The Tacit Renunciation of an Ecclesiastical Office
by Public Defection from the Faith
according to Canon 188, Nr 4 of the 1917 Code.
Application to the Loss of the Papacy of Paul VI
Table of Contents
Introduction
- The General Concepts of Tacit Renunciation according to Canon 188
Argument 1: Tacit renunciation is not a presumption, but a true renunciation, equivalent to an express renunciation.
Argument 2: Tacit renunciation occurs ipso iure, independently of a contrary intention.
Argument 3: Tacit renunciation 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.
- 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 Paragraph 1, without a fixed number of witnesses.
Argument 8: Tacit renunciation is independent of excommunication or penalties.
- Theological Scope of the Principle
- Conclusions Drawn from the Work of McDevitt: The Papal See Has Been Vacant Since 1964
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 renunciation of an ecclesiastical office. This canon stipulates that every office becomes vacant ipso facto by a tacit renunciation 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 (The Catholic University of America Press, 1946), 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 citations and references, to illuminate the certain truth.
- The General Concepts of Tacit Renunciation according to Canon 188
Canon 188 reads as follows (translation according to Edward Peters):
“Any office becomes vacant ipso facto and without any declaration by tacit renunciation recognized by the law itself if a cleric:
[…]
- Publicly defects from the Catholic faith.”
McDevitt defines tacit renunciation as follows:
“Besides express renunciation of an ecclesiastical office, the Code takes into consideration another type of renunciation which it qualifies as tacit renunciation. […] 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 renunciation of the office.” (Chapter 10, pages 112-113).
Argument 1: Tacit renunciation is not a presumption, but a true renunciation, equivalent to an express renunciation.
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 renunciation. […] The law does not simply presume a renunciation in these cases. It rather attaches the effect of a renunciation to these acts when they are performed by the incumbent.” (Chapter 10, page 114).
He continues:
“The specified acts [are] equivalent in juridical effect to the complete formalities prescribed for the execution of an express renunciation. […] It is tacit because it does not observe the formalities required for an express renunciation, but it is equivalent to an express renunciation in all its effects. The law attaches the effect of a renunciation to these acts, but it does not presume a renunciation or an intention to resign.” (Chapter 10, pages 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.” (Ius Canonicum, volume 2, number 329).
Translation: “… the law recognizes that in certain actions there is contained a tacit renunciation, which the law itself admits and sanctions as a juridical consequence of that fact, without any declaration being necessary.” (Chapter 10, page 115).
Argument 2: Tacit renunciation 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 to retain the office at the time he performs the act. Tacit renunciation occurs despite any contrary intention on the part of the incumbent.” (Chapter 10, page 114).
Argument 3: Tacit renunciation 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 renunciation must not be considered as a canonical penalty.” (Chapter 10, page 116).
This is evident from the formulation in other canons, for example Canon 2314 number 1, 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 non-Catholic sects or adhere to them publicly, they are ipso facto infamous, and, saving the prescription of Canon 188, number 4, clerics, after a monition that has remained without effect, are to be degraded.” (Chapter 10, page 116).
Tacit renunciation is mentioned separately, not as a penalty. This element is decisive. Canon 2314 Paragraph 1, 3 does not present the loss of the 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 renunciation, on the other hand, 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 Paragraph 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.” (Chapter 10, page 116).
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 based 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 separate from the Catholic faith, as if pontifical jurisdiction could subsist independently of the external profession of that faith. The Roman primacy is ordered to confirm the brethren in the faith, to guard the revealed deposit and to maintain the visible unity of the Church. Now, one who would publicly defect from the Catholic faith would place himself, by the very fact, in contradiction with the formal reason of this office.
It is therefore necessary to distinguish two things: to judge the pope as superior, which no one in the Church can do, and to note that a subject has himself placed himself publicly outside the conditions necessary for the visible possession of the office. In this second hypothesis, the Church does not depose the pope by a superior authority; she notes that one who has publicly abandoned the faith can no longer be recognized as the present subject of the primacy.
This distinction answers the classical objection: “Prima Sedes a nemine iudicatur.” The First See is judged by no one as long as it is 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 formulates the argument in a particularly strong manner: one 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 belonging.
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 the visible head of the Catholic Church.
- 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 drawn from Canon 1325 number 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 someone, retaining the name of Christian, pertinaciously denies or doubts some truth that must be believed with divine and Catholic faith, he is a heretic; if he totally withdraws 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.” (Chapter 12, page 137).
