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Council: The Extraordinary Path to Succession

INTRODUCTION AND SCOPE

This document does not argue for the nullity of any prior papal election. That analysis is established elsewhere in the Argument and Indictment.

The Conclave document demonstrates that the Church's positive law provides a lawful path to succession once conclave competence exists: the pre-2013 Cardinal electors, acting as the College, may proceed to election once the death-trigger is satisfied. That is the ordinary path.

This Council document addresses a distinct question: What if the ordinary path is unavailable? What if all pre-2013 Cardinals have died or become incapable?

The purpose of this document is to demonstrate that the Church is not without recourse. An extraordinary path to succession exists within the Church's own law, theological tradition, and historical precedent. This path does not require the invention of authority, the relaxation of invalidating norms, or appeal to necessity as a source of competence. It operates within law, not despite it.

I. THE EXTRAORDINARY PATH: THEOLOGICAL AND CANONICAL FOUNDATION

1. The Ordinary Principle: Electoral Power Comes from Peter

Cardinal Louis Billot, in Tractatus de Ecclesia Christi (Thesis XXIX, §1), establishes the foundational principle: "Quod legitima electio Pontificis a solo iure pontificio de facto nunc dependeat, facili atque obvio argumento demonstratur, quia lex regulans electionem fuit edicta per pontifices summos. Ergo quoadusque a Pontifice ipso abrogetur, in suo vigore manet, et non est aliqua potestas in Ecclesia, etiam sede vacante, per quam possit immutari."

Legitimate papal election depends de facto on pontifical law alone. The law was enacted by Popes; it remains in force until abrogated by a Pope. There is no power in the Church, even sede vacante, by which it can be changed.

Billot further explains: "Cum soli Petro datus sit primatus pro ipso et successoribus eius, ad illum solum, id est ad solum Summum Pontificem spectat determinare modum transmissionis haereditariae potestatis."

Since the primacy was given to Peter alone for himself and his successors, it pertains to him alone, that is, to the Supreme Pontiff alone, to determine the mode of transmission of hereditary power.

This principle governs the ordinary case. The Cardinals do not possess electoral competence inherently. They possess it because the Pope, through positive law, devolved the power to determine his successor to them.

They act as instruments of papal authority.

2. The Extraordinary Case: Billot's Concession

Billot then asks: What if an extraordinary case arose where it was necessary to proceed to election, but it was no longer possible to observe the conditions determined by prior pontifical law?

"Porro, supposita semel talium occurrentia circumstantiarum, sine difficultate admittendum quod potestas electionis devolveretur ad concilium generale."

Once such circumstances are supposed, it must be admitted without difficulty that the power of election would devolve to a general council.

3. The Principle of Natural Law Devolution

Billot grounds this concession in natural law:

"Ex ipso enim iure naturali est, quod in eiusmodi casibus attributio potestatis superioris deveniat per devolutionis viam ad potestatem proxime sequentem, quantum praecise requiritur ut possit societas conservari et extremae necessitatis angustias evadere."

From natural law itself, in such cases, the attribution of superior power devolves by way of devolution to the next proximate power, precisely as much as required for the society to preserve itself and escape the straits of extreme necessity.

This is not necessity creating competence. This is natural law providing a channel for papal authority to reach the electing subject when the ordinary channel is unavailable.

4. Cajetan on the Electing Subject

Cardinal Cajetan, quoted approvingly by Billot, addresses the specific circumstances under which devolution operates:

"In casu autem ambiguitatis (quia nescitur si aliquis est verus Cardinalis..., mortuo vel incerto Papa, ut tempore magni schismatis inchoati sub Urbano VI contigisse videtur), in Ecclesia Dei esse potestatem applicativam papatus ad personam, servatis debitis requisitionibus, asserendum est. Et tunc per viam devolutionis ad universalem Ecclesiam potestas haec devenire videtur, tanquam non existentibus electoribus determinatis a Papa."

In a case of ambiguity (when it is unknown if someone is a true Cardinal, or when the Pope is dead or uncertain, as seems to have happened at the time of the Great Schism under Urban VI), it must be asserted that in the Church of God there is the power to apply the papacy to a person, the due requirements being observed. And then by way of devolution this power seems to devolve to the universal Church, as if the electors determined by the Pope did not exist.

5. The Harmonization: Not Bypassing Papal Authority

The devolution theory does not bypass papal authority. It describes how papal authority reaches the electing subject through a different channel when the ordinary channel is unavailable.

In the ordinary scenario, the Pope through positive law confers competence upon the Cardinals, who then elect his successor. In the extraordinary scenario, the Pope as principle of unity, through natural law devolution, confers competence upon bishops in sacramental communion with Peter, who then elect his successor.

