CANONICAL ELECTIONS
Dissertation
SUBMITTED TO THE FACULTY OF THEOLOGY OF
THE CATHOLIC UNIVERSITY OF AMERICA
IN PARTIAL FULFILLMENT OF THE REQUIREMENTS
FOR THE DEGREE
DOCTOR OF CANON LAW
By DANIEL M. GALLIHER, O. P., J. C. L.
Catholic University of America
1917
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CANONICAL ELECTIONS
Dissertation
SUBMITTED TO THE FACULTY OF THEOLOGY OF
THE CATHOLIC UNIVERSITY OF AMERICA
IN PARTIAL FULFILLMENT OF THE REQUIREMENTS
FOR THE DEGREE
DOCTOR OF CANON LAW
By DANIEL M. GALLIHER, O. P., J. C L.
Catholic University of America
J9J7
Nihil Obstat:
* THOMAS J. SHAHAN, S. T. D.,
Censor Deputatus.
Imprimatur :
«*J. CARD. GIBBONS,
Archiepiscopus Baitimorensis.
Approbatio Ordinis
Nihil Obstat:
FR. JOSEPHU5 KENNEDY, O. P., S. T. M.
FR. AUGUSTINUS WALDRON, O. P., S. T. M.
Imprimatur :
FR. RAVMUNDLS MEAGHER, O. P.. S. T. L.,
Prior Provincialis.
33C
The Rosary Press, Somerset, Ohio
1917
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CANONICAL ELECTIONS
CONTENTS
Introduction 5
Historical Concept 7
Juridical Concept 21
Qualifications of Electors 31
Convocation of Electors 45
Persons Eligible 54
The Act of Election 67
Postulation 83
Defects in Election 87
Subsequent Acts 96
Appendix — I. Manner of Electing a Sovereign Pontiff 104
II. Method of Selecting Bishops in the United
States 107
Sources and Bibliography Ill
INTRODUCTION
There is no institution, perhaps, that occupies a more prom-
inent place in the entire history of ecclesiastical legislation than
canonical election. For the Church during the almost twenty
centuries of her active life has promulgated for no other institu-
tion such a vast and varied array of enactments, decrees, and con-
stitutions. This ancient method of ecclesiastical provision —
established by the Twelve in the designation of their successors—
at times almost lost itself in the perilous conditions and numerous
persecutions of the early Church, only to come forth time after
time with renewed strength and vigor. During the first centuries
of the Christian era the system remained weak, unstable, and
undetermined. And even long after peace had been established
in the Church, it failed to take on a definite form. The Church
by her laws and decrees had continually endeavored to place
canonical election on a firm and orderly basis, but through cir-
cumstances of times, places, and persons, her efforts were frus-
trated, and it was not until the celebration of the Fourth Lateran
Council in 1215 that she succeeded in accomplishing her end.
Canonical elections in the early Church were limited to the
designation of the successors of Saint Peter, and to the nomina-
tion of bishops. But the rise and growth of religious orders oc-
casioned an extension in the discipline of canonical election, which
became the natural and ordinary way of selecting religious supe-
riors. The method adopted by religious institutes was later in-
troduced into the chapters of the secular clergy. The chapters
of cathedral churches not only obtained the exclusive right of
electing bishops, but also of providing for other dignities and
capitular offices by canonical election.
And after weathering the storms of twenty centuries the
institution of canonical election still occupies an important posi-
tion in the ecclesiastical discipline of today. For not only Roman
Pontiffs, but also many bishops are thus chosen. Vicar capitulars
are placed over vacant sees by canonical election of cathedral
chapters. This mode of provision is also used to a large extent
among regulars and in congregations of men and women under
simple vows. But perhaps nowhere does it obtain with more
accuracy and universality than in the distinctively democratic
6 CANONICAL ELECTIONS
legislation of the Order of Friars Preachers, where not only gen-
erals and provincials, but even local prelates are canonically
elected.
The writer, having the happy privilege of belonging to this
religious institute, in which canonical election with all its solem-
nity plays so prominent and important a role, has thought it well
worth the while to make a careful study of the legislation on the
matter. It is well nigh impossible to find a clear and concise
notion of the doctrine, for the various decrees and constitutions
dating far back into the centuries are filled with innumerable
difficulties and obscurities. The subject is too vast and extensive
to allow a complete exposition of it within the limits of this dis-
sertation, but the more important features pertaining to the mat-
ter have been carefully set forth. Avoiding wearisome and con-
fusing details, the writer has tried to set forth whatever is in-
cluded in the sacred canons as briefly and as clearly as the mat-
ter itself may allow.
The subject will be treated under the following heads : I. The
historical and juridical concepts of canonical election. II. The
conditions for active and passive voice. III. The forms of elec-
tion and vitiating circumstances. IV. Subsequent acts. V. The
present discipline of electing a Roman Pontiff, and the recent leg-
islation on the method of proposing candidates for bishoprics in
the United States.
CHAPTER I
Historical Concept
Just as Christ, Our Lord, freely called the apostles to the
work of the apostolate and constituted them the first pastors of
the Church, so also the apostles themselves placed others over
the churches they had founded. The first election conducted by
the apostles was that of Matthias. Peter rising up in the midst
of his brethren reminded them that they must choose a successor
for the apostolate of Judas and that this successor must be
chosen from those who had accompanied Jesus in His journeys
among men and who had witnessed His ascent into heaven. The
Scriptures go on to tell us that two were appointed : Joseph and
Matthias and that the lot fell upon Matthias and he was num-
bered with the eleven apostles. 1 Peter alone of all the apostles
had ordinary power over the entire Church and consequently his
power alone was handed down to his successors — the extraordi-
nary jurisdiction enjoyed by the other apostles expired with them.
Thus the Roman Pontiff alone, the successor of Peter, could con-
stitute bishops with the same right by which Peter had consti-
tuted them. This was the most ancient discipline of the Church.
In the course of time when episcopates had been instituted,
their regions were extended and provinces were divided. This
rendered the appointing of bishops slow and difficult and since
the good of the Church demanded a modification of discipline,
the Holy See committed the right of election to the people, clergy
and bishops of the different churches. So in the early ages of the
Church elections contained these three elements : the people, the
clergy and the bishops. The people presented the candidates and
furnished testimony as to their fitness ; the clergy voted on
them, and the bishops confirmed and consecrated them. Of
greater moment, however, was the suffrage of the clergy than
the testimony of the people. But of still greater account was
the authority of the bishops assembled in provincial synods, hear-
ing, weighing, now approving, now rejecting the votes of the
clergy and the testimony of the people. Saint Cyprian 2 says
that the supreme power of electing candidates worthy of the
'Acts I.
3 L. I. Ep. 4.
8 CANONICAL ELECTIONS
episcopate and of rejecting the unworthy, lies with the people,
but in these words is signified only the conscience and testimony
of the people, who are better acquainted with the virtues and
vices of the candidates. Many things concerning the candidates,
of which the people were well aware, were unknown to the bish-
ops. With the freedom, therefore, and the necessity of making
known whatever they knew of the morals and the actions of
those who were invited to the episcopate, elections appeared to
be in the power of the people. The testimony of the people, how-
ever, was not unquestionable, but frequently uncertain, incon-
stant, divided and corrupted, hence the supreme power of exam-
ining, approving and disapproving always lay with the bishops,
by whose judgment episcopal elections finally became orderly
and constant.
It is certain that orders inferior to the episcopate pertained
to the will and power of the bishops, although they were not con-
ferred upon any one without consulting the clergy and the people.
Bishops, therefore, enjoyed the right and power to choose clerics
and beneficiaries of their own churches, but since circumstances
prevented them from knowing the morals and ability of the can-
didates, they were forced to rely upon the testimony of the clergy
and the people. When, however, the piety and morals of the
candidate were so manifest, that no further testimony was
needed, the bishop would ordain him and then notify the clergy
and the people of the fact. Thus Cornelius tells us that Theoctis-
tus, Bishop of Caeserea, ordained Origen in 218 A. D. 1 And in
like manner Cyprian ordained Aurelius, who later (388) became
the illustrious archbishop of Carthage. 2
After the time of Constantine, the people still continued to
have a part in episcopal elections. 3 In the Second Council of
Carthage, 217 A. D., provincial bishops were forbidden to ordain
one whom the people presented, unless he were confirmed by the
metropolitan. 4 The Third Council of Carthage, 251 A. D., decreed
that if two or three bishops elected a candidate, he might be or-
dained provided he could exonerate himself before the people of
all the crimes with which he was charged. 5 Of such regard were
the good morals of the elect, that they must have as many wit-
nesses as there were voices among the people. The Fourth Coun-
cil of Carthage, 252 A. D., drew up a formula to examine the faith
1 Eusebius VI. n. 23.
2 Epistles of Cyprian, Book 3, n. 22.
"Optatus, L. I.
4 C. 12.
5 C. 40.
CANONICAL ELECTIONS V
and morals of the bishops elect, but the clergy and people assent-
ing, this could be omitted and the elect consecrated with the con-
sent and in the presence of the metropolitan. Provision was
made in the Fifth Council of Carthage, 253 A. D., lest the bishop
to whom the government of a vacant see had been entrusted
should be elected to that see, no matter how much the people
might desire it.
Thus through the first five centuries the principal part in
episcopal elections was taken by the bishops, more especially by
the metropolitan. The history of these centuries tells of many
instances of episcopal elections, which neither the clergy nor the
people desired. 1 Leo I in very forceful words forbade the bishops
to accede to the tumultuous postulations of the people or to be
influenced by the votes of an unlettered and violent multitude.
The same Pontiff prescribed that where the votes of the electors
were divided, the metropolitan should give the bishopric to the
one who excelled in merit and virtue. This right alone belonged
to the people that there could be forced upon them no bishop
whom they had continually refused and whom they were unwill-
ing to receive, and secondly, that the obedience which they were
to render should be in accordance with christian liberty. To these
two considerations the bishops could limit them in elections.
During these centuries not only bishops, clerics and the laity,
but princes and emperors were important factors in episcopal
elections. It seemed to the Roman Pontiffs and the bishops that
christian nobles and magist.^tes should be worthy of more con-
sideration than the people, and that their part in the suffrage
should be of greater import. This must not be imputed to un-
seemly adulation or partiality to worldly potentates, but it sim-
ply signified that these men were eminent not only for power and
birth but for wisdom, zeal and charity to the Church far more
sincere than that of the people, who were easily influenced by
empty words, and led astray by the hope of gain. And if the
Church thought fit to make concessions to the nobles and mag-
istrates, for a greater reason was it proper that she should make
more ample concessions to the supreme rulers, as heads of the
people and the whole republic, whose prudence and sagacity,
whose love for the Church and whose power to promote the pub-
lic good were greater than those of the people. If then the peo-
ple were not to be excluded from the elections, neither were their
princes and emperors. Although the influence of the princes in
episcopal elections was incalculable and in time gave rise to many
1 Sidonius, L. 4. Ep. 25; Ambrosius, Ep. 59, 82.
10 CANONICAL ELECTIONS
and shameful abuses, still it must here be noted that their con-
sent never in any way affected the validity of the elections.
II. From the fifth to the eighth centuries the people and
clergy enjoyed the same liberty of former ages in episcopal elec-
tions. Gregory the Great, writing to the Duke of Campania, says
that the primates of Naples should invite the people to take part
in the elections of other bishops, and if there was no one in
Naples worthy of episcopal dignity, they should send to Rome the
names of three men of learning and approved morals, from whom
a bishop would be chosen with the consent of the whole city. 1
Although the dukes, governors of the city, the nobility of the
provinces and later on the senate and the people played an impor-
tant part in elections, still by far the principal actors were the
clergy. Gregory afterwards addresses the presbyters, deacons
and clergy of Milan concerning a bishop to be elected by them. 2
And writing to the bishops of Epirus, he confirmed an election
made by the clergy and bishops of the province. Gregory never
wished to interfere in elections except when necessity demanded.
His one aim was to safeguard the rights and liberties of the
churches and that every church should have for a pastor a mem-
ber of its own clergy. He himself had been elected by the clergy,
senate and Roman people. 3
Pope Symmachus said .that the clergy and the people should
be consulted by the visiting bishop who had charge of the vacant
church and the election. 4 The first synod of Rome under the same
Symmachus decreed that if all the votes of the Roman clergy
were unanimous for one candidate, he should be declared bishop,
but if they were divided the majority should prevail. The words
of this synod seem to imply that the clergy alone enjoyed suf-
frage, but it is generally admitted that the people also shared
this suffrage. Pope Hormisda states that in elections the Divine
Will is manifested by the voice and consent of the people. 5
Vigilius, however, was elected pope by the clergy alone. 6 In sub-
sequent elections, the people were re-admitted ; first, the clergy
would elect, then the most prominent of the laity and populace
would give their consent. Sergius was raised to the pontifical
throne by the clergy, people and army.
1 L. 2, Ep. 15.
2 L. 2, Ep. 29.
3 Joan. Diac, Vita Greg. M.
4 Ep. 5.
5 Ep. 25.
6 Liberate Breviar. C. 22.
CANONICAL ELECTIONS
11
The Second Council of Orleans decreed that the new bishops
of the French church should be elected by the provincial bishops. 1
In the seventh canon of the same Council it was ordained that the
bishops, clergy, and people should elect the metropolitans and
the election should be celebrated in the presence of all the bishops
of the province; but for the election of a bishop there should
assemble only those bishops whom the metropolitan would call.
The difference between the election of bishops and metropolitans
was clearly denned in the Third Council of Orleans, in which it
was prescribed that the votes of both the clergy and the people
were essential to all elections either episcopal or metropolitan;
but for the election of a bishop, the presence of one metropolitan
sufficed, while for a metropolitan all the provincial bishops must
be present. 2
An additional clause to the above discipline was added in the
Fifth Council of Orleans to the effect that no bishop might take
possession of his see without the consent or permission of the
king. In the Third Council of Paris, all elections were declared
null and void, which were brought about by the authority of the
prince alone, because sometimes these unreasonable monarchs
not rarely abused their power to conduct elections with no inter-
vention of the clergy or consent of the people/ 1 With no less con-
stance did the Fifth Council of Paris condemn this unlawful and
violent procedure and it ordained that the successors of deceased
bishops should be chosen by the metropolitan, clergy and people
of the city, without any influence or bribes of secular authority ;
and if any election should be otherwise effected, the same should
be considered invalid according to the statutes of the Fathers. 4
This statute was confirmed by a royal document of Clotaire II.
There was left to the prince the privilege of confirming one whom
the bishops, clergy and people had elected and also of sending a
bishop from his palace to vacant churches, with the understand-
ing that the metropolitan and bishops had the power of examin-
ing and of not ordaining him unless his virtues and merits were
clearly manifest. But it cannot be denied that many princes
exerted an evil influence over elections and that at times the bish-
ops and clergy were but the medium of electing him whom the
prince had already named. There were times also when the
bishops invited the king to suggest the names of those whom
1 Can. I.
2 Can. III.
'Can. VIII.
4 Can. I.
12 CANONICAL ELECTIONS
they considered fit for the episcopate — never, however, to the
exclusion of the clergy's suffrage and the people's consent.
In Spain the Council of Barcelona reserved elections to the
clergy and people in this way, that they might name two or three
persons, from whom the metropolitan and provincial bishops
would choose the one who seemed to them best fitted for the
office. 1 In the same canon the intervention of royal power in the
elections was clearly insinuated, but the Fifth Council of Toledo
makes no reference to it and places everything in the will of the
people, clergy and bishops. Martin, bishop of Braga, forbade the
people to mingle in the elections, contending that bishops should
be elected by bishops, as they alone were qualified to judge the
fitness of candidates. But this prohibition was not enforced and
the people always had a part in the elections. The bishops would
listen to the wishes of the clergy and to the testimony of the
people and then proceed to elect the bishop themselves. From
the Fourth to the Twelfth Councils of Toledo in the year 681
there are no traces of royal interference in elections ; during this
interval the bishops enjoyed absolute power and even presided
at the elections of the nobility.- Some documents of the Twelfth
Council are extant, whereby the power of nominating bishops is
attributed to the kings.
Augustine was constituted bishop of England by Pope Greg-
ory and by papal command consecrated by French bishops. This
method was necessarily resorted to because in the English Church
— at that time springing into new life — there were no persons
capable of electing a bishop. But once the Church of England
was again firmly established, there are many instances of elec-
tions carried on in the ordinary manner of the times. We read
in Bede's English History 3 that Saint Cuthbert was elected
bishop of Lindisfarne in a council presided over by the archbishop
Theodore and in the presence of King Egfrid. And so on
throughout the following ages of this period, one council after
another ordained that bishops should be present at all elections
and if absent should be represented by letters in which their con-
sent was expressed. But these wise regulations were not always
observed and the ecclesiastical affairs of England were often in
a troubled state. King Alfred sent Wilfrid, whom he had made
a presbyter, to France to be consecrated by French bishops. At
the same time Cead was created bishop of York by command of
1 Can. III.
a Cone. Tol. VIII, Can. X.
3 Book III, C. 22-28.
CANONICAL ELECTIONS
13
King Osuf. 1 These centuries also abound with numerous exam-
ples of royal intervention in elections.
Elections in Africa were conducted with much difficulty. The
primate or metropolitan would send a provincial bishop to pre-
side at elections. Very frequently the clergy and people had long
and bitter dissensions over the proposed candidates. This, how-
ever, was the least of the troubles. Genseric, king of the Vandals,
in his tyrannical and cruel persecution, drove all the bishops into
exile and would not permit others to be ordained. At the request
of Emperor Valentinian he consented that Deogratias be made
bishop of Carthage. This bishop lived but three years and after
his death no bishops were created in the proconsular province of
Africa and the one time number of one hundred and sixty-four
was reduced to three.- Genseric was succeeded by his son, Hun-
eric, who allowed Emperor Zeno and Empress Placidia to appoint
a bishop to the see of Carthage— which had been vacant for
twenty-four years — on condition that the Emperor in turn would
grant the Arians full liberty of religion throughout the vast
empire. The bishops protested against the see of Carthage being
filled at so great a sacrifice to the universal Church, but the peo-
ple were enraged at this protest and proceeded to an election with
such violence that the bishops were powerless either to prevent
or postpone it. This state of affairs gradually became brighter,
and the African bishops, choosing to obey a heavenly rather than
an earthly king, elected bishops for every vacant see in the
African church. They were moved by the hope that they could
appease the wrath of the Vandal king, or that if the churches
could not have bishops they would at least have martyrs. Hil-
deric, the successor of Huneric, banished all these prelates, but
his successor Trasamund, desiring to reign in peace and tran-
quillity, permitted elections to be celebrated with absolute
freedom. 3
III. From the eighth to the tenth century elections were
conducted in much the same way is in former years. Under the
reign of Charlemagne unrestricted liberty prevailed. Hadrian I
advised him never to interfere in the elections, and he himself
set the example by declaring that he would in no way infringe
upon the freedom of suffrage of the clergy and people. 4
In Italy the bishops of Ravenna were always elected by the
clergy and people, neither the legates of the Roman Pontiff nor
* Bede V, 20.
2 Victor — History of Vandal Persecutions III.
3 lb. C. 28.
"Thomassin V, p. 108.
14 CANONICAL ELECTIONS
those of the king having any voice in the matter. But the arch-
bishop of Ravenna could not ordain provincial bishops without
the consent of the pope. Bishops of the province of Milan were
elected by the clergy and people, confirmed by the pope and king,
and ordained by the metropolitan. But by far the most promi-
nent feature of the episcopal elections in the Italian peninsula
was the authority of the bishops ; we can find very few instances
of any bishops having been elected without the consent of all the
provincial bishops. 1
From what has been said it can easily be seen that there is
no foundation for the assertion made by Sigebert in his chronicles
that Hadrian bestowed on Charlemagne the power of electing
the Roman Pontiff and of investing archbishops and bishops.
Sigebert published this fable for the first time three hundred and
thirty years after the death of Hadrian. In the time of Charle-
magne the question of investitures was not dreamed of, but in
the time of Sigebert the whole world was aroused over it, for
Emperor Henry claimed the right for himself. Furthermore, the
controversy over investitures arose at a date later than that of
the fictitious Roman Synod, which according to Sigebert was
held in the year 774.
It is true indeed that Zachary conferred on King Pepin the
power of nominating bishops, but this was nothing more than a
dispensation which the nature of the troublous times demanded.
We admit that San Gallensis 2 relates some episcopal appoint-
ments made by Charlemagne, but he says nothing of his reasons
for thus acting ; he passes over in silence the workings of ambi-
tious men, the artifices of unscrupulous princes, the endeavors
of powerful queens to have clerics of their families decorated
with episcopal dignity ; he does not even mention the unyielding
and noble stand of Charlemagne that only pastors worthy of the
high office be placed over churches. But aside from the fact that
the truthfulness and authority of San Gallensis are questioned
among learned men, it must furthermore be noted that the evils
of the times and the varying conditions could have compelled
Charlemagne not to allow the churches to remain vacant, nor to
permit dissensions to be protracted. Even granting that the
nominations really took place, they are facts, not rights ; they
are examples, not decrees.
Charlemagne conceded to the French clergy absolute free-
dom in episcopal elections, not as a new favor or kindness but as
'Du Chesne III. pp. 894-901.
2 T. II, p. 108.
CANONICAL ELECTIONS 15
an ancient right which the sacred canons conferred, and as a
liberty belonging to the Church, whose guardians and defenders
kings should be. Louis the Mild began his reign by confirming
the concession of Charlemagne and by granting the same liberty
in the elections of abbots. Einhard in the annals of 825 A. D.
relates that Drugo, brother of Louis, was canonically elected
bishop of Metz by free suffrage, to which Louis gave his consent. 1
The biographer of Louis tells us that not only the emperor and
clergy, but also the nobles and people took part in the election
of Drugo. The metropolitan invested the bishop by placing in
his hands a staff, then the ceremony was immediately repeated
by the emperor at the request of the metropolitan. Thus from
these friendly relations between ecclesiastical and secular power
began investiture by the emperor, which in later years caused
long and bitter conflicts between popes and emperors.
Although in the elections of these times the clergy frequently
prevailed over the people and sometimes the people over the
clergv. canonical freedom always remained intact. When the
kings interfered liberty still obtained, for they either approved
of the one chosen by the clergy and people, or proved to them
the fitness of those of their own choice. Of such a nature was
the election of Drugo.
The peace and concord that prevailed in the reigns of Pepin,
Charlemagne, Louis the Mild and Charles the Bald did not con-
tinue under their successors. The latter pretended that they
were heirs not only to the kingdom, but also of royal veneration
and deference throughout the extent of the universal Church.
But conditions were greatly bettered by the prudence and firm-
ness of Hincmar, archbishop of Rheims. He wrote to the youth-
ful kings Louis and Caroloman. reminding them how favorably
disposed he had been to their promotion and coronation, but he
did not hesitate to say what were the limits of royal and ecclesi-
astical authority, and how willingly secular power should bow
to the authority of the Church of the ages, and that they were
bound in conscience not to protract the widowhood of churches,
either by preventing elections or unreasonably objecting to those
already held. 2 After the reigns of Charles the Fat and Charles
the Simple peace and liberty were to a great extent restored in
canonical elections.
Towards the end of this period wars were breaking out and
raging on all sides, but the voice and authority of the canons were
1 Du Chesne, lb. p. 302.
2 Flodoard III, c. 19.
16 CANONICAL ELECTIONS
held in honor; and when the majesty of the French kings was
everywhere assailed by insolent tyrants, it was cherished most
religiously by the Church, which permitted no bishops to be
placed over them against their will. And although bishops could
not take possession of their sees without the kings' consent and
assistance, this was not injurious to the free elections previously
concluded, for if the royal ministers would dare to hold an elec-
tion themselves, it was pronounced a violation of the canons
and immediately condemned. 1
The elections in Spain were principally conducted by the pro-
vincial bishops or by those of another province. There was some
interference from the people and royalty but it did not prevail
over the authority of the bishops. Some say that the illustrious
Eulogius was elected archbishop of Toledo by the voice of the
people, but his biographer attributes his election to the bishops
alone. 2
In England, too, the authority of the bishops in ecclesiastical
elections far outweighed that of the people, clergy and royalty.
When the clergy, monks and canons were each striving to place
a bishop on the episcopal throne of Winchester, Dunstan, arch-
bishop of Canterbury, put an end to the controversy by appoint-
ing Elphege, just as he had appointed his predecessor Ethelwold.
In the biography of Saint Dunstan, the author ascribes the power
of electing bishops to the kings. Such, however, was not the
general rule. King Edgar did nominate Dunstan to the see of
Worcester in 957, and the bishopric of London becoming vacant
a short time after, he was compelled at the same time also to
govern that diocese. Dunstan afterwards appointed Oswald as
his successor in the see of Worcester. Finally Dunstan was
raised to the metropolitan see of Canterbury by the unanimous
consent of the adjacent churches and people. 3 These few excerpts
from the life of Saint Dunstan show the common practice of pro-
viding for vacant churches during this period.
IV. At the close of the tenth century episcopal elections in
the Western Church embraced these three elements : the prin-
cipal electors were bishops, the clergy exercised more power than
the people, the consent of the king was necessary. The people
from now on gradually lost their hold and the last instance we
find of their enjoying active voice was in the twelfth century. 4
1 Du Chesne, lb., p. 489.
2 Hispan. Illust. Ill, p. 894.
:1 Thomassin, lb., p. 151.
4 lb. c. 32, n. 14.
CANONICAL ELECTION? 17
In the year 1215 the Fourth Lateran Council under Innocent III
excluded the people and provincial bishops from episcopal elec-
tions, and reserved them to cathedral chapters. It is much con-
troverted as to when the intervention of the royalty was removed.
Some hold that it was at the time of the Second Lateran Council
in 1139, when elections were reserved to the bishops and clergy;
others — and more probably — that from the twelfth to the four-
teenth centuries royalty through custom gave way to laws which
reserved elections to the diocesan clergy, and consequently to
the chapters of cathedral churches. Clement V in the year 1305
reserved to himself appointments to vacant bishoprics in the
diocese of Rome.
The successors of Clement V and Benedict XII reserved the
elections of all bishops throughout the Church to the Holy See.
The reason for this reservation lies in the fact that many evils
had crept into the elections, which evils had arisen from the ambi-
tion of men, from dissensions among those who enjoyed the priv-
ilege of suffrage and from the unlawful means employed to ob-
tain possession of episcopal sees. And since it fell to the Supreme
Pontiff to supply a remedy for these evils, thus it was that he
reserved the right of election to himself, hoping thereby to heal
the dissensions and to promote the common good of the Church. 1
The Holy See in no way usurped rights that did not belong
to it — as some have wrongfully contended, but merely exercised
its own right, which the welfare of the Church and the nature of
the times demanded that it exercise. For in the first ages of the
Church, as we have shown above, the right of constituting bish-
ops belonged to the Roman Pontiff alone, who for just reasons
had conceded this power to the people, clergy, bishops and metro-
politans. Since all these abused the power so graciously con-
ceded, since they paid no attention whatever to the prescribed
laws, since they were dominated by ambition, simony and unlaw-
ful desires, it was but right and just that the power of creating
bishops should return to him in whom this power had ever re-
sided, and from whom his inferiors had derived it. 2 Thus by the
law of devolution for just and serious reasons the ancient disci-
pline by which the Supreme Pontiff constituted bishops again
prevailed.
