- diddd'WdS'
%'Lvr ,'■■·■ V-·.
g <
J· ;

1939

‘7
LDoheny, C. £ fed
\t’sdk'· d*^·*·~ d 1 -1^4^ ^ίΛ*· 7 '-K Ολ ’'jd 4 y»
•cr'\~''·* 'dd./· dM'df d| ?d <

K

i

?·

·· ‘rx^ 5.-‘·-

. 'γζ-·^^·

‘ . ^ . t >> C,l/5^s“ .

<

-Ç * \-v’i V? , ν.-^< r. I S-1 '

' > v" Λ ■·; ,7 ν'-i' * <vA ΐψΕΐΰ'4·Ί
Ά*Χ
>'
•The. Catholic University of America, f ',’;/7
'<^<7. V L
dv ' . Canon'Law Studies
7, -\*Js:'’·. 7-'-y^d7'f - '-Ί
*- ‘

< Χ\Α·\
:ÿ<<
,\
t

*Z
A ''.'''J-l·'''·
.f

’ Ï-*.:.

ÿ.û

*"y-+r.

-/Λ¥/_<·

? ’^5? .J >'> ir À- HISTORKAL ‘ SYNOPSIS ANDæOKlMENfARY
*H<Xf

Æ

d

- RE^pERALD. Y .McDevitt^.T.L., J.C.L
iS^. ·>. >p]

Submitted -to the Faculty of.-the School "of Canon ' Law ;
of.-the. Catholic -University of America, in' Partial .</ 1
\
-X Fulfillment of the Requirements'for <
o
Degree of Doctor
~
Λ
r

*■

s

, < ;7
4<:4:
Λ
'<*>* -'.·
\·' i. λ ‘’X/ f

$.J,Doheny,C. S.Q

The Catholic University of America
Canon Law Studies
No. 218

THE RENUNCIATION OF AN
EG®LESIASTICAL-^FFICE
o>’

A HISTOWAL SYNOPSIS ΑΝΦ*'COMMENTARY

£
-I
â

£
BY THE

Q

“i

Rev^Gerald V. McDevitts.T.L., J.C.L.
PRIEST OF THE ARCHDIOCESE OF PHILADELPHIA

A DISSERTATION
Submitted to the Faculty of the School of Canon Law
of the Catholic University of America in Partial
Fulfillment of the Requirements for the
Degree of Doctor of Canon Law

THE CATHOLIC UNIVERSITY OF AMERICA PRESS
WASHINGTON, D. C.
1946

MS

Nihil Obstat:
EDUARDUS G. ROELKER, S.T.D., J.C.D.,
Censor Deputatus
Washington, D. C., die 8 maii 1945.
Imprimatur:
D. CARD. DOUGHERTY,
Archiepiscopus Philadelphiensis
Philadelphiae, die 11 maii 1945.

Copyright, 1946
The Catholic University of America PreSS> iNc_

To
My Father
and
Mother

TABLE OF CONTENTS
PAGE

Foreword.................................................................................. xiii
CHAPTER

I.Preliminary Remarks................................................. 1
Article I. The Definition of an Ecclesiastical
Office .
.
.
.
.
.
.
.
■ Article II. The Definition of an Ecclesiastical
Benefice.......................................................6
Article III. The Definition of a Renunciation of
an EcclesiasticalOffice *
.
.
.
.

1

8

PART ONE
HISTORICAL SYNOPSIS

II.

The Doctrine of Express Renunciation from .
the Decree of Gratian to the Council of
Trent...................................................... 11
Article I. The Subject and Object of an Ex­
press Renunciation.............................................. 11
Section 1. Subjects Who Were Excluded
from Renouncing an Office
.
.
.
11
A. The Mentally Incapable
...
11
B. Minors . ·..................................................... 12
Section 2. A Type of Benefice That Could
Not Be Renounced.............................................. 12
Article II. The Competent Superior for the Ad­
mission of an Express Renunciation .
.
13
Section 1. The Roman Pontiff
.
.
.14
Section 2. The Bishop............................................ 15
Section 3. The Legate a Latere .
.
.16
Section 4. The Validity of Resignations Made
Without the Intervention of the Competent
Superior.............................................................. 18
Article III. The Sufficient Cause Required for
an Express Renunciation .
.
.
.20
. ■ vii

SH

'

'

■■

viii
CHAPTER

Table of Contents
'

'

'

page

Article IV. The Freedom Required in an Ex­
press Renunciation
.
.
·
·
22
Section 1. Freedom from Force and Fear
22
Section 2. Freedom from Simony.
.
.25
Article V. The Form of an Express Renuncia­
tion
.
;
.
.
· 26

III. The Doctrine on Tacit Renunciation from
the Decree of Gratian to the Council of
Trent
.
.
..........................
.
.
Article I. The Reception of Incompatible Offices
Article II. The Marriage of a Minor Cleric
.
Article III. Solemn Religious Profession .
.
Article IV. Voluntary Military Service .
.
IV.

27
27
33
36
37

The Doctrine on Express Renunciation from
the Council of Trent to the Codé of
Canon Law .
.
. ·-.
. 3g
Article I. The Subject and Object of an Ex­
press Renunciation
..
jg
Section 1. Subjects Who Were Excluded
from Renouncing an Office
.
.
3g
-A. Major Clerics
.
.
.
;
. 3g
B. Novices .
·
·
. 39
C. Those Close to Death .
.
.
, 4g
Section 2. A Type of Benefice That Could
Not Be Renounced
.
.
.
·
. 40
Article II. The Competent Superior for the Ad­
mission of an Express Renunciation .
. 41
Article III. The Sufficient Cause Required for
an Express Renunciation
.
.
;
-42
Article IV. The Freedom Required in an Ex­
press Renunciation
.
.
... 43
Section 1. Freedom from Force and Fear .43
Section 2. Freedom from Simony
.
. 45
Article V. The Form and Publication of an
Express Renunciation.......................................... 49

ix

Table of Contents
CHAPTER

PAGE

Section 1.
Section 2.
V.

The Form
. .
The Publication .

.
.

·

.
.

.
49
.50

The Doctrine on Tacit Renunciation from
the Council of Trent to the Code of
Canon Law
.
.
.
.
.
.
.
52
Article I. The Reception of Incompatible Of­
fices
...............................................................52
Article II. The Marriage of a Ceric
.
. 55
■ Article III. Religious Profession
.
.
. ’ 57
Article IV. Voluntary Military Service
.
. 58
PART TWO

CANONICAL COMMENTARY

VI.

The Legitimate Subject and Object of an Ex­
press Renunciation
....
. 60
Article I. The Mental Capacity of the Subject
61
Article II. The Requirement of a Just Cause . 62
Article III. Special Prohibitions in Regard to
the Subject and Object
.
.
.
. 64
Section 1. Novices
.
.
.
.
. 64
Section 2. Major Qerics
.
.
.
. 65
• Section 3. Conditional Renunciation of Bene­
fices ...
.
.
.
.
.·
. 66
Section 4. The Power of the Ordinary to
Establish Special Prohibitions .
.
.
70

VII.

The Competent Superior for the Admission of
an Express Renunciation
.
.
.
.73
Article I. The Generic Determination of the
Competent Superior........................................... 73
Article II. The Specific Determination of the
Competent Superior........................................... 79
Section 1. The Roman Pontiff ...
79
Section 2. The Local Ordinary ...
83
Section 3. Cardinals
.
.
.
.
. 89

Table of Contents

X

chapter

VIII.

IX.

X.

PAGE
Express Renun90
ciation....................................
Article I. Freedom from Force and Fear
. 92
Section 1.
Freedomfrom Force .
·
· 92
Section 2.
FreedomfromGrave Fear . . · 93
Article II. Freedom from Deceit and Error . 95
Section 1.
Freedomfrom Deceit .
.
. 95
Section 2.
Freedomfrom Error ...
97
Article III. Freedom from Simony ... 98

The Freedom Required

in an

The Form, the Acceptance, the Revocation,
and the Publication of an Express Re­
nunciation
.
.
.
.
.
.
. 103
Article I. The Form of an Express Renuncia­
tion
.
.
.
.
. 103
Article II. The Acceptance and the Revocation
of an Express Renunciation
.
.
.. 106
Article III. The Publication of an Express Re­
nunciation
.................................................110
The Concept of a Tacit Renunciation

.

. 112

XI.

Tacit Renunciation of an Office in Conse­
quence of Non-Criminal Acts ;.
. ug
Article I. Religious Profession .
.
.
< ng
Article II. Failure to Take Possession of an Ec­
clesiastical Office Within the Appointed
Time
......
.
. 122
Article III. The Reception of a Second Incom­
patible Office . .
.
.
.
.
. 124
Article IV. Voluntary Military Service .
. 131

XII.

Tacit Renunciation of an Office in Conse­
quence of Criminal Acts
.
.
.
.136
Article I. Public Defection from the Faith
.136
Article II. Marriage or Attempted Marriage . 140
Article III. Failure to Wear the Proper Ec­
clesiastical Garb ...... 145
Article IV. Desertion of Residence .
· 150

.

xi

Table of Contents

.

.

.

.

.

Bibliography.....................................

.

.

.

.158

.

.

.164

.

.

.

t

.

.168

.

.

.

Conclusions

Abbreviations

.

.

.

.

.

.

Alphabetical Index .

.

,

.

.

.

Biographical Note

Canon Law Studies .

.

.

.

156

165

169

FOREWORD
With reference to ecclesiastical offices one is inclined to think
almost exclusively of the manner of conferral of such offices and
of the qualities required in the subject for the reception of them.
Such an attitude tends to give the impression that the Church in
her legislation has not given and does not give much attention
to the question of how an ecclesiastical office may be forfeited
by the incumbent after he has once received it. Any such im­
pression is entirely wrong, for there is an abundance of past
and present legislation that gives ample testimony to the Church’s
care in this regard. It is logical, too, that the Church should
exercise such care in this matter, for it is an element that exerts
a profound influence on the external rule of the ecclesiastical
society.
In the present work a specific mode by which an ecclesiastical
office is lost, namely, the renunciation of an office by its in­
cumbent, is under consideration. The renunciation may be either
express or tacit. The former type is one that is executed in
accordance with the various formalities prescribed in the law;
the latter type is one that is effected by the mere placing or
omission of certain specific acts to which the law attaches the
effect of a renunciation. Both types of renunciation are con­
sidered in this work.
It must be emphasized from the beginning that the type of
' ecclesiastical office that is under consideration here is an ec­
clesiastical office in the strict sense as it is defined in canon 145,
§ 1, for the rules in canons 184-191 which regulate the renuncia­
tion of an ecclesiastical office apply only to offices in the strict
sense. Canon 145, § 2, establishes the presumption that the term
“ ecclesiastical office,” when used in the law, denotes an ec­
clesiastical office in the strict sense unless the opposite meaning
is apparent from the context. There is nothing in the canons
which treat of the renunciation of an ecclesiastical office to destroy
this presumption.
xiii

)|

■;
i
4
q
i
iJ
i
i:

:;

;

.

h
'

I
«■

'

xiv

Foreword

Likewise, it is important to note that the present work is a
treatment of the renunciation of an ecclesiastical office in general. It is not simply a treatment of the renunciation of an
ecclesiastical benefice, which is a specific type of ecclesiastical
office. While it is true that the legislation on ecclesiastical of- ,
fices in general applies also to benefices, there are also some special
prescriptions with reference to the latter. Such special prescriptions will not receive primary consideration, and the writer will
make mention of benefices only when he believes that such men­
tion is required for the sake of clarity or completeness.
After a short introductory chapter containing necessary pre­
liminary remarks and definitions, the work is divided into two
parts, namely, a historical synopsis and a canonical commentary.
In the former part an attempt is made to present in a chronological
succession within a logical order a general picture of the historical
development of the legislation on the renunciation of an ec­
clesiastical office. In the period prior to the Code of Canon Law
the greater part of the legislation had reference to the renuncia-,
tion of an ecclesiastical benefice, and the indiscriminate use of
the terms “ office, benefice, dignity and personate,” makes it dif­
ficult at times to separate the legislation into definite categories.
The Code, on the other hand, presents a distinct set of rules for
the regulation of the renunciation of an ecclesiastical office in
general. In the latter part of this work an attempt is made to
present as clearly as possible the proper interpretation of the
present-day legislation of the Code of Canon Law.
Since an express renunciation and a tacit renunciation of an
ecclesiastical office differ greatly as to the manner of their execu­
tion, they receive separate consideration in both parts of this work.
The writer wishes to express his sincere gratitude to His
Eminence, Dennis Cardinal Dougherty, Archbishop of Philadelphia, for the opportunity to pursue advanced studies at the
Catholic University of America, and to the members of-the
Faculty of the School of Canon Law for their profitable instruction and kind assistance.
<

:

'

ύ.

λ

CHAPTER I

PRELIMINARY REMARKS
Article I.

The Definition of an Ecclesiastical Office

The concept of an ecclesiastical office has varied somewhat in
the history of the Church. The purpose of an ecclesiastical of1
fice has always been that of aiding the Church in the attainment
of her end, namely, the eternal salvation of men. Jesus Christ
established a double hierarchy of orders and of jurisdiction for
the Church, but the Church had to add to the nucleus by the crea­
tion of other offices which participated in and aided the divinely
instituted hierarchy in the completion of its task. In practice
it was difficult to determine in what way and to what extent a
definite charge had to participate in this work of the Church in
order to be classified as an ecclesiastical office in the strict sense
of the term.
Prior to the Code of.Canon Law an ecclesiastical office in the
strict sense was restricted in its application to those incumbencies
which participated in the power of jurisdiction. Hence Wemz
(1842-1914) defined an office in the strict sense as follows:
... est gradus quidam jurisdictionis ecclesiasticae
quoad personas, causas, locum legibus Christi vel Ec­
clesiae in perpetuum ita institutus, ut jura et onera
spiritualia ipsi adnexa nomine proprio et ratione quadam
stabili sint exercenda.1

While a grade of jurisdiction was necessaiy to constitute an of­
fice in the strict sense, all that was necessary to constitute an
office in the broad sense was that the charge hâve annexed to it
the right of performing some act of orders or of administering
ecclesiastical things.1
2
1 lus Decretalium (6 vols., Vol. Π, 3. ed., 191S, Prati), ΊΙ, η. 240.
2 Wemz, toc. cit.

1

2

The Renunciation of an Ecclesiastical Office

The Code, retaining for the concept of an ecclesiastical office
the essential elements predicated for it in the pre-Code law, ex­
tended the definition of an office whether taken in a strict sense
or understood in a broad conception of that term. The Code defines
an ecclesiastical office in the broad sense as
. quodlibet munus
quod in finem spiritualem legitime exercetur.”3 Hence the only
requisite for an office in the broad sense is that it be a charge
which is exercised according to the norms of law for the glory
of God and the good of souls. According to this definition an
organist, a sacristan and other like persons must be considered
to have an office in the broad sense. It is worthy of note also
that the incumbent of an office in the broad sense may be a lay
person, since there is no power of jurisdiction or of orders necessarily involved in such an office.
The definition of an ecclesiastical office in the strict sense
demands closer attention and examination, for the present work
deals precisely with the renunciation of offices which can and
must be considered as such in the strict sense. The definition
of an ecclesiastical office in the strict sense, as given by the Code,
reads as follows :

f

.!

... munus ordinatione sive divina sive ecclesiastica
stabiliter constitutum ad normam sacrorum canonum
conferendum, aliquam saltem secumferens participa­
tionem ecclesiasticae potestatis sive ordinis sive iurisdictionis*

As is evident from the definition itself, the concept of an ec­
clesiastical office in the strict sense has been widened to include
also the case of a participation in the power of orders as a suf­
ficient foundation for such an office.
There are four constitutive elements in the definition of an
office in the strict sense :5
a—Divine or ecclesiastical institution—This requirement autosCan. 145, § 1.
‘Can. 145, §1.
* Cocchi, Commentarium in Codicem luris Canonici (8 vols., Vol. Π, 4.
ed„ 1937; Vol. VIII, 4. ed., 1938, Taurinorum Augustae: Marietti), Π,
η. 59. Hereafter this work is cited as Commentarium.

j

Preliminary Remarks

3

matically excludes the State from any competency in the estab­
lishment of an ecclesiastical office. Some offices, as, for example,
the papacy and the episcopate, have been established by divine
institution; others, like the offices of the metropolitan and of
the vicar general, are of ecclesiastical origin. Maroto ( 1875-1937)
makes a distinction between the institution of an office in genere
and in specie* An example will best explain what he means
by this distinction. The episcopate has been established by Christ
as an office for the universal Church. That is the constitution
of the office in genere. The individual bishoprics are constituted
by the Roman Pontiff. This is the constitution in specie.
b—Stability—This property of an office demands that a posi­
tion, once established by the competent authority, remain in
existence independently of his will and of the will of the incum­
bent. All authors agree that this stability is an objective stability,
that is, that it applies to the office itself and not to the incumbent’s
tenure of office.6
7 This objective stability does not require that
the office be transferred from incumbent to incumbent without
interruption. All that is necessary is that it be conferred when
the circumstances demanding it are verified, as, for example, is
the case with reference to the office of the vicar capitular.89
McBride expresses this point well by saying that the stability
has reference to the constitution of the office in genere and not
to its constitution in specie*
c—Conferral according to the canons—The prescriptions of
6Institutiones luris Canonici (2 vols., Vol. I, 3. ed., 1921, Romae: Apud
Commentarium pro Religiosis), I, η. 582. Hereafter this work is cited as
Institutiones.
1 Blat, Commentarium Textus Codicis luris Canonici (5 vols, in 6, Vol. II, '
2. ed., 1921; Vol. Ill, Pars altera, 1923, Romae: F. Ferrari), II, n. 85
(Hereafter this work is cited as Commentarium') ; Vermeersch-Creusen,
Epitome luris Canonici (3 vols., Vol. I, 6. ed., 1937 ; Vol. Ill, 5. ed, 1936,
Mechlinae-Romae : H. Dessain), I, n. 263 (Hereafter this work cited as
Epitome) ; Maroto, Institutiones, I, n. 579.
8 Wernz-Vidal, Ius Canonicum (7 vols, in 8, Vol. II, 2. ed, 1928, Romae:
Apud Aedes Universitatis Gregorianae), II, n. 140; Vermeersch-Creusen,
Epitome, I, n. 227.
9 Incardination and Excardination of Seculars, The Catholic University of
America Canon Law Studies, n. 145 (Washington, D. C. : The Catholic
University of America Press, 1941), p. 431.

4

The Renunciation of an Ecclesiastical Office

canon law must be followed in the making of appointments to
ecclesiastical offices, for in their existence these offices depend,
not on the will of the appointing superior, but on the law of the
Church. Maroto claims that this prescription holds even with
reference to an office established by particular law.10
d—-Possession of some participation in the powers of orders
or of jurisdiction—The statement of the canon in this matter is
quite general, and as a result controversies have arisen in the
determination of its precise meaning.
With reference to the participation in the power of orders
Vidal (1867-1938) states that the power attached to the office
must be a power over and above that which the incumbent ob­
tained at the time of his ordination.11 Cocchi,12 Claeys BouuaertSimenon13 and McBride14 accept the power of orders received
at the time of ordination as sufficient to satisfy the requirements
of the definition of an office in the. strict sense. Coronata15 and
Maroto 16 go still a step further. They state that the recitation
of the divine office and other like functions imply a sufficient
participation in the power of orders to furnish a basis in . this
particular regard for the constituting of an office in the strict
sense.
McBride explains rather clearly* his opinion in this matter. He
states that the power of orders must be a power of orders in
the strict sense of the term. Hence he excludes the recitation
of the divine office and other similar functions. He admits that
the power of orders attached to an office may be one that is
special and distinct from that acquired in ordination, but he does
not require that it be such in order to satisfy the requirement
of the participation in the power of orders in an office in the
10 Institutiones, I, p. 675, footnote 3.
11 Ius Canonicum, II, η. 140.
12 Commentarium, Π, η. 59.
13 Manuale Juris Canonici (3 vols.. Vol. I, 3. ed., 1930, Gandae et Leodii:
Seminarium Gandavense et Leodiense) I, n. 306. Hereafter this work is
cited as Manuale.
14 Incardination and Excardination of Seculars, p. 435.
15Institutiones luris Canonici (5 vols., Vol. I, 1928; Vol. IV, 1935,
Taurini: Marietti), I, n. 204. Hereafter this work is cited as Institutiones.
16 Institutiones, I, n. 579.

>

<

■*

)

.

4
" i

λ

!

t
■

i

>

■

Preliminary Remarks

'

5

strict sense. The power of orders already acquired by ordina­
tion is sufficient, provided that the office carries with it the right
to exercise that power within a given sphere. Thus, the office
of a coadjutor bishop contains in it the right to exercise pontifical
orders, with the exception of ordinations, in the territory of the
" diocese, arid is therefore an office in the strict sense. In this
sense, according to McBride, the power of orders acquired at
the time of ordination is sufficient to constitute the requisite
element of the participation in the power of orders in an ec­
clesiastical office in the strict sense.
The same type of difficulty is encountered in the determination
of the power of jurisdiction which is necessary as an element
for constituting an office in the strict sense. While it is readily
admitted by the authors that this power may pertain either to
the internal forum or to the external forum, it is not so readily
admitted that this power may be either ordinary power or dele­
gated power. The majority of the authors. seems to take it for
granted that ordinary power is required to constitute an office
in the strict sense.1’ Presumably they arrive at this conclusion
because of the fact that the Code defines ordinary power as that
which is by law attached to an office.17
18
Vermeersch-Creusen,19 Sipos20 and McBride,21 on the con­
trary, maintain that it is possible to have an ecclesiastical office
in the strict sense with only delegated power as its content.
Sipos contends that the definition of ordinary power as that power
which is attached to an office ipso iure does not warrant the con, elusion that every office must have ordinary power. The superior
could attach delegated power to an office, as, for example, in the
. case of synodal judges, and this delegated power would be suf­
ficient to constitute it an office in the strict sense, provided that
the other requirements were present. McBride maintains that the
17 Cf. Wemz-Vidal, Ius Canonicum, II, η. 140 ; Maroto, Institutiones, I,
η. 579; Coronata, Institutiones, I, n. 278.
w Can. 197, § 1.
18 Epitome, II, n. 742.
20 “ Ad officium sacrum an requiritur potestas ordinaria ”—Jus Pontifi­
cium (Romae, 1921- ), XVI (1936), 67.
21 Incardination and Excardination of Seculars, p. 446.

6

The Renunciation of an Ecclesiastical Office

requirement of the law on this point is satisfied as long as the
office has attached to it the efficacious right that some power be
delegated to the incumbent of each specific office by the proper
superior.
.
.
Hilling takes exception to the arguments ôf Sipos and defends
the more common opinion which holds that “ office ” and “ ordi­
nary power ” are correlative terms.22. He admits that the defini­
tion of an office which the Code gives does not make this point
dear, but he maintains that it becomes quite clear when the
definition of an office is compared with the definition of ordinary
power. Ordinary power is something inherent in the office;
delegated power is merely complementary. Since synodal judges
have only delegated powers, Hilling denies that they have an office
in the strict sense. To his mind their nomination is merely a
recognition of their qualities and ability, and does not carry with
it any participation in the power of jurisdiction. They receive
theirjurisdiction when they are commissioned for specific cases.
This discussion could be carried on at great length. The-in­
tention of the writer was to give a brief glance at the two opinions
with their underlying arguments without attempting to solve the
problem involved. The writer favors the opinion which holds
that ordinary power is necessary as an element for the constitut­
ing of an office in the strict sense. In spite of some difficulties
that such an opinion creates, it seems, nevertheless, to be the
opinion which harmonizes more intimately with the concept of
ordinary and delegated power as presented in the Code.
Article II. The Definition of an Ecclesiastical Benefice
Although the present work is not a treatise on the renuncia­
tion of an ecclesiastical benefice, which is a particular type of
ecclesiastical office, nevertheless, since the close relationship of
these two institutes will demand that benefices receive some con­
sideration at times, a brief explanation of the definition of a
benefice is presented here. The close relationship of these two
institutes is clearly shown in the Code where it states that the
m “ Kirchliches Officium und Potestas ordinaria"—Archio fiir katholisches
Kirchenrecht (Innsbruck, 1857-1861; Mainz, 1862- ), CXVII (1937), 433.
Hereafter this periodical is cited as AKKR.

Prelintinary Remarks

7

laws on ecclesiastical offices apply to benefices as well.2324
Canon 1409 defines an ecclesiastical benefice as follows:

... est ens iuridicum a competente ecclesiastica auc­
toritate in perpetuum constitutum seu erectum, constans
officio sacro et iure percipiendi reditus ex dote officio
adnexos.
This definition declares a benefice to be a moral person consist­
ing of two elements, namely, a sacred office and the right to
receive from the endowment the revenue attached to the office.
a—The benefice is a moral person—This means that it is by
law considered a subject of rights and obligations. The benefice
is a non-collegiate moral person composed, therefore, not of
physical persons, but of the sacred office and the right to the
revenue attached to the office.21
b—The benefice must contain a sacred office—The benefice is
in fact a species of ecclesiastical office. Whatever is predicated
of offices in general may be applied to benefices also, but the
converse is not true.25*27As has already been noted, there are two
types of ecclesiastical office, namely, the ecclesiastical office in
the broad sense and in the strict sense. The ecclesiastical office
which is required in order to be constituted as a benefice is an
ecclesiastical office in the strict sense. The Code establishes the
presumption that the term “ ecclesiastical office” must be inter­
preted to mean an ecclesiastical office in the strict sense unless
the opposite meaning is apparent from the context.2® Since there
is nothing in the context of canon 1409 to destroy this presump­
tion, the benefice must contain an office in the strict sense.22
c—-The benefice must contain the right to receive from the
endowment the revenue attached to the office—Under the present
law the concept of the endowment has been extended in .its mean­
ing to include many sources of revenue. The Code permits the
« Can. 146.
24 Haydt, Reserved Benefices, The Catholic University of America Canon
Law Studies, n. 161 (Washington, D. G : The Catholic University of
America Press, 1942), p. 62.
25 Coronata, Institutiones, I, η. 205.
28 Can. 145, § 2.
27 Haydt, Reserved Benefices, p. 66.

8

The Renunciation of an 'Ecclesiastical Office

endowment to be constituted by property owned by the benefice
itself as a moral person, by contributions whose payment is im­
posed upon families or corporations, by reliable voluntary offer­
ings of the faithful, by stole fees regulated by the diocesan statutes
or by legitimate custom, or by choral distributions, excepting,
however, one-third part of the last mentioned distributions if
the entire revenue of the benefice is made up of such distribu­
tions.28 Besides, if the benefice is a parochial benefice, a dowry ,
in one of the above-mentioned senses is not necessary, provided
that the superior prudently foresees that sufficient income will
not be lacking.29

The Definition of a Renunciation of an
Ecclesiastical Office
The Code enumerates five different ways by which an ecclesias­
tical office may be lost by the incumbent.39 First mention is given
by the Code to the way that is under consideration in the present
work, namely, the renunciation of the office by the incumbent.
Before the Code of Canon Law a distinction was made between
the terms “renunciation” and “ resignation ” with reference to
ecclesiastical offices. The latter term was used to designate a
special type of renunciation, namely, one that was made in favor
of another person.31 The Code has given no recognition to this
distinction and makes use of the two terms as synonyms.32
The Code does, however, make exclusive use of the term dimissio,
to designate the renunciation of a benefice.33
The Code does not provide a definition of the renunciation of
an office. Maroto, gathering the elements from the canons which
treat of the renunciation of an office, describes it as follows:

' Article III.

Libera cessio officii ecclesiastici, ex iusta causa, apud
competentem superiorem ecclesiasticum facta et ab ipso
acceptata.3*
™ Can. 1410.
23 Can. 1415, § 3.
33 Can. 183, § 1.
« Wemz, Ius Decretalium, Π, η. 493, footnote 3.
33 Cf. Can. 157; 2400.
33 Maroto, Institutiones, I, p. 804, footnote 2.

Preliminary Remarks

i

i

j
I
i
Î
I
!
!
i
:
j
j
Î

I

ί τ'

’

9

Since the elements of this definition will be considered in detail
in the commentary section of this work, it is not necessary to
subject them to analysis here. It is sufficient to note the various
types of renunciation of office. The renunciation of an office may
be express or tacit. The former type is one which is made in
accordance with all the solemnities prescribed in the law. The
latter, on the other hand, is one that is contained in an act or
omission, imputable to the incumbent, to which the law attaches
the effect of a resignation. No solemnities are required. It
suffices that the incumbent be accountable for the act or omission
to which the law attaches the effect of a tacit renunciation. The
vacancy follows immediately without the need of any declara­
tion on the part of the superior. Canon 188 contains an allinclusive list of the acts and omissions which beget a tacit renun­
ciation of office.
Express renunciation of office may be either absolute or con­
ditional. An absolute resignation is one that is made unqualified
by any agreement or condition ; a conditional one rests upon some
kind of proviso or is bound up with some kind of agreement
which must be fulfilled if it is to become effective. The latter
type is rare, but there are some instances in which the law per­
mits such resignations.35
It is to be noted here that the subject under discussion in the
present work is the renunciation of a strictly considered ecclesiastical office regarding which the resigning party has a ius
in re. If a person has a ius ad rem by reason of nomination,
presentation or election, he may indeed renounce that right, but
such a renunciation is not a true renunciation of office, nor is
it regulated by the rules which govern the renunciation of an
ecclesiastical office.36 Coronata demands too much, however,
when he states that possession of the office along with the twj in
re is required before the renunciation of the office can be consideréd a true renunciation.3’ It is true that the taking of possession of an office is often required before one may exercise
the jurisdiction attached to the office, as, for example, in the
35 Cf. Can. 1486-1488.
38 Coronata, Institutiones, I, n. 259.
37 Loe. cit.

·

10

The Renunciation of an Ecclesiastical Office

case, of a bishop,38 but the title is possessed prior to the fact
whereby possession is taken of the office, and hence a renuncia­
tion of that right would constitute a true renunciation. This
opinion seems to be amply proved 'by the fact that the Code
enumerates among the tacit renunciations in canon 188 the failure
to take possession of one’s office within the prescribed time.3’
« Can. 334, § 2.
«’Can. 188, η. Z

PART ONE

HISTORICAL SYNOPSIS
CHAPTER II

THE DOCTRINE ON EXPRESS RENUNCIATION FROM
THE DECREE OF GRATIAN TO THÉ COUNCIL
OF TRENT
.

Article I. The Subject

and

Object

of an

Express Renun­

ciation

In general it may be stated that in this period all persons were
capable of renouncing any ecclesiastical office to which they had
a ius in re. To this general rule, however, there were some
exceptions by reason of particular prohibitions which were incor­
porated into the law. This article will attempt to outline these
prohibitions.
SECTION 1.

SUBJECTS WHO WERE EXCLUDED FROM RENOUNCING

AN OFFICE

/

A—The Mentally Incapable
In his comments on a letter of Pope Alexander II (1061-1073)
the Glossator remarked that the renunciation of a benefice which
was involved in the case under consideration would have been
valid if it had been made in the hands of the proper superior,
provided that the resigning party was compos sut at the time.1
Thus the Glossator required that the person'be in possession of
his faculties in order to renounce a benefice. For proof of this
opinion he made reference to a letter written by Pope Innocent
HI in the year 1198.1
2 In this letter the Pontiff declared that the
1 Glossa Ordinaria, ad c. 1, C. XVIII, q. 2, s.v. refutavit.
2 C. 3, X, de successione ab intestato. III, 27 ; Potthast, Regesta Pontifi­
cum Romanorum inde ab anno post Christum natum MCXCVIII ad annum
MCCCIV (2 vols., Berolini, 1874-1875), n. 252. Hereafter this work is
cited as Potthast.

11

12

The Renunciation of an Ecclesiastical Office

last testament of a certain archbishop would not be sustàinéd if
it could be proved that he was not in possession of his faculties
at the time he made it.
B—Minors
Minors were excluded from the possibility of renouncing an
office without the intervention of a tutor. Pope Alexander III
(1159-1181) in a letter to the Archbishop of Canterbury de­
clared that a minor could not administer a church personally,
even though one had been conferred upon him by means of a
dispensation.3 The Glossa Ordinaria noted that a minor could
not have the free administration of anything until he had reached
the age of twenty-five years.4
Pope Boniface VIII (1294—1303) mitigated this rule when he
declared that a minor above the age of puberty could act for
himself in regard to spiritual things and anything depending on
them.5 Thus only children below the age of fourteen were pro­
hibited from renouncing an office on their own authority.
SECTION 2.

A TYPE OF BENEFICE THAT COULD NOT BE RENOUNCED

The only restriction in this regard in the Corpus luris Canonici
seems to have been the prohibition of renouncing a benefice in
favor of a third party when the present incumbent was at court
with another regarding his legal right to the benefice. This
regulation is contained in a letter of Pope Boniface VIII.6 The
contest had to be settled before the benefice could be conferred
upon any one other than the party involved in the dispute.
3 C. 2, X, de aetate et qualitate et ordine praeficiendorum, I, 14; Jaffé,
Regesta Pontificum Romanorum ab condita Ecclesia ad annum post Christum
natum MCXCVIII (ei 2, correctam et auctam auspiciis Gulielmi Wattenbach curaverunt S. Loewenfeld, F. Kaltenbrunner, P. Ewald, 2 vols, in
1, 1885-1888), η. 13808. Hereafter this work is cited as Jaffé
4 Glos. Ord.' ad c. 2, X, de aetate et qualitate et ordine praeficiendorum,
I, 14, s.v. aetatem.
5 C. 3, de iudiciis, II, 1, in VIe.
• C. 2, ut lite pendente nil innovetur, II, 2, in VI».

Express Renunciation Before Council of Trent

13

Article II.

The Competent Superior tor the Admission
of an Express Renunciation
Of all the -matter contained in the Corpus luris Canonici on.
the express renunciation of an office, the greater part has refer­
ence to the superior who is competent to receive the resigna­
tion. On the whole the legislation is clear, although there are
some difficulties involved in the interpretation of it. It is but
proper to note in advance that the Roman Pontiff was exempt
from the law which demanded that a renunciation of office be
made to the competent superior. This question arose during the
reign of Pope Boniface VIII, whose predecessor, Celestine V
(1294), had renounced the papacy. Boniface VIII in a decretal
letter written between the years 1294 and 1298 declared that the
Pope could renounce his papal office without obtaining any per­
mission whatsoever.7
The Glossa Ordinaria of loannes Andreae (1272-1348) stated
that the Pope could freely resign even if he was sufficiently
capable of fulfilling the duties of his office.8 The reason that
the Glossator gave for the total exemption of the Pope in this
matter was the fact that the Pope had no superior on earth in
whose hands he might renounce his office.8 Hence in this article
the consideration of the legislation will be restricted in its ap­
plication to those ecclesiastics who are inferior to the Roman
Pontiff in station and office. The Roman Pontiff will be spoken
of only in so far as he is the competent superior for receiving
certain resignations.
Before one presents the legislation which points to the im­
portant individual superiors, one may well outline the remarks
of the glossators which indicate in a general way the superior
to whom the power of receiving resignations pertained. The
Glossa Ordinaria to a letter of Pope Honorius HI (1224) ex­
pressed the opinion that a resignation was to be made in the
hands of the superior who had the power of confirming the
appointment to the office under consideration.10 A gloss of
7 C. 1, de renuntiatione, I, 7, in VI».
* Glos. Ord. ad c. 1, de renuntiatione, I, 7, in VI°, s.v. maxime.
9 Glos. Ord. ad c. 1, de renuntiatione, I, 7, in VI», s.v. videbantur.
10 Glos. Ord. ad c. IS, X, de renuntiatione, I, 9, s.v. in manibus eorundem.

14

The Renunciation of an Ecclesiastical Office

loannes Andreae to a decree of Clement V '(1305-1314) in the
Council of Vienne (1311-1312) considered as a competent su­
perior anyone who could confer the office or who had the power
of confirming the appointment. It concluded, though, by ex­
pressing the opinion that perhaps a renunciation of office had to
be made in the hands of the superior who had the power of
removing the incumbent from the office.11 An Additio to the
gloss on the same decree of Clement V remarked that if someone
had the right of election or presentation to the office, his consent
also had to' be obtained when a renunciation of the office was
accepted.12
These remarks were deductions of the Glossators which served
to indicate, although obscurely, the general scheme that was fol­
lowed in the determination of the competent superior. No decree
or law set this down as a rule. The laws had reference to the
specific superior in individual cases. The three more important
competent superiors will now be considered.
SECTION 1.

THE ROMAN PONTIFF

A pseudb-Isidorian letter attributed to Pope Evaristus (99?—
107?) stated that a bishop was not to give up his church except
in a case of inevitable necessity or in virtue of the authority of
the Holy See.12 The Glossa Ordinaria of loannes Teutonicus
(4-1245) noted that this letter spoke of a bishop who aban­
doned his own see in order that he might attach himself to an­
other one.1* Nevertheless this letter served to bring out in a
general way the idea that the authority of the Holy See was
required in order that a bishop might renounce his office.
Later, Pope Nicholas I (858-867) issued a letter in which he
declared that a certain Suffredus should be restored to his see
since he did not refer his case to the proper authority for judg­
ment.12 The letter itself is not particularly relevant, but the
remarks of the Glossator are very much to the point. From the
11 Glos. Ord. ad c. un, de renuntiatione, I, 4, in Clem., s.v. manibus.
12 Additio ad c. un., de renuntiatione, I, 4, in Clem., s.v. manibus.
12 C. 11, G VII, q. 1 ; Jaffé, n. J21.
14 Glos. Ord. ad c. Π, G VII, q. 1, s.v. dimittere.
“G 3, G VI, q. 1; Jaffé, a 2791.