In both scenarios, the power to elect comes from Peter. The difference is only the channel: through positive law to Cardinals in the ordinary case; through natural law to a general council in the extraordinary case.

The bishops are legitimate recipients because of their sacramental communion with the Petrine office. They acknowledge Peter as head and intend to be in communion with him.

II. THE SACRAMENTAL CRITERION FOR COUNCIL PARTICIPATION

6. The Defining Question

Who constitutes Cajetan's "universal Church" that receives devolved power? Not anyone who claims to be Christian. The electing subject must be defined by specific criteria.

7. Canon 336: Membership in the College of Bishops

Canon 336 of the 1983 Code defines the College of Bishops:

"Collegium Episcoporum, cuius caput est Summus Pontifex cuiusque membra sunt Episcopi vi sacramentalis consecrationis et hierarchica communione cum Collegii capite atque membris..."

The College of Bishops, whose head is the Supreme Pontiff and whose members are bishops by virtue of sacramental consecration and hierarchical communion with the head and members of the College.

Membership in the College of Bishops is by virtue of sacramental consecration (not by jurisdictional appointment) and hierarchical communion with the head (communion with Peter).

This is the 1983 Code's articulation of the sacramental criterion. The shift from the 1917 Code's jurisdictional emphasis to a sacramental criterion is significant.

8. Canon 339: Who May Participate in an Ecumenical Council?

Canon 339 §1 provides:

"Ius est et officium omnibus et solis Episcopis qui membra sint Collegii Episcoporum, ut Concilio Oecumenico cum suffragio deliberativo intersint."

All bishops, but only bishops who are members of the College of Bishops, have the right and obligation to be present at an Ecumenical Council with a deliberative vote.

The criterion is episcopal consecration plus communion with the Petrine office.

9. Who Is Excluded?

The Orthodox are excluded. They reject the primacy of Peter as Catholics understand it. They are not merely disputing which claimant is Pope; they reject the office itself. They are not "in communion with Peter" in any sense that Catholic ecclesiology recognizes.

Schismatic groups that deny papal primacy are likewise excluded. The criterion is not merely valid episcopal consecration, but consecration plus communion with the Petrine office.

10. Who Is Included?

Bishops from confused obediences are included. At Constance, bishops came from three obediences, disagreeing about which claimant was Pope, but all acknowledged the Petrine office and intended to be in communion with the true holder.

The criterion is not correct identification of the current Pope. The criterion is acknowledgment of the Petrine office and intention to be in communion with Peter.

This includes bishops who recognize the competence defect and acknowledge the custodial status, bishops in traditional communities who accept papal primacy, bishops in regularized or irregular canonical situations who nonetheless affirm the Petrine office, and bishops who may have been confused about the juridical situation but who, when convoked, acknowledge the Petrine office and intend to be in communion with its true holder.

III. THE CONSTANCE PRECEDENT

11. The Historical Facts

The Council of Constance (1414-1418) resolved the Great Western Schism under conditions of extreme juridical disorder.

Gregory XII's bull of July 4, 1415 appointed Carlo Malatesta and Cardinal Giovanni Dominici as his proxies, commissioning them "to convoke the council and to authorize whatever it should do for the restoration of unity and the extirpation of the schism." Cardinal Dominici pronounced the formal operative words of convocation. The assembly accepted to be thus convoked, authorized and confirmed. Most participants did not recognize Gregory XII's juridical authority; they recognized John XXIII or Benedict XIII.

Gregory XII's resignation was pronounced by Malatesta and accepted by the Council. Gregory XII died October 18, 1417. Martin V was elected November 11, 1417, approximately three weeks after Gregory XII's death. The Council itself conducted the election using a modified procedure (Cardinals plus six delegates from each of five nations).

12. The Puzzle

If Gregory XII lacked effective juridical authority over most participants (because they did not recognize him), then his convocation could not have worked as a juridical act of coercive jurisdiction. They were not obeying his command. Yet his involvement mattered, enough that Billot and Franzelin point to it as legitimating the Council.

13. The Resolution: Sacramental Headship

Gregory XII's involvement worked not because of its coercive juridical force, but because it expressed the involvement of the man who was, in truth, the legitimate Bishop of Rome.

The bishops did not need to recognize his jurisdiction for his participation to legitimate the Council. What mattered was that the true head of the College was involved.

This is sacramental headship, not juridical governance.