It was not long before fresh troubles arose from this mode
•of procedure. These troubles were happily ended by means of
concordats, that is, agreements entered into between the Apos-
1 Leo X. Const. "Primitiva."
■ Ben. XIV, Const. "In postremo."
18 CANONICAL ELECTIONS
tolic See and the most powerful princes of Europe. Nicholas V
made such a concordat with the German Empire, in virtue of
which German bishops were elected by the canons, but confirmed
by the Holy See. 1 Leo X, after the abrogation of the pragmatic
sanction, which the pseudo-council of Basle had edited against
the pontifical reservations, permitted the king of France to name
a worthy candidate, whom the pope in the following consistory
would create bishop of the church for which he had been named. -
Finally other pacts were entered into, or indults or privileges
were conceded to the kings of Spain, Portugal, Panonia and to
other princes, whereby they might nominate or present worthy
candidates for their own cathedral churches. 3
In the course of time, either through custom or through
privilege, other modifications were introduced and today there
are four ways of electing bishops. First, by free collation of the
Roman Pontiff, which obtains in Italy, Mexico, in provinces gov-
erned by Vicars Apostolic and in France since the violation of the
concordat in 1905. Secondly, by the recommendation of several
candidates, made by provincial bishops or by the clergy of a wid-
owed church. This method is practiced in Belgium, Canada, Eng-
land, Holland, Ireland, the United States and in regions subject
to the Sacred Propaganda. Thirdly, by the presentation of a can-
didate by a prince or patron. This privilege is enjoyed in Austria,
Bavaria, Spain, Peru, Portugal and Servia. Fourthly, by canon-
ical election which prevails in the Austrian archdioceses of
Olmiitz and Salzburg, in the dioceses of Saint Gallo, Coire and
Basle in Switzerland, in some States of Germany — notably in the
ecclesiastical province of the Upper Rhine, and in Prussia.
V. Papal elections have varied considerably at different
periods in the history of the Church. Until the fourth century
they were conducted in the same manner as episcopal elections. 4
After this time the kings and princes of Italy began to take a
prominent part not only in the elections of bishops, but even in
those of the Roman Pontiff. Odoacer, King of Herculi. who
usurped the throne of Italy in 476, declared that Simplicius pre-
vious to his death in 483 had given him permission to take part
in the election of his successor, but this concession was pro-
nounced invalid by the clergy. Symmachus, who was raised to
1 Bull "Ad sacrament."
2 Bull "Pastor aeternus."
:i Ad Regul. 2. Cancellar I.
4 S. Clement Ep. I. c. 44.
CANONICAL ELECTIONS 19
the pontifical throne in 498, decreed that no lay persons — includ-
ing the royalty, should interfere with the elections. But Theo-
doric, king of Italy, compelled the Roman clergy to elect Felix
IV; they did so on condition that henceforth they were to enjoy
absolute liberty in elections. This condition was not observed,
and it gradually came to pass that no one was elected who was
not acceptable to the royal household. King Athalaric prescribed
that on two candidates being elected by dissenting parties, the
controversy should be settled in the king's palace and that the
pontiff-elect should bear all the expenses — which he fixed at the
sum of three thousand crowns of gold. This ordinance was con-
firmed by Justinian in 553. Constantine IV granted entire free-
dom in papal elections by removing the abuse of awaiting the
confirmation of emperors, though the latter still continued to
interfere during the following centuries. Nicholas II in 1059
ordained that papal elections should be held by the cardinal bish-
ops, who should seek the assent of the Roman clergy to their
choice, and have due regard for the rights of the emperor. In
1178 Alexander III reserved the right of electing a pontiff to the
entire college of cardinals, thereby excluding clergy, people and
and emperor. This discipline is still in force and will receive par-
ticular attention and treatment in an appendix to this paper.
We have space for but a brief notice of the much mooted
historical question concerning the pope's power to nominate his
own successor. Many hold he is prohibited from doing so by
divine law. The principal reasons for their assertion are : first,
that ecclesiastical benefices are not hereditary ; secondly, that
if the pope were to appoint a successor he would be exercising
power after death, something forbidden by law ; thirdly, con-
trary decrees of Boniface II, Pius IV and Paul III.
The affirmative opinion, however, seems more probable. In
the first place nothing on this point has ever been determined by
divine law, for neither in Sacred Scripture nor in tradition can
we find the"least reference to it. And if Christ had prescribed a
mode of electing the Supreme Pontiff, it would not have been
changed during the various periods of the Church, but would have
remained always the same. To the authority of the Church,
therefore, does it belong to establish a method and to change it
according to the exigencies of the times. This authority is vested
in the Roman Pontiff, to whom the government of the universal
Church has been committed. No canonists nor theologians ques-
tion this right of the Holy Father. 1
1 Wernz II, p. 651.
20 CANONICAL ELECTIONS
Furthermore, in case of real and extraordinary necessity or
utility to the Church, the pope can, according to the more prob-
able opinion, licitly and validly designate — not merely recommend
— his successor. 1 For the supreme and absolute power of the
pope is not restricted either ex natura rei or by any special divine
law to mere legislation on the nomination of a successor. It
seems, therefore, that the denial of the pope's right to extend his
power to the immediate nomination of a successor lacks solid
foundation.
The negative arguments at the most prove that a pope cannot
licitly use this mode of provision as something ordinary, nor val-
idly impose it on a successor as an ordinance of law. 2 Sacred
Scripture and divine tradition furnish no arguments to show that
any restriction has been placed on pontifical authority by divine
law. Nowhere did Christ by an explicit, special law forbid His
vicar on earth to appoint a successor. We admit that benefices
are not hereditary, but this argument has no force here, for elec-
tions exclude heredity. We grant that a Pope cannot exercise
his power after death, but to elect a successor is to complete the
act during life, and to suspend its effect — which is permissible.
Another argument in our favor is the fact that in 1883 a Bene-
dictine abbot found in the library of the chapter of Novara a doc-
ument — which every one admits as authentic — from which it is
clear that Felix IV (526-530) designated as his successor Boni-
face II and that he did not recall this designation before his death.
Boniface II himself acted in a like manner, even though he after-
wards revoked his appointment. The contention that the nega-
tive is the more probable opinion is based on a false supposition,
for no common opinion exists, and there are many learned doc-
tors such as Bonacina, Decius, Ledesma, Mendoza, Suarez, Vas-
quez, Victoria, Wernz and others who teach the affirmative. The
alleged decrees of Boniface II, Pius IV — which was never pro-
mulgated — and Paul III are opposed by that of Felix IV ; besides
they are not dogmatic definitions but disciplinary statutes. 3
'Hefele II, p. 627; Hollweck, t. 74, p. 329.
2 lb.
3 Wernz, lb.
CHAPTER II
Juridical Concept
The word election is of Latin origin (electio, from eligere,
to choose from), and in a broad sense means a choice among
many persons, things, or sides to be taken. In the strict juridical
sense it signifies the choice of one person among many for a defi-
nite charge or function. 1 In ecclesiastical law the sacred canons,
speaking of election in its broadest sense, include also collation
or mere gratuitous institution. Election thus understood is the
promotion of a person to an ecclesiastical dignity or benefice, and
it is properly called election, because a superior in conferring a
dignity or benefice upon a person chooses him in preference to
others. In a broad sense ecclesiastical election comprehends not
only election strictly so-called, but also nomination, postulation,
and presentation.
The essence of election in its broad sense is made manifest
by showing how it differs from collation. In the first place elec-
tion essentially differs from collation in this that collation is the
act of a superior conferrng an ecclesiastical office, while election
is an act of subjects naming a person for an office. Secondly, col-
lation confers upon the nominee the office itself (jus in re), and
in virtue of his acceptance he immediately becomes absolute mas-
ter, even before he has taken actual possession ; election gives
but a claim to the office (jus ad rem), conferring actual posses-
sion only on the confirmation or institution of a superior. 2 Al-
though by election the elect sometimes acquires the benefice or
prelacy immediately, as do newly elected popes and generals of
Orders, this does not pertain to those elections because they are
elections, but because they are such elections as are confirmed by
common law as soon as they are lawfully concluded and the elect
consents thereto. For as soon as an elect consents to a lawful
election in which he was elected, v. g., to the pontificate, he
thereby from divine institution becomes the vicar of Christ and
successor of Peter. A third difference is that the appointee, hav-
ing once consented, is no longer free to renounce the office with-
out the consent of his superior ; on the other hand an elect may
freely renounce it at any time before confirmation or institu-
1 Boudinhon, Cath. Encycl. v. Election.
2 Rodriq. lib. 2, q .51, a. 1.
22 CANONICAL ELECTIONS
tion. 1 Thus election taken in this way may be defined as a pro-
vision whereby subjects, in virtue of a right given them by the
Apostolic See, canonically elect a certain person or persons to a
vacant ecclesiastical dignity or benefice, which either the one
named or one of those named shall receive by the confirmation
or institution of a superior. In this definition the genus is pro-
vision, for provision is a general name given to all methods of
providing for vacant offices. The essential difference between
election and collation is also clearly shown, for collation is the
act of a superior, election of inferiors or subjects.
Thirdly, election is taken in a more specific and proper sense,
as distinguished from presentation. Election differs from pres-
entation first not in respect to the person elected but to the
electors. It implies a power of ecclesiastical office, which a lay-
man cannot exercise. Although this power is neither of orders
nor of jurisdiction, but of office, 2 it is, however, the act of an
ecclesiastic, which act is reduced to the power of jurisdiction,
of which a layman is wholly incompetent. Presentation on the
contrary is merely the exercise of the right of patronage (jus
patrona'tus), which may be conceded to the laity. Hence electors
to ecclesiastical offices must be clerics, whereas patrons may be
either seculars or ecclesiastics. The right of the candidate either
in election or in presentation is the same (jus ad rem).
A second difference between election and presentation is that
the former calls for canonical approbation or confirmation, while
the latter leads to canonical institution by a competent superior.
Although institution in a broad sense is the same as collation, in a
strict sense, it is different, for collation is a free donation, whereas
institution is a necessary appointment of the candidate — if fit and
worthy— presented by a patron. Canonists distinguish free and
necessary collation; the first is collation in the proper sense of
the word, the second is properly called institution. By free col-
lation the collator not only has the right to appoint but also to
designate or nominate the person he wishes to appoint. In neces-
sary collation the appointment belongs to one person, the desig-
nation or nomination to another, and the collator must of neces-
sity appoint the person designated or presented to him by the
patron unless canonical obstacles forbid the appointment. 3
Election and presentation differ thirdly in this that election
is vested in a number of electors, presentation in one person only
1 Donatus, in prax. par. 3, tract. 1, q. 1, n. 8.
: Azorius, P. II, lib. 1, c. 14, q. 14.
3 Smith, Elements of Ec. Law, I, p. 134.
CANONICAL ELECTIONS 23
— physical or moral. Election pertains to the members of a col-
lege, and thus understood is defined : a provision by which in-
ferior clerics, in virtue of papal concession, canonically elect a
certain person or persons to a vacant ecclesiastical charge or
function, the one named or one from those named obtaining the
office by the confirmation of a competent superior. Election
taken in this sense agrees with collation and presentation in so
far as it is a canonical provision. It differs from collation be-
cause it pertains to inferiors, while collation pertains to a supe-
rior ; it differs from presentation, for presentation belongs to
one person only, physical or moral, and leads to canonical insti-
tution, while election is committed to a number of clerics and
calls for confirmation.
Finally election in its strict and most proper sense is distin-
guished from postulation and nomination. Canonists commonly
define election thus understood as the canonical choice by legiti-
mate electors of a fit person for an ecclesiastical dignity or fra-
ternal society. 1 To this definition some think should be added
the words : by the confirmation of a competent superior. Elec-
tion taken in this sense differs from postulation not in regard to
the electors, but as regards the person elected, for postulation,
as we shall explain below, is the choice of a person juridically
ineligible by reason of some canonical impediment from which
the superior is requested to dispense him, while election is the
appointment of a fit person. It is distinguished from nomination
in this that the latter is the canonical act by which two or more
fit persons are proposed to the free choice of a superior, while the
former is the designation of one only.
Baldus 2 defines election differently saying that it is prop-
erly regulated determination of the will of a competent number
to a person, who is chosen for a prelacy or rectorship. This def-
inition would be clearer and more accurate if it said that election
is a properly regulated determination of the will of an ecclesi-
astical college to a fit person, who is elected to a prelacy, rector-
ship, or ecclesiastical benefice, to be confirmed by a competent
superior. Thus there is explained the nature of election both in
respect to the elector and to the person elected, and likewise the
form of election both natural, which consists in the free consent
of the electors, as well as canonical, which is determined by the
sacred canons, and there is also shown what sort of a right is
1 Hostiensis Summa, tit. de electione;
Panormitanus, Rubr. de postulat. n. 2.
2 de elect, c. 1, n. 1.
24 CANONICAL ELECTIONS
obtained from election, namely a weak and unstable right needing
the strength of confirmation.
Election so defined is distinguishable into many species both
as regards the electors and officers or benefices which are pro-
vided for by election. Hence diverse methods and forms of
electing have been established according to the condition of the
different offices to be filled. But abstracting from this diversity,
that election is one essentially and specifically, which is the pro-
vision of inferior clerics, whereby, in virtue of a right conceded
by the Holy See, they name a definite person to an ecclesiastical
benefice, and especially to a dignity or prelacy, thus giving to
the person elected a claim to the benefice (jus ad rem), which will
pass into his possession by the confirmation of his superior, if the
election be legitimately conducted according to canonical form.
Postulation is distinguished into simple and solemn postula-
tion. Simple postulation is a petition made to a superior to per-
mit one of his subjects to be elected or confirmed, or to permit
said subject to consent to his election or confirmation. This
method of postulation is employed in the election of religious to
dignities outside their Orders, and in those of prelates of one
church or diocese to an office or benefice in another church or
diocese. This species of postulation has no force except when
the candidate has been elected or solemnly postulated, for solemn
postulation agrees with election in this that if admitted the per-
son thus postulated has a claim to the prelacy.
Solemn postulation, however, is not election taken in its
proper sense, but on the contrary far different from it. Hostiensis
and Sylvius define postulation as a petition presented to a com-
petent ecclesiastical superior, that he may provide for a certain
ecclesiastical office by promoting to it a person who is prevented
from being elected not on account of a personal fault or vice,
but on account of some canonical impediment, which is usually
dispensable and which does not render him strictly ineligible.
This definition differs somewhat from that of Panormitanus 1 who
says that postulation is a request made to a superior to promote
a certain person to a prelacy, to which by reason of some defect
or impediment he could not have been elected or promoted ac-
cording to common law. Some canonists hold this second defini-
tion, but Sylvius chooses the first which is better, because it ex-
presses that postulation has no place where the defect or im-
pediment in the candidate is a personal vice ; this is not expressed
in the second, which, unless it be reduced to the sense of the
1 Rubr. de post.
CANONICAL ELECTIONS 25
first, is incomplete and false, for according to this definition even
one laboring under a personal defect could be elected, which is
not true. Baldus 1 defines postulation in still another way as a
canonical act by which a favor is requested of a competent
superior that he may provide a prelate or give the chapter per-
mission to elect one. But this definition is very general, and could
be applied also to simple postulation.
From these definitions may be gleaned many essential dif-
ferences between election and postulation. Election presupposes
no canonical defect or impediment in the person to be elected,
whereas postulation properly pertains to one who by reason of a
defect which is not personal cannot be elected. If a person is
canonically eligible for election, he cannot be postulated, for
electors should choose for a benefice not only the one best fitted
but also by the most suitable method. But election is a better
mode of provision than postulation, hence an eligible person
should be elected and not postulated, except in case of two candi-
dates when one is elected and the other postulated. For two
cannot be elected at the same time, but the law permits that in
the election of one another may be postulated, even though the
latter otherwise eligible is at present ineligible, for the reason
that one has already been elected, and two cannot be elected at
the same time. If, on the contrary, a person laboring under a
canonical impediment should be elected, the election is always
annulled, for such candidates must be chosen by postulation.
A second difference between election and postulation is that
the former is a matter of justice, the latter of favor. Election
confers a right (jus ad rem) on the elect, and there moreover
arises between him and the benefice for which he has been chosen
a bond of spiritual wedlock. Both the electors, therefore, and the
person elected have a right that the election be confirmed. Hence
the elect in requesting confirmation does not ask a favor, but
merely seeks justice, and to use the words of John Andreas:
"when the elect is fit and worthy, he can proudly appear before
the superior, not even raising his head or biretta, for election is
a question of justice, and not of favor, as is postulation."
From this second difference arises another, namely that
postulation can be recalled by the postulators before it has been
presented to the superior ; the messenger sent to the superior can
likewise be recalled, provided that the revocation reach him be-
fore he has presented himself before the superior. Furthermore,
even if the postulation has been presented to the superior, it can
1 Rubr. de post. n. 1.
26 CANONICAL ELECTIONS
still be recalled with his consent. But election cannot be revoked,
for by virtue of election the person elected acquires a right (jus
ad rem) to the charge or function for which he has been chosen,
while in postulation the one postulated acquires no right what-
soever. Some object to this last statement, saying that postula-
tion made for the utility and concord of the Church cannot be
rejected. 1 Sylvius responds that where postulation is not made
for reasons of concord, no right is acquired, not even by the pos-
tulators ; but where postulation is made by two-thirds of the
voters, those postulating acquire a right, and in this sense can-
onists must be understood who say that postulation made for
the concord and advantage of the Church should be admitted.
The person postulated, however, never acquires any right, since
he has a canonical defect or impediment which renders him in-
eligible until he is dispensed therefrom. We shall return to this
question again when treating of postulation in particular, where
the many other differences between election and postulation will
be explained.
Solemn and juridical nomination is also a way of providing
for vacant churches. According to Hostiensis it is the canonical
act by which the electors propose two or more worthy persons
to the free choice of the superior, in order that he may appoint
one of them to the vacant office.
There are three species of nomination. The first, consulta-
tive or simple nomination, is a voting previous to an election in
which are proposed the names of several fit and worthy persons,
one of whom may be elected later by the chapter. The second
is intrinsic to election by secret ballot, and obtains when each
of the electors names him whom he wishes to be elected ; the
one thus nominated has no right whatever before the announce-
ment of the ballot of nomination, but once the ballot has been
made known he acquires a certain right and the electors are no
longer free to change their opinion. The third is solemn nomina-
tion, which is that defined above. The role of electors is the
same as in election properly so-called. 2 It differs from election
inasmuch as it does not confer on those named a real right to the
benefice, but, on the contrary, the nominators may recall the
nomination at any time before it is presented to the superior.
For just as election can fall only on one person, so nomination
cannot confer on several a real right to the benefice ; on the con-
trary, their right is real inasmuch as it excludes third parties,
1 Hostiensis, de elect., cap. Cum ad Monast.
2 Boudinhon, lb.
CANONICAL ELECTIONS 27
though none of them possesses the jus ad rem. 1 It is distin-
guished from postulation in this that it occupies itself with a
number of persons, whereas in postulation one only is designated.
Moreover, nomination does not, like postulation, concern itself
with those who have canonical impediments, but with those who
are strictly eligible. Hence there is no question of those named
being dispensed from an impediment through the favor of a supe-
rior, but it is a matter of justice for the superior to confirm one
of those named, if he be fit and worthy.
There are, therefore, three modes of provision for vacant
benefices — election, postulation, and nomination — distinct from
that general mode which consists in the collation of a superior,
and also from another mode which is the presentation and insti-
tution of the one presented. These three agree in this that they
are acts of an ecclesiastical college, and in them is usually ob-
served the general form of electing by ballot ; they do not give
actual possession or dominion, but at the most election gives a
claim to the benefice in the manner explained above. They are
comprehended under election, as distinguished from collation and
institution, but are of different species. Thus election may be
considered either generically or specifically ; considered gener-
ically postulation and nomination are species of election, but con-
sidered specifically they are species distinct from it.
In addition to these ways of providing for vacant churches
or benefices, Barbosa 2 adds two others: simple petition and
translation. Simple petition, since it has no foundation in law,
is not an ecclesiastical provision, but merely a simple supplication
by which the clergy or people beg the Holy See to grant them the
prelate they desire. Neither does translation bespeak a special
way of providing for a widowed church, unless accidentally and
in respect to the term a quo. For it is purely accidental to the
church, that its prelate was previously a bishop or a prelate of
some other church ; the church itself is not provided for except
by institution, election, or postulation. Boudinhon includes still
another method under election, namely recommendation, which
is the designation of one or several fit persons made to the supe-
rior by certain members of the clergy, chiefly in view of sees to
be filled. Those recommending do not act as electors, hence the
persons designated acquire no real right, the Holy See remaining
perfectly free to make a choice outside of the list proposed.
Hence there are but two general ways of providing for widowed
'lb.
" De jure eccles. I, c. 19, n. 2.
28 CANONICAL ELECTIONS
churches : by collation and election generically taken, which is
divided into election strictly so-called, postulation, and nomina-
tion. Presentation is also included under election in a general
way, as we have explained above.
Having explained the different ways in which election may
be taken, it now remains to treat of the species of election strictly
so-called. The Decretals 1 admit three forms or modes of elect-
ing prelates : the ordinary way by ballot, and two exceptional
ways, namely, compromise and quasi-inspiration, often called
common inspiration. The Council of Trent 2 abrogated the forms
by compromise and quasi-inspiration in the elections of regulars,
but they still find place in other canonical elections, as is clear
from the constitution of Pius X, "Vacante Sede Apostolica," in
which this threefold form is expressly mentioned.
Some ask whether, notwithstanding the Tridentine restric-
tion, regulars can elect by compromise united with scrutiny. We
think that since this form of compromise is not distinguished
from election by ballot, or at least obtains the end of secret scru-
tiny, which is to exclude coercion and violation of liberty, it can
reasonably be said that this form was not abrogated by the Coun-
cil, for in it is strictly observed the law of secret ballot, as we
shall show at length on a later page.
It has been said that election by inspiration, because it comes
from the Holy Ghost, is not subject to human law. Sigismund"
distinguishes inspiration from quasi-inspiration. The former
occurs when the electors, observing no order and quasi-intoxi-
cated, spontaneously name a person and acclaim him elected, as
happened in the elections of the saintly bishops, Martin and Am-
brose ; the latter is when all the electors suddenly, quickly, but
orderly — that is, one after another elect the same persons. Hav-
ing given this distinction, he says that inspiration is not a form
of election. But inspiration is from the Holy Ghost, so when
evident, election by inspiration will be confirmed. Hence it is
not subject to the law or form prescribed in the chapter "Quia
propter."
The above remarks are true only where election by inspira-
tion or quasi-inspiration has not been abrogated by the Council
of Trent, they have no reference to the elections of regulars,
where elections not conducted by secret ballot are invalid. Al-
though what proceeds from the Holy Ghost is subject to no
1 cap. Quia propter, Lateran Council, 1215, A. D.
2 Sess. 25, de Regular, c. 6.
3 dub. 2.
CANONICAL ELECTIONS 29
human law, this is true only where it is manifest beyond question
that the Holy Ghost wills something. We cannot say, however,
that inspiration from the Holy Ghost directs an election from
the sole fact that it is brought about by the spontaneous and
unanimous acclamations of the electors. Thus the Church will
not ratify such an election, knowing full well that if it is prompted
by the Holy Ghost, the electors will confirm it by secret vote, the
same Holy Spirit interiorly moving and inspiring them to do so.
We can also deduce that the method of nomination was like-
wise excluded in the elections of regulars, since nomination is a
certain species of compromise. Nomination, however, by way of
compromise united to scrutiny would be valid, for the electors
can nominate certain ones by secret votes, and compromise with
the superior to grant them the candidate of his choice. 1 But if
this nomination be referred to the superior orally and not by
secret ballot, it is worthless and can be recalled even after it has
been presented to the superior. It would be valid by reason of
devolution, if meanwhile the electors were to elect no one else
within the allotted time. It would also be valid by way of cession,
for to surrender one's right is not to elect ; and the electors could
unanimously give up their right on the condition that the supe-
rior choose one of those named. 2
The Council not only decreed all elections of regulars other
than by secret ballot null and void, but it also ordained that any
person who would allow himself to be created provincial, abbot,
or prior in such a way, is deprived forever of passive voice in
religion. The censure is not expressly inflicted upon generals,
and since it is a question of penalty, the election of a general by
public voting is indeed ipso facto invalid, but the general-elect
does not incur the censure. One is said to give permission to
one's election to a prelacy, who consents either antecedently or
subsequently thereto.
In a word the only point insisted upon by the Council of
Trent was that the elections of regulars should be by secret
scrutiny, in such a way, that the votes of the electors would
never become known.
In the Order of Friars Preachers there can be no question
of election by compromise or by common inspiration. The early
Constitutions 3 approve of the triple form contained in the chap-
ter "Quia propter." But the Roman edition says : "We declare
1 Passerini, De electione canonica, c. I, n. 64.
2 lb.
3 dist. 2, cap. 2, text. 1 .
30 CANONICAL ELECTIONS
this ancient form of election has already been abolished by the
Council of Trent, and in every canonical election of our Order
the decree of the Sacred Council must be observed." 1 And im-
mediately after this text is inserted an excerpt from the Chapter
of Bologna, 1564: "Regarding the execution of the Tridentine
decree, we command all our brothers that in future elections the
form here given must be observed. Let each of the electors write
the name of a candidate on a schedule or have it written, but the
elector's name shall never be written, and it shall not be revealed
either to the scrutineers or to the one confirming. Election by
common inspiration and compromise having therefore been abol-
ished, election by scrutiny must always be observed." From this,
then, it is clear that in the Order of Friars Preachers there can
be no canonical election except by scrutiny, and in order that for
the future the form of electing prelates in the Order would be
firm, stable and certain, the capitulars of Bologna not only or-
dained that every canonical election should be by scrutiny, but
they even decreed the form of such elections.
1 d. ii, c. ii.
CHAPTER III
Qualifications of Electors
The end of canonical election is to provide fit and worthy
prelates or superiors for ecclesiastical colleges. Hence bishops,
generals, abbots, provincials, local prelates, dignitaries of cathe-
drals, canons and the like are canonically elected, so that worthy
and competent prelates or ministers may be provided for various
ecclesiastical charges or functions. From this final cause, which
is the first cause, follows the efficient cause. And since election
is an act, its efficient cause are agents or electors, who to elect
validly, must be possessed of certain qualities, determined either
by common law, or by particular statutes of the different
churches or institutes. In the present chapter, we shall occupy
ourselves especially with an exposition of those qualities or con-
ditions, which electors must necessarily have in order lawfully
and validly to take active part in canonical elections.
Elections belong strictly speaking to the college or com-
munity for which a prelate is to be elected. 1 This ordinance of
common law has been adopted by the greater number of religious
orders, in which, according to the statutes of the respective or-
ders, either all the prelates — even local — are elected by the par-
ticular convents, as in the Order of Friars Preachers ; or pro-
vincials by provincial chapters ; or generals by a general congre-
gation, as in the Society of Jesus. Either, therefore, prelates are
not elected, but instituted by supreme authority, as for instance,
the pope very frequently institutes bishops, or if elected, they
are elected by those colleges over which thy are chosen to pre-
side, unless custom, privilege, or the will of higher authority
dispose otherwise.
