The True Scope of the constitution Ad Evitanda Scandala
This article discusses the relevance of the 1418 constitution Ad evitanda scandala, promulgated by Pope Martin V in the context of the Council of Constance, to the question of participation in religious worship with heretics and schismatics. The full text of Ad evitanda scandala in English and Latin will be found at the end.
1. Civil communication or religious communication?
Bishop Kallistos Ware is an English scholar who adheres to the Eastern schism. In 1972 he contributed a paper entitled “Orthodox and Catholics in the seventeenth century: schism or intercommunion?” to Schism, Heresy and Religious Protest1 – a collection of studies edited by Derek Baker. In its pages, referring to the practice of intercommunion between Catholics and Eastern schismatics, he writes:
On 5 July 1729 Propaganda issued a general prohibition, excluding all common worship in terms of the utmost strictness. On 10 May 1753 the Holy Office published another general prohibition, insisting that the decree of Martin V, Ad evitanda scandala, applied only to civic cooperation and not to communicatio in sacris. (p. 274)
This claim is misleading. A fuller explanation of what took place will shed considerable light on the Catholic interpretation of Ad evitanda scandala.
Ware is referring to a Response of 10th May 1753 from the Holy Office to a missionary in the Peloponnese which appears as No. 804 in Vol. IV of Cardinal Gasparri’s Codicis Iuris Canonici Fontes. The same text is found in the Collectanea S. C. de Prop Fide, vol. I, n. 389.
2. A missionary consults the Holy See
The missionary presented three queries:
1. May Latin rite Catholic priests (a) allow schismatical and heretical Greek rite priests to offer Mass in their churches and (b) admit them to Catholic funerals?
2. May Greek rite Catholics having no Catholic church of the same rite participate in the rites of Greek schismatics and heretics?
3. May Latin rite Catholic priests admit to confession Greek Catholics who do in fact communicate in divinis with Greek schismatics?
The answer given to Query 1(a) is No. It is stated to be worse if they name the Patriarch of Constantinople or use rites that express their heresies, but even aside from that the practice is out of the question as Catholics entering the church might take part or be scandalized. To Query 1(b) the reply is that schismatic priests may be present materially but may not add their own rites or take an active part in the Catholic rites.
The answer to Query 2 is No - they should go to Latin rite Catholic priests, not to Greek rite non-Catholics.
And the answer to Query 3 is that it is not lawful “outside the case of extreme necessity”. (Presumably the “extreme necessity” bears on the circumstances of the communicatio in sacris with the schismatics, not those of the confession to Catholic priests.)
3. The Holy Office Adds an Appendix
That would normally have been all. But in this case the Sacred Congregation of the Holy Office ordered “for the better instruction of this and other missionaries” that there be added to the Response a transcript of a substantial extract on this subject from the Tractatus de Synodo Dioecesana of the then reigning pontiff Benedict XIV (lib. V, c. 5). This work was written by the pope before his election but republished while he was reigning, with additions and corrections. As such it is not a pontifical act and the fact that this extract is appended to the Holy Office Response constitutes an official recommendation by the Holy See, but does not transform it into a magisterial text.
What is particularly interesting is that between this decree and the end of his pontificate (in 1758) Benedict XIV made a significant change to the very text which the Holy Office ordered to be appended. Gasparri gives the new version in a footnote.
Here is the relevant passage in the first version, as alluded to by Kallistos Timothy Ware:
“But although according to the present discipline brought in by Martin V in the celebrated litterae extravagantes “Ad evitanda scandala” to be discussed below it is lawful for Catholics freely to converse with heretics provided they be not expressly denounced by name, and to communicate with them in merely profane and civil matters, [emphasis added – JSD] Catholics should not therefore judge it permissible for them also to consort with heretics in sacred and religious acts. Indeed Paul V after mature discussion defined that it was in no way lawful for Catholics of the kingdom of England to frequent the temples of heretics and to be present at the rites exercised therein...”
4. Pope Benedict XIV Revises His Text
Now this text is to say the least surprising as it does indeed seem to imply that Ad evitanda scandala relates only to communication with uncondemned heretics in civil matters. Whereas the text of Ad evitanda scandala makes no such distinction, clearly referring to communion “in the administration or reception of the sacraments or in any other religious or non-religious acts whatsoever”.
No doubt this observation was made at the time, for the second edition of the pope’s work saw this passage reworked as follows:
But although by the Canon of the Council of Florence approved by Martin V which begins Ad evitanda and which has always remained in full force notwithstanding the subsequent contrary constitutions of the councils of Basle and the Lateran, some relaxation was made in the discipline concerning conversation and even communication in religious acts with those heretics who are tolerated and not expressly denounced as vitandi, as is shown at length by Cabassut in his Theoria et Praxis Juris Canonici, lib. V, c. xi, n. 3 et seq., yet Catholics should not therefore judge it permissible for them to consort with heretics in sacred and religious acts. Indeed Paul V after mature discussion defined that it was in no way lawful for Catholics of the kingdom of England to frequent the temples of heretics and to be present at the rites exercised therein...
