The First See is Judged by No One: Historical & Critical Review of Bishop +Athanasius Schneider’s Op-Ed for Rorate Caeli

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Readers of my website have already seen my shorter review of Bishop Schneider’s article here. After discussing this at length with some colleagues, I was motivated to put more thinking into the matter, and so I offer here a historical critical review of the same article, beginning with some important historical documentation, as well as considerations according to reason. Please share your thoughts, agreements, or disagreements.

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In the current code of Canon Law, canon 1404 states the following:

The First See is judged by none  (Latin: Prima Sedes a nemine iudicatur)

This is another way of saying that there is not court or tribunal above the Pope than can condemn him, depose him, or annul his decrees.

There is very clear evidence of this already in the 9th-century with Pope St. Nicholas I (800-867) in his epistolary exchange with Byzantine Emperor Michael III and the disputed occupant of the See of Constantinople, Photius. The story can be briefly summarized here, but from one particular letter sent from the Pope to the Emperor, we can see that there was a dispute over authority and jurisdiction. St. Nicholas of Rome writes to the Emperor:

“…Furthermore, if you do not listen to us [Rome], it remains that you be held by us as our Lord Jesus Christ enjoins us to hold those who refuse to hear the Church of God; especially since the privileges of the Roman Church confirmed in St. Peter by the words of Christ, ordained in the Church itself, observed from of old, proclaimed by the holy universal synods and ever venerated by the whole Church, can by no means be diminished, infringed, or altered, since no effort of man has power to remove a foundation which God has laid, and what God has established stands firm and unshakable….These privileges, then, were bestowed on this holy Church by Christ: they were not bestowed by the Synod but were merely proclaimed and held in veneration by them….it is immediately clear that the judgments of the Apostolic See, than which there is no greater authority, cannot be handled by any other tribunal, nor is it permissible for any to sit in judgement upon its decision…..”
(Pope Nicholas, Preposueramus Quidem, 865 AD, to the Emperor Michael, Epistle 8; Mansi xv. 196)

That is an unmistakable claim to universal jurisdiction and the possession of the highest court wherein matters of faith or discipline are settled. But that is 9th-century talk. Is there any evidence of this coming from prior history? I believe there is, and for this we must rewind to the Pontificates of Popes St. Gelasius I and St. Symmachus I. The context for the former is the Acacian schism (484-519). To make a long story too short, the Eastern Patriarchs were not fully on board with the Council of Chalcedon anymore, and this caused one of St. Gelasius’ predecessors, Pope St. Felix III, to issue an excommunication and deposition on the Patriarch of Constantinople, Acacius. This schism lasted for more than 30 years. Well, for our interest, we have some of St. Gelasius’s epistles which strike just the same note as Pope St. Nicholas above. In one letter, we read the following:

“and thus he [the Pope] judges the whole Church and himself stands before no tribunal and no judgment can be passed on his judgment, nor can his decision be abrogated” (PL 59.28B; taken from Papal Primacy: Origins to Present, Klaus Schatz, Pg. 73)

And:

“The entire Church over the entire world knows that the Chair of Blessed Peter has the right to loose what has been bound by the sentences of any bishop whatsoever, as the See of Peter is entitled to jurisdiction over any Church, while no one is entitled to pass judgement on its decision, for the canons have permitted that appeals should be directed to it from all the world, but no one is permitted to appeal its decision….The Apostolic See has often had the freedom (facultas), without a Synod preceding it, to loose those whom a Synod had unjustly condemned, and also, if necessary, to condemn others without the convocation of a Synod….” (Patrologia Latina 59.66C, 67 B,C)

That seems pretty clear enough.

We get more testimony for this belief in the controversy surrounding Pope St. Symmachus. This Pope had been accused by a faction, led by a Roman leader of the Senate, Festus, of certain crimes, and an appeal was lodged to the Arian King Theodoric, who rose to power during the Ostrogoth domination in the West in order to have St. Symmachus deposed, and to then install Lawrence as Pope instead (the one favored by the anti-Symmachian faction). Now, the charges brought against St. Symmachus were that he celebrated Easter on the wrong calendar date, unchastity, and misuse of Church property. To make another long story short, there was some back and forth, but with the help of two particular Saints (venerated by both Eastern Orthodox and Roman Catholics to this day), St. Ennodius of Pavia (473-521) and St. Avitus of Vienne (450-519), as well as Italian bishops gathered into a Synod in 502, a decision, as described by J.N.D. Kelly, was reached:

“Its [the Synods] verdict was that, as Symmachus was Pope, no human court could judge him and judgment must be left to God. He was therefore freed of all charges, and his clerical opponents were forced to be reconciled with him” (Oxford Dictionary of the Popes, Pg. 51)

The primary sources, here below, also manifest a clear recognition that the Pope occupies the highest office in the Church, and is thus, so far as judgment or accountability is concerned, untouchable.

