ASK FATHER: Is Francis an Antipope because Cardinals conspired and the conclave was invalid?

From a reader…

QUAERITUR:

In your podcast the other about [Fr. Thomas G.] Weinandy’s idea of an “internal papal schism” you said that nobody is saying that Bergoglio is an Antipope. But there are people saying that and Bergoglio is an Antipope because the conclave was invalid. There were Cardinals who conspired to elect Bergoglio and that means they were excommunicated and were forbidden to be in the conclave. Austen Ivereigh said Cardinal Cormac Murphy-O’Connor told him that he and others worked for Bergoglio and disgraced McCarrick said that he was approached by some powerful guy and then he campaigned for Bergoglio. At least some of the Cardinals in the conclave were not supposed to be able to vote. Bergoglio is an Antipope because the conclave was rigged!

Yes, I’ve seen this argument before. Since some electors incurred an excommunication automatically (latae sententiae) by conspiring and agreeing to elect Bergoglio (Universi dominici gregis 81), therefore they weren’t supposed to vote in the conclave. But they did vote and therefore the election is invalid.

The problem with this argument is the distinction between types of excommunication.

Latae sententiae excommunications can be incurred automatically, even in a hidden way. Other excommunications are publicly declared (ferendae sententiae).  Canon law indicates that a person who has incurred a censure latae sententiae would cast an illicit vote, whereas a person under a ferendae sententiae excommunication would cast an invalid vote. If an election turned on the number of votes cast by electors under ferendae sententiae excommunication then the election would be invalid (can. 171).

If a Cardinal elector is under ferendae sententiae excommunication he would be impeded from participating in the conclave and he would not be permitted even to enter the conclave.   And only a Pope determines whether a Cardinal has incurred a latae sententiae excommunication and then formally declare a ferendae sententiae excommunication (can. 1405).  But there is no Pope in the run up to a conclave.  That’s a problem.

If a bunch of Cardinal electors conspired after the death of the Pope and before the conclave, and they incurred the latae sententiae censure, there would be no Pope to declare the ferendae sententiae penalty.  Hence, those Cardinal electors would be admitted to the conclave and would vote illicitly but not invalidly.

Believe me: Cardinals know this stuff.   They know exactly how far they can go.

I have zero doubt that a group of Cardinals did go right up to the line in 2013.

An honest Cardinal elector, repenting of his conspiratorial whisperings, would have to tell the others that he had incurred latae sententiae an excommunication and, therefore, beg to be excused from fulfilling his duty to enter the conclave.   BUT… if he didn’t want to do that, he could enter and vote validly but illicitly… and wind up in Hell if he died before getting the censure lifted and, then, making a good confession.  Also, even if the excommunicated Cardinal elector did beg off, and the others agreed that he shouldn’t enter the conclave, the excommunicated elector could still change his mind and enter and vote.  It’s ferendae sententiae, not latae sententiae, that matters.

Let’s see the key canon:

Can. 171 §1 The following are legally incapable of casting a vote:
1° one incapable of a human act;
2° one lacking active voice;
3° one who is excommunicated, whether by judgement of a court or by a decree whereby this penalty is imposed or declared[ferendae sententiae, not latae sententiae]
4° one who notoriously defected from communion with the Church.
§2 If any of the above persons is admitted, the vote cast is invalid. The election, however, is valid, unless it is established that, without this vote, the person elected would not have gained the requisite number of votes.

So, in a conclave, the margin of the number of votes would also be considered.  If the conclave were deadlocked long enough to kick in the absolute majority rule, and the election were to turn on a slim margin of votes, there could be a problem.  Of course how formally declared excommunicates were present in the first place is a puzzle.

In the end, therefore, I don’t think that the theory of a conspiracy to elect Bergoglio is enough to invalidate the vote in the conclave.  Those who did conspire, and there is enough evidence to suspect at least a few electors, against the clear prescriptions of the rules for the electors in Universi dominici gregis 81, will wind up in Hell if they don’t repent and seek to have the censure lifted… ironically by the one whom they might have conspired to elect.

No.  If you are going to say that Francis is not a legitimate Pope, you need a better argument than an invalid conclave due to conspiracy.

I suppose you might have to argue that there shouldn’t have been a conclave at all, it wasn’t even really a conclave because the See of Peter wasn’t really empty and Benedict was really still Pope.  In other words, Benedict didn’t legitimately abdicate because he was a) forced under great pressure and as a result wasn’t completely free or b) he didn’t really mean what he clearly said and clearly wrote and then, in fact, clearly did.

But that’s another matter.

