Commentary by Br. Alexis Bugnolo

The Conclave is barely a week away, and already there has arisen a juridical doubt as to its validity. Archbishop Viganò, in his recent criticism, has publicly decried the illegitimacy of a Conclave containing more than 120 Electors.

In an apparent response to the challenge from the Archbishop, the Cardinals today, in the 7th General Congregation declared that all 133 Electors have the right to vote. Their claim runs directly against n. 33 of the Papal Law, Universi Dominici Gregis (This is the link to the English version, for the other versions, see the top right corner of the linked page. Note, however, that only the LATIN is legally binding).

Here is what the Latin version of that document says in that paragraph:

33. Ius eligendi Romanum Pontificem ad Sanctae Romanae Ecclesiae Cardinales exclusive pertinet, iis exceptis qui ante diem mortis Summi Pontificis vel ante diem quo Sedes Apostolica vacavit octogesimum aetatis annum iam confecerunt. Maximus autem Cardinalium electorum numerus centum viginti ne excedat. Prorsus ergo excluditur quodlibet electionis activae ius cuiuspiam alterius ecclesiasticae dignitatis aut laicae potestatis cuiusvis gradus et ordinis interventus.

Here is my English translation:

33. The right to elect the Roman Pontiff pertains exclusively to the Cardinals of the Holy Roman Church, excepting those who have already completed the 80th year of age before the day of the death of the Roman Pontiff and/or before the day on which the Apostolic See is vacated. Moreover, let the maximum number of Cardinal electors not exceed 120.  Furthermore, therefore, there is entirely excluded any right of active election of anyone of another ecclesiastical dignity or the intervening of lay authority of any grade or order.

I have bold-faced the key phrase in my English translation.

The Cardinals, however, make their claim citing n. 36, of the papal law:

36. A Cardinal of Holy Roman Church who has been created and published before the College of Cardinals thereby has the right to elect the Pope, in accordance with the norm of No. 33 of the present Constitution. …

In that paragraph, which reads in the official Latin:

36. Sanctae Romanae Ecclesiae Cardinalis, dummodo creatus renuntiatusque in Consistorio sit, hac ipsa de causa ius eligendi Pontificis possidet secundum huius Constitutionis praescriptum in n. 33. ….

The key word is “secundum”, “according to”, which the Vatican English renders badly as “in accordance with”.

They evidently are claiming that n. 36 means that the numer 130 in paragraph n. 33 as allowing more Cardinals is not fundamentally binding.

What is the problem?

The Papal Law does not allow more than 120 Cardinal Electors to participate in the Conclave at the same time. The Latin construction is much more fixed and mandatory than the Vatican official Italian translation which reads:

Il numero massimo di Cardinali elettori non deve superare i centoventi.

Which I translate thus into English:

The maxim number of Cardinal electors ought not to exceed 120.

The Vatican official English translation, however, reads more strongly, but wrongly on that account.

The maximum number of Cardinal electors must not exceed one hundred and twenty.

Are the Cardinals within their right to decide that 133 can participate?

They can only be within their right, if the text of the Papal Law allows them the discretion to interpret the requirement of 120. In the above press release, it appears that they do not claim such a right, but rather quote another paragraph (n. 36) which does not address the problem directly. In addition they found their claim on the mere fact that Pope Francis created more Cardinal electors than would keep their total number under 121 means that the rule is dispensed from.

They do not even claim the right to interpret the rule of 120 on the basis of the right granted them in n. 5 of the same papal law, because obviously the number of 120 is neither a doubtful nor controverted reading:

5. Should doubts arise concerning the prescriptions contained in this Constitution, or concerning the manner of putting them into effect, I decree that all power of issuing a judgment in this regard belongs to the College of Cardinals, to which I grant the faculty of interpreting doubtful or controverted points. I also establish that should it be necessary to discuss these or other similar questions, except the act of election, it suffices that the majority of the Cardinals present should concur in the same opinion.

The Latin found in n. 33, uses the hortatory subjunctive: this signifies in Latin the obligation of an equipollent precept, that is, the level of obligation equal to a formal command. Without explicit dispensation, therefore, no subject can claim that that requirement can be transgressed.

However, the problem is, that in 2013, in the document, Normas Non Nullas, Pope Benedict XVI, specified a contradictory obligation in n. 35:

35.ⁿ No Cardinal elector can be excluded from active or passive voice in the election of the Supreme Pontiff, for any reason or pretext, with due regard for the provisions of Nos. 40 and 75 of this Constitution.

However, n. 35 speaks only of reasons and pretexts, and not requirements of the Papal Law.

Thus, if the Dean of the College of Cardinals does not or cannot produce a document signed by Pope Francis and published into the Acta Apostolica Sedes, it would appear that we must presume that the Cardinals have violated the law by the above declaration that more than 120 can vote. Furthermore, because this problem was known since December 8, when Pope Francis exceeded the limit of 120 Cardinal Electors, and since he failed to correct the papal law before his death, his non-action must be interpreted to mean that he had no intention that more than 120 would vote, since, as I have reminded the world many times, YOU CANNOT PRESUME THE CESSATION OF A RIGHT OR LAW.