St Ennodius contributed to this event by saying:

“God perchance has willed to terminate the causes of other men by means of men; but the prelate of that [Roman] See He has reserved, without question, to His own judgment. It is His will that the successors of the blessed Apostle Peter should owe their innocence to Heaven alone, and should manifest a pure conscience to the inquisition of the most severe Judge [God]. Do you answer; such will be the condition of all souls in that scrutiny? I retort, that to one was said, ‘Thou art Peter, and upon this Rock I will build my Church’, and again, that by the voice of holy pontiffs, the dignity of his See has been made venerable in the whole world, since all the faithful everywhere are submitted to it, and it is marked out as the head of the whole body” (Mansi, viii. 284 taken from Thomas William Allies, See of Peter, Pg. 92-96)

St. Avitus of Vienne added this:  “We were in a state of anxiety and alarm about the cause of the Roman church, inasmuch as we felt that our order [the episcopate of Gaul] was endangered by an attack upon its head…What license for accusation against the headship of the universal church ought to be allowed?…As a Roman senator and a Christian bishop, I conjure you that the state of the Church be not less precious to you than that of the commonwealth. If you judge the matter with your profound consideration, not merely is that cause which was examined at Rome to be contemplated, but as, if in the case of other Bishops any danger be incurred, it can be repaired, so if the Pope of the city be put into question, not a single bishop, but the episcopate itself, will appear to be in danger. He who rules the Lord’s fold will render an account how he administers the care of the lambs he entrusted to him; but it belongs not to the flock to alarm its own shepherd , but to the judge [God]. Wherefore restore to us, if it be not yet restored, concord in our chief” (Mansi, viii. 293 ;ibid)

Both of these men partook in  a synod which was convened on behalf of the defense of Pope St. Symmachus, and the letter of the Council to King Theodoric reads as follows:

“…the person [Symmachus] who was attacked ought himself to have called the Council, knowing that to his See in the first place the rank or chiefship of the Apostle Peter, and then the authority of venerable councils following out the Lord’s command, had committed a power without its like in the churches; nor would a precedent be easily found to show, that in a similar matter the prelate of the aforementioned See had been subject to the judgment of his inferiors” (Mansi, viii, 248 ; ibid)

We see, then, that this principle of prima sedes a nemine iudicatur was being claimed as far back as the late 5th-century. Was there anything prior to this? Historians appear to be convinced that the pro-Symmachian part of the above context had produced certain forgeries that carried evidence of the principle “prima sedes….nemine iudicatur” from earlier centuries. These are known as the Symmachian forgeries (though the statements of Pope St. Gelasius are deemed reliable).

Anglican historian Dr. Trevor Jalland corroborates on the historical context of Pope St. Symmachus and to the forgeries attributed to his name :