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27 Responses to ASK FATHER: Is Francis an Antipope because Cardinals conspired and the conclave was invalid?

  1. Percusio says:

    “If a bunch of Cardinal electors conspired after the death of the Pope and before the conclave, and they incurred the latae sententiae censure, there would be no Pope to declare the ferendae sententiae penalty.” I admit that in legal matters I am at a loss in understanding many things. As I read this statement though, it seems to me that the honest, law abiding Cardinal is at a disadvantage as they will not discuss the selection prior to the conclave. Those who are worldly and who seek to change the direction of the Church and who do not regard present Church law and latae sententiae, can easily conspire to influence the election as the “law” has no real force in this matter if the “pope” has to declare ferendae sententiae. In a situation such as this, can there ever be a pope that can make this public declaration? If there were ever a case in which a pope could declare ferendae sententiae, it would only be if somehow he were still living, but that doesn’t make sense unless a resigned pope still might have that authority.

  2. carndt says:

    I’m in the second camp.
    The wolves are everywhere in the Vatican. Pope Benedict invalidly resigned per Canon Law under duress. I pray daily for Pope Benedict and pray for Francis to convert back to the Faith.

  3. Cy says:

    1. It walks like a Pope…
    2. …dresses like a Pope…
    3. …blesses like a Pope…
    4. …calls itself a Pope…
    5. …retains the name and PETER’S RING of a Pope.

    Can there really be “two Popes”? Really?

  4. veritas vincit says:

    Father Z’s cite of Can. 171 §2 seems to settle the matter. It would have to be shown that invalid votes were cast and those invalid votes were the difference in electing Francis. Of course that is near impossible to prove and even more impossible to enforce. Would the current Pope rule that his election was invalid? Would that finding itself be invalid? That is like a judge ruling that he himself was not really a judge! That ruling undermines his own authority, like Wile E. Coyote sawing off the branch he’s sitting on!

    Really, this type of argument is dangerous. A concluded conclave should be presumed valid. Otherwise, we go back to the era of antipopes and even the Western Schism.

  5. Cy says:

    Related corollary, does a retired Bishop cease to be a Bishop?

  6. Suburbanbanshee says:

    Oh, come on. Pope Francis may have proved himself a jerk, and all his little cardinal friends are more jerk than a Caribbean chicken restaurant.

    But there have been sooooo many worse-run elections in papal history, that were not even contested. Heck, some of them got saints and great popes elected, albeit in the most dubious way.

    And let’s not even get into the old custom of the people abducting themselves a new bishop. Lots of places in the West did it, but the Roman people did it a lot. There you were, just visiting the city, staying away from the crowds at St. Peter or the Lateran, and suddenly people were hunting you down and making you take the See of Peter and never go back home! (It would be seriously unsafe to be a male Catholic podcaster if we did that today!) But that was legal and valid enough to stick, even when the means were not legit.

    Church history, folks. I know it seems unfair that Pope Benedict did the German thing and used historical precedent in a way people don’t like, but pretending he did not resign when it was what he had been talking about doing for ages, is silly. His judgment may have been bad or good, but he did it. And historically, there are serious questions about the canon law and liturgical position of blind, deaf bishops. Resigning was a way to prevent more than just practical problems, or to prevent popes naming their own successors under the color of adjunct bishops, or a host of other evils that are now not going to happen. It is a shame that other evils happened instead, but that is on the cardinals and Pope Francis. They were all adult Catholics who could have done what was right, or blocked the jerks by being decisive.

    And heck, he is doing a lot better at being retired while protecting the rights of resignees than other popes who resigned. Nobody has assassinated or executed him so far.

    That said, I am sure there is a lot of petty junk going on. Probably the Amazon abomination just happened to be in eyeshot of the papal retirement cloister, and was placed there by somebody who could not remember that Benedict is now blind and deaf.

  7. Geoffrey says:

    “Related corollary, does a retired Bishop cease to be a Bishop?”

    I think that’s “apples and oranges”. There are three degrees of the Sacrament of Holy: Deacon, Priest, and Bishop. Pope is more akin to Cardinal; one can resign from the College of Cardinals and one can ostensibly retire or resign the Papacy. Holy Orders is permanent. Properly speaking, there are no retired deacons, etc., though one in Holy Orders can retire from “active ministry”, i.e. being a pastor of a parish, an ordinary of a diocese, etc.

    Thank you for this post, Father! This is something that has troubled me for a while. Thank you for clearing it up.

  8. Lurker 59 says:

    On the Abdication of Pope Benedict XVI

    Conservatives, largely being constitutionalists, are going to have a strong tendency to read things pertaining to Canon Law wrong as they will apply constitutionalist principles to a legal system that predicated on an absolute monarchy.

