20 Tacit Resignation of the Office causes loss of Papacy

Tacit resignation of an ecclesiastical office

by public defection from the faith

according to canon 188, n. 4 of the 1917 Code

Application to Paul VI’s loss of the papacy

 

 

Table of contents

 

Introduction

 

1. The general concepts of tacit resignation according to canon 188

 

Argument 1: Tacit resignation is not a presumption, but a true resignation, equivalent to an express resignation.

 

Argument 2: Tacit resignation occurs ipso iure, independently of a contrary intention.

 

Argument 3: Tacit resignation is not a penalty, even if certain acts are delicts.

 

Argument 4: Canon 188 applies to all offices and to all clerics, including cardinals, because it is not a penal law.

 

2. Specific application to public defection from the faith (canon 188, number 4)

 

Argument 5: Public defection from the faith includes heresy, apostasy and probably schism, but pure schism is doubtful.

 

Argument 6: Public defection does not require adherence to a non-Catholic sect.

 

Argument 7: Publicity is determined by canon 2197, n. 1, without a fixed number of witnesses.

 

Argument 8: Tacit resignation is independent of excommunication or penalties.

 

3. Theological scope of the principle

 

4. Conclusions drawn from McDevitt’s work: Papal See vacant since 1964

 

List of sources

 

Introduction

 

In the Codex Iuris Canonici of 1917, which embodies the certain and firm doctrine of the Catholic Church before 1963, canon 188 regulates the tacit resignation of an ecclesiastical office. This canon stipulates that every office becomes vacant ipso facto by a tacit resignation recognized by the law itself if a cleric performs one of the enumerated acts. Among these acts, number 4 is: public defection from the Catholic faith (A fide catholica publice defecerit).

 

This argument applies a fortiori to a putative pope, since the canon mentions “quaelibet officia”.

 

The canonist Gerald V. McDevitt, in his doctoral dissertation The Renunciation of an Ecclesiastical Office: A Historical Synopsis and Commentary (Washington, D.C., The Catholic University of America Press, 1946, Canon Law Studies, n. 218), provides a thorough explanation of this concept. McDevitt, who obtained his doctorate in canon law in 1945 and later became a bishop, demonstrates that public defection from the faith requires a lower threshold than some claim, and that it does not necessarily imply adherence to a sect. His analysis is based on the literal text of the canon, the definitions of the Code itself, and conformity with traditional doctrine. Below, all the arguments of his study are set forth systematically, with precise quotations and references, to illuminate the certain truth.

 

1. The general concepts of tacit resignation according to canon 188

 

Canon 188 reads as follows (English translation of the Latin text):

 

“Every office becomes vacant by the very fact and without any declaration by tacit resignation recognized by the law itself if a cleric:

 

[…]

 

4. Publicly defects from the Catholic faith.”

 

McDevitt defines tacit resignation as follows:

 

“Besides the express resignation of an ecclesiastical office, the Code takes into consideration another type of resignation which it qualifies as tacit resignation. […] All that is necessary is that the cleric perform one of the acts or be responsible for one of the omissions to which the law attaches the effect of a tacit resignation of the office.” (McDevitt, chap. X, p. 112–113).

 

Argument 1: Tacit resignation is not a presumption, but a true resignation, equivalent to an express resignation.

 

McDevitt refutes the opinion of authors who speak of a presumption iuris et de iure:

 

“The author is of the opinion that there is no presumption involved in the sanction which the law attaches to a tacit resignation. […] The law does not simply presume a resignation in these cases. Rather it attaches the effect of a resignation to these acts when they are performed by the holder.” (McDevitt, chap. X, p. 113–114).

 

He continues:

 

“The author believes that the law accepts the acts enumerated in canon 188 as equivalent, as to their juridical effect, to the complete fulfilment of the formalities prescribed for an express resignation. […] It is tacit because it does not observe the formalities required for an express resignation, but it is equivalent to an express resignation in all its effects. The law attaches the effect of a resignation to these acts, but it does not presume a resignation or an intention to resign.” (McDevitt, chap. X, p. 114–115).

 

In support, he cites Wernz-Vidal:

 

“… ius in certis factis agnoscit contineri tacitam renuntiationem, quam ipsum ius admittit et sancit tamquam sequelam iuridicam illius facti, quin opus sit ulla declaratione.” (F. X. Wernz–P. Vidal, Ius Canonicum, t. II, De personis, n. 329 ; McDevitt, chap. X, p. 115).

