The dramatic changes that have altered the face of the Church in recent decades have anguished many traditional Catholics. Some groups and individuals—called sedevacantists—even claim that the see of Peter has been vacant in one or more of the pontificates since the death of Pope Pius XII in 1958. On the basis of the same premise, "popes" such as Gregory XVII in Spain and Pius XIII in the United States have set themselves up with small groups of followers. But any such rejection of the authority of recent pontiffs has no support in the traditional doctrine and law of the Church, even on the highly unlikely assumption that one or more of these men has fallen into heresy in the strict, canonical sense of that word.
I am well aware that St. Robert Bellarmine and some other noted theologians have held that a pope may cease to be pope if he falls into heresy. But that is not doctrine, to which all Catholics are obliged to give their assent—it is debatable theological opinion with which we are free either to agree or disagree. I have no access at present to all the relevant canonical legislation in vigor four centuries ago in Bellarmine’s time, but for present purposes that does not matter.
What I will show is that the 1917 Code of Canon Law, together with traditional papal conclave legislation, leaves no room for the view that the commission of heresy or apostasy prevents a man from validly attaining or retaining the papal office. This is equally true of the 1983 Code and current papal conclave legislation, but, since the validity and binding character of these documents is not accepted by sedevacantists, I will not appeal to their authority here.
On the basis of twentieth-century canon law (found in both the 1917 and 1983 Codes), a pope who fulfilled the canonical requirements for heresy—that is, who pertinaciously doubted or denied one or more truths to be believed with divine and Catholic faith (cf. 1983 Code 751; 1917 Code 1325 §2)—would not have the moral right before God to be pope. Therefore, his remaining in office would be illicit. Still, if he refused to resign, he would truly be the pope in the sense that his acts of papal governance would still be valid before God and the Church. It should go without saying that divine providence would never permit him to define his heresy ex cathedra. The dogma of papal infallibility assures us this can never happen.
A clear understanding of the difference between liceity and validity is of fundamental importance here. A licit action means one carried out in accordance with law. The law in question may be natural law; it may be a law revealed by God (such as the obligation to receive baptism); or it may be human legislation, either civil or ecclesiastical, which is in accord with God’s law. It follows that an illicit action is objectively immoral, insofar as it violates a just law. A validaction, on the other hand, is one that produces the spiritual or juridical effects that it intends to produce. But a valid action may be licit or illicit, morally good or morally bad.
For instance, a bishop who carries out an episcopal consecration without papal mandate acts illicitly but validly. He violates a just law, but the man he ordains receives the sacramental powers of a bishop so that he in turn can ordain true priests capable of offering the holy sacrifice of the Mass. A priest who celebrates Mass while in a state of mortal sin or without using proper vestments acts illicitly. But, assuming there are no other defects in the way he offers Mass, it is still valid: The bread and wine he consecrates truly become the body and blood of Christ.
In the juridical field, the same principle holds. For instance, a bishop who appoints a certain priest as pastor of a parish knowing that the man is morally or psychologically unfit for the task acts illicitly, since the appointment violates canon law (cf. canon 521 §2, 1983 Code; canon 453 §2, 1917 Code). But the appointment is still valid. In other words, that priest is the rightful pastor of the parish so that, for instance, the marriages he witnesses there will be true marriages. The parishioners are obliged to accept and obey his just decisions for as long as the bishop keeps him in office.
Let us return now to the question of who can occupy the chair of Peter. Some sedevacantists claim that Cardinal Angelo Roncalli’s 1958 election as Pope John XXIII was invalid because of his having fallen previously into heresy and/or having secretly become a Freemason while acting as papal nuncio in Paris, thereby putting himself outside the Church. (At that time, membership in the Freemasons carried it with automatic, or latae sententiae, excommunication.)
If Roncalli’s election was invalid, the argument goes, no subsequent occupant of the Vatican’s Apostolic Palace has been a true pope either. Those named cardinals by the "non-pope" Roncalli would then have been in reality "non-cardinals" with no capacity to validly elect the next pope. So the election of G. B. Montini as Paul VI would also have been invalid, as well as those of his two successors up until now.