    Because the Pontiff is not bound by Canon Law, the Pope can legally abdicate (not the same thing as resign) for any reason whatsoever (and I would include duress, as that particular canon, being a canon, cannot bind a Pontiff’s legal actions, but rather allows the Church to, noticing the duress at the time, not accept the abdication. That said, the Church DID accept the abdication.) The validity of Pope Benedict XVI’s abdication rests strictly because he is Pope and did so.

    So there is no legal argument that can be made for invalidity. That leaves arguments that what was done was against the nature of the Office. If the Pope were to legally decree the ordination of deaconesses, this would be invalid not because it is against the law but it is against the nature of the Office. The arguments usually focus on the fact that Pope Benedict XVI bifurcated the Office and remained Pope but as “emeritus”. The problem is that this is not a new thing. The Petrine Sees (Rome, Antioch, Alexandria) are called such because they share in the Office of Peter and their Patriarchs share not in the Office of the Apostles but rather in the Office of Peter and count themselves as the successor to Peter and are united together in the one Office (see St Pope Gregory I, , Epistle XL) So Tradition disproves the argument that bifurcation of the Office is invalid.
    —-
    On the Election of Pope Francis

    I personally detest the concept of latae sententiae excommunication as there is an unjustness to having one’s legal rights stripped without trial. But that is a topic for another time. Fr. Z does an excellent job in explaining why Pope Francis was validly elected even if some individuals incurred latae sententiae excommunication. It is an argument worth saving. [Dealt with a specific argument about the conclave. There are other arguments about the 2013 that I didn’t address.]

    In elections, it is not possible to get around politicking. You have to do it because the electors have to know why one should be elected over someone else. The problem comes in when a candidate is put forth on false pretenses. I see no indication that Pope Francis was elected for who he is but rather for who he was told to be. If you knew his pedigree from Argentina, there is no way he would be on any orthodox cardinal’s list. I am not speaking here about anything related to orthodoxy just his track record of being divisive. In a marriage Can. 1098 and Can. 1097.2 layout situations where the marriage is invalid due to being deceived about the quality of the intended spouse. I don’t know if there is an analogous canon(s) that would apply to the election of a Pontiff. It would be worth looking into but proving it would be much harder than proving Can. 1098, which is already difficult.
    —-

    There is a serious issue in that the apostolic tradition is compromised with this Papacy. Pope Francis is decidedly not fulfilling his duty to confirm the brethren in the Faith and gives the appearance of injecting heresy into the doctrine and practice of the Church. This view is increasingly not uncommon and is why people are increasingly and more and more openly seeking for nullification of the acts of this Papacy through one means or another (invalid abdication, invalid election, anti-pope, Pope Francis excommunicated himself by promulgating heresy, the Petrine Office is in suspension, two church one authority model, future Pope will excommunicate Pope Francis, nothing has actually changed and it is all fine just ignore the bad, etc.). This is actually dividing the laity into various camps of competing “solutions” to the problem and is not a good thing. The Hierarchy of the Church, which necessarily must be having the same discussion, needs to start to talk more publically on these matters, because sheep, when left to themselves, wander all over the place.

    I am personally eternally grateful for Fr. Z talking about such things and allowing the space for the members of the Church to express their need for the alleviation of the suffering that they are enduring.

    Because, at the end of the day, all this “confusion” only causes suffering in the Mystical Body of Christ and it is towards and end of this suffering that we grasp about in the dark.

  9. Cy says:

    ‘ostensibly’

  10. monstrance says:

    The abdication of Benedict XVI was the rarity.
    The conspiring to elect his replacement I fear is not so rare.

  11. djc says:

    Excellent observation.

  12. L. says:

    I don’t see how having a few invalid votes cast could make a difference in a papal election since, as I understand it, the vote totals and the “candidates” are kept secret in a conclave, except that whoever is elected is publicly announced. The cardinals take an oath to keep the proceedings secret; they may not honor their oath, but whatever they say would not be official. So, any action could be taken only in a conclave and not afterwards since the vote totals would be officially unknown after the conclave is concluded. If it is known in the conclave that some cardinals are ineligible to cast valid votes, there would be no reason for those in charge to wait until after a vote to disqualify them. In short, this all seems theoretical.

  13. I have heard the arguments that Benedict XVI is still the legitimate Pope and that Francis is an antipope. At this point, I don’t find the arguments convincing enough to make me take the position that Francis is an antipope, though I acknowledge that we need an authoritative pronouncement on the events that led to the current pontificate. How we are to go about getting that, I do not know, other than prayer and penance.