Some canonists hold that at least three persons are required
to constitute a college. 2 Others, on the contrary, say that two
suffice. 3 The latter seems to be the more probable opinion, for
in the chapter "Nullus" 4 we read: "Let no presbyter be elected
in a church whose congregation numbers two or three, except
1 Cap. Congregatio 43. q. 7.
2 Sylvius, Cap. 1 de electione; Castell, de elect, c. 5, n. 43; Donatus,
tract. 4, q. 6, n. 3.
3 Innoc. Cap. dilecto ; Jo. And. c. statutum; Rodriq. II, q. 53, a. III.
Barbosa, c. 1. de elect, n. 3.
4 1, de elect.
32 CANONICAL ELECTIONS
by canonical election of the same two or three." In particular
law the statutes of each order must be observed.
In the Order of Friars Preachers no convent can elect a prior,
unless it has three vocals (Rome, 1601). Donatus 1 adds that a
general chapter cannot by its own authority establish contrary
legislation. The ordination of the Chapter of Valencia (1596)
which required that these vocals must have completed twelve
years from profession, was replaced by one of the Chapter of
Rome (1608) which reduced the requirement to six years. The
ancient discipline of the Chapter of Valencia was restored by the
Chapter of Louvain (1885), but again modified by the Chapter of
Avila (1895), which decreed that every priest has active voice in
all canonical elections, provided he shall have completed nine full
years from his first profession, and have satisfied the other con-
ditions required by law.
Camillus notes that where there are but three electors, they
cannot validly elect one of their own number, because the one
elected must have a majority of two votes, and this majority no
one of the three can obtain unless he elect himself, which is not
permitted and would render the election null.
Although at least two are required to constitute a college,
still the rights of an established college can continue in one alone.
If, for example, all the members of a college, one alone excepted,
should die, be excommunicated, or in some other way rendered
disqualified to elect, the one remaining could lawfully and validly
carry on an election, provided that he would not elect himself. 2
Hence if one or two of a college of three vocals renounce their
right, such renunciation can in no way prevent the one left from
voting, should he wish to do so. This discipline was approved
by a response of the Sacred Congregation of Bishops and Regu-
lars, August 21, 1690, which pronounced valid and confirmed an
election held in a convent of Ripano, that had been vetoed by the
provincial because, one of three vocals renouncing his voice, the
other two had conducted an election.
Having shown that a college of at least two or three mem-
bers is necessary to hold a lawful and valid election, we shall now
consider the qualifications or conditions required of vocals for
the exercise of their right to vote.
1. Natural law requires that an elector be in actual posses-
sion of the full use of reason. Hence natural law excludes those
who have not reached the age of puberty, the demented, those in
*n. 5.
2 Sylvius, electio I. n. 2; Hostiensis, c. 2 de post.
CANONICAL ELECTIONS 33
a state of perfect intoxication, those in such a state of anger as
to render full deliberation impossible. The demented or insane
may validly elect during a lucid interval, but lucid intervals must
not be presumed, for once insanity has taken possession of a per-
son, it is considered to be present always, unless the contrary be
proved. And if drunkenness or anger does not destroy the free
use of reason, neither will either of these vices ipso facto irritate
an election. Just as for contracts or promises, so also for canon-
ical elections, that deliberation is necessary, which is required
to constitute a mortal sin. 1
The infirm, aged, blind, deaf, and the like are not unqualified
for the exercise of active voice, since they can freely deliberate
on the one to be elected. The blind, however, are counselled to
renounce their right, and Sigismund extends this counsel to the
deaf, so that they may act with a safer conscience.
II. Electors must be ecclesiastics, that is, clerics or relig-
ious, and not laymen. In elections of ecclesiastical prelates, the
vote of a lay person is not only null, but it invalidates such elec-
tions. Although a layman may exercise suffrage in canonical
elections by special papal privilege, they can never acquire it by
custom. 2 Laymen may also be admitted, not to take active part,
but to defend and protect the electors, or to see that the form
is observed.
III. Only those who compose the college or community to
be provided can be electors, for since election belongs per se
primo to a college, it follows that they alone can elect, who are
assigned to the college.
In the elections of regulars only those professed enjoy active
voice, the others, not yet incorporated into religion, are not
strictly speaking religious. Tacit profession is sufficient, for he
who is tacitly professed, is lawfully professed, and is a member
of religion provided it is evident he has completed a year of pro-
bation according to the Council of Trent. 3 Religious can elect
prelates for those institutes only in which they were professed.
If a religious pass to another order he cannot take part in its
elections before his profession, and according to some he does
not acquire active voice even after his profession. 4 It is further-
more required that the elector belong to that body in the con-
1 Antoninus, Cajetan, Sylvius.
= D. Antoninus, I. tit. 16, c. 11; Hostiensis, de elect, n. 5; Donatus,
3, tract. 4, q. 4.
''Layman, IV, tract. 2, c. 12, n. 3; Lezana, v. electio, n. 2.
4 electionibus, ex Clem.; Castell. c. 5, n. 58.
34 CANONICAL ELECTIONS
vent or monastery, in the general or provincial chapter, in the
congregation or college whose office it is here and now to elect.
Wherefore chaplains or perpetual beneficiaries of a cathedral,
who are not members of the chapter, are not admitted to canon-
ical elections. Lastly, to be a legitimate elector, a religious must
have become so in accordance with the particular statutes of his
order or institute.
Thus in the Order of Friars Preachers, to be an elector for a
conventual prior, or for his companion to a provincial chapter,
one must have been assigned to the convent in which the election
is to take place two months before date of said election. There
are, however, some exceptions to this doctrine, which will be
given below.
From what has been said it follows that the religious of one
convent cannot take part in the elections of another, and that a
prior or local prelate of one convent cannot vote for a prior or
prelate in another except by special privilege. In accordance
with this statute of common law the Constitutions of the Order
of Friars Preachers decree that a vocal or prior of one convent
has no voice in the elections of another, unless he shall have been
sent to the other as vicar of the election. 1 And since generals
and provincials belong to no convent in particular, they also have
no voice in the elections of conventual prelates, although accord-
ing to the particular statutes of some orders they may institute
said prelates. The general and provincials of the Order of Friars
Preachers do not enjoy suffrage in conventual elections, but it
pertains to them to confirm these elections, and in case of devo-
lution to institute local prelates.
The vocals cannot of themselves admit an outsider to take
part in an election, because a college has no power of conceding
suffrage to any one, who does not already possess the faculty by
papal concession. 2 This doctrine is not admitted by all, though
the majority of canonists agree in this that the right of exercis-
ing active voice may be prescribed by custom. And since such
a custom is contrary to common law, a prescription of forty years
is required to establish it. Moreover, to prescribe a custom
against common law, a colored title at least is also required. To
prove this custom it is not required that the right of voting has
been exercised many times during the forty years, for one act
alone suffices when the one elected possesses the benefice for
1 Passerini, De elect, can., c. 10, n. 16.
2 lb. n. 17.
CANONICAL ELECTIONS
35
forty years. 1 An outsider, having once prescribed the right of
suffrage, may not be ejected from an election, but should be sum-
moned. But if it chance that his vote is not numbered with the
others, the election is not vitiated.
IV. The fourth condition requires electors to be present in
the particular place in which the college is congregated to hold
the election. For since election belongs per se to the college, no
elector can take part in it unless he is collegiately present, where
the college is to hold the election.
Common law forbids absent capitulars to send their votes in
writing. Some canonists, however, assert that contrary. 2 Others
say that a vote sent by sealed letter is not against the substance
of the law, and base their opinion on this that in the Congrega-
tion of Saint John the Baptist in Portugal every religious sends
by letter his vote for the election of a general. But these con-
trary opinions cannot be admitted, for the true doctrine is clearly
expressed in the chapter "Si quis justo" : 3 "An absent capitular
cannot send his vote by letter, because votes must not be ex-
pressed previous to the scrutiny, but cast secretly and separately
in the scrutiny itself." The mode of election practiced in the above
named Portuguese Congregation adds no strength to the con-
trary opinion, for this was done according to a particular statute
confirmed by papal authority. Custom legitimately prescribed
could also permit suffrage in writing. 4 But aside from privilege
or custom, absent capitulars cannot send their votes in writing,
even with the consent of the chapter. 5
The infirm, who are confined in the convent of election, have
the right to vote, and the scrutineers should go to them, and
receive their votes according to canonical form. Sigismund con-
tends the same holds for those who are at a distance from the
cloister, in the city for example. But others think that such
electors should send a procurator. 6 We prefer the latter opinion,
for it seems unreasonable that — the electors assembled and all
things in readiness — the scrutineers should be held to go to the
city to receive the vote of an infirm elector. But in such cases
custom and the particular laws of each college must be observed.
In the Order of Friars Preachers all who are not present in
the convent of election are considered to be absent. 7 Hence the
1 Rota, decis. 548, n. 6, par. 5.
2 Azorius, L. 13, c. 10, p. 2.; Reiff. L. 1, t. VI, n. 106.
3 De electione in VI.
4 cap. fin. de consuetudine.
5 Sigis. dub. 13, n. 1; Castell. c. 5, n. 65; Barbosa, n. 17; Donatus
tract. 4, q. 17.
"Boerius, Castell, Mandag, Sylvius.
T Consti. n. 546.
36 CANONICAL ELECTIONS
scrutineers are held to go only to those infirm who are confined
in the convent of election. Some extend this to all electors who
though present in the convent of election, are nevertheless
through a just and lawful reason unable to be present in the
election chamber. 1 Wherefore in this Order only those electors
enjoy the right of active voice who are personally present in the
convent of election.
Electors legitimately absent do not, however, want for a
means of casting their votes, for common law permits them to
be present by proxy. The chapter "Quia propter" lays .down four
conditions on this point : 1° the absentee himself must constitute
the procurator ; 2° he must be legitimately detained ; 3° he must
confirm his reason by oath, if the college so desire ; 4° the proc-
urator must be a member of the electoral college. The chapter
"Si quis justo" adds three conditions more to those already given:
1° the absent elector may institute several procurators, provided
that he institute them in solidum ; 2° the procurator must cast
the two votes for the same candidate, unless the mandate was
given for a certain person — in which case he may cast his own
vote for the candidate of his choice ; 3° if no one from the college
will accept the procuration, he cannot send an outsider without
the consent of the chapter, nor can he on this account send his
vote in writing.
A few things are to be noted concerning these conditions.
He is considered absent, who is so distant from the place of elec-
tion, that the scrutineers are not held — according to their re-
spective statutes or customs — to go to him personally to receive
his vote. Procurators can be sent by those absentees only, who
are detained in a place to which a procurator can be conveniently
summoned. A vocal remaining in a place to which a procurator
cannot be conveniently summoned, loses the right of active
voice, and need not be advised of an approaching election. 2 But
he always has the right — even though the summons to election
has already been given — of acceding to a place, whence he may
elect or summon a procurator. Impediments constituting legiti-
mate detention from the place of election would be grave illness,
deadly enmities, imprisonment, citation to a higher tribunal, and
the like. Moreover, the impediment must be such, that even at
the time of election it would prevent his personal appearance.
If a procurator is admitted without an oath, the chapter thereby
1 Tabien., Castell.
2 Passerini, lb. c. 10, n. 38.
CANONICAL ELECTIONS 37
renounces its right to make exception to the reason of the vocal's
absence. The college, if it please, may admit a procurator of one
not detained by an impediment. 1 If the vocal should die before
the election takes place, the office of procurator ceases, but if the
electoral body, unaware of the vocal's death, admits the vote by
proxy, the election is valid. No capitular is bound to act as
procurator for an absent elector, and if an outsider is instituted,
the college may refuse to admit him, if it sees fit. Although a
procurator cannot cast his own vote for one candidate, and that
of him whose procurator he is for another, unless the procura-
tion has been given for a certain person, still if two candidates
are equally eligible, he may in conscience cast one vote for each,
unless this be forbidden by law ; if, however, the two candidates
are of unequal merit, the procurator is bound to cast the two
votes for the more worthy. Procurators who do not belong to
the college must have all the qualifications required of vocals.
A procurator may sub-delegate if this faculty be conceded in the
mandate, otherwise sub-delegation is doubtful and uncertain.
When several procurators are instituted in solidum, "melior est
conditio occupantis"; if two or more should reach the electoral
chamber at the same time, that one is to be admitted, whom the
chapter or majority of the chapter agrees upon, if the chapter
can come to no agreement, then the one first named in the man-
date is admitted.
All absent electors can elect a procurator unless prohibited
by particular statute. The Sacred Congregation of the Council
declared valid elections by proxy in religious institutes, unless
otherwise ordained by the particular laws of the institutes. 2 In
the Order of Friars Preachers absent vocals are forbidden to
elect either by letter or by proxy.
V. Electors must be in sacred orders, in those of the sub-
diaconate at least. This condition excludes two classes of per-
sons from elections : lay brothers and clerics not in sub-deacon's
orders. Under the name of lay brothers we do not include monks
or religious, who are deputed to choral duties and the divine min-
istry, for in ancient times these monks — even though there
chanced to be priests or clerics among them — always elected their
abbots. Neither do our remarks refer to those religions, mil-
itary orders, for example, in which lay religious conduct the elec-
tions, but only to ecclesiastical colleges in which clerics are ap-
pointed to celebrate the divine mysteries.
1 lb. n. 39.
2 lb. n. 40.
38 CANONICAL ELECTIONS
This condition was prescribed by the following decree of
the Council of Trent: 1 "For the future no one in cathedral
churches or secular colleges shall have a voice in chapter — even
if freely conceded by others — unless he be constituted in the
order of subdiaconate at least." Some authors contend that this
decree includes institutes of regulars, first because the decree
speaks absolutely of all ecclesiastical colleges, and secondly be-
cause this is the general practice of religious orders. 2 But others
hold the opposite, and base their opinion on a declaration of the
Sacred Congregation of the Council (May 22, 1577) that religious
even though not in sacred orders could have voice in elections,
since the Tridentine decree did not include monasteries of regu-
lars, but only their cathedral churches. 3 However, in this point,
as well as in others, the particular laws and customs of each
order must be observed.
Before passing to the next condition, we shall speak briefly
on a few points that are frequently controverted among canon-
ists. Although some hold that lay brothers and clerics not in
major orders cannot by custom prescribe active voice in canonical
elections, 4 still the opposite seems more probable. For the chap-
ter "De consuetudine" says that custom reasonably and legiti-
mately prescribed derogates from a law. 5 For what can be de-
stroyed by a just law, can be destroyed by a just custom, which
is equivalent to a just law. Secondly a cleric who during an elec-
tion satisfies the required conditions — in respect to age, reception
of orders, and the like — must be admitted to the election, but the
electors are not held to await such a person's becoming qualified. 6
This is extended to one who by papal dispensation has been or-
dained before the required age. It also holds for those who have
been surreptitiously and illegitimately ordained. 7 But those thus
ordained are ipso facto suspended, 8 and hence must not be admit-
ted until the suspension shall have been removed. Thirdly, a
capitular having the power of jurisdiction, but not of orders, can
transact those matters of election which pertain to the jurisdic-
tion of his office, although he cannot vote in the election itself,
1 sess. 22, cap. 4 de reform.
2 Sylvius, electio I, n. 3; Suarez II, c. 4, n. 5.
3 Tab., electio I, n. 5; Rodriq. II, q. 52, a. 5.
4 Barbosa, c. 2, n. 3; Donatus, q. 6, n. 5.
°Panormitanus, lb. n. 9; Sanchez, 1. 7 de mat., d. 4, n. 14; Suarez,
7 de legibus, c. 19, n. 14.
6 Const. D. II c. II.
' Clem. 2 de aetate.
8 Pius II. "Cum ex sacrorum,."
CANONICAL ELECTIONS 39
nor be present therein. Wherefore, in the absence of the dean,
the archdeacon, even though not a sub-deacon, can convoke the
chapter, propose what is to be done, and receive resolutions, for
these things are offices of jurisdiction and not of orders. Like-
wise in the Order of Friars Preachers a vicar sent from one con-
vent to govern another — passing over for the present the two in-
stances in which he can be sent with active voice — assembles the
chapter, gives the necessary instructions, absolves the vocals
from excommunication, when necessary, and in fine does every-
thing which pertains to his jurisdiction. A sub-prior will act in
like manner, if it chance that he has no voice in the election
(Rome, 1601). Finally, one admitted to a chapter of canons by
dispensation, is not thereby dispensed to receive sacred orders ;
hence one so dispensed, does not in virtue of this dispensation
acquire active voice in election. 1
VI. Vocals censured with sentence of excommunication are
also deprived of active voice. Excommunication is either major
or minor. The latter prohibits the reception of the sacraments,
and no longer exists since the publication of the Constitution
"Apostolicae Sedis." 2 The former cuts a guilty christian off from
the Church and deprives him of its spiritual favors. Those cen-
sured with major excommunication are divided into two classes :
according as they are to be shunned (vitandi), or tolerated (tole-
rati), or, in other words, according as they have or have not been
formally pronounced excommunicated by the Church.
Those to be shunned cannot take part in elections, and were
they knowingly admitted, the election would be ipso facto null
and void. Were such a person admitted in good faith, the elec-
tion would be valid, provided his vote did not decide the election.
It would likewise be valid if he could not be expelled without
grave danger or scandal. But in this case, the electors must pro-
test before witnesses, publicly, if possible, against his presence,
and declare his vote will not be considered. 3 If the electors are
not certain that said person has been formally censured, they
cannot eject him from the chapter, because in doubt every one
must be left in peaceful possession of his rights.
In regard to a tolerated excommunicated person, if no one
makes exception to his being present, the election is valid, and
cannot be annulled. The vocals commit no fault in admitting
him, for they are not obliged to avoid one whom the Church tol-
'Rota, June 23, 1606.
2 cf. S. C. S. O. ad IV. Jan. 6, 1884.
3 Sylvius, electio, n. 17.
40 CANONICAL ELECTIONS
erates. Moreover, election being an act of public office, what-
ever is done by a tolerated excommunicant is sustained by the
Church. Wherefore, if all the electors are thus excommunicated,
the election is valid, for excommunication does not deprive a per-
son of office or jurisdiction until a formal declaration has been
made to this effect. The election is also valid, if conducted by one
vocal only, and he a tolerated excommunicant. 1 The same holds
if an exception of excommunication is opposed after the election
has been concluded. If the exception were interposed prior to
the election, the election is voidable. If it is evident, or even
doubtful ,that the election was decided by the excommunicant's
vote, it must be cassed ; but if it is certain that his vote in no way
decided the election, said election must be declared valid, and
sustained. If, in this hypothesis, particular statutes require un-
animous consent for a valid election, one opposing vote of the
excommunicant would not invalidate the election, for the candi-
date would have received the unanimous vote of all the qualified
vocals, which alone constitutes a unanimous election.
In the election of a Roman Pontiff excommunication does
not nullify, even though every elector be excommunicated. 2 To
avoid the danger of schisms in the Church, it was most wisely
decreed that exceptions of excommunication cannot be resorted
to in papal elections.
In the Order of Friars Preachers no excommunicant should
be deprived of active voice, unless he has been pronounced ex-
communicated by judicial sentence, but an exception may be
made against him. y The electors can and should eject a notorious
excommunicant, if this can be done without scandal, but they
are not bound to do so. 4 The excommunicant himself sins in
taking part in an election.
VII. Suspension is another censure which deprives a vocal
of the right of exercising active voice. It is a censure which de-
prives a cleric, wholly or partially, of the power of orders, office,
or benefice. A person simpliciter suspended is one who is sus-
pended from office and benefice, such a one, therefore, cannot
vote in canonical elections. The same is true of him who is sus-
pended from office, for by suspension from office we understand
suspension from all clerical exercises. Suspension from one par-
ticular office, however, does not prevent one from taking part in
1 Suarez, sec. 2, n. 3.
2 Pius IV. "In eligendis"; Greg. XV. "Aeterni Patris"; Pius X.
"Vacante Sede Apostolica."
3 Const, n. 521.
4 Passerini, lb. n. 83.
CANONICAL ELECTIONS 41
elections. Suspension from a benefice does not deprive an elector
of his right to vote, for this species of suspension takes from a
person the right of receiving the fruits of a benefice, but in no
way interferes with the right of election which is an official act.
Suspension from orders does not prevent one from electing, be-
cause election is not an act of orders, but of jurisdiction. 1 The
discipline given in the preceding section for excommunicants —
both tolerated and those to be shunned — obtains also for those in
like manner suspended. 2 Neither major nor minor suspension
deprives a vocal of the right of suffrage. To sum up only sus-
pension simpliciter from office and from election for a particular
reason deprives one of active voice, suspension from a benefice
or from orders do not. A suspended vocal sins in exercising
active voice, of which he has been deprived.
VIII. Not only excommunication and suspension, but also
interdict takes away the right and faculty of voting. 3 And since
interdict is an ecclesiastical censure, and the chapter "Ad evi-
tanda" speaks universally of censures, what has been said of ex-
communication is proportionately understood of interdict, namely
that an interdicted elector not formally so declared by judicial
sentence, validly exercises suffrage, though he sins in so doing.
We shall speak later of election held in interdicted places.
IX. The ninth condition excludes from elections one who has
incurred irregularity. 4 Others, however, hold contrary. 5 Both
parties base their opinion on a text in the chapter "Is qui," which
states that he who celebrates in an interdicted place incurs irreg-
ularity, and thereby becomes disqualified and should not be ad-
mitted to elections with the others. The negatives apply this
doctrine to all species of irregularity, while the affirmatives re-
strict it to that irregularity alone, which is incurred by celebrat-
ing in an interdicted place. We prefer the second opinion, for
since irregularity impedes only the execution of orders, and not
of jurisdiction, neither does it per se nor consecutively impede the
act of electing which is not an act of orders but of jurisdiction.
Hence we think it more probable that irregulars can exercise
suffrage, except in cases where they have incurred irregularity
by celebrating in an interdicted place, or have become infamous,
,or have been condemned of homicide. 6 In these cases the priva-
'Ib. n. 95.
2 Suarez. V, disp. 26, sect. 2, n. 2; Barbosa I c. 19, n. 23.
3 Hostiensis. lb. n. 7; Sylvius, q. 4.
4 Sylvius, Miranda, Layman, Barbosa, Donatus.
6 Suarez, Bonacius, Sigismund.
•Const. Pius II.. Pius V., Sixtus V.
42 CANONICAL ELECTIONS
tion of active voice is not by reason of the irregularity, but a
penalty annexed. 1 Moreover, even in these cases the irregularity
must be formally declared by judicial sentence, before those who
have incurred it can be excluded from an election. In the Order
of Friars Preachers all who have incurred irregularity in any way
are deprived of active voice (Narbonne 1354).
X. In addition to the above requirements, electors must also
have all the conditions required by the particular statutes of their
various colleges.
In the Order of Friars Preachers several conditions are re-
quired by particular statutes for conventual suffrage: 1° Vocals
must be assigned to a convent two months previous to the va-
cancy of the priorship. The two months begins on the day when
the assignation is read publicly in the convent ad quern. To
elect a socius to a provincial chapter, the vocal must be assigned
to the convent two months before said election takes place. This
requirement is not necessary: (a) in case of the sudden death
of a prior. Likewise, when the office becomes vacant either by
the death, removal or resignation of the prior, the subprior ac-
quires active voice, even though he has been assigned to the con-
vent for less than two months ; (b) when a vicar has been sent
by the provincial to conduct an election. A vicar may be thus
sent only in two cases : when there is a great dissension among
the vocals, or when their incompetency is such that no one among
them knows how to direct the election proceedings; (c) when
a lector (primarius vel unicus) has been appointed to take charge
of the studium, or when an assignment has been made by the
definitors of the provincial chapter ; (d) when a vocal who has
been prior of another convent, returns to the convent of his for-
mer assignment on the expiration of his office ; (e) when a vocal
two months previous to election is assigned to another convent
as prior or for any other office, he retains his voice in the convent
a quo until a new prior is elected, confirmed and installed.
2° They must have completed nine years from first profes-
sion and have been ordained priests (Avila, 1895). Lay brothers
who are transferred to the clerical state, do not acquire active
voice until twelve rears from the date of transferral (Valladolid,
1605; Rome, 1629).
3° They must have completed their studies, and have re-
ceived approbation for hearing confessions unless an election
occurs within six months from the completion of their studies.
5 Passerini, lb. n. 105.
CANONICAL ELECTIONS 43
4° They cannot by reason of a new assignation vote twice
or more in the same year. Neither can they who renounce their
vote in one convent elect in another under pretense of a new as-
signment. Exception is made for regents, lectors, masters of
studies, and sub-priors, not however for lectors of cases of
conscience.
5° A prior who, during his term of office, is assigned by sim-
ple assignation to the convent of which he is prior has no vote in
the election of his successor until two months after the expira-
tion of his office. If during his office he be assigned to another
convent, he can take no part in the elections of this convent unless
he has served the convent in good faith for two months after the
completion of his priorship.
6° Before brothers of one province can vote in another they
must have been assigned for a year, or at least the greater part
of a year in the province in which the election is to take place.
There are two exceptions to this discipline : the first is when a
brother of one province is affiliated to another, he immediately
acquires active voice, provided he has the other requisites of
common law and particular statute. The second case is when
brothers go from Spain to the Indies, if eligible by law, they ac-
quire voice as soon as they shall have reached those provinces
(Rome, 1589).
7° Vocals must not remain outside the cloister, for those
dwelling outside the cloister under any pretext whatsoever —
even with permission of superiors, lose active and passive voice.
Therefore, those raised to dignities outside the order, or who
have received benefices, no longer enjoy suffrage. This must
be understood of secular benefices, not of those united to the
order. Hence pastors of churches connected with the order are
not considered outside the cloister while in their parishes by the
obedience of superiors. 1 But chaplains of secular churches and
of other orders, provided they remain outside the cloister day
and night, confessors of nuns, kings, and princes, theologians
of bishops and cardinals, and all others outside the obedience of
the order, even with permission of superiors, can neither elect
nor be elected (Rome, 1601). Those who remain outside the
order without the consent of superiors cannot exercise pass-
ive voice until ten years after their return (Rome, 1525).
Those who for any reason, except for the office of Sacred
Inquisition, permanently remain outside their convents for more
than six months immediately previous to an election, cannot
1 Camillus, c. 5, n. 8.
44 CANONICAL ELECTIONS
exercise active voice therein. Likewise, those who ordinarily
dwell outside, v. g\, in a vicariate erected with apostolic author-
ity, are not admitted to conventual elections (Lyons, 1891 ;
Vienna, 1898).
The Chapter of Rome (1553) declared that the master gen-
eral could dispense from the laws regarding the exercise of voice
by one outside the cloister. But a difficulty here arises, for the
law concerning secular benefices is not a constitution of the or-
der, but a decree of Sixtus IV (1478). And since a general can-
not dispense in papal legislation, we think that the general can-
not admit to voice a vocal holding a secular benefice, unless he
renounce it — although he can dispense him from remaining in
the convent. 1
XL Electors cannot vote in elections, if they have been
deprived of voice. But they should not be excluded before they
have been declared deprived by judicial sentence. 2 In the Order
of Friars Preachers this declaration must be made one month
before the time of an election, or when in the congregation of
vocals one is found to lack the conditions required for exer-
cise of voice.
One juridically deprived of voice should be excluded from
the chapter even with force, if necessary, except when he makes
a legitimate appeal, which suspends the sentence and its effect.