This now does justice to the actual content of Ad evitanda scandala but looks at first sight contradictory, as though Benedict XIV were saying that Ad evitanda scandala allows communicatio in sacris with uncondemned heretics but that Catholics should nonetheless not think that communicatio in sacris with uncondemned heretics is permissible. In fact his intention is made clear by what follows, for he goes on to say that he is not unaware of the theologians who hold that communicatio in sacris with uncondemned heretics is lawful on certain conditions (he mentions, with full references, de Lugo, Thomas of Jesus, Silvius, Albitius and Gottus), but he stresses that their teaching is not uncontested and not recognised by all as safe to follow in practice and that in any event the conditions these theologians require to justify communicatio in sacris with an uncondemned heretic are extremely exacting, to wit:
a very grave and very urgent cause;
that the heretical minister be validly ordained and use exclusively Catholic rites;
that the communicatio in sacris be not an external protestation of false doctrine as going to the Protestant churches was in England when Paul V forbad it (since, he says, the king had expressly ordered all to go to church in order to show their agreement with the Protestants);
that it should give no scandal.
Benedict observes that since, even accepting the teaching of the milder theologians, all the conditions must be simultaneously verified and that this very seldom occurs, “it is therefore almost impossible for it to happen that Catholics mixing in sacred rites with heretics and schismatics can be excused from grave sin [flagitio]”.
Finally the extract from Benedict XIV’s work states that for this reason the Roman congregations (Holy Office and Propaganda) have always considered such communicatio illicit and while he was but a young cleric working on his theological and canonical treatises they drafted a learned instruction to be transmitted whenever necessary to missionaries in which were explained the reasons why it can scarcely ever happen in practice that communicatio in divinis of Catholics with heretics is innocent.
5. Preliminary Conclusions
In summary, then, this Holy Office Response maintains the prohibition of communicatio in sacris with heretics and schismatics and, while recognising as a permitted theological opinion that in certain very rare and exacting cases communicatio in sacris with heretics and schismatics who have not been excommunicated by name may be lawful, insists that the conditions are so rarely verified in practice as to be hardly worth taking account of in the practical order then encountered. Where the conditions are not verified, such communicatio in sacris will be contrary to divine law and even the pope could not dispense. It is confirmed that this is the longstanding policy of the Holy See.
The appended text of Benedict XIV writing as a private doctor confirms, in the revised edition, (a) that Ad evitanda scandala is still in force and relaxes the laws which previously forbad communicatio in sacris or indeed in profanis with any excommunicate, and (b) applies per se to heretics and schismatics as well as to others who have incurred latae sententiae excommunication but have not been condemned by a declaratory sentence.
Hence, since 1418, the law of the Catholic Church forbids such communication outright only in the case of those excommunicated by name. However it does not follow that when the uncondemned excommunicates are notorious heretics and schismatics such communicatio in sacris will generally be lawful. At best it could be lawful only in the rare cases when all the conditions theologians teach to be required by divine law are simultaneously verified - which could only be exceedingly rare, and even then the question of lawfulness remains debatable).
Against this background I return to Kallistos Ware’s statement:
“On 10 May 1753 the Holy Office published another general prohibition, insisting that the decree of Martin V, Ad evitanda scandala, applied only to civic cooperation and not to communicatio in sacris.” (p. 274)
It will now be seen that this is grossly misleading. Ad evitanda scandala is mentioned only in an extract from a work written by Benedict XIV as a private doctor and added as an appendix to the Roman rescript. The original version of Benedict’s text does look as though it says that Ad evitanda scandala relates only to communicatio in profanis, but that is not the point being made and still less is it the reason why the Holy Office included the appendix. And it is in any event an absurdity as the text of Ad evitanda scandala clearly says the contrary. Hence the subsequent correction in Benedict’s revised edition of which Ware makes no mention.
The truth, as can be seen from the two Catholic University of America dissertations on communicatio in sacris, is that Rome never tolerated communicatio in sacris cum haereticis, but did tolerate the opinion of some theologians that in certain rare cases that were practically impossible to find united communicatio in sacris cum haereticis might be lawful.
Ad evitanda scandala removed the ecclesiastical prohibition of communication in religious or other activities with uncondemned excommunicates. Plainly there may be other extrinsic reasons in given cases why such communication is forbidden by divine law. When the excommunicates are notorious heretics or schismatics, the Holy See judges that these extrinsic reasons will almost invariably exist in practice. Hence, while Ad evitanda scandala does apply to communicatio in sacris and does not exclude uncondemned heretics from the excommunicates it speaks of, its relaxations will scarcely ever apply to them in practice and in particular missionaries in countries with many Eastern schismatics should beware of allowing communicatio in sacris. However the opinion of de Lugo etc. remains uncondemned and since it is impossible to rule out absolutely the fulfilment of the conditions, the rescript allows absolution of one following that teaching in practice in “the case of extreme necessity”.
6. The 1917 Code of Canon Law
It should be borne in mind that the cases envisaged by all those involved in the eighteenth century consultation concerned persons whose status as heretics or schismatics was undisputed among Catholics. The issue was not: Is this man a heretic? But, May one participate in public divine worship with him although he is a heretic?