Express Renunciation Before Council of Trent

15

fact that the Pope restored the bishop to his see the Glossator
deduced that a renunciation was not valid if made without the
superior’s knowledge or in the hands of another. Against this
deduction he raised the argument thajt there was â tacit renuncia­
tion in such cases. Finally, he solved the difficulty by saying that
such a resignation held as far as the resigning party was con­
cerned, but the Church could recall him to office again, as was
done by the Pope in this case.1617 The question of the validity
of such a resignation will be treated later. The remarks of the
Glossator are cited here merely to show the necessity of making
a resignation to the proper superior, in this instance to the Pope.
Innocent III in the year 1Ί99. explained the reason in con­
sequence of which a bishop could not renounce his see without
the permission and authority of the Roman Pontiff. He claimed
that the dissolution of the spiritual espousal between a bishop
and his see was effected in virtue of a divine rather than a human
power, and therefore the Pope, the Vicar of Christ on earth,
alone could effect it.1T The same Pontiff in the year 1208 issued
a letter proscribing any custom that derogated from the rule
which required the permission of the competent superior when
one wished to renounce his office.18*
Honorius. Ill (1216-1227) in a letter written in the year 1224
declared that the Pope was the competent superior for receiv­
ing the renunciation of an exempt abbot.18 Finally, Hostiensis
(-{-1271), in commenting on a letter of Alexander III, stated
that both bishops and exempt abbots had to obtain the permis­
sion of the Pope in order to resign and that they had to resign
their office in his hands.20
SECTION 2.

THE BISHOP

Just as the Roman Pontiff was the competent superior for
receiving the resignations of bishops and exempt abbots, so did
16 Glos. Ord. ad c. 3, C. VI, q. 3, s.v. restituatur.
17 C. 2, X, de translatione episcopi, I, 7 ; Potthast, n. 575.
18 C. 7, X, de consuetudine, I, 4; Potthast, n. 3397.
18 C. 15, X, de renuntiatione, I, 9 ; Potthast, n. 7719.
20 Hostiensis (Henricus de Segusio), Commentaria in Quinque Decretalium
Libros (5 vols, in 3, Venetiis, 1581), in a 4, X, dè renuntiatione, I, 9, n. 9.
Hereafter this work will be cited Commentaria.

16

The Renunciation of an Ecclesiastical Office

the bishop stand in that capacity for those under his jurisdic­
tion. There is not so much legislation extant regarding the
resignations of lower clerics as there is for the resignations of
bishops, but along with the remarks of the Glossators and Com­
mentators there is enough to show that lower clerics also had to
abide by a dèfinite rule in this matter.
Pope Alexander III in a letter to the Bishop of Tournai made
reference to all benefices under the bishop’s jurisdiction, and
stated that the consent of the bishop was necessary in order that
one might renounce any such benefice.21 Hostiensis in his com­
mentary on this letter clearly stated that lower clerics as well
as non-exempt ones looked for their competent superior to the
head of the diocese.22
As has already been seen in the preceding section, Innocent
III reprobated any custom that allowed one to resign without
the permission of the competent superior.23 The Glossator on
Pope Innocent’s decretal remarked that an abbot subject to the
bishop needed the bishop’s permission to renounce his office just
as did all other clerics under the bishop’s jurisdiction.24
section 3. the legate a latere
Among the competent superiors in the matter of· accepting a
renunciation of office mention must be made of the legates a
latere, cardinals who represented the Pope in various territories.
There is not much legislation in their regard, but there is suf­
ficient to show that they had some authority in this matter,
although it is difficult to determine the actual extent of their
power.
Innocent IV (1243-1254) issued a letter in which he declared
that cardinal legates had the power of conferring benefices in
their territory.25 This letter, it is true, said nothing about the
receiving of renunciations from office, but the power of con-

21C. 4, X, de renuntiatione, I, 9; Jaffé, n. 14116.
22 Commentaria, in c. 4, X, de renuntiatione, I. 9.
23 C. 7, X, de consuetudine, I, 4; Potthast, n. 3397.
24 Glos. Ord. ad c. 7, X, de consuetudine, I, 4, s.v. migrasse.
25 C. 1, de officio legati, I, IS, in VI°; Potthast, n. 15121.

/

Express Renunciation Before Council of Trent

17

ferring offices usually carried with it the right also to receive
the resignation.
Boniface VIII in a later decretal letter prohibited a legate
from subdelegating his power for the receiving of the renuncia­
tion of a benefice.26 This fetter shows clearly that the legate had
the power to receive the renunciation of at least some type of
benefice. Again Boniface VIII referred to the power of a legate
a latere in this matter. In another decretal letter he stated that
an exempt abbot who was elected to be a bishop could not leave
his monastery and take possession of his see without the per­
mission of either the Pope or the legate a latere. He likewise
stated that such legates had the power to confirm the elections
of archbishops, bishops and exempt persons.27 The Glossa
Ordinaria noted that what was said of an exempt abbot applied
also to any other prelate inferior to a bishop.28 -It stated also
that this applied even when the abbot or other prelate was elected
to some dignity other than the episcopacy.29
While it is difficult to determine the extent of the power of
the legate a latere in this matter, it is clear that he did have some
power. It seems that his power was almost co-extensive with
that of the Pope, but there is no proof that he could receive
the resignations of bishops. The law merely stated that he could
confirm their elections; and although the one who had the power
to confirm an appointment to an office usually had also the power
to accept the resignation from that office, the latter power .was
not necessarily implied for the legate, since his power to con­
firm an appointment was a special power granted to cardinal
legates by the Pope. In ultimate analysis the answer to the
question could be found only through an investigation of the
letter in which the powers were delegated by the Pope.
26 C. 4, de officio legati, I, IS, in VI°.
27 C. 36, de electione et electi potestate, I, 6, in VI°.
28 Glos. Ord. ad c. 36, de electione et electi potestate, I, 6, in VI°, s.v.
abbatem.
29 Glos. Ord. ad c. 36, de electione et electi potestate, I, 6, in VI°, s.v.
Episcopum.

18

The Renunciation of an Ecclesiastical Office

SECTION 4.

THE VALIDITY OF RESIGNATIONS MADE WITHOUT THE

INTERVENTION OF THE COMPETENT SUPERIOR

The previous sections of this article have demonstrated the
necessity of making the renunciation of an office in the hands of
the competent superior. The question now arises concerning the
validity of a resignation made contrary to such a rule.
The Glossator of a letter of Pope Nicholas I offered a solu­
tion to the effect that a renunciation of office made without the
superior’s knowledge or in the hands of another was valid as
far as the one resigning was concerned, but that it did not bind
the Church to recognize it as such.30 In other words, the Church
could ignore the resignation and restore the person to his office,
but the individual himsçlf could not vindicate any claim to the
office.
In a letter to the Bishop of Tournai Alexander III invoked a
canonical penalty against clerics who renounced their office with­
out their bishop’s permission, but he did not state just what the
canonical penalty was.31 Innocent .III in the year 1198 declared
that a resignation made in the hands of the laity was invalid, but
that nevertheless the offender should be deprived of his benefice
by way of punishment.32 The Glossator on this letter remarked
that the renunciation held as far as the former incumbent was
concerned, but gave the Church or the superior the option of
recalling the person to the office.33 Hostiensis took exception to
this view of the Glossator. He maintained that the resignation
was considered as invalid by the decretal apart from all distinc­
tions. The incumbent lost the benefice only by privation.34
Honorius HI, writing to the Bishops of Agde and Nice, de­
creed that the renunciation of an exempt abbot was null if made
without the Pope’s permission.33 Once again the Glossator in­
voked the opinion that the resignation held only to the prejudice
30 Glos. Ord. ad c. 3, C. VI, q. 3, s.v. restituatur.
31C. 4, X, de-renuntiatione, I, 9; Jaffé, n. 14116.
32 C. 8, X, de renuntiatione, I, 9; Potthast, n. 390.
33 Glos. Ord. ad c. 8, X, de renuntiatione, I, 9, s.v. in manum laicam
resignantes.
34 Commentaria in c. 8, X, de renuntiatione, I, 9, n. 1.
33 C. 15, X, de renuntiatione, I, 9; Potthast, n. 7719.

Express Renunciation Before Council of Trent

19

of the one who resigned in that fashion, and hence he could
not attempt to reclaim his benefice or office.36 On the other hand,Hostiensis taught that the abbot could be forced to renounce his
office afterwards, since he was guilty of attempting to renounce
it in the hands of one other than the competent superior.” St.
Raymond of Pennafort (1175-1275) shared the opinion of the
Glossator, and stated that the resignation held as far as the one
renouncing the benefice was concerned, but that the Church could
recall him to the benefice.38
The decretal letters themselves seem quite clear in stating that
a renunciation of office made in this manner was invalid. In
punishment for this violation of the law deprivation of the office
was recommended. The opinions of the Glossators and Com­
mentators offer some difficulty. As has been seen, some of them
contended that the resignation was valid as far as the person
resigning was concerned. This view probably arose from a con­
sideration of the contractual element which was present even
when the resignation was made contrary to the law. Thus, these
authors held that the one resigning had to observe his part of
the contract, namely, the renunciation of the office, even though
the resignation itself was invalid.
Before this article is brought to a close, it may be of interest
to note that during the early 13th century a person had to com­
plete his resignation once he had obtained the proper permission
to renounce his office. It is not clear whether this permission
of the superior was the same as the superior’s act of acceptance
of the resignation, or whether it was something preliminary to
the resignation. Innocent III in the IV General Council of the
Lateran (1215) was the one who promulgated this rule.38
The Glossator explained the reason for this law by saying
that the ruling was made to preclude the possibility of any ridicul38 Glos. Ord. ad c. 15, X, de renuntiatione, I, 9, s.v. in manibus eorundem.
37 Commentaria in c. 15, X, de renuntiatione, I, 9, η. 2.
38 Summa (Veronae, 1744), tit XXVI, par. 3.
' 39 C. 12, X, de renuntiatione, I, 9 ; Mansi, Sacrorum Conciliorum Nova
et Amplissima Collectio (53 vols, in 60, Paris-Amhetn-Leipzig, 1901-1927),
XXII, 1015. Hereafter this work is cited as Mansi.

ί;[■[

20

ing of the Pope.40 loannes Andreae extended the same rule to
the case wherein permission had been obtained from other su­
periors by lower clerics. He stated that the decree made no
mention of restricting the ruling simply to the case in which
permission had been obtained from the Pope.41 Hostiensis re­
marked that one could repent of his intention to resign if he
did so before the request for permission to resign had reached
the Pope.4’

i.·'.

1
i

Article III.

•

■

I
ί

;
(I
I
!
1

The Renunciation of an Ecclesiastical Office

The Sufficient Cause Required for an Ex­
press Renunciation
Since an office is given to a cleric for a reason abstracting
from his own convenience, it is natural to expect that he would
be required to have a just cause before he would be permitted
to renounce it. However, it will be seen that the legislation of
the Decretal period took little cognizance of this fact as far as
lower clerics were concerned.
Alexander HI was the first to discuss the necessity of a cause
when a bishop wished to renounce his see. In a decretal letter
to the Bishop of London the Pope endeavored to convince the
bishop that it would be better for him to remain in office with
a coadjutor than to cede his office because of old age.43 The
Glossator noted that old age of itself was not a sufficient reason
for justifying the resignation from one’s office. The condition
of advanced years had to be such as to render one incapable of
performing one’s duties.44
The next mention of this matter followed in a letter of Innocent HI to the Archbishop of York (1203).45 The Archbishop
of Ragusa had requested permission from the Pope to renounce
his see, alleging the reason that he could not reside with safety
in the diocese.48 The Pope granted the required permission to
<o Glos. Ord. ad c. 12, X, de renuntiatione, I, 9, s.v. compellendos.
41 Additio loannis Andreae, c. 12, X, de renuntiatione, I, 9, s.v. compel­
lendos.
« Commentaria in c. 12, X, de renuntiatione, I, 9, h. 5.
« C. 1, X, de renuntiatione, I, 9; Jaffé, n. 14008.
44 Glos. Ord. ad c. 1, X, de renuntiatione, I, 9, s.v. senectus.

Express Renunciation Before Council of Trent -

21

the Archbishop of Ragusa. The cause involved in the case was
the danger of death. The letter of the Pope, however, does not
reveal from what source the danger arose. The Glossator sug­
gested that the danger could have arisen either in consequence
of an unfavorable climate or as a result of persecution of deadly
enemies.*
47
The same Pontiff in the year 1206 drew up an exhaustive list
of the causes which were recognized as sufficient to warrant one
to ask permission to renounce his office.48 Hostiensis emphasized
the fact that these causes did not justify one’s renunciation of
office unless also permission had been rightfully granted. They
were set down explicitly as causes which sufficed for one to seek
permission from the Pope to renounce one’s office.49 The
decretal spoke only of bishops in the enumeration of these causes.
St. Raymond maintained that for their application these causes
were restricted to the offices of prelatures whose renunciation
proved prejudicial to others.50
In the Pope’s letter there is an enumeration of six causes which
were considered as sufficient in this regard. On each of these
causes the Pope offered a brief explanatory statement, the sub­
stance of which is as follows :

(a) Consciousness of Crime—Not all sins or crimes
were included under this
category. Only such were
included as impeded the
execution of one’s office
even after penance had
been performed.
(b) Weakness of Body — This cause could arise
from either sickness or
old age, but it too had to
be of such a nature as to
render one incapable of
performing one’s duties.

*

of the fact that the Archbishop of Ragusa, after leaving his see, had re­
ceived a benefice in the Archdiocese of York.
47 Glos. Ord. ad c. 9, X, de renuntiatione, I, 9, s.v. morari.
48 C. 10, X, de renuntiatione, I, 9 ; Potthast, n. 2698.
49 Commentaria in c. 10, X, de renuntiatione, I, 9, n. S.
50 Summa, tit XXVI, par. III.

22

,

The Renunciation of an Ecclesiastical Office

(c) Lack of Knowledge — This cause referred to the
knowledge necessary for
the fulfillment of the
duties of the office.
(d) Malice of the People — This cause was present
when the people were so
obdurate that the bishop
could make no spiritual
z
progress with them.
(e) Grave Scandal —
When the scandal could
not otherwise be removed,
the bishop could ask per­
mission to renounce his
see lest he appear to
esteem the temporal honor
more highly than his eter­
nal salvation.
(f) Irregularity
—
Here the Pope gave two
examples of irregularities
which were sufficient
causes, namely, successive
bigamy and marriage to a
widow.

These are the six causes which were recognized as sufficient
to justify one to ask permission to renounce his see. Nothing
was stated regarding the effect that an insufficiency or lack of
a cause would have on the subsequent resignation. Since no
mention was made of lower clerics, the causes listed in the
decretal were applicable only for cases in which a bishop’s re­
nunciation of office was in question.
Article IV.

The Freedom Required in an Express Re­
nunciation

Throughout the Decretals an appreciable degree of attention
was paid to the effect that force, fear and simony had upon a
renunciation of office. This article will attempt to present as
clearly as possible the doctrine of this period on these points.
SECTION 1.

FREEDOM FROM FORCE AND FEAR

It will be noticed quite readily that not all the texts of the
law were in accord with one another on this point. The main

Express Renunciation Before Council of Trent

23

difficulty lies in determining whether the wording of the laws
intended to characterize as invalid, or merely as rescissible, any
and every renunciation of office effected under duress and fear.
Alexander III in a letter to the Bishop of Worcester stated
that a resignation must be made freely.51 The Pope used the
words “ debent in irritum revocari ” with reference to the things
“quae metu et vi fiunt.” The Glossa Ordinaria in its remarks
on this letter stated that a resignation made in such circumstances
was indeed valid, but could be rescinded.52 The above cited letter
of Alexander III spoke only of fear with regard to this case,
and the Glossator likewise limited his consideration to that ele­
ment. Hostiensis stated that no mention of force was made,
since ' whatever was done under the influence of . fierce violence
was considered as having been done under the duress of fear
also.53
Alexander III issued a second letter in which he stated that
a person could be reinstated in his benefice if he was induced
to resign it through fear inflicted on him by the laity. This
reinstatement was to be effected by means of a rescissory action.5*
In the resignation under consideration in the Pontiff’s letter the
cleric who resigned through fear had also taken an oath at the
time that he would not attempt to reclaim the benefice. The Glos­
sator remarked that this type of oath could be kept without
danger to one’s eternal salvation, but if the influence of fear in
the act of resignation stood proved, then the person who had
resigned his office or benefice could call on the superior to rescind
the resignation and to restore his office or benefice.55
Innocent III in the year 1200 reiterated the doctrine of Alex­
ander III, adding, however, that if the oath had reference only
to the act of resignation, and not to any disavowal for the re­
claiming of the benefice, then the prospective incumbent could
51 C. 2, X, de his quae vi metusque causa fiunt, I, 40; Jaffé, n. 14131.
52 Glos. Ord. ad a 2, X, de his quae vi metusque causa fiunt, I, 40, s.v.
coactus.
Commentaria in c. 2, X, de his quae vi metusque causa fiunt, I, 40, n. 7.
3* C. 3, X, de his quae vi metusque causa fiunt, I, 40; Jaffé, n. 16572.
53 Glos. Ord. ad c. 3, X, de his quae vi metusque causa fiunt, I, 40, s.v.
iuramento.

24

v The Renunciation of an Ecclesiastical Office

reclaim the benefice.56 The Glossator explained that if one had
taken an oath to renounce his benefice, then the oath obliged him
to renounce it, but the oath did not preVent him in any way from
trying to reclaim the benefice.57
Alexander III also gave two solutions for cases in which the
elements of renunciation and spoliation were involved. These
solutions had at least an indirect bearing on the matter here dis­
cussed. The first case involved a renunciation of a benefice made
by the incumbent at a time when he had already been despoiled
of his benefice.58 The Pope decided in this case that in court
the exception of renunciation could not be urged or raised against
the party who had been previously despoiled of his benefice.
There was a presumption against the voluntary character of the
resignation in such circumstances. Panormitanus (1386-1453)
stated that the exception of renunciation was not admitted in this
case, which was being prosecuted as a possessory action, for the
simple reason that the exception of renunciation could have
reference only to renunciation, after spoliation, of proprietor­
ship and nçt that of possession, inasmuch as the cleric could not
have renounced his possession at a time when he had already
been despoiled of it. For this reason he stated, that an excep­
tion of renunciation could not be raised against the cleric who
was prosecuting his case as a possessory action.58
In the second case which the Pontiff solved, the resignation
had been made by the cleric before the spoliation took place.
Here the Pope decided that the cleric was not to be heard if it
was proved that he had freely renounced his benefice before he
was despoiled of its possession.60 Panormitanus remarked that
in this case the cleric had already lost not only the proprietor56 C. 4, X, de his quae vi metusque causa fiunt, I, 40; Potthast, n. 946.
67 Glos. Ord. ad c. 4, X, de his quae vi metusque causa fiunt, I, 40, s.v.
repetendam.
68 C. 2, X, de restitutione spoliatorum, Π, 13; Jaffé, η. 14139.
59 Commentaria in Quinque Decretalium Libros (5 vols, in 7, Venetiis,
1588), in c. 2, X, de restitutione spoliatorum, II, 13, n. 8. Hereafter this
work cited as Commentaria.
60 C. 3, X, de restitutione spoliatorum, II, 13 ; Jaffé, η. 13984.

Express Renunciation Before Council of Trent

25

ship but also the possession of the benefice by the prior resigna­
tion.61
Clement V (1305-1314) in the Council of Vienne (1311—
1312) made a declaration to the effect that renunciations ex­
torted by others were invalid.62 The Glossa Ordinaria stated
that such a resignation was totally invalid,63 and that the means
of extortion used in this case were seizure and retention of the
person by the secular powers.64 Panormitanus understood the
means used here as incarceration, and accordingly stated that
only this caused a renunciation to be invalid when it was made
under the influence of fear. All other types of fear merely left
room for the renunciation to be rescinded.65
The law of the Decretal period, then, held for the validity of
a resignation made under the influence of fear. There was,
however, the remedy of a rescissory action. Only if incarcera­
tion had been used as a means of fear for extorting the resigna­
tion did the act of resignation stand as patently invalid.
SECTION 2.

FREEDOM FROM SIMONY

Since simony is something to be abhorred, it is not strange
that in the Corpus luris Canonici legislation was enacted against
it in the matter of renunciation of office.
Alexander III in one of his decretal letters stated that a
simoniacally procured resignation of a benefice was invalid.66*68
Hostiensis expressed the opinion that the Pope could recognize
such a simoniacal pact as valid and binding if he so wished, since
he had the fulness of power in the Church. With such papal
action the resignation could become valid in its juridical effect.61
Pope Gregory IX (1227-1241) interdicted in a general way
pecuniary agreements in any type of spiritual matters.66 Finally,
61 Comtnentaria in c. 3, X, de restitutione spoliatorum, II, 13, η. 4.
62 C. 2, de poenis, V, 8, in Clem.
63 Glos. Ord. ad c. 2, de poenis, V, 8 in Clem., s.v. omnino.
64 Glos. Ord. ad c. 2, de poenis, V, 8, in Gem., s.v. modo supradicto.
65 Commentaria in c. 2, de poenis, V. 8, in Gem., nn. 7-8.
66 C. 4, X, de pactis, I, 35; Jaffé, n. 13924.
87 Commentaria in c. 4, X, de pactis, I, 35, n. 4.
68 C. 8, X, de pactis, I, 35 ; Potthast, n. 9568.

2b

The Renunciation of an Ecclesiastical Office

Pope Paul II (1464-1471) declared in 1464 that any simoniacal·
dispositions made in reference to benefices, dignities or offices
were invalid.69 The general manner of speech on the part of
the Pope in his decretal forces one to include resignation among
the dispositions which the legislator nullified if they were infected
• with simony.
Article V. The Form of an Express Renunciation
There is no law in the Corpus luris Canonici which treats ex
professo of the form to be observed in the execution of a resig­
nation. Some information is available from loannes Andreae’s
commentary on a letter of Clement III (1187-1191). The Pope
in this letter settled a case between two parties who were litigat­
ing about a benefice. One of the parties raised the exception
of renunciation against the other party, and the Pope decided
that witnesses should be introduced to solye the case.19 From
the fact that witnesses were to be brought in to prove the re­
nunciation, loannes Andreae deduced that a renunciation could
be made orally before witnesses as well as in writing.71
Likewise a decree of Clement V in the Council of Vienne
(1311-1312) in settlement of a dispute about a resignation made
by a proxy after his mandate had been recalled warrants the
conclusion that a resignation could be made not only personally
but also through the medium of a proxy.72
69 C. 2, de simonia, V, 1, in Extravag. com.
” C 5, X, de renuntiatione, I, 9 ; Jaffé, n. 16629.
71 Commentaria in Quinque Decretalium Libros (Venetüs, 1581), in c. 5,
X, de renuntiatione, I, 9.
72 C. un., de renuntiatione, I, 4, in Clem.

CHAPTER III
THE DOCTRINE ON TACIT RENUNCIATION FROM
. THE DECREE OF GRATIAN TO THE
COUNCIL OF TRENT

Subsequent to the treatment of express renunciation some dis­
cussion should also be devoted to a consideration of tacit renun­
ciation. In a tacit renunciation no set form for the act of
renunciation was called for. The office became vacant by the
commission of certain acts with which the law associated the
effect of a tacit renunciation on the part of the erstwhile in­
cumbent.
In the period to be explored, it is rather difficult to determine
precisely what acts or omissions constituted a tacit renunciation.
The difficulty arises mostly from the legal terminology employed.
Very often the terms "privation” and “renunciation” are used
almost synonymously. In this chapter the writer has restricted
himself to those cases which seem rather clearly to involve a
tacit renunciation. Additional points could be raised concerning
other cases of this period, but that would lead the discussion
beyond its scope and purpose.

Article I. The Reception of Incompatible Offices
Incompatible offices were those which could not in law be
possessed at one and the same time. The reason for the incom­
patibility could arise either from the nature of the offices them­
selves or from a positive prescription of the law. In the course
of this article four cases of incompatibility will be treated, namely,
the case of two offices to both of which the care of souls was
attached, the case of two offices both of which required resi­
dence, the case of two prebends in the same church, and finally
the case of the union of two benefices for one and the same in27

28

i

1
I
j

i

:
■

ί
!
!
;
'i
;
j
; i, !

'

The Renunciation of an Ecclesiastical Office

cumbent when in itself one of the benefices sufficed for provid­
ing the requisite sustenance.
Alexander III was the first to issue a letter on this point in
the Decretal law. He decreed that if anyone had two churches,
it was necessary that he choose one of them and resign the
other? The same Pontiff issued another letter concerning a cleric
who had the dignity of archdeacon in two churches. Once again
the Pope ordered the person in question, to choose one of them
and to renounce the other? The same Alexander III in a decree
given in the III General Council of the Lateran (1179) declared
that not more than one dignity was to be conferred upon any
one person, and that a church was to fie conferred upon one who
was able to comply with the required residence and to exercise
the required care in it. One lost his appointment to a church when
he received it in a manner contrary to the prescriptions of the
canons? The Glossator noted that sometimes a person could
serve his parish through a vicar when the church was annexed
to a dignity or a prebend?
Innocent III in the year 1205 included another case under
the rule of incompatible offices when he forbade the holding of
two prebends in the one church. He stated that the first prebend
became vacant ipso iure and that its erstwhile incumbent had to
renounce its possession? The Glossator noted that the archbishop could grant a dispensation to hold both prebends in this
case, but that the dispensation had to be given expressly. The
mere confirmation of the second appointment was not sufficient
to warrant the retention of both prebends? He stated also that
the bishop had the authority to dispense in the case of simple
1 C. 7, X, de praebendis et dignitatibus, ΙΠ, 5; Jaffé, η. 14168.
2 C. 14, X, de praebendis et dignitatibus, ΙΠ, 5 ; Jaffé, η. 13790.
* C. 3, X, de clericis non residentibus in ecclesia vel praebenda, III 4·
Mansi, XXII, 382.
* Glos. Ord. ad c. 3, X, de clericis non residentibus in ecclesia vel prae­
benda, III, 4, s.v. per seipsum.
s C. 9, X, de concessione ecclesiae vel praebendae non vacantis, ΙΠ, 8;
Potthast, n. 250S.
8 Glos. Ord. ad c. 9, X, de concessione ecclesiae vel praebendae non
vacantis, III, 8, s.v. vacare noscatur.

Tacit Renunciation Before Council of Trent

29

benefices or of a benefice with a church, but not in any cases in
which the care of souls was involved.’
Innocent III in the IV General Council of the Lateran (1215)
permitted a pastor to serve his parish through a vicar if the
parish church had a dignity or a prebend attached to it.8 The
Glossator disagreed with those who concluded from this decree
that a pastor could receive a prebend without the church becom­
ing ipso iure vacant.9 Hostiensis stated it as a lawful conclu­
sion from this letter that a person could not have a prebend and
a church at the same time if the church itself was sufficient as
a benefice.10
Innocent III in the same general Council of the Lateran issued
another decree in which he stated that if one possessed a benefice
with the care of souls and received a second like'benefice, the
former became automatically vacant. Besides, if the person at­
tempted to retain both benefices, then he lost the second one also.11
The Glossator noted that this was a change from the law
previously enacted in the decretal letters of Alexander III.
Alexander III permitted the cleric to choose the benefice that he
wished to retain, while Innocent III stated that the first benefice
became automatically vacant by the reception of the second one.12
Panormitanus attempted to reconcile these decretals by stating
that the decretals of Alexander III had reference only to churches
to neither of which was attached the care of souls, or to churches
of which one did, but the other did not have the care of souls
attached.13
Gregory IX in the year 1228 repeated the legislation of In­
nocent III by declaring in a decretal that if one had a dignity
or a benefice with the care of souls and received another like
7 Glos. Ord. citing loannes Teutonicus, ad c. 9, X, de concessione ecclesiae
vel praebendae non vacantis, III, 8, s.v. vacare noscatur.
8 C. 30, X, de praebendis et dignitatibus, III, 5 ; Mansi, XXII, 1016.
8 Glos. Ord. ad c. 30, X, de praebendis et dignitatibus, III, S, s.v. praeben­
dam.
10 Commentaria in c. 30, X, de praebendis et dignitatibus, III, 5, n. 16.
11 C. 28, X, de praebendis et dignitatibus, III, 5 ; Mansi, XXII, 1015.
12 Glos. Ord. ad c. 28, X, de praebendis et dignitatibus, III, 5, s.v. con­
tenderit.
18 Commentaria in c. 7, X, de praebendis et dignitatibus, III, 5, n. 7.

30

The Renunciation of an Ecclesiastical Office

dignity or benefice, the former became vacant ipso iure, and if
the party tried to retain both dignities or benefices, both of them
became vacant.14 The decretal also stated that a dispensation
from the Holy See was required in order to permit one to hold
two such benefices or dignities. Panormitanus contended that
this was the best text to prove that the Holy See alone could
dispense when there was incompatibility of offices by reason of
the fact that the care of souls was attached to them. He stated
also that there were two cases in which a cleric could hold two
churches though both of them involved the care of souls, namely,
when one was united to the other and when one was held in title
and the other as a sinecure (in commendarn).15
Gregory X (1271-1276) in the II General Council of Lyons
(1274) commanded all ordinaries to inspect the dispensations
of those who at that time were in possession of more than one
benefice or dignity with the care of souls attached to them. In
case of doubtful grants of dispensation recourse was to be made
to the Holy See.16 The Glossator called attention to the Holy
See as the competent superior to grant a dispensation to hold
more than one benefice or dignity involving the care of souls.17
Later, Boniface VIII, in speaking about the obtaining of a
dispensation in such cases, insisted that in the request for the
dispensation mention had to be made of every benefice that the
person held at the time; otherwise the dispensation was null.
A dispensation to hold two benefices involving the care of souls
was to' be understood as referring to the first two benefices
which the persons received.18 Boniface VIII likewise cautioned
that, though the first benefice becomes vacant by the reception of
a second one contrary to the rules regarding the incompatibility
of benefices, and therefore the bishop could confer the first one
immediately on some one else, nevertheless the person on whom
it is conferred was not to take possession of it until it was sure
14 C. 54, X, de electione et electi potestate, I, 6; Potthast, η. 8306.
15 Commentaria in c. 54, X, de electione et electi potestate, I, 6, n. 9.
16 C. 3, de officio ordinarii, I, 16, in VI»; Mansi, XXIV, 92.
17 Glos. Ord. ad c. 3, de officio ordinarii, I, 16, in VI», s.v. sui beneficii.
18 C. 21, de praebendis et dignitatibus, III, 4, in VI°.

Tacit Renunciation Before Council of Trent

31

that the former incumbent had no right to retain it.19 The
Glossator remarked that perhaps the first incumbent had received
a dispensation to hold both benefices, or was not receiving the
fruits of the second one, or had the second one as a sinecure (in
commendarn). All these as reasons allowed him to retain the
first one along with the second one.20
The same Boniface VIII made application of the law of in­
compatibility to priories or religious churches which had the
care of souls attached to them. In this letter the Pope dis­
tinguished between those who at the time held two such churches
or priories without the permission of the Pope, and those who
were to receive them in the future. The former group had to
choose between one or the other of the-two churches within a
month; the latter group could keep only the second church, since
the first one would become vacant ipso iure when they received
the second one.21
Clement V in the Council of Vienne (1311-1312) decreed that
without a dispensation the reception of a dignity or of a benefice
involving the care of souls produced the effect of a vacancy for
all other like benefices or dignities which the person possessed.22
The Glossa Ordinaria of loannes Andreae stated it as a natural
consequence that, if the reception of a second benefice with the
care of souls attached to it made the prior like benefice to be
vacant, then it also made all other like benefices to be vacant for
the same reason when more than one such benefice was held
previously.23
In the same Council of Vienne Clement V decreed that, if a
canonicate in a certain church had a prebend attached to it, then
the one who possessed this prebend could accept the archdiaconate
in the same church, even though this also had a prebend attached
to it. But through the acceptance of the second prebend the first
10 C. 28, de praebendis et dignitatibus, III, 4, in VI0.
20 Glos. Ord. ad c. 28, de praebendis et dignitatibus, III, 4, in VI0, s.v.
retinendi.
” C. 32, de praebendis et dignitatibus. III, 4, in VI°.
22 C. 3, de praebendis et dignitatibus, III, 2, in Clem.
23 Glos. Ord. ad c. 3, de praebendis et dignitatibus, III, 2, in Clem., s.v.
Possessione.

32

The Renunciation of an Ecclesiastical Office

prebend was relinquished and thus became ipso iure vacant.24
The Glossator remarked that it was evident from this decretal
that the taking possession of a second prebend in the same church
effected the vacancy of the former one.25
The final Stage of development in the law on incompatibility
of offices in this pêriod appeared in a letter of Pope John XXII
(1316-1334).2627 In this letter the Pope legislated for three dis­
tinct cases. Those who at the time of the letter were in posses­
sion of two or more dignities or benefices involving the care of
souls and simultaneously enjoyed a dispensation to do so had
to choose one with the care of souls and one without the care
of souls if they wished to retain two benefices or dignities. This
choice had to be made within a month, else all benefices were
forfeited, and the person at fault became incapable of receiving
any benefice with the attached care of souls in the future. Those
who at the time of the letter held such benefices without the neces- sary dispensation could retain only the last one they had received
and accordingly had to forfeit all the others. If they failed to
observe this prescription, they forfeited all their benefices and
became incapable of receiving in the future any type of benefice.
Finally, those who in the future received a second benefice with
the attached care of souls thereby occasioned the first one to
become ipso iure vacant. Unless they relinquished the first benefice
without delay, they lost both benefices and became incapable of
receiving orders or any type of benefice in the future.
The Glossa Ordinaria of Zenzelinus de Cassanis (—}—1334)
declared that the invoked penal sanction was of a latae sententiae
character and no judicial sentence was required to deprive the
offender of the first or the second benefice.22 Regarding the law
for the future as contained in this letter the Glossator seemed
to think that the prohibition of receiving a second like dignity,
personate, office or benefice was to be referred to all dignities,
24 C. 6, de praebendis et dignitatibus, III, 2, in Clem.
'
25 Glos. Ord. ad c. 6, de praebendis et dignitatibus, III, 2, in Clem., s.v.
hoc ipso.
26 C. un., de praebendis et dignitatibus, tit III, in Extravag. Ioan. XXII.
27 Glos. Ord. ad a un., de praebendis et dignitatibus, tit III, in Extravag.
Ioan. XXII, s.v. ipso iure secundo privati.

Tacit Renunciation Before Council of Trent

33

offices or personates, even those which did not involve the care
of souls, and to any office to which Was attached the care of
souls.28
As has been seen, the majority of texts was concerned with
the incompatibility of offices which in connection with several
benefices involved a multiple care of souls. The other categories
of incompatibility were referred to in only one or two laws and
glosses. The use of the terms, "prebend, office, dignity, per­
sonate,” is at times quite confusing. It is difficult to decide
whether these terms were used in an exclusive sense, or whether
when mentioned singly they included the remaining three. In
its final stage the law enacted that the taking of possession of a
second incompatible office effected the vacancy of the former of­
fice. The fact that the law insisted that the incumbent of the
office relinquish the former office or offices in the hands of the
superior has to be understood as referring merely to the fact of
possession and not to the title of the office. If he refused to
comply with this rule, then he was automatically deprived of the
second office as well. Throughout this period the Holy See was
considered as the superior competent to grant dispensations for
cases involving the care of souls in multiple benefices. The bishop
appears to have been competent in other cases.
Article II. The Marriage of a Minor Cleric
The second way in which at least some clerics were considered
tacitly to renounce their office was by their contracting of mar­
riage. Here, too, the legislation is not unmistakably clear, but
there are some definite conclusions that can be made.
In the Council of Neo-caesarea (314-325) it was stated that
a priest who married was to be deposed from his order, and
that a priest who committed fornication or adultery was to be
put out of his church and reduced to penance among the laity.29
The Glossator noted that the one who married lost his office but
not his benefice, while the other type of offender lost everything.
He was of the opinion that a priest who married was less an
28 Glos. Ord. ad c. un, de praebendis et dignitatibus, tit III, in Extravag.
Ioan. XXII, s.v. simile.
« C. 9, D. XXVIII ; Mansi, II, 545.

34

The Renunciation of an Ecclesiastical Office

offender than the one who committed fornication or adultery,
in view of the fact that the former believed that his action was
permissible.30*
Later the V Council of Carthage (401) decreed that if bishops,
priests and deacons violated clerical continence, they were to be
removed from their offices. Other clerics were permitted to fol­
low the customs of their respective churches.81
Alexander II in a decree to the people of Milan between the
years 1061 and 1073 stated that those who abandoned their divine
office to commit fornication were deprived of their ecclesiastical
office by such an act.33 The same Pontiff in a letter to the bishops
and the king of Dalmatia in the year 1062 declared that a bishop,
priest or deacon who received a woman or retained one already
received fell immediately from his position until satisfaction had
been made.33 The Glossator included subdeacons under this latter
law.34
Later, Urban II (1088-1099) in the Council of Melfi in the
year 1089 ruled that those who made use of marriage after re­
ceiving the subdiacbnate were by that fact deprived of their
office and benefice and were removed from the exercise of all
sacred orders.35*
'
Innocent II (1130-1143) in the Council of Rome (1139) de­
clared that those who had received the subdiaconate and higher
orders were deprived of their office and benefice if they married
or kept concubines.88 In an Additio Guido di Baysio (-(-1313),
the Archdeacon of Bologna, expressed the opinion that a warn­
ing had to be given to the cleric before he was to be deprived
of his office.81 He was comparing the law of the Council of
Rome with the later Decretal law. He stated that perhaps the
Council of Rome did not require that a warning be given to the
30 Glos. Ord. ad c. 9, D. XXVIII, s.v. ordine.
3> C. 13, D. XXXII ; Mansi, III, 969.
>2 C. 18, D. LXXXI.
33 C. 16, D. LXXXI ; Jaffé, n. 4477.
3< Glos. Ord. ad c. 16, D. LXXXI, s.v. diaconus.
»» G 10, D. XXXII ; Mansi, XX, 724.
»e G 2, D. XXVIII ; Mansi, XXI, 526.
33 Additio of Guido di Baysio (Arch.) ad c. 2, D. XXVIII.

