Liturgy & Law -- Adding St. Joseph to the Canon

Death of St. Joseph, Dominican House of Studies

Update 20 June 2013: The USCCB has announced through its website that the Holy See has amended the words of Eucharistic Prayers 2, 3, and 4 to insert the name of St. Joseph. According to the USCCB these revisions "are approved to be used immediately".  Below is the revised text English and Latin.  Whether this is "immediately" applicable in other countries is not immediately clear.  I would assume that the Conferences of Bishops would announce this individually for the diocese of their own territory. 

More information may be found at the USCCB website here:  http://www.usccb.org/prayer-and-worship/the-mass/order-of-mass/liturgy-of-the-eucharist/saint-joseph-in-the-eucharistic-prayers.cfm

The original decree (and translations of the text into additional languages) may be found at the Vatican website here: http://attualita.vatican.va/sala-stampa/bollettino/2013/06/19/news/31223.htm

English

Eucharistic Prayer II

Have mercy on us all, we pray,

that with the Blessed Virgin Mary, Mother of God,

with blessed Joseph, her Spouse,

with the blessed Apostles,

and all the Saints who have pleased you throughout the ages,

we may merit to be coheirs to eternal life,

and may praise and glorify you

through your Son, Jesus Christ.

Eucharistic Prayer III

May he make of us

an eternal offering to you,

so that we may obtain an inheritance with your elect,

especially with the most Blessed Virgin Mary, Mother of God,

with blessed Joseph, her Spouse,

with your blessed Apostles and glorious Martyrs

(with Saint N.: the Saint of the day or Patron Saint)

and with all the Saints,

on whose constant intercession in your presence

we rely for unfailing help.

Eucharistic Prayer IV

To all of us, your children,

grant, O merciful Father,

that we may enter into a heavenly inheritance

with the Blessed Virgin Mary, Mother of God,

with blessed Joseph, her Spouse,

and with your Apostles and Saints in your kingdom.

There, with the whole of creation,

freed from the corruption of sin and death,

may we glorify you through Christ our Lord,

through whom you bestow on the world all that is good.

Latin

Prex Eucharistica II

Omnium nostrum, quǽsumus, miserére,

ut cum beáta Dei Genetríce Vírgine María,

beáto Ioseph, eius Sponso,

beátis Apóstolis et ómnibus Sanctis,

qui tibi a sǽculo placuérunt,

ætérnae vitæ mereámur esse consórtes,

et te laudémus et glorificémus

per Fílium tuum Iesum Christum.

Prex Eucharistica III

Ipse nos tibi perfíciat munus ætérnum,

ut cum eléctis tuis hereditátem cónsequi valeámus,

in primis cum beatíssima Vírgine, Dei Genetríce, María,

cum beáto Ioseph, eius Sponso,

cum beátis Apóstolis tuis et gloriósis Martýribus

(cum Sancto N.: Sancto diei vel patrono)

et ómnibus Sanctis,

quorum intercessióne

perpétuo apud te confídimus adiuvári.

Prex Eucharistica IV

Nobis ómnibus, fíliis tuis, clemens Pater, concéde,

ut cæléstem hereditátem cónsequi valeámus

cum beáta Vírgine, Dei Genetríce, María,

cum beáto Ioseph, eius Sponso,

cum Apóstolis et Sanctis tuis

in regno tuo, ubi cum univérsa creatúra,

a corruptióne peccáti et mortis liberáta,

te glorificémus per Christum Dóminum nostrum,

per quem mundo bona cuncta largíris.

UPDATE 19 June 2013:  Noted on-line apologist Jimmy Akin has apparently contacted the Committee on Divine Worship at the USCCB about the implementation date. He largely confirms what I said below.  See his blog entry here.

* * * * * 

It has been reported that the Congregation for Divine Worship has prepared a decree to insert the name of St. Joseph in the 2nd, 3rd, and 4th Eucharistic Prayers (it was added to the 1st Eucharistic Prayer--the "Roman Canon"--in 1962).  Some websites have erroneously reported that that means the name may or must now be inserted by priests using those Eucharistic prayers.  This is incorrect.