I will not attempt here to investigate and evaluate such charges, because, even if they were true, the resulting excommunications—surprising as this may sound—would not have disqualified Cardinal Roncalli from being validly elected as Pope. This is made clear by the special Church law governing conclaves. At that time the relevant legislation was that laid down in Pope Pius XII’s Apostolic Constitution Vacantis Apostolicae Sedis (December 8, 1945).
This document includes a special provision—startling at first glance—that in fact has been included substantially in all other papal legislation for conclaves from the fourteenth century on. (The most recent legislative act on this topic is John Paul II’s apostolic constitution Universo Dominici Gregis, issued February 22, 1996.) The relevant law laid down by Pius Xll reads as follows:
"None of the cardinals may in any way, or by pretext or reason of any excommunication, suspension, or interdict whatsoever, or of any other ecclesiastical impediment, be excluded from the active and passive election of the supreme pontiff. We hereby suspend such censures solely for the purposes of the said election; at other times they are to remain in vigor" (VAS 34). Active in this context means that such a cardinal may vote in the election, while passive means he himself can be elected.
It may seem incredible that the Church’s traditional law goes out of its way to make it possible for heretics, apostates, and Freemasons, among others, to be elected to the see of Peter. Shouldn’t such enemies of the Church be the first to be excluded from participation in something so sacred?
At first sight it would certainly seem so. But a moment’s reflection shows that such legislation is necessary precisely in order to protect the papacy from the calamity that sedevacantists claim has now in fact befallen it: a Church with no visible head and therefore no visible unity, a Church whose structures lie in utter chaos.
We need to remember that some offences carrying a penalty of latae sententiae excommunication, such as heresy, can be committed in great secrecy without any public knowledge of the fact. Thus, if the Church’s law required that a cardinal be free from all ecclesiastical censure in order to be eligible for the papacy, the voters in general would have no guarantee that any given candidate was not in fact ineligible because of some secret crime by which he had incurred excommunication. The voters might unwittingly carry out an invalid election, in which case the "pope" they elected would not be true pope. The invalidity of his acts would then be a kind of spiritual cancer quietly destroying the Church’s vital structures from within. The bishops appointed by him would have no true right to govern their respective dioceses. No laws he passed would be binding on the Church. In particular, the cardinals named by him would not be valid electors of a future pope. How then, if at all, could a true pope be restored? Who would be competent to decide?
When the fact of this hidden excommunication finally came to light, the resulting chaos would be unimaginable. Nobody would know with certainty who, if anyone, still had any real authority in the Church, and schism—perhaps a series of schisms—would seem inevitable. The Church’s law therefore foresees and avoids the possibility of this catastrophic situation by allowing that even a secret heretic or apostate, if elected as pope, would ascend the chair of Peter with full juridical rights over the universal Church on earth, even though at the interior, mystical level of grace he might be separated from the mystical body of Christ.
Now, if a heretic, apostate, or Freemason can be validly elected pope, then obviously he can validly remain acting as pope until he dies. The cardinals he appoints will be true cardinals, the bishops he appoints will have true jurisdiction, the saints he canonizes will be truly guaranteed to be in heaven, and the legislation by which he binds us will have to be obeyed (insofar as it does not command us to sin or do something manifestly opposed to the common good of the Church). Thus, the continuity of the universal Church will be preserved until in God’s providence a worthier pontiff is elected.
What of the case of a hypothetical pontiff who is orthodox when elected but falls into heresy during his pontificate? Does he thereby lose the papacy? It would seem contradictory, in the light of the conclave law we have just noted, if the answer were yes. Why should a pope who has been a secret traitor to Christ from the beginning of his pontificate have some sort of advantage over the man who at least began his pontificate with the faith of Peter?
In any case, canon law makes it clear that such a pope will not lose his power to govern the Church validly, not even by public expressions of heretical doctrine. In the 1917 Code, we find that apostates and heretics incur latae sententiae (ipso facto) excommunication (canon 2314 §1), but we need to consider other canons in order to see how excommunication relates to loss of ecclesiastical office.
Canon 2263 states that an excommunicated person, as we would expect, "is forbidden to exercise ecclesiastical offices or duties"—the first among which is, of course, the papacy. However, the next canon (2264) affirms the following: "An act of jurisdiction carried out by an excommunicated person, whether in the internal or the external forum, is illicit; and if a condemnatory or declaratory sentence has been pronounced, it is also invalid, without prejudice to canon 2261 §3; otherwise it is valid." (The other canon cited here, 2261 §3, makes an exception to this invalidity when it is a case of an officially excommunicated priest giving absolution to someone in danger of death.)