Tacit Renunciation Before Council of Trent

35

cleric because of the fact that the Council was concerned with
the case of a cleric who had actually married, while the later
Decretal law was concerned with the case of a cleric who was
guilty of keeping concubines, and therefore demanded that a
warning be given to the cleric.
Alexander III, writing between the years 1159 and 1160, de­
clared that a cleric in minor orders was deprived of his benefice
if he married.3839
40The same Pontiff in a letter to the Archbishop
of Canterbury and his suffragans stated that clerics who did not
abandon their concubines after having been warned were to be
suspended from their benefice, and if they did not correct their
manner of life, they were to be deposed.38 The Glossator noted
that this penalty was simply of the nature of a suspension, and
that it did not take effect ipso iure.*0 In the same letter Alexan­
der III decreed that clerics who had not yet received subdeacon­
ship when they married had to give up their benefices, but were
to retain their wives, while those who were in the order of subdiaconate or of higher orders when they married had to relinquish
their wives and do penance.41 The Glossator noted that those
who were in minor orders were forced to give up their benefices
when they married, for their benefices became vacant ipso iure
by the placing of such an act. The constraint had reference only
to the fact of possession, since married minor clerics tacitly re­
nounced their right to the benefice by marrying. If married
minor clerics were nevertheless allowed in given cases to keep
their benefice, this permission must be considered as a specific
favor which did not derive from the common law.42 As regards
those who were in major orders when they married, the Glossator
remarked that they had to give· up their wives, since the mar­
riage was invalid. They were also to be deprived of their benefice
for their infraction of the law through their attempt to contract
38 C. 3, X, de clericis- coniugatis, III, 3; Jaffé, n. 10608.
39 C. 4, X, de cohabitation? clericorum et mulierum, III, 2; Jaffé, η. 13813.
40 Glos. Ord. ad c. 4, X, de cohabitatione clericorum et mulierum, III,
2, s.v. suspendatis.
41 C. 1, X, de clericis coniugatis, III, 3 ; Jaffé, n. 13813.
42 Glos. Ord. ad c. 1, X, de clericis coniugatis, III, 3, s.v. relinquenda.

I

36

The Renunciation of an Ecclesiastical Office

marriage.43 Hostiensis was in agreement with the Glossator on ·
the point that a minor cleric tacitly renounced his benefice by
contracting marriage.44
Finally, Innocent III in a letter written in the year 1203 de­
clared that the benefices in the possession of a cleric were to be
taken from him when he married.45 Hostiensis noted that the
prescriptions of this letter applied only to clerics who were in
minor orders when they married, since only minor clerics were
considered to have tacitly renounced their benefice when they
contracted marriage.46
It must be admitted that the legislation found on this point
was not altogether clear. It is safe to say that those who were
in minor orders tacitly renounced their benefices by marrying.
The penalty for the marriage of a major cleric and for the keep­
ing of concubines by any cleric seems to have been privation
rather than simply a tacit renunciation of the benefice possessed
by the delinquent cleric.

Article III. Solemn Religious Profession
There is a decretal letter of Boniface VIII, sent to the Chap­
ter of the Church of Paris, which seems to indicate that solemn
religious profession effected the tacit renunciation of a benefice.47
In this letter the Pope stated that when one entered religion, his
benefice was not to be conferred upon another person during the
year of probation. He added, however, that it could be con­
ferred on another if the person consented to it, or if it was evi­
dent that he was going to persevere in the religious life, or if
he had made his religious profession, or had at least know­
ingly received the habit of the professed. The Glossator noted
that this profession had to be one that was made in an approved
religious institute.48
43 Glos. Ord. ad c. 1, X, de clericis coniugatis, III, 3, s.v. dimittere.
44 Commentaria in c. 1, X, de clericis coniugatis, III, 3, n. 2.
45 C. 5, X, de clericis coniugatis, III, 3 ; Potthast, n. 1944.
43 Commentaria in c. 5, X, de clericis coniugatis, III, 3, n. 1.
47 G 4, de regularibus et transeuntibus ad religionem, III, 14, in VI°.
43 Glos. Ord. ad c. 4, de regularibus et transeuntibus ad religionem, III,
14, in VI», s.v. vel professionem.

Tacit Renunciation Before Council of Trent

37

Article IV. Voluntary Military Service
Pope Gregory IX in a letter written between the years 1227
and 1234 decreed that a cleric was to be deprived of his benefice
if he failed to reestablish residence when he had been warned
to do so.40 The Glossator noted that a cleric always had to be
warned before he could be deprived of his benefice. He then
invoked a distinction. If a cleric had evidently given up and
abandoned his benefice {habere pro derelicto'), then there was no
need of a warning and the bishop could immediately confer the
benefice upon another. Among the cases in which a cleric was
considered to have completely given up and abandoned his benefice,
the Glossator cited the one in which a cleric became a soldier.
He put this act on a par with the act of contracting marriage
and the act of receiving an incompatible office.50 Since these
latter acts were considered as tacit renunciations of one’s benefice,
the Glossator evidently considered the act of becoming a soldier
also as a tacit renunciation of one’s benefice.
49 C. 17, X, de clericis non residentibus in ecclesia vel praebenda, III, 4;
Potthast, n. 9628.
50 Glos. Ord. ad c. 17, X, de clericis non residentibus in ecclesia vel
praebenda, III, 4, s.v. redierint.

CHAPTER IV

I
THE DOCTRINE ON EXPRESS RENUNCIATION FROM
THE COUNCIL OF TRENT TO THE CODE
OF CANON LAW

:
ζ

Article I.

The Subject and Object of an Express Re­
nunciation

Throughout the period after the Council of Trent (1545-1S63)
the general rule still held that any person could renounce an
ecclesiastical office unless there was an express prohibition against
it in the law. There existed, however, in this period a few more
prohibitions by way of addition to those which were in force
before the great Council.
■

I

SECTION 1.

SUBJECTS WHO WERE EXCLUDED FROM RENOUNCING

AN OFFICE

Π I

A—Major Clerics
The Council of Trent itself was responsible for the first new
prohibition in this regard.1 It forbade a major cleric to renounce
the benefice to the title of which he had been ordained, unless
he had another source of sufficient sustenance for the future,
The violation of this prohibition entailed the invalidity of the
resignation. The reason which the Council gave for enacting such
a law was this: it sought to prevent a major cleric from falling
under the necessity of begging or of procuring a livelihood from
a source unbecoming to the dignity of his sacred orders.
Pope St. Pius V (1566-1572) later extended this prohibition
to include the renunciation of any benefice possessed by a major
cleric, whether the title of his ordination did or did not inhere
in it.2 The Congregation of the Council in 1726 decreed that

;«

j!
,j
’i
j'
,h
,

1

j
">'
1

1 Cone. Trident, sess. XXI, de ref., c. 2.
2 Const “ Quanta Ecclesia," 1 apr. 1568—Bullarum Diplomatum et
Privilegiorum Romanorum Pontificum, Tauriensis Editio (25 vols., Augustae

i

1

È0

1

' -

<

38

? ;

■ :

Express Renunciation After Council of Trent

.

39

proof had to be produced for the sufficient sustenance of a major
cleric before he could be permitted to renounce his benefice. The
oath of the cleric involved was not accepted as sufficiently con' elusive to prove that fact.*
3
,
The Code of Canon Law today likewise forbids ordinaries to
receive the renunciation of a benefice of a major cleric unless
the cleric has another source of support. There is no invalidat­
ing clause in the law as it is stated in the Code.4

B—Novices
In order to insure absolute liberty to novices in the matter of
making their religious profession, the Council of Trent nullified
any renunciation made by a novice unless it was performed dur­
ing the two months immediately preceding profession and with
the permission of the bishop or his vicar.5* The renunciation,
even when made according to these rules, was not efficacious
unless the profession actually followed. Since the Council spoke
in a very general way of renunciation, a dispute arose as to
whether the renunciation of a benefice came under this pro­
hibition. Pirhing (1606-1679)® and Schmalzgrueber (16631735)78 maintained that this prohibition included all types of
renunciations, while Garcia (-)- ca. 1613)® and Barbosa (1589-

i
j
Ï
i
ΐ
i
'
!

i

Taurinorum, 1857-1872), VII, 664 (Hereafter this work will be cited as
Bullarium) ; Codicis /uris Canonici Fontes cura Emi Petri Card. Gasparri
editi (9 vols., Romae: Typis Polyglottis Vaticanis, 1923-1939) (Vols.
VII-IX ed. cura et studio Emi lustiniani Card. Serédi), η. 125. Here­
after this work is cited as Fontes.
3 S. C. C, Lancianen., 9 febr. 1726, ad HI et IV—Thesaurus Resolu­
tionum Sacrae Congregationis Concilii (167 vols, Romae, 1718-1908) III,
275 (Hereafter this work is cited as Thesaurus Resolutionum) ; Fontes,
n. 3311.
* Codex /uris Canonici Pii X Pontificis maximi iussu digestus, Benedicti
Papae XV auctoritate promulgatus (Romae: Typis Polyglottis Vaticanis,
1917. Reimpressio, 1933), canon 1484.
5 Cone. Trident, sess. XXV, de regularibus, c. 16.
3 Jus Canonicum Nova Methodo Explicatum (5 vols, in 4, Dilingae, 16741678), Lib. I, tit. IX, n. 25. Hereafter this work is cited as Jus Canonicum.
Ί Jus Ecclesiasticum Universum (5 vols, in 12, Romae, 1843-1845), lib. I,
tit. IX, n. 15. Hereafter this work is cited as Jus Ecclesiasticum.
8 Tractatus de Beneficiis (Coloniae Allobrogum, 1636), pars XI, c. I, n. 12.

40

The Renunciation of an Ecclesiastical Office

1649)® limited its application to the renunciation of temporal goods.
Pope Benedict XIV (1740-1758) decided this point in 1747 by
stating that the prescriptions of the Council applied to the renunciation of both temporal goods and benefices.10
The Code of Canon Law also declares invalid the renunciation
of a benefice made by a novice at any time during the period of
the novitiate.11
·

C—Those Close to Death
In the Regulae Concellariae of Clement XI (1700-1721) as
collected by Reiffenstuel (1642-1703) there was the famous
Regula XIX, according to which the renunciation made by a
person within twenty days of his death was null.12 This rule
was effective even if the person was in good health at the time
he made the renunciation.13
This law has been omitted from the present Code of Canon
Law.
SECTION 2.

A TYPE OF BENEFICE THAT COULD NOT BE RENOUNCED

The Council of Trent, besides requiring sufficient sustenance
for a cleric who was resigning the benefice to the title of which
he had been ordained, demanded also for the validity of the
resignation that express mention be made of the fact that the
benefice involved was the one to the title of which he had been
ordained.1*
The Code of Canon Law has retained this prohibition in canon
1485, where it declares that the renunciation of the benefice which
served as the title of ordination to major orders is null unless
the cleric expressly states that he was ordained on that title and
has substituted another legitimate title with the permission of the
ordinary.
’De Officio et Potestate Episcopi (3 vols, in 1, Lugduni, 1628), Alleg.
XCIX, n. 19.
10 Ep. " Ex quo,” 14 ian. 1747; Fontes, n. 374.
“ Can. 568.
12/ur Canonicum Universum (5 vols. in 7, Parisiis, 1864-1882), lib. Ill,
tit V, par. XVI. Hereafter this work is cited as Jus Canonicum.
i’ Schmalzgrueber, Jus Ecclesiasticum, lib. I, tit IX, n. 16.
»< Cone. Trident, sess. XXL de ref., c. 2.

, Express Renunciation After Council of Trent

41

The Competent Superior for the Admission
of an Express Renunciation
In the period which followed the Council of Trent there was
little or no change in the legislation pertaining to the competent
superior for the admission of renunciations of office. The Pope,
the bishop and the legate a latere were still the more important
superiors in this regard. It was still rather vague as to who was
the competent superior with reference to those offices in regard
to which different persons had the right of election or presenta­
tion and the right of institution. In all regards it seems that the
rules of the earlier period continued in vogue.15
The necessity of the superior’s consent for the renunciation
of a benefice was declared to be an established point of law by
a response of the Sacred Congregation of the Council.18 An­
other response of the same Sacred Congregation declared that a
resignation was not valid and perfect unless it was made before
him who had the power of breaking the quasi-contract which was
entered into between the incumbent and the church at the time
the incumbent was appointed to the church by the superior.11
The Code of Canon Law states that for the validity of a resig­
nation of office it is necessary that the renunciation be made to
the person by whom it is to be accepted, or if it need not be
accepted by anyone, that then it be made to the person from
whom the office was received or to the one who holds his posi­
tion. In cases wherein confirmation, institution or admission has
place in the conferring of the office, the renunciation of the office
must be made to the person who by law has the power of grant­
ing confirmation, admission or institution.18
Article II.

15 Cf. Reiffenstuel, Jus Canonicum, lib. I, tit. IX, n. 4; Pirhing, Jus
Canonicum, lib. I, tit. IX, n. 29.
16 S. C. C., Nucerina, 15 mart. 1828—Pallottini, Collectio Omnium Con­
clusionum et Resolutionum quae in causis propositis apud Sacram Congrega­
tionem Cardinalium S. Concilii Tridentini Interpretum Prodierunt ab eius
institutione, anno MDLXIP ad MDCCCLX distinctis titulis alphabetico
ordine per materias digestas (17 vols., Romae, 1868-1893), III, par. VII, n.
104. Hereafter cited as Pallottini.
11 S. C. C., Nullius seu Sublac. Institutionis, 27 nov. 1852—Pallottini,
III, par. VIII, n. 109.
18 Can. 187.

- W

42

Thé Renunciation of an Ecclesiastical Office

Likewise according to the present Code a cleric who presumes
to resign an office, benefice or dignity in the hands of the laity
is by that very fact suspended a divinis.19 This is a change from
the previous law which stated that a cleric was to be deprived
of his benefice for such an act.29
The Sufficient Cause Required for an Ex­
press Renunciation
In the period before the Council of Trent the question of a
sufficient cause for the renunciation of an office wàs raised only
in regard to the resignation of a bishop. The decretal of Pope
Innocent III in 1206 provided the list of causes that were suf­
ficient to permit the renunciation of an episcopal see.21 This list
had been considered an exhaustive list with reference to the
resignations of bishops, but after the Council of Trent the authors
disputed among themselves as to whether this list was meant to
exclude the use of any other cause as a justification for a bishop’s
resignation. Pirhing,22 Leurenius (1646-1723)23 and Wemz“
maintained that other good and useful causes proved sufficient to
permit a bishop to renounce his see, while Schmalzgrueber25
contended that the six causes listed by Innocent III were the
only ones that were applicable with reference to the renunciation
of a see by a bishop.
Pope St. Pius V was the first to introduce a list of causes which
were considered sufficient for permitting the renunciation of a
benefice inferior to the episcopal one. In his Constitution Quanta
Ecclesia, he enumerated the sufficient causes with reference to
these inferior benefices.29 The constitution permitted bishops and
other prelates to receive the resignations of those alone who could
not or in law were not qualified to serve their benefice or church.
The reason for such inability could be old age, sickness, crime

Article III.

Can. 2400.
20 C. 8, X, de renuntiatione, I, 9 ; Potthast, n. 390.
21C. 10, X, de renuntiatione, I, IX ; Potthast, n. 2698.
22 Jus Canonicum, lib. I, tit IX, n. 50.
22 Forum Beneficiate (4 partes in 2, Venetiis, 1742), pars III, q.' 406.
24 Ius Decretalium, II, n. 496.
25 Jus Ecclesiasticum, lib. I, tit IX, n. 5.
24 1 apr. 1568—Fontes, n. 125.

Express Renunciation After Council of Trent

43

or ecclesiastical censure. Likewise bishops could receive. the
resignations of those who contemplated the contracting of mar­
riage or the entering of a religious institute, provided that these
persons immediately fulfilled their intentions; besides they could
receive the resignations of those who dared not or could not
reside in the place of their benefice because of capital enemies.
To these causes were added also the causes mentioned as applicable
for bishops in the Decree of Innocent III.
A decision of the Sacred Roman Rota in 1796 declared that
the prescriptions of the constitution of Pius V bound under pain
of nullity and were applicable to the renunciation both of offices
and of benefices.27 Likewise a response of the Congregation of the
Council stated it as an incontrovertible principle that the resigna­
tion of a benefice was invalid if it did not rest upon at least one
of the causes listed by Innocent III and Pius V.28
The Code of Canon Law states merely that a just cause is re­
quired to permit a renunciation of an ecclesiastical office.28 No
mention is made of any specific types of causes, nor does the
requirement of a just cause, bind under pain of nullity. How­
ever, the Code does admonish superiors not to receive a renun­
ciation of office without a just cause.30
Article IV.

The Freedom Required in an Express Renun­
ciation

SECTION 1.

FREEDOM FROM FORCE AND FEAR

While in the period after the Council of Trent there was still
an insistence on the necessity of excluding force and fear from
renunciations of offices, nevertheless it remained uncertain as to
whether the presence of these factors rendered a renunciation null
or merely rescissible.
A decision of the Sacred Roman Rota in 1669 avoided the
issue when it declared that a person should be reinstated in his
benefice no matter whether the resignation was considered null
27 Sacrae Romanae Rotae Decisiones coram Consalvi (Romae, 1822), dec.
XLIII.
28 S. C. C., Rheginen., 18 maii 1850—Thesaurus Resolutionum, C1X, 193.
22 Can. 184.
82 Can. 189, § 1.
■

44

The Renunciation of an Ecclesiastical Office

or merely rescissible. It stated that the authors of the time were
divided in their opinion as to whether such a resignation was null
or merely rescissible.51
Later a series of decisions was rendered by the Sacred Con­
gregation of the Council in regard to the renunciation of a benefice
if made under the influence of grave fear. The cleric claimed
the presence of grave fear in the act of resignation and asked
to be reinstated in the benefice. In the first of these decisions
the Sacred Congregation decided for the nullity of the renun­
ciation, but refused to permit the cleric to reclaim the benefice.32
When the decision was appealed in the following year, the Sacred
Congregation stood firm on its decision as to the nullity of the
resignation, but decreed that the cleric could reclaim the benefice.33
Another appeal was made in the case, and the Sacred Congrega­
tion, again holding for the nullity of the resignation, returned to
the opinion that the cleric could not reclaim the benefice.34 The
following year the case was proposed once more for considera­
tion. Then the Sacred Congregation, adding the definitive state­
ment, Et amplius, answered that the resignation was null and
that the cleric should be reinstated in the benefice if he was not
given an equivalent benefice within six months.35
In another case before the same Sacred Congregation in the
year 1880 a renunciation was declared to be valid. One of the
alleged reasons for invalidity was the influence of grave fear in
the resignation, but the Sacred Congregation considered the fear
to be a just fear, since it arose from the fact that a trial was
being instituted against the incumbent for the commission of a
crime.3®
These decisions seem to indicate that resignations made under
the influence of grave fear, if unjustly inspired, were null.
However, the authors of the time were not in accord on the
81 Sacrae Romanae Rotae Decisiones Recentiores (ed. Farinarius, Rubeus,
et Compagnus, 25 vols., Venetiis, 1697) pars XVI, dec. 212 (27 nov. 1669).
88 S. C. C., Baren., 17 maii 1851—Fontes, n. 4119.
83 S. C. C., Baren., 2D maii 1852—Fontes, n. 4121.
84 S. C. C., Baren., 18 sept 1852—Fontes, n. 4129.
85 S. C. C. Baren., 28 maii 1853—Fontes, n. 4131.
88 S. C. C, Caietana, 24 apr. 1880—Fontes, n. 4246.

Express Renunciation After Council of Trent

45

point. Gonzalez-Tellez (-J- after 1673) contended that force and
fear invalidated a resignation ipso iure.37 He based his decision
on the decree of Clement V in the Council of Vienne, and on
the fact that elections were null if force and fear entered into
them. Schmalzgrueber, on the contrary, held that such resigna­
tions were valid but rescissible.38 He retained the opinion of
Panormitanus, who declared that the decree of Clement V ap­
plied only to resignations extorted by means of incarceration.
He stated that although elections were nullified by force and
fear, there was no law'Stating the same effect for resignations.
Pirhing did not attempt to solve the question at all; he merely
stated that force, fear and deceit rendered a resignation either
null or rescissible.39 Barbosa,40 Reiffenstuel,41 Santi (18301885 )4? and Wernz43 held that a renunciation motivated by
force, fear or deceit was merely rescissible. Santi and Wernz
noted, however, that absolute force and deceit which caused a
substantial error caused a resignation to be ipso iure invalid.
The Code of Canon Law states clearly and unequivocally that
grave unjust fear, deceit and substantial error render a renuncia­
tion of office ipso iure invalid.44
SECTION 2.

FREEDOM FROM SIMONY

During the time of the Council of Trent and in the period
following it there was a considerable amount of legislation on
the subject of simony in reference to the resignation of offices
and benefices. The policy of the earlier period, namely, of for­
bidding any type of pact in this regard, continued. The prescrip­
tions, however, became even more specific.
37 Commentaria Perpetua in Singulos Textus Quinque Libros Decretalium
Gregarii IX (5 vols, in 4, Venetiis, 1699), lib. I, tit. XL, c. 4, n. 2.
siJus Ecclesiasticum, lib. I, tit. IX, n. 4.
39 Jus Canonicum, lib. I, tit. IX, n. 84.
40 Collectanea Doctorum tam Veterum quam Recentiorum in Jus Pontifi­
cium Universum (6 vols, in 3, Lugduni, 1669), lib. I, tit XL, n. 5.
41 Jus Canonicum, lib. I, tit XL, n. 30.
42 Praelectiones Juris Canonici (2 vols., Ratisbonae, Neo-Eboraci, Cin­
cinnati, 1886), lib. I, tit IX, n. 7. Hereafter this work is cited Praelectiones.
43 fas Decretalium, II, n. 497.
44 Can. 185.

46

The Renunciation of an Ecclesiastical Office

The Council of Trent in a general way excluded any reserva­
tion of access and of regress in regard to all types of benefices.
For the acceptance of such reservations the Roman Pontiff alone
was acknowledged as competent.45· The intention of the Council
was to avoid any species of hereditary succession in benefices.
Likewise the Council forbade any reciprocal resignations of clerics
in favor of their illegitimate sons, by which one might obtain the
benefice of the other.4®
During the time of the Council of Trent Paul IV (1555—1559)
issued a motu proprio against the abuses current in the appoint­
ments to parishes and other benefices. He forbade the obtain­
ing of a benefice for another with the hope of getting an annual
pension or some other temporal benefit from him. Besides, he
forbade the obtaining of benefices with the intention or pact of
later resigning them in favor of another, even though no pension
or other temporal benefit was involved in the transaction. The
penalty attached to the violation of these prescriptions was an
excommunication reserved to the Pope with the effect also that
all the dispositions thus made were null and the benefice became
reserved to the Holy See.47
Pius IV later declared that all pacts reserving pensions, or the
right of ingress, regress or accession, were null and that the
appointment to the benefice became reserved to the Holy See.48
Pius V in his Constitution Quanta Ecclesia warned the bishops
and others who had authority in the conferring of benefices that
they were not to allow the resigning party to indicate in any way
who his successor should be. He also forbade these superiors to
confer benefices and offices on the relatives and members of the
household of the one who resigned them, or of the one who
admitted the resignations.4’ The same Pontiff later approved
the Constitution Romanum Pontificem of Pius IV, and set down
I
45 Cone. Trident, sess. XXV, de ref., c. 7.
48 Cone. Trident, sess. XXV, de ref., c. 15.
47 Paulus IV, motu. profir., “ Inter caeteras,” 27 nov. 1557—Fontes, n. 92.
48 Pius IV, const "Romanum Pontificem," 17 oct 1564—Fontes, n. 106.
40Pius V, "Quanta Ecclesia," 1 apr. 1568—Fontes, n. 125.

J-L

Express Renunciation After Council of Trent

47

rules and presumptions to be used in ascertaining when con­
fidential simony was to be acknowledged as present in a case.50
Sixtus V (1585-1590) decided that if confidential simony had
occurred in regard to a benefice, the bishop could make the ap­
pointment to the benefice provided that he had not participated in
or consented to the crime.51
In 1703 the exchange of a benefice for a chaplaincy with the
reservation of a pension from the benefice was not sustained by
the Sacred Congregation of the Council.52
Benedict XIV in the year 1741 declared that pacts by which
a cleric obtained a lump sum in place of the pension reserved to
him by the Holy See at the time of his resignation were invalid.
Likewise any payment of a lump sum in place of the pension
within six months after the new incumbent took possession of
the benefice was invalid, even though no proof was at hand that
a past had intervened in this regard. Both offenders were de­
prived of the benefice and rendered incapable of obtaining any
benefice in the future.53
In 1774 there was presented to the Sacred Congregation of
the Council a case in which an untonsured person had received
a chaplaincy and then resigned it on the condition that the patron
should give it to a priest who would later return it to the young
man when he had become a cleric. The cleric had already re­
ceived the chaplaincy back from the priest, and the Sacred
Congregation demanded that he resign the chaplaincy and ^restore
the fruits he had received before he was entitled to ask for
absolution from the censure attached to the crime of simony which
he had committed.54
The sapje Sacred Congregation in 1789 stated that a resigna­
tion made in favor of a certain person, or with a reservation
of prior rights, was simoniacal unless it was made in the hands
50 Pius V, const '* Intolerabilis," 1 iun. 1569—Fontes, n. 130.
51 Sixtus V, "Pastoralis officii," 13 aug. 1587—Bullarium, VIII, 895.
52 S. C. C., Novarien., 1 oct 1703, ad I—Fontes, n. 3009.
52 Benedictus XIV, const "In sublimi," 29 aug. 1741—Fontes, a 317.
54 S. C. C., Caurien., 9 et 30 iul. 1774—Fontes, n. 3790.

48

The Renunciation of an Ecclesiastical Office

of the Roman Pontiff.55 Once again the same Sacred Congrega­
tion refused to approve a resignation of a benefice in which a
pact was included, stating that it was confidential simony to
enter such a pact without the permission of the Holy See ac­
cording to the Constitution Intolerabilis of Pius V. It also
stated that a contract of do ut des in regard to benefices was
simoniacal.56
From all these pieces of legislation the authors before the Code
of Canon Law drew their conclusions that a renunciation was
simoniacal and null if any pact, condition or mode intervened by
way of private agreement of the parties. In order that a resig­
nation be made in favor of a third party, or with the reservation
of a pension, or with the reservation of access, ingress or regress,
it was necessary to have the permission of the Holy See.57
The Code of Canon Law declares a renunciation of office null
if it is made simoniacally.58 It also forbids the ordinary to confer
on his own or the resigning party’s household members, or the
relatives by affinity or consanguinity up to and including the
second degree, any office made vacant by an act of resignation.
This prescription binds under pain of nullity.59
With reference to benefices the Code has retained the concept
of confidential simony which prevailed before the Code. The
Code forbids the ordinary to receive the renunciation of a bene­
fice made for the benefit of another, or with any condition per­
tinent to the conferring of the benefice or to the sharing of the
fruits, unless there be litigation about the benefice and one of
the contending parties yield it in favor of the other litigant.60
The Pontifical Commission for the Interpretation of the Code
stated that the ordinary may accept the resignation of a pastor
85 S. C. C., Terracinen. seu Setina Cappellaniae, 19 sept 1789—Thesaurus
Resolutionum, LVIIII, 208.
58 S. G C, Nullius S. lacobi de Spatha, 21 apr. 1792—Fontes, n. 3878.
87 Garcia, Tractatus de Beneficiis, pars XI, c. Ill, n. 145; Pithing, Jus
Canonicum, lib. I, tit. IX, n. 85 ; Reiffenstuel, Jus Canonicum, lib. I, tit IX,
n. 80; Santi, Praelectiones, lib. I, tit IX, nn. 24-26; Wernz, Ius Decre­
talium, Π, n. 498.
88 Can. 185.
88 Can. 157.
«« Can. 1486.

Express Renunciation After Council of Trent

49

with the reservation of a pension for the life of the pensioner,
chargeable upon the parochial benefice in favor of the resigning
pastor, but that the pension may not exceed one-third of the net
revenue of the parish.61
Finally, the Code states that those who are guilty of simony
with reference to ecclesiastical offices, benefices or dignities incur
ipso facto an excommunication reserved in a simple manner to
the Holy See, and are deprived perpetually of the right of elec­
tion, presentation or nomination if they had such rights. Besides,
clerics are to be suspended.62

Article V.

The Form

and

Publication of an Express Re­

nunciation
SECTION 1.

THE FORM

As in the period before the Council of Trent, so in the post­
Tridentine period it was possible to make a resignation through
the medium of a proxy. This proxy could be a layman or a
cleric, provided that he possessed a mandate empowering him to
act.63 Pirhing noted that in the Roman Curia the mandate had
to be a public instrument, while private letters of deputation
sufficed outside of that Curia.64
Schmalzgrueber65 and Wernz66 stated that, although the com­
mon law did not demand it, nevertheless the style of the Roman
and Episcopal Curias required that the resignation be made in
writing.
The Code of Canon Law requires for the validity of a renun­
ciation of an ecclesiastical office that it be done by the resigning
party either in writing or orally before two witnesses, or by a
proxy having a special mandate.67
6120 man 1923, ad IX—Acta Apostolicae Sedis, Commentarium Officiale
(Romae, 1909-), XVI (1923), 116. Hereafter cited as AAS.
ez Can. 2392.
63 Pirhing, Jus Canonicum, lib. I, tit. IX, n. 94; Schmalzgrueber, Jus
Ecclesiasticum, lib. I, tit. IX, n. 41 ; De Angelis (1824-1881), Praelectiones
luris Canonici (4 vols, in 6, Romae, 1877-1887), lib. I, tit IX, n. 5 (Here­
after this work cited as Praelectiones).
eiLoc. cit.
65 Op. cit., Lib. I, tit IX, n. 39.
66 Jus Decretalium, II, n. 497.
.
67 Can. 186.

50

The Renunciation of an Ecclesiastical Office
SECTION 2.

THE PUBLICATION

The legislation after the Council of Trent added another ele­
ment to the matter of a renunciation of a benefice, namely, the
requirement that there be a publication made of the fact of resig­
nation. This element was prescribed in detailed fashion by the
Constitution Humano vix iudicio of Pope Gregory XIII (15721585) in 1584.68* This Constitution demanded the publication of
all renunciations of benefices tendered in the Roman Curia. This
publication had to be made within six months from the time the
resignation was tendered if the benefice was located on the Italian
side of the Alps, and within nine months if it was on the farther
side of these mountains. The publication was executed by the
reading of the Apostolic letters in the church when the people
were gathered for Solemn Mass. This had to be done in the
church of the benefice and in the cathedral. If the church was
a rural church and had no congregation, then the publication
was to be made in the parish church in whose territory the bene­
fice was located as well as in the cathedral. If war, pestilence
or other danger interfered in these places, then the publication
could be made in the nearest parish and cathedral churches.
The Constitution provided also for the publication of resigna­
tions which were tendered outside of the Roman Curia. It stated
that the competent superior was to accept or reject the resigna­
tion within a month, and that the one promoted to the resigned
benefice should publish the fact of his appointment and take
possession of the benefice within three months.
All these requirements of the Constitution were stipulated as
essential for the validity of the act and, if they were not observed,
the conferral of the benefice became, automatically reservedjto the
Holy See.
Benedict XIV in 1746 confirmed this constitution of Gregory
XIII.8’
The reason for this law was well explained by Pirhing.70 He
68 Gregorius XIII, const " Humano vix iudicio," S ian. 1584—Fontes, n.
.152.
68 Benedictus XIV, const " Ecclesiastica," 15 tun. 1746—Continuatio Bullarii Romani Benedicti XIV (3 vols, in 4, Prati, 1845-1847), Π, 67.
70 Jus Canonicum, lib. I, tit IX, n. 103.

r

Express Renunciation After Council of Trent

51

noted that it was introduced to avert all fraud and deception.
In this way a person was prevented from later returning to take
possession of the benefice under the pretext that he had not re­
nounced it. Likewise parishioners were safeguarded from mak­
ing mistakes as to who was their proper pastor. These and other
deceptions were foiled and thwarted by the law of publication.
The Sacred Congregation of the Council declared in 1894 that
the prescriptions of the Constitution Humano vix iudicio were
essential requirements of validity, and that they were to be ob­
served even though the act of renunciation was already well
known.71 Two years later the same Sacred Congregation stated
that this form of publication was to be observed even if the,
Regium Placet should cause a delay in .its execution.72 The
authors of the post-Tridentine period indicated, however, that the
constitution of Gregory XIII had not been put into practice in
all places.73
The Code of Canon Law makes no express mention of the pub­
lication of a resignation in the sense in which it was required
before the Code. The Code requires that a written document of
the resignation of an office be placed in the curial archives.74
It also states that the renunciation must be accepted or rejected
by the local ordinary within a month.75 A response of the Com­
mission for the Interpretation of the Code declared that a resig­
nation may be accepted by the superior even after a month has
elapsed, provided that the one who resigned has not withdrawn
his renunciation and notified the ordinary of the withdrawal before
the acceptance takes place.76 Also the Code prescribes that notice
of the accepted resignation should be sent , as soon as possible to
those who have any right in the matter of the conferring of the
vacated office.77
71 S. C. C., Firmana, 20 ian. 1894—Analecta Ecclesiastica (Romae, 18931911), Il (1894), 69.
72 S. C. C., Apulana, 25 iul. 1896—Analecta Ecclesiastica, IV (1896), 296.
73 Garcia, Tractatus de Beneficiis, pars XI, c. I, n. 12; Reiffenstuel, Jus
Canonicum, lib. I, tit. IX, η. 135; Santi, Praelectiones, lib. I, tit IX, n. 29.
74 Can. 186.
73 Can. 189, § 2.
7« 14 iul. 1922, ad. Ill—AAS, XIV (1922), 526-527.
77 Can. 191, §2.

. '

H

■1

THE DOCTRINE ON TACIT RENUNCIATION FROM
THE COUNCIL OF TRENT TO THE CODE
OF CANON LAW
'

i i

i ;
i-

;
: ·.
:I

•!
j
• :
I
! 1
!
’
!
'
;
j
:

J
?
1.
I I

j
•
,
’
<’

CHAPTER V

'

'

The legislation on tacit renunciation did not undergo much
change in the Council and in the period immediately following
it. It is difficult at times to understand the nature of a tacit
renunciation according to the explanations of the authors. Wemz,
for example, seemed disinclined to admit the idea of a tacit renunciation. He preferred to speak of " ablationes ob factum
non-criminosum ” because of the fact that deprivations of office
were enforced against a person even when he was unwilling
to relinquish them.1 In spite of differences on some points the
general opinion of the authors was that a tacit renunciation was
one by which a person was presumed by law to have the intention of resigning his office when he placed certain definite acts
as enumerated in the law.2
The acts which were generally accepted as implying a tacit
renunciation were identical with the acts thus characterized in the
period before the Council of Trent, but with the present Code
of Canon Law the law is extended to include acts heretofore not
considered as implying a tacit renunciation at all.
Article I. The Reception of Incompatible Offices
The strong stand which the Church had already taken against
the reception of a plurality of benefices was continued in the
Council of Trent. The Council decreed in its seventh session
that anyone attempting to hold several charges or otherwise incompatible, benefices contrary to the sacred canons, and especially to the Constitution De multa of Innocent III, was ipso
1 Ius Decretalium, II, il 531.
s Schmalzgrueber, Jus Ecclesiasticum, lib, I, tit IX, n. 2 ; Reiffenstuel,
Jus Canonicum, lib. I, tit IX, n. 9; Santi, Praelectiones, lib. I, tit IX, n. 3.

52

Tacit Renunciation After Council of Trent

53

facto deprived of these benefices.3* In the same session it was
forbidden to hold at the same time several metropolitan or
cathedral churches. Those who were holding them at the time
could choose the one they preferred, but had to resign all the
others within six months if the churches were subject to the
free conferral of the Holy See, or within a year in other cases.
If they failed to do this, then all the churches except the one
latest received were considered ipso facto vacant.* Likewise local
ordinaries were commanded to examine the dispensations of those
who at the time were holding several charges or otherwise incom­
patible benefices.5
The same Council ordered also that only one ecclesiastical bene­
fice could be conferred upon a person. If. that was not suf­
ficient for the sùstenance of the cleric, then the ordinary could
confer also a simple benefice on him, provided that not both of
them required the personal residence of the cleric. This regula­
tion applied in relation to all benefices. If anyone at the time
of the Council possessed more than one parochial church, or one
cathedral and one parochial church, he had to choose the one
he wished to retain and resign the others within six months.
Otherwise all became vacant and could then be conferred upon
others.6
Some responses of the Sacred Congregation of the Council help
to clarify the meaning and the extension of the decrees of the
Council of Trent. One response given on August 14, 1632, stated
that the taking of possession of the second incompatible benefice
effected the vacancy of the first one, and the second one also
became vacant if. the cleric attempted to retain possession of both
benefices.7 Another response of the same date decided that the
chancery rule, of triennial possession could not be used by one
possessing a plurality of incompatible benefices. Both incom­
patible benefices became vacant when a person who was already
in possession of one sufficient benefice received another one and
3 Cone. Trident., sess. VII, de. ref., c. 4.
*Ibid., c. 2.
sIbid., c. 5.
6 Cône. Trident., sess. XXIV. de ref., c. 17.
7 S. C. C., Hispalen, 14 aug. 1632—Fontes, n. 2546.

