With the recent resignation by Pope Benedict XVI, there has been much chatter concerning how papal elections work. One of those fun questions is whether an excommunicated cardinal can participate in a conclave. Canonist Dr. Edward Peters has eloquently answered most of this question over at his blog, “In the Light of the Law“. I believe, however, there is still some more that can be said.
Believe it or not, the question wouldn’t have been a question before 1996. Prior to apostolic constitution Universi dominici gregis [UDG], the special law that control papal elections (cf. can. 349) was Paul VI’s 1975 apostolic constitution Romano pontifici eligendo [RPE]. RPE had a clause specifically addressing the question of censured cardinals. RPE, n. 35 stated:
“No cardinal elector can in any way be excluded from the active and passive election of the Supreme Pontiff on account of any reason or pretext of whatever excommunication, suspension, interdict, or other ecclesiastical impediment. These censures, in so far as they affect an election of this kind, are deemed suspended.” (1)
It wasn’t until the promulgation of UDG that this question became relevant. The change in language from RPE, n. 35 to UDG, n. 35 was deliberate but for what reason is hard to say. Perhaps the pope thought this language was a bit too archaic and no longer relevant to the Church’s modern situation (after all, the exact phraseology had not changed much since the 1300s). Perhaps he figured that since cardinals are judged by the pope (can. 1405, §1), if a cardinal’s behaviour were ever so egregious as to incur excommunication, the pope would go ahead and depose him from the College of Cardinals (cf. UDG, no. 36). Ultimately, it is impossible to say with certainty. That brings us back to the question posed above—can a cardinal elector be barred from the conclave because he labors under a ferendae sententiae excommunication? (Since latae sententiae excommunications do not affect the validity of the election, it need not be considered.)
I agree with Dr. Peters that a cardinal elector can claim an excommunication, either latae sententiae or ferendae sententiae, to be an impediment to participation, and the College of Cardinals would, in all probability, recognize the impediment and proceed without him. Even if they did not recognize the impediment, should the cardinal elector still keep away, the Conclave could proceed without him (cf. UDG, n. 40). None of this is problematic. The problem is what if a cardinal elector suffering from such an excommunication refuses to claim it as an impediment and presents himself with the other electors at the place and time of the conclave? Dr. Peters suggests that the College of Cardinals can, in fact, bar this cardinal from the conclave because it could jeopardize the validity of the papal election. While I understand the absolute necessity to ensure a papal election is valid, I do not see the text of UDG providing strong support for this claim.
UDG does foresee barring admission or readmission to cardinal electors, but in the context of electors having violated or attempting to violate UDG. A cardinal over 80 years of age who attempts to enter the conclave can be barred because he attempts to violate the age limit placed by UDG, no. 33. A cardinal who has been deposed or has renounced the cardinal-ate with papal consent — and is thus no longer a cardinal (see UDG, no. 36) — yet attempts to enter the conclave can be barred because he is attempting to violate UDG, no. 33, which gives cardinals the exclusive right to elect the pope. A cardinal elector refuses to come to Vatican City without having been excused by the College of Cardinals on account of some impediment violates UDG, no. 38 and can be barred entrance (cf. UDG, no. 40). A cardinal elector who leaves Vatican City without a grave reason or on account of illness and without being excused by a majority of electors can be barred re-admittance (cf. UDG, no. 40, §§1 and 2). Beyond these cases, I do not see where UDG foresees any further exclusion of electors.
UDG, no. 35 would suggest, in my view, that there cannot be any valid reason or motivation (beyond those provided for in UDG) to exclude an elector — including, I argue, a ferendae sententiae excommunication. I realize that UDG, no. 35 does not provide explicit support for this claim, and that its general statement could be explained to allow for such an exclusion given how specific the circumstances have to be. The sources for UDG, no. 35 (see footnote 1), however, support such an interpretation of the current law, even if in some sense it is an argument from silence. Perhaps John Paul II changed Paul VI’s language because he did intend to bar excommunicated electors — perhaps he didn’t. In either case, however, I am uncomfortable allowing the mere non-mention of a specific provision to overturn seven centuries worth of an establish, documented principle.
Now, assuming the above interpretation is correct and an elector under a ferendae sententiae excommunication is admitted, there is still the issue of can. 171 which would — it seems — invalidate his vote (§1, 3º) or worse yet invalidate the whole election (§2). There would be no point in admitting an excommunicated elector if his vote will always be null and thereby place the validity of the election at risk. If the above interpretation of no. 35 is true, then it must also be the case that the effects of excommunication upon an electors participation (as listed in can. 171) are suspended.
This was explicitly the case in the former law, RPE, no. 35 and the other earlier sources, but here again, it is an argument from silence because along with not mentioning the issue of admitting excommunicated electors, there is no mention of the validity of their votes. Did John Paul II wish to elimination this exception to can. 171 as his predecessor had from 1975 to 1996 in RPE, no. 35? The late pope did carve out an exception via UDG, no. 78 to can. 149, §3 regarding simoniacal provisions of an office, so something similar could have been done. As above, I think that in the absence of a clear departure from historical papal practice, we must uphold the long held practice of papal election law, which supports the view of a suspension from the effects of can. 171. I realize that this may sound like impermissibly creating an exception to the Code where there is none, but faced with the conflict between UDG, no. 35, which in my opinion gives excommunicated cardinal electors a right to vote in conclave, and can. 171, which denies that right, I think the past practice of the Holy See shows that even if the exception did not happen to get put down on paper in the last revision, such an exception does, in fact, exist to the codified law.
In other words, under UDG no. 35, a cardinal labouring under a ferendae sententiae excommunication can participate in a conclave and may validly cast votes. Fortunately, as Dr. Peters said at the start off his post, this is purely hypothetical.
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(1) Paul VI, Ap. Const. Romano pontifici eligendo (1975), no. 35. This section incorporates and largely repeats earlier legislation on papal elections; see list below:
See Pius XII, Ap. Const. Vacantis apostolicae sedis (1945), n. 34;
Pius X, Ap. Const. Vacante sede apostolica (1904), n. 29;
Gregory XV, Ap. Const. Aeterni Patris Filius (1621), § 22;
Pius VI, Ap. Const. In eligendis (1562), § 29; and
Clement V, Decree Ne romani (1311), § 4
Servatis Servandis 