    But what I am convinced of is that persons not trained in canon law should be a lot more reticent than they are when it comes to interpreting canon law. I am a trained, practicing lawyer and I don’t consider myself competent to render opinions on canon law. I am trained in secular law, and particularly, in that branch of secular law that has its roots in the English common law and is expressed in the statutes, rules and cases of a particular American jurisdiction. This field in which I am trained and experienced is based on different operating principles from canon law, so I can’t be sure I even know how to think like a canon lawyer.

    Yet people with no sort of legal training feel up to the job of pronouncing on canon law, just like they feel like they know my job better than I do, just because they’ve looked up something in a book. These people are the bane of my existence — though ultimately of their own existence, since they won’t listen. Looking things up in books is only a small part of the practice of law. You can’t even do that much without knowing which books to consult, and then knowing how to find out whether what’s in those books is still good law, and whether there are any other authorities out there that might have a bearing on how to read what’s in the books. It’s much better to stick to those things that are within the reach of everyone, like prayer, penance, the Ten Commandments, and the duties of our state of life, and leave canon law to the canon lawyers.

  14. Hidden One says:

    The pope is the bishop of Rome. The bishop of Rome is the pope.

    When the bishop of New York resigns, he ceases to be the bishop of New York. He is, instead, the (or a) bishop emeritus of New York.

    When the bishop of Rome resigns, he becomes bishop emeritus of Rome. [No… I don’t think it is that simple.] As such, pope emeritus. Naturally, the bishop of Rome could declare that upon his resignation he would become a cardinal, or the titular archbishop of insert here, or even the bishop of New York, but Pope Benedict XVI chose not to.

    It really is that simple.

    St. Peter Celestine, pray for us.

  15. Hidden One says:

    Here there be wisdom.

  16. Amante de los Manuales says:

    Thank you for those distinctions, Father. I’ve yet to see anyone make that point.

    Is it possible, though the writer’s representing only one argument from an invalid conclave? Part of Bp. Gracida’s concern, for example, seems to be that violations of UDG would automatically render a conclave null — excommunications notwithstanding. Gracida cites this passage:

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

    On what Benedict “clearly said and clearly wrote”: I thought that was precisely why people are doubting he validly abdicated? They’ll argue, for instance, that Benedict clearly said he’d be resigning only the ministerium and not munus or the equivalent.

    On what Benedict “clearly did”: But isn’t what he clearly did also why people are doubting he’s not Pope anymore? Among the things he’s clearly done are give Apostolic Blessings, retain papal honors like the title ‘Holy Father’, retain papal attire, etc. Socci has a nice summary of these odd things.

  17. Kathleen10 says:

    Thank you Fr. Z for the conversation. This topic has got to be aired. The sheep are indeed scattering and since there is a big, black hole where leadership should be, the sheep are trying to find their own way out. This is entirely natural even if futile. Sheep in peril don’t just give up and expose their throats, they dart back and forth trying to find a solution to their problem. Faithful Catholics understand how bad things are. They are desperately looking for leadership, as they have for six years now, and there’s been precious little. Until they get it there’s going to be talk and ideas and proposed solutions, some good, some not so good but all the natural outcome of the torment of the last 6 years. People are trying to pick up the mantle that Cardinals and bishops are refusing to pick up, to our utter dismay and frustration.
    Catholics are not going to abandon Catholicism just because it’s 2019 and a few somebody’s have a shiny new idea. In a beautiful irony they have probably only made many Catholics more doggedly Catholic than they were when all this started. There’s nothing like a threat to your God and faith and church to get you invested. They poked a sleeping bear.

  18. Ceile De says:

    Father
    Thanks for your important work.
    I notice that since about April you only refer to Francis and not Pope Francis unless quoting someone who calls him by the latter.
    Is this significant? You did call him Pope Francis up till about April but not since that I can see.
    Is this just expressing frustration or is something bigger at play?
    In light of above, you do not seem to think the conclave invalid. Do you think the theory Benedict was still pope during it has legs?

  19. Cy says:

    No argument about the resignation form/validity nor about the conclave explain why:
    (a) Pope Benedict, who presumably knows the difference between a Pope and a non-Pope, retains the signatures titles and many of the functions of the office, (b) nor why his abdication statement was what it was, (c) nor why the subsequent statements of his deputy Gaswein about the resignation and creating a “new” form of Papacy were what they were, (d) nor why the current occupant of the office is behaving they way he is behaving.

    Many questions remain unanswered.