54

The Renunciation of an Ecclesiastical Office

retained the fruits of both benefices, even though this practice had
continued for a period of two years.8* Still another response of
' the same date cleared up an additional point when it stated that
a bishop was permitted to confer but one additional simple bene­
fice on a cleric who possessed a simple benefice which was in­
sufficient to provide him with a livelihood.®
In the same vein a later response of the Sacred Congregation
declared that an Apostolic dispensation was necessary to enable
a cleric to retain three simple benefices received from lay patrons,
even though the benefices were not in the same church.1011
With the advent of the Council of Trent, then, the distinction
between two types of incompatible benefices, namely, those with
reference to which a vacancy was effected ipso iure and those
which required a sentence of privation to effect the vacancy, was
abandoned. As Reiffenstuel noted,11 the Council of Trent stated
that the reception of a second benefice which was in any way
incompatible with the first one effected the vacancy of the first
one ipso iure. Fagnanus (1598-1678) remarked that the Coun­
cil of . Trent extended the penalty of the Decretal, De multa, of
Innocent III to all incompatible benefices. The option, given
by Alexander III, of choosing one or the other of the incom­
patible benefices applied after the Council of Trent only to the
case of two incompatible benefices which were acquired at the
same moment of time. In such a case, since both benefices were
received at the same moment, one could not be accused of re­
ceiving a second benefice while already in possession of a prior
incompatible one.12 Santi specified personal residence and suf­
ficient sustenance as the elements from which incompatibility of
benefices arose.13 De Angelis maintained that the only two
compatible benefices were those of which the first one received
8 S. C. C, Leodien., 14 aug. 1632—Fontes, n. 2547.
8 S. C. C., Aquitana, 14 aug. 1632—Fontes, n. 2545.
10 S. C C, Cursolen., 13 tnaii 1651—Santi, Praelectiones, lib. Ill, tit V,
n. 79.
11 Jus Canonicum, lib. Ill, tit V, n. 293.
11 Commentaria in V Libros Decretalium (4 vols, Venetiis, 1697), lib.
ΙΠ, tit V, c. VII, n. 9-10.
18 Praelectiones, lib. Ill, tit V, n. 79.

Tacit Renunciation After Council of Trent

55

was not adequate for providing the incumbent with a,fit sus­
tenance.14
The Code of Canon Law states that a cleric loses his first
office through a tacit renunciation when he receives and takes
possession of a second incompatible office.15* According to the
Code offices are incompatible when their inherent duties can
not be fulfilled by the same person at one and the same time.1®
Benefices are incompatible for the same reason, but furthermore
also if one of them is sufficient for the sustenance of the in­
cumbent.17
If a person receives a second incompatible benefice
or office, and then tries to retain the prior one also, the law de­
prives him automatically of both.18
Article II. The Marriage of a Cleric
The marriage of a mifior cleric continued after the Council of
Trent to be a factor which entailed the tacit renunciation of an
office. The question most considered in this period was whether
an invalid marriage had the same effect as a valid marriage in
this matter. On this point there existed a variety of opinions.
Riganti (1661-1735) contended that a null marriage had the
same effect as a valid marriage in this regard, except when the
nullity was caused by a lack of consent, as, for example, in the
case of a child or of an insane person.19 He referred to a re­
sponse of the Sacred Congregation of the Council which declared
that a certain Caius could not resign his benefice, since it had
already become vacant by his contracting of marriage, even
though the marriage was performed without the witnesses re­
quired for its validity by the law of the Council of Trent. It
was immaterial whether or not the person involved knew of the
14 Praelectiones, lib. Ill, tit. V, n. 23.
15 Can. 188, n. 3.
14 Can. 156, § 2.
« Can. 1439, § 2.
18 Can. 2396.
19 Commentaria in regulas, constitutiones, et ordinationes concellariae
apostolicae (4 vols, in 2, Coloniae Allobrogum, 1751), in reg. LVIII, see.
Ill, nn. 21, 30.

56

The Renunciation of an Ecclesiastical Office

nullity of the marriage. Leurenius was of the same opinion as
Riganti.20
Others made distinctions.between the different types of nullity.
Garcia21 and Barbosa22 claimed that the benefice did not become
vacant if the marriage was null because of the lack of consent
or the non-observance of the prescribed Tridentine form of
marriage, but that it did become vacant if the cleric contracted ;
a marriage, even when he was conscious of the fact that a
diriment impediment stood in the way of the validity of this
union. Sanchez (1550-1610),23 Santi24 and De Angelis pre­
scinded entirely from the intention of the cleric and claimed
that a benefice was not tacitly renounced as long as the marriage was null for any reason whatsoever. They claimed that
the reason for the law was based on the incompatibility of the
marital and the clerical states, and as long as the marriage was
null, there could be no question of incompatibility. Wernz agreed
with Riganti, holding that any marriage, valid or invalid, effected
the vacancy of a benefice as long as the nullity of the marriage
did not arise from a lack of consent.25*
Those who claimed that the intention of the party, and not
the validity of the marriage, was the predominant thing to be
considered took their opinion from a case in the Decretals.28
In this case a man who had received major orders after his wife
had died later married another woman. He was subjected to
the penalties of a bigamist in spite of the fact that the second
marriage was null by reason of his sacred orders. From this
fact these authors argued that the intention of the cleric was the
important element to be considered. Hence some authors held
that if a cleric contracted marriage in ignorance of the presence
of a diriment impediment, his marriage, though invalid, would
20 Porum Beneficiate, pars III, q. XLIV-XLVI.
21 Tractatus de Beneficiis, pars. XI, c. VIII, nn. 1-15.
22 Pc Officio et Potestate Episcopi, Alleg. LVII, n. 207.
23 Pc Sancto Matrimonii Sacramento Disputationum Libri Dacem in Tres
Tomos Distributi (Venetiis, 1712), lib. VII, disp. XIII, n. 4.
24 Praelectiones, lib. Ill, tit III,' nn. 5-7.
25 Ius Decretalium, II, n. 532.
23 C. 4, X, de bigamis, I, 21 ; Potthast, n. 700.

'

.

z
'

■ [

H

Tacit Renunciation After Council of Trent

57

effect a tacit renunciation; on the other hand, if he knew of the
presence of the diriment impediment, he could not be accused
of a tacit renunciation. Many other distinctions were made by
the authors, but the ones already indicated were the important
ones.
A response of the Sacred Congregation of the Council stated
that a benefice became vacant in consequence of marriage except
when consent was lacking in the marriage, for in such a case
the will of taking a wife and of abandoning the clerical state was
not present.2728 Likewise a conclusion drawn from another re­
sponse of the same Sacred Congregation stated without any
limitation that the marriage of a minor cleric caused his tacit
renunciation of the benefice.23 An article in Volume XI of the
Acta Sanctae Sedis still held the opinion that a minor cleric did
not renounce his benefice in the event of marriage which was
null because of the non-observance of the prescribed Tridentine
form of marriage.29
The Code of Canon Law states that a cleric, major or minor,
tacitly renounces an ecclesiastical office by contracting even a
so-called civil marriage.30
Article III. Religious Profession
In the period after the Council of Trent solemn religious pro­
fession in a religious order continued to be a factor that entailed
the tacit renunciation of a benefice. For those who made simple
.profession a benefice did not become vacant by profession, but
they could be forced to resign it if the benefice was a residential
one. If they did not resign it, then the bishop could proceed
against them.31
In the year 1903 the Sacred Congregation for Bishops and
Regulars decided that in the Congregation of the Missionaries
27 S. C. C., Brixinen., 18 sept 1790—Thesaurus Resolutionum, LVIII, 191.
28 S. C. C., Reintegrationis seu Rehabilitations in Paroeciam, 28 iul.
1877—Acta Sanctae Sedis (41 vols., 1865-1908), XI (1878), 38. Hereafter
cited as ASS.
29 ASS, XI (1878), 43.
80 Can. 188, n. 5.
31 S. C. C., Pinerolien., 23 nov., 14 dec. 1833—Thesaurus Resolutionum,
XCIII, 432, 449.

58

The Renunciation of an Ecclesiastical Office

of the Immaculate Heart of Mary perpetual profession effected
the vacancy of residential benefices, and thus the members did
not need to have recourse to the Sacred Congregation in order
to renounce their benefice before their profession.32 Wemz re­
marked that it .was not clear whether other types of benefices were
affected by such a profession, or whether the response of the
Sacred Congregation was applicable to all congregations in which
a perpetual profession was made.3334
The Code of Canon Law states that any type of religious pro­
fession causes the tacit renunciation of an ecclesiastical office.33
In the matter of benefices there are some restrictions in this
regard. Parochial benefices become vacant only one year after
the profession, while other benefices become vacant only three
years after the profession.35*
<
Article IV. Voluntary Military Service
The legal disposition of this point continued to hinge on the
remark of the Glossator for whatever legal force it had. No
legislation was added on the point, but there were a few de­
cisions of the Sacred Congregation of the Council which seemed
to confirm the opinion which had been traditional in its acceptance
. by the authors.
The first response in 1788 contained a statement that a cleric
who volunteered for military service lost all benefices, -since he
was considered to have chosen a state of life incompatible with
the clerical one. Even if he abandoned the military life later, he
was not to be reinstated in the benefice.35 The same opinion was
stated two years later in another case before the same Sacred
Congregation.37
The Code of Canon Law forbids a cleric to volunteer for
military service unless he do it with the ordinary’s permission
32S. C. Ep. et Reg., 25 aug. 1903—Fontes, n. 2045.
33 Ius Decretalium, II, p. 270, footnote 5.
34 Can. 188, n. 1.
35 Can. 584.
33 S. G G, Firmana Capfellaniae, 7 iun. 1788—Thesaurus Resolutionum,
LVI, 93.
,
st s. G G, Brixinen., 18 sept 1790—Fontes, n. 3871.

Tacit Renunciation After Council of Trent

59

for the purpose of being more quickly freed of the obligation.38
,A cleric who violates this rule loses his office by a tacit renuncia­
tion.39
38 Can. 141, § 1.
39 Can. 188, n. 6.

PART TWO
CANONICAL COMMENTARY

Although an express renunciation and a tacit renunciation of
an ecclesiastical office produce the same effect in the law, namely,
the vacancy of the ecclesiastical office, they differ greatly in regard
to the manner in which they are executed. An express renun­
ciation must be made in accordance with a variety of rules and
formalities ; a tacit renunciation, on the other hand, requires noth­
ing more than the placing or the omission of the act to which
the law has attached the effect of a tacit renunciation. Because
of this essential difference between these two types of renuncia­
tion, it is necessary to discuss them separately.
The writer calls to mind once more the fact that only an ec­
clesiastical office in the strict sense is under consideration in this
work.

CHAPTER VI

THE LEGITIMATE SUBJECT AND OBJECT OF AN
EXPRESS RENUNCIATION
Canon 184. Quisque sui compos potest officio ec­
clesiastico iusia de causa renuntiare, nisi speciali pro­
hibitione renuntiatio sit ipsi interdicta.
With this canon the Code formulates the general rule with
reference to the subject and object of an express renunciation.
The general tenor of the canon gives the impression that the
Church does not wish to render unduly difficult the renunciation
of an ecclesiastical office. Although the canon itself makes pro­
vision for exceptions to the general rale, there are in reality few
exceptions. Provided that a cleric has the use of reason and
60

Legitimate Subject and Object of Express Renunciation 61
can present a just cause for renouncing his office, it is rare that
the resignation may not be made by the incumbent and accepted
by the superior. The Church is always reasonable in her de­
mands, and while she feels free to impose obligations on her
subjects, she is ever ready to release them from these obligations
when the proper circumstances warrant such a release. An
analysis of the elements in canon 184 will demonstrate the truth
of this principle. Through this analysis it will become clear as
to who may renounce an ecclesiastical office and what ecclesiastical
offices may be renounced. It is necessary to settle these two
fundamental points before proceeding to the treatment of the rules
for the actual execution of an express renunciation of an ec­
clesiastical office.

Article I. The Mental Capacity of the Subject
The Code, in demanding that a cleric have the use of his reason
in order to. renounce an office, merely restates a principle of the
natural law. The renunciation of an office must be a human
act, and to be such the person must have the use of his faculties
at the time of the renunciation. Otherwise the resignation is by
the natural law invalid.
The loss of the use of reason may be a habitual state as in the
case of an idiot, or it may be only temporary, arising, for example,
from drunkenness, fear, sleep, vehement passion or any other
like source. The source or the nature of the deficiency does not
receive any consideration.1 Even if a person has lost the use of
his reason through some fault of his own, as, for example, in
the case of voluntary drunkenness, a resignation made while he
is in such a condition is invalid. The law makes no distinction
since the use of reason is a prerequisite for any human act.
At most the law could punish an individual for permitting him­
self to be deprived of the use of his faculties through his own
fault, but there could be no possibility of taking the resignation
under serious consideration. In brief, the mental capacity of the
incumbent must be such as to permit him to know what he is
doing at the time of his resignation. If this condition is not
1 Coronata, Institutiones, I, n. 262.

62

The Renunciation of an Ecclesiastical Office

verified, then the person is incapable of validly renouncing an
ecclesiastical office.

Article II. The Requirement of a Just Cause
Although the Church permits a reasonable amount of free­
dom in the renunciation of an ecclesiastical office, she could not
be expected to permit such resignations without a just cause.
If an arbitrary freedom were granted in this matter, it would
inevitably result in grave detriment to the Church and to souls.2
The Code makes mention of the requirement of a just cause
in two instances. The present canon requires a just cause to
permit the incumbent to renounce his office, while a later canon3
forbids the superior to accept a resignation without a just and
proportionate cause. These canons are not to be interpreted in
the sense that two distinct just causes are necessary, one to justify
the incumbent’s resignation and another to justify the superior’s
acceptance of the resignation. The same cause may and ordi­
narily will be used to justify both of these acts.* One could
perhaps expect that the requirement of a just cause should re­
ceive mention only with reference to the acceptance of the
resignation by the superior, since it is he who must ultimately
judge concerning the existence of the proportionate cause in each
resignation. However, since the Code does not require that
every resignation be accepted by the superior,5 it was necessary
to mention the requirement of a just cause also in connection
with the active subject of a resignation.
Since the Code does not supply any list of specific causes, it
is necessary for the superior to judge concerning the cause in
each individual case. Ecclesiastical offices vary in dignity and
importance, and for this reason it is necessary that the just cause
vary in the same proportion, for the law requires that the cause
be a proportionate one. The more important the office is, the
more grave the cause must be to permit the resignation of that
office. The office of bishop, for example, demands a more serious
1 Wemz-Vidal, Ius Canonicum, II, η. 327.
5 Can. 189, § 1.
♦ Coronata, Institutiones, I, η. 263.
5 Ε. g., the resignation of a vicar capitular—Can. 443.

Legitimate Subject and Object of Express Renunciation fib

i

cause to justify its resignation than does the office of pastor, since
the former office is of much greater importance. A more grave
cause may be required for the renunciation of a specific office
because of the circumstances, as, for example, when the present
incumbent is the only person capable of fulfilling the duties of
the office under consideration. The just cause, then, at times
must be necessarily a grave cause in order that it be in propor­
tion to the office which is to be renounced.
The legislation of the pre-Code period provided some specific
causes which may serve as an aid to the superior in determin­
ing the presence of a just cause in an individual case. Innocent
III drew up a list of causes which were recognized as sufficient
to permit a bishop to ask permission to renounce his see.® Pius
V in like manner formulated a list of causes which were accepted
as sufficient to warrant the renunciation of an office inferior in
dignity to the episcopal office.7 The two lists were substantially
the same, although the latter list did contain a greater variety
of causes, since it had reference to inferior offices. The authors
were occustomed to summarize the sufficient causes by means of
the following verse :

Debilis, ignarus, male conscius, irregularis,
Quem mala plebs odit, dans scandala cedere possit.
Although these causes are not specifically mentioned in the present
law, according to which any just and proportionate cause permits
one to renounce his office, nevertheless they can be useful for
the determination of the present just and proportionate cause.
Cocchi notes that the cause may have reference to the good of
the Church, to the good of souls or to the good of the incumbent
himself.8 It is worthy of note also that the cause may have
reference to a temporal good as well as to a spiritual one.
In spite of the fact that the requirement of à just cause must
be considered of great importance, it must be admitted that it is
not necessary for the validity of a resignation in the present law.
Canon 184 is not so worded as to incorporate the elements which
« C. 10, X, de renuntiatione, I, 9 ; Potthast, n. 2698.
7 Const., " Quanta Ecclesia,” 1 apr. 1568—Fontes, n. 125.
8 Commentarium, II, n. 98.

I

64

The Renunciation of an Ecclesiastical Office

are necessary in order that a law may be considered as an in­
validating law.®
/
Special Prohibitions in Regard to the Sub­
ject and Object
Although canon 184 states that anyone mentally capable may
renounce an ecclesiastical office provided that he have a just cause
for so doing, it does not set this down as an inviolable nile.
The canon itself leaves room for exceptions to this rule by the
addition of a nisi clause which recognizes the possibility of special
prohibitions against the renunciation of an office. These special
prohibitions may arise from either the common law or the par-'
ticular law. Maroto states that particular law in some religious
institutes. forbids the renunciation of an office which has been
received.by a religious from the chapter or from a major su­
perior.10 In this discussion only the prohibitions which are
enacted in the Code will be considered. This will be followed
by a discussion on the power of the ordinary to establish pro­
hibitions against the renunciation of offices in the diocese.

!
",

Article III.

SECTION 1.

NOVICES

In order to insure the greatest possible freedom to a novice
in the making of his religious profession in a religious institute,
the Code renders null and void the renunciation of a benefice
made by a novice during the period of the novitiate.11 This
prohibition applies to the renunciation of a benefice by a novice
in any religious institute, even though the institute is merely of
diocesan right.12 Schafer notes that this prohibition does not
affect a resignation which is made prior to one’s entry into the
novitiate.13
9 Can. 11.—Irritantes aut inhabilitantes eae tantum leges habendae sunt,
quibus aut actum esse nullum aut inhabilem esse personam expresse vel
aequivalenter statuitur.
10 Institutiones, I, n. 679.
11 Can. 568, § 1.
12 Vermeersch-Creusen, Epitome, I, n. 715.
13 Compendium de Religiosis ad Normam Codicis luris Canonici (2. ed.,·
Munster i. W.: Ex Officina Libraria Aschendorf, 1931), n. 251. Here­
after cited as De Religiosis.

t

Legitimate Subject and Object of Express Renunciation 65

The wisdom of this prohibition is quite obvious. If a person
were permitted to renounce his benefice during the time of the
novitiate, his anxiety about his, future sustenance might be so
great as to pronipt him to make his religious profession when
in reality he preferred to return to the world.
SECTION 2.

MAJOR CLERICS

A canonical title is required by the law for the licit ordination
of a cleric to major orders.14 The canonical title is a provision
for a decent and perpetual sustenance of a cleric who receives
major orders.15* The Code provides a variety of canonical titles,
but only one is of interest here, namely, the title of benefice,
which is enumerated first among the legitimate canonical titles
for secular clerics.1®
In order to prevent a cleric in major orders from falling under
the necessity of begging or of procuring a livelihood from a
source unbecoming to the dignity of his sacred orders, the Code
enacts a special prohibition with reference to the renunciation
of the benefice to the title of which the major cleric was ordained.
The law renders invalid such a resignation unless express men­
tion is made in the resignation of the fact that the cleric was
ordained to that title and that another legitimate title has been
substituted for it with the consent of the ordinary.17 Hence for
the validity of such a resignation three things are necessary,
namely, an express mention of the peculiar quality of the bene­
fice, the substitution of another legitimate title, and the consent
of the ordinary to such a substitution. The legitimate title which
is subsituted may be any one of those which are recognized as
canonical titles of ordination in canons 979, § 1, and 981, § l.18
The care of the Church in guaranteeing a decent sustenance
to her clerics in major orders is manifested still further by the
14 Can. 974, n. 7.
. 15 Vermeersch-Creusen, Epitome, 11, n. 250.
18 Can. 979, § 1.
17 Can. 1485.
18 Augustine, A Commentary on the New Code of Canon Law (8 vols.,
Vol. II, 6. ed., 1936; Vol. VI, 3. ed., 1931; Vol. VIII, 3. ed., 1931, St.
Louis: Herder Book Co.), VI, 543. Hereafter this work is cited as A
Commentary.

66

The Renunciation of an Ecclesiastical Office

prescriptions of canon 1484. This canon forbids the ordinary
to receive the resignation of a major cleric with reference to
any type of benefice unless it is certain that the cleric has an­
other source from which to derive a decent support., This
certitude concerning the source of his future support may be
derived from documents, witnesses or from any other reliable
source of information.19
Canon 1484 safeguards the prescriptions of canon 584 which
states that .parochial benefices become vacant one year after a
religious profession has been made, and other benefices become
vacant three years after such a profession. In these circumstances
there is a tacit renunciation, but it does not take effect until the
prescribed time has elapsed.20 The prohibition in canon 1484,
unlike the prohibition in canon 1485, does not affect the validity
of the resignation.
SECTION 3.

CONDITIONAL RENUNCIATION OF BENEFICES

Canon 1486 forbids the ordinary to receive the renunciation
of a benefice in favor of another person or with an attached
condition which affects the conferral of the benefice or the dis­
tribution of the fruits of the benefice, unless there be litigation
about the benefice, and one of the contending parties yields the
benefice to the other litigant.
The prohibition of resigning in favor of another person is
made to avert the danger of simony or any species of hereditary
succession in benefices.21 Canon 1486 makes one exception to
this prohibition. If there is litigation about the benefice, the
ordinary may admit the resignation of the benefice when it is
made by one of the contesting parties in favor of the other liti­
gant. Vermeersch-Creusen state that this exception is made in
the interest of peace.22
In order that such a resignation may be permitted, the benefice
must be truly under litigation. This means that the summons
19 Blat, Commentarium, III, Pars altera, n. 392.
2» Can. 188, n. 1.
21 Cone. Trident., sess. XXV, de ref., c. 7 ; Pius V, const " Quanta
Ecclesia!’ 1 apr. 1568—Fontes, n. 125.
22 Epitome, II, n. 809.

Legitimate Subject and Object of Express Renunciation 67

‘

■

I

must have been duly issued and legitimately served or that the
parties have spontaneously appeared in court.23 Likewise, in
order to permit such a resignation, the benefice must be one.
which the ordinary has the power freely to confer. Otherwise
the promoter of justice must continue the case in the interest
of the freedom of the benefice, even after the other litigant has
, renounced his claim to it.24
Besides forbidding the ordinary to receive the renunciation of
a benefice in favor of another, canon 1486 also forbids the ad­
mission of a resignation with an attached condition which affects
the conferral of the benefice or the distribution of its fruits.
The subsequent conferral of the. benefice may be affected in
various ways by the attaching of conditions from the side of the
resigning incumbent. It may be a condition which limits the
conferral of the benefice in such a way that it can be conferred
only upon a cleric of a certain town or of a certain nationality.
On the other hand, it may be a condition which reserves the right
of the resigning party to return to the possession of the benefice
at a later date. If any such conditions are attached to the resignation of a benefice, the ordinary is forbidden to admit such a
resignation. By such conditions the freedom of appointment to
the benefice is greatly hampered.
Finally, canon 1486 forbids the ordinary to accept a resigna­
tion with a condition affecting the distribution of the fruits of
the benefice. This prohibition is in conformity with the law
which states that benefices are to be conferred without diminu­
tion.25 It is permissible, however, for the ordinary to establish
a pension and to impose its payment upon the benefice for the
lifetime of the officeholder. Such an imposition of a pension
must be made at the time the benefice is conferred, and express
mention of the pension must be made in the act of conferral.
Likewise a fit portion of the fruits must be guaranteed to the
incumbent. In the case of a parochial benefice the pension may
be imposed only in favor of the retiring pastor or vicar of that
benefice, and the pension may not exceed one-third of the net
23Pistocchi, De re bénéficiait (Taurini: Marietti, 1928), p. 487.
24 Can. 1734; cf. Blat, Commentarium, III, Pars altera, n. 394.
«Can. 1440.

revenue of the benefice.26 The Pontifical Commission for the
Interpretation of the Code has given a response to the effect that
an ordinary may accept the resignation of a pastor with the
reservation of a pension chargeable to the benefice for the lifetime of the pensioner provided that the pension does not exceed
one-third of the net revenue of the benefice.27
The Sacred Congregation of the Council had previously stated
that when a pastor is asked to resign in accordance with canon
2148, § 1, with the provision that he will receive a life-long pen­
sion not exceeding one-third of the net revenue of the parish,
such a resignation is not to be considered a conditional one. In
such a case the resignation is asked for and given absolutely.
The pension involved is merely the ordinary’s method of provid- ,
ing for the resigning pastor by means of a pension in accordance
with canon 2154, § 1, which contemplates such provision.28 '
Since the Code restricts the right of the ordinary to receive
conditional resignations, they may be accepted only on the
authority of the Roman Pontiff. Such resignations made with­
out the Pope’s authority constitute confidential simony and they
will be discussed from that point of view in the section of this
work set aside for a treatment of simony in the renunciation of
an ecclesiastical office.
In the opinion of the writer the prohibitions as mentioned in
the present article are the only ones enacted in the common law.
As has been seen, they all refer only to offices which are at the
same time benefices, and for this reason the discussion of each
prohibition has been brief, since this work is dedicated primarily i
to the renunciation of an ecclesiastical office in general.
Some authors mention that a cleric is forbidden to renounce
his ecclesiastical office if because of the commission of a crime
he has been deprived of it either ipso iure or by means of a con­
demnatory sentence of the judge,29 but the writer does not
consider this as a prohibition. The cleric in either case has
Can. 1429, §§ 1-2.
27 20 maii 1923, ad IX—AAS, TSNl (1924), 116.
2»11 nov. 1922—AAS, X.N (1923), 4S4.
29 Wemz-Vidal, Ius Canonicum, II, η. 325; Cocchi, Commentarium, II
η. 98.
μ

y

ί
H
i_

Γ

*

The Renunciation of an Ecclesiastical Office

68

i
j
j

*

;

j

!

,

v

Legitimate Subject and Object of Express Renunciation 69

already lost all right to the office. Other authors maintain that
a cleric who is still a minor is forbidden to renounce his ec­
clesiastical office without the permission of his parents or guard­
ians.30 They argue from canon 89, which states that minors
in the exercise of their rights are subject to their parents or
guardians except in those things in which the law exempts them
from such dependence. Since they fail· to see any exemption in
the Code with reference to the renunciation of an office, they
maintain that a minor depends Upon his parents or guardians
in the execution of such an act.
The writer believes that the Code does exempt minors from
this dependence at least implicitly with reference to the renun­
ciation of an cclesiastical office. The Code states that only clerics
may obtain the power of orders or of jurisdiction,31 and since
an ecclesiastical office in the strict sense must contain some par­
ticipation in the power of orders or of jurisdiction,32 it follows
that only clerics may obtain an ecclesiastical office in the strict
sense. In order that a person become a cleric, he must receive
the first tonsure,33 and by so doing he becomes incardinated in
a diocese 34 and subject to the ordinary of the diocese.35 From
this fact the writer believes that a minor is exempt from the
authority of his parents or tutors with reference to these things
which are pertinent to his clerical state.
If dependence on the parents or tutors is claimed with reference
to a renunciation of office, it must likewise be admitted for any
other act which the cleric performs. Such an admission would
place also the ordinary in a position of dependence on the parents
or the tutors. It would certainly be an anomalous situation.
A minor may act as plaintiff or respondent in a case involving
spiritual things or things connected with the spiritual without
the consent of his parents or guardians.30 It seems that the same
30 Wemz-Vidal, loc. cit.; Coronata, Institutiones, I, n. 262.
31 Can. 118.
33 Can. 145, § 1.
33 Can. 108, § 1.
3‘ Can. Ill, § 2.
35 Cans. 127-128.
33 Can. 1648, § 3.

70

The Renunciation of an Ecclesiastical Office

liberty must be allowed him in the renunciation of an ecclesiastical
office. Besides, before the Code any minor above the age of
puberty could renounce an ecclesiastical office without any need
of the consent of the parents or guardians.
It must be admitted that this discussion has little practical im­
portance, for, while a cleric under the age of his majority may
obtain an ecclesiastical office in the strict sense, it will be rare
that such a cleric will have such an office conferred upon him.
In most cases only priests will receive such offices, ■ and since
the age required for ordination to the priesthood is twenty-four
years,3’ it is highly improbable that one will be ordained before
the age of twenty-one years, even when a dispensation from the
required age is granted.
SECTION 4.

THE POWER OF THE ORDINARY TO ESTABLISH SPECIAL

PROHIBITIONS

While the authors are in agreement on the point that a special
prohibition with reference to the renunciation of an office may
come from particular law,38 they do not make any attempt to
define the extent of the superior’s power to enact such prohibi­
tions. Could a bishop, for example, enact a diocesan statute
prohibiting the renunciation of any and every office in the diocese
even when according to the Code a just and proportionate cause
is present to justify such a resignation ? Or, can such a prohibi­
tion be enacted with reference only to a specific type of office
or a specific group of offices, as, for example, the offices of the
diocesan curia? Can such a prohibition be enacted as perpetual,
or must it be of a temporary character suited to existing particular
circumstances? The following discussion will be an attempt to
propose an answer to these questions.
The general rule is that a bishop in his legislation may not
prohibit anything which is expressly and undoubtedly permitted
by common law, unless the common law clearly concedes him
such power.39 Canon 184 expressly permits anyone to renounce
s’ Can. 975.
ss Maroto, Institutiones, I, n. 679; Blat, Commentarium, II, π. 131; Claeys
Bouuaert-Simenon, Manuale, I, n. 340.
» Wemz-Vidal, Ius Canonicum, II, η. 599.

I
I

,

,

/

i
i

1

Legitimate Subject and Object of Express Renunciation 71
”
an ecclesiastical office if he is mentally capable of such an act
and has a just cause for so doing. This general permission,
however, is limited by the addition of a nisi clause which allows
special prohibitions to be made in this regard. As has already
been stated, these prohibitions may be derived from the common
law or from particular law. It is certain, then, that the ordinary
may prohibit the renunciation of an ecclesiastical office.
To what extent may the bishop make use of this power? The
writer is of the opinion that the bishop may enact a prohibition
affecting the renunciation of every office under his jurisdiction.
Canon 184 itself makes no limitation in this regard. However,
this does not mean that the writer concedes an arbitrary power
to the bishop. A comparison of the present canon with canon
128 seems to clarify the bishop’s position in the matter of establishing a prohibition against a resignation. This latter canon
states that whenever and as long as in the judgment of the ordi­
nary the needs of the Church demand it, unless there is a legiti­
mate excusing impediment, clerics must accept and faithfully
discharge any work assigned to them by the bishop. To the
writer’s mind these two canons consider the same problem from
two different points of view. Canon 128 defines the circumstances in which a cleric must receive and retain an office, while
canon 184 states the conditions under which the cleric may re­
nounce an office. Canon 128, it is true, has reference to every
type of charge that the bishop may impose upon a cleric, but
. offices in the strict sense are-also included.40
The legitimate impediment mentioned, in canon 128 is on a
par with the jiist cause required by canon 184. Canon 128 men­
tions the “ necessitas Ecclesiae ” as the reason for permitting the
ordinary to impose, a charge on a cleric and to demand the faith­
ful fulfillment of it. The words ‘‘necessitas Ecclesiae,"' to the
writer’s mind, are most important, and may be applied by analogy
to canon 184 with reference to the imposition of a special proλ hibition ' against a resignation. In other words, the writer be-.
iieves that the bishop may place a special prohibition against the
resignation of a cleric when the needs of the Church demand
40 Maroto, Institutiones, I, n. 553.

'

<

j
ί
|
|

j
{
ί
]
|
j
|
|

J

|
|■
|
[

72

,

The Renunciation of an Ecclesiastical Office

it. If the needs of the Church should demand it, then the ordi­
nary could forbid the renunciation of any and every office in the
diocese. Although canon 184 uses the phrase “speciali prohibi­
tione," this does not mean that the prohibition may be given only
to an individual person or in reference to a specific office. Rather,
it means that the prohibition, general or particular, is occasioned
by special circumstances demanding such taction. Such circum­
stances may be the result of a scarcity of competent priests in
the diocese at a given time, or of a danger of schism which is
threatening the diocese, or of any other similar and weighty con­
sideration. The prohibition may extend only to the offices
affected by such circumstances, and may be made operative only
as long as the circumstances demand it. Otherwise the prohibi­
tion would be contrary to the freedom granted in canons 128
and 184. It is possible, however, that the circumstances may
be of a perpetual nature, and therefore the prohibition may also
be perpetual.
In brief, then, the ordinary may prohibit the renunciation of
an ecclesiastical office or offices when the needs of the Church
demand it. In reality, the prohibition is more or less simply a
statement to the effect that a cause which under ordinary circum­
stances would justify a resignation is at present not in proportion
to the needs of the Church. If there is doubt as to whether or
not the prohibition is just, the cleric must obey, but he may in­
stitute a recourse to the Holy See in devolutivo against the pro­
hibition.41 The wording of the prohibition must be examined in
each particular case in order to determine whether or not the
prohibition affects the validity of the renunciation.42
41 Coronata, Institutiones, I, n. 189.
42 Claeys Bouuaert-Sitnenon, Manuale, I, p. 197, footnote 1.

,Ί ■

! ■ '

'

<

■

' / '

'

[

J

CHAPTER VII

’

i

THE COMPETENT SUPERIOR FOR THE ADMISSION

[

OF AN EXPRESS RENUNCIATION

i

,

I
!
!
,
■;

I
i
i

ji

,

The Generic Determination -of the Competent
Superior
Canon 187, § 1. Renuntiatio, generation, ut valeat, ei
fieri debet a quo est acceptanda, vel, si acceptatione non
egeat, a quo clericus officium accepit vel qui eiusdem
locum tenet.
„
_
.. '
§ 2. Quare si officium per confirmationem, admis­
sionem, vel institutionem collatum fuerit, renuntiatio fieri
debet superiori ad quem de iure ordinario confirmatio,
admissio, vel institutio spectat.

■

■

t
j

1
t
i
■

Λf

Article I.

7
J
;

-i
!
!
■
!

.

.

i
'f
[

f

Just as no ecclesiastical office may be obtained without the
canonical provisionary intervention of the proper superior,1 so
also no ecclesiastical office may be renounced without the intervention of the proper ecclesiastical authority. This intervention
of the proper superior may take place in either of two ways.
In the majority of cases it is necessary for the validity of a
' resignation that it be presented to the competent superior and
be accepted by him; in some cases, however, a mere présentation of the resignation to the proper superior offices.

I
'
!

i

'

’

i

i

.

1

-

According to this canon it is generally required for the validity
of a resignation that the resignation be presented to the competent superior. If the resignation needs to be accepted by the
superior, then the superior by whom it is to be accepted is the
one to whom it must be tendered. If, on the other hand, acceptance of the resignation by the superior is not required, then
the resignation is to be tendered to the one from whom the
office was received, or to the one who holds the place of that
superior.
The Code gives no general rule for determining when a resig1 Can. 147, § 1.

73

|
i

r

I
I
·'

'

i

.

i

74

The Renunciation of an Ecclesiastical Office

ation must be merely presented to a superior, and when it must
also be accepted by him. Coronata is of the opinion that in
general an office may be renounced by merely presenting the
resignation to the superior when the office was conferred by
means of a collative election. In other cases the acceptance of
the resignation by the superior is required for the validity of
the resignation.2 This seems to be a safe rule to follow. The
Code expressly mentions two cases in which a resignation need
not be accepted by anyone, and both of these refer to offices
which are conferred by a collative election, namely, the office
of Roman Pontiff and the office of vicar capitular?
Since the determination of the competent superior depends
upon the source from which the incumbent receives the office, it
is necessary to give a brief summary of the various modes in
accordance with which the filling of ecclesiastical offices may be
procured. The canonical assignment of office denotes the grant­
ing of an ecclesiastical office by the competent superior in accord­
ance with the sacred canons? This canonical assignment may
be effected by an act of free conferral, of confirmation, of ad­
mission, of institution, or of collative election. An office is given
by an act of free conferral when the superior both designates
the person and grants the title to the office ; by an act of con­
firmation on the part of the legitimate superior when the can­
didate has been designated by means of an election; by an act
of admission on the part of the legitimate superior when the
choice of the electors stands as an act of postulation, that is,
when their election centers in one who is prevented from accept­
ing the office by reason of an impediment from which a dis­
pensation is customarily granted; by an act of institution when
the candidate has been nominated or presented by another; by
an act of collative election when the election itself designates the
person and confers the title to the office.
In all of these cases, with one exception, the competent superior
for the admission of the resignation is the person who in his own
right has freely conferred the office or who by ordinary title and
2 Institutiones, I, n. 263.
’Can. 221; 443, § 1.
« Can. 147, § 2.

*

.

Competent Superior for Admission of Express Renunciation 75

right has bestowed the required confirmation, institution or ad­
mission to the office. The ones who elect, present, nominate or
postulate the candidate retain no right to participate in the re­
nunciation of the office. The one exception is the case of colla­
tive election. Since in this case no confirmation is necessary,
the resignation must be presented to the body of electors who
conferred the office. As has already been stated, the acceptance
of the resignation by the body of electors is not required as a
general rule.
It is to be noted that canon 187, § 2, states that the resignation
must be tendered to the superior who has the power of confirma­
tion, institution or admission to the office by ordinary right. The
purpose of this paragraph is to indicate that the persons who elect,
nominate, present or postulate a candidate do not retain any right
to participate in the renunciation of the office, but it serves also
to emphasize the fact that the superior who is to participate in
the renunciation of the office is the one who by ordinary right
has the power of confirmation, institution or admission to the
office. The same principle holds also for the renunciation of
an office which is obtained by an act of free conferral or collative election. This principle is clearly enunciated in canon 158,
which reads as follows :
Qui, alius negligentiam vel impotentiam supplens, offidum confert, nullam inde potestatem acquirit in nomina­
tum; sed huius iuridicus status perinde constituitur, ac si
provisio ad ordinariam iuris normam peracta fuisset.
Hence, if, for example, the metropolitan, by supplying the negligence of a suffragan bishop, has instituted in office a person
presented by a patron in the suffragan diocese,5 the suffragan
bishop, and not the metropolitan, is the competent superior for
the acceptance of the renunciation of that office. In the sanie
manner the cathedral chapter and the diocesan consultors are
the ones to whom the vicar capitular and the diocesan administra­
tor must tender their resignation, even though they had been
appointed to their office by the metropolitan because of the chap­
ter’s or the consultors’ failure to act within the time specified
»Can. 274, § 1.