“Yet in spite of the Pope’s pathetic situation, enthusiastic champions of the Roman see made a timely appearance in the persons of Ennodius of Milan and Avitus of Vienne. The latter may well have expressed the view of the Italian episcopate as well as that of Gaul when he wrote: ‘If the position of the chief (princeps) is shaken by accusation, we feel the position of everyone of us to be weakened’. The work of Ennodius on the other hand, as a reply to the Pope’s enemies, though characterized by clever evasions, violent abuse and a marked dependence on irrelevant quotations of Holy Scripture, has a special interest as the product of a church which at one time seemed to overshadow even Rome itself as the primatial see of Italy. In him we find the earliest explicit assertion that a distinction is to be drawn between the Pope as an individual and the Pope as the holder of the Papacy. As an individual he will receive just judgment on the Last Day; as Pope he cannot be guilty of anything demanding judicial punishment. It is not difficult to imagine that such a view would have been highly acceptable to one such as Gregory VII, under whose inspiration the Ennodian principle was embodied in the Dictatus Papae. Not less remarkable was the abundance of pseudonymous and apochryphal literature which may rightly be regarded as a by-product of this anomalous situation. The chief object of these writings was to make good some of the very obvious defects in the papal structure which recent events had laid bare. They included, besides other suppositions conciliar Acts such as the Gesta Liberii, the Gesta Xysti and Gesta Polychronii, the proceedings of an apocryphal ‘synod of Sineuessa’ at which the unhappy Marcellinus was supposed to have been arraigned. Encouraged to judge himself, the Pope was represented as having declared himself guilty, whereupon Militades, apparently elected and consecrated on the spot, is said to have remarked, ‘Rightly has he been condemned out of his own mouth, for no one has ever judged the Pope, since the first see can be judged by no man’. A similar principle emerges in the contemporary supplement to the Silvestrian saga depicting another imaginary Roman synod, which besides condemning the author of the Paschal cycle, rejected by Symmachus, some hundred years or so before his birth, passed a series of canons of which the last significantly read: ‘No man shall judge the first see’. It is evident from these strange essays in imaginative history that the ideas of Gelasius were already showing themselves prolific, but it would be unjust to Symmachus to attribute to him direct responsibility for the offspring” (Church and Papacy, page 333-4).

So we see that those who forged these Symmachian-documents were appealing to even earlier centuries where Popes were deemed above the judgment of all inferiors. But they are held by historians to be spurious accounts (I’ve not done any extensive studies on any particular claim of these).

However, one may ask whether all of this applies only to the matter of a moral or disciplinary matter. Did all of this judgement-free supremacy pertain also to the situation of a Pope who exposes himself publicly as a manifest and formal heretic and fighter against the Christian faith? The words of Pope Hadrian II, at the Roman Synod (869-70) seems to speak directly to this idea:

“Although we have read of the Roman pontiff having passed judgement on the bishops of all the churches, we have not read of anyone having passed judgement on him. For even though Honorius was anathematized after this death by the easterners, it should be known that he had been accused of heresy, which is the only offence where inferiors have the right to resist the initiatives of their superiors or are free to reject their false opinions, although even in this case no patriarch or other bishop has the right of passing any judgement on him unless the consent of the pontiff of the same first see has authorized it.” (from the Acts of Constantinople IV, ed. Leonardi, 238)

Here, Hadrian II seems to suggest that while inferiors can resist the heretical views of their superiors, there is no recourse to a higher court than the Apostolic See itself to process a legal judgment on the circumstance, leaving the inferiors under a hypothetically heretical Pope with no recourse to depose or excommunicate said Pope. Since Honorius was condemned posthumously by a successor to the chair of St. Peter it was actually Rome, says Hadrian II, that processed the judgment against Honorius, never-mind the “authority” of Constantinople III (681).

Despite this, there seems to be an enormous amount of evidence coming from Papal utterance and theologians throughout the 2nd millennium which carry a different opinion on the situation of a manifestly and formally heretical Pope. I have written on that matter here and here. One particular utterance comes from Pope Innocent III from his consecration sermon (1198):

“Truly, he [the Pope] should not flatter himself about his power, nor should he rashly glory in his honor and high estate, because the less he is judged by man, the more he is judged by God. Still the less can the Roman Pontiff glory because he can be judged by men or rather, can be shown to be already judged, if, for example, he should wither away into heresy; because he who does not believe is already judged. In such a case it should be said of him: ‘if salt should lose its savor, it is good for nothing but to be cast out and trampled underfoot by men” (Sermon IV, Between God and Man: Sermons of Pope Innocent III, pp. 48-49 taken from True or False Pope: Refuting the Errors of Sedevacantism and other Modern Errors by John Salza & Robert Siscoe, pg. 191)