Quite different is the case of one who incurs latae sententiae excommunication for heresy or schism without adhering to any condemned sect and whose heresy or schism is perhaps subject to controversy among the learned. Indeed Cabassut in his Theoria et Praxis Juris Canonici – the work Benedict XIV explicitly defers to on the topic in his revised edition – declares that communion is not prohibited in the case of a res ignorata, i.e. when the excommunication is unknown.
The 1917 Code of Canon Law states in Canon 1258§1 that active attendance at or participation in the rites of non-Catholics is unlawful,2 while Canon 2261§23 authorizes the faithful to request the sacraments and sacramentals from an excommunicate for “any just cause, especially if there are no other ministers available” and suspends for that purpose the prohibition to confect the sacraments which is one of the effects of excommunication. Which of these laws takes precedence in the case of conflict, for instance if a Catholic wishes to receive Holy Communion at the Mass of a priest who has incurred latae sententiae excommunication for heresy, but whose excommunication has not been publicly declared?
Given that Canon 1258 explicitly concerns the case of non-Catholics it would appear to prevail in the case of members of non-Catholic sects using the rites of those sects,4 and therefore to add a positive ecclesiastical law restricting somewhat the tolerance granted by Ad evitanda scandala. On the other hand, since Ad evitanda scandala as such remains in force and per se its provisions extend (as we have seen) to those excommunicated for heresy and schism as well as for any other cause, and since doubts must be interpreted in favour of liberty,5 Canon 2261 may safely be taken to prevail in other cases, at least if the four recognized conditions stated above are verified, to wit: (i) grave reason; (ii) the minister is validly ordained and the rite is Catholic; (iii) no protestation of a false religion is intended or suggested, (iv) scandal is avoided. And it will certainly prevail if there is any reasonable doubt as to whether the minister is in fact a heretic in the first place.
7. English Text of Ad evitanda scandala6
To avoid scandals and many dangers and relieve timorous consciences, by the tenor of these presents we mercifully grant to all Christ’s faithful that no one henceforth shall be bound to abstain from communion with anyone in the administration or reception of the sacraments or in any other religious or non-religious acts whatsoever, nor to avoid anyone nor to observe any ecclesiastical interdict, on pretext of any ecclesiastical sentence or censure globally promulgated whether by the law or by an individual; unless the sentence or censure in question has been specifically and expressly published or denounced by the judge on or against a definite person, college, university, church, community or place. Notwithstanding any apostolic or other constitutions to the contrary, save the case of someone of whom it shall be known so notoriously that he has incurred the sentence passed by the canon for laying sacrilegious hands upon a cleric that the fact cannot be concealed by any tergiversation nor excused by any legal defence. For we will abstinence from communion with such a one, in accordance with the canonical sanctions, even though he be not denounced. (Codicis Iuris Canonici Fontes I, 45.)
7. Latin Text of Ad evitanda scandala
Ad evitanda scandala et multa pericula, subveniendumque conscientiis timoratis, omnibus Christi fidelibus, tenore praesentium, misericorditer indulgemus, quod nemo deinceps a communione alicius in sacramentorum administratione vel receptione aut aliis quibuscumque divinis, vel extra ; praetextu cuiuscumque sententiae aut censurae ecclesiasticae a iure vel ab homine generaliter promulgatae, teneatur abstinere vel aliquem vitare ac interdictum ecclesiasticum observare : nisi sententia vel censura huiusmodi fuerit in vel contra personam collegium universitatem ecclesiam communitatem aut locum certum vel certa a iudice publicata vel denunciata specialiter et expresse : constitutionibus apostolicis et aliis in contrarium facientibus non obstantibus quibuscumque ; salvo si quem pro sacrilegio et manuum iniectione in clerum sententiam latam a canone adeo notorie constiterit incidisse, quod factum non possit aliqua tergiversationi celari, nec aliquo iuris suffragio excusari. Nam a communione illius, licet denunciatus non fuerit, volumus abstineri, iuxta canonicas sanctiones. (Codicis Iuris Canonici Fontes I, 45 ; Mansi, tom. 27, coll. 1192, 1193)
1. Cambridge University Press, 1972.
2. It footnotes the 1753 rescript among many other Roman sources.
3. It footnotes Ad evitanda scandala.
4. Cf. Mahoney, E.J., Priests’ Problems, No. 295. The 1917 Code of Canon Law nowhere appears to use the term “non-Catholic” to denote one who, having been Catholic, has fallen into notorious heresy or schism without joining a sect and in the absence of any declaratory sentence.
5. Cf. Canon 19 and the well known regula iuris that odia convenit restringi, favores vero ampliari — i.e. canonical interpreters should be slow to impose burdens and prompt to alleviate them.
6. Ad evitanda scandala remains substantially in force throughout the universal Church. It should not be confused with a decree of the same opening words emanating a few years later from the Council of Basle, which has no authority because, as St Robert Bellarmine says, (De Conciliis cap 7) “Nothing of this council is confirmed and approved except some dispositions concerning benefices made by the Council and approved (for the sake of unity and peace) by Pope Nicolas V. The council itself was condemned in the last Lateran Council, session 11.”
© Copyright John S. Daly 2005 – 2017