The discipline concerning those deprived of voice but tolerated
and those to be shunned, and likewise that of interposing excep-
tions is the same as that given above for excommunicated vocals.
XII. All who have been branded as infamous are excluded
from election. Infamy is the loss of reputation, and arises either
from law or from fact. Infamy of fact does not destroy the fac-
ulty of voting, for it very frequently is occasioned by ignorance,
sarcasm, imprudence, or hatred ; neither does it prevent one from
being a scrutineer. Those branded with infamy of law cannot
elect, for election is a legitimate act, and since legitimate acts
are prohibited to the infamous, it follows that one thus branded
cannot elect. Infamy of either kind is not incurred before juridi
cal sentence has been given to this effect. Hence before he has
been juridically declared infamous, an elector can validly take
part in elections, and does not sin in so doing.
1 Passerini, lb. u. 124.
2 lb. n. 135.
CHAPTER IV
Convocation of Electors
Having established the efficient cause of election in the pre-
ceding chapter, we shall now offer a consideration of its formal
cause. And since election pertains per se primo to a college, its
formal cause consists in the collegiate congregation of those
electors who compose the college. To bring this about, the
electors must be summoned. Hence a treatment of the formal
cause of election is an exposition of the doctrine regarding the
convocation of electors, to which this present chapter will be
devoted.
We cannot lay down a particular rule for the convocation
of electors, for this depends upon the diversity of elections and
colleges, their respective rights and customs. Wherefore, the
general rule is that the electors should be convoked by the one
upon whom this office is imposed by law or cvistom. If there
be no such law or custom, then the duty falls to him who is old-
est in office, unless there be another of greater dignity, in which
case the latter summons the electors.
In the Order of Friars Preachers the sub-prior ordinarily
convokes the electors. If a convent is without a superior, the
three capitulars oldest by profession elect a vicar, who convokes
a chapter for the election of a prior, unless other provision be
made by higher superiors. 1 If the sub-prior, whose duty it is to
assemble the electors three or four days after the vacancy of the
priorship, or the vicar, if there be no subprior, refuse to call the
chapter at the request of the majority of the vocals, the oldest
vocal may do so, and he unwilling, then the next oldest in relig-
ion, and so on until the election is begun. 2
The convocation of electors is an act of jurisdiction, hence
it always pertains to him who is the head or superior of the com-
munity, even though he may have no voice in the election. In
the elections of conventual priors, or of socii to provincial chap-
ters, the superior is the sub-prior, or he being absent, the vicar,
unless the provincial or general appoints a special vicar to pre-
side at the election. The superior of a provincial election is the
1 Const. D. II. C. II.
" Const, n. 548.
46 CANONICAL ELECTIONS
vicar of the province, but in the election of definitors of a pro-
vincial chapter, either the provincial himself or more commonly
the vicar of the province presides. If the provincial is not pres-
ent at the election of definitors of a general chapter, the presiding
vicar takes charge. When an election of a master general oc-
curs, the vicar of the order, even though not a vocal, is the pre-
siding prelate. Conventual priors cannot convoke a chapter for
the election of a socius, for special law forbids the prior to take
part in such elections.
Those vocals should be called to election qui debent, volunt,
et possunt commode interesse. 1 Therefore all those — whether
present or absent — who have the right to elect should be sum-
moned. If there is a custom of not calling the absent, it should
be observed. 2 A period of ten years suffices for such a custom
to obtain. 3 He who is in possession of election, even though his
right be not a true one, validly elects and should be called, for
the right of election follows possession. But mere possession
with common error will not suffice, there is further required a
colored title conferred by a competent superior. 4 Exceptions
made after election against such a vocal are of no moment, even
though his defects are made manifest, for at the time of the
election he was in peaceful possession by a common error and
colored title. For outsiders, however, possession, good faith, and
colored title are not sufficient, unless the possession were lawfully
prescribed by an existing custom. We shall return to this point
on a later page, where we shall explain more in detail who are
and who are not to be called in certain cases.
Every vocal is obliged to vote, and is therefore obliged to
be present at elections, for this obligation — supposing the insti-
tution of election — is based on natural law. A person possessing
a faculty necessary to the common good is bound to exercise that
faculty. This obligation does not bind per se under pain of mor-
tal sin or even venial ; it could bind either way, or it could acci-
dentally cease. Hence the gravity of the obligation is to be reck-
oned in proportion to its necessity to the common good. If, for
example, a heretic were to be elected bishop, an elector is bound
— whether the outcome be doubtful or certain — to do all in his
power to prevent the election, even at the risk of his life. 5
1 cap. Quia propter.
2 Sylvius, electio I, n. 6, d. 2.
3 Miranda, q. 26, n .6; Barbosa, I, c. 19, n. 89.
4 Cajetan, confessionis iteratio; Sylvius, Confessor 1 q. 19.
'Passerini, lb. c. 11, n. 22.
CANONICAL ELECTIONS 47
If an elector is in doubt as to whom he should elect, Sylvius
maintains he is not bound to vote at all. 1 We prefer the opposite
opinion, for the renunciation of a vote very frequently favors the
election of an unworthy candidate. Should he consider his right
to vote doubtful, he may renounce it. But if he is certain of his
right, he is bound to vote for the one he considers the most wor-
thy, for by renunciation, he at least exposes himself to the danger
of favoring an evil and unjust election. Under renunciation of
voice comes also the casting of blank votes, for these votes are
not computed, but subtracted from the whole number, and there-
fore affect the election, and could further the election of an un-
worthy candidate. Electors are therefore forbidden to cast such
votes, unless they are certain that by so doing, no injury will
accrue to the community.
The above principles are indeed true and should be adhered
to, still in practice it generally makes slight difference to the
community if one or two electors absent themselves from an
election. Hence renunciation of voice is not of its nature a mor-
tal sin, because it is not per se a grave injury to the community
were one of the electors to neglect his duty. Even the negligence
of the whole chapter is not per se a mortal sin, for it is not
strictly speaking a grave injury to the community, because in
such a case the election would devolve by law to the superior.
And since a prelacy is often better provided for by the institution
of a superior than by the election of a college, good could follow
from the neglect of a chapter to vote. But all things considered,
it is much better and safer for every elector to exercise his right,
because his not doing so could easily injure the common good, and
thus constitute a mortal sin were the injury of a serious nature.
The chapter "Quia propter" says that those should be sum-
moned to an election, who wish (qui volunt) to take part therein.
This does not hold when the interest of the Church demands their
presence, for the good of the Church preponderates that of elect-
ors. The superior of the election, therefore, the public good
demanding, can compel an elector to come to an election, and to
cast a vote de se useful, for to cast a blank vote is not to elect,
but to renounce one's voice. 2
The decree also states that those must be called who can
conveniently present themselves (qui possunt commode inte-
resse). It is important to note that the word conveniently re-
fers not to the convenience of the electors, but rather to that of
'Electio 2. n. 15.
2 lb. n. 23
48 CANONICAL ELECTIONS
the Church. 1 Wherefore, when the necessity of holding an elec-
tion is so imminent that there is no time to call the electors, or
when war, pestilence and the like prevents their being called, or
when by calling them serious injury would fall upon the Church,
no summons should be sent to them, notwithstanding any cus-
tom to the contrary. 2 For when a grave injury threatens the
Church, the custom of calling electors must not be observed.
Cases of doubt are to be settled by the superior of the election,
but to avoid subsequent difficulties he should consult the electors
present, and if possible the superior upon whom the confirmation
of the election depends. 3
Even though all the electors could be called without grave
injury to the Church, still it is not necessary to call those who
are at too great a distance. 4 The Gloss holds that all who are
in the diocese or province must be called. We hesitate to accept
this principle, for it can easily happen that a vocal, though within
the confines of a province, is nevertheless at a great distance
from the place of election, while another outside the province is
near at hand. It seems, then, we should rather consider whether
or not the absent vocal can be conveniently summoned. Special
laws determining the distances must be observed. In the Order
of Friars Preachers those vocals must be called who are not
distant more than one day's journey by ordinary means of travel. 5
The law makes no provision for travel by aeroplane.
Absent vocals whose whereabouts are known, should if con-
venient be called personally, unless custom ordain otherwise.
The citation should be made by letter or messenger, and for a
certain day. If the vocal does not arrive at the accustomed hour
for holding the election, the other electors may proceed at once
with the election. If his whereabouts are unknown the summons
should be left at his home ; if he has no fixed residence, then the
citation should be made by a public edict on the doors of the
church, which is situated in a place where he usually stops, or it
should be read publicly in the chapter. Finally, if his whereabouts
and accustomed place of dwelling are both unknown, and diligent
inquiry has been made, the summons is to be fastened on the
doors of the place in which the election is to be held, or to be
read in the chapter or at the public table.
1 cap. "Quod sicut," 28 de electione.
! cap. "Ecclesiarum," dist. 11.
3 Passerini, lb., n. 33.
4 cap. "Cum inter" 8, lb.
5 Avila, 1895.
CANONICAL ELECTIONS 49
Those present should be summoned orally or by the sound
of a bell, but the electors must be previously advised that this
bell is a summons to the election chamber. In some institutes,
as in the Order of Friars Preachers, the hour appointed for the
election is announced either in the refectory or in some other
public manner on the day previous ; where this custom prevails
individual intimation is unnecessary. If after a convenient time
from the ringing of the bell the capitulars do not present them-
selves, or if they are not at hand at the time appointed, the other
vocals may proceed without them, though it is better to notify
them that the chapter is awaiting their arrival. Should all the
electors be congregated in the same place, they may, if they
wish, proceed with the election, citation in such a case being un-
necessary.
If on the appointed day the election is postponed for a defi-
nite future time, the electors — even the absent — need not be
resummoned. But if it is postponed indefinitely a second cita-
tion must be sent to all. Should the person elected refuse his
consent, a resummons is not required, for every elector should
know that another election is to take place as soon as possible.
Although one citation is sufficient, still if the time and place
appointed be changed, the vocals should be notified. When a
time and place are fixed by law or custom, no intimation is needed,
provided that the vocals know that the office is vacant. 1
The superior of the election, not of himself but with the con-
sent of the majority of the electors, can abbreviate the time fixed
by law, and the day once having been fixed, the superior must be
present thereon, otherwise the vocals may hold the election with-
out him. In like manner the majority of the capitulars can re-
strict the prescribed time, and compel the superior to conform,
if he can give no just reason for not doing so ; but for a sufficient
reason he can prevent this anticipation and defer the election to
the lawful time. And since the law concedes to the superior the
right of determining the day within the time allotted for elec-
tion, his judgment — if reasonable — must be accepted by the elec-
tors, and only in the last hour of the prescribed time — which
passing, the election would devolve to higher authority — can the
electors proceed without him. In the Order of Friars Preachers
it is decreed that after the third or fourth day from the notifica-
tion of the vacancy of the priorship, the majority of vocals can
compel the superior of the election to convene the chapter, and
if he refuse, they may proceed without him. 2
* Panormitanus, n. 8, de electione.
2 Const, n. 548.
50 CANONICAL ELECTIONS
Electors who are disqualified according to natural law should
not be summoned. Those who have been juridically declared
unqualified must not be called, but rather expelled if they pre-
sent themselves. But vocals — no matter however notorious a
crime they may have committed — who will be deprived of voice
only by a condemnatory sentence (ferendae sentiae). should be
cited, for they still have the right to vote, and should any one
protest, the protestation is not to be heeded. But if the priva-
tion is to be imposed by a declaratory sentence (latae sententiae),
they should not be called, and actions for annulment are not ad-
mitted, for no injury was done by not calling them, since they
will be judged to have been deprived of voice at the time of elec-
tion. 1 He alone, therefore, whose inhability is so occult that he
cannot be convicted thereof, can enter a complaint (exceptio de
contemptu) if he is not called.
Note here that it is one thing to expel a vocal, and another
not to call him. The first takes away the possession of voice, so
when inhability requires judicial sentence, it is not lawful to
expel a disqualified vocal by private authority. Not to call a vocal
does not deprive him of his possession, but merely signifies he
has no voice. No injury is therefore done in the latter case, for
since he has already been deprived of voice by law, he has for-
feited the right to be cited, although he still retains the right not
to be expelled and deprived of his possession. For if such a per-
son has a right that his possession be not taken from him, he has
not for that reason a right that there be given to him something
he does not possess. 2 To avoid subsequent trouble it would be
better to call him, and admit him under protestation. But the
electors are not bound to await his arrival — even though called,
and he cannot enter a complain, because he has no right to suf-
frage. Some hold he can bring suit for expenses contracted, be-
cause the summons was an occasion of loss to him. 3
Should an elector renounce his his voice, and afterwards re-
gret his having done so, he may reclaim it, and should be cited
and admitted to the election, otherwise he can bring action
against it. Affairs transacted in the meantime are valid, but he
must have part in those that follow. For active voice is conceded
for the public good, and one renouncing something pertaining to
the public good always has the obligation of reassuming it.
If absent vocals — sufficient time having been given — do not
come to the chapter at the appointed time, they are presumed to
1 Innoc. c. Cum Vintonien ; Sylvius lb. n. 1 ; Barbosa, c. 2, de post. n. 4.
2 Sigismund, d. 10, n. 5.
3 Hostiensis, Panormitanus.
CANONICAL ELECTIONS 51
have alienated themselves from the electoral body, but if they
arrive before the completion of the election, they must be ad-
mitted to a part in the business which still remains to be trans-
acted. Those departing from an assembled chapter at the time
fixed for election are also presumed to have renounced their
voice, and if by waiting their return the election would devolve
to the superior, the remaining electors — whether they be many,
few or even one — can validly elect, and the departed cannot in-
stitute annulment proceedings. 1 Even in the election of a Roman
Pontiff, if but one cardinal from those cited remain, he can hold
the election. 2 When the allotted time has not expired, a vocal
for a just reason may appeal for an extension, and the other elect-
ors even though present in large numbers cannot elect, other-
wise he who appealed may bring suit against their action, and at
his instance the election is cassed. But no appeal can be made,
if the time allowed is about to expire.
In the Order of Friars Preachers those who do not respond
to the summons forfeit their right to vote. If, however, after
the capitulars assemble, the majority should depart, the minority
cannot proceed with the election until the full time granted by
the constitutions has expired. Should the majority of those as-
sembled disapprove of the time and place appointed by the supe-
rior, and depart from the chapter, the proceedings must be sus-
pended ; if they give approval they may recall their consent at
any time before the conclusion of election, even though the
scrutineers have already begun to collect the ballots. Although
the majority has not the right to neglect the citation, still it has
the right of not electing, if it seems good to them to defer the
election. 3
When all the vocals who have a right to be called to an elec-
tion are not called, a valid election requires an absolute majority
— or even two-thirds where law or custom demands — not of
those present, but of those both present and absent. Thus if
there were but twenty present of the thirty who have a right to
be present, the others having been contemned, it is not sufficient
for the elect to obtain eleven or even fifteen votes, but to be
elected validly he must receive sixteen, or where a majority of
two-thirds is required, twenty must be cast for him. Where the
one elected was nominated by the majority of the thirty the
election is valid in substance, but each of those contemned has
the right to file an exception against it. If one or more of those
1 Passerini, lb. n. 93.
^Ib.
3 Glossa, Const. D. II. C. II.
52 CANONICAL ELECTIONS
contemned arrive after the scrutiny has been announced, but be-
fore the publication of the election in the name of the college, a
new scrutiny must be taken, but the other transactions should
not be repeated. If one contemned arrive after the election has
been concluded, the chapter cannot resort to a fresh scrutiny. An
election does not by reason of vocals having been contemned de-
volve to a superior, but it pertains to the same electors with the
addition of those previously contemned.
The fact that one or more of the vocals are contemned does
not, according to canon law, render an election void, but it is
voidable at the instance of the person or persons contemned. Al-
though an election is invalid if the majority of the electors were
contemned, because — as shown above — the candidate in such a
case cannot obtain a majority of necessary votes, it is not, how-
ever, invalid for the reason that the vocals were contemned, for
the calling of vocals does not belong to the substance of election,
but its omission is unjust, because it is injurious and contrary to
their rights. No prelate inferior to the Holy Father nor general
chapter can make a law declaring ipso facto null an election, in
which one or more vocals were contemned. 1 But an election to
which all have not been summoned is not voidable at the instance
of any one other than those contemned, for the injury is personal
and it therefore pertains to that person or persons to enter an
action for annulment or to consider the election lawful. 2
Annulment proceedings must be filed before the confirmation
or institution of the candidate, unless it is manifest that the con-
temned vocal was unaware of the election and confirmation, in
which case the action should be admitted even after the confirma-
tion or institution. If he should die during the proceedings, his
successor may or may not continue the case. 3 The burden of
proof lies with the electors and not with the one contemned, be-
cause the presumption is that the latter would not have neglected
to exercise his right. The oath of a messenger is sufficient proof. 4
If the superior of the election cited the absentee in the ordinary
way by letter or messenger, but for one reason or another he did
not receive the message, he cannot institute annulment proceed-
ings, provided it is evident that the superior in good faith did
what he could to notify the absent vocal, for in this case he was
not contemned by the superior or electors. But if before the
1 Rota in Toletana Canonicatus, 18 Maii, 1584.
2 Passerini, lb. n. 120.
3 Samuel, n. 2.
4 Glossa in cap. Quod sicut.
CANONICAL ELECTIONS 53
election it becomes known that he was not called, and there is
time to defer the election, it must be deferred until he is notified
and has had sufficient time to reach the place of election. 1
The right of religious to enter suit for annulment is sharply
controverted. If a superior acts as judge, we think he cannot
forbid an elector to make an exception, because it is a right con-
ceded by law to all ecclesiastics, and confirmed by common cus-
tom ; hence regular superiors cannot deny such concessions to
their subjects. But if he acts as a prelate in virtue of the do-
minion, which is his from the vow of obedience, he can for a
just reason forbid his subject to file a complaint, because a sub-
ject is bound to obey the precepts of a superior, and to sacrifice
his own interest for the common good. 2
1 Passerini, lb. n. 129.
2 Samuel, Sigismund, Passerini lb.
CHAPTER V
Persons Eligible
The material cause of canonical election is the persons eligi-
ble for ecclesiastical offices or benefices. Those persons are eli-
gible who meet the requirements of natural and ecclesiastical
law, and also of the particular statutes relating to the office to be
provided. Our paper will be restricted to a consideration of those
qualifications demanded by common ecclesiastical law, since a
treatment of those exacted by particular laws pertains to the
various institutes whose statutes require them.
I. Natural law requires a candidate to be in full possession
of his reason, without which no one is capable of directing him-
self or others to their final end. 1 Hence infants and the insane
are excluded. Those who once suffered from insanity, even if
restored, are nevertheless still ineligible by positive law until they
obtain papal dispensation. 2 The election of such a person is not
only illicit, but ipso jure null. Habitual drunkards are also in-
eligible because they are accustomed to deprive themselves of the
use of reason. Demoniacs, — officially so declared — owing to their
defective liberty and weakness of mind, are likewise excluded,
but if freed from their infirmity, they become eligible — their
restoration, however, cannot be presumed but must be proved.
For proof one year of health is regularly sufficient, and even then
if any one makes opposition, a declaration of the bishop is neces-
sary. Epilectics are irregular and ineligible, but those rarely
subject to this infirmity are eligible. A lapse of thirty days since
a previous attack suffices to establish one's recovery. 3
II. No person is eligible for an ecclesiastical office unless
he is possessed of such knowledge as is required for a prudent
administration of the office. 4 The Council of Trent 5 decreed that
no one could be elected to office who was not acquainted with the
rudiments of faith and did not know how to read and write.
Positive law requires that all those promoted to ecclesiastical
benefices have a knowledge of the latin tongue. Bishops must
1 S. Thos. la 2ae. q. 1, art. 1.
2 Rodrig. II, q. 54, a. 5; Passerini C. 25, n. 6.
3 Turrecrem. I q. 2, c. 2.
4 S. Thos. la 2ae q. 76, art. 2.
" Sess. 23, c. 4.
CANONICAL ELECTIONS 55
have an adequate knowledge of all the sacred sciences, and un-
dergo a diligent examination therein ; they should be masters,
doctors, or licentiates in sacred theology or canon law. 1 At least
one half of the dignities in cathedral churches should be con-
ferred only on masters or doctors in theology, or licentiates in
canon law. 2 Pastors must know how to distinguish sins, to ex-
plain the gospel and sacraments. Regular prelates are not re-
quired to have that knowledge which bishops must possess. In
the Order of Friars Preachers a prior must be able to expound
the word of God and to speak latin. 3
Dispensations from defects of knowledge required by natural
or supernatural law cannot be obtained. The Supreme Pontiff
alone can dispense from that required by ecclesiastical law, and
only when there is a well-founded hope that the necessary knowl-
edge will be acquired within a short time. A bishop for a good
reason may confer a benefice on one of inadequate knowledge,
provided that he himself administer the benefice until the one
appointed acquires sufficient knowledge. 4
III. The nature of election in general requires the elect to
be a human being endowed with free use of reason, and possessed
of a knowledge necessary for the prudent exercise of the office to
which he has been elected. These conditions supposed, we now
logically pass to the treatment of those which pertain to ecclesi-
astical elections in particular, the first and foremost of which is
faith, for faith is the foundation of the whole ecclesiastical hier-
archy. Those who are wanting in faith are either they who have
never been baptized, or they who baptized have afterwards lost
the faith.
Persons not baptized are ineligible to all ecclesiastical func-
tions. For not being members of the Church, they are incapable
of ecclesiastical jurisdiction and administration, and hence if
elected to an ecclesiastical office, such election would be invalid
by divine law. Conversion to the faith, however, renders them
and their baptized descendents eligible. Special legislation of
some religious institutes exclude the descendents of Jews and
Saracens from all dignities. Clement VIII ordained that in the
kingdom of Portugal descendants of Hebrews to the seventh gen-
eration were ineligible to all cathedral dignities, the principal
collegiate dignities, parishes and benefices. Neophytes, or adults
1 ib. sess. 7, c. 1, de ref.
2 ib.
3 Const. N. 507.
'Palaus N. 12.
56 CANONICAL ELECTIONS
recently baptized, are also ineligible. The length of time in which
they remain in the class of neophytes is left to the judgment of
the bishop, and during that time he can for no consideration
grant a dispensation from the irregularity under which they
labor. 1 Catechumens are for a greater reason ineligible. But
children of neophytes and catechumens baptized before the use
of reason are eligible.
The election of a heretic, according to canon law, is null and
void. It can be validly confirmed by the Pope, but the confirma-
tion strictly speaking is illicit. 2 Those also who defend, favour
or harbour heretics, together with their children to the second
generation, are ineligible. 3 But a child is not to be deprived of a
benefice obtained before his father's relapse into heresy. Schis-
matics, if at the same time heretics, being subject to all the pen-
alties of heretics, are therefore ineligible. The same is true of
schismatics who are not heretics, and they remain ineligible even
if they repent and become reconciled to the Church. If the
schism be public, the pope alone can dispense ; if occult, bishops
can dispense by virtue of indult from the Council of Trent. 4
IV. Persons not born in lawful wedlock are ineligible to all
ecclesiastical orders, dignities or beneficies, unless legitimized by
subsequent marriage, or by dispensation for the reception of or-
ders. Even though legitimized in either of these two ways, an
illegitimate to receive the dignity of the cardinalate must obtain
a special dispensation. 5 The children of invalid marriages con-
tracted in good faith are considered legitimate. Illegitimate re-
ligious are eligible for the reception and administration of orders,
but not for prelacies or dignities, and neither do they become so
by religious profession except through dispensation. Common
law excludes them from prelacies alone, but particular laws of
the different institutes exclude them from many other offices. In
the Order of Friars Preachers they are barred from offices of
prior, sub-prior, vicar, definitor, preacher general, and master of
theology. 6 In the Order of Friars Minor they cannot be chosen
general, provincial, guardian, custos, conventual vicar, definitor,
procurator to provincial or general chapters, discreet, commis-
sary, visitor, but they may act as novice-master or confessor of
'Sanchez II, c. 28, n. 11.
2 Passerini ib. n. 68.
3 cap. Quicumque — de haereticis in VI.
4 Sanchez, Barbosa, Garzias.
5 cap. Cum in cunctis.
6 Passerini ib. n. 157.
CANONICAL ELECTIONS 57
nuns, provided there be no external jurisdiction annexed to the
office.
The Holy Father alone can grant dispensations for the pro-
motion of illegitimates to sacred orders, dignities, and prelacies.
Bishops have faculties to grant like dispensations for the recep-
tion of minor orders and benefices not having the care of souls.
Religious superiors by special provileges can dispense their ille-
gitimate subjects from ineligibility to prelacies. In the Order of
Friars Preachers only the general may grant these dispensations.
The pope dispenses for the office of general in religious orders.
Dispensations granted without a just cause by any superior ex-
cept the pope are invalid; 1 if granted by the pope, they are in-
deed valid, but he sins in granting them. 2 It is difficult to say
exactly what would constitute a just cause. Very many are given
by authors, such as public good, avoidance of scandal, knowledge,
good works, necessity, and the like. If vocals knowingly elect an
illegitimate they commit a grave sin and should be severely pun-
ished, and the person freely accepting the prelacy sins mortally
since he violates a precept of the sacred canons. The promotion,
however, is valid, but he is held to renounce it or to obtain a
dispensation; if he cannot do either without loss of reputation
to himself or his relatives, he may retain it. 3
V. In the fifth place health and strength of body are re-
quired for eligibility to office. Hence the blind, deaf, or dumb,
those suffering from a notable defect in sight, hearing or speech,
those whom infirmity prevents from performing the principal
duties of an office, those inordinately given to laziness, sleeping
or eating, those noticeably deformed or mutilated by absence of
fingers, hands or feet are unqualified. In the Order of Friars
Preachers, he who is unable to attend to choral and other com-
munity exercises cannot be elected prior.
The election of an infirm person is not ipso jure null, for we
can find no legislation to this effect. If he is morally certain that
his infirmity is such as will impede him in the exercise of his
office, the elect is bound to refuse his consent, and to do all in
his power to prevent confirmation. 4 But if certainty is wanting,
he may validly and lawfully accept the office. If after confirma-
tion infirmity should render him incompetent, he cannot be re-
moved from office, but a coadjutor must be given to him. In the
1 cap. Cuncta 9, q. 3.
2 Cajetan, dispensatio II. q. 96, a. 5.
3 Rodrig. t. 1, q. 13, a. 5.
* Passerini ib. n. 331.
58 CANONICAL ELECTIONS
Order of Friars Preachers, generals cannot be removed by a gen-
eral chapter on account of infirmity, for generals can be removed
only for those reasons given in the Constitutions, among which
infirmity is not mentioned, but they can be urged to resign by
the definitors of the general chapter, if the latter judge such
resignation to be expedient.
VI. Incorporation into the ecclesiastical state is required
before a person becomes eligible for canonical charges or func-
tions. Those elected to benefices must have at least first tonsure,
otherwise the election is ipso facto null. 1 The presentation of a
layman to a benefice is also null, unless he become a cleric before
the time appointed for conferring the benefice. Although Saints
Nicolas, Severus and Ambrose were elected to the episcopacy
from the laity, still these elections were by a special inspiration
of the Holy Ghost. It is not necessary to be in orders at the
time of one's having been elected, but the elect must be qualified
to receive the required orders within the time established by law.
