HOLY OFFICE DECREE 1951.
Let's Examine the contents and the real meaning.
The 1951 Decree establishing the automatic penalty of excommunication for the consecration of a bishop reads as follows: ORDINATION & SACRAMENTAL VALIDITY PDF........CANON LAW SOCIETY OF GREAT BRITAIN REPORT ON VALIDITY OF HOLY ORDERS & His Holiness, Pope Pius XII, Excommunication, and Traditional Catholic Bishops Hierarchy of the Roman Catholic Church Vatican II have sometimes invoked a 1951 decree and a 1958 encyclical of Pope Pius XII against various traditional Catholic bishops, including those consecrated by Bishop Carlos Duarte Costa and his successors.
(Picture is of Pope Pius XII)
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, published 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.
"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 offense) 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.
The consecration of a bishop has, in the hierarchy of the Sacrament of Orders, pride of place. A cardinal and the pope do not have a higher consecration. A bishop possesses two powers:
•a power of consecration;
•a power of jurisdiction, which he can exercise only if he is in charge of a diocese.
The episcopal power is a power of divine right, which endows a bishop with a personal authority and gives him a legal and constitutional status which the pope can neither suppress nor modify.
b.The violator of the law is not exempt from all penalty, but the penalty laid down in the law or in the administrative order must be mitigated, or a penance must be substituted, if the offense was accomplished by someone believing through an error, even if culpable, that he was in a circumstance foreseen in Canon 1323, N. 4 and 5 (Canon 1324, N. 1.8).
Moreover, Canon 1324, N. 3, says: "In the circumstances explained in N. 1, the violator does not incur any latae sententiae penalty (automatic penalty)." Thus those who would suppose that the emergency exists only in the fantasy and the imagination of the Bishop concerned could hardly argue that this supposedly erroneous conception would be punishable.