Bouix on the consensus of Cardinals and whether popes may bind their successors
by Gerardus Maiella
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.
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.
Nevertheless it should be said that the Pontifical power is in no wise bound by these canons and decrees, and the said consensus of the Cardinals is not at all required; which is proved thus:
1° Even if the mentioned decrees had force of themselves for binding the Pope, they would no longer be in force on account of desuetude. Concerning this desuetude Cardinal de Luca writes thus: « …although Gregory IX, renewing the Constitution of Symmachus (in c. Non liceat, XII, q. 2) in his mentioned sixth Constitution[*], established it thus (namely, that alienations were void without the assent of the Cardinals), and the Council of Constance adhered to the said decree, nevertheless all these seem to be abolished by unuse, or contrary custom, at least de facto, the most ample derogations standing… Whence in the many similar controversies agitated in my time, although the most learned advocate of the Camera and the Purse has continually inculcated this motive of the Constitution of Gregory IX, yet I know that in the Camera no concern was ever had for it » (Theatrum veritatis, de feudis, disc. IV, n. 2 and 3). « This Constitution seems to be abolished by contrary custom, on account of the ample derogations accustomed to be assigned in concessions » (ibid., disc. V, n. 13). Cardinal Petra attests the same: « In practice the ordinance of the cited canon Non liceat, and the form introduced by this Constitution of Gregory IX, has fallen into desuetude » (Commentaria, tom. II, in Const. VI Greg. IX, n. 19). Therefore, at least because of the desuetude of the aforementioned decrees, the Pope is no longer bound to require the consensus of the Cardinals in order to alienate goods of the Church.
[*] It should be noted that Petra here employs the numbering of Cherubini’s Bullarium Romanum. — Tr.
2° But the Roman Pontiff was never bound and could never be bound by these decrees. Which Cardinal Petra expounds thus: « Yet there arises against the aforementioned ordinances of Symmachus and Gregory a living and convincing reason, that they in no way could have been able to compel and arrest the succeeding Pontiffs; since the Pope is unbound by the laws, nor does an equal have authority over an equal [par in parem non habet imperium], as was precisely said by Innocent III (in c. Innotuit, de electione): That he could not in this office make any prejudice to his successors, who are to discharge after him an equal, no indeed the very same power, since an equal has no authority over an equal [non habet imperium par in parem]. Whence Boniface VIII (c. Quia, de rescriptis, 6), while he imposes a sure law upon himself, and says at the end, And that which we do not suffer to be permitted to us, we indicate to our successors, in that place the Gloss, at the word indicamus, subjoins: he could indicate, but could not impose a law, because an equal has no authority over an equal. And Pius V of holy memory used the same words (in the cited 35th Constitution, de non infeudandis, §2): And that which we do not suffer to be permitted to us, we indicate to our successors. And the Canonists have taught this explicitly… » (Commentaria, tom. II, in Const. VI Greg. IX, n. 15-16).
That the canonists in truth hold to this commonly will be sufficiently clear if one reads Fagnani (in c. Ex parte, de feudis, n. 23ff; in c. Omnis, de poenitent. et remiss., n. 25; in c. 1 de Constitutionibus, n. 56ff); Cardinal de Luca (adnot. ad disc. IV de feudis, n. 1 and 2; de relationibus Curiæ Romanæ, disc. II, n. 30); the Rota (decisio 1204, n. 12, coram Emerix iuniore; decisio 664, n. 9, partis 2, recentiorum); and Petra himself (after the locus transcribed above).
