In the law the doctrine of ultra vires states that an action is null and void if it is beyond the powers of an entity. For example, if Congress decided to turn itself into a court and try a citizen for murder this would be beyond its powers. In regard to popes, they have very broad powers indeed, but these powers are not limitless. Cardinal Newman noted this almost a century and a half ago when he wrote of papal infallibility:
I end with an extract from the Pastoral of the Swiss Bishops, a Pastoral which has received the Pope’s approbation.
“It in no way depends upon the caprice of the Pope, or upon his good pleasure, to make such and such a doctrine, the object of a dogmatic definition. He is tied up and limited to the divine revelation, and to the truths which that revelation contains. He is tied up and limited by the Creeds, already in existence, and by the preceding definitions of the Church. He is tied up and limited by the divine law, and by the constitution of the Church. Lastly, he is tied up and limited by that doctrine, divinely revealed, which affirms that alongside religious society there is civil society, that alongside the Ecclesiastical Hierarchy there is the power of temporal Magistrates, invested in their own domain with a full sovereignty, and to whom we owe in conscience obedience and respect in all things morally permitted, and belonging to the domain of civil society.”
In his recent statement about capital punishment, the Pope seeks to reverse the teaching of the Church and to invade a sphere that the Church has always left to the prudence of secular governments: the use of the death penalty. This was stated succinctly by the Council of Trent in 1566:
The power of life and death is permitted to certain civil magistrates because theirs is the responsibility under law to punish the guilty and protect the innocent. Far from being guilty of breaking this commandment [Thy shall not kill], such an execution of justice is precisely an act of obedience to it. For the purpose of the law is to protect and foster human life. This purpose is fulfilled when the legitimate authority of the State is exercised by taking the guilty lives of those who have taken innocent lives.
In the Psalms we find a vindication of this right: “Morning by morning I will destroy all the wicked in the land, cutting off all evildoers from the city of the Lord” (Ps. 101:8).
Innocent III in the thirteenth century noted that :
The secular power can without mortal sin carry out a sentence of death, provided it proceeds in imposing the penalty not from hatred but with judgment, not carelessly but with due solicitude.
Scripture is replete with examples of the State carrying out the death penalty, often pursuant to laws decreed by God mandating the death penalty.
The Pope in his condemnation of the death penalty flies in the face of twenty centuries of the teaching of the Church, and attempts to wrench from the secular world the ability to impose the death penalty. He has acted beyond his powers and betrayed the first duty of any Pope: to preserve and defend the teaching of the Church. I would assume the Pope Emeritus would agree with this since in 2004, when he was Cardinal Ratzinger, he wrote:
Not all moral issues have the same moral weight as abortion and euthanasia. For example, if a Catholic were to be at odds with the Holy Father on the application of capital punishment or on the decision to wage war, he would not for that reason be considered unworthy to present himself to receive Holy Communion. While the Church exhorts civil authorities to seek peace, not war, and to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia…
Further posts this week will examine other aspects of the attempt by the Pope to use the Magisterium to Godstamp his personal political agenda.