■

'·
,‘>

■
i

*
'

'

i
J
i
>·
>
I
vI

76

!

The Renunciation of an Ecclesiastical Office

by the law.6 In both of these instances the metropolitan actually
confers the office, but only by reason of a devolved right, and
hence the resignation must be presented to the one who by ordi­
nary right should have conferred the office.7
Thus the competent superior for the admission of the renun­
ciation of an office is the superior who by ordinary right has the
power to confer the office in any of the ways enumerated above.
It is not necessary that, in order to be competent to receive the
resignation, the superior also have the power of removing the
incumbent from the office. Before the Code some authors pro­
posed the contrary as at least a probable opinion.8 Canon 187
does not mention this power as being necessary, and, besides,
canon 193, § 1, in speaking of the superior who is competent
to’ transfer a cleric from one office to another, states that the
superior must have the power both of accepting the resignation
of the first office and of removing the incumbent from the first
office, as well as the power of promoting the cleric to the other
office. From this canon it appears evident that the power of
removing a cleric from an office is not necessarily pre-required
for the power of accepting his resignation from the office.
Canon 187, § 1 likewise states that the person who holds the
superior’s place is also competent to accept the resignation. Blat
remarks that the person may be either the competent superior’s
successor, or a person delegated for accepting a particular resig­
nation by the superior.®
·
The participation of the competent superior in the act of re­
nunciation of office 'is required for the validity of the resigna­
tion, whether his participation be merely passive in that the
resignation must at least be presented to him, or whether it be
also active in that he must positively furnish his acceptance of
the resignation.
The adverb “ generatim,” as contained in the wording of canon
• Can. 432, § 2.
T Chelodi, Ius de Personis (ed. altera a Sac. Ernest Bertagnolli, Tridenti:
, Libr. Edit. Tridentum, 1927), n. 147.
8 Glos. Ord. ad. c. un., de renuntiatione, I, 4, in Clem., s.v., manibus;
Pirhing, Jus Canonicum, lib. I, tit IX, n. LXIX.
8 Commentarium, I, n. 134.

Competent Superior for Admission of Express Renunciation 77

187, § 1, has received different interpretations from the authors.
Some authors apply it exclusively to the first part of the para­
graph of this canon, in which mention is made of a resignation
which requires the acceptance of the superior for its validity.1011
Thus these authors consider the adverb as serving notice that
not all resignations need to be accepted by the superior for the
validity of the resignation. They point to the resignation of the
Pope and the vicar capitular as examples of resignations which
need only to be presented without the additional requirement that
they need also to be accepted by someone.
Other authors consider “generatim” as having reference to the
entire first paragraph of canon 187, and thus they look upon it
as leaving room for an exceptional kind of resignation in which
neither the presentation of it to a superior nor the acceptance
of it by a superior is required for the validity of the resigna­
tion.11 These authors consider the resignation of the Pope as
the only example of such an exceptional kind of resignation.
The latter opinion seems to the writer to be more in agreement
with the structure of the sentence in canon 187, § 1. The adverb
is so placed as to indicate that it modifies the principal verb of
the sentence without any special reference to either of the de­
pendent clauses. It seems rather to qualify the content of the
whole paragraph, and thus seems to make allowance for a case
in which a resignation may be made even without the necessity of
its being presented to anyone.
Since the resignation of the Roman Pontiff is the only resigna­
tion of this type, the divergent opinions affect the manner of only
his resignation. The authors who contend that the resignation
of the Roman Pontiff is to be presented to the College of Car­
dinals do not state whether they regard this presentation as a
requirement for the validity of the resignation. If the general
10 Augustine, A Commentary, II, 158; Blat, Commentarium, I, n. 134;
Beste, Introductio in Codicem (ed. altera, Collegeville, Minn.: St. John’s
Abbey Press, 1944), p. 210.
11 Coronata, Institutiones, I, p. 302, footnote 8 ; Toso, Ad Codicem luris
Canonici Commentaria Minora (5 vols., Vol. Π, 1921, Romae: Marietti),
II, 153 (Hereafter this work is cited as Commentaria Minora) ; Maroto,
Institutiones, I, n. 682.

:Ί

78

J
i
:J
Ij
H
ii f:
pi
p Î
?
[i I
ii :

'

I :

j;i
■j i
1 1

1J
j:
);
ί
■j
■p
i
■$,·

’

I, ;

t
j;

JI
i
]

!
j
j
I
I

; !
!
i

i
i
ί

The Renunciation of an Ecclesiastical Office

rule should apply, it should be regarded as necessary for the
validity if it is required at all. Canon 221 states that the resignation of the Roman Pontiff need not be accepted by anyone in
order that it be valid. The same canon does not state whether
the presentation of the resignation to the College of Cardinals is
or is not necessary.
Most of the authors maintain that the resignation of the Pope
may be communicated to the public in any way that he wishes.12
This view is more in conformity with the fact of the Pope’s
supremacy in the Church, and also with the words of Pope Boniface VIII in this regard : “. . . Romanum Pontificem posse libere
resignare.” 13 Hence, even though one accepts the interpretation
of the first group of authors and correspondingly classifies the
resignation of the Pope as one which is to be presented to the
College of Cardinals, one may not, so it appears, insist that on
the part of the Pope the presentation of his resignation to the
College of Cardinals is a requirement for the validity of his
resignation.
The laity are excluded from any competence in the matter of
admitting the renunciation of an office. As a matter of fact, if a
cleric presumes to resign an office, benefice or dignity in the
hands of a lay person, he automatically incurs a censure of
suspension a divinis.14 This suspension forbids the exercise of
any act of orders, whether such power be possessed by reason of
ordination or through a privilege.1’ Since canon 2400, which
enacts the penalty, contains the word “praesumpserit," any reduction of imputability in the act excuses the cleric from incurring the
censure.16 The resignation, however, is invalid by reason of canon
187, which in its nature of an invalidating law requires a competent superior for the valid acceptance of a resignation.
12 Coronata, op. cit., n. 316; Maroto, loc. cit.; Toso, toe. cit.; Augustine,
A Commentary, II, p. 210; Chelodi, Jus de Personis, n. 147.
13 C. 1, de renuntiatione, I, 7, in VI°.
14 Can. 2400.
13 Can. 2279, § 2, n. 2.
16 Can. 2229, § 2.

I

Competent Superior for Admission of Express Renunciation 79

i

The Specific Determination of the Competent
Superior
'
' Subsequent to the discussion concerning the generic determina­
tion of the competent superior for the acceptance of a resignation
according to the prescriptions of canon 187 an attempt will be
made to enumerate the more important competent superiors and
the respective offices for the resignation of which they are com­
petent. The writer makes no pretense at presenting a complete
list either of the competent superiors or of the respective offices.
Such an endeavor would connote a vast undertaking which un­
necessarily, and even uselessly, would take the writer far afield in
the prosecution of the present study. The general rules formu­
lated above will be applied to the more important superiors with
an indication of the extent of the superior’s power. Unless,
mention is made to the contrary, the reader should assume that the
resignation under consideration must not only be presented to, but
also be accepted by, the superior who is designated as the com- .
petent superior.
·

j

Article II.

SECTION 1.

I

·

i
' ■
i
!

THE ROMAN PONTIFF

By reason of his supremacy and plenitude of power in the
Church17 the Roman Pontiff may execute the conferral of any
and every kind of office in the Church if he sees fit to do so. For
the same reason he may reserve to himself the right to accept the
renunciation of any given office in the Church. Likewise, any
incumbent of an ecclesiastical office may make a valid resignation
in the hands of the Roman Pontiff if he wishes to do so and if the
Pope is willing to take the place of the lower competent superior in
accepting the resignation. Such a case may occur if the lower
competent superior refuses to accept a resignation, or does not act
upon a resignation within the time prescribed in canon 189.18
If the Pope or his delegate accepts the resignation from a benefice, then the conferral of the benefice for that time is reserved to
the Pope.1® If, however, the benefice is a manual benefice or one
11 Can. 218, § 1.
18 Haydt, Reserved Benefices, p. 100.
18 Can. 1435, § 1, n. 4.

j

·
!

'

!'_
'j
h
μ
.

Π
si

μ11

1

'

i!

i

80

I

»

The Renunciation of an Ecclesiastical Office

of mixed or of lay patronage, then express mention must be made
of the fact of reservation with reference to the conferral of the
benefice. Otherwise it is not reserved even though the Pope
accepts the resignation.20 It is to be noted that this reservation
takes place only when a benefice is renounced in the hands of the
Pope or of his delegate. An office which is not a benefice is not
included under the prescriptions of canon 1435.
Although the Pope is competent both for the conferral of all
offices in the Church and for the acceptance of the resignation of
the same, the number of cases in which he actually exercises this
power is comparatively small. In general one may say that the
Pope confers the major offices in the Church. A major office is
one that partakes of episcopal or quasi-episcopal power.21 Thus
cardinals,22 apostolic legates,23 patriarchs and primates,24 arch­
bishops,25 bishops,26 coadjutor and auxiliary bishops,27 vicars and
prefects ■ apostolic,28 apostolic administrators29 and abbots and
prelates nullius30 are all appointed by the Holy See and must
tender their resignation to the Roman Pontiff. Express mention
of the Pope’s competency in this matter is made with reference to
the resignation of a residential bishop and of an apostolic legate.31
The Pope’s exclusive competency with reference to the other
offices is deduced from the fact that he is the superior competent
to confer such offices.
The conferral of the dignities in the chapter of a cathedral or a
collegiate church is also reserved to the Holy See.32 A dignity is an
so Can; 1435, § 2.
21 Sipos, Enchiridion luris Canonici (3. ed., Pécs: Ex Typographia
“Haladâs R. T.,” 1936), p. 143. Hereafter this work is cited as En­
chiridion.
22 Can. 232, § 1.
23 Can. 265.
2« Can. 271.
25 Can. 272.
2« Can. 329, § 2.
2r Can. 350, § 1.
2® Can. 293, § 1.
2® Can. 312.
30 Can. 320, § 1.
si Can. 350, § 1 ; 268, § 2.
M Can. 396, § 1.

ί

'

'

λ

:

'

<

.

?

■

'

Competent Superior for Admission of Express Renunciation 81

t

office in the chapter which has some prerogative of honor attached
to it.33 According to the rule of canon 187, then, the resignation
of these dignities must be made to the Holy See, since the Holy
See is the one who confers them.
Likewise the major officials of the Roman Curia must tender
their resignation to the Roman Pontiff, since they too are freely
appointed by the Pope.34 In general the major officials of the
Roman Curia are the prefects, secretaries, sub-secretaries and
assessors. In the Sacred Roman Rota the major officials are the
ten auditors, the promoter of justice and the defender of the
bond.35
Regarding all the offices thus far mentioned the resignation
must be made in the hands of the Roman Pontiff or of someone
delegated by him, since these offices are conferred either by him
personally or on his authority. There is, however, another kind
of resignation which can be accepted only by the Roman Pontiff,
not because of the fact that he conferred the office, but because of
the special prescription of the Code in its regard. Canon 1486
forbids the ordinary to accept the resignation of a benefice in
favor of another or with a condition affecting the subsequent con­
ferral of the benefice or the distribution of the fniits of the
benefice. Hence such conditional resignations must be made to the
Pope. The ordinary may, however, accept the resignation of a
benefice in favor of another when the benefice is under litigation
and one of the contesting parties cedes it in favor of the other
litigant. Likewise the ordinary may accept the resignation of a
pastor with the reservation of a pension for the lifetime of the
pensioner chargeable to the benefice in favor of the resigning
pastor, provided that the pension does not exceed one-third of the
net revenue of the benefice.36
33 Vermeersch-Creusen, Epitome, I, n. 497.
34 Ordo servandus in Sacris Congregationibus, Tribunalibus, Officiis
Romanae Curiae: Pars Prima, Normae Communes, 29 iun. 1908, c. I, n.
1—AAS, I (1909), 37; Pius XI, Const "Ad incrementum decoris," 15
aug. 1934—AAS, XXVI (1934), 503 ; 504-505 ; 509 ; 512-513; 516-517; 519.
35 Lex Propria Sacrae Romanae Rotae et Signaturae Apostolicae, 29 iun.
1908, c. I, 4—AAS, I (1909), 20-21; Normae S. Romanae Rotae Tribunalis,
29 iun. 1934—AAS, XXVI (1934), 451.
36 P. C. I., 20 rnaii 1923, ad IX—AAS, XVI (1924), 116.

82

The Renunciation of an Ecclesiastical Office

One may think it strange that nothing has beefi said with
reference to canon 1435, which contains an exhaustive list of the
benefices the conferral of which is reserved to the Holy See. A
brief examination of this canon will demonstrate that the matter
of resignation is affected very little by these reservations. The
canon reads as follows :

Ί

§1. Praeter omnia beneficia consistorialia et omnes
dignitates ecclesiarum cathedralium et collegiatarum ad
normam can. 396, § 1, sunt reservata Sedi Apostolicae,
quanquam vacanti, sola beneficia quae infra memorantur: '
1°. Omnia beneficia, etiam curata, quae vacaverint per
obitum, promotionem, renuntiationem vel translationem
S.R.E. Cardinalium, Legatorum Romani Pontificis,
officialium maiorum Sacrarum Congregationum, Tribu­
nalium, et Officiorum Romanae Curiae et Familiarium,
etiam honoris tantum, Summi Pontificis tempore vaca­
tionis beneficii;
2°. Quae, fundata extra Romanam Curiam, vacaverint
per beneficiarii obitum in ipsa Urbe;
3°. Quae invalide ob simoniae vitium collata fuerint;
4°. Denique beneficia quibus Romanus Pontifex per se
vel per delegatum manus apposuit his quae sequuntur
modis; si electionem ad beneficium irritam declaraverit ;
vel vetuerit ad electionem procedere; si renuntiationem
admiserit; si beneficiarium promoverit, transtulerit, bene­
ficio privaverit; si beneficium in commendam dederit.
At first glance one would perhaps conclude that these benefices
must be renounced in the hands of the Pope, since the conferral of
them is reserved to the Holy See. However, such is not the case.
Haydt explains well the nature of these reservations?7 He states
that only a real reservation is perpetual in its effects; all other
types of reservation cease as soon as the superior to whom the
benefice is reserved has conferred the benefice. A real reservation
is one that reserves a benefice because of some element proper to
the benefice itself. The only real reservations in the Code are the
reservation of consistorial benefices and the reservation of dignities
in the chapter of cathedral and collegiate churches. Hence only
these benefices remain reserved after the Pope has conferred them,
ST Reserved Benefices, pp. 78-81.

\\------

Competent Superior for Admission of Express Renunciation 83
and therefore it is only regarding them that the resignation must
be made in the hands of the Pope, The other benefices, mentioned
in nn. 1—4 of canon 1435, are to be renounced in the hands of the
superior who has the ordinary right to confer them.' If this were
not so, then the benefices mentioned in nn. 1-4 of canon 1435
could never revert to the ordinary collator in the matter of their
conferral, for, if the Roman Pontiff had to accept the resignation
of them, the subsequent conferral of them would be reserved once
more by reason of n. 4 of this canon. Such is obviously not the
intention of the legislator.
Since the resignation of consistorial benefices and of dignities
in chapters of cathedral and collegiate churches has already been
considered, canon 1435 adds for notice here no new benefices to
the list of those which must be renounced in the hands of the
Roman Pontiff or his delegate.
SECTION 2.

THE LOCAL ORDINARY

Can. 152. Loci Ordinarius ius habet providendi officiis
ecclesiasticis. in proprio territorio, nisi aliud probetur;
hac tamen potestate caret Vicarius Generalis sine man­
dato speciali.
Can 1432, § 1. Ad collationem beneficiorum vacan­
tium, Cardinalis in proprio titulo vel aiaconia et Or­
dinarius loci in proprio territorio habent intentionem
in iure fundatam.
§ 2. Conferre autem beneficia nequit Vicarius Gen­
eralis sine speciali mandato; Vicarius autem Capitularis
nec paroecias vacantes, nisi ad normam can. 455, § 2,
n. 3, neque alia beneficia perpetua liberae, collationis.

After the Roman Pontiff the superior who holds a prominent
position with reference to offices and benefices is the local ordi­
nary. This position is clearly stated in the canons quoted above.
From these canons there is established a presumption in favor of
the right of the local ordinary to confer offices and benefices. From
this presumption there, arises another presumption in favor of the
local ordinary, namely, a presumption in favor of his right to
accept the renunciation of all offices and benefices in his territory.
Naturally these rights may be limited and are limited by any
reservations that the Pope sees fit to make.

84

The Renunciation of an Ecclesiastical Office

It remains now to determine who are the local ordinaries and
what is the extent of their power. According to canon 198, §§
1-2, the following persons are included under the term “local
ordinary”: residential bishops, abbots and prelates nullius and
their vicars general, administrators, vicars and prefects apostolic
and all those who succeed the aforementioned ordinaries in the
rule of their territory. With but few exceptions all the local ordi­
naries obtain the rights of a residential bishop in their territory,
and, like residential bishops, are competent for the conferral and
for the acceptance of the renunciation of all offices in their terri­
tory. Thus vicars and prefects apostolic,38 pro-vicars and pro­
prefects apostolic,39 abbots and prelates nullius,40 permanent
apostolic administrators41 and coadjutor bishops who are given to
a totally incapacitated bishop42 enjoy the rights of a residential
bishop, and like him may confer offices and benefices in the
territory, and also may receive the resignation of the incumbent
of any office or benefice.
The vicar capitular or, in places where there is no cathedral
chapter, the diocesan administrator, who rules the see when it is
vacant or impeded, is also a local ordinary, but does not enjoy the
fulness of power in this matter that the local ordinaries already
enumerated enjoy. He enjoys the same ordinary power as the
bishop in spiritual and temporal matters in all things which are
not expressly forbidden to him by the law.43 He is expressly
forbidden to confer parishes of free conferral until the see has
been vacant for a year,44 and is also forbidden to confer perpetual
38 Can. 294, § 1 ; cf. Winslow, Vicars and Prefects Apostolic, The Catholic
University of America Canon Law Studies, n. 24 (Washington, D. C. :
The Catholic University of America, 1924), pp. 15-30.
38 Can. 309, § 2; 310, § 2.
40 Can. 323, § 1 ; cf. Benko, The Abbot Nullius, The Catholic University
of America Canon Law Studies, n. 173 (Washington, D. C. : The Catholic
University of America Press, 1943), pp. 87-100.
41 Can. 315, § 1 ; cf. McDonough, Apostolic Administrators, The Catholic
University of America Canon Law Studies, n. 139 (Washington, D. C. :
The Catholic University of America Press, 1941), pp. 158-166.
42 Can. 351, § 2.
43 Can. 435, § 1.
44 Can. 455, § 2, n. 3.

I

Competent Superior for Admission of Express Renunciation 85
benefices of free conferral.45 Since he is expressly forbidden to
confer these benefices, it is to be concluded then that he is likewise
incompetent to receive the renunciation of persons who possess
them, for he does not hold the place of the bishop in these things.
Since these are the only two express prohibitions in the Code,
it seems logical to conclude that the vicar capitular is competent to
receive the renunciation of all other offices in the territory. It is
to be noted that the limitations of his power have reference only
to offices which are at the same time benefices. Canon 426, § 5,
expresses the competency of the vicar capitular with reference to
the resignation of a diocesan consultor. The canon states that if
a diocesan consultor dies or resigns while the see is vacant, then
the vicar capitular is to name another consultor to fill his place
with the consent of the remaining consultors. Since the canon
mentions the possibility for a resignation to be made by a diocesan
consultor during the vacancy of the see, it is postulated then that
the vicar capitular must be capable of accepting such a resignation,
since he alone has charge of the see at the time.
The writer is of the opinion that the vicar capitular can confer
all the offices in the diocese with the exception of the two types of
benefices already mentioned, and can also accept the resignation of
the incumbents of these offices. It is necessary to establish the
vicar capitular’s right to confer these offices in order to permit
him to accept the renunciation of them, for, in the present law,
the right of conferral and the right of < accepting resignations are
correlative rights. If it is not admitted that these rights are cor­
relative, then it must be admitted that the vicar general has the
power to accept the resignation of any office in the diocese, since
the Code does not require a special mandate for the vicar general
with reference to the acceptance of resignations from offices, but
requires it only with reference to the conferral of offices. No one
grants the vicar general such power.
In the pre-Code law there was no canon or decree which stated
that the competent superior for the acceptance of a resignation
was the superior who had the right to confer the office or benefice.
The lack of a definite provision in this matter gave rise to a
«Can. 1432, § 2.

86

The Renunciation of an Ecclesiastical Office

dispute among the authors as to the power of the chapter to
accept resignations when the see was vacant. By law the chapter
could not confer benefices which pertained to the free conferral of
the bishop when the see was vacant, but it could grant institution
to a candidate who was presented for a benefice by a patron.46
Some authors maintained that the chapter could accept the
resignation of only those benefices which it could confer .4r These
authors applied the principle that one could receive the resignation
of only those offices which he had the power to confer. They .
deduced this principle from the laws which were in existence with
reference to the resignation of specific offices. Other authors held
that the chapter could accept the resignation of even those offices
which pertained to the bishop alone for their conferral.48 These
authors considered that, since the chapter received the full power
of the bishop except in those things which were expressly for­
bidden to it, it could therefore receive the resignation of all
offices inasmuch as there was no express prohibition to the con­
trary. In other words, these authors consider that a limitation
upon the power of conferring benefices did not imply a limitation ■
upon the power of accepting resignations.
The opinion of the earlier-mentioned group of authors has been
adopted in the Code in canon 187. Thus one may receive the
resignation of only those offices which he has the power to confer.
As has already been stated, the writer is of the opinion that the
vicar capitular can confer all offices in the territory with the
exception of the two types of benefices already mentioned, and
therefore he can likewise accept the resignations which are
tendered from these offices.
The authors are quite vague in their determination of the
48 C. 2, X, ne sede vacante aliquid innovetur, III, 9; Potthast, η. 7794; c.
1, de institutionibus, ΠΙ, 6, in VI°.
47 Pirhing, Jus Canonicum, lib. I, tit IX, n. 74 ; Reiffenstuel, Jus Canoni­
cum, lib. I, tit IX, n: 7; Santi, Praelectiones, lib. I, tit IX, n. 20; “Traité
des Résignations”—Analecta Juris Pontificii (Romae, 1855-1869; Parisiis,
1872-1891),‘II (1857), 1522.
48 Garcia, Tractatus de Beneficiis, pars XI, c. ΠΙ, η. 260; Leurenius,
Forum Beneficiate, pars III, c. 714; Schmalzgrueber, Jus Ecclesiasticum, lib.
I, tit IX, η. 22; Gillmann, “Die Resignation der Benefizien"—AKKR,
LXXX (1900), 543.

Competent Superior for Admission of Express Renunciation 87
power of the vicar capitular with reference to the conferral of
offices. For the most part they restrict themselves to a considera­
tion of the powers which are expressly mentioned in the Code.49
It would not be fair to state that these authors exclude the vicar
capitular from competency in the conferral of offices except for
the few cases in which the Code explicitly confirms his com­
petency. However, they do fail to mention that he has the right
in other cases. Chelodi (1880-1922) 50 and Cappello,51 on the
other hand, expressly state that the vicar capitular can confer
offices only in the few cases in which the Code explicitly mentions
his competency.
( Since, however, the chapter and the vicar capitular receive all
the ordinary jurisdiction of the bishop except in those things
which are expressly forbidden to them by law,52 and since there
is no general prohibition on the Code by which they are for­
bidden to confer offices, they must be considered as competent in
all cases in which the law does not expressly exclude them from
competency. It follows from this that they may also accept the
resignation from offices in all these cases, since the two powers
are correlative. The exceptional cases have already been stated,
namely, perpetual benefices of free conferral and parishes of free
conferral. The latter type of benefices ceases to be an exception
when the see has been vacant for a year.
Another local ordinary is the temporary apostolic administrator.
Such an apostolic administrator is appointed to rule a see either
sede vacante or sede plena. He has the same rights as the vicar
*®Cocchi, Commentarium, II, n. 67; Coronata, Institutiones, I, p. 244,
footnote 4; Castillo, Disertacion Historico-Canonico sobre la Podestad del
Cabildo en Sede Vacante o Impedida del Vicario Capitular, The Catholic
University of America Canon Law Studies, n. 4 (Washington, D. C: The
Catholic University of America, 1919), pp. 76-83; Klekotka, Diocesan Consuitors, The Catholic University of America Canon Law Studies, n. 8
(Washington, D. C. : The Catholic University of America, 1920), pp. 157-159;
McDonough, Apostolic Administrators, pp. 145-149.
x
®° Ius de Personis, n. 147.
S1 Summa luris Canonici (3 vols., Vol. I, 3. ed., Romae ; Apud Aedes
Universitatis Gregorianae, 1938), n. 281.
« Can. 435, § 1.

i

88

The Renunciation of an Ecclesiastical Office

capitular.53 However, a distinction must be made between the
temporary apostolic administrator who is appointed to a vacant see
and the one who is appointed to a see which is still occupied. The
former, like the vicar capitular, can not confer parochial benefices
of free conferral within the first year of the vacancy of the see ;
the latter, who is appointed to a see which is still occupied, can
confer such benefices from the moment that he assumes the
administration of the diocese, unless his letter of appointment
states otherwise.54 Hence the power of the temporary apostolic
administrator who is appointed to a vacant see has the same power
as the vicar capitular with reference to the acceptance of renuncia­
tions of office; the power of the temporary apostolic administrator
appointed to a see which is still occupied extends beyond that
power, for he may admit the resignation of parochial benefices of
free conferral from the time he enters upon the office.
Finally, the vicar general is also a local ordinary, but, since he
can not confer an ecclesiastical office or benefice without a special
mandate,55 he is likewise incompetent for accepting the renuncia­
tion of an ecclesiastical office without a special mandate.56
Augustine (1872-1943) requires a special mandate for the con­
ferral of each specific office,57 but, as Coronata notes,58 this
interpretation is too severe and is not demanded by the canon.
The special mandate could extend to the conferral of all offices
in the territory. In the same manner a special mandate may be
given to the vicar general to authorize him to accept the resigna­
tion of any office in the territory. It is to be noted that a special
mandate empowering the vicar general with the conferral of
offices does not concede to him the right to accept the resignations
of those offices. If nothing is said with reference to the accept­
ance of the resignations, then it seems that the general rule should
' 53 Can. 315, § 2, n. 1.
54 For a thorough discussion of this point, cf. McDonough, Apostolic
Administrators, pp. 136-149.
55 Can. 152; 1432, §2.
'
56 Campagna, Il Vicario Generale del Vescovo, The Catholic University of
America Canon Law Studies, n. 66 (Washington, D. C. : The Catholic
University of America, 1931), p. 130.
57 A Commentary, II, 110.
58 Institutiones, I, p. 244, footnote 3.

^ttiaeuÊalalKÎ/IKttÊÎÊ^

Competent Superior for Admission of Express Renunciation 89
hold, namely, that the resignation be presented to the superior
who by ordinary right confers the office. The vicar general in this
case is an’ extraordinary collator, and unless he has a special
mandate for the acceptance of the resignation, it seems that he is
not qualified to take the place of the bishop in this regard,
SECTION 3.

CARDINALS

If a cardinal is at the same time a residential bishop, then there
can be no question with reference to his competency for the
acceptance of renunciations of office in his territory. He is in
such a case a local ordinary with all the rights of a residential
bishop. This is expressly mentioned in the Code with reference
to cardinal bishops and their suburbicarian sees,59 but it is true
also of any cardinal who resides outside the Roman Curia in the
capacity of a diocesan bishop.
Cardinal priests and cardinal deacons have an " intentionem
in iure fundatam ” with reference to the conferral of benefices in
their respective title churches and deaconries.50 Thus one must
neutralize the operative effect of this claim as founded in the law
in order to vindicate for himself any right in the conferral of
these benefices. The cardinal, however, must be present in the
Roman Curia in order to exercise this right of conferral. This
had been the practice of the Roman Curia, and is now confirmed
by a recent response of the Sacred Congregation of the Council,
which stated that when the cardinal titulars are absent from Rome
the conferral of the vacant benefices in their churches is reserved
to the Holy See according to the norms of canon 1435, § 3.“
Except for the case, then, in which a cardinal is not resident in
Rome, he possesses the right to confer the benefices in his titular
church and also the right to accept the resignation of the incum­
bents of these benefices.
se Can. 240, § 1.
60 Can. 1432, § 1.
6112 inn. 1943—AAS, XXXV (1943), 339—The Jurist (Washington,
D. C., 1941-), IV (1944), 630-632.

CHAPTER VIII
THE FREEDOM REQUIRED IN AN EXPRESS
RENUNCIATION

Canon 185. Renuntiatio ex metu gravi, iniuste in­
cusso, dolo aut errore substantiali vel simoniace facta,
irrita est ipso iure.

The renunciation of an ecclesiastical office, like other juridical
acts, may be influenced by various vitiating elements. The
legislator has taken cognizance of this fact by providing a special
canon with reference to the effects that these elements have upon
a resignation. In commenting upon this canon authors apply its
prescriptions only to the act of resignation as it is placed by the
incumbent.1 Only when speaking of simony do they mention the
superior’s act of acceptance as coming under the prescriptions of
this canon. The writer believes that this interpretation, which the
authors give at least by implication, is unwarranted. If the
acceptance of the resignation by the superior is required for the
validity of a resignation, as it is in almost every renunciation of
office, then the writer believes that the resignation is invalid if the
superior’s act of acceptance is interfered with in the manner
described in canon 185.
This opinion is based upon the interpretation of the phrase
" renuntiatio . . . facta ” as contained in canon 185. This phrase
is general and therefore can quite naturally represent the complete
act of resignation, inclusive of the acceptance of the resignation by
the superior. Substantially the same phrase is used in canon 191,
§ 1, which reads as follows:
Semel legitime facta renuntiatione, non datur amplius
poenitentiae locus, licet renuntians possit officium ex alio
titulo consequi.
1 Maroto, Institutiones,· I, n. 680; Cocchi, Commentarium, II, n. 98;
Claeys Bouuaert-Simenon, Manuale, I, n. 340; Coronata, Institutiones, I,
n. 263.

'

90

Freedom Required in an Express Renunciation

91

The Pontifical Commission for the Interpretation of the Code in
response to a question proposed concerning this canon stated that
a person may withdraw his resignation provided that he does so
before the superior has accepted it.*
3 This response forces one to
conclude that the phrase "legitime facta renuntiatione,” as con­
tained in canon 191, § 1, implies the completed act of resignation,
which includes the acceptance of the resignation by the superior.
Mannucci, in commenting upon this response, stated that possibly
the word "legitime" was the key to the solution, since a resigna­
tion could not be considered legitimately complete until the accept­
ance of the superior had taken place.3 This explanation is not
conclusive, but even if it were, one could hardly expect the use
of the term " legitime ” in canon 185, where the law speaks of the
effect that grave fear and other elements have upon the validity
of a resignation.
1 The writer believes that the phrase in canon 185 is substantially
the same as the one used in canon 191, § 1, and should therefore
receive the same interpretation, namely, that it includes the act of
the incumbent and the act of the superior when it is required that
the superior accept the resignation. If this interpretation is not
accepted, then the superior’s act of acceptance of a resignation, if
vitiated by fear, deceit, or error, must be judged according to the
general norms established in the Code for determining the effect
that these elements have upon a juridical act.
No difficulty would be encountered with reference to error,
since the general norm in canon 104 is in its import identical with
the prescriptions of canon 185. On the other hand, with reference
to grave fear and deceit, some difficulty of interpretation would
surely be occasioned. Canon 103, § 2 states that acts placed under
the influence of unjustly inspired grave fear and deceit are valid
unless the law decrees otherwise. Such acts may be rescinded by
the sentence of the judge acting either at the request of the
injured party or by reason of his office. Canon 185 takes ex­
ception to this rule by declaring that a renunciation of office made
under the influence of unjustly inspired grave fear or under the
214 iul. 1922, ad III—^^5, XIV (1922), 527.
3 II Monitore Ecclesiastico (Romae, 1876—)» serie TV, Vol. II (Vol. XXIV
della intera collezione) (1922), 340-341.

'

./

92

Λ' ■'

.

'

i

'

'

‘

The Renunciation of an Ecclesiastical Office

prevalence of deceit, is invalid. If the superior’s act of acceptance
of the resignation is not included under the prescriptions of canon
185, then, if grave fear or deceit influence the act of acceptance,
the resignation is valid but rescissible according to the general
rule. This places the superior at a distinct disadvantage, for he
must make use of a judicial sentence in order to rescind the
renunciation. But it appears evident that it is the precise purpose
of the special prescriptions of canon 185 to give greater protection
to the renunciation of an office than to other juridical acts in
general.
'
The writer fails to see why the legislator would protect the
incumbent from injury to his rights without granting the same
protection to the superior. This conclusion appears all the more
convincing when one considers that the use of grave fear or
deceit upon the superior would inflict not only a personal injury,
but rather also a social one by causing a detrimental reaction
with reference to general discipline and respect for authority. It
is true that the superior could obviate the ensuing difficulty by
conferring the office on the cleric anew, but the fact remains that
the accepted resignation on the part of the superior who acted
under the duress of an unjustly inspired grave fear, or under the
influence of deceit, would stand as binding with valid effect in
the face of the moral pressure which induced the superior to act.
Such recognition in law appears not only questionable, but in­
defensible as well.
Accordingly, in the following pages everything that is stated
with reference to the interpretation of canon 185 must be applied
in equal manner to both the act of resignation of the incumbent
and to the act of acceptance of the superior.

Article I.

Freedom

SECTION 1.

from

Force

and

Fear

FREEDOM FROM FORCE

Although canon 185 makes no specific mention of force or
violence, it seems fitting to say a few words concerning this
element, especially since it is so closely related to the element of
fear. Force may be defined as the impact of outward violence
employed by an external agent to compel another to do what is

1
j
{
]
’
|
i
. ■·
Î

Freedom Required in an Express Renunciation

93

contrary to his will. Force is distinguished as physical or moral.
Physical force is present when the violence coming from the
external agent is of such intensity that it can not be repulsed,
while at the same time the one suffering the violence is entirely
opposed to his enforced act. Moral force, on the other hand,
is present when a person either does not resist as much as he
should or does not entirely dissent internally to the act which
he is compelled to perform.
Canon 103, § 1, states that when the acts of physical or moral
persons are placed under the influence of an external force which
cannot be repulsed, they are considered as not having been placed
by the person. This canon is' merely a restatement of the natural
law, which requires the participation of the will in a human act.
Hence, a renunciation of an ecclesiastical office effected under
the influence of physical force is invalid. Such would be the
case if, for example, an incumbent of an office were forced in this
way to affix his signature to a document containing a statement
to the effect that he was renouncing his office.
No provision is made with reference to the effect that moral
force has upon a juridical act. Authors, however, consider that
moral force most frequently gives rise to fear, and for this reason
the principles regarding fear are to be applied to it.4
SECTION 2.

FREEDOM FROM GRAVE FEAR

Fear is defined- as a disturbance of the mind caused by the
apprehension of an imminent or future evil.5 The evil that is
apprehended may be either of a physical or of a moral nature.
Hence the threat of the loss of life, of bodily injury, or the
loss of one’s good name, or of a financial loss may constitute a
source of fear. The evil need not threaten the individual per­
sonally; it may threaten some one who is attached to him by
*Cf. Cocchi, Commentarium, II, a 10; Cappello, Tractatus CanonicoMoralis de Sacramentis (3 vols., Vol. Ill, De Matrimonio, 3. ed., 1933,
Taurinorum Augustae: Marietti), III, n. 603; Claeys Bouuaert-Simenon,
Manuale, I, n. 256.
5 Noldin-Schmitt, Summa Theologiae Moralis (3 vols., Vol. I, 27. ed.,
1940, Oeniponte: Rauch), I, n. 54. The general remarks on fear, its divi­
sions, etc., are taken from this work.

94

u

!

! !

>

i

*
> '
/i
îi

,:
?

h

>

i‘
'

.

î

<
‘
I

‘
:

.!

'
i
j,

I

i

■l

J ,!
,! j
I ;
5 j’
•|
U;.1 i
' ,f
ij ·

.

I »
I ί

i1·!
t

1

-1

J
J
i

The Renunciation of an Ecclesiastical Office

reason of a particular bond, as, for example, the bond of blood
or of friendship.
Fear is divided into grave fear and slight fear, depending upon
whether the threatening evil is of a grave or of a slight nature.
In order that the fear be considered grave, the evil must be
grave and also difficult to avert. The fear is absolutely grave
when the evil which threatens is sufficient to arouse grave fear
in even a resolute person; it is relatively grave when the evil,
in itself insufficient to cause grave fear in an ordinary person,
arouses grave fear in a certain individual by reason of the particular circumstance of age, of sex, or of some other factor,
On the other hand, fear is slight when the evil is neither abso­
lutely nor relatively grave, or when the evil of whatsoever gravity
it may be can be easily averted.
Fear is also distinguished as internal or external. The former
arises from a cause which is not dependent on a free agent, as,
for example, from a storm or from sickness; the latter is inspired by a free agent. Since this fear is inspired by a free
agent, it may be a just or unjust fear. It is just if the person
who inspires it has the right to do so and does it in the proper
manner. Thus, a judge has the right to inspire fear in a culprit
by threatening a penalty which is provided in the law. The
fear is unjust if the person who inspires it has no genuine claim
in support of his action, or if he presses unduly or excessively
whatever rightful claim he has.
·
Another type of fear usually considered by the authors is
' reverential fear. This fear arises from the dread of offending or giving pain to those whom a person should respect or
love. This fear may also be just or unjust according to the
rule already given. Ordinarily reverential fear is only a slight
fear. It may, however, be grave because of concomitant factors
such as the dread of harsh treatment or of continual remonstrances
from the superior.
Canon 185, taking exception to the general rule on grave fear
as contained in canon 103, § 2, states that a renunciation of office
is invalid if made under the influence of an unjustly inspired
grave fear. The fear in this case must be grave. Both absolutely grave and relatively grave fear produce the same effect.

