Bouix on the consensus of Cardinals and whether popes may bind their successors

Since we first discovered the writings of Marie-Dominique Bouix, the French canonist who made a name for himself in the 19th century combating Gallicanism and defending strenuously the rights of the Apostolic See of Peter, we have been reading him continuously—especially once we had managed to procure printed copies of his works. Again and again we are delighted to discover remarkably topical chapters and articles in his canonical treatises which, in our humble opinion, are able to shed much light on questions agitated in the controversies of our day. In the present case, it is his discussion of the relationship between the Sacred College and the Roman Pontiff, in which he treats the question of whether popes may bind their successors, that engaged our attention. Anyone familiar with the traditionalist liturgical and canonical debates about Pius V’s Quo primum and Sixtus V’s Postquam verus will be aware of the relevance of such a discussion.

The present excerpt is from Bouix’s De Curia Romana (1859), Ia pars, cap. VI, §1, prop. IV-V. A .pdf of this translation may be found here.

N.B. In the places where Bouix has not supplied a source for an assertion or an authority adduced, we have done our best to provide them ourself from likely works.

Proposition IV. — The Pope does not need the consensus of the Cardinals in order to alienate [that is, transfer] goods of the Church. — This proposition would already be proved sufficiently from the general thesis, which has now been established, that the Pope does not need the consensus of the cardinals in dispatching business concerning the rule of the Church. Yet, since there occur some special difficulties regarding the present matter and some others, it seems good to discuss them individually at present, so that the doctrine given may be confirmed all the more, and all occasion of doubt removed.

As regards ecclesiastical goods, that the Pope does not need the consensus of the Cardinals in order to alienate them can be proved thus:

He would be bound to obtain consensus of this sort, either from the sacred canons and the decrees of his predecessors which proscribe this under penalty even of nullity: or from some right proper to the cardinalitial dignity: or from some divine law: or by force of consuetude: but none of these can be said, as is proved under the following numbers:

I. In order to alienate goods of the Church, the Pope is not bound to obtain the consensus of the Cardinals from any canons or Pontifical decrees, even those requiring such consensus under penalty of nullity. — Certain it is that there are decrees which prohibit the Roman Pontiff from alienating goods of the Church without the consensus of the Cardinals. Already under Pope Symmachus we find his power constrained regarding the Pontifical alienation of goods of this sort: « Let it be forbidden for the Pope to alienate an estate of the Church for some necessity, or to give lands for usufruct; except only houses which in any cities whatsoever are sustained at no small cost. Let all custodians be bound by this law; so that the donor, the surveyor, the seller be disgraced. And he who should subscribe, let him be anathema with him who hath given it, or who hath received it, except it be restored. Let it be permitted also to any and all ecclesiastical persons to refuse, and to demand back the things alienated with the profits of the same. Which is to be observed not only in the Apostolic Church, but is also declared to pertain to all the churches throughout the provinces. » (c. Non liceat, C. XII, q. 2, ex synodo III sub Symmacho Papa, anno 499). But Gregory IX in his Constitution Rex excelsus of 16 Jan 1234, making the aforesaid ordinance of Symmachus more determinate, judged to be void any alienations of the patrimonials of the Apostolic See, unless they be done with the prior counsel and assent of the Brethren, namely, the Cardinals. Since there nevertheless afterwards followed some alienations and infeudations, those which had been done without usefulness Pius IV annulled, in his Constitution Apostolicæ servitutis; in which, after he recalled, that hitherto there have been many alienations of the things of the Roman Church done and approved by the Roman Pontiffs our predecessors, and perchance (which we relate with sorrow) by us, with no reasonable cause urging it, unto the gravest harm of the Church herself, unto the offense of God, the scandal of the people, and the evident peril of souls, those he annulled and made void. There followed the Constitution Admonet nos of Pius V, in which there is prohibited only the alienation and infeudation of fortresses, fiefs, and jurisdictional places; but in the same place it is prescribed, that the Cardinals swear to the observance of this Constitution, both in their promotion or assumption of the hat, and in conclave when the See is vacant. Likewise, that the Supreme Pontiff newly ascended should make the same oath, which he ought to repeat afterwards in his confirmatory letters. For other Pontifical ordinances regarding this matter, see Cardinal Petra, Commentaria in constitutiones apostolicas, tom. II, in Const. VI Greg. IX. Therefore there are many decrees which make the consensus of the Cardinals necessary for alienating goods of the Church. Read the rest of this entry »