Religious superiors have power either of jurisdiction or do-
minion, or both. Since jurisdiction is not per se required in a
superior, but dominion suffices, it follows that the clerical state
is not per se necessary. This is clear from the fact that abbesses,
though not enjoying jurisdiction, have the power of governing.
Likewise the early obbots, though not clerics, were superiors.
Superiors of religious communities must be professed in their
respective community, otherwise their elections are invalid. 2 The
pope alone can confer abbeys and benefices requiring administra-
tion on those not professed. This being penal discipline, is not
extended to collation or postulation. Nuns cannot be elected
abbesses or prioresses before they have completed eight or at
least five years from profession. 3 In religious orders of men,
common law ordains that one may be elected immediately after
profession, provided he meet all the other requirements. In the
Order of Friars Preachers no religious is eligible before he has
passed twelve complete years from profession. 4
For election to the episcopate one must have been in sacred
orders for six months. 5 Hence a sub-deacon may be elected
bishop. But an election of one not in sacred orders is not de jure
invalid, for in ancient times members of the laity were elected
1 Sixtus V. Const. Sacrosanctum.
2 Cone. Trid. sess. 14, c. 10 de ref.
3 ib. sess. 25, c. 7 de regular.
4 Valencia 1596; Naples 1600.
5 Cone. Trid. sess. 22, c. 2.
CANONICAL ELECTIONS 59
bishops in cases of necessity, and history tells us that Saint Am-
brose while still a catechumen was raised to the episcopate. But
since priesthood is required under pain of nullity before a bishop
can be consecrated, a bishop-elect must be ordained priest shortly
after his confirmation, for he must receive consecration within
three months from the date of confirmation under penalty of
losing the fruits of his see, and should he neglect it for another
three months he forfeits the see itself. 1
Religious superiors must have received tonsure at least.
Beneficiaries who are not ordained priests within a year of their
having taken possession of a benefice, ipso facto lost it. Deans
of colleges, priors, and conventual abbots are excepted from this
general assertion, since in such institutions there are priests by
whom the care of souls can be exercised. Here, as elsewhere, the
particular statutes of each order must be considered. In order to
possess passive voice in the Order of Friars Preachers, one must
be an approved confessor ; hence ordination to the priesthood is
also required.
VII. The seventh condition requires a suitable age in the
person to be elected. The age of seven years suffices to obtain a
simple benefice, if the founder expressly so declare. 2 The Council
of Trent laid down some general rules on this point: 1° no one,
even having first tonsure and minor orders, can obtain a benefice
before the beginning of his fourteenth year ; 2° no one can accept
an ecclesiastical dignity, unless he be of such an age as to re-
ceive the required order within the lawfully prescribed time. The
age of twenty-one complete years is required for the subdiaco-
nate, twenty-two for the diaconate. and twenty-four for the
priesthood. Fourteen years suffices for a canonry, to which the
care of souls is not annexed. 3° clerics of twenty-two years may
be elected to cathedral dignities, not having the care of souls.
The canon penitentiary must be forty years of age, but if no one
in the diocese meets this requirement, the bishop may choose the
one best qualified. This law also applies to collegiate churches.
4° to be promoted to a dignity having the care of souls, one must
be twenty-five years of age, unless the care of souls is committed
to a vicar. 5° bishops must have completed thirty years, cardinal
deacons twenty-two, cardinal priests and bishops thirty. A car-
dinal deacon must have been a cleric in minor orders for at least
one year, and must receive the diaconate within a year from his
elevation. A cardinal priest must be a sub-deacon at the time of
his elevation, and immediately be ordained priest.
1 ib. sess. 23, c. 2.
: Barbosa in Cone. trid. sess. 23, c. 6, n. 1.
60 CANONICAL ELECTIONS
Religious generals, provincials and abbots must be twenty-
five years of age. Conventual priors must have completed
twenty-four years, unless the care of souls is exercised by secular
priests, in which case twenty years suffice. Abbesses and pri-
oresses should be not less than forty years. Definitors having
the care of souls must be twenty-five years of age, but for elect-
ors of generals or provincials, the age required for profession suf-
fices. In the Order of Friars Preachers since no one acquires
passive voice before the completion of twelve years from pro-
fession, and since no one is professed until he has completed his
sixteenth year, it follows that no one is eligible before completing
his twenty-eighth year. Some provinces have special statutes in
this regard.
The pope alone can dispense from the age required by the
sacred canons. Ordinaries may dispense in virtue of apostolic
indult, which is sometimes granted them. Other elections of
those not having the required age are not void but voidable. Dis-
pensations for the reception of orders are rarely granted except
for priesthood. Bishops in virtue of indult may grant a dispensa-
tion for six months, the Sacred Congregation of Sacraments for
twenty months, the Holy Father for twenty-one months.
Advanced age that renders one incapable of exercising an
office renders one ineligible for such an office. 1 Canon law fixes
no age limit, hence this matter rests with the judgment of
superiors.
VIII. Excommunicated persons are ineligible to all ecclesi-
astical benefices, for the election, postulation, presentation or
collation of an excommunicate, even by the motu proprio of the
Roman Pontiff, is ipso facto invalid. 2 This is true even though
both electors and elect are unconscious of the excommunication.
The election of one unjustly though juridically excommunicated
is also invalid, but if unjustly inflicted, the election is valid.
Should the censure be pardoned before the confirmation, the elec-
tion still remains invalid, for what was invalid in the beginning
cannot be validated; in this case the confirmation would also be
invalid. If an invalid election could be made valid, the confirma-
tion would likewise be valid. When the pope confers a prelacy
on an excommunicate, the election is valid, because it is pre-
sumed that he previously absolved from the censure.
Persons absolved from excommunication may with dispensa-
tion retain their benefice or prelacy, which dispensation can be
1 S. Thos. 2a 2ae, q. 185, art. 4.
2 Cap. Postulastis.
CANONICAL ELECTIONS 61
given only by him who can confer the benefice independently of
a third party. "Wherefore a bishop cannot dispense : a) when the
collation of a benefice pertains to an inferior — unless he consent ;
b) when the benefice was conferred by the pope ; c) when a third
has the right of presenting a candidate. Those who knowingly
elect or present an excommunicate to an office are by law de-
prived of voice. Subsequent excommunication does not invalidate
an election.
IX. Absolute suspension from office or from a benefice ex-
cludes promotion to ecclesiastical dignities. One suspended from
office, though not suspended from his benefice, is ineligible to
acquire a new benefice. 1 Suspension from orders includes ineligi-
bility to benefices requiring the use of orders, but not from simple
benefices. Suspension from one order does not mean ineligibility
to a benefice that does not require the use of that order. 2 A per-
son suspended from a benefice may be elected to an office which
is not a benefice, and a person suspended from a benefice in one
church may be elected to one in another. But absolute suspension
from benefices renders one ineligible for election to an office.
The election of one simpliciter suspended from a benefice or an
office, is ipso jure void. Suspension from an office does not ren-
der election to a new benefice void, but rather voidable. 3
X. Persons under interdict are unqualified for the exercise
of passive voice. Whoever violates a local or personal interdict
becomes irregular, and therefore ineligible for benefices and prel-
acies. But he who unconsciously and in good faith violates an
interdict is not irregular nor ineligible for office. The election of
one violating an interdict is ipso jure null and void. 4
XI. Another impediment that renders the reception of ec-
clesiastical charges voidable is irregularity. We have no express
text to this effect, but we can easily deduce it from other texts.
For whoever is excluded from one thing is likewise barred from
everything connected with it. But irregularity prohibits the re-
ception and exercise of sacred orders, to which benefices are an-
nexed. It follows therefore that irregulars are ineligible for ec-
clesiastical offices or benefices. x\ll benefices do not suppose
sacred orders, still they do not admit a canonical impediment to
the reception and administration of orders. Irregularity incurred
1 Sanchez II, c. 2, dub. 15.
2 Passerini ib. n. 489.
: ' Suarez. disp. 28, sec. 3, n. 81.
4 Ib. n. 16.
62 CANONICAL ELECTIONS
without culpability after the reception of an order is not an im-
pediment to promotion to a benefice not requiring the exercise of
the prohibited order. 1 So also irregularity impeding episcopal
consecration is not an impediment for election to a religious
prelacy. 2
Although the common opinion of canonists is that the elec-
tion of an irregular is ipso pure null and void, we prefer the con-
trary, for there is no text expressly stating that it is ipso jure
null. From the principle : "whoever is forbidden to exercise the
acts of an office, is likewise forbidden to be elected to that office,"
we cannot deduce that such an election is ipso facto void, but
rather that it is voidable. Nor can it be said that because the law
prohibits the conferring of a benefice on an irregular, such a
collation would be ipso jure null and void. This latter opinion
is held by many authors of note, among whom are Innocent III, 3
Sylvius, 4 Suarez. 3 And in its favor is the fact that the pope in
conferring benefices does not dispense from irregularity, as he
does from censures, which proves that if irregularity rendered the
collation of a benefice ipso facto null, he would dispense from it. 6
Hence it follows that an irregular is not bound in conscience
to lay aside a benefice, and to retain it validly he needs only to
obtain a dispensation from the irregularity, which dispensation
he must in conscience seek as soon as possible. If the matter is
brought to the external forum, he should be deprived of his bene-
fice. In freely accepting a benefice, an irregular sins, being dis-
obedient to the sacred canons in a serious matter. 7
Irregulars may be elected discreets, electors of a general or
provincial, socii or definitors to general and provincial chapters,
for these offices require jurisdiction in the external forum only,
and do not flow from the power of orders, nor are they ordained
to it. Irregularity does not impede the power of jurisdiction, nor
its use. In a certain sense these offices could be called benefices,
still they do not per se or from their nature suppose orders, nor
are they ordained to them, as are simple benefices, which are
previous dispositions to orders. 8
1 Passerini ib. n. 507.
2 Suarez. IV de Relig. t. 8, 1. 2, c. 4, n. 25.
3 Cap. 6 de praeb.
4 Excommunicato 4, n. 4.
5 ib. sec. 2, n. 35.
"Passerini ib. n. 517.
7 ib.
s Sigismund ib. dub. 67, n. 3; Passerini ib. n. 520.
CANONICAL ELECTIONS 63
XII. Since honesty of morals is required for promotion to
benefices and prelacies, the brand of infamy renders a person
ineligible to these offices. 1
Infamy of fact, which is based on the rational and probable
conjectures of a number of reliable persons, impedes the worthy
acquisition of ecclesiastical charges, but does not render canonical
elections or collations null and void. For iniquitous persons are
not even by natural law incapable of jurisdiction, power or do-
minion ; on the contrary Christ Himself said of the wicked Phari-
sees : "The Scribes and Pharisees have sitten on the chair of
Moses. All things therefore whatsoever they shall say to you.
observe and do; but according to their works do ye not." 2 In
such elections all parties concerned sin grievously, but the elec-
tion, confirmation, or collation is not by reason of the infamy in-
valid, except when the pain of nullity is ipso jure imposed by a
particular statute. No one properly speaking can dispense from
infamy of fact ; it is removed only by penance. Bishops and
religious prelates can declare whether it is infamy or rumor,
whether it is still present or has been wiped out by penance. 3
Infamy of law, which by a decree of law brands a person as
infamous, deprives one of legal repute, that is, of one's right to
good repute. This is the primary effect, and from this proceeds
a secondary effect, which is ineligibility to legitimate acts. De-
spite many opinions to the contrary, it seems certain that the
moment a crime is committed, infamy of law takes away the
right to, but not the possession of, one's good name ; and it seems
too that the declaratory sentence of the crime is to be referred
to the moment when the crime was committed, so that from that
time, elections, collations, or acquisitions of benefices, and even
all legitimate acts are invalid. Exception is made for occult in-
famy and for acts of public office and jurisdiction, which are sus-
tained by title of public office in favor of the common good. Al-
though one who has incurred infamy of law ferendae sententiae
should not be elected, the election is not ipso jure null, and if
confirmed before a declaration has been pronounced, the con-
firmation is lawful — though the delinquent can afterwards be
punished according to the gravity of the crime, even with priva-
tion of the dignity. If the infamy is latae sententiae, the election
is ipso jure null, but until juridically pronounced it is tolerated
by the Church, and the confirmation prevails under title of public
1 Cone. Trid. sess. 24, c. 12.
- Matt, xxiii-23.
3 Suarez, ib. 4, sect. 1, n. 11; Sylvester v. infamia n. 7.
64 CANONICAL ELECTIONS
1
office, but by a subsequent declaration of the crime, the election,
confirmation, and all acts not pertaining to public office become
void. Infamy has no effect in the elections of the Order of Friars
Preachers until a juridical sentence has been given. 1
XIII. Privation of passive voice, juridically pronounced, is
also an impediment to canonical promotions. A superior cannot
deprive any one of passive voice from extrajudicial knowledge,
but he may refuse to confirm one whom he thinks unfit for an
office. It is only per accidens that electors- are bound in con-
science not to elect a person not judicially deprived of voice, for
example, if he is impenitent and manifestly unqualified, or by
reason of scandal, or to avoid contentions and injury to the com-
mon good. The person himself, even though ipso jure but not
juridically deprived of voice, is not bound in conscience to refuse
his consent to an election, for no law obliges one to the execution
of grave penalties before he has been sentenced to them. Ex-
ception is made for cases in which charity would bind him to
refuse his consent. 2
XIV. A person, whose election was at any time vetoed ow-
ing to a personal impediment, is ineligible. If the election was
cassed by reason of a defect either in the form or in the electors,
the candidate may be reelected in the same church or in another.
One rejected from election by reason of a personal impediment
contracts infamy of fact. It does not follow, however, that if a
person be rejected from one election, he thereby remains univer-
sally rejected from all future elections, for rejection may arise
from any one of three reasons : from a convicted crime, from a
presumed crime, or from defect of age, infirmity and the like.
The first two impediments are wiped out by penance, the third
by cessation of the impediment/ 1 In the Order of Friars Preach-
ers where superiors are not accustomed to state their reasons for
cassing an election, the electors should not elect one previously
rejected in some other election, unless they are sure that the re-
jection was occasioned by a defect in the form.
XV. If there are persons in a diocese or province qualified
for an office, outsiders should not be elected. But the election of
an outsider is valid unless a special law or custom render it other-
wise, and should be confirmed if there be no other impediment. 4
General chapters can abrogate contrary customs not approved by
1 Passerini n. 595.
2 ib. n. 606.
"cap. Super eo 12 de elect.
4 Cap. Cum inter 21.
CANONICAL ELECTIONS 65
apostolic authority. 1 In the Order of Friars Preachers, brothers
of one convent may be elected prior of another, and brothers of
one province may be elected prior or provincial in another prov-
ince, provided they meet the other required conditions. 2
Since the free disposition of benefices belongs to the pope,
he may confer them on whom he will ; other superiors must fol-
low special laws and customs. But should there be no one in a
diocese or province qualified for an office, the superior — notwith-
standing special laws and customs to the contrary — should select
an outsider, for the necessity of choosing the one best fitted for
an office is based on natural and divine law, against which positive
law or custom has no force. 3
XVI. The candidate must not be already assigned to an-
other office or benefice. We shall consider this condition later
when speaking of postulation.
XVII. No person can lawfully or validly elect himself. 4
Neither can any one present himself to a benefice. A father may
present his son and where there are several patrons, one may
present another. If a bishop confer a benefice on a patron, he
may accept it ; he may even request the bishop to confer it, for
he does not thereby present himself.
There is only one instance in which a candidate may elect
himself, namely by consenting to the election of himself by
others, thus increasing the number of votes so as to constitute
a majority. 5 But this does not hold where the form of the chapter
"Quia propter," or secret ballot must be observed, according to
which a candidate may not know he has been choosen by the
others before the publication of the scrutiny, and a vote given
outside the scrutiny is invalid. Hence this exception holds only
where election is by public vote, or where an accessus is ad-
mitted after the publication of the scrutiny.
In addition to the above conditions for eligibility, the Con-
stitutions of the Friars Preachers further require : 1° that a per-
son does not dwell outside the Order, even with the permission
of superiors, as explained above in the chapter on active voice.
Such a person cannot be elected until one continuous year after
his return, 6 and if he remained outside without the permission of
I Passerini ib. n. 656.
* Avignon, 1442.
II Passerini ib. n. 660.
4 cap. In scripturis 8, q. 1.
5 Cap. Cum in jure 33, de elect.
6 Rome, 1580.
66 CANONICAL ELECTIONS
superiors, he remains ineligible for ten years, except by written
permission of the master general. Apostates cannot be elected
to any office before twenty years from their return ; 2° that he
has not refused the office of novice-master, and that he be not
novice-master at the time of his election, unless with permission
of the provincial ; 3° that he does not immediately succeed a
brother-german ; 4° that lie be not visitor general or his com-
panion, or vicar of the election sent from another convent in case
of necessity ; 5° that he has never been prior in the convent of
election, or that six years have elapsed since that time ; 6° that
in an episcopal city and in a House of Studies he be a lector in
theology. In the first case the provincial may grant a dispensa-
tion, in the second the general.
CHAPTER VI
The Act of Election
When an election becomes necessary, the president must
summon the electoral body to some specified place, and for a cer-
tain day within the legal time-limit. The place does not enter
into the substance of election, still it should be held in a suitable
place. Episcopal elections must take place within the church or
its limits, unless there be a sufficient reason for holding it else-
where. 1 Papal elections held outside the conclave are invalid. 2
If the majority of electors, for reasons of personal convenience,
select a place' outside the church limits, the minority are not
bound to accede, but may appeal. If on the contrary, the cus-
tomary place is not safe, the minority, nay even one, may com-
pel the majority to choose a safe place. 3 It belongs to the presi-
dent to determine just what place within the limits the election
will be held. Should the electors conduct an election in an un-
suitable place, as in the home of a secular power, they sin mor-
tally, or at least venially, according to the degree of its unfitness.
The election itself is not ipso facto null, but it should be annulled,
for what is contrary to law should not obtain force. Clandestine
elections— those not held publicly and collegiately— are repro-
bated by law, and are null and void. 4 They are not ipse jure null,
but reprobated in this sense, that the clandestinity must be
remedied before they can be confirmed. Previous to an election
in the Order of Friars Preachers, the superior asks if the place
and time appointed by him be agreeable to all, and the majority
disapproving, the election does not proceed.
The time appointed for holding an election presupposes the
vacancy of the office or benefice in consequence of death, trans-
fer, resignation or deposition. A prelate cannot be deposed un-
less by the declaration of a superior, and if he appeals, the sen-
tence must be suspended. Consent to transferral or resignation
does not render an office vacant until it has been accepted by a
superior. Citation of vocals made before the prelacy is vacant
'cap. Quod sicut 28. de elect.
2 Greg. XV. "Aeterni Patris."
3 cap. Bonae 23, n. 1.
4 cap. Quia propter.
68 CANONICAL ELECTIONS
is null, and does not revive on the death or removal of a prelate.
Elections cannot be held prior to the funeral obsequies of a de-
ceased prelate, unless there be a reasonable cause, but whether
an election thus held should be annulled is greatly disputed. Reg-
ulars by privilege are not held to this last solemnity. 1
The time fixed by law for the election does not begin from
the vacancy of the office, but from the time of its becoming
known — the determination of which time, rests with the judg-
ment of the superior. Superiors are not held to notify the elect-
ors juridically of a prelate's death, for they are supposed to learn
of it by ordinary means, but if the office becomes vacant in any
other way, juridical notification must be given. 2
The time-limit differs for different churches and orders,
hence each should observe its own statutes and customs. Com-
mon law allows three months for the election of a bishop, 3 and
if not held within this time it devolves on the superior. Other
benefices should be provided for within six months. If the chap-
ter does not elect a bishop within three months, or if a bishop
does not provide for vacant benefices within six months provi-
sion in both these cases devolves to the metropolitan.
Religious orders, for the most part, follow their own particu-
lar statutes in this regard. In the Order of Friars Preachers
elections of conventual priors must take place within one month
from the knowledge of the vacancy, otherwise they devolve to
the provincial who must appoint a prior within three months.
A period of one year is given for a provincial election. If the
electors do not elect or postulate a provincial within this time,
and on the very day for which the electors are cited, the election
ipso facto devolves to the master general. If a provincial dies
or is removed in the first year of his office, and before Septua-
gesima, the vicar of the province must summon the vocals within
the coming Septuagesima, to a chapter to be held after Easter;
if he dies or is removed after Septuagesima, this convocation
must be made in the following Septuagesima. If he should die
or be removed in the last year of office, the vicar completes the
term. 4 In many provinces the day assigned for the election of
a new provincial is the Saturday before the second Sunday after
the Octave of Easter. 5 The election of a master general should
1 Lezana — Praedicatorum 7, n. 17.
"Passerini, c. 13, n. 7.
3 cap. Ne pro defectu.
4 Rome, 1841.
5 Const, n. 838.
CANONICAL ELECTIONS
69
be held on the vigil of Pentecost. If a general dies or is removed
after Pentecost, but before or on the feast of Saint Michael, a
new general must be elected the following Pentecost ; but if he
dies after the feast of Saint Michael but before Pentecost, the
election will not take place until the Pentecost of the following
v ear — unless other dispositions are made by the authority of the
Holy See, or unless the general dies in the twelfth year of office. 1
The general himself before completing his term gives due notifi-
cation to the vocals of an approaching election, except in case
of his death, when the vicar of the order issues the citation. 2
The election of a general devolves to the Holy See if not held on
the day fixed by law, unless grave necessity renders this impos-
sible. Definitors are elected any time during the provincial chap-
ter. A socius of a prior to a provincial chapter may be elected
any time between Septuagesima and the approach of the chapter
on a day assigned by the sub-prior.
Elections may be held on feast days, for they are extraju-
dicial acts. For a reasonable cause they may be celebrated at
night, there being no law to the contrary. Special law and cus-
toms requiring elections to be held during the day must be
respected.
On the appointed day the superior or president opens the
electoral assembly. Previous to the election of a bishop prayers
and supplications are offered. 3 These exercises usually consist
of a Mass of the Holy Ghost, reception of Holy Communion by
all the electors and an invocation of the Holy Ghost by the anti-
phon "Veni Sancte Spiritus" or by the hymn "Veni Creator." In
the Order of Friars Preachers a Mass of the Holy Ghost is
offered before the elections of generals and provincials, and in
every election an invocation to the Holy Ghost is made by the
antiphon "Veni Sancte Spiritus" and the hymn "Veni Creator."
A Mass of the Holy Ghost also usually precedes the election of
a conventual prior. If an election should be cassed or if a person
elected should refuse his consent, the Mass of the Holy Ghost is
not repeated before the subsequent scrutiny.
Mass of the Holy Ghost and reception of Holy Communion
do not belong to the substance of election — for there is no law
nullifying elections not preceded by these exercises — unless
special statutes prescribe them under pain of nullity. Neverthe-
less, to omit them is a grave or slight sin in proportion to the
1 lb. n. 753.
2 lb.
3 Cone. Trid. sess. 24, c. 1 de ref.
70 CANONICAL ELECTIONS
scandal occasioned thereby. In the Order of Friars Preachers
electors of provincials, conventual priors, or prioresses are
obliged to communicate on the day of election under pain of pri-
vation of voice ipso facto incurred. 1 Elections not preceded by
an invocation of the Holy Ghost and reception of Holy Commun-
ion by the electors are to be annulled if opposition is made. 2
The spiritual exercises over, the assembly proceeds, if neces-
sary, to verify the credentials of the electors. It is the office of
the judge appointed by the statutes or customs of different col-
leges to decide whether the vocals are here and now qualified to
vote. In admitting and excluding them the judge must proceed
according to law and not from fact alone. No one can be de-
prived of his right to vote unless it is juridically evident that he
does not possess the right. The judge cannot pass judgment on
credentials coming from a higher authority, hence he cannot
examine apostolic letters or pronounce sentence on their validity
unless deputed by the pope to do so. Opposition, however, can be
made to them until they are justified before the one commissioned
to examine them, — the burden of proof resting with the oppos-
ing party. 3 The same is to be said proportionately of the letters
of other superiors, which should be respectfully received. If they
are given with condition of justification, the vocal must justify
them before he can be admitted to vote. When, however, he pos-
sesses the right to vote by virtue of his letters, he is presumed
to have justified them. 4 Hence, one in possession cannot be
ejected unless his opponent furnishes clear proof that he has not
justified his credentials. If the letters are given absolutely, the
vocal is freed from the burden of proving them, and the chapter
cannot impede their execution, unless their falsity is evident.
In the Order of Friars Preachers before the electors proceed
to the election of definitors or to the celebration of a provincial
chapter, certain ones are appointed by the provincial or vicar with
the provincial council to examine the testimonial letters of those
coming to the chapter, but no power is given them to exclude
any one from active voice. 5 These examiners are called judges
of voice (judices vocem). Their authority extends only to the
examination of the letters which socii and priors are required by
law to bring to the chapter. The power of excluding those not
approved by these judges, rests with the president of the elec-
1 Samuel, Tract 1, disp. 2, n. 6.
2 Donatus III, Tract 1, q. 18, n. 11.
;; Passerini, c. 14, n. 60.
4 Rota, decis. 154, n. 2. coram Eminentissimo Ottobono.
5 Rome, 1650.
CANONICAL ELECTIONS 71
tion, who has full jurisdiction in this regard. 1 Neither have the
judges absolute authority in respect to the testimonial letters,
for the judgment of the more serious difficulties belongs to the
president and provincial council." They can deprive no one of
voice on account of any fault, nor declare any one deprived except
priors and socii for one of the three following reasons : because
they did not bring the prescribed testimonial letters ; because
the letters were false ; or because they were not sufficient to
meet the requirements of the law. 3 In provincial chapters they
can examine the title of the socius, and in general chapters those
of the definitors and electors. 4 All other matters concerning the
vocals pertain to the provincial and provincial council. The pro-
vincial or vicar can also examine the testimonial letters of the
priors and socii. Once the electoral body has been assembled,
messengers may not be dispatched to inquire whether the vocals
lawfully possess voice, but the election must proceed, and the
doubts — if there be any — are sent to the confirming prelate. 5
Then follows a discussion of the matters pertaining to the
election. This discussion is not essential to the election, except
where special statutes so prescribe. The voice of the electors, if
not already attended to, is now legalized. Then deliberations are
held concerning the time and place of election — in the Order of
Friars Preachers the president asks the vocals if the time and
place appointed are agreeable to them. Next there takes place
a frank and free discussion of the merits of the candidates. The
latter need not have previously made known their candidacy,
though they may do so. 6 The electors are free to propose and
sustain the candidates of their choice. If any one wishes to pro-
test against the election, the active voice of the vocals or the
passive voice of the candidates, his protestation or opposition is
now considered, as well as the replies to the same. The presi-
dent also makes a protestation that he does not intend to admit
unqualified, or to exclude qualified vocals from the election. This
having taken place, the president ad cautelam, then gives general
absolution from all censures.
These preliminaries over, three members of the assembly
worthy of trust are selected to examine secretly and separately
1 Passerini, lb., n. 67.
2 Sylvester — Judex, n. 1.
3 Passerini, lb., n. 73.
4 Ib. ( n. 70.
5 Fontana, De Elect, n. 3.
'Boudinhon, Cath. Ency.