Freedom Required in an Express Renunciation

95

Besides, the fear must be unjustly inspired in the individual by
a person whose act is not properly warranted, or if warranted,
not properly executed. If a superior, for example, should effect
a resignation by threatening a penalty on the incumbent, the
resignation would be null if the penalty was one which the law
does not permit him to inflict upon anyone. On the other hand,
the resignation would be valid if the fear arose from the threat
of a just and licit penalty. The Sacred Congregation of the
Council upheld the validity of a resignation which was made
through fear of a trial that was being instituted against the
incumbent for a crime that he had committed.6 This is the type
of resignation which can accompany the preliminary procedure
of the administrative removal of pastors.7 In such cases the
grave fear, if present, is certainly justly inspired in the incumbent.
By means of its specific and clear legislation with reference
to the effect that fear has upon a renunciation of office, the Code
has settled all the doubts that existed in the law prior to the
year 1918. In the present law a resignation is definitely invalid
if it is effected by means of grave and unjustly inspired fear.

Article II. Freedom from Deceit and Error
Deceit and error are two elements which are closely related one
to the other. Although error may arise from various sources,
it is often caused by deceit. In the matter of a renunciation of
office, however, the effects produced by deceit and error are dif­
ferent. For this reason it is necessary to treat these two elements
separately. ;
SECTION 1.

FREEDOM FROM DECEIT

Labeo (50? b. C.-18 a. d.) defined deceit as follows: "Owimij
calliditas, fallacia, machinatio ad circumveniendum, fallendum,
decipiendum alterum adhibita."8

Deceit is substantial or accidental according to whether it gives
rise to substantial or accidental error. The deceit may be
« Caietana, 24 apr. 1880—Fontes, n. 4246.
7 Can. 2148, § 1; 2158.
«D. (4, 3) 1.

96

The Renunciation of an Ecclesiastical Office

causative, that is, the person is induced by it to place his act, or
it may be simply concomitant, that is the person is not induced
by it to place his act inasmuch as he would nevertheless have
placed the same act even if he had known that deceit was being
employed.
Canon 103, § 2, states that acts placed under the influence of
deceit are valid unless the law decrees otherwise. They may be
rescinded, however, in the same way as acts which are placed
under the influence of an unjustly inspired grave fear. If the
deceit is the cause of substantial error, then any act placed under
such a condition is invalid, since substantial error renders all
acts null.9
Canon 185, in treating of deceit with reference to the act of
renunciation of office, declares that deceit renders the resigna­
tion invalid. There is a difference of opinion among the authors
with reference to the interpretation of the canon on this point.
In order the better to understand the reason for this difference,
it seems advisable to quote the canon here. It reads as follows:

Renuntiatio ex metu gravi, iniuste incusso, dolo aut
errore substantiali vel simoniace facta, irrita est ipso
iure.

Γ J'
1

Some authors maintain that the word "substantiali” modifies
both “ dolo ” and " errore’’ and therefore they contend that only
Substantial deceit renders a resignation invalid.1011 Others con­
sider that this canon is an exception to the general rule contained
in canon 103, § 2, and hold that accidental deceit also renders a
resignation invalid.11 In other words, the latter authors consider
the word “substantiali” as modifying only the noun " errore."
The writer believes that the latter interpretation is favored by
the very construction of the canon. Besides, the legislator mani9 Can. 104.
10 Vertneersch-Creusen, Epitome, I, n. 304; Maroto, Institutiones, I, n.
680 ; Wernz-Vidal, Ius Canonicum, Π, η. 328.
11 Coronata, Institutiones, I, η. 263 ; Blat, Commentarium, I, η. 132 ;
Cocchi, Commentarium, II, η. 10; Claeys Bouuaert-Simenon, Manuale,
I, n. 257; J. Salsmans, "Circa vitia consensus”—Ius Pontificium (Romae,
1921-), X (1930), 106-107. ’

i

Freedom Required in an Express Renunciation

97

fests in the Code a tendency to grant greater protection to acts
placed in consequence of deceit than to acts placed through
error arising from a source other than deceit. In canon 103,
§ 2, the legislator provides for the rescission of any act placed
in consequence of accidental deceit, while no such provision is
made for acts placed through accidental error. Canon 104 pro­
vides for the rescission of acts placed through accidental error
only in the case of contracts, and this provision is further limited
by the prescription of canon 1684, § 2, which permits such
rescissory action only for a period of two years and only when
the person has suffered a loss greater than half of what the con­
tract stipulated. Since this tendency is apparent in the Code,
and since the word “substantiali” is not clearly related to the
word “ dolo," the writer prefers to follow the opinion which holds
that even accidental deceit invalidates a renunciation of office.
Thus any deceit, substantial or accidental, by which a person
is induced to renounce an office, or by which a superior is in­
duced to accept the resignation, renders the resignation invalid.
A false representation of the financial condition of a parish, for
example, could induce the pastor to resign, or likewise could
cause the superior to accept a resignation which he would not
otherwise accept. In either case the resignation would be invalid.
If the deceit is only accidental, then, of course, it must be the
cause of the resignation or of the acceptance of it. If these
acts would have been placed in spite of the deceit, then the ac­
cidental deceit would not invalidate them.12
SECTION 2.

FREEDOM FROM ERROR

In the preceding discussion on deceit much has already been
said with reference to error and its effects upon acts in general.
For this reason the remarks on error will be brief.
Error is a false judgment concerning an object. It may be
substantial or only accidental. The former touches the very
essence of the thing under consideration, while the latter extends
only to accidental qualities of it.
12Cf. Gillet, "De actione rescissoria ob dolutn”—Jus Pontificium, IX
(1929), 323-324; Roberti, "De actione rescissoria ob dolum”—Apollinaris
(Romae, 192S-), III (1930), 143-144.

98

!

j

The Renunciation of an Ecclesiastical Office

Substantial error, as also error concerning an accidental quality,
which is made a sine qua non condition of consent, renders an
act invalid.13 In the latter type of error true consent is also
, lacking, for, although the , error is objectively accidental, it is
subjectively substantial.14
Canon 185 in conformity with the general rule in canon 104
' declares that substantial error invalidates a renunciation of office.
If the error is merely accidental, the resignation is valid and not -rescissible, since rescissoiy action is permitted for accidental error
only in the matter of contracts.15 If, however, the accidental
error is caused by the use of deceit, then, according to the. rules
already given with reference to deceit, the resignation is invalid,
for accidental deceit renders a resignation invalid.

Article III. Freedom from Simony
The Church has ever been watchful to keep all ecclesiastical
offices free from the stain of simony, the crime which has done
and can do so much harm to the Church in her work for the
salvation of souls. In keeping with this policy, the Church has
provided legislation to insure the renunciation of an ecclesiastical
office against the evils of this crime. Thus the Code declares
that a renunciation of office is invalid if it is made simoniacally.1®
In order properly to understand the meaning of this canon, it
is necessary to give a brief summary of the concept of simony
as found in the Code.
Simony as forbidden by the divine law is the deliberate design
of buying or selling for a temporal price things which are spir­
itual in themselves or which are annexed to spiritual things;
or of making the spiritual thing at least a partial object of the
contract.11 The.temporal price involved may be either: (a)
munus a manu, which is constituted by money or something that
1S Can. 104.
14 Coronata, Institutiones, I, n. 152.
” Can. 104.
14 Can. 186.
” Can. 727, § 1 ; cf. Ryder, Simony, The Catholic University of America
Canon Law Studies, n. 65 (Washington, D. C.: The Catholic University
of America, 1931), p. 52. The definitions and divisions are taken from
this work.
-

Freedom Required in an Express Renunciation

99

can be reckoned in terms of money ; (b) munus a lingua, which
consists of oral commendation, public expression of approval
and the like; (c) munus ab obsequio, which involves service of
any kind not due by reason of a mutual obligation, but rendered
with a view to obtaining a spiritual favor.18
Simony as proscribed by the ecclesiastical law consists in the
exchange of a spiritual thing for another spiritual thing, or of
temporal objects annexed to spiritual things for other temporal
objects of the same quality, or even of temporal objects for other
temporal objects then, namely, when such an exchange is for­
bidden by the Church because of the danger of irreverence to
spiritual things.19
Simony of either of these two classes may be either conventional
or real. Conventional simony is had when there is a pact either
express or tacit between the parties. It is called mixed conven­
tional simony when the pact is partially fulfilled by at least one
of the parties. It is called real simony, on the other hand, when
the pact is fulfilled at least partially by both parties.
These principles will be applied in the first place to simony
with reference to the renunciation of an ecclesiastical office as
such. This consideration will be followed by a treatment of
simony with reference to the renunciation of an office which is
at the same time a benefice.
Canon 185 states that a renunciation of office made simoniacally
is by law invalid. How can a renunciation of office be made
simoniacally? The Code contains no prohibition with reference
to a renunciation of an office as such which can be understood
as constituting a kind of simony which runs counter solely to
the ecclesiastical law. Hence the only type of simony which
may occur in the resignation of an office as such is simony which
the divine law proscribes. This is committed by the giving of
a temporal price for the renunciation of an office. An ecclesiastical
office is a spiritual thing, and hence the renunciation of it must
likewise be considered the giving up of something which is spir­
itual. In many cases the person who pays a temporal price for
a resignation would have at the same time the intention of
i» C. 114, C. I, q. 1 ; cf. Ryder, op. cit., pp. 57-61.
« Can. 727, § 2.

100

I

s

The Renunciation of an Ecclesiastical Office

procuring the office for himself or for another party, but this
incidental factor is not essential for constituting a simoniacal
resignation.
If, for example, a person pays a temporal price to the incum­
bent for resigning his office merely because the person does not
relish any personal contact with the incumbent in his business
dealings, the writer believes that such a resignation is simoniacal,
for it is the giving of a temporal price in consideration of a
spiritual thing, namely, an ecclesiastical office now relinquished
through the act of resigning it. In the same manner it is simony
if a temporal price is paid to the superior in order that he accept
a resignation tendered to him by the incumbent of an office.
Hence, the simony may be committed by the incumbent, by the
accepting superior or by a third party.20
In order to avert the danger of simony in the resignation of
an office, the Code declares that an ordinary cannot validly
confer on his own or the resigning party’s household members,
or the relatives by affinity or consanguinity up to and including
the second degree, any office made vacant by an act of renuncia­
tion.21 If the ordinary should violate this law and confer a
resigned office on one of the aforementioned persons,, this fact
would not mean that the resignation was simoniacal. The con­
ferral of the office would be invalid by reason of the prescrip- '
tions of canon 157. In other words, a violation of canon 157
does not constitute a simoniacal resignation proscribed by the
ecclesiastical law. Thus, it remains true that there is no simony
proscribed by the ecclesiastical law with reference to the resigna­
tion of an ecclesiastical office as such.
All that has been said with reference to offices in general ap­
plies as well to offices which are at the same time benefices.22
There are, however, some special prescriptions which apply only
to offices which are at the same time benefices. In other words,
there are some prescriptions in the Code which constitute simony
proscribed by the ecclesiastical law with reference to the renun20 Coronata, Institutiones, I, ti. 263 ; Maroto, Institutiones, I, n. 680.
21 Can. 157.
22 Can. 146.

»

Freedom Required in an Express Renunciation '

101

ciation of an ecclesiastical benefice. These prescriptions are con­
tained in canon I486, which reads as follows :
Dimissionem beneficiorum in commodum aliorum vel
sub aliqua conditione, quae ipsam beneficii provisionem
aut redituum erogationem attingat, Ordinarius admittere
nequit, nisi in casu quo beneficium sit litigiosum et
dimissio fiat ab alterutro ex litigantibus in commodum
alterius.

This canon reproduces the pre-Code legislation on conditional
resignation and confidential simony in the matter of benefices.23
Under the earlier law a resignation of a benefice was simoniacal
and null if any pact or condition intervened without the authority
of the Roman Pontiff. Thus a resignation in favor of another
party, or with a reservation of the right to return to the benefice
at a later date, or with a reservation of a pension was null unless
the authority of the Roman Pontiff sanctioned such conditions.2425
The Code has retained the concept of confidential simony in
canon 1486 in its entirety, but it is no longer a special type of
simony carrying with it its own penalties. In the Code it has
been assimilated to common simony as proscribed by the ec­
clesiastical law, and as such is subject to the sanctions placed
upon conventional and real simony.23
Hence, a resignation of a benefice made contrary to the pre­
scriptions of canon 1486 constitutes simony as proscribed by the
ecclesiastical law, and the resignation is thereby null in accord­
ance with the prescriptions of canon 185, which declares a
simoniacal resignation to be null and void. The Pontifical Com23 Cf. Paulus IV, motu propr., “ Inter caeteras," 27 nov. 1557—Fontes, n.
92; Pius IV, const. "Romanum Pontificem,’’ 17 oct. 1564—Fontes, n. 106;
Pius V, const. "Quanta Ecclesia," 1 apr. 1568—Fontes, n. 125; Pius V,
const " Intolerabilis,” 1 iun. 1568—Fontes, n. 130; S. C. C., Terracinen.
seu Setina Cappellaniae, 19 sept. 1789—Thesaurus Resolutionum, LVIIII,
208; S. C. C, Nullius S. lacobi de Spatha, 21 apr. 1792—Fontes, n. 3878.
24 Cf. Garcia, Tractatus de Beneficiis, pars XI, c.'III, n. 145; Pirhing,
Jus Canonicum, lib. I, tit IX, n. 85; Reiffenstud, Jus Canonicum, lib. I,
tit IX, n. 80; Wemz, Ius Decretalium, II, η. 498.
25 Ryder, Simony, p. 71 ; Mostaza, “ De Simonia confidential! in Codice
lur. Can., deque requisitis in quovis delicto simoniae ex parte actus ad
poenas canonicas contrahendas"—Periodica, XX (1931), 118-120.

i

'i'

ό-

102

;

'

-

’’

The Renunciation of an Ecclesiastical Office

mission for the Interpretation of the Code has given a response
to the effect that the ordinary may accept the resignation of a
pastor with the reservation of a pension chargeable to the benefice
for the lifetime of the pensioner in favor of the resigning pastor,
provided that the pension does not exceed one-third of the net
revenue of the benefice?® In the light of this response it is evi­
dent that a resignation of this type does not constitute a violation
of canon 1486, and hence is not in any way simoniacal in character.
Besides effecting the nullity of the renunciation of the office
or benefice, simony is also the cause of the contracting of penalties
by the delinquents. Those who are guilty of simony with refer­
ence to ecclesiastical offices, benefices or dignities incur auto­
matically an excommuncation reserved in a simple manner to
the Holy See, and are perpetually deprived of the right of elec­
tion, presentation or nomination if they possessed such a right.
Besides, clerics are to be suspended.2’ All simoniacal transac­
tions concerning offices are contemplated in the canon which
enacts this penalty, and among these transactions a simoniacal
resignation has its place.2’
2« 20 maii 1923, ad IX—AAS, XVI (1924), 116.
« Can. 2392.
28 Ryder, op. cit., p. 129.

j

|

|

CHAPTER IX

THE FORM, THE ACCEPTANCE, THE REVOCATION
AND THE PUBLICATION OF AN EXPRESS .
RENUNCIATION
Article I. The Form of an Express Renunciation
Can, 186. Renuntiatio, ut valida sit, fieri debet a
renuntiante aut scripto aut oretenus coram duobus
testibus aut etiam per procuratorem speciali mandato
munitum; et scriptum renuntiationis documentum in
Curia deponatur.

Thus a valid renunciation may be made either personally or
through the medium of a procurator who has a special mandate
which empowers him to act in this matter; in either case the
resignation may be written or oral, but, if it is oral, then it must
be expressed in the presence of two witnesses.
Ordinarily a resignation will be tendered personally by the
incumbent, and in writing. There is nothing stipulated in the law
as to the contents of a letter of resignation, but it is certainly
necessary that the letter express clearly the fact that a resignation
of a specific office is being tendered. Since a just cause is required
in order that one may licitly renounce an office, this cause should
also be'indicated in the letter. It is not necessary that the letter
be written exclusively for the purpose of tendering a resigna­
tion. The resignation may form part of a letter which was
written primarily for the transaction of some other business.
The statement of the resignation must have the signature of the
incumbent affixed to it, or at least proof must be available that
the incumbent authorized the written statement with the intention
of tendering his resignation.
The canon prescribes that a written document of the resigna­
tion be placed in the curia. When the resignation is made in writ­
ing by the incumbent, then his letter of resignation is the document
103

104

The Renunciation of an Ecclesiastical Office

that should be put on file in the archives. It is to be noted that
the requirement of filing a written document of the resignation
does not bind under pain of nullity of the resignation. It is merely
a measure which seeks to avert any litigation in the future. Hence,
any authenticated document which attests the fact of the resigna­
tion will satisfy the prescriptions of the canon. Vidal (1867-1938)
remarks that although the recording of the resignation was not
prescribed in the old law, nevertheless the Roman and episcopal
curias had observed such a practice for a long time.1
If the resignation is made orally by the incumbent, then, in
order that it be valid, it is necessary that he express his inten­
tion in the presence of two witnesses.' In this case an authentic
document should be composed by the chancellor or another notary,
and the document should be placed in the archives.2 There are
no special qualifications required in the witnesses of an oral
resignation. Ordinarily they will be priests who are employed
in the chancery office, since most of the oral resignations will
presumably be tendered to the bishop in his office in the chancery.
In the majority of cases it may be assumed that the bishop will
ask the incumbent to put his intentions in writing.
The rule of law, “Potest quis fer alium quod potest facere per
seipsum,”3 is applicable to the matter of a renunciation of office.
Thus a person may resign through the medium of a proxy. Ac­
cording to canon 186 the procurator must have a special mandate
which empowers him in the name of the incumbent to resign
the office. As long as the authorization can be p.roved, the spe­
cial mandate may be conceded in writing or orally.4
The procurator may depute another to act in his place unless
this substitution is forbidden to him in the mandate.5 When a
resignation is made through the medium of a procurator, then
1 Ius Canonicum, II, η. 328.
2 Chelodi, Ius de Personis, p. 250, footnote 1 ; Coronata, Institutiones, I,
n. 263.
» Reg. 68, R. J., in VI°.
* Connors, Extra-judicial Procurators in the Code of Canon Law, Thé
Catholic University of America Canon Law Studies, n. 192 (Washington,
D. C.: The Catholic University of America Press, 1944), p. 8.
s Ibid., p. 11.

,

•

;
'
i

■
I
1
!

j
j

The Form, Acceptance, Revocation and Publication

105

special mention of the mandate should be made 'at least in the
document of resignation which is deposited in the curia.® It
would be better to insert a copy of the mandate, or even the man­
date itself, in the archives along with the document of the resig­
nation.7 If the mandate is given orally, then an authentic
' document which attests this fact should be made by the notary
and then placed in the archives. Like the incumbent himself
the procurator may execute the resignation either in writing or
orally before two witnesses. In either case a written document
of the resignation in the sense already explained must be de­
posited in the curia.
The procurator may make use of his power at any time pro­
vided that the special mandate has not ceased to have force.
This cessation of the mandate may occur in various ways, namely,
by the death of the principal, by the death of the procurator, by
revocation or renunciation of the mandate, or by expiration of
the time fixed for the execution of the mandate.8
A special decree issued by Clement V in the Council of Vienne
(1311-1312) ruled that a renunciation of any dignity or benefice
made through a procurator was valid even though the principal
had already revoked the mandate prior to its execution, if at
the time of the execution neither the procurator nor the superior
knew of the revocation; if, however, the knowledge of the revoca­
tion was kept from them by evil design, then the renunciation
was not valid.” This principle is still applicable after the Code.10
For the validity of a renunciation of office, then, the resigna­
tion must be tendered either in writing or orally before two witnesses; it must be made either by the incumbent himself or by
his procurator possessing a special mandate which was given
either in writing or orally. All the other requirements with
reference to the filing of the various documents in the curia
affect only the licitness of the resignation. It is to be noted that
the prescriptions regarding the form of the resignation apply
6 Coronata, Institutiones, I, n. 263.
7 Chelodi, Ius de Personis, p. 250, footnote 1.
8 Connors, op. cit., pp. 12-14.
8 C. un., de renuntiatione, I. 4, in Clem.
10 Connors, op. cit., p. 14.

106

The Renunciation of an Ecclesiastical Office

also to a resignation which does not require the acceptance of
the superior for its validity.

The Acceptance and the Revocation of
Express Renunciation
Can. 189, § 2. Renuntiationem Ordinarius loci intra
mensem vel admittat vel reiiciat.
Can. 190, § 1. Officium, renuntiatione legitime facta
et acceptata, vacat postquam renuntianti significata est
acceptatio.
§ 2. Renuntians in officio permaneat donec de Su­
perioris acceptatione certum nuntium acceperit.
Can. 191, § 1. Semel legitime facta renuntiatione, non
datur amplius poenitentiae locus, licet renuntians possit
officium ex alio titulo consequi.
/

Article II.

i

an

If a resignation does not require the acceptance of the su­
perior in order “to be effective, then once it has been presented
to the proper superior in the proper manner, there is nothing
more to be added. The same thing is not true with reference
to a resignation which needs the superior’s acceptance. There
are various things to be considered in a resignation of this kind;
In order that the matter of a submitted renunciation of office
be not kept pending· for too long a period of time, the Code
stipulates that the local ordinary is to accept or reject a resig­
nation within a month’s time.11 Actually, however, this period
of a month may be of little telling importance,-since a response
has stated that the ordinary may accept a resignation even after
a month has elapsed, provided that the incumbent has not with­
drawn his resignation in the meanwhile and has not notified the
ordinary of this revocation.*
12
Although this .freedom is granted to the ordinary, the gen­
eral rule stands which commands him to accept or reject the
resignation within a month. If he fails to do so, the incumbent
may have recourse to a higher superior to have the resignation
accepted by him.13 However, the ordinary’s refusal to act within
a month’s,time may not be interpreted as a rejection of the resig” Can. 189, § 2.
« P. C. I., 14 iul. 1922, ad III—AAS, XIV (1922), 526-527.
la Coronata, Institutiones, I, n. 264.

The Form, Acceptance, Revocation and Publication

107

nation, since he is certainly permitted to accept it even after the
lapse of a month. Provided that the ordinary has not received
notification of the revocation of the resignation by the incumbent,
he may accept the resignation no matter how much time has
elapsed. It is not required that the acceptance or rejection of a
resignation by the superior, or the revocation of a resignation
by the incumbent, be in writing or orally before two witnesses
in order to be effective. However, one of these two methods
should be used, so that proof in the external forum can be pro­
duced in case there is any dispute about the resignation.
It remains now to determine up to what point of time an in­
cumbent may withdraw his resignation once he has submitted
it. If the resignation does not need the acceptance of the su­
perior, it may not be revoked once it has been presented to the
proper authority. If, however, it needs the superior’s acceptance,
then it is somewhat uncertain for what duration of time a revoca­
tion may be made. In this regard canon 191, § 1, states:

Semel legitime facta renuntiatione, non datur amplius
poenitentiae locus, licet renuntians possit officium ex alio
titulo consequi.

The Pontifical Commission stated that this canon is to be in­
terpreted in the sense that a person may revoke his resignation
before the superior has accepted it.14 Hence the incumbent may
withdraw his resignation either before or after the month has
elapsed, provided that he does so before the superior has ac­
cepted it.15 While the majority of the authors is content with
the statement to the effect that one may withdraw his resigna­
tion before the superior has accepted it, others go farther and
state that one may withdraw his resignation up until the time
he has received notification of the superior’s acceptance.1’
14 14 iul. 1922, ad III—AAS, XIV (1922), 526-527.
15 Periodica de Re Canonica et Morali utilia praesertim Religiosis et
Missionariis (Bruges, 1905-), XI (1922), 167.
18 Vermeersch-Creusen, Epitome, I, n. 307; Sipos, Enchiridion, p. 163;
Woywod, A Practical Commentary on the Code of Canon Law (7. ed.,
revised by Callistus Smith, 2 vols., New York: Joseph F. Wagner, 1943),
I, 74; Beste, Introductio in Codicem, p. 211.

i
>

108

The Renunciation of an Ecclesiastical Office

Although the response of the Pontifical Commission makes no
mention of the notification of the superior’s acceptance as being
necessary to preclude the incumbent’s right of revoking his resig­
nation, nevertheless it seems warranted to interpret thé response
in this manner. Canon 191, § 1, seems to sustain the incum­
bent’s right of revoking his act of resignation up to the mo­
ment when the office becomes vacant, for the canon states that
the one who has resigned may then obtain the office through
some other title. But he does not lose the erstwhile title until
the notification of the acceptance has been intimated to him by
the superior, for it is only then that the office becomes vacant.17
If the superior should withdraw his act of acceptance before
it has been intimated to the incumbent, the incumbent would
retain the office by reason of the former title. Since, then, in
determining the period of time after which the incumbent may
no longer revoke his resignation, canon 191, § 1, mentions that
after the lapse of that period he may obtain the office through
some other title, «the canon seems to sustain his right of revok­
ing his resignation up until the time when he actually loses the
former title to his office. Since the loss of the former title does
not occur until he has received the notification of the superior’s
acceptance of the resignation, the incumbent’s right of revoking
his resignation extends up to that time. Of course, the letter
of revocation must have been mailed to the superior before the
latter’s notification of acceptance has reached the incumbent.
Since an office does not become vacant until notification of
the superior’s acceptance of the resignation has been made to the
incumbent,18 the incumbent must remain in his office until he
receives a certified notice of the superior’s act of acceptance.*1’
Canon 190 speaks only of a certified notice, and thus some
authors remark that the common law does not demand an authentic
and direct notification.20 Maroto adds that particular law may
demand an authentic notice of the superior’s acceptance of the

f

« Can. 190, § 1.
«Can. 190, § 1.
» Can. 190, § 2.
i0 Claeys Bouuaert-Sitnenon, Manuale, I, n. 345 ; Maroto, Institutiones,
I, n. 683.

The Form, Acceptance, Revocation and Publication

'

I
1
j

j

109

resignation in order to effect the vacancy of the office and to
permit the incumbent to abandon it.21 Coronata is of the opinion
that the notification must be an authoritative one, because of the
fact that the vacancy of the office depends upon it.22
Although one may not demand an authentic and direct notifica­
tion unless particular law prescribes it, nevertheless the importance
of the notification dictates that care should be taken to see that
the resigning party receives it. When the notification of the
acceptance is given orally to the resigning party, there can be
no doubt about his having received it. If, however, the notifica­
tion is sent through the mail or by means of a messenger, then
a method should be employed which will permit verification of
the fact of the arrival of the notification at its destination.
Unless care is taken in this matter, there is danger that the su­
perior may confer an office before it is actually vacant. Canon
150, § 1, declares that such a conferral is invalid, and that the
subsequent vacancy does not rectify the invalid conferral. To,
avoid inconveniences of this nature, the superior should take
proper precautions to guarantee that the notification of accept­
ance arrives at its destination.
In brief, then, a superior may accept the resignation of an
incumbent at any time, provided that the incumbent has not
revoked his resignation and also brought notice of the revoca'
tion to the superior ; on the other hand, an incumbent may revoke
his resignation at any time before the superior has accepted the
resignation and also brought notice of the acceptance to the in­
cumbent. The office becomes vacant when the incumbent receives
a certified notification of the acceptance of the resignation by
the superior. If the resignation does not need the acceptance of
the superior, then, by analogy, one must say that the office be­
comes vacant when the< incumbent has received notification of
the arrival of his resignation. It should be noted here also
that if the superior has rejected the resignation and has brought
notice to the incumbent of this rejection, then a new resignation
on the part of the incumbent is required before a valid resigna121 Loe. cit.
22 Institutiones, I, p. 305, footnote 6.

:· ·

110

■'

■

/

The Renunciation of an Ecclesiastical Office

tion can ensue. The law makes no provisions in this regard, but
by analogy one may apply the same principles which govern the
acceptance of the resignation.23
Article III. The Publication of an Express Renunciation
Can. 191, § 2. Acceptata renuntiatio tempestive nota
fiat iis qui aliquod ius in officii provisionem habent.

The complex and severe method of the publication of a resig­
nation as prescribed by Gregory XIII finds no place in the Code.24
The Code orders, that notification of the vacancy of the office
should be given in due time to those who enjoy any right in the
conferral of the office involved. If no definite time for the con­
ferral of the office has been prescribed, then the conferral is
not to be deferred for a period of more than six months of
available time.25 The six months of available time are to be
reckoned from the time that those with whom it rests to fill the
office have received the notification of the vacancy.2® Although
the time is available time and does not begin to lapse until the
notification has been made, the law does not wish that the con­
ferral of offices be unduly delayed, and hence the superior who
accepts the resignation should notify as soon as possible the
electors, the patron, or any one else who enjoys any right in the
conferral of the office.
As has already been seen, the Code also prescribes that a
written document of the resignation be deposited in the curia.
This point has been explained above in conjunction with the
form of a renunciation. These two prescriptions are the only
ones in the Code which bear any resemblance to the publication
23 Cf. Wernz-Vidal, Ius Canonicum, II, η. 331. Here the author makes a
distinction between the "perfectio" and the "peremptio’’ of a resigna­
tion. The former occurs when the incumbent receives notification of the
superior’s acceptance of the resignation; the latter when he receives the
notification of the rejection of the resignation.
24 Const " Humano vix iudicio," 5 ian. 1584—Fontes, n. 152.
25 Can. 155.
23 Dube, The General Principles for the Reckoning of Time in Canon
Law, The Catholic University of America Canon Law Studies, n. 144
(Washington, D. G: The Catholic University of America Press, 1941), p.
240.

i i

•A

The Form, Acceptance, Revocation and Publication

111

of a resignation as prescribed in the earlier law. In the present
law the prescriptions do not bind under pain of nullity of the
resignation.*
Finally, it may properly be noted here that the prescriptions
regarding the publication of a resignation should be observed
also in the case of a tacit renunciation. The reasons for the
publication are verified in the case of a tacit renunciation as
well as in the case of art express renunciation of office.

CHAPTER X
THE CONCEPT OF A TACIT RENUNCIATION

Besides express renunciation of an eccclesiastical office the
Code takes cognizance of another type of resignation which it
terms a tacit renunciation. This type of resignation obtained
in law before the Code, but the term “tacit renunciation” was
never expressed in any law. It was used by the authors to
designate a type of resignation which was effected by the plac­
ing of certain specific acts. Today, the term “tacit renuncia­
tion " is used by the Code itself to designate this type of
resignation. The legislation of the Code on tacit renunciation
is contained in canon 188, which reads as follows :
Ob tacitam renuntiationem ab ipso iure admissam
quaelibet officia vacant ipso iure et sine ulla declaratione,
si clericus:

1°. Professionem religiosam emiserit, salvo, circa bene­
ficia, praescripto can. 584;
2°. Intra tempus utile iure statutum vel, deficiente iure,
ab Ordinario determinatum, de officio provisus
illud adire neglexerit;
3°. Aliud officium ecclesiasticum cum priore incompatibile acceptaverit et eiusdem pacificam posses­
sionem obtinuerit;
4°. A fide catholica publice defecerit;
5°. Matrimonium, etiam civile tantum, ut aiunt, con­
traxerit;
6°. Contra praescriptum can. 141, § 1 militiae saeculari
nomen sponte dederit;
7a. Habitum ecclesiasticum propria auctoritate sine
iusta causa deposuerit, nec illum, ab Ordinario
monitus, intra mensem a monitione resumpserit.
8°. Residentiam, qua tenetur, illegitime deseruerit et
receptae Ordinarii monitioni, legitimo impedimento
non detentus, intra congruum tempus ab Ordinario
praefinitum, nec paruerit nec responderit.
112

The Concept of a Tacit Renunciation

~ 113

As the law itself states, the placing of any of the acts men­
tioned in this canon effects the vacancy of the cleric’s office
without the need of any declaration on the part of the superior.
This effect is attributed to a tacit renunciation as sanctioned
by the law itself. It is called a tacit renunciation to distinguish
it from an express renunciation which is made according to the
various formalities prescribed in the law. In a tacit renuncia­
tion no formalities are prescribed. All that is necessary is that
the cleric perform one of the acts or be accountable for one
of the omissions to which the law attaches the effect of a tacit
renunciation of office. In reality a tacit renunciation resembles
a privation, but it can not be considered a privation since the
law terms it a tacit renunciation. In the old law Wernz pre­
ferred to use the expression, “ ablationes ob factum non-criminosum,” rather than the term " tacit renunciation,” because of the
fact that this type of vacancy was effected even when the person
had no intention of relinquishing his office.1 This argument can
not be used now, since the Code has officially adopted the term
“ tacit renunciation " to designate this specific way of losing an
ecclesiastical office.
When the law states that an office becomes vacant by a tacit
renunciation, what is the force of this expression? In other
words, what is the true concept of a tacit renunciation? Some
authors state that the law presumes a resignation in these in­
stances.12 Coronata adds that canon 188 furnishes an example
of a presumption “ iuris et de iure.”3 Such a presumption can
be removed only indirectly, that is, by an undermining of the
foundation upon which the presumption rests.4 Toso is. not
certain that a presumption is involved in a tacit renunciation,
but he says that if there is a question of a presumption here, it
is a presumption " iuris et de iure.” 5
The writer is of the opinion that there is no presumption in­
1 Ius Decretalium, II, η. S31.
2 Coronata, Institutiones, I, n. 260 ; Maroto, Institutiones, I, n. 684 ; Augus­
tine, A Commentary, II, pp. 160-161 ; Chelodi, Ius de Personis, n. 149.
3 Loe. cit.
«Can. 1826.
.
5 Commentaria Minora, II, 154.

114

The Renunciation of an Ecclesiastical Office

volved in the sanction which the law attaches to a tacit renun­
ciation. A presumption is a probable conjecture of an uncertain
thing.6 What is the thing that is being presumed by the law
in a tacit renunciation? Certainly the law is not presuming the
actual intention of the person to resign when he places these
acts, for in· many cases it is absolutely certain that the person
has the contrary intention of retaining his office when he does
these things. The vacancy of the office is effected by the plac­
ing of these acts, even if the person should manifest his inten­
tion of retaining the office at the time he places the act. The
tacit renunciation occurs in spite of any contrary intention on
the part of the incumbent. The law does not merely presume
a resignation in these cases. Rather, it attaches the effect of a
resignation to these acts when placed by the incumbent. And
if the incumbent demonstrates that he did not place any of the
acts enumerated in canon 188, then he is not simply destroy­
ing a presumption, but he rather is certifying the claim that he
did not place an act to which the law attaches the effect of a
tacit renunciation.
The writer believes that the law accepts the acts enumerated
in canon 188 as equivalent in juridical effect to the full formalities
prescribed for the execution of an express renunciation. If
a person places an express renunciation, one does not say that
it is presumed that he has resigned his office. The resignation
is a fact and, unless the person can prove that there was some­
thing lacking for the validity of the resignation, the resignation
is a closed issue. In like manner, if a cleric places one of the
acts enumerated in canon 188, his resignation is not presumed
by the law, but it is a fact as sanctioned by the law, and unless
he can prove that there was some, substantial vitiation of the
act, the resignation stands. The fact that the law calls it a tacit
renunciation, and not a presumed resignation, is another argu­
ment in favor of this opinion, for the words have entirely dif­
ferent meanings. Hence, the writer is of the opinion that a
tacit renunciation is a true renunciation and not merely a pre­
sumed one. It is tacit because it does not observe the formalities
6 Can. 1825.

The Concept- of a Tacit Renunciation

115

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 is not presuming a
resignation or an intention of resigning.
Even if it were true that no important difference of conse­
quence would follow from considering, a tacit renunciation simply
in the nature of a presumed resignation, yet the writer believes
that it is a mistaken terminology which makes “ tacit ” and
“presumed” equivalent in meaning. The authors before the
Code quite commonly employed these two terms interchange­
ably,7 but in spite of this fact the writer believes that such a
usage is lacking in precision. In concluding this discussion the
writer quotes as a more fitting description of a tacit renuncia­
tion the one given by Wemz-Vidal:
. , . ius in certis factis agnoscit contineri tacitam re­
nuntiationem, quam ipsum ius admittit et sancit tamquam
sequelam iuridicam illius facti, quin opus sit ulla decla­
ratione.3

It is to be noted that every type of office becomes vacant by
means of a tacit renunciation when the incumbent places one of
the acts specified in canon 188, for the canon uses the words
“ quaelibet officia.” Likewise all clerics come under the pre­
scriptions of this canon since the canon makes no distinction.
While cardinàls are not subject to the penal law unless they are
expressly mentioned,9 the writer believes that they are subject
to the prescriptions of canon 188 without any such special men­
tion, since in his opinion this canon is not a penal canon. 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 is not to be considered in the nature of a
canonical penalty.
In treating of public defection from the faith, Coronata notes
that the tacit renunciation which results in consequence of this
1 Schmalzgrueber, Jus Ecclesiasticum, lib. I, tit IX, n. 2; Reiffenstuel,
Jus Canonicum, lib. I, tit IX, n. 9; Santi, Praelectiones, lib. I, tit IX, n. 3.
8 Ius Canonicum, II, n. 329.
« Can. 2227, § 2.

116

The Renunciation of an Ecclesiastical Office

defection is not strictly the effect of a penal sanction.10* This
statement is quite true. Certainly the tacit renunciation can not
be considered a penalty for a religious profession, which ac­
cording to canon 188, η. 1, effects a tacit renunciation, There is
certainly nothing in such àn act that would warrant a penalty.
Even with regard to the acts in canon 188 which constitute
crimes the writer believes that the tacit renunciation is not in­
flicted as a penalty. This fact seems quite clear to the writer,
especially in view of the manner in which the Code refers to
the tacit renunciation in the canons which treat of penalties.
The quotation from the following two canons will serve to
demonstrate the distinction that the Code makes. Canon 2168,
§ 2, in treating of the procedure against non-resident clerics,
states the following:
In monitione Ordinarius recolat poenas quas incur­
runt clerici non residentes itemque praescriptum can.
188, n. 8. . . .