14. Billot's Critical Qualification

Billot observes:

"Sed utrum casus de facto unquam contigerit, alia omnino quaestio est. Quin imo, electionem Martini V, non ex propria auctoritate Concilii Constantiensis factam fuisse, sed ex facultatibus expresse concessis a legitimo Pontifice Gregorio XII, antequam papatui renuntiaret, nunc apud eruditos fere pro certo habetur."

But whether the case has ever actually occurred is another question entirely. Indeed, the election of Martin V was made not from the Council of Constance's own authority, but from faculties expressly conceded by the legitimate Pontiff Gregory XII before he resigned the papacy. This is now held as nearly certain among the learned.

15. Franzelin's Conclusion

Cardinal Franzelin, quoted approvingly by Billot, concludes that Providence resolved the crisis salvis omnibus legibus, with all laws preserved.

16. What Constance Establishes

The theoretical possibility of devolution to a council exists (Billot concedes Cajetan's point). But historically, papal involvement was always supplied. Gregory XII's involvement legitimated Constance even though most participants did not recognize his juridical authority. The involvement worked because he was the true Bishop of Rome. This is sacramental headship, not juridical governance Gregory XII died before Martin V's election; his prior authorization extended forward. The criterion for participation was sacramental (valid episcopal consecration plus acknowledgment of the Petrine office), not jurisdictional.

IV. DEVOLUTION BY NATURAL LAW

17. The Circumstance

If all pre-2013 Cardinals have died or become incapable of acting, the ordinary path is closed and the Church faces a situation requiring the extraordinary path.

18. Pure Devolution by Natural Law

This is the case Billot concedes to Cajetan. When the ordinary electors do not exist, the power to elect devolves by natural law to a general council.

The devolution is not necessity creating competence. It is natural law providing a channel for papal authority, understood as the authority of the Petrine office as such, to reach the electing subject.

19. The Electing Subject

Under pure devolution, the electing subject is the bishops in sacramental communion with Peter: valid episcopal consecration (the sacramental criterion) and communion with the Petrine office (acknowledgment of the office and intention to be in communion with its true holder).

This is Cajetan's "universal Church," not the laity, not anyone who claims Christianity, but the episcopal college defined by the sacramental criterion.

20. Cajetan's Qualification: Servatis Debitis Requisitionibus

Cajetan specifies that the devolved power operates servatis debitis requisitionibus, the due requirements being observed.

The Council would not act arbitrarily. It would follow established papal election law to the highest degree possible under natural law: election by the episcopal body, a clear majority threshold, procedural safeguards against fraud or manipulation, and public acceptance providing certainty.

21. Historical Precedent

Billot notes that historically, Providence has always supplied papal involvement in resolving such crises (as at Constance, where Gregory XII's convocation and approval legitimated the Council's action). The Constance precedent shows that the Council path can operate within law, salvis omnibus legibus.

V. REQUIREMENTS FOR A VALID EXTRAORDINARY COUNCIL

22. Summary of Requirements

From the theological sources, canonical norms, and historical precedent, the following requirements govern a valid extraordinary Council for papal election.

Sacramental Subject. Valid episcopal consecration is required. This is the sacramental criterion established by Canon 336, Canon 339, and the Constance precedent.

Communion with Peter. Acknowledgment of the Petrine office and intention to be in communion with its true holder. This distinguishes from the Orthodox and other groups that reject papal primacy. It includes confused obediences that acknowledge the office while disputing its current holder.

Universal Representation. The Council must be sufficiently inclusive to represent the whole body, not a private faction. Cajetan speaks of the "universal Church." This does not require every bishop to attend, but it requires that convocation be extended to all and that no legitimate participant be excluded.

Notification Without Exclusion. All bishops who meet the sacramental criterion must be notified. Those who refuse to attend exclude themselves; they are not excluded by the conveners. This follows the principle established in the Conclave document (UDG 40, Canon 166).

Procedural Adherence. Following established papal election law to the highest degree possible. The Council acts within law, not despite it. Cajetan's servatis debitis requisitionibus governs.

Objective Acceptance. Reception by the universal Church providing public certainty. John of St. Thomas on rite electum applies: the man duly elected and accepted by the Church is Pope quoad nos. This acceptance presupposes a valid act; it does not create one. But it provides the public certainty necessary for the Church's visible constitution.

VI. ANSWERS TO COMMON OBJECTIONS

Objection 1: "A Council cannot elect a Pope; only Cardinals can."

The ordinary path is through the Cardinals, as established by positive law. But Billot concedes that in extraordinary circumstances, the power of election can devolve to a general council. This is not the Council acting ex propria auctoritate (from its own authority), but receiving devolved authority from the Petrine office through natural law.

Objection 2: "This theory has never been used; it is speculation."