3° But now, the reasons customarily adduced for the proof of the thesis can be shown under another form thus: Firstly, the legislator cannot constrain with his law anyone but those inferior to him; but no Pope is inferior relative to another Pope his predecessor; therefore no Pope properly can be obliged by the law of his predecessor. Secondly, he who succeeds the legislator with equal power, can abrogate his law; but each and every Pope succeeds his predecessors with equal power; therefore he can abrogate their disciplinary laws; therefore the papal prohibition that the Roman Pontiff not alienate goods of the Church without the consensus of the Cardinals, can be abrogated by any succeeding Roman Pontiff whosoever; therefore no Pope is bound by such a law; therefore any Pope whosoever can act against such a law; because by acting against a law of this sort, by that very fact he abrogates or nullifies it. Thirdly, the said law should not be said to have directive force over succeeding Roman Pontiffs. For indeed it is a sufficiently common opinion of the doctors, that the legislator is constrained by his own laws and those of his predecessors as regards directive force, although he is not obliged as regards coercive force; but now, this only holds true with regard to laws passed for the whole community, and in the hypothesis that they are not abrogated; but not with regard to laws only touching upon succeeding legislators, nor with regard to the faculty of abrogating the laws of predecessors: but the law prohibiting the Pope from alienating goods of the Church without the consensus of the Cardinals, would be directed only to succeeding Pontiffs; and moreover when a succeeding Pontiff acts against it, by that very fact he abrogates it; therefore that which is said of the directive force of laws upon even the legislator himself, has no application here. Take as an example the law of confessing one’s sins once a year at Easter, which law, insofar as it prescribed such a time, is merely ecclesiastical: such a law is passed for all the faithful, not for succeeding legislators only; and when it is asked whether the Pope himself is also bound by the force of this law to confess his sins at Easter, it is supposed that the law is not abrogated, but remains in its force. Furthermore, in this hypothesis, the doctors commonly hold with St. Thomas (ST IaIIæ, q. 96, a. 5 ad 3) that the legislator is obliged by the directive force of the law to observe his laws and those of his predecessors; and such that, unless he himself observe them, he may sin, whether by reason of scandal, or for other reasons. But now, if the Pope passes a law, not for all the faithful, but only for restraining the power of his successors in some matter, if a succeeding Pope should indeed wish to annul entirely that law, and de facto abrogate it, it would be absurd to say that the said succeeding Pope is constrained by such a law even as regards directive force.
4° Hence the said laws cannot be considered as anything but counsels which are given by a preceding Pope to his successors. Nor is this hindered by the fact that Gregory IX had willed that the consensus of the Cardinals be so necessary, that in its absence, he decreed that an alienation be entirely null: for this must be understood as subordinated to the will of his successors; so that it retains force so long as they wish the law to endure; but it is otherwise if they should wish it to be done away with.
II. Nor is their consensus required from any right proper to the Cardinals, in order that the Pope might be able to alienate goods of the Church. — 1. « It is a true and common conclusion of writers, that the Pope can explicate difficult matters without the Cardinals », as Fagnani relates (in c. Ex parte, de feudis, n. 18); and he cites many canonists who affirm the same: therefore according to the true and common opinion of the doctors, the Pope can alienate goods of the Church, omitting the consensus of the Cardinals; therefore no right belongs to the Cardinals from which it is demonstrated that their consensus is necessary for the said alienation.
2. Moreover, whatever right or power the Cardinals have, has descended to them from the Pope. Thus hold the doctors in common. The power of the Cardinals, Fagnani says (in c. Ex parte, de feudis, n. 20), emanates from the Pope alone. Which the Archdeacon had already taught previously (in c. Ubi periculum, de electione, in 6): But the power of the Lord Cardinals is from man: for whatever they are able to do, they have from the Pope. Nor do others differ, see Fagnani in the cited locus. The same can also be inferred from the very nature of the cardinalitial institution. For we have said above, that its distinctive characteristic consists in this, that it is a clerical college instituted for assisting the Pope in the rule of the Church. Therefore the right which is proper or essential to the cardinalitial institution, is this only, to assist. But if the Pope were to depend upon the consensus of the Cardinals in his action, the Cardinals would be something more than mere assistants, as is clear. Nor can it be objected that a cathedral chapter is also a college of clerics instituted for assisting the Bishop in the rule of the diocese: for that right comes to the cathedral chapter, not from the nature of its proper office, but from ecclesiastical law, which has willed episcopal power to be restricted in this manner. But since there exists no one superior to the Pope, papal power cannot be restrained by any ecclesiastical law in the said manner, and be made to depend upon the consensus of the Cardinals. It remains, therefore, that the consensus of Cardinals, in order that the Pope be able to alienate goods of the Church, is required neither by any ecclesiastical law, nor from the nature of the cardinalitial office.