Canon 2314, in dealing with the crime of those who are guilty
of heresy or apostasy, reads as follows:

§ 1, 3. Si sectae acatholicae nomen dederint vel pub­
lice adhaeserint, ipso facto infames sunt et, firmo
praescripto can. 188, n. 4, clerici, monitione incassum
praemissa, degradentur.

The same procedure is followed in the other canons which
make mention of a tacit renunciation. It is plainly evident that
a distinction is being made between the threatened or enacted
penalty on the one hand, and the tacit renunciation on the other.
Nowhere in the Code is the tacit renunciation called a penalty.
It is always set off in a separate ablative absolute clause when
it is enumerated with penalties. For this reason the writer is
of the opinion that a tacit renunciation is not to be classified as
a penalty. The authors do not expressly designate it as a penalty,
but they do list it along with the penalties when they consider
the juridic effects consequent upon specific crimes.11
10 Institutiones, IV, n. 1864.
« Vermeersch-Creusen, Epitome, TH, S13; Coronata, Institutiones, IV,
nn. 2178, 2196.

The Concept of a Tacit Renunciation

117

The direct purpose of this discussion was to demonstrate that
cardinals are subject to the prescriptions of canon 188. Con­
comitantly the presentation of the arguments served the further
purpose of clarifying that in this canon the law is not impos­
ing a penalty, but is rather accepting the specified acts as tanta­
mount to an express renunciation of office. It may here be noted
also that a tacit renunciation and a privation' of office are very
similar, but that the law nevertheless consistently places them in
different categories.
The list contained in canon 188 is an exhaustive one. The
number of acts which effect a tacit renunciation has been con­
siderably increased in the Code. Formerly there were only four
ways in which a tacit renunciation was effected, namely, by the
reception of a second incompatible office, by a solemn religious
profession, by the contraction of marriage on the part of a
minor cleric, and by a voluntary enlistment for military service.
To these acts the Code has added four other acts which now
entail a tacit renunciation instead of the privation of office
sanctioned in the former law. Besides, the Code has extended
the effect of a tacit renunciation to any kind or mode of religious
profession and also to the attempted contraction of marriage on
the part of a major cleric. These points will be discussed in the
sections treating of the specific acts enumerated in canon 188.
A few general remarks have been made here merely for the
purpose of directing attention to the fact that there have been
some substantial changes made in the law.
In order to bring the treatment of the individual tacit renun­
ciations within the compass of two chapters, the writer has
chosen to employ a correspondingly adapted division of the
various acts which are listed in canon 188. Of the two remain­
ing chapters, then, the first will treat of the acts which are non
criminal; the second will consider the acts which are criminal,
namely, in the specific sense that they have determined penalties
attached to them in the Fifth Book of the Code of Canon Law.

CHAPTER XI

TACIT RENUNCIATION OF AN OFFICE IN CONSE­
QUENCE OF NON-CRIMINAL ACTS
Article I. Religious Profession
Can. 188, n. 1. [5» clericus] Professionem religiosam
emiserit, salvo, circa beneficia, praescripto can. 584.

The first act considered by the Code as effecting a tacit re­
nunciation of an ecclesiastical office is the act of religious profes­
sion. Before the Code solemn religious profession in an Order
approved by the Church effected a tacit renunciation of the
benefice possessed by the candidate.1 Also perpetual profession
in the Congregation of the Missionaries of the Immaculate Heart
of Mary caused the tacit renunciation of a residential benefice,2
but, as Wernz noted,3 it was not clear whether other types of
benefices were affected by such perpetual profession, or whether
the response of the Sacred Congregation was applicable to all
congregations in which perpetual profession was taken. Such
discussion is of purely historical importance now, for the Code
makes no distinction between the various types of religious
profession. Canon 188, n. 1, states merely that a religious pro­
fession causes a tacit renunciation of the offices held by the
cleric, and canon 584, in providing special prescriptions with
reference to benefices, uses the words, “qualibet professione
religiosa.” Thus in the present law a religious profession, simple
or solemn, temporary or perpetual, is included under the pre­
scriptions of canon 188, n. 1. Since a religious profession is
the pronouncement of the three vows of poverty, chastity, and
obedience in a religious institute approved by the Church,4 the
1 C. 4, de regularibus et transeuntibus ad religionem, III, in VI».
2 S. C. Ep. et Reg., 25 aug. 1903—Fontes, n. 2045.
8 Ius Decretalium, II, p. 270, footnote 5.
4 Schafer, De Religiosis, n. 263 ; cf. can. 487.

118

Tacit Renunciation in Consequence of Non-Criminal Acts 119

canon under consideration does not apply to those who join a
society in which the three vows are not taken.5
It is to be noted that only a valid religious profession effects
the tacit renunciation of an office or benefice. Cappello, in dis­
cussing various opinions on this point, states that while it is
speculatively true that only a valid religious profession effects
,a tacit renunciation, nevertheless, if a person leaves a religious
institute after having made an invalid profession and his benefice
has already been conferred upon another, an equitable arrange­
ment should be made in his regard. If on discovery of the in­
validity of the profession the invalidity is rectified in accordance
with canon 586, then no difficulty will ensue. Likewise, if the
new possessor has been in peaceful possession of the benefice
for a period of three years from the time that the benefice was
apparently vacant under the law, then, even though the profes­
sion is invalid, the former incumbent may not lay any claim to
the benefice if he should leave the religious institute at that time.®
There is little difficulty with reference to the tacit renuncia­
tion of an ecclesiastical office as such, for such an office becomes
vacant at the very moment that the incumbent makes his religious
profession. Ecclesiastical offices, however, which are at the
same time benefices, present a more complex problem. Canon
188, η. 1, safeguards the prescriptions of canon 584, which states
that the lapse of one year from the time of profession is re­
quired to effect the vacancy of a parochial benefice, and the lapse
of three years is necessary with reference to other types of
benefices. These periods of time are to be computed accord­
ing to the norms of canon 34, § 3, n. 3. Hence the first day
is not counted, and the time expires, one or three years later re­
spectively, with the completion of the day which marks the date
on which the profession was made. The reason for the limita­
tion of the period of time to one year .in the case of a parochial
benefice is undoubtedly because of the care of souls that is in5 Cappello, " De beneficio possesso a candidato qui religionem ingreditur ”—
Periodica, XXII (1933), 203-204 ; cf. can. 673, § 1.
® Ibid., p. 206.

120

The Renunciation of an Ecclesiastical Office

volved in such a benefice.' Hence the cleric who enters a re­
ligious institute remains the titular of the benefice until the
respective one or three year period of time has expired. The
time is computed from the day of the religious profession, and
not from the day of entry into the novitiate.
If, however, the incumbent renounces his benefice, there is no
necessity of waiting for the expiration of the periods of time
mentioned in carion 584 before the benefice may be conferred
upon another cleric. The benefice then becomes vacant through
the express renunciation of it. It is possible for such a case
to occur, for, while a novice can not validly renounce his bene­
fice during the period of his novitiate,8 there is nothing in the
present law to prevent the renunciation of a benefice before one’s
entry into religion, or during the period of one's temporary
profession when the time requisite for effecting the tacit renun­
ciation has not .yet expired.9
In the present law the ordinary may confer the benefice im­
mediately upon another in such cases. In the law prior to the
Code the bishop could not dispose of the benefice until the pro­
fession had been made, even though the cleric had renounced
the benefice previously,10 but this prescription has not been in­
cluded in the Code. Canon 569, § 1, and canon 581, § 1, in
which the renunciation is conditioned on the subsequent act of
profession, have reference to goods in the strict sense and not
to benefices.11
While the candidate may renounce his benefice in the manner
described above, he may not renounce it on the condition that
1 Cappello, “ De vacatione beneficii post emissam professionem religi­
osam"—Periodica, XXII (1933), 102.
8 Can. 568.
’Cappello, “De vacatione beneficii post emissam professionem religi­
osam”—Periodica, XXII (1933), 104-105; "De beneficio possesso a can­
didato qui religionem ingreditur”—Periodica, XXII (1933), 204-205; Beste;
Introductio in Codicem, p. 398.
10 Benedictus XIV, ep. “Ex quo,” 14 ian. 1747—Fontes, n. 374; Bouix,
Tractatus de iure Regularium (2 vols., Parisiis, 1857), I, p. 592; Santi,
Praelectiones, lib. Ill, tit XXX, n. 27.
,11 Cappello, “ De vacatione beneficii post emissam professionem religi­
osam "—Periodica, XXII (1933), 104-105.

Tacit Renunciation in Consequence of Non-Criminal Acts

121

he persevere in the religious life. Such a renunciation would be
contrary to the prescriptions of canon 188, η. 1, and canon 584,
which predetermines a resultant tacit renunciation after the lapse
of definite periods of time. Nor may he renounce his benefice
with the reservation of a pension to himself unless an induit
of the Holy See is granted to that effect, for canon 1486 forbids
such conditional resignations.12
Granted, then, that a cleric enters a religious institute and does
not renounce his benefice either before his entry or during the
period of his profession, he remains the titular of the benefice
until the required period of time has elapsed. In the case of a
parochial benefice provision must be made for the care of souls
in the meantime by the appointment of a parochial vicar.13 This
vicar will receive a fit remuneration for his services, the amount
of which will be determined by the ordinary. A recent decision
of the Sacred Congregation of the Council, approved and con­
firmed by Pope Pius XII, stated that a member of a chapter
who enters a religious institute has no right to the fruits of his
benefice during the period of time required by canon 584 for
the vacancy of the benefice to be effected unless he possesses
an Apostolic induit permitting him to retain the fruits.14 The
' Sacred Congregation of the Council with the consent of the Sacred
Congregation for Religious treated this question in a general way,
and hence, although the decision was given for a particular case,
it may safely be applied to all cases in which an incumbent of
a benefice enters a religious institute.
While the candidate does not receive the fruits of his benefice
during the time which must elapse before the tacit renunciation
will take effect, he still remains the titular of the benefice and
therefore may resume possession of it if he leaves the religious
institute before the expiration of the time at which the tacit
renunciation would set in. It must also be remembered that,
even if the required time has elapsed for the vacancy of the bene­
fice to set in, or if the cleric has renounced the benefice, the
13 Cappello, " De beneficio possesso a candidato qui religionem ingreditur "
—Periodica, XXII (1933), 207.
13 Coronata, Institutiones, I, n. 593 ; Schâfer, De Religiosis, n. 267.
34 13, 19 apr. 1940-AAS, XXXII (1940), 374.

122

The Renunciation of an Ecclesiastical Office

proper ordinary must receive and provide for a cleric in major
orders who leaves a religious institute without taking perpetual
vows.15'

Article II.

Failure
Office

tical

to

Take Possession of an Ecclesias­
Appointed Time

within the

Can. 188, n. 2. [Si clericus} Intra tempus utile lure
statutum vel, deficiente iure, ab Ordinario determinatum,
de officio provisus illud adire neglexerit.
When a cleric is appointed to an ecclesiastical office but fails
to take possession of it within the prescribed time, the law at­
taches to such a failure the effect of a tacit renunciation of that
office. Regarding this type of tacit renunciation no legislation
was contained in the former law. There was specified an ipso
iure effected privation of office with reference to a cleric who
failed to receive the priesthood within a year after his appoint­
ment to a parochial benefice,16 and also with reference to a bishop­
elect who failed to receive episcopal consecration within six
months after his nomination to the episcopate.17 Some authors
regarded such a forfeiture of office as effected through a tacit
renunciation,18 but the majority of them did not, for the law
spoke rather clearly of a privation.
The common law does not provide a general rule regarding
the time within which one must take possession of an office.
In the case of a bishop, for example, it does provide a rule.
A bishop must take possession of his diocese within four months
after the reception of the Apostolic letters unless he is detained
by a legitimate impediment.19* Hence, if a bishop fails to take
possession of his see within the prescribed time, he loses the see
by a tacit renunciation, unless he was prevented from taking
possession by reason of a legitimate impediment. This tacit
renunciation must not be confused with the penalties which are
’’Can. 641, § 1.
16 Cc. 7, 14, 35, de electione et electi foiestate, I, 6, in VI°.
lr Cone. Trident, sess. XXIII, de ref., c. 2.
18 Schmalzgrueber, Jus Ecclesiasticum, lib. I, tit IX, n. 2; Reiffenstuel,
Jus Canonicum, lib. I, tit IX, n. 9.
’“Can. 333.

.yi

||ψ

Tacit Renunciation in Consequence of Non-Criminal Acts 123
imposed upon a bishop-elect who fails to receive episcopal consecration within the time prescribed by the law. Canon 2398
deprives a bishop-elect of the fruits of his benefice if he fails
to receive consecration within three months, and it deprives him
of the episcopal benefice if he fails to receive his consecration
within another three-month period. Thus, even though a bishop
may take possession of his diocese within the proper time and
thus avoid the tacit renunciation of his benefice, he may be deprived of it by his . failure to receive the episcopal consecration
within the six-month period ; on the other hand, even though he
may receive episcopal consecration within the first three months,
he may lose his see by a tacit renunciation through his failure
to take possession of it within the four-month period. While
these provisions are closely connected, they remain distinct and
separate. One is a tacit renunciation; the other is a privation.
One has reference to the failure to take possession of the of­
fice; the other refers to the failure to receive episcopal consecra­
tion.
Since there is no time limit set in the Code with reference to
.the taking of possession of ecclesiastical offices in general, one
must look to particular law for information on this point. The .
Code gives the ordinary the power to define the time within
which one must take possession of an office or of a benefice.20
He may make a standing rule which uniformly affects both offices and benefices in the matter of taking possession of them,
or he may define the time limit in each individual case. Simenon
remarks that in the diocese of Liège in Belgium one must take
possession of a parochial benefice within two months from the
day of the appointment.21 The time in each case is available
time, and therefore it does not lapse if the cleric does not know
of the specifically fixed time limit or is unable to take possession
because of some legitimate impediment.22 The time is computed
according to the norms of canon 34, § 3, n. 3. Hence the first
day is not counted, and the fixed period of time elapses only
« Can. 188, n. 2; 1442, § 2.
31 “ Renuntiatio Officiorum Ecclesiasticorum "—Revue Ecclésiastique de
Liège (Liège: H. Dessain, 1908-), ΧΧΠ (1930-1931), 186, footnote 3.
« Can. 188, n. 2; 35.

M

?; i

j
, i
i
j

.
h
x
;■

'

.

■
■

j
I
I
I
fl
fl

B
| B
I’ I

B
E

E*31
f
B
B
V

I
I

124

The Renunciation of an Ecclesiastical Office

with the completion of the last day among the number of days
which constitute this period.
If a special form of canonical possession is prescribed by
custom or law, then this form must be observed in the taking
of possession of the office or benefice. Ordinarily no form is
prescribed for the taking of possession of offices which are not
benefices. In these cases one has done the equivalent of taking
canonical possession of the office when one has reported for
actively assuming the duties of office.
The Reception op a Second Incompatible
Office
Can. 188, n. 3. [Si clericus] Aliud officium ecclesiaticum cum priore incompatibile acceptaverit et eiusdem
pacificam possessionem obtinuerit.

Article III.

The Code defines incompatibility in two instances. It defines
as incompatible such offices which can not be fulfilled by the
same person at one and the same time.23 It defines two bene­
fices as mutually incompatible for the same reason, and also for
the case in which one of the benefices is in itself sufficient for
the decent sustenance of the incumbent.24 Both of these descrip­
tions are to be understood in a relative import, and therefore
need to be applied by the proper superior in each individual
case, except for the few cases in which the Code has seen fit to
declare the incompatibility of certain specific offices in relation
to each other.
The incompatibility may result from the very nature of the
offices or from the multiple duties attached to them. Thus, two
parishes are incompatible by reason of the law of residence
attached to the office of pastor. Coronata notes that if the nature
of the offices is determined by ecclesiastical law, then this law
may change their nature, and in this way two offices which were
formerly incompatible may become compatible in the light of
the newly enacted law.25 Two offices which are by their nature
« Can. 156, § 2.
24 Can. 1439, § 2.
25 Institutiones, I, p. 241, footnote 7,

Tacit Renunciation in Consequence of Non-Criminal Acts 125

compatible may be rendered incompatible by a declaration of
the law to that effect. A good example of this type of incom. patibility is found in the law of canon 1439, § 2, where two
benefices are declared incompatible if one of them is sufficient
to provide a decent sustenance for the incumbent. Such a pro­
hibition is made to avert any avaricious accumulation of bene­
fices.20 Thus incompatibility of two offices may arise either
from the nature of the offices or from a declaration of the law.
Usually the obligation of residence which attaches to the offices,
the preponderance of the official duties, the necessity of provid­
ing well for the care of souls and the like will constitute the
reasons why two offices are incompatible and thus can not be
possessed by the same person at any one time.
Canon 156, § 1, states that two incompatible offices are not to
be conferred upon anyone. This law is not an invalidating law,
for canon 188, n. 3, states that a cleric loses his first office by
a tacit renunciation when he has received and taken peaceful
possession of the second incompatible office. Thus the conferral
of the second office is valid, but the cleric is prevented from
retaining both of them by the fact that the first one is tacitly
renounced when peaceful possession of the second one is had.
The possession of the second office must be a peaceful posses­
sion, that is, one that is uncontested.26
27 Also, the two offices
must have been conferred upon the cleric in title in order to
effect the tacit renunciation of the first office.28 Hence, if one
office is possessed in title and the other is had only by reason
of provisory administration, as sometimes happens in regard to
parishes and dioceses,29 the tacit renunciation of the first office
does not occur. The same thing is true if two offices, other­
wise incompatible, are perpetually united as in the case of two
episcopal sees or two parishes.20
In order, then, that the tacit renunciation of the first office be
26 Cocchi, Commentarium, II, n. 69.
27 Toso, Commentaria Minora, II, 155.
■ 28Maroto, Institutiones, I, n. 595; Claeys Bouuaert-Shnenon, Manuale,
I, n. 316; Cocchi, Commentarium, II, n. 69.
22 Cf. can. 339, § 5; 472, n. 2.
Cf. can. 339, § 5; 460, § 1; 1420, §| 2-3.

126

The Renunciation of an Ecclesiastical Office

effected, a cleric must already possess the first office in title and
then receive title to and take possession of the second incom­
patible office. If, after having taken peaceful possession of the
second office or benefice, the cleric presumes to retain the first
one along with the second one, then the law automatically deprives
him of both.31 Since this penal canon contains the word
"praesumpserit,” any reduction of imputability excuses a cleric
from the penalty.32 The first office or benefice, however, re­
mains vacant by reason of the tacit renunciation prescribed in
canon 188, n. 3.
'
As has already been stated, the law contained in canon 156,
§ 1, which forbids the conferral of two incompatible offices upon
any one person, is not an invalidating law. The conferral of the
second incompatible office is therefore valid. The law, however,
in canons 188, n. 3, and 2396 provides effectively against the
possibility of a cleric’s retention of both incompatible offices.
All that has been said with reference to the conferral of such
offices must be considered as applicable only when the offices
have been conferred by superiors other than the Holy See, for
paragraph 3 of canon 156 makes special regulations concerning
the conferral of a second incompatible office by the Holy See.
Since there is a variety of opinions as to the proper inter­
pretation of canon 156, § 3, it is necessary for the sake of clarity
to reproduce the text of the law here. It reads as follows:
Firmo praescripto can, 188, n. 3, concessio alterius
officii a Sede Apostolica facta non valet, nisi in supplici
libello mentio prioris incompatibilis habeatur, aut clausula
derogatoria adiiciatur.

A list of the various opinions will be given first. Then, along
with a criticism of the other opinions, there will be submitted the
opinion which the writer believes to be the tenable one.
Maroto,33 Cocchi,34 Claeys Bouuaert-Simenon35 and Sipos33
31 Can. 2396.
32 Can. 2229, § 2.
83 Institutiones, I, n. 595.
34 Commentarium, II, n. 69.
3t Manuale, I, n. 316.
83 Enchiridion, p. 148.

Tacit Renunciation in Consequence of Non-Criminal Acts 127
~ interpret this paragraph as having reference to the granting of
a dispensation to hold two incompatible offices. Thus, they say
that unless there is mention of the first incompatible office in
the petition for the second one, or unless the rescript from the
Holy See contains a derogating clause, the Holy See does not
intend to grant a dispensation to hold both offices when it confers
a second incompatible office upon a cleric. If the required men­
tion is made in the petition, or if a derogating clause is con­
tained in the rescript, then the cleric may retain both offices.
Coronata37 and Chelodi38 make use of a distinction in their
interpretation of the law. They state that if mention of the prior
incompatible office is made in the petition for the second office,
then the conferral of the second incompatible office by the Holy
See is valid, but that the tacit renunciation of canon 188, n. 3,
takes place when the cleric takes peaceful possession of the
second office. On the other hand, if a derogating clause is con­
tained in the rescript from the Holy See, they maintain that not
only is the conferral of the second incompatible office valid, but
the cleric may also retain both offices. Thus they consider that
the derogating clause produces two effects, namely, it makes the
conferral of the second office valid, and it grants a dispensation
to hold both offices.
Augustine considers this canon as having reference to a dis­
pensation to hold both offices, but his conclusion is not unmis­
takably clear.39 He states that even when a papal rescript which
is provided with the necessary clause is granted to hold two
offices, one must be resigned and vacated if the offices are incom­
patible.
Blat states* that if mention of the prior incompatible office is
made in the petition, then the conferral of the second office is
valid, but a tacit renunciation occurs by reason of canon 188,
n. 3, when peaceful possession of the second office is had; if a
derogating clause is present in the rescript, then the clause must
be examined to determine its precise meaning. If it merely
supplies the petitioner’s failure to mention his other office, then
31 Institutiones, I, n. 217.
88 Ius de Personis, n. 135.
·· A Commentary, II, pp. 114-115.

128

'

The Renunciation of an Ecclesiastical Office

the conferral of the second office is valid, but the tacit renuncia­
tion of canon 188, n. 3, still is effective; if the clause derogates
also from canon 188, n. 3, then the cleric may retain both offices,40
Finally, Vermeersch-Creusen, with whom the writer agrees,
explain the canon in this manner :
5". Sedes non vult, nisi conscia, alterum officium ei
conferre, qui iam unum cum illo incompatibile detinet.
Quare rescriptum S. Sedis concedens alterum officium
cum priore incompatibile non valet, nisi mentio prioris
in supplici libello facta fuerit aut clausula derogatoria
adiiciatur.
Intentio tamen S. Sedis non est ut utrumque officium
retineatur, ideoque, nisi de speciali dispensatione a can.
188 mentio fiat, capta pacifice possessione novi officii,
prius ipso iure ex tacita renuntiatione vacat.41

The writer believes that this interpretation of canon 156, § 3,
is the proper one. In the writer’s opinion this paragraph does
not treat at all of the question of obtaining a dispensation to hold
two incompatible offices. Rather, it treats of the validity of
the conferral of a second incompatible office by the Holy See.
According to paragraph one of this canon it is forbidden to
confer two incompatible offices on a person, but, as has already
been seen, the conferral, if made, is valid, and the first office
becomes vacant by the taking of peaceful possession of the sec­
ond one. This is true when the conferral of the second incom­
patible office is made by a superior other than the Holy See.
Paragraph 3 of canon 156 gives a more stringent rule with
reference to the conferral of such an office by the Holy See.
According to this paragraph of the law when the Holy See con­
fers a second incompatible office upon a cleric, the very conferral
of this second office is invalid, unless there is mention of the
former office in the petition or unless there is a derogating clause
in the rescript of conferral.
Canon 156, § 3, speaks only of the validity of the conferral
of the second office, and not of the granting of a dispensation to
hold both offices. This is clearly shown by the fact that the
40 Commentarium, II, n. 98.
41 Epitome, I, n. 274.

Tacit Renunciation in Consequence of Nfin-Criminal Acts ‘ 129

entire paragraph comes under the limitation of its opening
words, "Firmo praescripto can. 188, n. 3,” which demands the
tacit renunciation of the first office when the cleric has taken
peaceful possession of the second one. The writer does not
mean to say that the Holy See can not dispense the cleric in
such a way that he may hold both offices. Certainly the Holy
See can grant such a dispensation, but that point is not under
discussion in canon 156, § 3, for the opening words of the canon
expressly state that the prescriptions of canon 188, n. 3, are
safeguarded. Hence, if there is mention of the former incom­
patible office in the petition for the second one, or if there is
a derogating clause in the rescript of conferral of the second
office, the conferral of the second office is valid, but the cleric
loses the first office by a tacit renunciation when he takes peaceful
possession of the second one. That, in the writer’s opinion, is
the proper interpretation of canon 156, §3.
An examination of the opinions of the other authors will help
to substantiate this interpretation.
According to the first group of authors a mention of the other
incompatible office in the petition, or a derogating clause in the
rescript, not only makes the conferral of the second office valid,
but also grants a dispensation to hold both incompatible offices.
If this interpretation is accepted, then the words, "Firmo prae­
scripto can. 188, n. 3” lose all meaning in canon 156, § 3. If
no mention of the other office is made in the petition, or if no
derogating clause is present in the rescript, then the conferral
of the second office is invalid, and canon 188, n. 3, will remain
without applicable effect. If mention is made in the petition, or
a derogating clause is present in the rescript, then, since accord­
ing to these authors a dispensation to hold both offices is granted
in such a case, once more canon 188, n. 3, remains inapplicable.
In other words,· canon 156, § 3, invokes for the prescriptions of
canon 188, n. 3, a safeguard which never can come to the point
of being realized.
The second opinion advanced by the authors holds that while
mention of the other office in the petition merely makes the con­
ferral of the second office valid, a derogating clause in the
rescript not only makes the conferral of the second office valid,

130

The Renunciation of an Ecclesiastical Office

but also grants a dispensation for the recipient to hold both
incompatible offices. The writer fails to see how the text of the
law warrants such an interpretation. Once more the writer
wishes to assert that he freely grants that the derogating clause
may grant a dispensation to hold both offices, but it would have
to contain a special mention of canon 188, 3°. Canon 156, § 3,
states that the conferral of a second incompatible office by the
Holy See is invalid unless there is mention of the other incom­
patible office in the petition or a derogating clause in the rescript.
These two conditions are introduced by the same conjunction,
> “ nisi,” and are conditions which, if at least one is verified,, make
valid the conferral of the second office which would otherwise
be invalid. The words, ” Firmo praescripto can. 188, n. 3,” con­
stitute a limitation which extends to the whole paragraph of
the canon, but they remain unaffected by the nisi clauses, for
these bear an exclusive relation to the main clause in which by
way of a general statement in law the conferral of the second
incompatible office by the Holy See is declared invalid.
Augustirie’s remarks on this canon are quite confusing. He
seems to forget that this canon is speaking only of the conferral
of incompatible offices. No special dispensation is required for
the retention of two compatible offices, nor is there any ques­
tion concerning the validity of the conferral of such offices.
The only objection that the writer wishes to make against
Blat’s opinion is the fact that he considers the derogating clause
in canon 156, § 3, under a double aspect. He states that the
clause in the rescript must be examined to determine whether it
proposes merely to supply the petitioner’s failure to mention his
other office, and therefore intends merely to make the conferral
of the second office valid ; or whether it has the further purpose
of dispensing from the prescriptions of canon 188, n. 3. Ma­
terially taken this statement is true, but the writer insists that
the derogating clause mentioned in canon 156, § 3, must be
regarded not as being primarily concerned with any possible dis­
pensation to hold both offices, but simply with the factors of
validity for the conferral of the second office.
Thus the writer believes that when the Holy See confers a
second incompatible office on a cleric, the conferral of it is in-

Tacit Renunciation in Consequence of Ron-Criminal Acts 131

valid unless mention of the other incompatible offices is made
in the petition, or unless a derogating clause is contained in the
rescript of conferral. If the required mention is made in the
petition, or if a derogating clause is present in the rescript, then
the conferral of the second incompatible office is valid, but the
first office becomes vacant by a tacit renunciation as soon as the
cleric takes peaceful possession of the second incompatible office.
A special dispensation from the prescriptions of canon 188, n. 3,
is necessary before the recipient of the rescript can validly as
well as lawfully continue to hold his earlier office. The Holy
See is the only authority which in its own right is competent to
grant such a dispensation.
Article IV. Voluntary Military Service
Can. 188, n. 6. [Si clericus] Contra praescriptum.
can. 141, § 1, militiae saeculari nomen sponte dederit.
All clerics are by reason of the privilege of clerical immunity
free from the obligation of military service.42 The possession
of this privilege is founded upon the very fundamental con­
sideration that the best interests of the clerical and the military
state can not be served simultaneously , by one and the same
individual. There is no violation of distributive justice in the
exemption which the privilege grants since there are many other
ways of serving one’s country than by the bearing of arms.43
This privilege is a commonly (communiter) personal privilege,
that is,· it is given to a physical person because of the fact that
he belongs to a certain state of life. It is also a common privi­
lege, namely, one that is conceded for the common good and
not directly for the good of the individual who enjoys it.44 For
these reasons this privilege may not be renounced by the in­
dividual cleric acting upon his own authority.45
« Can. 121.
45Chelodi, Ius de Personis, p. 195, footnote 3; cf. Pius IX, Syllabus
errorum, prop. 32—Fontes, n. 543.
44 Roelker, Principles of Privilege according to the Code of Canon Law,
The Catholic University of America Canon Law Studies, n. 35 (Washing­
ton, D. C.: The Catholic University of America, 1926), pp. 31-32; 36-37.
45 Cans. 72 ; 123 ; cf. Roelker, op. cit., pp. 108-112.

132

The Renunciation of an Ecclesiastical Office

Besides the general norms which forbid the renunciation of all
clerical privileges, the Code makes some special norms with
reference to the privilege of immunity from military service. It
forbids a cleric to volunteer for military service unless he does
so with the permission of the ordinary for the purpose of be­
ing more quickly freed of the pending obligation.48
The exceptional case in which canon 141, § 1, permits a cleric
to volunteer for military service would be verified in a country
which, in violation of the privilege of immunity, obliges clerics
to perform military service. Thus if a law obliging clerics to
military service was passed in a given country, a cleric in that
country could volunteer for military service with the permis­
sion of the ordinary and in this way free himself from the
obligation so that he may continue his studies for the priesthood
undisturbed in the future. But in this country there can not
arise in the present either any need or any opportuneness which
would call for a cleric’s enlistment in the military service with
the permission of his ordinary inasmuch as all clerics are
exempted from military service, not indeed by constitutional law,
but simply by an act of congress.47
It is to be noted that two things are postulated in canon 141,
§ 1, if it is to become lawful for a cleric to volunteer for mili­
tary service, namely, the permission of the ordinary and the
purpose of being more quickly freed from the pending obliga­
tion. If either of these conditions is lacking, the enlistment
entails a violation of the canon, and accordingly subjects the
cleric to the effects which the law attaches to such a violation.
The effect which is under consideration here is enacted in canon
188, n. 6, which states that a violation of canon 141, § 1, effects
the tacit renunciation of any ecclesiastical office the cleric pos­
sesses. If the offender is a minor, cleric, he falls automatically
from the clerical state by such a violation.48
The general principles involved in these canons are quite clear,
but in order to apply them in practice, it is necessary to deter­
mine the meaning of the term “ military service." It is not an
« Can. 141, § 1.
« The Jurist, III (1943), 633.
« Can. 141, § Z

Tacit Renunciation in Consequence of Non-Criminal Acts 133
easy matter to accomplish, for there has been no official pro­
nouncement on this score, and the authors for the most part do
not attempt to offer any fully discriminate explanation.
■
Coronata maintains that although canons 121,141, § 1 and 188,
n. 6, are directed against a cleric’s military service especially in
the sense of bearing arms, nevertheless they also apply to the
enlistment of a cleric in all other types of military service.49
Claeys Bouuaert-Simenon, on the other hand, interpret the term
“ military service ” in the cited canons as having reference only
to the bearing of arms.50 Military service in the wide sense of
the term, that is, work in the chaplains’ corps, in the medical
corps, and the like, in their opinion is not interdicted in the
prescriptions of these canons. The work involved in these types '
of service is not strictly alien to the clerical state; as a matter
of fact it is often in full accord with it. They admit that the
rights of the Church would be violated if the State on its sole
authority imposed such obligations on clerics contrary to the
wishes of the bishops or without having consulted them on the
subject, but they do not consider such action on the part of the
State as a violation of the immunity from military service sanc­
tioned in canon 121. Accordingly they contend that a cleric has
not violated canon 141, .§ 1, when he has volunteered for mili­
tary service in the wide sense of the term. Downs states that
the service which is given in the chaplains’ corps and the medical
corps is not military service in the strict sense of the term, but
he does not state clearly whether only military service in the
strict sense is intended in canon 121.51
Vermeersch-Creusen seem to imply that the military service
which is mentioned in the cited canons must be regarded as
military service in the strict sense.52 Commenting on canon 141, ·
§ 1, these authors state that a cleric who is obliged to serve in
49Institutiones, I, n. 184; lus Publicum Ecclesiasticum (Taurini: Marietti,
1934), n. 154.
50 Manuale, I, nn. 279 ; 301.
51 The Concept of Clerical Immunity, The Catholic University of America
Canon Law Studies, n. 126 (Washington, D. C: The Catholic University
of America Press, 1941), p. 44.
62 Epitome, I, n. 259.

■t

MM

134

The Renunciation of an Ecclesiastical Office

the hospital corps or in an administrative position violates this
canon if he transfers to the service of bearing arms. This
distinction could not be made by them unless they understood
this canon as referring only to military service in the strict sense.
If they conceived of this canon as pointing to all types of mili­
tary service, then the cleric, by making such a transfer, would
not be volunteering for military service, since he has already
been obliged to give military service in at least the wide sense of
the term. The question still remains a very doubtful one. Until
some decision has been given in the’matter, the writer prefers
to follow the opinion that only military service in the strict sense
is interdicted in these various canons. Thus only the occupation
of a soldier in the capacity of a soldier, namely, that which is
directed to actual combat, is considered as military service. Only
that type is truly repugnant to the clerical state.
The military service must be performed in an organization
which has for its purpose the waging of war in the name of
the country to which it pertains. Thus, for all practical purposes,
the organization must be the armed forces of a country, as, for
example, the army or the navy. Only military service in such
an organization constitutes true military service according to the
common acceptance of the term.
A question might be raised concerning the National Guards
which exist in the various states of the United States. The
writer is of the opinion that enlistment in this organization would
not constitute a violation of canon 141, § 1, and hence would
not cause the tacit renunciation of one’s office. The National
Guards constitute rather a supplementary police force, whose
purpose it is to aid in the maintenance of order in their respec­
tive states. It is· true that they may be incorporated into the
regular army by order of the President of the United States
in time of war, but in themselves they are not part of the army,
nor are they troops of war, for the Constitution of the United
States expressly forbids the individual states to maintain troops
of war in times of peace.53 In a country in which clerics are
exempt from military service even in time of war, one would
83 Art. I, sea X, par. 3.

Tacit Renunciation in Consequence of Non-Crimind Acts 135

certainly jeopardize his status by placing himself in an organiza­
tion which in all likelihood would be incorporated into the armed
forces in the event of war, but the writer does not believe that
this possibility or even probability of incorporation would brand
his enlistment in the National Guards as a violation of canon
141, §1·
The same conclusion may be drawn with reference to all other
types of organizations of a military nature. Unless the organiza­
tion is the official military instrument of the perfect society,
voluntary enlistment in such an organization would not imply a
violation of the law of canon 141, § 1.
Summarizing all that has been said, the writer believes that
before he violates the law of canon 141, § 1, and occasions the
tacit renunciation of his office as mentioned in canon 188, n. 6,
a cleric must have volunteered for military service in the strict
sense of the term, that is, for the service which is directly ordered
to actual combat and which is performed in an organization which
is the official means of defense for the State. Even if a cleric
volunteered for such a service, no violation would be had in
the event that the cleric enlisted with the permission of his
ordinary for the purpose of being more quickly freed from the
pending obligation, for canon 141, § 1, permits such an enlist­
ment. Voluntary enlistment for any other type of military service
would not constitute a violation of canon 141, § 1, although the
cleric could' be punished by the ordinary for deserting his charge
or for doing things foreign to the clerical state.54
,

,

54 Cans. 128; 2399; 139, § 1.

i :

CHAPTER XII

TACIT RENUNCIATION OF AN OFFICE IN CON­
SEQUENCE OF CRIMINAL ACTS
Article I. Public Defection from the Faith
Can. 188, n. 4. f-S» clericus] A fide catholica publice
defecerit.

Since it is not only incongruous that one who has publicly
defected from the faith should remain in an ecclesiastical office,
but since such a condition might also be the source of serious
spiritual harm 'when the care of souls is concerned, the Code
prescribes that a cleric tacitly renounces his office by public de­
fection from the faith. Prior to the Code the law imposed a
privation of office and benefice on a cleric for such a crime.1
This penalty was certainly imposed upon those clerics who were
publicly guilty of heresy and of apostasy, but because of two
apparently contradictory laws it was disputed whether the penalty
applied also to those who were publicly guilty of schism? The
present law attaches a tacit renunciation instead of a privation
of office to a public defection from the faith. Since canon 188,
n. 4, uses a general terminology, it is necessary to determine the
meaning of a defection from the faith and also to determine the
extent of publicity that is required if the act of defection is to
become the basis for a tacit renunciation of office.1*3
1 C. 9, X, de haereticis, V, 7—Jaffé, η. 15109; Nicholas II, const "Noverit
universitas," 3 mart 1280—Bullarium, IV, 47; a 12, de haereticis, V, 2,
in VI°; a un., de schismaticis, V, 3, in VI”—Potthast, n. 24520; c. un,
de schismaticis, V, 4, in Extravag. com.—Potthast, n, 25324; Paulus IV,
const " Cum ex apostolatus," 27 ian. 1567—Fontes, n. 117.
3 Ci. Wemz, Ius Decretalium, II, η. 537; Gennari, Sulla Privazione del
Beneficio Ecclesiastico e sui Processo Criminale dei Chierici (2. ed, Romae,
1905), pp. 22-23 ; 30-31 ; Lega, De Judiciis Ecclesiasticis (4 vols. Vol. Ill,
1899, Romae), III, πη. 333-334; 434.

