Does Canon 194 provide an opening to depose a heretical pope?

read­er points to Canon 194 as a pos­si­ble open­ing for depos­ing a hereti­cal pope. The canon lists cer­tain con­di­tions under which a per­son is “removed from an eccle­si­as­ti­cal office by the law itself.” These are:

• A per­son who has lost the cler­i­cal state; [i.e., the priest­hood]
• A per­son who has pub­licly defect­ed from the Catholic faith or from the com­mu­nion of the Church
• A cler­ic who has attempt­ed mar­riage even if only civil­ly

The canon adds an impor­tant qual­i­fi­ca­tion: “The removal men­tioned in nn. 2 and 3 can be enforced only if it is estab­lished by the dec­la­ra­tion of a com­pe­tent author­i­ty.”

Assum­ing the papa­cy is an “eccle­si­as­ti­cal office,” one first has to con­sid­er whether any of these latae sen­ten­ti­ae removals apply to a hereti­cal pope.

The first has to do with the loss of the priest­hood. Does a heretic pope ipso fac­to lose the priest­hood, and with the priest­hood the papa­cy? Has any­one shown this to be so? Since when does a heretic priest (who is not the pope) lose the priest­hood by that fact alone? He’d have to be found a heretic in a canon­i­cal tri­al, right? And then his bish­op would have to lai­cize him? Right? Who has the author­i­ty to lai­cize the pope?

The sec­ond deals with the pub­lic renun­ci­a­tion of the faith. This seems to me to be a bit larg­er than sim­ply “being a heretic.” In my expe­ri­ence, there are a large num­ber of heretics in the Church who have not renounced the faith. I would also guess that if a pope were to pub­licly renounce the faith, he would renounce the papa­cy along with it. Why go on being pope if you’ve renounced Catholi­cism? “The papa­cy is a tra­di­tion of men!” he would say, cast down his mitre, and join the Mor­mon Taber­na­cle Choir. In this case, we’d be talk­ing about some­thing alto­geth­er dif­fer­ent from heresy: We’d be talk­ing about apos­ta­sy.

The third is sim­ply not at issue. No one is ask­ing, “What if the pope meets some nice lady and wants to get mar­ried?”

But even if any of these applied, we would have the stip­u­la­tion of para­graph 2, which is that the loss of eccle­si­as­ti­cal office needs to be “estab­lished by the com­pe­tent author­i­ty.” In the case of the pope, who is “the com­pe­tent author­i­ty”?

And there we come full cir­cle again to Canon 1404: “The first see is judged by no one.”

PETERS, BELLARMINE, AND 1404

Canon lawyer Dr. Edward N. Peters has writ­ten a “Canon­i­cal Primer on Popes and Heresy.” And he says that one should not speak light­ly of such mat­ters. “Those flirt­ing with such sus­pi­cions or engag­ing in such rumi­na­tions,” he says, “should be very clear about what is at issue.”

Heresy, for dis­cus­sion’s sake, is “the obsti­nate denial or obsti­nate doubt after the recep­tion of bap­tism of some truth that must be believed by divine and catholic faith.” That’s a high bar.

“More­over,” says Dr. Peters, “pri­vate­ly-held hereti­cal views, even if they are lead­ing to cer­tain observ­able actions, are not in them­selves action­able under law (Canon 1330).”

That’s true for any­one, not just the pope. And Dr. Peters right­ly dis­miss­es as “impos­si­ble” any notion that a pope would com­mit the Church to heresy. That is dis­tinct, how­ev­er, from say­ing that a pope could be a heretic and could pro­mote his heresy pub­licly. (Not every­thing a pope says pub­licly binds the Church.)

(Dr. Peters stress­es here that the pos­si­bil­i­ty of a pope being a heretic, even apart from bind­ing the Church, is “very remote” [his ital­ics]. He cites Ver­meer­sch-Creusen, who calls it “quite improb­a­ble”; Beste, who says that “no exam­ple of this can be found”; and Cap­pel­lo, who says the very notion should be “entire­ly dis­missed.” I agree with Cap­pel­lo, and I assume that Beste exam­ined the facts about Hon­o­rius I and John XXII and found no con­vinc­ing evi­dence of actu­al heresy.)

But in terms of the “what if?” ques­tion, Dr. Peters thinks that canon law has “more to offer” than sim­ply Canon 1404. He cites Wrenn:

Canon 1404 is not a state­ment of per­son­al impec­ca­bil­i­ty or inerran­cy of the Holy Father.” [Cer­tain­ly not. And I know of no one who claims that it is.] “Should, indeed, the pope fall into heresy, it is under­stood that he would lose his office.

Yes, but how? Who would deter­mine that a pope had “fall­en into heresy”? Sure­ly the pope would have the right to a canon­i­cal tri­al. Who would con­duct that tri­al? I sup­pose most peo­ple would prob­a­bly say the Col­lege of Car­di­nals, or the CDF. And if they found him guilty of heresy, he would auto­mat­i­cal­ly lose the papa­cy. But where does Canon law say this? It does­n’t. “It is under­stood” is not a cita­tion from canon law.

And indeed Wrenn admits that Canon 1404 does not set­tle the ques­tion of who would try a pope for heresy. Dr. Peters adds that there is no oth­er canon that does answer this per­ti­nent ques­tion. (Not even canon 194.) “But,” he says (for there is always a but), per­haps the “canon­i­cal tra­di­tion” would have an answer.

He takes us to Franz Wernz, who seems to do no more than offer a re-pre­sen­ta­tion of Bel­larmine’s dis­cus­sion in De Romano Pontafice. Wernz accepts Bel­larmine’s view that a hereti­cal pope los­es his office latae sen­ten­ti­ae. Wernz says that a gen­er­al coun­cil could issue a “declara­to­ry crim­i­nal sen­tence” that the pope was “found to be hereti­cal.” (By whom?) This though he ear­li­er said that a coun­cil does not have a high­er juris­dic­tion than the pope. The dis­cus­sion in Wernz (and in Bel­larmine) is cir­cu­lar: No one could try a pope, no one could remove a pope, but a pope would lose his office any­way, because he would, because he would have to.

So while admit­ting that a hereti­cal pope “must be deprived of his pow­er,” Wernz has no answer at all as to who would do the depriv­ing. He sim­ply says that it “would” hap­pen.

Which more or less leaves us right where we start­ed.