John Paul II was quite explicit that the Cardinals cannot do what they just did

In fact, the Papal Law ends with these words:

Wherefore, after mature reflection and following the example of my Predecessors, I lay down and prescribe these norms and I order that no one shall presume to contest the present Constitution and anything contained herein for any reason whatsoever. This Constitution is to be completely observed by all, notwithstanding any disposition to the contrary, even if worthy of special mention. It is to be fully and integrally implemented and is to serve as a guide for all to whom it refers.

As determined above, I hereby declare abrogated all Constitutions and Orders issued in this regard by the Roman Pontiffs, and at the same time I declare completely null and void anything done by any person, whatever his authority, knowingly or unknowingly, in any way contrary to this Constitution.

Given in Rome, at Saint Peter’s, on 22 February, the Feast of the Chair of Saint Peter, Apostle, in the year 1996, the eighteenth of my Pontificate.

Does this affect the validity of the Election?

Those who want clicks and likes will make videos and write articles claiming that the Conclave is ipso fact, now, invalid before it even starts. But only someone with no sense of law would claim such a thing.

This is because, the validity of the election can only be made invalid, when the Papal Law says the violation of this or that requirement produces an invalid election.

Thus, admitting 133 Electors rather than 120, could only produce an invalid election if as a consequence of doing so, caused some other stricture in the Papal Law to be violated, the violation of which the Law declares invalidates the election.

This stricture is only found in Chapter V: The Procedure for the Election, where one reads:

76. Should the election take place in a way other than that prescribed in the present Constitution, or should the conditions laid down here not be observed, the election is for this very reason null and void, without any need for a declaration on the matter; consequently, it confers no right on the one elected.

Now grifters, unlettered persons, and those who know nothing about jurisprudence but who seek likes and favs, will say, AHA!. But they fail to see that n. 76 refers to “the election”, not to “the Conclave”. So this stricture applies only to Chapter V.

A similar stricture is found in Chapter IV: The beginning of the Election, at the end of n. 54:

It is not however permitted, even if the electors are unanimously agreed, to modify or replace any of the norms and procedures which are a substantial part of the election process, under penalty of the nullity of the same deliberation.

According to the Canonical principle that strictures are to be interpreted as applying not to general circumstances but only to the precise circumstances enunciated in the stricture, since both of the above n. 54 and n. 76, refer only to the process of the election, not to the number of the electors, allowing more Cardinal electors to vote does not produce an invalid election.

Thus, even if Pope Francis did not dispense from the number rule for 120 Cardinal Electors, the declaration of the above cardinals, while being unlawful and not within their right, since it is an interpretation reserved to the Pope alone, does not invalidate or result in the invalidation of the Conclave or the election.

Nor do the final words of the Papal Law quoted above speak of invalidating the election: as they refer only to what anyone does contrary to the norms of the Papal Law, not to what is done in accord with them. Thus, since, in the section regarding the Election process, it never says anything about the number of votes to be counted having to be no more than 120, thus, the counting of more than 120 does not invalidate the election. This omission is also reasonable, because if there are 133 votes, more votes must be had to win the election. And thus what is being done makes it more difficult to win, per se speaking.

Is the papal law defective: I would say yes, but it’s the only operative law. The next pope should fix it.

Can the Cardinals solve this problem and avoid the scandal? Yes, 13 Cardinal Electors could simply abstain from entering the Conclave at the time of voting. These could be voluntarily chosen or by lots. That at least would keep them from violating the law and prevent the next Pope from having to endure pontificate long claims that his election was invalid.

Otherwise, the newly elected Pope, can, before his election is publicly announced, ask that 13 Cardinal Electors leave the Sistine Chapel and that the final vote be taken again with only 120, which if producing the same result, be duly recorded so that if anyone claim anything about the Conclave being illegitimate by reason of the numbers of Electors present, he can release the documents showing that in the final vote, this was not the case.

Finally, the new Pope can punish the Cardinals for allowing more than 120 to vote, without an explicit written dispensation by Pope Francis, since what they are doing is illegal and a usurpation of papal authority to interpret the Papal law on Conclaves!

But as to the election, it remains valid and legal, but this discrepancy I believe will haunt the elected during his entire papacy if it is not corrected before the announcement of who has been elected.

UPDATE:

This controversy over exceeding the 120 Cardinal Electors is growing in Italy, and in reply Vatican News has issued an article in Italian citing cases in the past when outside of Conclaves, previous Popes appointed more than 120 cardinals, and argument which does not really address the core issue, as the article admits, saying this upcoming Conclave will be the first to have more Electors present than the number specified by law, though in the past, before Paul VI there was no such law.

+ + + + + + +

The Book on the Trinity, every faithful Catholic priest would love as his next present

This is Br. Bugnolo's English Translation, of Saint Bonaventure's encylopedic book of theology on the Trinity: With this book, your priest will always have something intelligent and awesomely inspiring to preach to you about God the Father, God the Son & God the Holy Spirit!

+ + +

This fund was started by Ordo Militaris Catholicus, an international relief organization founded by Br. Bugnolo and AJ Baalman. Click the image for more information.

+ + +

Subscribe to FromRome.Info!

Please read our terms and conditions & Check your email for Confirmation Notice after you press "Subscribe"!