Therefore if he decided to appeal for the same cause or decided to enter a demurrer against the same superior, his appeal or demurrer would have to be honoured. The major premiss seems obvious because one may appeal or enter a demurrer against someone for causes equally as light as or equal to the causes for which one may accuse that someone or testify against him. Indeed it is frequently permitted to enter a demurrer against a given judge when the person entering the demurrer must not accuse the judge or testify against him. The minor premiss also appears to be certain, because it is established that the laws allow the pope to be accused of heresy, and that consequently one may testify against him in the matter of heresy, a fact true above all if the pope holds the Christian faith to be false.

The fifth reason is this. He whose appeal or demurrer is deservedly not honoured is believed to merit strong criticism for issuing an unjust or prevaricatory appeal, for it is only a prevaricatory or unjust appeal or demurrer which must not be honoured. But a person who appeals from or enters a demurrer against a pope functioning as a judge, and offers to prove that the pope holds and asserts the Christian faith to be false is not to be severely criticized before his cause shall have been examined and before he is convicted of the imposition of a false crime or fails to prove his contention. This is supported by the opinion of the wise man who states in Ecclesiasticus 11[:7] : "castigate no one whom you have not yet questioned". Therefore such an appeal or demurrer must be honoured before it is shown to be unjust.

The sixth reason is this. In doubtful matters one must uphold the safer solution (Extra, De regulis iuris, Estote, [col. 927] and Extra, De homicidio, Ad audientiam). [col. 798] But it is a safer solution to honour an appeal or demurrer against the pope from the aforementioned cause, since there is no imminent danger either to the Christian faith or to the supreme pontiff (if he is innocent) from the honouring of such an appeal or demurrer. If on the other hand such appeals or demurrers must not be honoured, great dangers might arise for the catholic faith. Indeed a pope who did not fear the eventuality of a strict judgement and the ensuing appropriate penalty might corrupt the purity of the faith among catholics. Therefore one must opt for the safer solution in favour of the Christian faith, and honour such appeals and demurrers.

Student: It appears that this is not the safer solution, because the pope would be instantly affected by multiple and great inconveniences if such appeals and demurrers were to be honoured. For anyone might enter a demurrer against a catholic pope on the pretext that he was a heretic; from this the reputation of the supreme pontiff would be damaged in multiple fashions, and he would be occupied needlessly in having to declare his innocence in various ways.

Master: This response is rejected because the solution it advocates is not safer, which is proved as follows. The solution, which favours the Christian faith and does not create a probable inconvenience for an innocent pope is safer than the solution, which can lead to a significant cost to the Christian faith and dangerously favour a pope besmirched by heretical wickedness. But to honour such appeals and demurrers (which stem from the aforementioned cause) before it becomes legitimately established that the cause is false, favours the Christian faith and is not a probable inconvenience or danger to an innocent pope, because a supreme pontiff who is innocent has many available methods whereby he can evade all danger. But not to honour such appeals and demurrers may lead to a notable cost for the Christian faith and favour the heretic pope. Indeed a heretic pope might freely corrupt the orthodox with heretical wickedness if no one could be heard in court against him on the crime of heresy. Thus it is a safer solution to defer to such appeals and demurrers, and therefore the solution should be followed.

Student: There are two apparent defects in this reason. It is defective, first of all, because, as I stated, to honour such appeals and demurrers may create a personal danger for the supreme pontiff who is innocent, since anyone might proceed to slander him and vex him in many ways. Secondly, it is defective because even if such appeals and demurrers are not to be honoured, a heretic pope could not for all that freely corrupt the orthodox with heretical wickedness, because if some persons who should not be excluded wanted to accuse him of heretical wickedness, an audience in court could not be denied to them.

Master: Your first instance appears frivolous to many due to the following consideration. Just as (and this is noted by the gloss [col. 789] to Extra, De presumptionibus, c. Quia verisimile non est) [col. 355] "it is to be presumed of no one that he will throw away his goods, see above De renuntiatione, c. Super eo, [col. 104] and above, De restitutione spoliatorum, c. Sollicite", [col. 280] so is it likewise to be presumed of no one that he will expose himself gratuitously to embarrassment, complete loss of honour, and the penalty of heretical wickedness. But he who would appeal from the pope or enter a demurrer against him as a heretic, alleging that he had asserted the Christian faith to be false, would expose himself to perpetual embarrassment, to the loss of all honour, and to the penalty of heretical wickedness. Such an individual would be hugely worthy of all the aforesaid because of the imposition of a weighty crime to an eminent person. Therefore one must presume of no one who was of sound mind and reputation that he would want to maliciously insinuate something of the sort about the supreme pontiff. Thus, no matter however much one defers to such appeals and demurrers, a probable danger will never threaten a supreme pontiff who is innocent, because it in no way behooves to entertain a probable fear that someone would ever dare to impose such a weighty crime on a supreme pontiff who was innocent. And if it should happen that some people did lapse into such tremendous insanity once or twice, and proceeded to mendaciously impose such a crime on an innocent pope, appealing from him or entering a demurrer against him on that basis, such appeals or demurrers would not normally have to be rejected on this account. For in the enactment of laws no less than in their interpretation we must be oriented towards those circumstances which occur frequently and not towards those which occur but rarely. Thus, since it rarely or never happens that someone in appealing or entering a demurrer against the pope imposes on the latter a denial of the Christian faith (which is a cause that, if proved, would have to be considered legitimate) one concludes that the laws, which assert that one must honour appeals and demurrers in which a cause is alleged which, if proved, would have to be considered legitimate, must always be extended to an appeal or demurrer against the pope in which the cause alleged is that the pope asserts the Christian faith to be false.

Your second instance is rejected by reference to the fourth reason advanced earlier, where it is demonstrated that anyone is permitted to accuse the pope of heretical wickedness, and that his appeal or demurrer in the cause of heresy must always be honoured, since it is a lesser matter to appeal from or to enter a demurrer against a judge than to level an accusation against him