QUESTION: The Constitution of Pope Pius XII that establishes the rules for a papal conclave says the following:
“34. No Cardinal, by pretext or reason of any excommunication, suspension, in-terdict or other ecclesiastical impediment whatsoever can be excluded in any way from the active and passive election of the Supreme Pontiff. Moreover, we suspend such censures for the effect only of this election, even though they shall remain otherwise in force.” (Cons. “Vacantis Apostolicae Sedis,” 8 December 1945)
I have several questions about this:
(1) What is the Church’s interpretation of this passage?
(2) Does it lift all excommunications, ecclesiastical impediments and censures for all the participants in a papal conclave? Does this also include the cardinal who has been elected pope, because that is what the term “passive” election seems to mean?
(3) If so, the passage means an excommunicated cardinal can be validly elected pope. Doesn’t this shoot down the fundamental principle behind the entire sedevacantist case?
RESPONSE: Over the years, many traditionalist writers in the SSPX camp, such as Fr. Carl Pulvermacher, Michael Davies, Fr. Dominque Boulet, and the Dominicans of Avrillé — and even conservative writers such as Fr. Brian Harrison — have cited this passage as a definitive answer to sedevacantism. Pius XII explicitly suspended any excommunications, ecclesiastical impediments and censures whatsoever for whoever was elected pope, so (their argument goes) a heretic could be elected a true pope.
But is this a correct principle to draw from the passage? We will address the broader question first, that of interpretation.
I. INTERPRETATION OF LAW
Generally speaking, “interpretation” in canon law comes either from a public authority, such as the pope, his curia, etc. (this is called authentic interpretation) or from another recognized source, such as the teaching of canonists (and this is called doctrinal interpretation). (For a complete discussion, see Abbo and Hannon, 1:17.)
I have not been able to find a papal or curial pronouncement interpreting or explaining the passage in question. It appears with essentially the same wording in papal election legislation promulgated by Clement V (1317), Pius IV (1562), Gregory XV (1621), and Pius X (1904). So, its meaning must have seemed self-evident — at least to curial types.
Where there is no interpretation from a public authority — and this is frequently the case in canon law — you look to other passages in the Code and to the teaching of canonists (academic experts in canon law) to find out what the terms mean. By following this procedure, the meaning of the passage in Pius XII’s constitution becomes clear. So, we will now slog through the terminology.
(a) Censures. The “excommunication, suspension and interdict” that the pontiff mentioned are censures — punishments that ecclesiastical law inflicts on a wrong-doer to get him to repent. (For an overview, see Bouscaren, Canon Law, 815–6) Cardinals are exempt from incurring censures, except in cases where the law specifies otherwise. (Canon 2227.2)
In a papal conclave cardinal elector or a pope-elect who had nevertheless somehow incurred an excommunication would face some nearly insurmountable obstacles. The effects of this censure bar an excommunicate from administering or receiving sacraments, exercising jurisdiction, voting, appointing others to offices, and indeed, being elected to church office at all. (See Bouscaren, 831–4.) That would leave the pope-elect nothing but waving from the balcony and riding in the popemobile. (Not mentioned by Bouscaren…)
Censures are also sometimes called medicinal penalties because their purpose is to cure the wrongdoer’s stubbornness. This distinguished them from vindictive penalties, which directly expiate a crime, independent of whether the wrong-doer repents. (Bouscaren, 846.)
(b) Ecclesiastical Impediments. The term “other ecclesiastical impediment” mentioned in Pius XII’s Constitution is a more generic category.
One such impediment, for example, is the vindictive penalty of infamy — loss of reputation due to some horrible crime. Among other things, this penalty renders the criminal ineligible for church offices, dignities, etc. (Bouscaren, 849.)
This impediment, then, like excommunication, would bar a cardinal from either voting in a conclave or from being elected pope.
II. SUSPENSION OF CENSURES AND IMPEDIMENTS
Having established the meaning of these terms in paragraph 34 of Pius XII’s Constitution, we can easily see the point of the law: to avoid endless wrangling about the validity of papal elections.
It then becomes easy to answer the second question: “Does it lift all excommunications, ecclesiastical impediments and censures for all the participants in a papal conclave?”
The answer is yes.
Does paragraph 34 also cover the case of an excommunicated cardinal who has been elected pope?
Again, the answer is yes, because the Constitution used the terms active and passive election, which mean, respectively, being able to vote and being able to be elected. So it is indeed correct to say that Pius XII’s Constitution explicitly allows an excommunicated cardinal to be validly elected pope.