Under the Code of Canon Law, new laws do not generally take effect when they are issued.  Rather "a law is established when it is promulgated." (can. 7, emphasis added)  Promulgation is the official announcement  of a law.  This occurs by publishing it in Acta Apostolicae Sedis (AAS), the official commentary on all of the actions of the Holy See.  Note, however, that the canon cited above says "established" not "effective".  A law does not even go into effect on the day it is published in AAS.  The general rule is that a law goes into effect three months after its promulgation. (can. 8)  

The Holy See can waive these provisions to have a law take effect immediately.  It did so when Pope Benedict XVI issued the Apostolic Letter Normas Nonnullas, which changed the rules of the Conclave just before the effective date of his resignation.  (I discussed the possibility in a blog post this past February.)  To do this, the decree must "specifically and expressly" establish a period other than the three month rule.  So, in Normas Nonnullas the Pope stated in the very last sentence, "This document will enter into effect immediately upon its publication in L’Osservatore Romano."  This is how you specifically and expressly provide a different effective date.  The mere use of "henceforth" in the current decree on the use of the name of St. Joseph does not do this, and the decree mentions no other specific effective date.  Therefore, we should not--indeed may not--assume that the decree has immediate force or effect.

Something similar happened when Pope John XXIII first added the name of St. Joseph to the Canon back in 1962.  The decree was issued on November 13, 1962.  However, the name was not to be inserted into the canon until December 8, 1962, approximately 1 month later, as specifically mentioned in the decree.  It is normal for there to be a gap between the date of issuance of a new law and its effectiveness to allow time for the news to spread and churches to implement the change.

Therefore, since this new decree has not even been published, it has no legal effect yet.  Therefore, no priest, on his own initiative, should insert the name of St. Joseph into the other Eucharistic Prayers until such time as the decree has been published and the applicable waiting period has elapsed.

English Crowns, Mixed Marriages, and Canon Law

There has been a recent story in the English press on the question of the ability of a member of the Royal Family to marry a Catholic.  Currently, the law of England (the 1701 Act of Settlement) prohibits the ruling monarch of England from being a Catholic (or, to use the term of the Act, the "Popish Religion").  He may be Muslim or Jewish, Atheist or Agnostic, but he may never be Catholic.  In addition, the England's monarch may not even be married to a Catholic.  This requirement has blocked at least two members of the Royal Family from ever ascending to the throne.  From the website of the British Monarchy:

Two examples of members of the current Royal family being removed from the line of succession are that of The Earl of St. Andrews and HRH Prince Michael of Kent, who both lost the right of succession to the throne through marriage to Roman Catholics. Any children of these marriages remain in the succession provided that they are in communion with the Church of England.

Recently, the British Parliament has begun discussing amendments to the Act of Settlement.  Specifically, they plan to permit one who is married to a Catholic to ascend to the throne, although it will require that the monarch be in communion with the Church of England.

One of the issues that has been raised is the question of the Church's requirement that a child of Catholics be raised in the faith.  The English Episcopal Conference has apparently weighed in:

Church leaders have told the British Government that members of the royal family who marry Catholics under recently passed legislation will not be obliged to bring up their children in the Catholic faith.

Lord Wallace of Tankerness, speaking on behalf of the Government, said he had been assured personally by Msgr Marcus Stock, general secretary of the Bishops’ Conference of England and Wales, that the canonical requirement of Catholics to raise their children in the faith was not always binding.

“I have the specific consent of Msgr Stock to say that he was speaking on behalf of Archbishop Nichols as president of the Catholic Bishops’ Conference of England and Wales and can inform the House that the view taken by the Catholic Church in England and Wales is that, in the instance of mixed marriages, the approach of the Catholic Church is pastoral,” he said.

“It will always look to provide guidance that supports and strengthens the unity and indissolubility of the marriage. In this context the Catholic Church expects Catholic spouses to sincerely undertake to do all that they can to raise children in the Catholic Church. Where it has not been possible for the child of a mixed marriage to be brought up as a Catholic, the Catholic parent does not fall subject to the censure of canon law,” Lord Wallace continued.

But what does the law actually say?  The marriage of a Catholic to a Baptized non-Catholic is what the canons refer to as a "Mixed Marriage".  Such marriages are specifically prohibited by canon law (CIC 1124), unless a dispensation is given by the local ordinary.  Such dispensation is routinely given in the U.S. and, I assume, in England.  Note that this means that, under canon law, Catholics do not have the automatic right to marry non-Catholics.  Even if the granting of permission is routine, the Church warns against it, precisely because of the danger of defecting from the faith.  That is, if one believes that a relationship with God is the truest and best good, and that it is most perfectly found in the Catholic faith, then the natural goods of marriage can never outweigh the supernatural good of adhering to one's Catholic faith.

