Many controversialists have sometimes invoked a Holy Office 1951 decree and a 1958 encyclical of Pius XII against various traditional Catholic bishops, including those consecrated by Archbishop Duarte Costa & Archbishop Castillo Mendez including Archbishop David Bell.
The 9 April 1951 Holy Decree establishing the automatic penalty of excommunication for the consecration of a bishop reads as follows:
"Decree concerning the Consecration of a Bishop without Canonical Appointment.
"The Supreme Sacred Congregation of the Holy Office, in virtue of a special faculty established for it by the Supreme Pontiff, publishes 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. This is very clear.
"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 offence 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.
"An appointment designates the person and bestows the title to an office. A mandate grants the permission to confer the consecration."
Regatillo's interpretation is confirmed a reading of Pius XII's encyclical, 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 Holy Decree applies to them.
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.
Most Reverend Dom. Carlos Duarte Costa left the Roman Catholic Church in tact in 1937 some 14 years before the Decree of the Holy Office 1951 Sanction of Excommunication 'Ipso Facto' for illegal consecrations came in to force.
Therefore, this act can not applied to any consecrations by Most Reverend Dom. Carlos Duarte Costa or by Most Reverend Dom. Castillo Mendez who was consecrated in 1948 some 3 years before the aforesaid said act came in to force; therefore any consecrations by Most Reverend Dom. David Bell also are exempt by such acts.
A bishop is not allowed to confer Episcopal consecration on anyone without a papal mandate (Roman Catholic Church Canon 953, CIC 1917). Whoever acts contrarily incurs an Excommunication latae sententiae—”reserved to the Holy See” (Canon 1382, CC 1983). The excommunication Latae Sententiae takes effect by the very act itself; it does not need to be decreed.
In this particular case, the 1917 Canon Law inflicted only a suspension (“Ipso iure suspensi sunt, donec sedes Apostolica eos dispenaverit”—"They are suspended by the law itself, until the Apostolic See dispenses them” [Canon 2370, CC 19171).
For which in 1936 the Apostolic See had dispensed with Dom. Carlos Duarte Costa by accepting his resignation, thus in turn the 1917 code of Canon Law cease to apply to him and any bishops he in turn consecrated and so on.
St. Thomas Aquinas states;
“ laws are ordinances of right reason made for the common good promulgated by one who has authority in society”.
A fundamental principle of law is that Law ceases automatically:
If its very purpose has ceased to be verified for the whole community” (Moral Theology, Ff. Henry Davis, 1958).
These same facts above were always taught between 1883 - 1973 by:
His Eminence, Most Reverend Amleto Giovanni CARDINAL Cicognani,
Titular Archbishop of Laodicea in Phrygia. Secretary Emeritus of the Secretariat of State.
Cardinal-Bishop of Frascati. Cardinal-Bishop of Ostia.
Dean of the College of Cardinals.
Professor of Canon Law at the Pontifical Institute of Canon and Civil Law in Rome.