 

Translation: “… the law recognizes that in certain actions there is contained a tacit resignation, which the law itself admits and sanctions as a juridical consequence of that act, without any need of a declaration whatsoever.” (McDevitt, chap. X, p. 115).

 

Argument 2: Tacit resignation occurs ipso iure, independently of a contrary intention.

 

“The vacancy of the office is effected by the performance of these acts, even if the person manifests his intention of retaining the office at the moment he performs the act. Tacit resignation occurs despite any contrary intention on the part of the holder.” (McDevitt, chap. X, p. 114).

 

Argument 3: Tacit resignation is not a penalty, even if certain acts are delicts.

 

“It is true that some of the acts enumerated in canon 188 constitute delicts, and have special penalties attached to them, but the effect of a tacit resignation is not to be regarded as a canonical penalty.” (McDevitt, chap. X, p. 115).

 

This is evident from the formulation in other canons, for example canon 2314, § 1, n. 3:

 

“Si sectae acatholicae nomen dederint vel publice adhaeserint, ipso facto infames sunt et, firmo praescripto can. 188, n. 4, clerici, monitione incassum praemissa, degradentur.”

 

Translation: “If they give their name to a non-Catholic sect or publicly adhere to it, they are ipso facto infamous, and, the prescription of canon 188, number 4 remaining in force, clerics, after a monition that has remained without effect, are to be degraded.” (McDevitt, chap. X, p. 116).

 

Tacit resignation is mentioned separately, not as a penalty. This element is decisive. Canon 2314, § 1, n. 3 does not present the loss of office as a penalty added to excommunication, infamy or degradation. On the contrary, it expressly safeguards canon 188, number 4, by the formula firmo praescripto can. 188, n. 4. It follows that the vacancy of the office by public defection from the faith belongs to a juridical order distinct from that of canonical penalties. The penalty may require conditions proper to penal law; tacit resignation, for its part, flows directly from the fact to which the law attaches this effect.

 

Argument 4: Canon 188 applies to all offices and to all clerics, including cardinals, because it is not a penal law.

 

“Although cardinals are not subject to penal law unless they are expressly mentioned [canon 2227, § 2], the author believes that they are subject to the prescriptions of canon 188 without such special mention, since in his opinion this canon is not a penal canon.” (McDevitt, chap. X, p. 115).

 

This argument applies a fortiori to a putative pope, since the canon mentions “quaelibet officia”.

 

The application of this principle to the Roman Pontiff must be founded not only on canon 188, but also on the very nature of the papacy and of visible membership in the Church.

 

The pope is the visible principle of the unity of the Church in faith, government and communion. He does not possess an authority separated from the Catholic faith, as if pontifical jurisdiction could subsist independently of the exterior profession of that faith. The Roman primacy is ordered to confirming the brethren in the faith, to keeping the revealed deposit and to maintaining the visible unity of the Church (First Vatican Council, constitution Pastor aeternus, 18 July 1870, prologue and chap. IV). Now he who would publicly defect from the Catholic faith would place himself, by that very fact, in contradiction with the formal reason of this office.

 

Two things must therefore be distinguished: judging the pope as superior, which no one in the Church can do, and ascertaining that a subject has himself publicly placed himself outside the conditions necessary for the visible possession of the office. In this second hypothesis, the Church would not depose the pope by a superior authority; she would ascertain that he who has publicly abandoned the faith can no longer be recognized as the actual subject of the primacy.

 

This distinction answers the classic objection: “Prima Sedes a nemine iudicatur.” (Code of 1917, canon 1556.) The first See is judged by no one so long as it is a question of a true Roman Pontiff exercising his office. But the question posed in the case of a public defection from the faith is not whether the Church can be superior to the pope; it is whether a man who has publicly ceased to profess the Catholic faith can still be the visible principle of Catholic unity. The negative answer does not come from a power of jurisdiction exercised against the pope, but from the incompatibility between public heresy and the visible possession of an office that requires visible communion with the Church.

 

Theological tradition has often expressed this principle by saying that a manifestly heretical pope would not be deposed by the Church as by a superior authority, but would cease to be pope by reason of his visible separation from the Church. Saint Robert Bellarmine (De Romano Pontifice, book II, chap. XXX; English translation by Ryan Grant, On the Roman Pontiff, vol. Ia, Mediatrix Press, 2015) formulates the argument in a particularly strong manner: he who is no longer a member of the Church cannot be its visible head. The head and the members must belong to the same body; now the public profession of the faith is a necessary element of this visible membership.

