1) Cassiciacum Thesis (Sedeprivationism)
The Cassiciacum (or Sedeprivationist) Thesis was originally formulated by French Dominican theologian and later illicitly consecrated bishop Guerard Des Lauriers. The thesis holds that the post-concilar popes on account of their public heresy occupy the Holy See materially; not having received the formal element, which is the full plentitude of power (i.e., jurisdiction).[1] Thus the post-concilar popes are not popes in the true and proper sense of the term, but rather only pope-elect (or designee) as Bishop Donald Sanborn puts it.[2] In his article “Explanation of the Thesis of Bishop Guerard Des Lauriers,” Bishop Sanborn draws a sharp distinction between the right of election and the power of ruling. He argues that public heretics retain the right of election, while denying they have the power of ruling (i.e., jurisdiction). He writes,
Q. Why would not defection from the Faith be an obstacle to the power to elect a pope?
A. Because public heresy has no legal effect until it is declared and recognized by the legal authority. So their legal right to elect a pope remains until such time as it is legally removed from them. Heresy is not an obstacle to the power to designate, but to the power to rule. For by heresy one is in fact separated from the Church, and becomes, therefore, radically incapable of ruling the Church. But because the cardinals are not heretics in the legal order, that is, they are not legally declared heretics, they remain capable of actions which pertain to the purely legal order, such as the election of a candidate to be pope.
The problem with this argument is that the declaratory sentence doesn’t actually inflict a penalty, so if the heresy is notorious by a notoriety of fact, the cleric would likewise lose his right of election. This is why Bishop Sanborn is forced to deny that the post-concilar Popes and Cardinals are notorious heretics in the canonical signification of the term. According to Sanborn,
VI. Canon 188 § 4 says that he who publicly should defect from the Faith tacitly renounces his office. But the conciliar “popes” have publicly defected from the Catholic Faith. Therefore they have renounced their office tacitly. Therefore they are not popes either formally or materially.
Resp. I distinguish the major: Canon 188 § 4 says that he who should publicly defect from the Catholic Faith tacitly renounces his office, if his imputability is public, I concede; however if it is occult, I deny. The reason is that defection from the the Faith must be legally known, which happens either by declaration or by notoriety. But the notoriety requires that not only the fact of the crime be publicly known, but also its imputability (Canon 2197). In the case, however, of defection from the Catholic Faith, either through heresy or through schism, it is necessary that the defection be pertinacious in order that it be imputable. Otherwise the law becomes absurd: every priest who through lack of advertence in a sermon pronounces a heresy would be guilty of notorious heresy, with all of the connected penalties, and tacitly would renounce his office. But defection from the Catholic Faith on the part of conciliar popes, although it be public with regard to fact, is not public with regard to imputability, and therefore there is no tacit renunciation. What is public is the intention of these “popes” to promulgate errors condemned by the ecclesiastical magisterium, and a sacramental practice which is heretical and blasphemous. Because this is so, one must conclude they necessarily do not possess apostolic authority, but one cannot conclude more or less. Not more, because competent authority alone is able to ascertain and declare legally the reality of their defection from the Catholic Faith, and not less, because it is impossible apostolic authority, because of the infallibility and indefectibility of the Church, promulgate errors which have been condemned by the ecclesiastical magisterium, and a sacramental practice which is heretical and blasphemous.[3]
The problem with this argument is that if the formal element of heresy (i.e., pertinacity) is lacking, then the post-conciliar popes are not heretics properly speaking. In other words, they remain external members of the Church. The only reason why some canonists hold that material heretics are excluded from the visible unity of the Church is because as canonist Edward Dargin argues, “The very fact that the law orders something under penalty of ipso facto censure is, in itself, a general warning, and sufficient to indicate contumacy on the part of the person who disregards it.”[4] However, according to canonist Fr. John Heneghan,
A notorious delict cannot be merely presumed to be such by virtue of canon 2200.2, for the assumed presence of notorious guilt in a delict is not based upon a presumption of law. It is based upon evidence in the act itself that is so certain, both as to the fact of the violation and as to the guilt of the delinquent, that there can be no doubt concerning either element.[5]
Bishop Sanborn agrees with this position when he writes,
Instance: But Canon 2200 presumes the immutability if the fact of the crime has been proved.
Resp.: I distinguish. It presumes imputability given the external violation of the law, I concede; it presumes imputability when the law has not been externally violated, I deny. In the case of defection from the Catholic Faith, the violation of the law involves pertinacity, and if it should be absent, the law is not violated. Where, therefore, pertinacity is neither notorious nor declared by law, Canon 2200 is not able to be applied.
He continues,
Instance: Canon 2200 § 2 presumes imputability when there is an external violation of the law.
Resp. This is to beg the question. To cite this canon is circular, because the violation of the law in the case of heresy requires pertinacity. Read the law: (Canon 1325 § 2): If one, after the reception of baptism, while retaining the name of christian, pertinaciously denies or doubts about any of the truths which must be believed by obligation of divine and Catholic faith, is a heretic; if he gives up the Christian faith entirely, he is an apostate; finally if he refuses submission to the Supreme Pontiff, or rejects communion with the members of the Church subject to the latter, he is a schismatic. Therefore there is not an external violation of the law where there is not external pertinacity. Even if one wishes to apply Canon 2200 § 2, the presumption of imputability in violation of the law against heresy matters nothing without the declaration of the Church, because presumption must cede to facts. De facto, however, it is not certain that these heretical “popes” are pertinacious, nor is there a competent authority or tribunal which is able to declare the fact of pertinacity. The whole argument labors under the difficulty of proving or even presuming pertinacity. In other words, when there is a lack of authority, or when it ceases to operate, confusion results, and certitude in legal matters becomes extremely difficult if not impossible. This argument always descends into an argument concerning the pertinacity of these “popes” from which, in my opinion, there is no exit.
Sanborn argues that there is no external violation of the law when pertinacity is absent. If that is the case, then how can the post-conciliar popes be guilty of the delict of heresy if they haven’t externally violated the law? According to Canonist Fr. John Heneghan,
In order that it may be said that a canonical delict has been committed it is necessary that there be an external and morally imputable violation of a law to which has been attached a canonical sanction [canon 2195.1]. Two conditions must therefore necessarily be verified before a delict is established: the external, objective fact of violation of such a law and the internal, subjective element of moral imputablity. If either element is absent, there is no delict.[6]
[1] Fr. Francesco Ricossas provides snippets of Bishop Lauriers’ writings in his article, “Pope, Papacy, and the Vacant See.” https://mostholytrinityseminary.org/wp-content/uploads/2019/01/Fr.-Ricossas-article-Pope-Papacy-and-the-Vacant-See.pdf
[2] https://mostholytrinityseminary.org/wp-content/uploads/2019/01/Explanation-of-the-Thesis.pdf
[3] On Being a Pope Materially (Second Part) https://mostholytrinityseminary.org/wp-content/uploads/2019/01/On-Being-a-Pope-Materially.pdf
[4] Edward Vincent Dargin, “Reserved Cases According to the Code of Canon Law,” (Washington: CUA Press, 1924), 10.
[5] John Joseph Heneghan, “The Marriages of Unworthy Catholics, Canons 1065 and 1066: A Historical Synopsis and Commentary,” (Washington: CUA Press, 1944), 92-95.
[6] ibid., 59.
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