An Essay in jurisprudence by Br Alexis Bugnolo

Most of us live in modern liberal democracies, so we enjoy the right to vote. And in most of these nations, we are not obliged to vote. So if we do not trust any candidate we can abstain from voting. And while such a situation is common for faithful Catholics, since so many candidates espouse agendas which are contrary to the Christian Faith, we are used to often abstaining from voting.

When we do so, however, we have forfeited our right to vote.

Forfeiture of right is thus a very common occurrence in modern nation states, so we don’t usually think anything about it.

This is even more true in the election of the Roman Pontiff.

But this year it is very important to pay attention to this loss of right.

PAPAL ELECTIONS

According to the current norms, Pope John Paul II in his law on Conclaves, Universi Dominici Gregis, (hereafter UDG) restricts in n. 33, the right to vote to 120 Cardinals maximum, and then only to Cardinals who were under 80 years of age on the day the previous pope died or validly resigned.

And since the right to elect the Roman Pontiff was restricted to Cardinals alone, back in 1059, there has been many occasions when Cardinals have forfeited their right to vote.

This can happen because they were too ill to vote, or to travel to the place of the Election. Or because the news of the Pope’s death arrived at the same time as the news of his successors election. In many other cases, wars, famines, and plagues prevented Cardinals from arriving in time for an election.

These are examples where one can be forced to forfeit one’s right because of an intervening obstacle which cannot be overcome: in jurisprudence this is called force majeure. You may have seen this term in a contract for insurance, where it lists the conditions under which the policy does not pay out, such as war, earthquakes, tornadoes, hurricanes, terrorism, and “acts of God”, such as the fall of a meteorite.

But what is to be done when everyone who has the right to vote forfeits their right?

This can happen voluntarily, or by force majeure, or by a consequence of one’s decision to not act rightly.

I have already mentioned the first two causes, but what of the third?  For example, if everyone voted for a candidate who was not authorized to be on the ballot, in most nations, while apparently exercising their right, they actually forfeited it. Keeping a candidate off the ballot is a common tactic by Masonic states to keep the people under control.

But if you vote in a manner that is improper or illegal you can also forfeit your right: such as casting your ballot incorrectly, or at the wrong voting station.

An Example of a Papal Election in which there was forfeiture of right

In the election of the Roman Pontiff, we have many cases of this, where Cardinals forfeited their right by participating in illegal elections. One example of this was, at the death of Pope Stephen IX, after he had promulgated a Decree whereby no election of his successor could take place until St. Hildebrand returned from the Imperial Court in Germany. However, the Cardinals and Roman Nobility, not wanting a reform candidate to be elected, proceeded to elect John, the suburbican Bishop of Velletri, using troops to seize control of the City of Rome to pacify any opposition to their actions.

Such a forfeiture is normally permanent, because if you not only participate in an illegal election but adhere to the candidate you elect, you obviously will refuse to participate in a lawful election, and thus have forfeited your right to vote in a legal election.

Pope Nicholas II, who was elected by the Cardinals at the Sienna with the permission of the Imperial Vicar at Florence, following the claim of John to be Pope Benedict X, thus had strong motives for clarifying once and for all what the forfeiture of right meant in a Papal Election. And he did this in the Bull, In Nomine Domini, of Feb. 15, 1059, in n. 3 of that law. You can read it in English, HERE, where I also have linked the original Latin text. — It is important to note that these Cardinals were Cardinal Hubert, Cardinal St. Peter Damnian, and the Cardinal Archdeacon St. Hildebrand. Thus, they first acted on the juridical principle of forfeiture and “necessity knows no law”, and only after being elected did Nicholas II apply this principle in his law for papal elections. The truth of the principles they acted, which are principles of natural right, do not exist in virtue of papal power, though Nicholas II affirmed their validly in n. 3 of his Papal bull.

Applying these principles to the Conclave of May 7-8, 2025

This brief consideration of the theoretical aspects of the forfeiture of right are highly pertinent to how Catholics should approach the Conclave of May, 7-8, 2025, because, most Catholics, who have no understanding or knowledge of the history of papal elections, simply suffer an intellectual short-circuit when confronted by possible evidence that the Conclave had no valid result, simply because they don’t know what to do in such a circumstance. It is as if you surprised them by bringing a Black Hole into their parlor room. The reaction is often also not very different.