72 CANONICAL ELECTIONS
the votes of all. These are called scrutineers, because they scru-
tinize the votes of the others. They are chosen by the majority
of the vocals, but custom can prescribe otherwise. In the Order
of Friars Preachers the Constitutions provide for their institu-
tion ; in the election of a prior or socius they are the sub-prior
and vicar or the two oldest vocals. 1 The same holds for the elec-
tion of a provincial elector. In the election of definitors of a
general or provincial chapter they are the provincial or vicar of
the province together with the prior and sub-prior of the convent
in which the election is held, or at least two of these three ; if
the prior and sub-prior cannot be present, then the two oldest
electors act as scrutineers. In the election of a provincial these
officials are the three oldest priors, in that of a general the three
oldest provincials.
The scrutineers are not to be elected according to the form
of the chapter "Quia propter," but by public suffrage when they
are not appointed by the superiors. In the Order of Friars
Preachers, if the sub-prior has no voice or if one of those ap-
pointed, even though present, is impeded, a fourth is elected by
public vote, 2 except in the province of Poland, where he is elected
secretly by decree of the general made at the request of the pro-
vincial. If the one impeded is not present, then the three oldest
present are chosen, this is also true when one of the oldest does
not wish to- act. Where there are but three vocals, two scru-
tineers suffice ; where there are but two, one suffices ; where
there is but one, none are required. In all other cases there must
be three. Although the form of election requires that there be
no more than three, still the election of a fourth, fifth, or sixth
though useless, does not vitiate an election. A general chapter
may prescribed, unless expressly forbidden, that a fourth be
elected, for the Lateran Council 3 forbade that a fourth be chosen
by the electors but not by superiors having the right to make
laws.
The Council of Trent decreed that in the election of all "su-
periors, temporal abbots and other officials, generals, abbesses,
prioresses and other superioresses," all should be elected by
secret vote and the names of the electors never published, and
that all elections otherwise conducted are invalid. 4 This decree
does not include the electors of bishops and perpetual abbots.
1 Const, n. 553.
2 Rome, 1629.
3 cap. Quia propter.
4 sess. 25 de Regul. c. VI.
CANONICAL ELECTIONS 73
The practice now is that generals, provincials and local prelates
are elected according to the Tridentine form, but other officials
are sometimes elected by public suffrage. In the Order of Friars
Preachers, generals, provincials, priors, definitors of general and
provincial chapters, the socius of a prior to a provincial chapter
and electors of provincials and generals are elected by secret
ballot, other elections are either by public or secret vote — not
however, by ballot, but with black and white beans,
A much disputed question here arises whether the Tridentine
decree admits of auricular scrutiny or whether the scrutiny be
necessarily by ballot. Some hold that the decree absolutely for-
bids auricular scrutiny, and that elections not conducted by bal-
lot are invalid. 1 They base their opinion on a statement made
viva voce to Cardinal Cribello by Pius V (May 12, 1562), in which
he declared that the mind of the Council prescribed secret vote
by ballot.
• But the majority of authors hold the contrary opinion, 2
which seems to be more probable. For it is generally admitted
that the discipline of the Lateran Council was not abolished by
that of the Council of Trent. But the former council merely
called for the appointment of three trustworthy scrutineers, who
should collect secretly and in quick succession the votes of all
the electors. 3 The Sacred Congregation of the Council also con-
sidered an election secret when three or four receive the votes
of the others. 4 The only extension the Council of Trent made to
the discipline of the former council is that the votes given
secretly in the scrutiny should never be published. But this de-
cision is not in the least repugnant to auricular scrutiny, for it
is one thing for the scrutineers to know the votes of the electors,
which the council does not forbid, and quite another thing to
publish them, which the council does forbid. To say that the
votes are published when known to the scrutineers is contrary
to the councils themselves, and also to the declarations of the
Sacred Congregation of the Council. Furthermore, the cited dec-
laration of Pius V is not sufficient for a contrary opinion, for
even granted that it be authentic, all viva voce declarations were
recalled by Gregory XV and Urban VIII. Another proof for our
opinion is that the Council of Trent declared that elections of
abbesses made by auricular vote to a bishop or superior listening
'Miranda II, q. 23, a. 15; Castell., lb., c. 4. n. 62; Donatus III, tract.
1, q. 6. n. 7. _ _,
2 Sigismund, Suarez, Garzias, Barbosa, Lavonus, Sc. Cone.
3 cap. Quia propter.
* Suarez IV, t. 8, 1. 2. n, 10.
74 CANONICAL ELECTIONS
at a small window were valid. 1 And since the Tridentine decree
includes the election of abbesses, we cannot say that other elec-
tions by auricular vote are invalid.
The publication of votes in the election itself destroys its
secrecy and makes it null and void. This publication would hap-
pen . 1° — if the election was conducted without scrutineers ; 2° —
if the vocals should make their choice known to the scrutineers
in a voice so loud as to be heard by the other capitulars ; 3° — if
the scrutineers were not members of the chapter; 4° — if when
announcing the result they should make known the names of the
electors ; 5° — if the electors' names were made known in the let-
ters of confirmation— for election continues until it has been con-
firmed. The election is also invalid if the vote of but one elector
is made public in the election, even with the permission of the
major part. If, however, the majority object to this publicity,
the election is valid, but the vote publicly given is invalid. But if
the one thus publicly voting repent of his misdeed, he may be
permitted to take part in the same election, provided he does not
vote for the same candidate. 2 Such elections are invalid even
though the vocal himself or the chapter be unaware of the defect.
Elections by ballot are invalid if any mark on a ballot or any
circumstance connected with it, will acquaint one or more of the
scrutineers with the name of the voter. In auricular elections
scrutineers may know the names of electors, but in elections by
ballot this knowledge is forbidden. The election is not invalid
when one or more cast marked ballots unknown to and without
the consent of the chapter. But if the chapter, aware of the fact,
withhold its consent, the election is neither void nor voidable,
though the unlawful votes must not be computed with the others.
For where the majority elects rightly, and the minority sins —
even in the form, this is not prejudicial to the election, unless
especially decreed — as in the case where simony enters into an
election. 3
In the Order of Friars Preachers elections must be by secret
ballots received in a receptacle by the scrutineers, who count,
read, and burn them. 4 Ballots having any distinguishing mark
are forbidden under pain of privation of active and passive voice,
but if these votes are in the minority and were cast contrary to
1 lb. c. 7.
2 Passerini, lb., c. 17, n. 14.
3 lb. n. 21.
4 Bologna, 1564.
CANONICAL ELECTIONS 75
the knowledge and wishes of the majority, the elections are
neither void nor voidable, but the votes must be rejected. 1
It is directly opposed to the substance of election for one
elector to cast a vote, either orally or in writing, for another,
unless it is manifest he was deputed to do so as procurator.
Election, therefore, in its substance ought to proceed by votes
secretly given by the vocals and secretly received by the scru-
tineers — and among religious, never published even after the
election. Manifestation of the voters' names, however, made
outside the election, provided it is not made by the scrutineers,
is not forbidden either by the Lateran or Tridentine Councils.
Absolutely speaking and making exception for particular stat-
utes, it does not pertain to the substance of election to burn the
ballots. In the Order of Friars Preachers they must be burned
in the presence of the chapter before the result of the scrutiny
has been announced, but even if burned after this announcement
has been made, the election is valid. They are also burned in
papal elections.
Some canonists question the validity of elections in which
there are but two or three vocals. The common opinion is that
such elections are valid, if not forbidden by particular statutes.
For these elections are secret if the scrutineers receive the votes
of each, or if the ballots are secretly cast ; it is only accidental
that, owing to the fewness of electors, their names are conse-
quently manifested. In the Order of Friars Preachers no one
from the electoral body present, or absent through his own fault,
can be elected if there are less than five vocals, for to elect one
of the chapter a majority of one and a half is required, which can-
not be had when less than five are present.
Common law does not forbid voting by proxy, provided the
mandate is not given for a definite person or persons, because in
this case the election could not be secret, for it would always be
certain that the procurator did not elect nor could not have
elected one other than the person or persons named. 2 An absent
vocal may, however, insinuate by word to the procurator the one
for whom he wishes him to vote, and the procurator is bound in
conscience to vote for the one thus named, but if he votes for
another he acts validly. In this case the procurator could vote
for two candidates, casting one vote for the candidate named by
him whose procurator he is, and another for the candidate of
his own choice. 3
1 Barcelona, 1574.
: Garzias V, c. 4, n. 199.
" lb., n. 103.
76 CANONICAL ELECTION'S
Before the scrutineers begin the scrutiny they should take an
oath that they will faithfully discharge their duties. But this
oath is not essential, and in many instances is omitted. The
place of scrutiny must be public and in sight of the whole chapter,
but at such a distance from the electors that neither the electors
talking to the scrutineers, nor the latter talking among them-
selves can be heard. In the Order of Friars Preachers an elector
when casting his ballot may not put his hand into the urn, but the
casting of the ballot must be plainly seen by the scrutineers. 1
Recourse to lots in places not bound by the discipline of the
chapter "Quia propter" does not render an election void, but
rather voidable, and may be introduced by custom. 2 In other
places elections so conducted are ipso jure invalid. x\rbitrators
may be elected through lots. s
It matters not by what words the formula is expressed, pro-
vided the elector expresses his consent de praesenti for a certain
person. Three different formulas are given by authors : I elect
N ; I consent in N ; I name N. All formulas implying indetermi-
nation or condition are worthless. Useless votes must be re-
jected, for example, a ballot naming the pope for the office of
prior.
In auricular scrutiny the electors may make a new choice
before the scrutiny has been committed to writing, and even
when it has been committed to writing they may still recall their
vote if the result has not been announced, provided that at least
two of the scrutineers have a distinct recollection of their former
choice. No retraction can be made once the result has been pub-
lished. 4 In scrutiny by ballot only the one to cast his vote first
may recall it, and that only when his vote alone is in the urn,
for after a second vote has been cast revocation is forbidden.
With the consent of the chapter all the votes may be burned at
the instance of one vocal, and a new scrutiny taken. Further-
more, if prior to the announcement of the scrutiny the majority
wish to have the ballots burned, this may be done and a new
ballot taken. After the publication, no change is permitted, ex-
cept when it is certain the election is null, in which case revoca-
tion is lawful provided it take place before the election is an-
nounced in the name of the college. 5
1 Const, n. 557.
- Passerini, lb., c. 28, n. 6.
3 Thesaurus II, v. elect, c. 2.
4 Sigismund. lb. dub. 29, n. 4; Sylvius, lb. II, n. 7.
5 cap. Cum terra 14, de elect, n. 4.
CANONICAL ELECTIONS 77
Every elector physically or morally present must vote, for
the omission of one such vote is contrary to the substance of
election. 1 A fourth scrutineer should not be appointed to receive
the votes of the other three, but the latter must attend to the
votes of one another. In the Order of Friars Preachers the
scrutineers vote first, which prescription would be useful in all
canonical elections.
Although the electors are in duty bound to vote for him
whom they deem the most worthy among those qualified for the
office in question, still they are not absolutely bound to take an
oath to this effect. Clement VIII and Urban VIII prescribed an
oath for religious electors, but the decree was not universally
received. In the Order of Friars Preachers electors do not take
an oath. When an absent religious elects by proxy, it is the
procurator who takes the oath, but to do so he needs a special
mandate. Outside of religious institutes either the absentee or
the procurator having a special mandate takes the oath.
After the ballots have been cast they are counted, and their
number compared with the number of voters. If they do not
agree the ballots are burned and a new scrutiny taken. It is
essential that the votes of the electors be committed to writing. 2
It suffices for one scrutineer to write the votes, but in order
to avoid mistakes, it is better that all of them take a note of the
count. Should there be a disagreement of count in scrutiny by
ballot, the votes should be read a second time and the true num-
ber ascertained, but in auricular scrutiny, the written count of
two obtains, but if all three disagree the scrutiny must be re-
peated. Written accounts of the scrutiny are not essential to
all elections. 3
The discipline of the chapter "Quia propter" must always
be observed except in cases where its observance is impossible.*
Hence, when there are less than four vocals the form prescribed
cannot be observed, — for the scrutineers and the vocals not be-
ing distinct — the election cannot be known to the former with-
out necessarily being made known to the latter. Where there
is but one elector no scrutiny is required, for in one and the same
act he may nominate, elect and publish the election, and it will
suffice if in the presence of witnesses or letters before witnesses
and notary, he says : In place of the college I elect N. 5 Where
1 Passerini, lb., n. 42.
" cap. Quia propter.
3 Rota, decis. 289, n. 30, par. 6.
4 Innoc. lb., n. 6; Donatus, tract. 1, q. 17, n. 7.
5 Panormitanus, lb., c. 2.
78 CANONICAL ELECTIONS
a member of the electoral body must be chosen, and that body
be reduced to one, there can be no election, for a vocal is forbid-
den to elect himself ; but in this case he is considered elected by
law, and the only thing required is the confirmation of the elec-
tion thus made, 1 or that the confirming prelate appoint him to the
office in question. 2 When an election devolves to a superior he
should choose one having the qualities required by the college.
Hence, when the candidate should be selected from the college,
and the college be reduced to one, that one should be chosen.
When ineligibles may be reinstated by a superior, then the one
remaining vocal is not ipso jure elected, nor is the superior bound
to select him, but may if he so desire, rehabilitate the former to
passive voice and the qualified vocal may elect one of the num-
ber, or the superior could rehabilitate them to both active and
passive voice, and then recourse must be had to the customary
election. 3
When the electoral assembly consists of but two members,
these two are not held to the law of scrutiny, but may elect pub-
licly without having recourse to scrutiny, which would be super-
fluous and useless. If a member of the college must be chosen,
then one should renounce his vote and, if elected by the other,
the election is valid unless prohibited by special statute. 4 In the
latter case the election devolves to the superior who is bound
to choose one of the two. When there are three electors they
are not bound to observe the discipline of the chapter "Quia prop-
ter," except to elect by ballot when prescribed by special law, and
not to publish the names of the electors outside of the college. 5
We have said above that after all the votes had been cast
they are counted, and this is true even when all are given for the
same person, since it is absolutely essential that the number of
votes tally with the number of electors. In former times, the
candidate who had obtained the votes of the more numerous and
sounder part (major et sanior pars) of the college, was declared
elected. Although it was presumed that the more numerous part
was the sounder part also, still contrary proof was admitted, and
this appreciation, necessitating a comparison not only of the num-
ber of votes but also of the merits and zeal of the electors, led
to endless discussions and dissensions. But the subsequent use
1 Cuth. IV, de elect, n. 3.
'Sigismund, lb., dub.23, n. 8.
3 Passerini, lb., n. 70.
4 Sigismund, lb., d. 23, n. 5.
5 Passerini, lb., n. 75.
CANONICAL ELECTIONS 79
■of the secret and written ballot proved an efficient remedy to
these difficulties by assuring the election to the candidate who
obtains an absolute majority ofttwo-thirds. When the electors
are odd in number a gain of one vote constitutes a majority ; if
the number be even, a gain of two votes is required. 1 In the
Order of Friars Preachers if the candidate is a member of the
chapter and present therein, or if absent through his own fault,
he must receive a gain of two votes to ensure the majority, but
if legitimately impeded from being present, an absolute majority
is sufficient, just as in the election of an outsider. 2 Vocals absent
through their own fault, or those who renounce their vote, are
not to be computed in the number of electors, but contemned
vocals must be numbered in calculating the majority. Alterna-
tive, uncertain, useless and blank votes are not to be taken into
account, for whoever casts such votes is considered to have for-
feited his right for that ballot. 3 When two or more candidates
receive the same number of votes, the choice of candidates is
made by him to whom the chapter, law or custom commits this
office. Sometimes the confirming prelate may choose the one
he thinks best fitted for the office in question. Should no candi-
date obtain an absolute majority, another scrutiny is held, and
so on until a decisive vote is reached. However, special statutes
can prescribe, and in some cases have prescribed various rem-
edies for useless balloting, for example, that after three rounds
of fruitless balloting the election shall devolve upon the superior ;
or that in the third round the electors can vote only between the
two most favored candidates ; or that in the fourth round a rel-
ative majority shall suffice, — as in congregations of nuns under
simple vows. 4
When the final vote has been counted and committed to
writing, the result should be officially announced to the electoral
body by the presiding officer or by one deputed thereto. 5 This
act is also essential. The time within which it should take place
is left to the judgment of the superior, provided there be no defi-
nite time prescribed by special statute. The vocals are not
obliged to remain in the chapter while the votes are being read.
Outsiders may be present when the announcement is made. The
first scrutineer or the one appointed by custom or statute, then
1 Boudinhon, lb.,
-Avila, 1895.
Sigismund, lb., d. 9, n. 11.
* Boudinhon, lb.
' cap. Quia propter.
80 CANONICAL ELECTIONS
announces accurately how many votes were cast for each can-
didate, and this done, he then in a clear voice in his own and in
the name of the chapter, formally elects the candidate who ob-
tained the required majority of votes.
The decree of election is next drawn up, and dispatched to
the confirming prelate. This decree is a written document con-
taining a complete account of the electional proceedings. It is
commonly held that it does not enter into the substance of elec-
tion. Castellini says he knows of many instances when the pro-
cess of elections in the Order of Friars Preachers was announced
orally to the superior by one or more of the scrutineers. 1 Com-
mon law requires that "instructors" accompany the decree in
order to explain its details, but the majority of authors hold that
this applies only to elections which are to be confirmed by the
Apostolic See. The decree is ordinarily, but not necessarily,
signed by all the electors. In the Order of Friars Preachers the
scrutineers in presence of the whole chapter sign and seal the
document, which is then sent as soon as possible to the superior
by a messenger. No vocal is permitted to convey the document,
under pain of privation of active and passive voice, and of the
punishment imposed on those journeying without permission. 2
Before passing to the next chapter we must say a few words
about those two exceptional modes of election, namely compro-
mise and quasi-inspiration.
Compromise occurs when all the electors confide the election
to one or several ecclesiastics, either members of the chapter or
strangers, and ratify in advance the choice made by the arbitra-
tor or arbitrators. This method was excluded from the elections
of regulars by the Council of Trent. 3 It is not necessary that
the chapter appoint the arbitrators but it may commission others
to do so. 4 If each one is given absolute power of electing, they
are presumed to have been elected in solidum. 5 The compromise
is conditional or absolute according as the arbitrators are or
are not restricted. For the latter the unanimous consent of the
chapter is required, for the former that of the majority suffices. 6
All the conditions for election in general must be complied
with in election by compromise, for what is necessary to the
1 c. 12, n. 25-30.
2 Valencia, 1647.
3 sess. 25, de Regul. c. 6.
4 Miranda, II, q. 33, a.34.
5 Jo. Cald. Conf. 6.
6 Passerini, lb., c. 22, n. 20.
CANONICAL ELECTIONS 81
genus is necessary to the species. Arbitrators cannot be elected
except by those electors collegiately united, who should, and
would and can conveniently be present. In limited compromise
they must be elected by secret vote.
The arbitrators cannot exceed the power granted them. This
power may be revoked by the majority of the chapter re adhuc
integra. When the arbitrators elect by scrutiny, their faculty
may be revoked as often as the scrutiny is repeated, provided the
faculty was not bestowed as a favor or honor, for in this case it
is presumed to have been an irrevocable gift. 1 Tacit revocation
is not sufficient, but if the chapter should elect re adhuc integra
the election would prevail.
An arbitrator cannot elect himself, if he wishes to be a can-
didate he must renounce his office. 2 If the mandate permits one
of the arbitrators to be elected, then half the number of votes
together with his consent will ensure his election. 3 In election
by secret scrutiny, not according to the chapter "Quia propter,"
no one can nominate himself in the scrutiny, but after the votes
have been announced he may add his own to that already given
to him, by recalling it from another, provided that his vote did
not constitute a majority for the other. 4 Where the form "Quia
propter" obtains, the consent of a candidate is never permitted
to increase the number of votes cast for him. If the mandate for-
bids the election of an arbitrator, such an election would be null ;
if it contains no clause on this point he may be elected, provided
the mandate does not call for an unanimous vote.
Should the arbitrators, even in good faith, elect an unworthy
candidate, the power of electing returns to the chapter, if the
lawfully prescribed time for the election has not already expired. 5
The same is true when the candidate refuses his consent. But if
the aforesaid time expires and they have elected either an un-
worthy candidate or no candidate, the election devolves upon the
superior.
When the arbitrators elect an unworthy candidate, they and
not the electors are punished with suspension for three full years
from all benefices possessed in the church in which the election
took place. This punishment applies only in the elections of bish-
ops and their superiors and not when an arbitrator is a bishop.
Mb., n. 30.
s Sylvius, lb., II, q. 16, n. 19.
3 cap. In jure 33, de elect.
4 Sylvester, electio 2, n. 2.
Mb., n. 26.
82 CANONICAL ELECTIONS
When an arbitrator is likewise a confirming prelate he may
by one and the same act elect and confirm a candidate. 1
Inspiration, by which a person may be elected to an ecclesi-
astical office, is twofold. The one is called true inspiration by
which a person is chosen by God through revelation properly so
called, as in the case of Saint Matthias. The other is quasi or
common inspiration, and is supposed to exist when, with no spe-
cial preceding discussion on a certain person, the electors as-
sembled in the electoral chamber unanimously and at the same
time, with no contradiction or hesitation, immediately proclaim
a person elected. For such unanimous consent is presumed to
have come from the Holy Ghost — the Author of unity and con-
cord. The customary general preceding discussion is not con-
trary to election by quasi-inspiration. 2
If an elector is absent by reason of his having been con-
temned there can be no election by quasi-inspiration, even if after
the election he should give his consent, for such consent is pre-
sumed to have been prompted by the influence of the others and
not by the Holy Ghost. Neither can there be election by quasi-
inspiration if one should recall his vote before the publication
of the scrutiny, because the consent would be no longer unani-
mous. 3 A capitular may be elected by quasi-inspiration. if he
consents to the election thus made, and this even if he had voted
for another, because the vote of the elect is not computed, and
hence does not destroy the required unanimity. 4
Confirmation is not required when it is evident that the elec-
tion was inspired by God, as in the case of Saints Ambrose and
Nicholas. It pertains to the superior to decide this point, and
the elect cannot assume office without his knowledge and per-
mission. But the practice of today, as Ave stated on an earlier
page, is that the Church will not ratify this method of election,,
knowing well that if the electors were prompted by the Holy
Ghost, they will not hesitate to confirm their choice by secret
vote, — the Holy Ghost still moving and inspiring.
1 Passerini, lb., c. 22, n. 52.
2 Sylvester, n. 28.
3 Hostiensis, de elect. "Qualiter facienda."
4 Tabien., v. electio 3.
CHAPTER VII
Postulation
In ancient law there was but very little difference between
the election and postulation of ecclesiastical prelates, for these
words were used promiscuously. 1 Today they differ greatly, for
they imply essentially distinct modes of providing for widowed
churches. By election a candidate acquires a certain right, and
his confirmation is an act of justice ; by postulation he acquires
no right, and his confirmation is a matter of favor. Election
once concluded cannot be recalled, postulation, on the contrary,
is always subject to recall until it has been presented to the supe-
rior. A candidate elect is worthy and eligible, a postulate is
worthy but not eligible because he has an impediment. If some
of the vocals elect, and others postulate a candidate, in order that
the postulation prevail a majority of two-thirds is necessarily
required. Hence postulation is defined as a petition of the chap-
ter presented to a competent ecclesiastical superior that he pro-
mote to a vacant ecclesiastical office a person who is debarred
from election, not on account of a personal defect, but be reason
of some canonical impediment, which does not render him abso-
lutely ineligible. 2 Since, therefore, these two modes of ecclesi-
astical provision agree in this, that both pertain to the chapter,
yet differ essentially in the aforesaid points, it now remains —
having exposed the method of election — to speak briefly of the
other method which is postulation.
Postulation is either solemn or simple. The former is that
defined in the preceding paragraph, and admitted by the superior
has the force of a confirmed election. The postulate, therefore,
after confirmation acquires the same right as though he had been
elected and confirmed. The latter is merely a request made to
a superior to obtain his consent for the promotion of a candidate
subject to his jurisdiction, e. g., a religious.
Solemn postulation — differently from simple— ought to be
made by the electors collegiately assembled, observing the can-
onical forms and statutes, and within the lawfully prescribed
time for election. It is safer, though not necessary, to observe
3 cap. Litteras dist. 63.
2 D. Antoninus, 111., tit. 19, c. 3.
84 CANONICAL ELECTIONS
the form of scrutiny, except in religious orders, where it must
be secret ballot. An absolute majority of votes constitutes a
valid postulation. 1 Though it rarely or never occurs without a
previous election, still it does not depend upon election. By
special privilege — though contrary to common law — one candi-
date can be elected and another postulated at the same time.
The general rule in regard to active voice is that they who
are qualified to elect, can also postulate, for postulation is acces-
sory to election and necessarily connected with it. The postula-
tion must be presented to the candidate within the prescribed
time-limit, and the latter must give or refuse his consent within
one month, otherwise he is presumed to have dissented. He can
only give conditional consent, and although he can withhold it
from the chapter, he cannot do so against the wishes of the Su-
preme Pontiff.
In regard to passive voice the general principle is that who-
ever is qualified for election cannot be postulated. All those are
eligible for postulation who have an impediment from which the
Holy See can and will dispense. If the impediment be doubtful,
one can be elected and postulated, and this done the candidate
then chooses the method by which he wishes to be promoted to
the vacant office. Among those unqualified for postulation are
infants, insane, and women, the offspring of an incestuous union,
those less than twenty-seven years of age (if it be a question of
episcopal postulation) and bishops who entered the religious
state on account of having committed some crime. The Holy
See usually grants dispensations from all other canonical impedi-
ments, hence those so unqualified may be postulated. Those
qualified for simple postulation are cardinals, priests and dea-
cons, regulars, prelates inferior to bishops and subject to them.
Those who knowingly postulate an unworthy candidate lose, ipso
facto, the right of postulating and electing for that election.
Postulation should be made to the superior in whose power
it is to dispense from the impediment. A superior is bound to
admit postulation made by the majority of vocals, if necessity of
the church and the common good require it, and should he refuse,
a higher authority may compel him to do so. 2 Before its admis-
sion the postulate cannot administer the office for which he was
postulated, and should he do so the postulation is thereby ipso
jure null and void.
1 Hostiensis, de post. n. 10.
2 Passerini, lb. c. 24, n. 48.
CANONICAL ELECTIONS 85
The same elector cannot at the same time elect and postulate
different persons. 1 If one candidate is elected by one-third of
the electors, and another postulated by two-thirds, the postula-
tion prevails, and the election must be cassed ; if the postulate
receives but one less than two-thirds, the election must be con-
firmed. 2 But if the candidate postulated by two-thirds majority
be unworthy, then both the postulation and election are void,
except when the majority of those two-thirds knowingly postu-
lated said candidate, in this case the election must be confirmed.
Passerini says the discipline of the chapter "Scriptum" is partic-
ular legislation, and that whenever a person is elected by the
majority of vocals, the election should be confirmed, but if the
one postulated receive the majority the superior may, if he sees
fit, reject the postulation, unless necessity or the common good
require him to admit it.