 

It does not follow that a simple error, an ambiguous word or a private fault suffices. For the argument to be applicable, there must be a public, formal, pertinacious and morally certain defection from the Catholic faith. Theological prudence therefore requires distinguishing material error from formal heresy, ambiguity from manifest negation, and doctrinal scandal from public rupture with the faith.

 

Thus, in the case of the Roman Pontiff, canon 188 must not be invoked mechanically as if it were an ordinary office. It nevertheless manifests a canonical principle in conformity with a deeper theological truth: the possession of an ecclesiastical office, and a fortiori of the supreme office, is incompatible with a public defection from the Catholic faith. In the case of the pope, this incompatibility does not mean that the Church judges or deposes her superior, but that she recognizes that public defection from the faith destroys the very condition by which a subject can be recognized as visible head of the Catholic Church.

 

2. Specific application to public defection from the faith (canon 188, number 4)

 

McDevitt treats this in chapter 12, pages 136-140.

 

Argument 5: Public defection from the faith includes heresy, apostasy and probably schism, but pure schism is doubtful.

 

Definitions taken from canon 1325, § 2:

 

“Post receptum baptismum si quis, nomen retinens Christianum, pertinaciter aliquam ex veritatibus fide divina et catholica credendis denegat aut de ea dubitat, haereticus ; si a fide Christiana totaliter recedit, apostata ; si denique subesse renuit Summo Pontifici aut cum membris Ecclesiae ei subiectis communicare recusat, schismaticus est.”

 

Translation: “After the reception of baptism, if anyone, retaining the name of Christian, pertinaciously denies or doubts any of the truths that must be believed by divine and Catholic faith, [he is] a heretic; if he withdraws totally from the Christian faith, [he is] an apostate; if finally he refuses to be subject to the Supreme Pontiff or refuses communion with the members of the Church subject to him, he is a schismatic.” (McDevitt, chap. XII, p. 137).

 

Certain authors (Augustine, A Commentary, t. II, p. 161 ; Blat, Commentarium, t. II, n. 135 ; Toso, Commentaria Minora, t. II, p. 155 ; Coronata, Institutiones, t. I, n. 263) exclude pure schism; others (Maroto, Institutiones, t. I, n. 684 ; Vermeersch–Creusen, Epitome, t. I, n. 306 ; Cocchi, Commentarium, t. II, n. 101 ; Sipos, Enchiridion, p. 164) include it (cited by McDevitt, chap. XII, p. 137–138).

 

McDevitt:

 

“According to the strict interpretation […] it must be admitted that the canon does not indisputably include the condition of pure schism […]. However, one might doubt that the law intends to exclude consideration of schism […]. In practice, it will be extremely rare that a case of pure schism arises […]. If however a case of pure schism were to arise […], the author believes that the cleric would not lose his office by a tacit resignation […].” (McDevitt, chap. XII, p. 138).

 

It must nevertheless be emphasized that heresy, in the strict sense of canon 1325, § 2, does not consist in a simple material error. It presupposes the pertinacious denial or doubt of a truth that must be believed by divine and Catholic faith. Thus, to establish a public defection from the faith, it is not sufficient to note an ambiguous, imprudent or materially erroneous formula. It is necessary that the opposition to the Catholic faith appear as formal, public and morally certain.

 

Argument 6: Public defection does not require adherence to a non-Catholic sect.

 

“It must be noted immediately that adherence or inscription in a non-Catholic sect is not required to constitute the publicity which the canon demands.” (McDevitt, chap. XII, p. 139).

 

Argument 7: Publicity is determined by canon 2197, n. 1, without a fixed number of witnesses.

 

“Delictum est publicum, si iam divulgatum est aut talibus contigit seu versatur in adiunctis ut prudenter iudicari possit et debeat facile divulgatum iri.”

 

Translation: “A delict is public, if it has already been divulged or if it has occurred or is found in circumstances such that one can and must prudently judge that it will easily be divulged.” (Code of 1917, canon 2197, n. 1 ; cf. McDevitt, chap. XII, p. 139).

 

“Thus defection from the faith can be public by the fact that it is already known to a notable part of the community. The law prescribes no special number necessary to constitute a notable part of the community. The determination of this point is left to the prudent judgment of man. […] Besides being public by reason of an actual divulgation, defection from the faith can also be public by the fact that the circumstances force one to conclude that it will easily be divulged in the future.” (McDevitt, chap. XII, p. 139).

 

The authors agree that this is the required publicity (McDevitt, chap. XII, p. 139).