I won’t bother inserting anymore citations from the theologians and canon lawyers from the 2nd-millennium on this question, but I think, in light of all this, we can return to the argument made by Bishop Schneider in his Op-Ed article for Rorate Caeli. To be clear, Schneider believes that the Pope, if validly reigning, is completely and absolutely untouchable. Even if he were to commit himself to open, flagrant, manifest, and uncontrolled heresy, said Pope enjoys the full privileges of the Papal See, and the universal Church is held hostage to his communion for their salvation on the strength of divine law, as well as on the pain of mortal sin and everlasting damnation. It was this very danger that compelled the theologians of the 2nd millennium, such as St. Robert Bellarmine, Cardinal Cajetan, and John of St. Thomas, to name a few examples, to reason that there had to be a way in which the Pope could so self-injure his position in the throne of Peter so as to warrant a recognition that said throne was vacant, and thus giving clear path to a new Papal election. To be fair, St. Robert Bellarmine did not believe such a set of circumstances, under the holy care of divine providence, would be possible. But given the circumstances, he could reason no other way. Now, Bishop Schneider wishes to concede the possibility of such a formally heretical Pope, even publicly manifested. He admits such is possible by his recounting of the evidence that Pope Honorius was certainly condemned for heresy. And yet, Bishop Schneider, unlike St. Robert Bellarmine, concedes that this is both possible (a formally, manifestly, and pertinaciously heretical Pope) and that said Pope retains his office and all his privileges; and that means that all the faithful are obliged to his obedience and communion on the terms already stated above. What does Bishop Schneider have to offer the Church in light of the obvious fatality (at least it seems to me) of an anti-Christian heretical Pope validly governing the universal Church and lawfully carrying command over all the faithful in the world? Divine providence. The faithful can have recourse to fasting, prayers, and appeals to the Pope for repentance, but never to depose, judge, or even recognize that there has been a forfeiture of the Papal throne. To his credit, Bishop Schneider rightly describes the danger of the Church underneath the Pope having the power to decide even if there had been a forfeiture of office. Since the Church possesses no authority over the Pope, this would usher in the ilk of Conciliarism, which had already been condemned forever by the 1st Vatican Council, if not before. What if a supposedly heretical Pope doesn’t heed the portion of the Church which says he has forfeited office? What if a considerable faction of the Church disagrees and chooses to remain loyal to the supposedly heretical Pope? What if more than one faction elects more than one new Pope? How many Popes reigning side-by-side are we going to have before this becomes completely unworkable ? In other words, Bishop Schneider foresees the fatality of crystallized fragmentation (c.f. Great Western Schism) with the legality of judging, deposing, or even recognizing the self-deposition of a heretical Pope. And one would be foolish to deny the force of his observation. However, my own opinion is that not even consideration was given to the fatality of a formally and manifestly heretical Pope who is permitted to lawfully govern the Church and command obedience for 50+ years (as long as he holds office) and to mislead the faithful into soul-destroying heresies. Oh, Bishop Schneider would most likely caution us by saying that the faithful are not obliged to said heresies, and are responsible to read for themselves the dogmatic tradition of the Catholic Church (Scripture, Councils, Papal Decrees, Denzinger, Ott, etc,etc) and out of their own resources weaponize themselves with the defenses against the illegal dictates of a heretical Pope.  But what if the faithful become divided amongst themselves as to what the right answer is on the most popularly disputed question of the time? What if more than two or three factions are thereby created? Dare I say that this is already happening right now under the Pontificate of Pope Francis. There are those who say that he erred in faith and morals in Amoris Laetitia, Laudato Si, the CCC 2267 revision, and in other various statements. There are also those who believe the Pope is rock-solid orthodox. This set of circumstances is already fatal and injurious to souls. So whatever is being espoused by Bishop Schneider, it certainly does not steer us perfectly clear of schism, heresies, and godless divisions “within” the membership-body of the Catholic Church.

With all that said, there are not two ways to go about this. Either a Pope can be judged or deposed (or recognized as self-deposed) or he cannot. If he cannot, and he is considered to have the potential for an indefinite maintenance in formal and manifest heresy, then we have a dreadful situation which I am confident in saying the Church has never deemed possible. Bishop Schneider remarks on how the Council of Constantinople III (681) recognized that while the Apostolic See is indefectible, a particular Pope could be heretical. But again, I’ve never seen that in the documentation, nor from the Patristic studies from Dom John Chapman, whom he cites. As far as Pope St. Agatho was concerned, his epistle to the Emperor claims that all of his predecessors were infallible. By the time Agatho wrote that letter, Honorius was not being treated as an accused heretic. It was only at the Council, after the condemnation of the monothelite Macarius of Antioch, that the letters of Honorius were dug up for examination; and then, it was the Council, not Rome, which cooked up his anathema. When the Council sent its proceedings and decrees to the Apostolic See, St. Agatho had passed and it fell into the lap of Pope St. Leo II, who confirmed its decrees (including the condemnation of Honorius). St. Leo II minces no words, but supports the view that Honorius had committed heresy, and was rightfully condemned (we may dispute whether posthumous condemnations are valid, but this would be anachronistic). Although, it cannot be contested that Rome, even accepting the Honorius-condemnation, never drew back its claim to infallibility, and so one might say, by this deed, they implicitly held to the distinction between the infallibility of the Apostolic See versus the potential for heresy in one of its occupants. But again, I’ve never seen any evidence to suggest that anyone was explicitly aware of this distinction. The infallibility of the Roman See had been spoken of in such general and broad terms that it always seems like they believe every teaching from a Pope is protected from heresy.