Besides this postulation ex jure, there is also postulation
ex privilegio, which is that conceded to the Order of Friars
Preachers by Alexander IV, March 16, 1257, and by virtue of
which three concessions are given over and above those granted
by common law: 1° the vocals may elect one and postulate an-
other at one and the same time ; 2° they may postulate several
persons ; 3° they may postulate an eligible candidate. The supe-
rior may admit any one of those postulated. But this postulation
holds only where there is also an election, for the decree expressly
states that it is to be admitted, if for any reason the election is
not confirmed. This privilege does not abolish that which com-
mon law concedes, namely, that if the vocals do not wish to elect
they may have recourse to postulation, for a privilege does not
take away what the common law denies. 3 But in case they do
not wish to elect, they must observe the laws of the sacred canons
concerning postulation— if they resort to postulation.
This privilege comprehends only the elections of conventual
priors and provincials. The postulation must be by secret ballot,
and on the same ballot the vocal first writes the name of the per-
son he wishes to elect by the words: I elect N. (Eligo N.), and
then writes the name of the postulate after the words : I postu-
late N. (Postulo N.). Then there should be observed all those
acts prescribed to be observed in the scrutiny of election. In the
decree of election the scrutineer should write : Ego N. eligo N.
et postulo N. A majority of votes suffices for postulation, ex-
1 De post, in VI.
-cap. Scriptum 40, de elect.
3 Passerini, lb. n. 65.
86 CANONICAL ELECTIONS
cept when the postulate is a member of the chapter, when a gain
of two or one and a half votes is required (Bologna, 1564) if he be
present or not legitimately absent.
As said above, postulation can be admitted only when the
election for some reason is not confirmed. The election is there-
fore to be examined first, for postulation is never admitted by
virtue of an inequality of suffrage alone, but election should
always be preferred unless there be a good reason to the con-
trary. If it happen that the election is not confirmed, the supe-
rior is not bound to admit postulation, for the privilege grants
the faculty but does not impose the necessity of admitting postu-
lation. And since postulation is based on favour and not on jus-
tice, the person postulated acquires no right to the prelacy,
though the practise of the order is that the superior usually
admits one of the postulates when he cannot reasonably confirm
the election.
If an election is null from defect of form, postulation is like-
wise invalid, for the form of both is one and the same. Postula-
tion presupposes an election canonical in appearance, but not
necessarily an absolutely valid election. Custom — which is the
best interpreter of laws — has always understood and still under-
stands this privilege to be such, that where no one is canonically
and lawfully elected, postulations ex privilegio are null and void. 1
1 Passerini, lb. n. 74.
CHAPTER VIII
Defects in Election
The essence of election not only requires lawful qualification
of active and passive voice and observance of canonical form, but
also that it be absolutely free; in other words, the freedom of
the electors must not be impaired by unjust laws, fraud, threats,
or excessive fear. In order, therefore, to give a complete notion
of canonical election, we must show how these vices are opposed
to it and render it either void or voidable.
I. In regard to the persons eligible, election cannot be re-
stricted to one specified candidate by any law, statute, or precept,
for, such an ordination is unjust and the electors are not held to
obey it. and should they elect another worthy candidate, he
must be confirmed. The nature of election requires a free choice
of one in preference to another. 1 The common opinion of canon-
ists is that the electors should have a choice of at least three, but
this — though reasonable — is not absolutely essential. Many de-
crees of the Sacred Congregations state that elections cannot be
restricted to less than four or five. All admit, however, that if
a restriction is made with the unanimous consent of the electors,
it is not contrary to liberty. So also if there should be but two
candidates fully qualified, the electoral choice may be restricted
to these two, for such objective restrictions come from divine
law, which prohibits the election of an unworthy candidate.
Some canonists even say that an election could be restricted to
one for the same reason. 2 This has happened in the Order of
Friars Preachers, where at one time there was but one brother
qualified for the provincialate of Calabria, the general notified
the electors that if they did not elect this brother, he would ap-
point an outsider. But such restrictions give rise to many diffi-
culties, and should be made with the greatest prudence ; and if
another than the one designated should be elected, he must be
confirmed, unless his unfitness be clearly proved. 3
Restricted elections are not ipso jure null, for the electors
can disregard the restriction and elect another. Even if through
1 S. Th. la 2ae, qu. 13, art. 12.
2 Donatus, tract. I, q. 10, n. 13.
3 Passerini, lb., c. 2, n. 17.
88 CANONICAL ELECTIONS
fear the vocals unwillingly elected a specified candidate, the elec-
tion is valid — since fear does not destroy liberty — and can be
annulled only at the instance of the electors. If they voted freely,
the election is neither void nor voidable. Neither can elections
be restricted to a certain class in such a way that the vocals could
not elect one of another if they so wished. General chapters with
the consent of the subjects or by apostolic authority can estab-
lish alternatives, in virtue of which a candidate must be chosen
from one nation for this election, and from another for the next.
Elections contrary to these alternatives are not ipso jure null —
unless expressly so ordained — but voidable at the petition of the
vocals. 1 The Roman Pontiff can restrict an election to one and
under pain of nullity, for the right of election belongs to the
Holy See.
In the Order of Friars Preachers provincials in case of neces-
sity can restrict the electors to not less than three candidates,
but not to the exclusion of others ; for should they elect another,
the provincial must confirm him, if he has the necessary qualifi-
cations. 2 Pius V decreed that if a general or provincial of the
Order of Friars Minor restrict the electors to three or four can-
didates, he shall be deprived of office. 3 Generals in reforming
provinces or congregations may, by special privilege, restrict the
vocals to three or four candidates under pain of cassation, but
this privilege is not conceded to the office, and must be obtained
by each newly elected general if need arises.
II. In respect to the electors freedom of election is im-
paired when they are deprived of voice, their number increased
or diminished.
No superior, the pope excepted, can deprive a lawful capitu-
lar of active voice, unless he proceeds according to the prescrip-
tions of common law. The pope for a just cause can licitly and
validly recall this concession, and even without a just cause, his
revocation would be valid. In the Order of Friars Preachers no
vocal can be lawfully deprived of voice within a month previous
to any election, except for reasons given in the chapter on grave
faults. A provincial's office expiring during the vacancy of the
generalship, or after the beginning of a year fixed for a general
chapter for which he is a definitor, continues until the general
is elected, or the chapter has been held. 4
1 lb., n. 60.
2 Bologna, 1564.
3 Miranda II, q. 23, a. 21.
4 Castell., c. 5, n. 781.
CANONICAL ELECTIONS 89
Superiors cannot increase the number of electors by sending
an outsider to an election, unless they have power to give ap-
probation for active voice to persons not possessing it. In the
Order of Friars Preachers this may be done in two cases, as we
have stated above when treating of the conditions for active
voice. 1 When, therefore, the number of electors is fixed by com-
mon law. no one inferior to the Pope may increase or lessen it ;
when it is not determined, it may be increased or lessened by
those who have this right from common law. We have already
seen that superiors of the Order of Friars Preachers cannot
validly assign brothers with active voice to a convent from two
months before the prior's term of office expires until the election
and confirmation of a new prior. 2 Moreover, if a brother has
been assigned to a convent two months previous to an election,
this assignation must be made known to the convent. Superiors
are forbfdden to make simulated or fictitious assignations. There
are some exceptions to this discipline, but they too have already
been sufficiently treated on an earlier page. 3
Just as there can be no assignations to, so also there can be
no removals from a convent of the Order of Friars Preachers
within two months previous to an election, unless necessity of
providing for an office in another convent or grave scandal re-
quires a removal. And if a vocal is removed for any reason
within this time he retains his voice in the convent a quo, even
though no longer assigned there. If after the election and con-
firmation of a prior, brothers are assigned to or removed from a
convent, and some time later the election and confirmation are
cassed, the election of a new prior does not pertain to those who
here and now have been assigned to the convent for two months,
but to those who were assigned thereto for two months previous
to the former vacancy, for a priorship is considered vacant from
the expiration of one prior's term of office until the lawful and
valid election and confirmation of another. 4
If a superior remove a vocal within the prohibited time, the
election is licit and valid, if he was not excluded or contemned
by the electoral body. Neither is the election voidable at the in-
stance of the said vocal, for he suffered no injury from the elect-
ors, but from the superior. 5 But if he were excluded and con-
1 vide p. 42, lit. b.
2 Passerini, lb. n. 50.
3 vide p. 42.
* Castell., lb. c. 5, n. 73.
5 Passerini, lb. n. 106.
90 CANONICAL ELECTIONS
temned by both chapter and superior, the election is voidable at
his indictment. In case the number was unjustly increased, if it
is evident the election was not decided by this circumstance, it
is neither void nor voidable, for "utile per inutile non vitiatur."
In doubt, the vocals should be admitted under protest. 1
III. Freedom of election is also impeded by violence and
fear. The former absolutely destroys free will and renders an
act wholly involuntary. The latter implies a dread of evil, but
does not absolutely force the will, it causes a person to will some-
thing, which he would not have willed, if he did not apprehend
evil. Vocals are affected by the former if they are violently
ejected from the capitular assembly, or compelled to cast a ballot
against their will ; by the latter when through fear of grave in-
jury they are moved to vote for a particular candidate — being
forced to choose a lesser in order to avoid a greater evil.
Violence and fear may be just or unjust: just when a vocal
is compelled by legitimate authority to observe the prescriptions
of the sacred canons ; unjust when the legitimate liberty of the
vocal is destroyed. Violence properly so-called renders an elec-
tion null and void, since it destroys freedom of choice. If fear is
justly and reasonably incited by superiors, elections thus affected
are neither void nor voidable — even when the electors are re-
stricted to one candidate, for the elector is not thereby absolutely
necessitated to one, since fear does not destroy liberty and his
act remains voluntary. 2 The common and most probable opinion
is that elections brought about through fear unjustly excited are
not ipso jure void but voidable, unless there be a special law to
the contrary. 3 Grave fear unjustly directed to extort the votes
of the electors is sufficient to annul an election.
All who unjustly persecute ecclesiastical vocals, for not hav-
ing elected the candidate they proposed, incur the penalty of ex-
communication. 4 This censure is also extended to postulation
and in a wide sense to presentation. 5
IV. Many pontifical constitutions have been promulgated
against those who procure the votes of electors by evil suborna-
tions or bribes. Clement VIII decreed that all who directly or in-
directly procured votes in this way either for themselves or for
others should be deprived of voice perpetually. Accomplices and
1 Lezana, lb. n. 107.
- St. Th. la Ilae, qu. 6, art. 6, ad 2m.
3 Passerini, lb. c. 4, n. 10.
4 Lateran Council.
5 Passerini, lb. n. 44.
CANONICAL ELECTIONS 91
those knowing but not revealing such actions also incur the
penalty. 1
Consultations of vocals rightly ordered according to justice
and charity is not only not prohibited but prescribed. If an
elector is in doubt as to which is the fittest candidate he may
extol the virtues and the merits of the one, and in so far as
justice will permit modestly recount the defects of the others.
These discussions are evil and are to be reprobated if they take
place before the office is vacant. In the Order of Friars Preach-
ers one public discussion is allowed on the day previous to the
election, but the vocals may engage in private discussions at will.
Provincials of the same order who endeavor to induce di-
rectly or indirectly electors to vote for unworthy candidates are
punished with privation of active and passive voice and perpetual
inhability to all dignities and offices. 2 Passerini, contrary to
manv other authors, holds that these public discussions on the
merits of candidates are not necessary, except when ordered by
the Supreme Pontiff, and that general chapters can prescribe un-
der pain of excommunication latae sententiae that they be
omitted. 3
V. It is forbidden to bestow offices on regulars at the re-
quest of persons — secular or ecclesiastical — outside an order, or
to procure office through their influence, for the interference of
outsiders tends to bring discord and dissension into a community.
Parents do not come under the name of outsiders. 4 The censures
incurred by superiors sinning in this respect vary according to
different institutes. It is certain that all sin mortally. Superiors
of the Friars Minor, Hermits of St. Augustine, Carmelites, and
of other orders incur excommunication latae sententiae. 5 The
constitutions and ordinations of the Order of Friars Preachers
mention no penalty, but the chapter of Rome 1589 and Milan 1622
warned superiors that such actions would bring upon them the
guilt of mortal sin.
Subjects are forbidden to procure offices through the influ-
ence of outsiders, to accept those thus procured, or to bestow
gifts for the purpose of obtaining them. Unprofessed novices
and nuns are not comprehended in the pontifical decrees. In
some orders members are permitted to procure offices for those
1 lb. c. 5, n. 31.
" Toulouse, 1628.
3 Passerini, lb. 65-73.
' Portell., n. 18.
2 lb. n. 1.
92 CANONICAL ELECTIONS
in the same order ; in the Order of Friars Preachers it is for-
bidden to procure them either for oneself or for others. 1 To
determine accurately the discipline regarding subjects, the dif-
ferent papal constitutions published for different orders must be
considered. Subjects of the Order of Friars Preachers incur ex-
communication latae sententiae, perpetual privation of suffrages
and all offices, and many grevious penalties. 2
VI. One of the worst vices that can creep into canonical
elections is simony. Simony is a deliberate intention of buying
or selling for a temporal price such things as are spiritual or
annexed unto spirituals. 3 Speaking of simoniacal elections we
include all modes of ecclesiastical provision. Furthermore, if
the first act of an election is simoniacal, so also are all subsequent
acts. Purchase and sale are strictly required to constitute
simony, for any exchange of spiritual for temporal things is
simoniacal, e. g. elect me bishop, and I shall confer a benefice
upon you. The general rule is that to impose any burden on a
spiritual office not annexed to it is simony. It is not simony to
give a temporal as a price of a spiritual thing, provided it was
not the determining motive. 4
The first censure pronounced against simoniacs, — even oc-
cult — is excommunication latae sententiae simply reserved to the
Apostolic See, and affects: 1° those persons and their accom-
plices who are guilty of simony in ecclesiastical benefices, pro-
vided that the terms of the agreement have been partly or com-
pletely fulfilled by both parties ; 2° all persons of whatsoever
dignity who procure a benefice for a certain person with the
agreement that the latter will later either resign the benefice in
favour of him through whom it was procured, or divide the rev-
enues with him ; 3° those who buy or sell admission into a re-
ligious order. 5
A simoniac is also suspended, but since he is already excom-
municated, this censure is of little moment. He may likewise
accidently incur irregularity from the fact that he is branded
with infamy. He does not incur it per se, since irregularity is
incurred only in cases expressly declared by law, and nowhere
can we find such a declaration.
'Rome, 1589.
' Fontana, v. favores.
'St. Th. 2a 2ae qu. 100, art. 1.
* Suarez, n. 13.
5 Const. "Apostolicae Sedis."
CANONICAL ELECTIONS 93
Infamy of law ferendae sententiae is another penalty of
simony, and this once incurred brings with it irregularity. All
simoniacal promotions even among regulars are affected by this
censure. Simoniacs not only incur these grave penalties, but are
also deprived — ferendae sententiae — of all offices and benefices. 1
All ecclesiastical provisions tainted with simony are ipso
jure null and void. 2 We except papal elections from this state-
ment : Julius II declared these elections invalid but this enact-
ment was rescinded by Pius X. 3 Both parties are bound to resti-
tution. The purchaser is also bound in conscience to restore all
profits actually acquired, 4 as well as those which but for his fault
the rightful possessor would have acquired. He may, however,
retain the expenses attached to the acquisition of the profits —
except those expended in improving the benefice, and the salary
due to his ministry. A simoniacal office becomes ipso facto
vacant, and can be conferred on another without awaiting a sen-
tence of declaration, for it is sufficient if declaration is made and
proof furnished even after a new collation ; but the condemned
may appeal from the sentence, and if he does, he must not in the
meantime be deprived of his office, though in conscience he sins
in retaining it.
Persons who in good faith receive a simoniacal benefice must
resign it together with the profits, except those consumed while
in good faith. If, however, an enemy fraudulently gives money
for the promotion of a person, so that the election will be cassed
and the candidate punished, or if on hearing that simony was to
enter into the election, said person expressly objects thereto, he
lawfully and validly acquires the benefice, and is not held to re-
nounce it. unless he afterwards consented to the agreement by
carrying out its stipulations. 5 But if such an election favored
the candidate, and unconscious of it he made no resistance, the
acquisition is null, and as soon as the beneficiary learns of it, he
is bound to resign both benefice and profits — even those con-
sumed, in so far as he had thereby become richer. 6 But if he
held the benefice for three years in the same good faith in which
he had received it, he is in nowise bound to resign it. 7
1 cap. Presbyter 3.
2 Paul II. "Cum detestabile."
Const. "Vacante Sede," Dec. 25, 1904.
4 St. Th. 2a 2ae qu. 100, art. 6, ad 3m.
; St. Th. lb.
6 lb.
: Rota in Calagur. Dec. 14, 1592.
94 CANONICAL ELECTIONS
VII. The interference of secular power is also detrimental
to the natural liberty of ecclesiastical elections. A person con-
senting to his being elected through abuse of secular power is
deprived of office and becomes ineligible to all dignities unless he
obtain a dispensation. Electors celebrating such an election
render it invalid, are suspended from offices and dignities for
three years, and deprived of active voice. 1 In the latter case,
bishops are excepted, for they do not fall under a general law of
suspension. This decree refers only to elections to prelacies
strictly so-called, hence does not include canonries, benefices with
care of souls, or other offices not dignities. 2
Election by abuse of secular power takes place when a lay
person or power takes an active part in an election, exercises
any office therein, or when his consent is required for the election
of a certain person. If a lay person inspires fear to such an ex-
tent that he actually forces the electors to elect a candidate of
his choice, or one of a certain class, the election is null and void ;
but if through grave fear he compel them to admit him into the
chapter, to give him some office, or to obtain his consent, the
election is valid, and the vocals are neither suspended nor de-
prived of voice. 3
It is not an abuse of secular power: 1° if a layman takes
part in an election from privilege, which can be granted by the
pope ; 2° if from privilege or custom lawfully prescribed a prince
wishes to be notified of the death of a prelate, that the election
take place only with his permission, or that his consent be asked
for elections already held ; 3° if from custom, privilege, or con-
ditions placed when founding a benefice, the consent of the patron
is required for elections therein. If the patron is a layman, this
privilege can be conceded by the pope, if an ecclesiastic, by the
bishop. A custom cannot, however, be introduced, in virtue of
which a layman may be permitted to vote in ecclesiastical elec-
tions. 4 A custom cannot be introduced whereby an election held
contrary to the wishes or without the consent of a prince would
be ipso jure void or voidable.
The Council of Sardinia ordained that those who elect or
postulate by the voice of the people, are for that time deprived
ipso facto of suffrage, and the election — ipso juro null— devolves
1 cap. Quisquis 43.
2 Barbosa, de jure eccles. I. n. 19.
x Bonacius, de censuris, disp. 3, q. 4, p. 5, n. 4.
4 Azorius, 11, 1, 6, c. 4, q. 18.
CANONICAL ELECTIONS 95
to those who were not guilty. Paschal II declared all who re-
ceive a benefice at the hands of a layman excommunicated. 1
VIII. Ecclesiastical elections can also be vitiated by the
non observance of the form and solemnities required by positive
and canon law. A slight omission in the form does not vitiate
the act. But where it is altered to a considerable extent, either
by acting contrary to or not in accordance with it, the act is null.
If, for a just impediment, the form prescribed by positive law is
omitted, the election is valid, for it is repugnant to reason that
positive law should bind one to the impossible, since such is con-
trary to the justice of law. 2
When an election has been invalidly conducted because of the
non observance of the form, and the vocals learn of the defect
before a sentence has been pronounced, they can emend their
fault and again lawfully elect, because by reason of the first
defect alone, they were not ipso jure deprived of voice. 3 More-
over, if the majority sin against the form and wish to repair their
fault, they may do so even against the opposition, protestations
of nullity and appeal of the minority, for the majority does not
lose its right nor the minority acquire a new right, before a sen-
tence has been given to this effect. But once the election has
been perfected, the vocals cannot proceed to a new election until
the first shall have been cassed.
There are many other points regarding the form and solem-
nities of canonical elections, but since they have been already
exposed in detail in the chapter on the act of election, to recount
them here would be a useless repetition.
1 cap. Si quis clericus.
3 St. Th. la 2ae., q. 95, art. 2.
3 Sylvester, Electio I. n. 3.
CHAPTER IX
Subsequent Acts
I. A canonical election is ipso jure null and void if, previous
to the election, the one nominated in the scrutiny consented to his
election. For to consent to an election at any time before the
choice has been declared in the name of the chapter by the one
appointed, is contrary to the prescriptions of the chapter "Quia
propter." Hence, the electors cannot in the name of the chapter
publicly ask for the consent of the person elected until the elec-
tion has been closed. A private interrogation prior to the elec-
tion is at times useful and laudable, but it must not be made in
the name of the chapter.
If the election meets with no opposition on the part of those
interested therein, common law prescribes that the presiding
official notify the person elected that choice has been made of his
person, and ask his consent. Regarding this notification special
statutes and customs should be observed. In the Order of Friars
Preachers no notification is made, even though the one chosen be
present, nor is his consent required, but the document of election
is sent to the superior, who — since the will of the subject is that
of the superior — can compel him even unwilling to accept the prel-
acy, or forbid him to accept it, if there be a reason for doing so.
When consent is required, and the elect be present, the noti-
fication takes place immediately ; if he be absent, it must be
made within eight days, barring legitimate hindrance. If, at the
expiration of eight days, the notification has not been forwarded,
the electors are presumed to have omitted it through fraud or
culpable neglect — unless they prove the contrary, and are pun-
ished by exclusion from the prosecution of the process, and are
suspended for three continuous years from all benefices possessed
in the church in which the election took place. 1 The notification
may be intrusted to a procurator specially deputed for the office.
If, before the papers of election have reached the confirming
prelate, the person elected in the presence of the electors with-
draws his consent already given, the chapter may thereupon elect
another, without awaiting the permission of the confirming prel-
1 Miranda.II, q. 23, a. 10.
CANONICAL ELECTIONS 97
ate. The elect may afterwards recall his renunciation, with the
consent of the vocals. 1 But if in the same hypothesis the supe-
rior has already received the papers, the chapter cannot proceed
to a new election without his permission. Religious also may
renounce their right, unless forbidden by superiors. 2 For
although a religious has neither velle nor nolle contrary to the
will of his superior, still the will of the latter is presumed to be
that of the written law, unless the opposite is evident, as in the
Order of Friars Preachers. 3
The person elected must make known his acceptance or
refusal within one month from the day he received the notifica-
tion or permission of his superior when such is obligatory, and
if he fails to do so he loses the right acquired by election, and
the office becomes vacant. 4 If he refuses to accept the office, the
chapter will proceed to another election within a month. The
refusal of the person elected in no way prohibits his being re-
elected. In the Order of Friars Preachers, priors-elect must
make known their acceptance or refusal within three hours from
the receipt of the letters of confirmation.
II. If the person elected accept the proffered office, he
acquires a real though still incomplete right to the said office,
the jus ad rem to be changed to a jus in re by the confirmation
of the election, and if qualified for the office in question, it is his
privilege to exact confirmation from the superior, just as it is
the latter's duty to give it. Confirmation, then, is the principal
act of election, and immediately on its having been received there
arises between the confirmed and the benefice a bond of spiritual
matrimony. It also brings with it the power of jurisdiction, so
that if a person should renounce an office after confirmation, the
office does not become vacant by reason of the predecessor's
death, but by reason of the renunciation of the person confirmed.
Although confirmation confers jurisdiction, still the person con-
firmed does not acquire a right to exercise this jurisdiction until
he has presented his letters of confirmation to the chapter.
Should the person elected interfere in the administration of
his benefice before presenting the letters of confirmation to the
chapter, all his administrative acts are invalid, and he is deprived
of the benefice. This severe legislation, which concerns epis-
1 cap. Si electio in VI.
2 01dr. ad. conf. 128, n. 7.
3 Const. D. II, C. II.
4 Rota, decis. 7, 1. 2, conf. 5, cas. 477.
98 CANONICAL ELECTIONS
copal sees only, merits a brief notice. Innocent III 1 decreed that
a bishop-elect but not confirmed cannot interfere in diocesan
affairs, under penalty of losing ipso facto the right acquired by
election. Exception was made for bishops outside of Italy, pro-
vided they were unanimously elected, and the utility or necessity
of the diocese required their interference. In the Second Coun-
cil of Lyons in 1274, Gregory X 2 forbade all elected persons to
exercise the administration of their benefices by assuming the
title of administrator, procurator, or the like — the punishment
being deprivation of dignity. The French church contended that
this legislation applied only to episcopal election and not to epis-
copal presentation, but since the reason for the prohibition is
applicable to both cases, namely, to prevent an unworthy person
from meddling in diocesan affairs, it includes both, for "ubi
eadem est ratio, eadem est lex." Somewhat later Boniface VIII 3
promulgated a law still in force in regard to taking possession
of episcopal sees and major benefices, in accordance with which
bishops elected and confirmed must not enter into the administra-
tion of their sees before presenting letters of confirmation to
the chapter of the cathedral church. In the United States, the
letters must be delivered to the administrator of the diocese.
On August 27, 1873, Pius IX published a Constitution in which
he declared: 1° chapters can neither appoint temporarily vicars
capitular nor remove them from office until the newly elected
bishop shall have presented the apostolic letters of his promo-
tion ; 2° the constitution "Avaritiae" extends to candidates
named and presented by heads of states in virtue of concordats :
3° the office of vicar capitular becoming vacant, the chapter
should elect a successor, not however the bishop-elect, or persons
nominated by civil power ; 4° those offending against this law are
punished by excommunication specially reserved to the Holy See,
and privation of the revenues of their benefices ; 5° the same
penalties are incurred by the person elected or nominated, as
well as by all those who give aid, counsel, or countenance. More-
over, the person elected or nominated loses all acquired right to
the benefice, the acts exercised are invalid, and if he be a bishop
he is further punished by suspension from pontifical ceremonies —
this penalty also reserved to the Holy See. If the administrator
1 Const. "Nihil."
* Const. "Avaritiae."
8 Decret. "Injunctae."
4 "Romanus Pontifex."
CANONICAL ELECTIONS 99
is elected bishop, he may continue the administration of affairs
in virtue of his office already possessed at the time of election.
Some elections do not require confirmation, hence persons
thus elected may enter upon the administration of office imme-
diately on being elected. The Roman Pontiff, for instance, as-
sumes full administration of the Church as soon as he is elected.
Nearly all the generals of religious orders by reason of election
are at the same time confirmed. Although elections of priors
and provincials need confirmation, nevertheless in many prov-
inces of the Order of Friars Preachers as soon as they have been
elected, the provincials administer either as vicars — as in Spain,
or as provincials — as in the provinces of the Indies. 1 But such
jurisdiction is imperfect and quasi-conditional, and opposition
can be made to the election itself, and action for cassation taken.
Finally where there is a legitimately prescribed custom that a
candidate-elect may administer before he has been confirmed,
this custom obtains, and said person lawfully and validly exer-
cises administration. 2
According to common law persons elected not only may,
but are bound to seek confirmation. Those whose confirmation
rests with the pope, must set out for Rome within a month to
obtain the required confirmation ; 3 all others must request it
within three months. 4 Those presented to a benefice by an eccle-
siastic must receive confirmation within six months, if presented
by a layman, within four months. 5 Allowances are made in all
cases for legitimate hindrances. Confirmation may be sought by
proxy, but not necessarily if the elect labor under an impediment^
except when there is a question of papal confirmation. 6 If a
friend, even though not commissioned, obtain the confirmation,,
it is valid if the person elected ratify the petition within three
months. 7 Electors also may petition for the confirmation. In
case of papal confirmation, two electors should accompany the
one elected. Although it is the electors who request the con-
firmation in the Order of Friars Preachers, still the elect himself
1 Peyr., c. 18, n. 2.
2 Passerini, lb., c. 33, n. 36.
3 Cap. Cupientes in VI.
4 cap. Quam sit ibidem.