136

,

ί-

Tacit Renunciation in Consequence of Criminal Acts 137
Since three specific crimes, namely, heresy, apostasy and schism,
will enter into this discussion, it is necessary to give the defini­
tions of them as found in the Code. These definitions are con­
tained in canon 1325, § 2, which reads as follows :

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.
These definitions are quite clear. Apostasy is a total defection
from the faith, while heresy is only a partial defection, but as
MacKenzie remarks,34 they are essentially the same, since the
rejection of any one truth involves the same blasphemous attitude
towards God that is involved in a denial of all the truths.
Schism, on the other hand, is rather an offense against obedience
and charity than against faith, although heresy is almost always
joined to it.*
The authors are not in agreement as to whether schism is to
be included in the meaning of the term “defection from the
faith,” as used in canon 188, n. 4. Augustine,5 Blat,6 Toso7
and Coronata 8 do not regard schism as constituting a defection
from the faith as understood in canon 188, n. 4, since schism as
such does not essentially militate against the possible retention
of the faith even in its entirety. Maroto,9 Vermeersch-Creusen,1011
Cocchi11 and Sipos,12 on the other hand, consider schism pure
3 The Delict of Heresy in Its Commission, Penalization, Absolution, The
Catholic University of America Canon Law Studies, n. 77 (Washington,
D. C. : The Catholic University of America, 1932), p. 19.
4 Ibid., yp. 16-17.
SA Commentary, II, 161.
3 Commentarium, II, n. 13S.
7 Commentaria Minora, II, 155.
8 Institutiones, I, n. 263.
8 Institutiones, I, n. 684.
10 Epitome, I, n. 306.
11 Commentarium, II, n. 101.
Enchiridion, p. 164.

Λ

138

The Renunciation of an Ecclesiastical Office

and simple as sufficient to constitute a defection from the faith
and hence to call for the application of the sanction enacted in
canon 188, n. 4. Heneghan includes those who are guilty purely
of schism in his interpretation of the clause, “qui notarié aut
catholicam fidem abjecerunt,’’ in canon 1065, § I.13 The expres­
sion which Heneghan interprets in this manner is substantially
the same as the expression employed in canon 188, n. 4, which
reads as follows: "A fide catholica publice defecerit.”
According to the strict interpretation of-the words contained
in canon 188, n. 4, and of the definition of schism, it must be
admitted that the canon does not indisputably comprehend the
condition of pure schism, since in its essence schism does not
denote defection from the faith, but rather connotes a viola­
tion of obedience and charity. However, one could doubt that
the .law intends to exclude the consideration of schism from this
. canon, for in canon 2314, § 1, n. 3, which provides penalties for
the public adherence to a non-catholic sect, cognizance is taken
of canon 188, n. 4, with the words “firmo praescripto can. 188,
n. 4." Since the wording of canon 2314, § 1, n. 3, applies to
a schismatical sect as well as to a heretical one, and since the
application of canon 188, n, 4, is confirmed in this canon, one
could reasonably be led to conclude that the wording of canon
188, n. 4, means to comprise also the condition of pure schism.
In practice it will be extremely rare that a case of pure schism
will arise, for almost invariably and all but inevitably some heresy
will be joined to it. This is especially true since the time of
the solemn definition of the primacy and the infallibility, of the
Roman Pontiff. If, however, there should arise a case of pure
schism on the part of a cleric, the writer believes that the cleric
would not lose his office by a tacit renunciation since the sanc­
tion of canon 188, n. 4, is of but doubtful efficacy in view of
its questionable comprehension of the condition of pure schism,
and especially since the effective application of that sanction in­
volves the forfeiture of a vested right.1*
™The Marriage of Unworthy Catholics, Canons 1065 and 1066, The
Catholic University of America Canon Law Studies, n. 188 (Washington,
D. C.: The Catholic University of America Press, 1944), pp. 96-97.
14 Cf. can. 19.

Tacit Renunciation in Consequence of Criminal Acts 139
The defection from the faith must be public. It is to be noted
immediately that adherence to or inscription in a non-catholic
sect is not required to constitute the publicity that the canon
demands. The defection must be public according to the defini­
tion of publicity which is found in canon 2197, n. 1 :
Delictum est publicum, si iam divulgatum est aut
talibus contigit aut versatur in adiunctis ut prudenter
iudicari possit et debeat facile divulgatum iri.
The authors are in agreement that this is the type of publicity
postulated for making the defection a public one.*15* Thus the
defection from the faith may be public by reason of the fact
that it is already known to a notable part of the community.
The law does not prescribe any special number as being neces­
sary to constitute a notable part of the community. Determina­
tion of this point is left to man's prudent judgment. Besides
being public by reason of actual divulgation, the defection from
the faith may be public also because of the fact that the circum­
stances force one to conclude that it will be easily divulged in
the future. Thus if even only a few loquacious persons witnessed
the defection from the faith, or if the sole and only witness was
a taciturn person who later threatened to divulge the crime be­
cause of an enmity that has arisen between him and the delinquent,
the delict would be public in the sense of canon 2197, n. I.1·
A cleric, then, if he is to occasion the tacit renunciation of his
office, must have defected from the faith by apostasy or heresy
in a public manner according to the explanation just given.
Since the writer holds the opinion that a tacit renunciation is
not of the nature of a penalty, he holds also that the prescrip­
tions of canon 2229 concerning excusing causes with reference
to latae sententiae penalties do not apply to the case of a tacit
renunciation of office on the part of a cleric who has perpetrated
the act which is mentioned in canon 188, n. 4. Thus the writer
believes that even if it were thinkable that a cleric was excused
15Blat, Commentarium, II, π. 135; Cocchi, Commentarium, II,· η. 101;
Coronata, Institutiones, I, p. 301, footnote 7 ; Beste, Introductio in Codicem,
p. 210.
15 Cf. Michiels, De Delictis et Poenis (Vol. I, Lublin : Universitas
Catholica, 1934), I, 117-118; Coronata, Institutiones, IV, n. 1645.

140

The Renunciation of an Ecclesiastical Office

from incurring the excommunication involved in a defection from
the faith in view of the prescriptions of canon 2229, § 3, η. 1,
he still would lose his office by a tacit renunciation. In this regard
a tacit renunciation is like an irregularity, which, while in many
respects it looks like a penalty, is nevertheless not a penalty in a
truly canonical sense.
Article II. Marriage or Attempted Marriage
Canon 188, n. 5. [5Ï clericus] Matrimonium etiam
civile tantum, ut aiunt, contraxerit.

s

Before the present Code of Canon Law the marriage of a minor
cleric caused the tacit renunciation of any office that he possessed
at the time. The Code in the present canon has extended this
effect to the marriage of any cleric, major or minor. The law
makes no distinction, but merely states that the marriage of a
cleric effects the tacit renunciation of his office. The fact that
major clerics are now included under this law is further mani­
fested by the mention of canon 188, n. 5, in canon 2388, § 1,
which is the penal canon for clerics in major orders who attempt
to contract even a so-called civil marriage.
According to the present law of the Code a minor cleric may
validly and licitly contract marriage 17 while a major cleric can
not do so either validly or licitly.13 If, however, a minor cleric
contracts marriage, he falls automatically from the clerical state
unless the marriage is invalid because of force or fear inflicted
upon him.18* No attempt will be made here to determine the
interpretation of canon 132, § 2, which prescribes an automatic
lapse from the clerical state for a minor cleric who contracts
marriage. It is sufficient to say that if a cleric falls from the
clerical state, he automatically loses any office that he possesses,
for in the present law an office in the strict sense partakes of
some power of orders or of jurisdiction,20 and only clerics can
possess such power.21
17 Can. 132, § 2.
«Cans. 132, § 1; 1072
«Can. 132, §2
28 Can. 145, § 1.
"Can. 118.

Tacit Renunciation in Consequence of Criminal Acts 141

In the present discussion the writer restricts himself to the
determination of the elements required in a marriage or in an
attempted marriage to effect the tacit renunciation of an office
as prescribed in canon 188, n. 5, in abstraction entirely from
the question of whether or not these elements are sufficient to
cause the lapse from the clerical state as prescribed for minor
clerics in canon 132, § 2. In some instances the elements may
be sufficient to cause both effects ; in other instances they may be
sufficient to cause the lapse from the clerical state, but insuf­
ficient to cause the tacit renunciation of an office. In this latter
case the cleric will of course lose his office, not however by a
tacit renunciation, but indirectly through the fact that he has
fallen from the clerical state. In this discussion the effect of a
tacit renunciation alone will be considered.
If a minor cleric contracts a valid marriage, he certainly loses
his office by a tacit renunciation. Such a case presents no dif­
ficulty. The problem becomes more complex, however, when
either a minor or a major cleric contracts a marriage that is
invalid. It is certain that a tacit renunciation may be effected
by an invalid marriage, for the canon states that a tacit renun­
ciation occurs if the cleric contracts a so-called civil marriage,
and such a marriage is always invalid.22 Besides, it has already
been shown that major clerics are included under the sanction
of canon 188, n. 5. Yet major clerics can not contract a valid
marriage since their sacred orders form a diriment impedi­
ment.23 Does it follow, then, that every invalid or null marriage
of a cleric effects the tacit renunciation of his office regardless of
the cause of the invalidity or nullity of the marital union? That
is the question to be answered here. In other words, this dis­
cussion will have for its purpose the determination of the ele­
ments requisite for the constituting of an attempted marriage.
The opinions of the pre-Code authors are of very little assist­
ance in the solution of this problem. They were concerned only
with minor clerics, who could contract a valid marriage, and
hence they held opinions that can not be held in the face of the
» Can. 188, n. 5.
«Can. 1072

142

The Renunciation of an Ecclesiastical Office

present legislation. The present day authors have little to say
on the subject with reference to canon 188, n. 5. The majority
of them treats of the question quite thoroughly with relation to
canon 2388, § 1, which contains the penalties inflicted on major
clerics who presume to contract marriage. It is true that this
canon postulates complete malice in the delinquent, and it is true
also that the authors are interested primarily in the penalty of
excommunication contained in this canon, but independently of v
these points they discuss the elements requisite for the constitut- ·,
ing of an attempted marriage, and their principles and conclusions
on this point can be readily applied to the attempted marriage
which is mentioned in canon 188, n. 5.
The authors are in agreement on the point that in order to
constitute an attempted marriage there must be something more
than mere concubinage, even though the concubinage is public or
notorious.24 The observance of the canonical form of marriage
is not necessary, for the law states that a so-called civil marriage
is sufficient.25 With reference to the form of marriage, then, a
marriage may be attempted either with the observance of the.
canonical forms prescribed in canons 1094 and 1098, or simply
through the use of the form prescribed by the civil law. Besides,
an attempted common law marriage is sufficient even in those
states which do not recognize such a marriage, since baptized
persons remain unaffected by civil laws requiring a form for
entrance into marriage.2’
The fact that there is a diriment impediment present does not
prevent a cleric from attempting marriage. This is true with
reference to a major cleric even when there exists a diriment
24 Cappello, Tractatus Canonico-Moralis de Censuris iuxta Codicem luris
Canonici (3. ed., Taurini: Marietti, 1933), η. 3SS (Hereafter this work is
cited as De Censuris) ; Ayrinhac-Lydon, Penal Legislation in the New
Code of Canon Law (New York: Benziger Brothers, 1936), n. 362 (Here­
after this work is cited as Penal Legislation) ; Augustine, A Commentary,
VIII, 475.
25 Can. 188, n. 5; 2388, § 1; S. C. S. Off. (Ratisbonen.), 22 dec. 1880, ad
I—Fontes, n. 1068. ■
23 Dillon, Common Law Marriage, The Catholic University of America
Canon Law Studies, η. 153 (Washington, D. C.: The Catholic University
of America Press, 1942), pp. 127-128.

Tacit Renunciation in Consequence of Criminal Acts 143
impediment over and above the impediment of sacred orders.”
The fact that the individual knows that the marriage is . invalid
because of the lack of the proper form of marriage or because
of the presence of a diriment impediment does not mean that he
can not attempt marriage, for the knowledge of the invalidity
of the marriage does not necessarily exclude the matrimonial
consent.28 A marriage, then, which is invalid because of the
presence of a diriment impediment or because of the nonobservance of the canonical form constitutes an attempted mar­
riage.
,
The problem becomes more difficult with reference to a mar­
riage which is null because of the lack of the proper matrimonial
consent. Can such an act be classified as an attempted mar­
riage and therefore effect the tacit renunciation of an office
as sanctioned in canon 188, n. 5? There is a divergence of
opinion among the authors on this point.
The majority of the authors maintains that if the proper mat­
rimonial consent is not present in both parties either because
the consent is merely simulated or because it is vitiated by force,
fear or error, then there is no attempted marriage.29 In other
words, these authors demand that there be present the consent
which is required to constitute the natural contract of mar­
riage. They all admit that in the external forum the consent
is presumed to be present when one goes through any form of
marriage, but they maintain that if the consent is not actually
present, there is no attempted marriage. Cipollini, on the other
hand, while he holds that a simulated consent is not enough to
constitute an attempted marriage, maintains that if the matriS. C. S. Off, 13 ian. 1892—Fontes, n. 1147; cf. Cappello, loc. cit.;
Cipollini, De Censuris Latae Sententiae iuxta Codicem luris Canonici (2
vols, in 1, Taurini : Marietti, 1925), Π, n. 61 (Hereafter this work is cited
as De Censuris) ; Cerato, Censurae Figentes Ipso Facto a Codice luris
Canonici Excerptae (2. ed, Patavii, 1921), n. 64. Hereafter this work is
cited as Censurae Vigentes.
28 Cf. can. 1085.
28 Cappello, De Censuris, π. 355; Sole, De Delictis et Poenis-Praelectiones
in Lib. V Codicis luris Canonici (Romae: Ρικίεζ 1920), pp. 385-388;
Ayrinhac-Lydon, Penal Legislation, η. 362; Cocchi, Commentarium, VIII,
η. 265.

144 .

Ji

The Renunciation of an Ecclesiastical Office

monial consent is seriously given even though it is a naturally
invalid consent, for example, because of substantial error, such
a consent constitutes an attempted marriage inasmuch as the cleric
has done everything in his power- to contract marriage.30 Cerato
goes even farther than Cipollini. He states that there is an at­
tempted marriage even when the consent is simulated.31 He
considers that the validity of the marriage does not receive any
consideration, and provided that the external acts are present
from which it may be gathered that a marriage has been at­
tempted, that is sufficient to constitute an attempted marriage.
He maintains that when the consent is lacking in one party, both
parties are culpable, since it is a delict which by its nature de­
mands an accomplice. Vermeersch-Creusen answer this point by
saying that in such a case the contract is lacking, and therefore
there is no delict.32
Smith33 notes that the opinion which holds that any vitiation
of the matrimonial consent of either party to the contract pre­
vents the classification of the act as an attempted marriage has
some anomalous consequences. Thus, for example, a cleric would
not incur the excommunication [The author is speaking of the
excommunication and not of the tacit renunciation, but his re­
marks are applicable to both effects.] if his partner simulated her
consent, and what is worse, he would not incur the excom­
munication if the consent of the partner was lacking because
of violence inflicted upon her by the cleric himself. Such con­
sequences appear strange, but they follow from this opinion.
The writer is inclined to agree with the opinion of Cipollini
which states that any serious attempt on the part of the cleric
to contract marriage is sufficient to constitute an attempted mar­
riage: Thus, provided that the consent of the cleric is not simu­
lated or vitiated by force or fear, the writer believes that the
cleric is guilty of an attempted marriage. This concept of an
80 De Censuris, Π, n. 61.
31 Censurae Vigentes, η. 64.
82 Epitome, III, n. 592.
88 The Penal Law for Religious, The Catholic University of America
Canon Law Studies, n. 98 (Washington, D. C. : The Catholic University
of America, 1935), p. 115.

Tacit Renunciation in Consequence of Criminal Acts 14S
attempted marriage is derived from canon 132, § 2, in which
the Code states that a minor cleric falls from the clerical state
by marriage unless the marriage is null because of force or fear
inflicted upon the cleric. It is true that in things which are odiosa
, one may not make use of analogies, but canon 132, § 2, in the
writer’s opinion gives an insight into the Code’s meaning of an
attempted marriage. Common sense prevents the writer from
conceding that the legislator wishes to give approval to the almost
absurd consequences that follow from the other interpretation of
an attempted marriage. However, as Smith remarks,34 the milder
view must be followed until an authentic declaration has been
given in the matter. He is speaking primarily of the penalty of
excommunication, but his remark applies also to the effect of
tacit renunciation, since it, too, is a res odiosa.
In practice, then, a cleric loses his office by a tacit renunciation
through marriage or even through an attempted marriage, pro­
vided that the marriage is not null by reason of a lack of the
proper matrimonial consent in either party to the attempt.
Since the internal consent is presumed to be in conformity with
the signs or words used in the celebration of marriage,35 the
cleric must prove that the consent was lacking in order to escape
the tacit renunciation of his office or benefice.

Wear the Proper Ecclesiastical
Garb
Can. 188, n. 7. [Si clericus] Habitum ecclesiasticum
propria auctoritate sine iusta causa deposuerit, nec illum,
ab Ordinario monitus, intra mensem a monitione recepta
resumpserit.

Article III. Failure

to

The Church has from the earliest times manifested great care
in her vigilance over the proper dress of the clergy. The main
purpose has been to maintain for the clergy a dress in some way
distinct from the ordinary dress of the laity. This effort is
clearly shown in the various pieces of legislation enacted through­
out the centuries. Some of the legislation prescribed a specific33
st Loc. cit.
33 Can. 1086, § 1.

146

The Renunciation of an, Ecclesiastical Office

dress for the clergy while other legislation demanded merely that
the dress be distinct from the dress of the laity and proper to
{he clerical state. The penalty usually invoked against those
who violated these laws was a privation of office and benefice.
For the sake of a historical background reference is made here
to some of the pronouncements made in this regard from the
time of the Council of Trent.36
The present law on ecclesiastical dress is contained in canon
136, § 1, which reads as follows :
Omnes clerici decentem habitum ecclesiasticum, se­
cundum legitimas locorum consuetudines et Ordinarii
locorum praescripta, deferant, tonsuram seu coronam
clericalem, nisi recepti populorum mores aliter ferant,
gestent, et capillorum simplicem cultum adhibeant.

Since canon 188, n. 7, speaks only of neglect to wear the proper
ecclesiastical garb, the discussion will be restricted to this point.
It is to be noted that canon 136, § 1, prescribes the dress which
is to be worn by clerics in public at a time when they are not
performing liturgical functions.37
The prescriptions of the Code on clerical dress as contained
in canon 136, § 1, are very general. All that the Code prescribes
is that the dress be a fitting one, that is, one that conforms to
the dignity of the clerical state. Everything else is left to the
determination of local customs and the prescriptions of the ordi­
nary. This is substantially the same prescription as was con­
tained in the Council of Trent.38 It is not necessary, then, that
the ecclesiastical dress be the cassock unless local custom or the
ordinary prescribes the cassock. When the cassock is not pre­
scribed, the dress is usually a garment of a black color, but it
88 Cone. Trident., sess. XIV, de ref., c. 6 ; Sixtus V, const, “ Cum sacro­
sanctam," 9 ian. 1589—Fontes, n. 167; Benedictus ΧΙΠ, const. "In supremo!’
23 sept. 1724—Fontes, n. 283; const "Apostolicae Ecclesiae," 2 maii 1725—
Fontes, n. 286; Pius IX, ep. encycl. "Remo certe ignorat,” 25 mart 1852
—Fontes, n. 514.
87 Toso, Commentaria Minora, II, 99.
88 Sess. XIV, de ref., c. 6.

Tacit Renunciation in Consequence of Criminal Acts

147

may also be of another color if the circumstances warrant it.”
In the United States of America the II and III Plenary Coun­
cils of Baltimore have prescribed that the roman collar and a
black coat extending to the knees is the proper garb to be worn
by the clergy in civil life.4’ The prescription that the coat ex­
tend in length to the knees has been abrogated by a contrary
custom which has at least the tacit approval of the Holy See
and o£ the bishops.38
41
*40
An instruction of the Sacred Congregation of the Council has
emphasized the necessity of wearing the proper ecclesiastical
garb whenever a cleric appears in public even during the time
of the summer vacation.42 If a cleric visits another diocese, he
may retain the ecclesiastical dress of his own diocese, provided
that he has no domicile or quasi-domicile in the diocese which
he is visiting; on the other hand, he may also wear the ec­
clesiastical garb of the diocese which he is visiting, and his own
ordinary may not reprehend him for this.43 While this inter­
pretation is based on a declaration which was given before the
Code by the Sacred Consistorial Congregation to a particular territoiy, Canada, yet the principles involved are still applicable after
the Code.
With the foregoing short review of these few general ideas
on ecclesiastical dress it is possible to treat of the tacit renun­
ciation sanctioned in canon 188, n. 7. This canon states that a
cleric loses his office by a tacit renunciation if on his own
authority and without a just cause he doffs his ecclesiastical
38 S. C. de Prop. Fide, instr, (pro Mission. Malabar.), 9 apr. 1783—
Fontes, n. 4595.
40 Concilii Plenarii Baltimorensis II, in Ecclesia Metropolitana Balti-.
morensi, a die VII ad diem XXI Octobris, A. D. MDCCCLXVI, habiti,
et a Sede Apostolica Recogniti, Acta et Decreta (Baltimorae, 1868), nn.
147-149; Acta et Decreta Concilii Plenarii Baltimorensis Tertii, A. D.
MDCCCLXXXIV (Baltimorae, 1894), n. 77.
41 Barrett, A Comparative Study of the Councils of Baltimore and the
Code of Canon Law, The Catholic University of America Canon Law
Studies, n. 83 (Washington, D. C.: The Catholic University of America,
1932), pp. 48-49.
«28 iul. 1931—AAS, XXIII (1931), 336-337.
43 S. C. Consist, declar. 31 mart 1916—AAS, VII (1916), 148-150.

148

'

,
;,
I
■'
i

i1

I
'<
î
}
u

.
;
’

-

j
I
J
;
;

(
j
ί
i

,;

.1

The Renunciation of an Ecclesiastical Office

garb and does not resume it within a month after he has received a warning from the Ordinary. As Cocchi remarks/4 all
these elements must be present in order to effect the tacit renunciation. In the first place, the cleric must remove his ecclesiastical garb on his own authority and without a just cause.
If he should do so with the permission of the ordinary or on
the authority of another legitimate superior, his act would not
constitute a juridical basis for a tacit renunciation. Even if
he should do so on his own authority, his act would not call for
the application Of the sanction enacted in canon 188, n. 7, if
there were present a righteous cause to justify such action. Thus,
for instance, a cleric could find it necessary in some given circumstances to remove his ecclesiastical garb for a period of time in
order to minister spiritual aid to his people without being disturbed by enemies of the faith. If the cleric were placed in such
circumstances, certainly he would have a just cause for doffing
the clerical garb. It must be remembered, however, that it per-,
tains to the ordinary to judge whether or not the alleged cause
is just.45
The fact that a cleric has removed his clerical garb on his own
authority without a just cause is still not sufficient to effect the
tacit renunciation of his office. Canon 188, n. 7, further postulates that the ordinary have issued a warning, upon which for
an entire month the cleric still has not resumed the wearing of
the ecclesiastical garb, before the tacit renunciation will take
effect. The warning should be issued by the ordinary in such
a way that he will be able to certify the fact that the cleric has
received it, for the month’s time begins to lapse only after the
cleric has received the warning. For this purpose the warning
should be given orally before the chancellor or before two witnesses, or in writing by means of a registered letter with a
return receipt certifying the arrival of the letter, or by some
other safe means of correspondence.46 Since the time does not
begin to run its course until the warning has been received by
the cleric, the time to be computed is of the nature of available
44 Commentarium, Π, n. 101.
45 Toso, op. cit., II, 156.
«Cf. can. 2143, §1; 1719.

—

·
,
l·
s

j
!'
■.·<
>■

;

Tacit Renunciation in Consequence of Criminal Acts 149
time ‘‘ratione initii” 47 But it is not clear from the text of the
law .whether thenceforth the month’s duration of time is to be
measured (1) continuously, that is, without regard for any
temporal intermission during which the cleric may either not be
able, or in law not be held, to wear the ecclesiastical garb, or
(2) only intermittently, that is, solely with relation to such time
during which the cleric has both the given opportunity and at
the same time the duty in law to wear the distinctive clerical
dress. Coronata 4849and Blat48 maintain that the month’s dura­
tion as here involved is to be computed in the nature of a con­
tinuous time, while Toso50 considers that the course of the
month’s time is to be reckoned in accordance with the lapse of
only such time during which the cleric has the available oppor­
tunity of complying with what strict law demands of him in
the wearing of the clerical garb.. The latter opinion seems to be
in closer harmony with the demand of canonical equity, for, as
Toso remarks,51 a just cause for not wearing the clerical garb
may be present during the current calendar month, and such a
circumstance seems to interrupt the continuity of the course of
the month’s duration. If the month is actually continuous, that
is, no excusing just cause is present during the month, then the
month is computed as a calendar month, and accordingly the
time expires with the completion of the last day with an identical
date. If an impediment occurs during the month, then the time
is computed as thirty days of twenty-four hours each. In order
that a person be considered as impeded from acting for a day’s
time, it seems sufficient that the impediment hinder the person for
a notable part of the day.52
If the cleric wears the clerical garb for merely an hour in
order to circumvent the law, such an act would not constitute a
resumption of the clerical garb. If, however, he seriously resumes
47 Cf. Dubé, The General Principles for the Reckoning of Time in Canon
Law, pp. 230-233.
48 Institutiones, I, n. 263.
49 Commentarium, II, π. 135.
50 Commentaria Minora, Π, 156.
51 Loc. cit.
52 Cf. Dubé, op. cit., pp. 233-240

150

The Renunciation of an Ecclesiastical Office

the proper dress, even though the period of time during which
he retains it is of short duration, a new warning on the part of
the ordinaiy would be necessary, and the cleric would have an­
other month’s time at his disposal.53 If the cleric fails to resume
the proper ecclesiastical dress within an available period of time
equal to the duration of a month after he has received the warn­
ing of the ordinary, his office becomes automatically vacant in
consequence of the tacit renunciation sanctioned in canon 188, n. 7.

Article IV. Desertion of Residence
Can. 188, n. 8. [Si clericus] Residentiam qua tenetur,
illegitime deseruerit et receptae Ordinarii monitioni,
legitimo impedimento non detentus, intra congruum
tempus db Ordinario praefinitum, nec paruerit nec re­
sponderit.
Residence in general is the remaining or abiding in the place
where one’s duties lie or where one’s occupation is properly
carried on.54 It is a merely material residence when a person
is indeed corporeally present in the place of his duties but does
nothing by way of performing them. It is a formal residence
when the person is not only actually present but also performs
the duties incumbent upon him. Although a formal residence
is necessary for constituting a true residence, nevertheless the
present canon is directed against the violation of material resi­
dence alone.55
Prior to the Code the obligation of residence was attached to
all offices which had annexed to them the care of souls, and also
to the offices in a cathedral or a collegiate chapter. All other
offices had no obligation of residence, unless the obligation was
attached to them by custom or by particular law.55 The obliga­
tion of residence was a serious obligation, and those who violated
it were subjected to the penalty of privation of the fruits of the
53 Blat, Commentarium, II, n. 135.
54 Reilly, Residence of Pastors, The Catholic University of America Canon
Law Studies, n. 97 (Washington, D. C. : The Catholic University of
America, 1935), p. 3.
55 Ibid., p. 48.
58 Henry, De Residentia Beneficiatorum (Lovanii, 1863), pp. 3-4; 222-227.

i

Tacit Renunciation in Consequence of Criminal Acts 151

benefice, and subsequently to the penalty of privation of the bene­
fice itself.5’
'
The Code has maintained in substance the pre-Code standard
with reference to the obligation of residence. This obligation is
attached by law to offices in the strict sense which have annexed
to them the care of souls, as, for example, the offices of the
residential bishop,58 of the pastor,59 of the parochial vicar ad­
ministrator 60 and of the actual parochial vicar.51 Besides, the
Code attaches the obligation of residence to the office of cathedral
or collegiate canons52 and to the office of a cardinal.53 Even
if the Code does not attach the obligation of residence to an
office, the office may still entail that obligation by reason of custom
or of particular law.
Canon 188, n. 8, states that a cleric who illegitimately deserts
the residence incumbent upon him and does not either answer
or obey the warning of the ordinary within the time prescribed
by the ordinary, loses his office through a tacit renunciation of
it. Some authors maintain that the sanction of canon 188, n. 8,
takes effect not only in the face of a neglect of the obligation
of residence which is annexed to an office, but also in the face
of a violation of the law of canon 143 which forbids a cleric
to leave the diocese for a notable period of time without at least
the presumed permission of the ordinary.54 Thus according to
these authors a cleric who has an office with no special obliga­
tion of residence attached to it would nevertheless lose his office
through a tacit renunciation of it if he violated canon 143, and
thereupon neither answered nor obeyed the ordinary’s warning
within the prescribed time. Others hold that canon 188, n. 8, has
57 Cone. Trident., sess. VI, de ref., cc. 1-2; sess. XXIII, de ref., c. 1;
sess. XXIV, de ref., c. 12.
58 Can. 338.
59 Can. 465.
50 Can. 473, § 1.
51 Can. 471, § 4.
52 Can. 418, § 1 ; 419, § 1 ; 420-421.
58 Can. 238.
84 Coronata, Institutiones, I, p. 302, footnote 1 ; Cocchi, Commentarium,
II, n. 101.

The Renunciation of an Ecclesiastical Office

Tacit Renunciation in Consequence of Criminal Acts

reference only to the obligation of residence as attached to the
office which the cleric possesses.65
The writer favors the latter opinion. Carion 143 treats of resi­
dence only in the broadest sense of the term, while the tenor
of canon 188, n. 8, seems to demand a residence which is at­
tached in a special manner to the office which the cleric possesses.
Canon 2168, which introduces the rules governing the administra­
tive removal of non-resident clerics, and canon 2381, which con­
tains the penalties against non-resident clerics, expressly mention
that the obligation of residence which is under consideration in
these canons is that which binds the clerics by reason of a con­
ferred office, benefice or dignity. Canon 188, n. 8, has a very
definite relationship to these canons. As a matter of fact canon
188, n. 8, constitutes the initial step in the administrative procedure
outlined in canons 2168-2175. Hence the writer believes that
canon 188, n. 8, like the other canons just mentioned, should be
restricted in its application so that it will point solely to the
violation of the obligation of residence which as a duty binds a
cleric by reason of the office he possesses.
If-a cleric who possesses an office with the obligation of resi­
dence annexed to it should violate the law of canon 143 by leav­
ing the diocese for a notable period of time without at least
the presumed permission of the ordinary, he would almost in­
evitably violate also the obligation of residence attached to his
office, since the latter obligation seems ordinarily the stricter of
the two. If, however, he possesses an office which has no special
obligation of residence attached to it, then the violation of the
law of canon 143 would not constitute a foundation for the tacit
renunciation effectively sanctioned in canon 188, n. 8.
The obligation of residence prescribed in canon 143 is only
very remotely connected with the office. Even if a cleric should
resume the residence prescribed in canon 143, he could remain
in any remote part of the diocese without reporting to the place
where his non-residential office exists. Canon 188, n. 8, on the
other hand, seems to have reference to an obligation of residence
which is proximately connected with the cleric’s office. Hence

the writer believes that a tacit renunciation is effected only by
the violation of obligation of that residence which binds a cleric
by reason of the office he possesses. Violations of canon 143
should be provided for in accordance with the prescriptions of
canon 2399, which states that a major cleric who presumes to
abandon a charge committed to him by the ordinary is to be
suspended “a divinis” for a period of time to be defined by the
ordinary according to the need inherent in each particular case.
According to canon 188, n. 8, a cleric who is illegitimately
absent, and fails either to answer or to obey the ordinary’s warn­
ing within the prescribed time, loses his office through a· tacit
renunciation of it. In the first place, then, the absence must
be'illegitimate, that is, contrary to what the law permits to the
incumbent. It may be illegitimate with reference either to the
duration of the absence or to the manner of taking leave from
one’s residence. Thus, a pastor would be illegitimately absent
from his parish if he should leave for more than a week without
obtaining the ordinary’s written permission when there is suf­
ficient time to consult the ordinary.66 It is necessary to consult
the prescriptions of both the common and the particular law in
order to determine when a specific absence is illegitimate.
It is necessary also that the ordinary have warned the cleric
of his violation. This warning must be issued either orally
before the chancellor, or before some other official of the curia,
or before two witnesses, or in writing by means of a registered
letter with a receipt certifying the arrival of the letter, or by
some other safe means of correspondence.67 In the warning
the ordinary should call the cleric’s attention to the penalties
enacted in law against non-resident clerics, and also to the pre­
scriptions of canon 188, n. 8, and he must further indicate to
the cleric that he is to resume residence within a specified fitting
period of time.68 The period of time allowed for the cleric for
resuming his residence must be a fitting period of time, and
therefore it will vary according to the circumstances of each in-

J52

esBlat, Commentarium, II, n. 135; Toso, Commentaria Minora/ II, 156.

ee Can. 465, § 4.
«Can. 2143; 1719.
es Can. 2168, § 2.

153

•r

il .

'

154
1

10 !

*

1
ij

!

.

' ■

i !!
i;
if!
I
p
'

'

I

1 i
M
p
ί ύ

, ]·

λ

j·
1
ί·
<
4
’1

!

,

The Renunciation of an Ecclesiastical Office

dividual case. The period of granted time is necessarily of the
nature of available time since thé canon excuses the cleric if a
legitimate impediment prevents him from answering or obeying
the warning of the ordinary.69
If the cleric, does not resume his residence, or at least answer
the ordinary’s warning within the specified time, the office becomes vacant automatically by reason of the cleric’s tacit renunciation of it. Canon 2169 states that the ordinary is to
declare the office vacant when he has been assured that the cleric
has received the warning and was not legitimately impeded from
answering it. As Reilly notes,70 this declaration is not a necessary condition for the vacancy since the office becomes vacant
through a tacit renunciation which needs no declaration of the
superior to complete it for the sake of achieving its juridical
effect. The ordinary should, however, make the proper investigation to assure himself that the warning was received by the cleric,
and that he was not impeded from answering it, for if either

of these conditions is not verified, then the tacit renunciation does
not take effect, and accordingly the office can not be validly
conferred upon another. If there exists any doubt about these
matters, the ordinary must repeat the warning71 If it is clear
that the warning was received, and that the cleric, in no way
legitimately impeded, failed either to answer the warning or
obey it within the specified time, the office becomes vacant automatically through the cleric’s tacit renunciation of it and may
then be conferred to another.
It is to be noted that the tacit renunciation takes place only
if the cleric neither obeys the warning nor answers it. If the
cleric resumes residence after his illegitimate absence, the ordinary must punish him with the deprivation of the fruits of his
office for the time of his absence in accordance with the prescriptions of canon 2381, and, if the case calls for it, he may
punish him also with other penalties in proportion to his guilt.72
69Can. 188, n. 8; 35.
70 Residence of Pastors, p. 51.
71 Can. 2149.
77 Can. 2170.

Tacit Renunciation in Consequence of Criminal Acts

155

If the cleric does not resume residence, but answers the ordi­
nary by alleging the reasons for his absence, then the administra­
tive procedure as outlined in canons 2168-2175 is to be continued
to the point which will warrant the issuance of an authoritative
decree at the hands of the ordinary.

■

■

.

■

■

'

■

!

' ■

J
'ii

'

1

!1

>
4
r I'
t ■
i i
I
i
1 '

\

,

. !

;
.
;
î

j

1

:
η

’

;
Î
;
j

»
'

■
’

'

.

.

'

-

, ,Η

'

'

ϊ·

:

CONCLUSIONS
λ

■
·

1. The rules which regulate the renunciation of an ecclesiastical
office apply to the renunciation of an ecclesiastical office to which
the cleric has a ius in re, even though he has not taken possession of the office.
2. A minor may renounce an ecclesiastical office without the
consent of his parents or tutors.
3. The ordinary may prohibit the renunciation of any one
or all ecclesiastical offices under his jurisdiction whenever in his
judgment the needs of the Church demand such a prohibition.
.4. The vicar capitular or, in places where there is no Cathedral
Chapter, the diocesan administrator and the temporary apostolic
administrator appointed to a vacant see may admit the renunciation of all offices in the territory with the exception (1) of
parochial benefices of free conferral within the first year of the
vacancy of the see, and (2) of all perpetual benefices of free
conferral.
5. Whenever it is required for the validity of a resignation
that the superior accept the resignation, the resignation is in­
valid if unjustly inspired grave fear, deceit, substantial error,
or simony vitiates the superior’s act of acceptance.
6. Both substantial and accidental deceit render a resignation
invalid.
7. An incumbent may revoke his resignation provided that
he notify the superior of this intention before he has received
the notification of the superior’s acceptance of his resignation.
8. 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.
'
9. A tacit renunciation of an ecclesiastical office is not a
penalty, even though some of the acts which effect such a renunciation are criminal acts. Therefore, Cardinals are subject
to the prescriptions of canon 188.
156

Conclusions

157

10. Whenever the Holy See confers a second incompatible
office upon a cleric, the conferral of the second office is invalid
unless there is mention of the prior incompatible office in the
petition for the second office, or unies? there is a derogating
clause in the rescript of conferral of the second office. Even
though there is mention of the prior incompatible office in the
petition, or even though a derogating clause is contained in the
rescript, the cleric loses his first office through a tacit renuncia­
tion of it when he takes peaceful possession of the second office,
unless a special dispensation from the rule enacted in canon 188,
n. 3, is granted to him.

i