The 1951 Decree establishing the automatic penalty of excommunication for the consecration of a bishop reads as follows: ORDINATION & SACRAMENTAL VALIDITY PDF........CANON LAW SOCIETY OF GREAT BRITAIN REPORT ON VALIDITY OF HOLY ORDERS & His Holiness, Pope Pius XII, Excommunication, and Traditional Catholic Bishops Hierarchy of the Roman Catholic Church Vatican II have sometimes invoked a 1951 decree and a 1958 encyclical of Pope Pius XII against various traditional Catholic bishops, including those consecrated by Bishop Carlos Duarte Costa and his successors.
The Supreme Sacred Congregation of the Holy Office, in virtue of a special faculty established for it by the Supreme Pontiff, published the following Decree:
"A Bishop, of whatever rite or dignity, who consecrates as a Bishop someone who is neither nominated by the Holy See nor expressly confirmed by that same See, and he who receives consecration, even if coerced by grave fear (c.229, §3, 3), incur ipso facto [automatically] excommunication most especially reserved to the Apostolic See". This Decree takes effect from the date of its promulgation. Those who have attempted to invoke this decree in our own circumstances seem to have confused two things:
1. The Mandatum: the papal document granting permission for the consecration of a bishop who will serve as a bishop in any capacity, including as an auxiliary or titular bishop, and
2. The canonical appointment: a papal decree designating a bishop as Ordinary (or "residential bishop") of a duly constituted diocese, which appointment auxiliary and titular bishops did not receive.
The canonist Fr. Eduardo Regatillo, in his Institutiones Juris Canonici (Santander: Sal Terrae 1956), 2:600, states that the 1951 decree affects only bishops consecrated without papal appointment to be heads of dioceses.
"Anyone who is to be promoted to the episcopacy needs the canonical appointment by which he is constituted Bishop of a such a vacant diocese. "In practice, it may be doubted whether only those who are to be consecrated residential Bishops are affected - that is, those who are consecrated for a diocese now in existence - or also titular bishops (who are created for an extinct see or diocese), or bishops who are consecrated for no diocese. "From the purpose intended by the Holy Office, the decree appears to cover only those who are consecrated as residential bishops, for this is the actual case which the Holy See intends to condemn. "This new type (of offense) differs from the one mentioned in canon 2370, where the canon refers to consecrations performed without apostolic mandate (described in canon 953). The new decree, on the other hand, punishes consecrations performed without pontifical appointment.
Regatillo's interpretation is confirmed a reading of Pope Pius XII's encyclical (reproduced below), especially paragraphs 45-48.
No traditional Catholic bishop - at least none of our acquaintance - has been consecrated to the episcopacy and then received illegal designation and title to a diocese established by the Roman Pontiff.
Traditional Catholic bishops are consecrated for no diocese. One cannot claim, therefore, that the 1951 Decree applies to them. Reverend Fr. Kaschewsky is a German canon lawyer and correspondent for Una Voce Deutschland. This information below is a study concerning the legitimacy of the Episcopal Consecrations.
Illicitness is fully within the power of Canon Law to determine....but in(validity) is in the power of God the Holy Spirit, and so invalidity occurs purely in the Order of Grace, and Canon Law can not touch, change , affect, or determine that in any way.
The consecration of a bishop has, in the hierarchy of the Sacrament of Orders, pride of place. A cardinal and the pope do not have a higher consecration. A bishop possesses two powers:
•a power of consecration;
•a power of jurisdiction, which he can exercise only if he is in charge of a diocese.
The episcopal power is a power of divine right, which endows a bishop with a personal authority and gives him a legal and constitutional status which the pope can neither suppress nor modify.
It is only since the Decree of the Holy Office of August 9, 1951, that the sanction of the excommunication ipso facto most specially reserved to the Holy See was introduced for illegal episcopal consecrations. This was due, without doubt, to the tragic turn of the Church in the People's Republic of China. This sanction was later confirmed after the actions of the sect of Palmar de Troya in Spain.
An ipso facto sanction does not apply if there exists an attenuating circumstance as laid down by law. There is thus need to consider attentively the rules of Canons 1323 and 1324 of the CIC 1983, which correspond to Canons 2205 (N.2,3) of the CIC 1917. These canons deal with the case of an act to which a sanction is normally attached, but which was done only in order to avoid a grave inconvenience or to provide for a necessity. Here is a quote from Canon 1323, N. 4 (CIC 1983): "No penalty is incurred by a person forced by a necessity to act against the law." The former Code (Canon 2205, N.2) speaks in the same sense. (For the restrictions in both cases, see VII to IX here below.)
Let us quote from the book on Canon Law written by E. Eichmann (Kl. Morsdort): A grave inconvenience or necessity is a situation of constraint such that, without fault, the person in difficulty is physically or morally obliged to do something against the law in order to avert the danger. (Necessitas non habet legem - necessity has no law.) This may be a threat against his spiritual goods, his life, his freedom or other earthly goods. It is generally granted - and no one seriously questions this - that due to the orientations taken after the Council, one finds within the Church a serious threat against the spiritual goods especially with regard to priestly formation, Faith, morals and religious worship. The proof of this affirmation is found in many publications including the review, Una Voce Korrespondenz. The question is to know if and how one can combat this attack upon the spiritual goods. No one will contest that one way (if not the only way) of healing the evils which we are suffering from, resides in the raising of priestly vocations and the formation of good priests. Oftentimes young theologians ask us which diocesan seminary may be recommended, i.e., in which the deadly spirit of adaptation to the world has not yet entered, where true devotion is taught and given priority of place, where the adoration of Jesus Christ in the Blessed Sacrament of the Altar is the centre of the priestly life, where Communion kneeling down and the wearing of the cassock are natural. (I say this in order to speak also of the exterior signs, since they are always the indication of an interior disposition.) The answer is: "There is none!"