For this reason, before permitting a mixed marriage the Church requires that Catholic party to do two things:

1. To declare that he or she is prepared to remove dangers of defecting from the faith, and
2. To make a sincere promise to do all in his or her power in order that all the children be baptized and brought up in the Catholic Church.

In the prior law, promises also had to be made by the non-Catholic party.  This is no longer true, and the non-Catholic party must merely be informed of the promises that the Catholic party makes.

The canons allow the various Episcopal Conferences to determine how these obligations are fulfilled.  However, in doing so, the canons are quite clear that the declaration and promise are, nonetheless, "always required".  (CIC 1126)  These are required, and my not be dispensed by the Bishop.

What about the statement that the Catholic parent who allows his child to be brought up non-Catholic is not subject to censure?  This also is untrue.  The Code of Canon Law provides quite specifically:

Parents, and those taking the place of parents, who hand over their children to be baptized or brought up in a non-Catholic religion, are to be punished with a censure or other just penalty. (CIC 1366)

In other words, any Catholic parent--whether married to an heir to the British Throne or to a footman--is obliged in morals and in law to raise his children as Catholic.  Now, the Bishop might decide not to pursue the matter--and most bishops do not--as a matter of prudence.  Nonetheless, those who violate the law on this still remain subject to an ecclesiastical penalty for violating the law.  The statements of Msgr. Stock to the contrary are morally and legally incorrect.

The Law of Fasting & Abstinence

Today being Good Friday, Catholics of the Latin Rite are called to fasting and abstinence in observing the penitential nature of this day.  (Catholics of the Eastern Churches generally have their own rules on fasting and abstinence.)  However, the two requirements--fasting and abstinence--do not bind everyone in the same way.  A short discussion of the two:

Abstinence.  This binds only Catholics who have completed their fourteenth year, i.e., those who are 14 years old and older.  Those under 14 years old may have meat this day.  In his 1966 document Paenitemini, Pope Paul VI clarified the contours of fasting and abstinence.  Although superseded by the 1983 Code of Canon Law in many ways, it can be useful in providing interpretive guidance.  By abstinence  we mean those bound must abstain from the eating of meat, which has historically not included fish and other sea animals.  Paul VI said that: "The law of abstinence forbids the use of meat, but not of eggs, the products of milk or condiments made of animal fat."

Fasting.  This only binds those who have reached the age of majority until the beginning of their sixtieth year.  That is, only those between the ages of 18 and 59 are bound to the obligation to fast on Good Friday.  How much does this mean we are permitted to eat?  Pope Paul VI indicated: "The law of fasting allows only one full meal a day, but does not prohibit taking some food in the morning and evening, observing—as far as quantity and quality are concerned—approved local custom."

The Pope, Washing Feet, and Law

I was asked about the question of the Washing of the Feet and the Pope's decision to wash the feet of 2 young women on Holy Thursday.  There seems to be some great confusion on this, which to my lawyer's mind seems to be based in some misunderstandings about law generally and liturgical law specifically.

Before I begin, just a few caveats.  First, I do not believe there is some unchanging theological necessity that limits the washing of feet to 12 men.  In other words, I do not have any theological problem to the washing of women's feet on Holy Thursday.  As for the symbolism of the action, I tend to think that it is best expressed when the Diocesan Bishop washes the feet of 12 of his priests, but that's just my personal view.  However, as I will explain below, I do believe that limiting the washing of feet to men is the current law, and that generally we should have a spirit of obedience to the law, especially in regards the liturgy.  Nonetheless, proper authority certainly has the right to change this, but should it be changed it ought to be done in a way proper to the promulgation of law.

First, some background on the liturgical instructions.  As most Catholics know, on Holy Thursday priests are permitted (but not required) to include in the Mass of the Lord's Supper the liturgical action known as the Mandatum.  This is the washing of the feet in in imitation of Christ's own example, as recounted in the thirteenth chapter of John's Gospel.  There Christ tells his Apostles:

You call me Teacher and Lord; and you are right, for so I am. If I then, your Lord and Teacher, have washed your feet, you also ought to wash one another's feet. For I have given you an example, that you also should do as I have done to you. 