 

Publicity must therefore not be confused with a judicial sentence. The fact can be public before any declaration of authority, when its divulgation is already effective or when the circumstances allow one to judge prudently that it will easily be so. A subsequent declaration may be necessary to ascertain the fact in the practical order and to avoid disorder; but it does not constitute the cause of the vacancy, since the canon speaks of an effect produced ipso facto and sine ulla declaratione (canon 188).

 

Argument 8: Tacit resignation is independent of excommunication or penalties.

 

“Since the author maintains the opinion that a tacit resignation is not of the nature of a penalty, he also maintains that the prescriptions of canon 2229 concerning excusing causes with reference to latae sententiae penalties do not apply […]. Thus the author believes that even if one could think that a cleric was excused from incurring excommunication […], he would nevertheless lose his office by a tacit resignation.” (McDevitt, chap. XII, p. 139–140).

 

This distinction prevents a frequent objection. One might maintain that a cleric escapes a latae sententiae penalty by reason of an excusing cause provided by penal law. But that does not resolve the question of the office. If tacit resignation is not a penalty, the rules that excuse from incurring it do not necessarily suppress the proper effect of canon 188. The decisive question then becomes not: “has he incurred such a penalty?”, but: “has he publicly performed the act to which the law attaches the vacancy of the office?”

 

3. Theological scope of the principle

 

The profound reason of this discipline is ecclesiological.

 

An ecclesiastical office is not a mere administrative function; it is ordered to the common good of the Church and presupposes the visible profession of the Catholic faith. Now public defection from this faith precisely ruptures the visible bond that renders a subject apt to exercise an office in the name of the Church.

 

Canonical law therefore does not arbitrarily create an incompatibility; it juridically recognizes an incompatibility already rooted in the very nature of the ecclesiastical office. He who publicly separates himself from the Catholic faith cannot, at the same time and under the same respect, be recognized as the normal holder of an office destined to conserve, teach or defend this faith.

 

One must nevertheless carefully distinguish the objective loss of the office and its public ascertainment. The first, according to canon 188, occurs by the very fact when the conditions are fulfilled. The second may be necessary so that the Church, the faithful and the competent authorities can act with certainty and avoid confusion.

 

The incompatibility with the visible unity of the Church.

 

According to the doctrine of the First Vatican Council (constitution Pastor aeternus, 18 July 1870, prologue), the Roman Pontiff is the visible principle and the foundation of unity in faith and communion. A public defection from the faith precisely ruptures this visible foundation ipso facto. One cannot at the same time be the head of the Mystical Body and be visibly separated from it. This is not a new doctrine, but the consistent application of the ecclesiology of Saint Cyprian and the Fathers: “salus extra Ecclesiam non est” — “salvation does not exist outside the Church” (Cyprian, Letter 73, 21 ; cf. Letter 4, 4). The theological synthesis is: extra Ecclesiam nulla salus et nulla auctoritas (for authority: Bellarmine, De Romano Pontifice, book II, chap. XXX).

 

The very nature of the papacy as an office requiring the profession of the faith.

 

The office of the Sovereign Pontiff is not a mere human jurisdiction, but it is essentially linked to the custodia and the professio fidei (cf. First Vatican Council, constitution Pastor aeternus, chap. IV). Just as a baptized person who publicly apostasizes is no longer a member of the Church, so he can no longer be recognized as incarnating visible unity. This clearly distinguishes between the infallible office (which remains vacant) and the person who, by his own act, renders its possession impossible.

 

4. Conclusions drawn from McDevitt’s work

 

Synthesis of McDevitt’s analysis and conclusions (chap. X, p. 114–116 ; p. 156, conclusions 8 and 9).

 

A tacit resignation of an ecclesiastical office is not a presumed resignation; it is a true resignation admitted by the law as equivalent to an express resignation.

 

A tacit resignation is not a penalty imposed by a superior authority, but a juridical effect which the cleric himself provokes by his act, and which the law recognizes and sanctions ipso facto. It is therefore not a penalty, even if some of the acts that effect such a resignation are criminal acts. Consequently, cardinals are subject to the prescriptions of canon 188.

 

Moreover, the historical precedents and the analogy with inferior offices. The Church has always recognized that public heresy entails the vacancy of offices (cf. Council of Ephesus, 431, canons 1 and 3 ; Lucius III, Ad abolendam, in the Decretals of Gregory IX, book V, title VII, chap. IX ; McDevitt, chap. XII, p. 136). Canon 188, n. 4 generalizes this rule for all offices. A fortiori, it applies to the supreme office, without implying any “judgment”: it is a simple ascertainment of a fact which the law itself attaches to the office (ipso facto and sine ulla declaratione).