Certain authors (Augustine, Blat, Toso, Coronata) exclude pure schism; others (Maroto, Vermeersch-Creusen, Cocchi, Sipos) include it. 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 should arise […], the author believes that the cleric would not lose his office by tacit renunciation […].” (Chapter 12, pages 138-139).
It must nevertheless be emphasized that heresy, in the strict sense of Canon 1325 Paragraph 2, does not consist in a simple material error. It supposes the pertinacious negation or doubt of a truth that must be believed with divine and Catholic faith. Thus, to establish a public defection from the faith, it does not suffice to note an ambiguous, imprudent or materially erroneous formula. It is necessary that 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 enrollment in a non-Catholic sect is not required to constitute the publicity that the canon demands.” (Chapter 12, page 139).
Argument 7: Publicity is determined by Canon 2197 Paragraph 1, without a fixed number of witnesses.
“Delictum est publicum, si iam divulgatum est aut talibus contigit aut versatur in adiunctis ut prudenter iudicari possit et debeat facile divulgatum iri.”
Translation: “A delict is public if it is already divulged or if it has occurred or exists in circumstances such that it can and must be prudently judged that it will easily be divulged.” (Chapter 12, page 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 actual divulgation, defection from the faith can also be public by reason of the fact that the circumstances force the conclusion that it will easily be divulged in the future.” (Chapter 12, page 139).
The authors agree that this is the required publicity.
Publicity must therefore not be confused with a judicial sentence. The fact can be public before any declaration by the authority, when its divulgation is already effective or when the circumstances allow one to judge prudently that it will be. A subsequent declaration may be necessary to establish 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.
Argument 8: Tacit renunciation is independent of excommunication or penalties.
“Since the author holds the opinion that a tacit renunciation is not of the nature of a penalty, he also holds that the prescriptions of Canon 2229 concerning excusing causes by 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 tacit renunciation.” (Chapter 12, page 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 this does not resolve the question of the office. If tacit renunciation 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?”
- Theological Scope of the Principle
The profound reason for this discipline is ecclesiological.
An ecclesiastical office is not a simple administrative function; it is ordered to the common good of the Church and supposes the visible profession of the Catholic faith. Now public defection from this faith precisely breaks the visible bond that renders a subject fit 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. One 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 preserve, teach or defend this faith.
It is nevertheless necessary to carefully distinguish the objective loss of the office and its public constatation. The first, according to Canon 188, occurs by the very fact when the conditions are met. The second may be necessary so that the Church, the faithful and the competent authorities can act with certitude and avoid confusion.
The incompatibility with the visible unity of the Church.
According to the doctrine of the First Vatican Council (Constitution Pastor Aeternus), the Roman Pontiff is the visible principle and the foundation of unity in faith and communion. A public defection from the faith precisely breaks this visible foundation ipso facto. One cannot be at the same time the head of the Mystical Body and visibly separated from it. This is not a new doctrine, but the consequent application of the ecclesiology of Saint Cyprian and the Fathers: extra Ecclesiam nulla salus et nulla auctoritas.
The very nature of the papacy as an office requiring the profession of the faith.
The office of the Sovereign Pontiff is not a simple human jurisdiction, but it is essentially linked to the custodia and the professio fidei (cf. First Vatican Council, on the primacy). Just as a baptized person who apostatizes publicly 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.
- Conclusions Drawn from the Work of McDevitt
“8. A tacit renunciation of an ecclesiastical office is not a presumed renunciation; it is a true renunciation admitted by the law as equivalent to an express renunciation.
A tacit renunciation is not a penalty imposed by the superior authority, but a juridical effect that the cleric provokes himself by his act, and that the law recognizes and sanctions ipso facto. It is therefore not a penalty, even if certain of the acts that effect such a renunciation are criminal acts. Consequently, cardinals are subject to the prescriptions of Canon 188.” (page 156).
Moreover, the historical precedents and the analogy with lower offices. The Church has always recognized that public heresy entails the vacancy of offices (cf. ancient councils and decretals). Canon 188 Paragraph 4 generalizes this rule for all offices. A fortiori, it applies to the supreme office, without implying any “judgment”: it is a simple constatation of a fact that the law itself attaches to the office (ipso iure 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 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 from 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 to retain it. It remains nevertheless necessary 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.