III. Nor is the said consensus required by any divine law. — For even if it be admitted that the Cardinals are of divine institution, yet in no way can it be proven that the Roman Pontiffs are prohibited by Christ himself from alienating goods of the Church without the consensus of the Cardinals. There exists nowhere any vestige of a divine law of this sort. Moreover, that to the Roman Pontiff has been committed by Christ the full power of ruling and governing the universal Church, is catholic dogma, from the express definition of the Council of Florence: but that power would not be full, if it were to depend in part upon the consensus of the Cardinals. Whence entirely to be rejected is the hypothesis of any divine law which makes the consensus of the Cardinals necessary for the Pope to alienate goods of the Church.
IV. Nor can the said consensus be said to be required from legitimately prescribed consuetude. — For the supreme power of the Pope is of divine law; but there can be no prescription against divine law by any consuetude, no matter how lengthy. Wherefore even if for many centuries, or even always, the Roman Pontiffs have been accustomed not to alienate goods of the Church without the consensus of the Cardinals, yet by that custom no right has acceded to the Cardinals. Says Cardinal Petra: « If a contrary consuetude were introduced, it would not have force, because it would be to prescribe against the supreme imprescribable power of the Pope (Abbas, in c. Ex gestis, de clericis non resid., n. 4); and since the power of the pope is immediately from God and that of the Cardinals is from the Pope, the former cannot depend upon the latter, as the cited Fagnani details; although out of honor [ex honestate] the Pope is accustomed to seek the counsel of the Cardinals in difficult matters…; and the words customarily affixed in some Bulls, from the counsel of our venerable Brethren, do not induce necessity, but only honor [honestas] » (Commentaria, in Const. VI Greg. IX, n. 20). And finally, we have heard Cardinal de Luca above attesting, that the Constitution of Gregory IX which prescribed that the said consensus of the Cardinals necessarily must be used, has fallen into desuetude.
Proposition V. — The Pope does not need the consensus of the sacred college in order to augment the customary number of Cardinals. — 1° In various times decrees were made, which prescribed a sure number of Cardinals which was to be observed perpetually after. In the Council of Constance in 1414, it was prescribed that the number was never to exceed 24. And in 1431 in the Synod of Basel, sess. 23, the same was declared: Let the Cardinals not exceed the number of twenty-four. Under Paul IV, who ascended to the Supreme Pontificate in 1555, after various discussions regarding this matter between the Pontiff and cardinals, it was laid down that the number never exceed forty. But Sixtus V wished it to be fixed at seventy, and also prescribed it to be observed by his successors. Now in the Cæremoniale Romanum, lib. I, tit. 8, §1 et seq., we see that at one time there was the custom (now wholly obsolete) of seeking out the wishes of the sacred college regarding the question, whether it is necessary or expedient to create new Cardinals, and in what number. And other similar ordinances could be recalled which determine a certain number of Cardinals.
2° But it must be said that all these statutes, insofar as they restrain the liberty of future Pontiffs, are to be considered as mere counsels, not as laws inducing obligation properly so called; since, as we have shown above, it is repugnant that the Pope be able to be restrained by any ecclesiastical law of his predecessors. Wherefore, even if the said ordinances required the consensus of the Cardinals, the Pope in no way is bound to obtain this. From nothing else, not by any divine law, or any proper right of the Cardinals, can it be said that the Pope is obliged not to exceed a certain number of Cardinals. Therefore the number of Cardinals to be created is entirely up to the judgment of any Roman Pontiff whosoever. This doctrine the canonists hold commonly: says Cohellius (Notitia cardinalatus, c. 3), « It is asked whether the Supreme Pontiff, notwithstanding this Constitution of Sixtus, can exceed the number seventy: and all, absolutely no one disagreeing, respond affirmatively; saying that the number of cardinals is left to the judgment of the Pope ».
 “The bulls of the Popes to restrict the freedom of their successors seem to me to belong to the class of human weaknesses. A ridiculous presumption of wanting to reign in the grave, and to reign over those who receive the same most equal power from God!” (Tamagna, Origini e prerogative de’ cardinali della S.R.C., part. 1, p. 139).
 Sixtus V had decreed in this manner: If it should happen in the future that one or more be elected, or created, or pronounced a Cardinal by Us or by the Roman Pontiff reigning at the time, exceeding the said number, We decree the election, creation, and pronunciation of this sort to be null, of no effect, and void… (Bull Postquam verus).