' cap. Unico in VI.
6 Passerini, lb. n. 45.
7 Barbosa, cap. Quam sit, n. 11.
100 CANONICAL ELECTIONS
may do so, and he is not to be censured for thus acting, since he is
presumed not to be seeking his own so much as the public good. 1
Persons-elect neglecting to attend to the matter of con-
firmation within three months forfeit their right, which returns
to the chapter. Superiors may restrict this time limit for legiti-
mate reasons.
A valid election must necessarily be confirmed by the supe-
rior, and if he refuse, he should be compelled to do so by higher
authority, and a limit should be placed within which he must
confirm, otherwise the higher authority should give the letters of
confirmation. 2 No time is prescribed by common law, for the rea-
son that it should be confirmed as soon as it is known to be valid ;
where special law sets a limit, it should be brief, and not exceed
six months.
The constitutions of the Order of Friars Preachers say that
provincials and generals may confirm or veto elections according
as it seems best to them. This does not mean that they can
per se veto a valid election, for the above concession does not
bespeak absolute freedom, but the judgment of a prudent man,
which should be regulated by law. Neither do the constitutions
wish to derogate from common law, for they could not do so
without special apostolic authority. Common law states that
elections in no way canonically defective should be confirmed.
Nevertheless, a superior may per accidens cass a valid election,
for per accidens it is not necessary to confirm it. First, because
of circumstances, for it could happen that the person elected —
howsoever worthy — might be unacceptable to the authorities of
the place in which the convent is situated, and because of this
or other reasons grave scandal would arise. Secondly, if the com-
mon good of the order should require his services in another office
incompatible with the prelacy in question.
Elections should be confirmed by the immediate superior of
the person elected. Episcopal elections are confirmed by the
pope. The pope or his legate a latere confirms the elections of
all those immediately subject to the Holy See. The elections
of generals that require confirmation are likewise confirmed
by the pope or his legate a latere. The confirmation of other
religious prelates pertain to their immediate superiors. In case
of appeal the judge who pronounces the sentence either confirms
or vetoes the election.
1 Passerini, lb. n. 47.
2 Castellini, c. 14, n. 15.
CANONICAL ELECTIONS 101
Confirmation has no specified form, but may be given by oral
or written word, or even an action bespeaking approval, such as
installation or the like. Letters are necessary for confirmations
coming from the Holy See, and also when other confirmations
need to be proved. The confirming prelate must examine care-
fully both the election itself and the person of the one elected, for
he must have a moral certitude that everything is conformable
to law. Hastily given and uninvestigated confirmations may
be objected to, and if justice demand it, they should be declared
invalid, 1 and the superior loses the right of confirming the next
prelate in that office, and is suspendid from his benefice. Regular
superiors are not held to this investigation. In the Order of
Friars Preachers a provincial must seek the counsel of discreets
in confirming priors, and should he neglect to do so, he is to be
punished, but the confirmation is valid. 2
The superior must confirm the election of a worthy candi-
date, 3 This is true even if the electors had taken oath to elect
the. one best fitted, or even if there was a statute saying that the
election of a worthy candidate should not prevail if one worthier
were passed by, for such a statute — contrary to common law-
is invalid, unless confirmed by the pope. The electors would sin
mortally in not electing the one best fitted for the office. 4
Confirmation given at the request of the parties concerned,
or solemnly ex officio is a definitive sentence ; but if given by
summary judgment, it is an interlocutory sentence. Among
regulars confirmation for the most part is given in a summary
judgment, usually from report or testimonial letters. If made
by interlocutory sentence, the superior may retract it and veto
the election, but this cannot be done when confirmation is con-
ferred by definitive sentence. 5 A superior residing outside of his
territory cannot confirm an election solemnly ex officio, but only
by summary judgment, for confirmation is a judicial act. Where
the form in the last chapter on election in VI is observed, con-
firmation is always given by a definitive sentence, and hence
cannot be pronounced outside of one's territory.
III. The acts of election and confirmation concluded, there
next follows that of consecration. The former acts confer epis-
copal jurisdiction, while the latter brings with it the fullness of
1 lb., c. 14, n. 9.
2 Passerini, lb., n. 116.
3 St. Th. 2a 2ae q. 63, art. 2, ad 3m.
4 Passerini, lb., n. 116.
5 lb., 169.
102 CANONICAL ELECTIONS
the priestly power — the completion of hierarchical orders. For-
mer legislation conceded the right of both confirmation and con-
secration to the provincial metropolitan, who could delegate
another bishop to perform the latter ceremony. In the present
discipline no bishop can be lawfully consecrated except by the
Roman Pontiff, or by his delegate specially commissioned for
the purpose. The consecrator must therefore first of all assure
himself of the delegation.'
If the consecration takes place outside of Rome, the bishop-
elect by apostolic indult chooses as consecrator any bishop in
communion with the Holy See. If it takes place in Rome per-
mission is given him to choose either one of the cardinal bishops,
or one of the four major patriarchs residing in Rome. Should
no one of these accept, he may select any archbishop or bishop,
but if his own metropolitan is in Rome at the time, the suffragan
is obliged to request him to perform the ceremony. All con-
secrations that take place in Rome, must be conducted in a con-
secrated church or in the papal chapel. 2
The ceremony is performed by three bishops, of whom one
is the consecrator, and the other two assistants. A consecration,
however, would be valid, and at times even licit, if conferred by
one bishop, as is clear from indults of Gregory the Great, Greg-
ory III, Innocent X, and Alexander VII. Bisnops-eleet of Latin
America h%ve an indult, in virtue of which they may kev conse-
crated by^two or three priests or canons, if the services of bishops
cannot be obtained. If assistant bishops cannot be conveniently
present, their places may be filled by two priests. In missionary
countries, the consecrator may dispense with the assistance even
of priests. 3 Previous to consecration a bishop-elect must take
an oath of loyalty and obedience to the Holy See.
Bishops are bound to receive consecration within three
months from the time of their confirmation, and should they neg-
lect this duty without sufficient reason they must restore the
profits meanwhile acquired; if they delay for another three
months, they may be deprived of their episcopal sees. 4 Titular
bishops lose their right of episcopal dignity if not consecrated
within six months from their appointment. 5 Consecration, unless
by special indult, must take place on a Sunday or the feast of an
1 Ben. XIV. Conct. "In postremo."
- S. C. Rituum, n. V.
a Zitelli I. tit. 1.
4 Cone. Trid. sess. 23. c. 2, de reform.
6 Ben. XIV. Const. "Quum a nobis."
CANONICAL ELECTIONS 103
apostle or evangelist (dies natalitia) — not however on a feast
commemorating events in the life of an apostle. 1 The Council
of Trent prescribed that consecrations outside of Rome should
take place in the cathedral church or at least within the province
of the bishop-elect. 2
Corresponding to episcopal consecration, perpetual abbots
of monastic orders must within one year from the day of their
election receive solemn benediction from the bishops in whose
dioceses their monasteries are situated. If they are later trans-
ferred to another diocese, they are not held to seek this benedic-
tion a second time. 3 Prelates of nearly every other religious
order, immediately on receiving and signing the letters of con-
firmation, become ipso facto superiors of the office for which
they have been elected.
l S. C. Rituum, July 17, 1706.
2 lb.
J Ben. XIII. Const. "Commissi nobis."
APPENDIX
Manner of Electing a Sovereign Pontiff
On December 25, 1904, Pius X published a constitution
"Vacante Sede Apostolica," in which he determined the present
mode of papal election, and at the same time abolished all pre-
vious legislation on this point, except that contained in his for-
mer constitution "Commissum Nobis," and in that of Leo XJII
"Praedecessores Nostri."
At the death of a pope the cardinal chamberlain takes
charge of the papal household, in whose presence he juridically
verifies the death of the pontiff by striking his forehead three
times with a silver mallet, calling him by his baptismal name.
The papal seals and the fisherman's ring are then broken. These
acts, which are the legal evidence of a pope's death, are drawn
up by a notary. The corpse is embalmed twenty-four hours after
death, and on the following day borne to Saint Peter's, where
it is exposed for three days in the chapel of the Blessed Sacra-
ment. At the approach of evening the remains are interred in
Saint Peter's, where they remain for one year bfore being taken
to their final resting place.
Meanwhile all the absent cardinals are notified of the im-
pending election by the secretary of the Sacred College, and
those resident in Rome are obliged to wait ten days before they
proceed with the election, assisting in the meantime at the sol-
emn obsequies for the deceased pontiff. All the cardinals, unless
detained by a legitimate impediment, are bound in virtue of holy
obedience to obey the summons to the conclave. The funeral
ceremonies completed, the cardinals on the tenth day assemble
in Saint Peter's, where a Mass of the Holy Ghost is sung by the
cardinal dean. This service over they immediately — or at eve-
ning, if they so prefer — go in procession to the conclave, a large
walled off part of the Vatican palace. The aforesaid constitutions
of Pius X and Leo XIII are then read, and after a brief sermon
De Eligendo Summo Pontifice by the dean, the cardinals proceed
to the cells assigned to them. Absent cardinals on reaching the
city are admitted to the conclave at any time before the election
CANONICAL ELECTIONS 105
is concluded. Each cardinal is accompanied by two attendants,
either clerics or lay persons ; in case of illness a third way be
allowed. Other officials and attendants are admitted for the
service of the cardinals in common, the conclave numbering in
all about two hundred and fifty persons. The conclave closed,
all communication with the outside is strictly forbidden, except
in the presence of those prelates to whom the custody of the
conclave has been assigned, and then only in an intelligible voice
and idiom. All are equally sworn to secrecy concerning those
things which relate to the election under pain of excommunica-
tion ipso facto incurred.
All cardinals, even those recently created but not yet vested
with the insignia of office, enjoy active voice. Those excom-
municated, suspended, and under interdict also have the right
to vote. Cardinals not in deacon's orders are not admitted, unless
by papal indult. Since the time of Urban VI in 1378 none but a
cardinal has been elected, nevertheless any male christian who
possesses the use of reason may be elected. The election of an
infidel, heretic, schismatic, or female would be invalid.
The form of election is threefold, by compromise, by quasi-
inspiration, and by secret scrutiny. The first two forms are the
same as those explained above. The usual form is that of scru-
tiny or secret ballot, which is resorted to twice a day until an
election takes place. For this mode of election three cardinals
are chosen as scrutineers to preside over the voting, three others
are chosen as revisors to attend to the count of their colleagues,
and a final three as infirmarians to collect the ballots of the in-
firm, and of those lawfully detained from the hall of election.
Each cardinal writes his own and the name of his candidate
on the ballot (Ego N. Cardinalis N. eligo in Summum Pontificem
Reverendissimum Dominum meum Dominum Cardinalem N.),
then seals and folds it so that the name of the candidate only is
visible. Next it is folded so that no writing can be seen, and
then, beginning with the dean, each cardinal takes his ballot
between the thumb and index finger, bears it aloft to the altar
before which stand the scrutineers, and on which is a large chal-
ice covered with a paten. He kneels at the foot of the altar for
a short prayer, then rising repeats in a clear and intelligible voice :
"I call to witness Christ the Lord, who will judge me, that I elect
the one whom before God I think ought to be elected." He next
ascends the altar, places his ballot on the paten, from this drops
it into the chalice, and returns to his place. If any cardinal pres-
ent be unable to walk to the altar, the last scrutineer will go
106 CANONICAL ELECTIONS
to him and receive his vote. The infirmarians then proceed to
the cells of the infirm, if there be any, and bring their votes in
a small sealed box with a narrow opening on the top to the
scrutineers, who count and deposit them in the chalice.
The scrutiny concluded, the ballots are shaken up and
counted one by one into another chalice, and should their num-
ber not correspond with that of the cardinals present, immediate
recourse must be had to a new ballot. If the numbers agree,
the chalice is brought to a table before the altar, the first scru-
tineer takes the ballots one by one from the chalice, unfolds each
sufficiently to read the name of the candidate, then passes it to
the second, who in turn passes it to the third, by whom the name
is audibly announced to the cardinals. Each vocal has a list of
the cardinals' names, and usually checks off the votes as they
are read.
The ballots are counted, verified by the revisors. and burned
in the presence of the cardinals. The so-called veto or "Exclu-
siva" against certain cardinals, occasionally exercised in the
past by the powers of Austria, France and Spain was abolished
by the present discipline, which also forbids any cardinal either
directly or indirectly to introduce such a veto under penalty of
excommunication reserved in a special way to the future pontiff.
If no person receives the necessary two-thirds vote, the cardinals
proceed immediately to another scrutiny, and continue this
double scrutiny twice a day — in the morning and afternoon —
until some one is canonically elected. When a candidate receives
exactly two-thirds of all the votes — as did Benedict XV — the
ballot of the pope-elect, distinguishable, like all the others, by
a text of Scripture written on an outside fold, is opened to make
sure that he did not vote for himself, for to ensure election a
candidate must receive a two-thirds vote exclusive of his own.
If a candidate received the two-thirds vote, the cardinal dean
approaches the newly elected pontiff and asks him whether he
will accept the election and by what name he wishes to be known.
If he accepts, all the cardinals arise, and the canopies of all the
chairs are lowered, except that of the pope, who is conducted
behind the altar where he is clothed in the papal garments. Re-
turning to the pontifical chair, the cardinals pay him the first
homage by kissing his foot and then his hand ; they in turn
receive the kiss of peace. The cardinal dean places upon his
finger the fisherman's ring. These ceremonies over, the senior
cardinal deacon proceeds to the loggia of St. Peter's facing the
great piazza, and then announces to the assembled multitude the
CANONICAL ELECTIONS 107
glad tidings of the election. The populace then enters the great
basilica, where from the elevated loggia the new pontiff gives
his first Apostolic Blessing Urbi et Orbi — to the city and the
world.
The person thus elected, even though not yet in sacred or-
ders, acquires full jurisdiction - over the universal Church imme-
diately on consenting, and becomes the Vicar of Christ on earth.
If not already a bishop, he is consecrated at once by the cardinal
bishop of Ostia, but this consecration confers power of orders
only, not of jurisdiction. If the pontiff be a bishop, there takes
place only the solemn blessing. The coronation, a mere cere-
monial act, is received from the hands of the senior cardinal dea-
con on the following Sunday or holyday, from which date the
years of the pontificate are computed. The final act — omitted
since 1870 — is the formal taking possession of the Lateran
Basilica, the cathedral church of the Roman Pontiff, to which
formerly he proceeded in solemn procession.
II
Method of Selecting Bishops in the United States
On July 25, 1916, the Sacred Consistorial Congregation pre-
scribed the following legislation for proposing candidates for
the episcopacy in the United States. At the beginning of the
Lent of 1917, and thereafter every two years at the same time,
each bishop shall indicate to his metropolitan the names of one
or two priests, whom he considers worthy and fit for the epis-
copal ministry. Priests of another diocese or province may be
proposed, but it is required sub gravi that those proposed be
known personally and intimately by the person who proposes
them. Together with the name of the candidate, his age, birth-
place, present residence, and principal office shall be indicated.
The archbishops and bishops, previous to their own selec-
tion, shall ask of the diocesan consultors and permanent rectors
the name of some priest whom they deem worthy and fit beyond
others for the episcopal office. This interrogation shall not be
made in an assembly, but separately to each, and enjoining on
each sub gravi the obligation of secrecy, and of destroying all
correspondence on the matter. This advice must not be dis-
closed, except perhaps at the meeting of the bishops, of which
we shall speak later.
108 CANONICAL ELECTIONS
The bishops may consult other prudent men, even of the
regular clergy, concerning the proposal of candidates or the ob-
taining of information as to their qualifications. They may, but
are not bound, to follow any advice received, for they shall have
to render an account to God alone in this matter. And to no
other person besides the archbishop shall they make known the
name or names they themselves propose.
On receiving from his suffragans the names of their candi-
dates, the archbishop shall add his own, arranging all in alpha-
betical order, but making no mention of those who proposed
them. He then dispatches a list of the names to the different
suffragans, so that they may make inquiries about the qualifica-
tions of those, whom they do not know personally and with cer-
tain knowledge. These inquiries are to be made with the utmost
secrecy, and should there arise a danger of the purpose of the
investigation becoming public, they are to be dropped.
After Easter, on a day and at a place to be appointed by the
archbishop, all the provincial bishops shall assemble with their
metropolitan to select the names of those, whom they wish to
propose to the Holy See for the episcopal ministry. They are to
congregate without formality, as to a friendly gathering, that
they may not attract attention or excite curiosity, especially of
newspapers and periodicals. Then, having invoked the divine
assistance, every one, including the archbishop, shall take an oath
with hand on the Holy Gospels to observe secrecy, so that the
bond by which all are bound may be the more sacred. This so-
lemnity over, the regulations for conducting an election shall be
read.
One of the bishops present having been chosen as secretary,
a moderate discussion takes place, so that the more worthy and
suitable of those proposed may be selected. The very importance
of the matter urgently demands that the discussion be held and
all things done as if Christ Himself were present and directing
the affair, to the exclusion of every human consideration, but
with discretion and charity, and with consideration only for the
glory of God, for the supreme good of the Church, and the salva-
tion of souls. The piety and religious obligations of all the prel-
ates require that the proceedings be thus conducted.
The candidates should be of mature but not too advanced
age, manifestly prudent in their ministerial work, extraordinarily
sound in doctrine, devoted to the Holy See, but above all distin-
guished for their exemplary lives. Their business ability, per-
sonal status, natural disposition and health must also be consid-
CANONICAL ELECTIONS 109
ered. In a word it must be seen whether they possess all the
qualities required of a good pastor to rule God's people with
profit and edification.
When the discussion has been closed by the archbishop, tVe
scrutiny then takes place. Those whom the bishops unanimously
think should be removed from the list of candidates are not to
be voted on ; the others — even those most highly approved, shall
be subjected to scrutiny by secret ballot, beginning with the
first candidate in alphabetical order. The archbishop and all the
bishops shall be given for each candidate three balls or pebbles,
one white, another black, and a third of some other color. The
first shall signify approbation, the second disapprobation, the
third abstention from voting. Each prelate beginning with the
archbishop shall deposit in a suitably prepared urn the ball which,
before God and under grave obligation of conscience, he con-
siders he should cast for the priest who is being voted on; the
other two balls shall be dropped secretly into another urn. The
scrutiny over, the archbishop assisted by the secretary shall in
the presence of all count the balls, whatsoever their color, and
consign the result to writing. Those who have been approved
with full or an equal number of votes may, on request of a bishop,
be submitted to a fresh scrtiny to decide which of them is to be
preferred. Each prelate shall write the name of his choice on a
ballot, and place it in the urn, and these shall be examined in the
same manner as were the balls.
Although the Holy Father, on the vacancy of a see, reserves
to himself to ask counsel of the bishops or Apostolic Delegate,
so that he may select the one best fitted to govern the diocese in
question, still the assembled bishops are free, nay are advised, to
indicate at least generically which candidates are best suited for
particular dioceses.
The secretary shall carefully note down all that was said and
done at the meeting, and before the bishops separate he shall read
and submit to their approval what he has written concerning the
names proposed, the qualifications of the candidates, and the
votes they have obtained. A copy of the acts, signed by the arch-
bishop, secretary, and other bishops present, shall be transmitted
in the safest way possible to the Sacred Congregation by the
Apostolic Delegate. The acts themselves shall be preserved by
the archbishop in the most secret archiepiscopal archives, but
must be destroyed after a year, or even before should there arise
a danger of the violation of secrecy.
110 CANONICAL ELECTIONS
The decree closes with the statement that both on the oc-
casion of proposing a candidate or on the vacancy of a see —
especially one of greater importance — the bishops may always
have recourse to the Sacred Congregation or to the Holy Father
himself, if they wish to give more precise information.
If at the beginning of Lent 1917, or in any of the biennial
periods a bishop should be unable to propose names of candidates
or to assist at the assembly of bishops, the coadjutor with right
of succession may propose the names and take part in the sub-
sequent deliberations, not however the auxiliary. Should the dio-
cese be vacant no names are to be proposed, since the right to
propose is granted to the bishop only, and not to the administra-
tor. If at the same periods the metropolitan should be unable to
preside at the convention of the bishops, he shall notify the Apo-
stolic Delegate, who will appoint the senior bishop to attend to
the functions of the archbishop. In the vacancy of the metro-
politan see, the senior bishop himself shall obtain the required
authorization from the Apostolic Delegate.
J. M. J. D.
SOURCES AND BIBLIOGRAPHY
Sources
Authentic Collections.
Gratian's Decretal and Private Collections.
Fourth Lateran Council.
Council of Trent.
Pontifical Documents.
Bibliography
Andrea, In sex libros Decretalium novella commentaria.
Antoninus, Summa.
Azorius, Institutionum moralium partes tres.
Barbosa, Opera Omnia.
Bargilliat, Jus Canonicum.
Baronius, De effectibus electionis etc.
Benedict XIV, Opera Omnia.
Boerius, De Jure Electionis.
Bonacina, De legitima summi electione pontificis.
Boudinhon, Catholic Encyclopedia.
Cajetan, Summa.
Capelli, Disputationes duae de summo pontifice.
Caramuelis, Hierarchia ecclesiastica.
Castellini, De electione et confirmatione canonica.
Castro, De electione.
Cavagnis, Institutiones juris publici ecclesiastici.
Craisson, Legislation canonique et civile.
Cunou, Disputatio de electione.
Devoti, Institutiones canonicae.
Donatus, Rerum regularium praxis resolutoria.
Ferraris, Prompta Bibliotheca.
Frances, De intrusione tractatus.
Fontana, Constitutiones Ordinis Praedicatorum.
Garcia. De beneficiis.
Hostiensis, Summa.
Laytnann, Jus Canonicum.
Lezana, Summa quaestionum regularium.
Mandagotti, Tractatus de electione.
112 CANONICAL ELECTIONS
Ojetti, Synopsis rerum moralium.
Passerini, De electione canonica.
Raymond, Saint, Summa.
Reiffenstuel, Jus canonicum universum.
Rodriguez, Summa.
Samuellini, Disputationum controversiae de canonica electione.
Schmalzgrueber, Jus canonicum universum.
Sebastianelli, Praelectiones juris canonici.
Smith, Elements of Ecclesiastical Law.
Sigismund, De electione.
Silvester, Electio.
Suarez, Opera theologica.
Sylvius, Electio.
Tabienensis, De electione.
Thomas, Saint, Summa Theologica.
Thomassin, Vetus et nova ecclesiae disciplina.
Wernz, Jus Decretalium.
Universitas Catholica Americae
Washingtoxii, D. C.
S. Facultas Theologica
1916-1917
No. 2
TITULI
Deus Lux Mea
TITULI
quos ad Doctoratus Gradum in
JURE CANONICO
APUD
UNIVERSITATEM CATHOLICAM AMERICAE
Consequcndum Publice Propugnabit
DANIEL MICHAEL GALLIHER
Sacerdos Ordinii Fratrum Praedicatorum
Juris Canonici Licentiatus
HORA DC A. M. DIE VI JUNII A. D. MCMXVII
CANONICAL ELECTIONS 115
I. De Vi Juridica Corporis Juris.
II. De Domicilio et Quasi-Domicilio.
III. De Ruthenis in Statibus Foederatis Americae Sep-
tentrionalis.
IV. De Incardinatione et Excardinatione.
V. De Potestate Ordinis et Jurisdictionis.
VI. De Privilegio Fori.
VII. De Coelibatu Clericorum.
VIII. De Litteris Testimonialibus et Dimissorialibus.
IX. De Romani Pontificis Electione.
X. De Cardinalium Origine, Creatione ac Numero.
XI. De Sacra Congregatione Sancti Officii.
XII. De Tribunali Sacrae Romanae Rotae.
XIII. De Modo Recurrendi ad Sacras Congregationes.
XIV. De Romani Pontificis Delegatis.
XV. De Metropolitis ac de eorum Potestate.
XVI. De Electione Episcoporum in Statibus Foederatis
Americae Septentrionalis.
XVII. De Relationibus inter Episcopos et Regulares in
Statibus Foederatis Americae Septentrionalis.
XVIII. De Jure Episcopi Ordanandi Religiosos.
XIX. De Vicario Generali.
XX. De Vicario Capitulari.
XXI. De Novitiatus Regimine.
XXII. De Distinctione Matrimonii inter Fideles.
XXIII. De Impedimento Mixtae Religionis et Disparitatis
Cultus.
XXIV. De Impedimento Voti.
X^CV. De Impedimento Affinitatis.
XXVI. De Impedimento Impotentiae.
XXVII. De Impedimento Criminis.
XXVIII. De Impedimento Vis et Metus.
XXIX. De Decreto "Ne Temere."
XXX. De Dispensationibus Matrimonialibus.
XXrXI. De Convalidatione Matrimonii;
XXXII. De Sanatione in Radice.
XXXIII. De Privilegio Paulino.
XXXIV. De Transactionibus.
XXXV. De Arbitris.
XXXVI. De Foro Competenti.
XXXVII. De Judice.
XXXVIII. De Promotore Justitiae.
XXXIX. De Judice Delegate
116 CANONICAL ELECTIONS
XL. De Actore et Reo.
X.LI. De Advocatis.
XLII. De Actione Rescissoria.
XLIII. De Actione Reconventionali.
XLIV. De Cumulo et Extinctione Actionum.
XLV. De Introductione et Extinctione Instantiarum.
XLVI. De Libello.
XLVII. De Citatione.
XLVIII. De Litis Contestatione.
XLIX. De Probationibus.
L. De Testibus.
LI. De Instrumentis.
LII. De Praesumptionibus.
LIII. De Causis Incidentibus.
LIV. De Sententia.
LV. De Appellationibus.
LVI. De Re Judicata.
LVII. De Executione Sententiae.
LVIII. De Restitutione in Integrum.
LIX. De Processu Criminali.
LX. De Processu Matrimoniali.
Vidit Sacra Facultas :
Daniel I. Kennedy, O. P., S. T. M., p. t. Decanus.
Franciscus I. Coeln, Ph. D., p. t. a Secretis.
Vidit Rector Universitatis,
•%• Thomas I. Shahan, S. T. D.
VITA
Daniel Michael Galliher, the thirteenth son of Michael and
Brigid Galliher, was born on August 11, 1883, at Hinsdale, in
the Berkshire Hills of Massachusetts. His early studies were
made in the public schools of his native town, and his higher
classical education was received at Saint Laurent College, Mont-
real, Canada. He was graduated in 1909, and in September of
that year entered the Order of Friars Preachers at Somerset,
Ohio, where he made his religious profession on October 3, 1910.
Thence he was sent to the Dominican House of Studies, at the
Catholic University, Washington, D. C, to pursue the regular
philosophical and theological course prescribed by his Order.
Here he was ordained to the priesthood on June 23, 1915, by the
Most Reverend John Bonzano, D. D., Delegate Apostolic. While
at the University, Father Galliher followed courses in Canon Law
under Doctor Bernardini, Mediaeval History and French under
Doctors Robinson and Teillard, respectively.
COLUMBIA UNIVERSITY
0035519100
NOT
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