“We Do Not Have the Canonical Authority to Judge These Popes” – Fr. David Hewko and Fr. Hugo Ruiz

In a statement dated July 1, 2023 (see here), Fr. David Hewko and Fr. Hugo Ruiz asserted the following:

“We cannot accept Sedevacantism as a ‘solution’ to the crisis of the Church because denying that all the last popes are popes takes away from the Church even the very hope of finding a solution and an end to the tremendous crisis.  We do not have the authority to canonically judge these popes, only a truly Catholic pope in the future will have the authority to do it.”

From one point of view, it is true that the Fathers do not have the authority to canonically judge Jorge Bergoglio.  Since they presume that Jorge Bergoglio is pope, it is not morally licit for them to even think that they can bring him to trial, even if they were the lawfully appointed inquisitors.  This is because, as taught by Vatican I, the pope has supreme and universal jurisdiction over all ecclesiastical matters.  However, it is also true that a future pope could not judge Jorge Bergoglio if he too were to presume that Jorge Bergoglio was pope.  This is because an equal does not have jurisdiction over an equal.  But what if a putative pope were to be considered as being vehemently suspect of heresy and therefore a doubtful pope?  Since a doubtful pope is different than one presumed to be pope, the situation changes:

“It is only if the pope’s opinions, being indicia of heresy, were to qualify him as a suspect of heresy, that those opinions themselves would render doubtful the validity of his pontificate. In such a case it would fall within the jurisdiction of the Church to determine whether or not the suspect is pertinacious, and therefore disqualified by heresy from holding office as an incapable subject of the papacy, or just a valid pope who holds an honestly mistaken opinion, as was the case with Pope John XXII.”
(Kramer, Paul. On the true and the false pope: The case against Bergoglio, p. 48. Gondolin Press. Kindle Edition)

In this case (of a doubtful pope because of vehement suspicion of heresy), the Church would not have to wait for a future pope to judge the case:

“‘For a doubtful pope is considered no pope, and thus, to have power over him is not to have power over the pope.’ For this reason, Bellarmine explains in CAPUT ix. (De utilitate vel etiam necessitate celebrandorum comciliorum) of De Concilliis et Ecclesia, that one of the reasons which would necessitate the convening of a council would be ‘suspicion of heresy in the Roman Pontiff if it should happen’. Bordoni also explains that only a true and certain pope is above a council, but doubtful popes and pertinacious heretics (because they are incapable subjects) are subject to a council: ‘solus verus & indubitatus Papa est supra Concilium, et non alii de quibus dubitatur, ergo subijciuntur Concilio.'”
(Ibid. pp. 106-107)

So we see that the Church has the right to try a putative pope vehemently suspect of heresy.

From another point of view, Canon Law does give any Catholic the right to form a private judgment, when there is sufficient evidence, that a putative pope has lost office.  I will use the 1917 Code since the Fathers hold to this Code rather than the 1983 Code.  Canon 188.4º states the following:

“Ob tacitam renuntiationem ab ipso iure admissam quaelibet officia vacant ipso facto et sine ulla declaratione, si clericus: A fide catholica publice defecerit.”

“Any office becomes vacant upon the fact and without any declaration by tacit resignation recognized by the law itself if a cleric: Publicly defects from the Catholic faith.”

Note that the Canon does NOT require a declaration from a competent Church authority for the loss of office to take place.  Why?  Because it recognizes the doctrine that public defection from the Catholic faith (of which being a public heretic is one kind) is an act which per se (i.e., by its very nature) separates one from the Church.  No longer being a member of the Church due to his public defection, he loses his office.  This Canon is the Church’s legislative formulation of that doctrine.  Note that the Canon states that the office becomes vacant by the FACT of public defection from the Catholic faith.  It does not state that the office becomes vacant because of a DECLARATION of the Church; it actually asserts the opposite, that is, “without any declaration”.  A fact is perceived by the senses and apprehended by the intellect.  Therefore, a judgment (private, without juridical force) of public defection, when there is sufficient evidence, can be made by a simple layman.  If this was not the case, then Canon 188.4º would not make sense in stating that the loss of office occurs without any declaration because if one cannot make the judgment on his own despite the factual evidence and the Church does not make a declaration, how would anybody know that the loss of office took place?  Canon 188.4º is therefore made futile by such an erroneous interpretation.

But doesn’t public defection from the Catholic faith mean joining a sect?  It CAN mean joining a sect, but one does not have to join a sect for public defection from the Catholic faith to occur:

“On page 139 of The Renunciation of an Ecclesiastical Office, Fr. Gerald McDevitt writes: ‘The defection of 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 Very Rev. H. A. Ayrinhac comments on Canon 2197 in his General Legislation in the New Code of Canon Law (pp. 349-350), that public defection from the faith means: ‘Public defection from the faith, by formal heresy or apostasy, with or without affiliation with another religious society. The offense must be public, that is, generally known or liable to become so before long. (Can. 2197)'”
(Kramer, Paul. To deceive the elect: The catholic doctrine on the question of a heretical Pope . Kindle Edition)

But does Canon 188.4º apply to a pope?  It applies to any office whatsoever.  This is indicated by the Latin term “quaelibet”:

“That the canon is applicable to all ecclesiastical offices is stated explicitly with the words, ‘quælibet officia vacant ipso facto’ – and therefore necessarily includes the office of the Supreme Pontiff. The Very Rev. H. A. Ayrinhac explained, in his General Legislation in the New Code of Canon Law, on Loss of Ecclesiastical Offices, that such loss of office (Canons 185-191) ‘applies to all offices, the lowest and the highest, not excepting the Supreme Pontificate.’ (p. 346)”
(Ibid.)

Fr. Hewko and Fr. Ruiz would do well to carefully study Fr. Paul Kramer’s outstanding two volumes on the question of a heretical pope (IF it were possible for a pope to become a heretic).  It would assist them in leading the faithful in the correct direction on this matter.

To purchase the two volumes of To Deceive the Elect, please see the following links:

Hardcover versions:  see here.
Softcover and electronic versions:  see here and here.