The pure devolution theory has never been needed because Providence has always supplied papal involvement (as at Constance). But the theoretical foundation is established in Billot, Cajetan, and the broader theological tradition. The Constance precedent shows the Council path in action, with papal involvement. If papal involvement is unavailable, the devolution mechanism exists for precisely that case. The Church's indefectibility requires that a lawful path exist; this theory provides it.

Objection 3: "Who decides which bishops are in communion with Peter?"

The criterion is objective: valid episcopal consecration plus acknowledgment of the Petrine office and intention to be in communion with its true holder. This excludes the Orthodox (who reject the office) and includes confused obediences (who acknowledge the office while disputing its holder). At Constance, bishops from three obediences participated, all acknowledging the Petrine office, disagreeing about which claimant held it. The same criterion applies.

Objection 4: "This would produce a counter-Church or schism."

A faction excludes others. Here, all bishops meeting the sacramental criterion are notified; none are excluded. Those who refuse exclude themselves. The Council acts as the episcopal college, not as a substitute for it. If the juridical analysis is correct (that the 2013 conclave lacked competence), then the Council path is the lawful path, not a schism, but the resolution of a crisis salvis omnibus legibus.

Objection 5: "This is sedevacantism by another name."

Classic sedevacantism collapses indefectibility by eliminating lawful succession once the Pius XII Cardinals died. This analysis preserves a lawful path to succession at every point. The pre-2013 Cardinals constitute the ordinary path; the Council path constitutes the extraordinary path if needed. The Church is never without recourse. This is the decisive difference from sedevacantist models that cannot account for how succession lawfully proceeds.

Objection 6: "Only hierarchical bishops appointed by a true Pope may participate; non-hierarchical bishops have no greater standing than laity."

This objection reflects the jurisdictional framework of the 1917 Code of Canon Law, which emphasized papal appointment as the basis of hierarchical standing. Under that framework, a bishop was a member of the hierarchy because he was appointed to a see by the Pope. Episcopal consecration conferred the power of orders, but hierarchical membership flowed from jurisdictional appointment.

The 1983 Code shifted this framework. Canon 336 now grounds College membership "vi sacramentalis consecrationis," by virtue of sacramental consecration, together with hierarchical communion. The sacrament itself, not jurisdictional appointment, is the basis of College membership.

This shift was not an innovation but a clarification. Episcopal consecration has always conferred the fullness of Holy Orders. The bishop receives apostolic succession through the sacrament, not through a jurisdictional decree. Jurisdiction is a distinct question, separable from sacramental standing. A bishop may lack jurisdiction (by resignation, by suspension, by failure of appointment) while retaining the fullness of the sacrament and membership in the apostolic college.

The Constance precedent confirms the sacramental criterion over the jurisdictional. At Constance, bishops came from three obediences. Each obedience regarded the others' jurisdictional standing as doubtful, because the legitimacy of their respective papal claimants was precisely what was disputed. No bishop could verify "hierarchical appointment by a certainly legitimate Pope," because that question was the reason for the Council. Yet the Council proceeded, and its election of Martin V was valid.

What criterion was actually applied at Constance? Not jurisdictional appointment, which was unverifiable. The criterion was sacramental: valid episcopal consecration plus acknowledgment of the Petrine office and intention to be in communion with its true holder.

The jurisdictional criterion, applied strictly, would have made Constance impossible. It would have required resolving the very question the Council was convened to resolve before the Council could be convened. This is circular. The sacramental criterion avoids the circularity by grounding participation in a fact (valid consecration) and an intention (communion with Peter), neither of which depends on prior resolution of the disputed question.

Those who insist on the jurisdictional criterion must explain how Constance was valid. If they cannot, their criterion fails the historical test. If they can, they must identify what criterion was actually applied, and that criterion will be sacramental, not jurisdictional.

CONCLUSION

The Church is not without recourse when the ordinary path to succession is unavailable.

The extraordinary path is a Council of validly consecrated bishops in communion with Peter, acting under the sacramental criterion established by Canon 336, Canon 339, and the Constance precedent.

When the ordinary electors are unavailable, devolution by natural law operates. The power to elect devolves to the episcopal college, acting servatis debitis requisitionibus, with all due requirements observed.

The resolution occurs within law, not despite it, salvis omnibus legibus.

The custodial status of the Apostolic See is not a permanent condition. It has a lawful terminus. That terminus comes either through the ordinary path (pre-2013 Cardinals acting once competence exists) or through the extraordinary path (a Council of bishops acting under devolved authority when the ordinary path is unavailable).

No miracle is required. No authority is fabricated. No exception is invoked. The Church's own theological tradition, canonical norms, and historical precedent provide the path.