What could be said, however, is that the proposal of Bishop Schneider may, in light of historical reality, procure the least amount of destruction to the Church. For even if a Pope were to come out as a formal and manifest heretic (say, supporting that Islam and Christianity are equal), and holds office lawfully for 50+ years, the faithful can still fight to make the distinction between the assent owed to the perennial dogmatic tradition of the Church and never give assent to the heresies of said Pope. Bishop Schneider is adamant that a Pope could never bring heresy to the level of the Ex-Cathedra administration of Papal teaching, and so all this allowable heresy would be within the ordinary magisterium of the Pope, which does not, according to Schneider, necessarily carry such infallible protection. Thus, in this dreadful situation considered, the faithful can just shrug off the semi-authoritative decrees of a heretical Pope and remain firm in their obedience to the infallible decrees and teachings of the Tradition (capital T) of the Catholic Church. It would seem as though this is practically anarchy, but Schneider would say that it is still a Monarchy with the proper conditions of valid versus invalid exercises of authority (but such is the excuse of all temporary anarchists, anyhow). Even so, this paradigm, however destructive it would be (surely, it would be destructive), still would be less destructive than the paradigm which allows for the Church to continually sack the Pope out of office and elect new ones. The latter paradigm could find ourselves with perhaps 10 different Popes in different places with 10 difference allegiances, and then 10 different lineal successions, which would basically be the Protestantization of the Catholic papacy. This point is strong, and it would be foolish to disregard it.

However, since both paradigms still allow for destructive and soul-destroying consequences, adherents to both paradigms would still have to depend on divine providence to not allow unending catastrophe. In the Papal-deposition-paradigm, one has to hope that God will not allow ending confusion and division through another Great Schism and Protestantization of the Church by some mysterious work of providence to restore normalcy. But then, in the Pope-can’t-ever-be-judged-even-if-manifestly-heretical paradigm, one also has to hope in divine providence to somehow bring normalcy back to the Church, either by bestowing repentance to the current Pope, or having a successor bring all things back to normal. One might say the latter option is less dangerous since it will always keep one Pope at a time to deal with (but, if we are speaking in the world of all possibilities, a heretical Pope can be conceived as the circumstance of every successive Pope, with only divine providence to control it).

There is, of course, the position which says that a Pope could never teach heresy, even in his ordinary magisterium, and this position, admittedly, would steer clear of almost all of the problems potentially associated with the two paradigms contrasted above. This is, no doubt, why many are compelled to hold to it. However, as Bishop Schneider discovered, history will not bear this out. That is, of course, unless one can somehow re-address the Honorius situation, and perhaps the Pope Francis situation, and prove that both of these Popes, and others, were actually orthodox through and through in all that they taught. Mind you, this third position would not say that a Pope is infallible in literally every utterance (his private opinions, public interviews, privately published books, etc,etc), but that only when he is addressing the Church is he infallible and never allowed to espouse an error. If any of the readers here wish to defend this position, I’m always ready to hear a defense for it, but, for many reasons, I’ve not been persuaded. It has the least amount of conceptual problems, and would certainly produce the best effect, but it appears to me to be overly idealistic and falsified by history. I wish I were wrong. But not for nothing, it has to count for something that in all of Papal history, there has only been one single (or two, if we add John XXII) Pope who has been accused of public heresy for which he attempted to promulgate by some level of Papal magisterium, and that is Honorius. Other than that, there are no settled cases in 2,000 years of Church history. This third position has that, at least, going for their case. But, even so, what to do with Honorius and the post de facto Papal admissions to his heresy? I’ve not seen anything substantial to undo its force.

In conclusion, I am grateful for the good Bishop Schenider’s contribution to this discussion, and I will certainly continue to dwell upon it (perhaps, come to agree with it), but I had to put my own take away into writing for the sake of my own record, and for the sake of public discourse.