III. AN ARGUMENT AGAINST SEDEVACANTISM?
So now, the final question: “Doesn’t this shoot down fundamental principle behind the entire sedevacantist case?”
But here, the answer is no.
Most SSPX types, many sedevacantists, and even intelligent academics like Fr. Harrison assume that excommunication is the starting point for the sedevacantist argument, which they believe, goes something like this:
• Canon law imposes an automatic excommunication on a heretic.
• Excommunication prevents a cleric from voting to elect someone to office, being elected to office himself, or remaining in office once he has become a public heretic.
• Paul VI and his successors incurred this excommunication for public heresy.
• Therefore, they were not true popes.
Take away the possibility of excommunication with ¶34 of Pius XII’s Constitution (the anti-sede argument goes), and the sedevacantist argument disappears.
But they misunderstand. Excommunication is a creation of ecclesiastical law, and it is not the starting point for the sedevacantist argument. In fact, it has nothing whatsoever to do with it.
Rather, for sedevacantism the starting point is another principle entirely: that divine law prevents a heretic from becoming a true pope (or remaining one, if a pope embraces heresy during the course of his pontificate.) This principle comes straight from those sections of major pre-Vatican II commentaries on the Code of Canon Law that deal with election to papal office and the qualities required in the person elected.
Here are a few quotes:
“Heretics and schismatics are barred from the Supreme Pontificate by the divine law itself… [T]hey must certainly be regarded as excluded from occupying the throne of the Apostolic See, which is the infallible teacher of the truth of the faith and the center of ecclesiastical unity.” (Maroto, Institutiones I.C. 2:784)
“Appointment to the Office of the Primacy. 1. What is required by divine law for this appointment… Also required for validity is that the one elected be a member of the Church; hence, heretics and apostates (at least public ones) are excluded.” (Coronata, Institutiones I.C. 1:312)
“All those who are not impeded by divine law or by an invalidating ecclesiastical law are validly eligible [to be elected pope]. Wherefore, a male who enjoys use of reason sufficient to accept election and exercise jurisdiction, and who is a true member of the Church can be validly elected, even though he be only a layman. Excluded as incapable of valid election, however, are all women, children who have not yet arrived at the age of discretion, those afflicted with habitual insanity, heretics and schismatics.” (Wernz-Vidal, Jus Can. 2:415)
Thus heresy is not a mere “ecclesiastical impediment” or censure of the type that Pius XII enumerated and suspended in paragraph 34 of Vacantis Apostolicae Sedis. It is instead an impediment of divine law which Pius XII did not suspend — and indeed could not have suspended, precisely because it is one of divine law.
IV. SUMMARY: APPLES AND ORANGES
Paragraph 34 of Vacantis Apostolicae Sedis suspends the effects of censures (excommunication, suspension, interdict) and other ecclesiastical impediments (e.g., infamy of law) for cardinals who are electing a pope and for the cardinal they finally elect. Thus, a cardinal who had incurred an excommunication prior to his election as pope would nevertheless be validly elected.
This law concerns only impediments of ecclesiastical law, however. As such, it cannot be invoked as an argument against sedevacantism, which is based on the teaching of pre-Vatican II canonists that heresy is an impediment of divine law to receiving the papacy.
Anti-sedevacantist controversialists should therefore stop recycling arguments based on the passage in question. It has nothing to do with the position they oppose.
ABBO, J & J. Hannon. The Sacred Canons. St. Louis: Herder 1957. 2 vols.
BOUSCAREN, T. & A. Ellis. Canon Law: A Text and Commentary. Milwaukee: Bruce 1946.
Bullarum, Diplomatum et Privilegiorum Ss. Rom. Pont. Turin: Vecco 1847.
CLEMENT V. Constitutiones Clementinae. 1317. Cap. 2, Ne Romani ¶4, de elect. I, 3 in Clem.
CODE OF CANON LAW. 1917.
CORONATA, M. Institutiones Juris Canonici. 4th ed. Turin: Marietti 1950. 3 vols.
GREGORY XV. Bull Aeterni Patris, 15 November 1621. In Bullarum 12:619–27. ¶22
MAROTO, P. Institutiones Iuris Canonici. Rome: 1921. 4 vols.
PIUS IV. Bull In Eligendis, 9 October 1562. In Bullarum 7:230-6. ¶29
PIUS X. Constitution Vacante Sede Apostolica, 25 December 1904. ¶29.
PIUS XII. Constitution Vacantis Apostolicae Sedis, 8 December 1945. Acta Apostolicae Sedis 36 (1946). 65–99. ¶34.
WERNZ, F. & P. Vidal. Ius Canonicum. Rome: Gregorian 1934. 8 vols.