First restriction of the principle applied above: in Canon 2205, N. 2 of the 1917 Code, the threat of sanction in such situations of emergency was lifted only when it was a law purely of ecclesiastical right and not of Divine Right. This restriction is no longer found in the new Code. Now since those who would like to apply this sanction would most certainly use the new Code, such a restriction would not apply, even if the one performing these consecrations would feel bound by it.
The question whether or not an episcopal consecration without papal mandate is an act intrinsically evil or leading to the prejudice of souls, without any doubt, goes beyond the framework of law of the Church, or at least cannot be decided by purely juridical considerations. But precisely here judgments differ: some say that it would cause an immense damage for souls because of the danger of schism; others speak of an action absolutely required for the salvation of souls.
Even if one were to call in question or actually deny altogether the existence of a situation of emergency, as we have described it, the following would still apply: No one will deny that a bishop who, in the aforementioned situation, consecrates another one, would be at least subjectively of the opinion that he is in a situation of necessity such as we have described above. Thus one cannot speak of a premeditated violation of the law: for one who goes against the law but believing even wrongly that his action is legitimate, does not act in a premeditated way. The New Code is even clearer: A. The person who thought, without fault on his part, that a circumstance foreseen in Canon 1323, N. 4,5,7, applied when he was breaking the law or an administrative order, does not incur any punishment.
b.The violator of the law is not exempt from all penalty, but the penalty laid down in the law or in the administrative order must be mitigated, or a penance must be substituted, if the offense was accomplished by someone believing through an error, even if culpable, that he was in a circumstance foreseen in Canon 1323, N. 4 and 5 (Canon 1324, N. 1.8).
Moreover, Canon 1324, N. 3, says: "In the circumstances explained in N. 1, the violator does not incur any latae sententiae penalty (automatic penalty)." Thus those who would suppose that the emergency exists only in the fantasy and the imagination of the Bishop concerned could hardly argue that this supposedly erroneous conception would be punishable.
Even if someone were to put it to him that he was guilty for having arrived at such a mistaken notion of the existence of an emergency (not, in fact, existing), still: 1.The automatic excommunication could not follow as mentioned in Canon 1382 (it could not be automatic). 2.In any case, an eventual penalty which a judge might apply would have to be more clement than that foreseen in the law, so that here too an excommunication would be out of the question. A. Due to the existence of a real emergency, a bishop who would consecrate another one without a papal mandate, would not fall under the sanction foreseen for illegal consecration (Canon 1323, N. 4). B. Even if the emergency did not objectively exist, the violator would remain exempt from any sanction since he would have subjectively and in a non-culpable way estimated that there was a real emergency (Canon 1324, N. 1.5). C. One must also say that, even if there were an erroneous and punishable supposition of an emergency, still there would be no automatic sanction, much less an excommunication (Canon 1324, N. l.8,3).
Most Reverend Dom. Carlos Duarte Costa ‘Carolum Duarte Costa’ resignation was accepted by the Roman Catholic Church Vatican I pontiff, Pope Pius XI from his Diocese of Botucatu in 1937.
His Holiness; Pope Pius XI permitting such a gracious act Bishop Carlos Duarte Costa received a new appointment as Titular Bishop of Maura as decreed in the ACTA APOSTOLICA SEDIS in 1937.
. HOLY SEE ACTA APOSTOLICAE SEDIS 1937 WHERE CAROLUM DUARTE COSTA RESIGNATION IS ACCEPTED AND HE IS APPOINTED AS A TITULAR BISHOP OF MAURA.>ECCLESIASTICAL LAW AND HOW IT SEES ACCORDING TO CANON LAW ALSO THE VALIDITY OF BISHOP JAME ATKINSON-WAKE AND HIS PREDECESSORS, LAYING OF HANDS PDFDOCTOR IN CANON LAW PONTIFICAL LATERAN UNIVERSITY & AUXILIARY BISHOP TO CARDINAL RICKETTS CONFIRMS BISHOP LUIS FERNANDO CASTILLO MENDEZ ROMAN CATHOLIC APOSTOLIC SUCCESSION VATICAN ONE. VALID. PDF
Most Reverend Dom. Carlos Duarte Costa was therefore from this day / date released from any further Roman Catholic Church Canon Law from 1937. Roman Catholic Canon law of 1917 did not apply to him or any of his fellow bishops he consecrated from this DAY OF RESIGNATION ONWARDS including towards Bishop Luis Fernando Castillo Mendez and notwithstanding Bishop James Atkinson-Wake as Roman Catholic Bishop Duarte Costa founded the Brazilian Catholic Apostolic Church and it new canon law which is the same for the vast Orthodox Churches who have their own laws and not under the supremacy of the Pope of Rome or its hierarchy.