  20. Amante de los Manuales says:

    Considering it again, I think the above analysis has some serious problems:

    1) Canon 171 makes excommunication ferendae sententiae a form of excommunication that is sufficient for an excommunicated elector’s vote to be invalid. But the canon does not make excommunication ferendae sententiae a form of excommunication that is necessary for an excommunicated elector’s vote to be invalid. So the above analysis is certainly in error, as it says otherwise.

    2) The difference between these two forms of excommunication is only between forms of receiving the penalty of excommunication, which in its nature and essential effects on the soul is always the same. Keeping this mind, we should therefore say that, if according to Canon 171 excommunication ferendae sententiae makes an elector’s vote invalid, then so does excommunication latae sententiae. Recalling the ontology of excommunication means the canon implies just the opposite of what the above analysis takes the canon to imply. [“ontology of excommunication”….?]

    3) The above analysis also seems erroneous in light of UDG. I understand Fr. Z to be arguing that, even if electors in the 2013 conclave had been excommunicated latae sententiae due to acts of conspiracy (UDG 81), then the conclave itself would not necessarily be invalid. But this isn’t true. UDG 71 explicitly states that anything that occurs in a conclave “in a way other than that prescribed” by UDG is for that reason itself — eo ipso — “null and void.” Now conspiracy would mean the 2013 conclave took place “in a way other than that prescribed.” We have to conclude, then, that if there was conspiracy at the 2013 conclave, then the conclave was invalid; it was “null and void” simply by violating Pope John Paul II’s norms for conclaves.

    [Wrong. Top to bottom.]

  21. Amante de los Manuales says:

    “[Wrong. Top to bottom.]”

    Why do you say, Father? I am curious to know. I can think of a possible issue with the first two arguments. But it would be nice to see what issues you are seeing with them. And the third argument? I can’t see what’s wrong there. Where do you think it goes wrong?

  22. Amante de los Manuales says:

    Perhaps I understand you better now, Father. You’re also relying on Canon 1331?

    It seems the right canon to cite, as I see Peters did in 2013, for showing that the vote of an excommunicate ferendae sententiae would be invalid, while that of a latae sententae excommunicate would be only illicit. I hope others consult the canon if they had misgivings as well. Read in light of this canon, your interpretation of Canon 171 looks much more plausible, at least enough for me to retract the above two criticisms.

  23. The Cobbler says:

    Amante de los Manuales,

    Your point 1 is equivalent to assuming that “John did not say the sky is blue” means the same as “John said the sky is not blue.”

    As for point 2, while law both moral and canonical deals with ontology, niether is identical with ontology nor deals solely with ontology. Dr. Ed Peters’s blog deals with a lot of internal forum vs external forum stuff, Canon 915 not depending on judging the state of others’ souls, etc., that can help get a feel for this. A simple example of my own: an annulment tribunal attempts to determine whether, ontologically, a couple was ever married; yet morally and canonically this does not retroactively render their children illegitimate (or didn’t back when legitimacy had any legal implications), nor does it mean that they fornicated, and it’s no more correct to call their past relationship concubinage than to call it marriage – they were within their rights given the presumption of validity at the time.

  24. The Cobbler says:

    (Apologies for cross-posting with your third comment; my browser must have cached the page last night.)

  25. Grabski says:

    BXVI is under special protection, and his role is to protect our Church

  26. Amante de los Manuales says:

    Cobbler: “Your point 1 is equivalent to assuming that ‘John did not say the sky is blue’ means the same as ‘John said the sky is not blue.’”

    I don’t understand why. Only two claims are made about the canon, a positive one and a negative one, yet your example makes two negative claims. Your example also equates the two claims, yet the positive and negative claims made in the first point are not asserted to be equivalent to each other.

    In any case, I retract the point. It was made on the misunderstanding that Father was using the canon to say the vote of a latae sententiae excommunicate would be valid. If I’m correct, that claim actually comes (at least primarily) from Canon 1331, which wasn’t cited in Father’s post.

    Cobbler: “As for point 2, while law both moral and canonical deals with ontology, niether is identical with ontology nor deals solely with ontology.”

    No contest. The point was that, if the nature of excommunication (as such) doesn’t change, then the invalidity of a vote by a ferendae sententiae excommunicate should entail that of a latae sententiae excommunicate. But I retract this view too (again, in light of Canon 1331).

    It’s only the last point, then, which really is my main concern, that I’d still want to argue. I’m still struggling to see Fr. Z’s issue with it.

  27. AussieMark says:

    But what happens if the Pope conspired in his own election? Would it be invalid because he had incurred a latae sententiae excommunication? Or would his election only be illicit?