Tacit Resignation of an Ecclesiastical Office
By Public Defection from the Faith
According to Canon 188 of the 1917 Code
Table of Contents
Introduction
1. 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 all clerics, including cardinals, because it is not a penal law.
2. Specific Application to Public Defection from the Faith (Canon 188, §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 §1, without a fixed number of witnesses.
Argument 8: Tacit resignation is independent of excommunication or penalties.
3. Conclusions Drawn from the Work of McDevitt
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 any 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 (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 from his study are presented systematically, with precise quotations and references, to illuminate the certain truth.
- General Concepts of Tacit Resignation According to Canon 188
The canon 188 reads as follows (translation according to Edward Peters):
Any office becomes vacant by the fact itself and without any declaration by tacit resignation recognized by the law itself if a cleric:
[…]
- Publicly defects from the Catholic faith;
[…]
McDevitt defines tacit resignation as follows:
“Besides the express renunciation of an ecclesiastical office, the Code takes into consideration another type of resignation 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 X, pp. 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 implied in the sanction which the law attaches to a tacit renunciation. […] The law does not merely presume a resignation in these cases. It rather attaches the effect of a resignation to these acts when they are posited by the incumbent.” (Chapter X, p. 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 resignation to these acts, but it does not presume a resignation or an intention to resign.” (Chapter X, pp. 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, II, n. 329).
Translation: “… the law recognizes that in certain actions there is an implicit renunciation, which the law itself admits and sanctions as a juridical consequence of that act, without the need for any declaration.” (Chapter X, p. 115).
Argument 2: Tacit resignation occurs ipso iure, independently of a contrary intention.
“The vacancy of the office is effected by the positing of these acts, even if the person manifests his intention to retain the office at the time he posits the act. The tacit resignation occurs despite any contrary intention on the part of the incumbent.” (Chapter 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 must not be considered as a canonical penalty.” (Chapter X, p. 116).
This is evident from the formulation in other canons, for example canon 2314 §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 publicly adhere to them, they are ipso facto infamous, and, firm the prescription of canon 188, n. 4, clerics, after useless warnings, are degraded.” (Chapter X, p. 116).
The tacit resignation is mentioned separately, not as a penalty.
Argument 4: Canon 188 applies to all offices and all clerics, including cardinals, because it is not a penal law.
“Although cardinals are not subject to penal law unless expressly mentioned [can. 2227 §2], the author believes that they are subject to the prescriptions of canon 188 without such a special mention, since according to his opinion this canon is not a penal canon.” (Chapter X, p. 116).
This argument applies a fortiori to a putative pope, since the canon mentions “quaelibet officia.”
- Specific Application to Public Defection from the Faith (Canon 188, §4)
McDevitt treats this in Chapter XII, pp. 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 §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 to be believed by 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 XII, p. 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 unquestionably include the condition of pure schism […]. However, one might doubt whether the law intends to exclude the consideration of schism […]. In practice, it will be extremely rare for a case of pure schism to arise […]. If however a case of pure schism arose […], the author believes that the cleric would not lose his office by a tacit renunciation […].” (Chapter XII, pp. 138-139).
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 which the canon demands.” (Chapter XII, p. 139).
Argument 7: Publicity is determined by Canon 2197 §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 occurred or is in circumstances such that it can and must prudently be judged that it will easily be divulged.” (Chapter XII, p. 139).
“Thus the defection from the faith may be public from 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 the man. […] Besides being public from the fact of an actual divulgence, the defection from the faith may be public also from the fact that the circumstances force the conclusion that it will easily be divulged in the future.” (Chapter XII, p. 139).
The authors agree that this is the required publicity.
Argument 8: Tacit resignation 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 the excommunication […], he would nevertheless lose his office by a tacit renunciation.” (Chapter XII, p. 140).
III. Conclusions Drawn from the Work of McDevitt
“A tacit renunciation of an ecclesiastical office is not a presumed resignation; it is a true resignation admitted by the law as equivalent to an express renunciation…
A tacit renunciation of an ecclesiastical office is not a penalty, even if some of the acts which effect such a renunciation are criminal acts. Consequently, cardinals are subject to the prescriptions of canon 188.” (p. 156).
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. This is the certain doctrine of the Church before 1963, in conformity with sound reason and the canonical tradition.