These last four words—"otherwise it is valid"—are highly significant. Let us assume that this pope, the validity of whose election no one disputes, refused to admit he had fallen into heresy. Since no other earthly person or authority—not even all the rest of the bishops gathered in an ecumenical council—would be competent to pass a condemnatory sentence against this pope or to declare that he has incurred excommunication, it follows from the Church’s law that, if he refuses to resign, all his acts of jurisdiction would remain valid, even though they would be illicit. So while this pope would offend God gravely by exercising his office while under an (undeclared) excommunication, all his official acts still would be juridically valid and binding on the Church’s members.
There is one other canon in the 1917 Code that might at first glance seem to provide a legal basis for the sedevacantists’ thesis that a pope could lose his office by falling into heresy after his election to the chair of Peter. Canon 188 §4 states that among the actions which automatically (ipso facto) cause any cleric to lose his office, even without any declaration on the part of a superior, is that of "defect[ing] publicly from the Catholic faith" (" A fide catholica publice defecerit"). However, to "defect publicly" from the faith clearly means something more drastic than making heretical (or allegedly heretical) statements in the course of public speeches or documents.
This particular cause of losing an ecclesiastical office is found in that section of the Code dealing with the resignation of such an office (canons 184–191) and is part of a canon which lists eight sorts of actions which the law treats as "tacit resignations." In other words, they are the sorts of actions that can be safely taken as evidence that the cleric in question does not even to want to continue in the office he held up till that time, even though he may never have bothered to put his resignation or abdication in writing.
Other examples within canon 188 make clear the sort of thing that is contemplated. Paragraph 3 has in mind a priest who accepts promotion to another ecclesiastical office incompatible with his previous one (e.g., a new diocesan bishop, whose very consecration could be taken as a tacit resignation from his previous office of being pastor of a certain parish). Paragraph 5 mentions clerics who get married, whether canonically (with a dispensation) or merely civilly. Paragraph 6 mentions clerics who, contrary to canon law, spontaneously join the secular armed forces.
In such a context, therefore, canon 188 §4, in speaking of "public defection from" (or "abandonment of’) the Catholic faith, can mean only that kind of defection that is obvious and indisputable before all the world, even to doctrinally illiterate Catholics and non-Catholics. In this kind of defection, the cleric in question ceases even to profess the Catholic faith and clearly has not the slightest desire to continue in his previous clerical office.
What the Code is contemplating here would be, for instance, a priest who openly joins a Protestant sect or a Masonic lodge or who declares himself an atheist and joins the Communist Party. In such sad cases as these, it is common that the priest in question simply packs up and leaves without ever bothering to submit a formal letter of resignation to his bishop.
It is quite obvious that none of the post-conciliar popes has ever acted in any way that is even remotely comparable with these sorts of "public defections" from the faith. Sedevacantists must admit that these occupants of the Apostolic Palace, recognized by the world as popes, have all at least publicly professed to be Catholics throughout their respective pontificates and have shown every public sign of intending to continue exercising the papal office until their dying day.
To sum up then:
1. The traditional and continuing law of the Church, expressed repeatedly in papal constitutions ever since the Middle Ages, allows for a heretical or apostate cardinal to participate fully in a papal conclave and even to be elected pope. If he could validly attain the papacy as a heretic or apostate, he could certainly retain it validly, even while remaining in that unhappy spiritual state.
2. A pope who began his pontificate as an orthodox Catholic but became a formal heretic or apostate during his pontificate would thereby legally incur excommunication. However, even if his heresy or apostasy should become publicly discernible, the absence of any competent authority on earth who could lawfully declare his excommunication would mean that, if he refused to resign and continued to insist on carrying out acts of papal authority, those acts, though illicitly exercised, would still be valid. In other words, he would still be juridically the true pope whom we would have to recognize and obey in all things but sin, even though at the inner level at which grace operates he might well be totally separated from the mystical body of Christ.
So when the white smoke rises from the Vatican signifying that the college of cardinals has elected a new pope, we are assured that that pope’s authority is valid. Thus God guards his Church from the possibility of being cast into chaos by being left without an earthly governing authority.