But, now you might be able to see: by holding a Conclave in an illegal manner by claiming to have a dispensation which according to the Papal Law, UDG,  n. 4, they could not use, they counted 133 votes in an irregular manner, such that no one could have been validly elected. They also cast their votes for a man who was publicly known to have deviated from the Catholic Faith before his election, in violation of the Papal Law of Pope Paul IV, Cum ex apostolatus Officio, n. 6, which declares the election of all such men, null, invalid and irritus, that is, to be treated as never having happened, no  matter how many Cardinals, Bishops or heads of state recognize the “elect” as the Pope. That these Cardinals, then, have forfeited their right to vote, because unless they recognize their error — a thing which they may never be able to do, as I explained in my recent article on possible bribery during the Conclave, they will chose never to vote in any other Conclave until the death or abdication of Prevost.

And since, as far as I know, so far no Cardinal Elector has spoken against this irregular election, the Church is faced with having no valid pope, and remains in a sede vacante, which ostensibly would last decades, if there was no legal remedy.

This is why the authoritative teaching of Pope Nicholas II on what is to be done in such a case, has such an important value for the Church today. For by applying the principal of “necessity knows no law”, as he teaches, and the principle that the restriction of the election of the Roman Pontiff to Cardinal clergy of the Diocese of Rome is only prudential, the same solution applies now, with their de facto forfeiture of right, as would have to be had if all the Cardinal electors had apostatized or died, namely, that the right to vote would return to the original electorate which Saint Peter the Apostle endowed with that right: the entire Church of Rome, clergy, religious and laity.

Catholics who have no comprehension of how the forfeiture of right effects elections, will, however, keep waiting forever for the Cardinals to repent or Prevost to die or abdicate. And to cure this ignorance, which will doom them, I have written this article today on the forfeiture of right.

Back in 1058, when the Cardinals who elected Benedict X acted as they did, the Catholic party of Cardinals did not wait to proceed to a lawful election. They did not sit around dialoging or negotiating, and they certainly did not think that just because Benedict X was elected first, that his election was valid. Nor did they invite the group of Cardinals who elected the anti-pope to the legal election at Florence. Neither did they consider their non-presence in any way causing the invalidity of their own election of Nicholas II.

The validity of an election does not come from the dignity of those who vote, but from their compliance with the rules for voting. The Cardinal electors in May of 2025 have forfeited their right, and it is only a matter of politeness that the Catholic clergy and faithful of Rome inform them of their error and delay hoping for their repentance. If the Catholic Faithful at Rome are to imitate Saint Hildebrand and Saint Peter Damian, however, they should proceed immediately to an election by the original electorate. This is especially true, because by adhering to someone who is not nor could ever be a Pope, the Cardinals are involved both in an act of schism and a conspiracy of heresy, both of which causes them to be excommunicated latae sententiae. They did this back in 2013 too, and the Catholic Faithful at Rome have already waited enough for their repentance.

Pope Benedict XVI knew them well

In his Declaratio, of February 11, 2013, Pope Benedict XVI said that his successor will have to be elected by those “who are competent”. He used the very language of Canon 349, where the Cardinals are named as the ones who are competent to elect the Roman Pontiff. But competency is utterly destroyed when you use your ministerial rights to violate every trust God and the Church put in you to elect validly a Catholic as the Pope. Seeing that the Cardinals have twice broken this trust in the last 12 years, Pope Benedict XVI’s comment has aged well indeed. “Competency” refers to the quality of an ability which because of its higher quality, the holder of which is sought out before all others: this is the sense of the Latin cum- & peto-, to seek out completely. Obviously, when the entire College acts as to forfeit their rights to elect the Roman Pontiff, they no longer meet the qualifications of canon 349.

For just as the the Cardinal Saints Peter Damian and Hildebrand acted in 1058, in response to the illegal election of Benedict X, perpetrated by the Cardinals, Clergy and Laity of the Church of Rome, so today, because of the entire defection of the Cardinal Electors from their duties, the Clergy, Religious and Laity of the Church of Rome recover their right, by apostolic ordinance and for the salvation of the Church, to elect a Catholic Pope.

Here the legal principles are the same, but they move in opposite directions.