 

Practical prudence in the present crisis. In the vacancy of the See since the public heresy of Paul VI in 1964 (cf. chapter 033, § 3.2) and the false popes who have followed, this mechanism of canon 188 offers a firm and objective basis for recognizing the vacancy, without subjective interpretations or compromises such as the Cassiciacum thesis or R&R. It protects the faithful against confusion and confirms the visible Church in its integrity.

 

This doctrine shows that public defection from the faith, without adherence to a sect and with a lower threshold for publicity, renders the office vacant ipso facto, without declaration or intention of retaining it. It remains necessary, however, to establish a public, formal and morally certain defection. This is the certain doctrine of the Church before 1963, in conformity with sound reason and canonical tradition.

 

List of sources

 

1. Catholic Church, Codex Iuris Canonici, 1917, canons 188, n. 4 ; 1325, § 2 ; 1556 ; 2197, n. 1 ; 2227, § 2 ; 2229 ; 2314, § 1, n. 3. Latin text.

 

2. First Vatican Council, First dogmatic constitution on the Church of Christ, Pastor aeternus, 18 July 1870, prologue and chapter IV. Latin text.

 

3. Cyprian of Carthage, Correspondence, letter 73 to Jubaianus, § 21 ; letter 4 to Pomponius, § 4. Latin text. The letter to Pomponius bears the number LXII in the Patrologia Latina, t. IV, col. 371.

 

4. Council of Ephesus, 431, canons 1 and 3. English translation by Henry R. Percival, in Nicene and Post-Nicene Fathers, second series, vol. XIV, under the direction of Philip Schaff and Henry Wace, 1900.

 

5. Lucius III, Ad abolendam, in the Decretals of Gregory IX, book V, title VII, chapter IX (X 5.7.9). Latin text. See also McDevitt, The Renunciation of an Ecclesiastical Office, chapter XII, p. 136.

 

6. Robert Bellarmine, De Romano Pontifice, book II, chapter XXX. English translation by Ryan Grant: On the Roman Pontiff, De Controversiis, vol. Ia, books I–II, Mediatrix Press, first edition, 20 May 2015. Latin original ; translation established according to the Ingolstadt edition of 1588.

 

7. Gerald V. McDevitt, The Renunciation of an Ecclesiastical Office: A Historical Synopsis and Commentary, Washington, D.C., The Catholic University of America Press, 1946, Canon Law Studies, n. 218, chapter X, p. 112–116 ; chapter XII, p. 136–140 ; p. 156, conclusions 8 and 9. Work in English.

 

8. F. X. Wernz–P. Vidal, Ius Canonicum, t. II, De personis, second edition, Romae, Apud Aedes Universitatis Gregorianae, 1928, n. 329 ; edition cited by McDevitt, p. 115. Latin text.

 

9. Augustine, A Commentary on the New Code of Canon Law, t. II, sixth edition, St. Louis, Herder Book Co., 1936, p. 161. Cited by McDevitt, p. 137, note 5.

 

10. Blat, Commentarium Textus Codicis Iuris Canonici, t. II, second edition, Romae, F. Ferrari, 1921, n. 135. Cited by McDevitt, p. 137, note 6.

 

11. Toso, Ad Codicem Iuris Canonici Commentaria Minora, t. II, Romae, Marietti, 1921, p. 155. Cited by McDevitt, p. 137, note 7.

 

12. Coronata, Institutiones Iuris Canonici, t. I, Taurini, Marietti, 1928, n. 263. Cited by McDevitt, p. 137, note 8.

 

13. Maroto, Institutiones Iuris Canonici, t. I, third edition, Romae, Apud Commentarium pro Religiosis, 1921, n. 684. Cited by McDevitt, p. 137, note 9.

 

14. Vermeersch–Creusen, Epitome Iuris Canonici, t. I, sixth edition, Mechlinae–Romae, H. Dessain, 1937, n. 306. Cited by McDevitt, p. 137, note 10.

 

15. Cocchi, Commentarium in Codicem Iuris Canonici, t. II, fourth edition, Taurinorum Augustae, Marietti, 1937, n. 101. Cited by McDevitt, p. 137, note 11.

 

16. Sipos, Enchiridion Iuris Canonici, third edition, Pécs, Ex Typographia « Haladás R. T. », 1936, p. 164. Cited by McDevitt, p. 137, note 12.

 

17. Internal reference: chapter 033, Proofs that Paul VI, and his Successors (John Paul I, John Paul II, Benedict XVI, Francis I, Leo XIV..) are Heretics, § 3.2. English text.