John 13:13-15

In the current liturgical books, the Church permits the washing of the feet of twelve men.  In the Latin this is very clear, the text uses the word "vir"--meaning men specifically--and not "homo", meaning man generally (i.e., human beings).  There is no ambiguity in the liturgical rubric, if the Mandatum is done in the liturgy it is to be done with 12 men.  

Keep in mind, however, that this liturgical action is not a Sacrament, nor even a sacramental.  That is, it is not the vehicle for grace the way baptism is.  When water is poured over the head of a child and the words of baptism said, it effects a change in the child more than his just getting wet.  The symbolism of the pouring of water and saying of words is, in effect, the vehicle for God's salvific grace.  In this, God mandates not only the grace that is given, but the means through which it comes.  For this reason, the Church recognizes that she cannot change the symbol (the pouring water and the words) any more than she can change the grace that flows from it.  This is decidedly not the case with the washing of feet.  This action is just symbolic, it effects no grace by the working of the action itself, as sacraments do.  It only effects a change in that the viewer is stirred to reflect on the action of Christ in seeing it symbolically reenacted in the context of the Liturgy.  Thus, the Church is far freer in adapting the symbol to suit changes in time, place, and custom.

In regards to the changeable elements of the liturgy, who has the authority over it?  The Second Vatican Council made that abundantly clear in the document Sacrosanctum Concilium, the first Constitution issued by the Council Fathers:

Regulation of the sacred liturgy depends solely on the authority of the Church, that is, on the Apostolic See

Sacrosanctum Concilium 22 

That is, the Pope--and the Pope alone--has authority over the sacred liturgy.  He normally does that by promulgating the liturgical books.

Is the Pope bound to the authority of the liturgical books?  Yes, but remember that he also has the power of dispensation.  There are things in the liturgy which are unchangeable--the use of bread and wine, for example--which not even the Pope can derogate from.  But for the others--"merely ecclesiastical laws"--the Pope may dispense anyone from them.  So, for example, before the Second Vatican Council, to say Mass a priest had to have use of his thumb and index finger to hold the host.  The Jesuit Priest--now saint--Isaac Jogues had his fingers removed by the Mohawk Indians then living in Canada, whom he was trying to evangelize.  The Pope at the time dispensed him from that liturgical law so that he might continue to say Mass.

The Code of Canon law allows a legitimate authority to dispense from any "merely ecclesiatical law":

Can. 85 A dispensation, that is, the relaxation of a merely ecclesiastical law in a particular case, can be granted, within the limits of their competence, by those who have executive power, and by those who either explicitly or implicitly have the power of dispensing, whether by virtue of the law itself or by lawful delegation.

As a general rule, in the law one who has the power to dispense others has the power to dispense himself, unless explicitly prohibited from doing so.  Here, the Pope clearly has the power to dispense from the rule that the washing of the feet be limited to men.  In fact, he is the only authority with the power to do so, as the law explicitly reserves the regulation of the Sacred Liturgy to him.  Since he has the power to dispense others, he can dispense itself.

Therefore, those who say the Pope somehow acted illicitly by washing the feet of women on Holy Thursday are simply wrong.  He has the legal authority to do so, and such an action is completely legitimate.

Now, what about everyone else?  A well known Catholic writer issued on Twitter this comment:  "The question of whether a priest can wash women's feet on Holy Thursday now seems answered. Pope Francis will do this today in a prison."  To the extent that this was an assertion that any priest may now ignore the rubric limiting the washing of feet to men, this is simply wrong and misunderstands the nature of law.

The whole point of "dispensation" is that it derogates from the law in a particular instance.  Law, on the other hand, is something of general applicability.  Part of the very definition of law is that it must be promulgated by one in authority if it has general effect.  To state otherwise would be to say that every dispensation actually changed the law for everyone.  That would be chaos.  The orderly functioning of any society requires a consistent and coherent set of laws, and a clear delineation of what binds and what does not.

To conclude, Pope Francis was certainly not acting "illegally" by washing the feet of two women on Holy Thursday night in the juvenile prison in Rome.  At the same time, the Pope did not change the rubric for anyone else, only for himself on that one Holy Thursday.

If pastors--or Bishops--earnestly believe that there is great spiritual advantage to be had by changing the rule, their course is clear.  We are a hierarchical Church that, especially with regards to the liturgy, looks to those who have been given the special charge of preserving that liturgy.  Any priest, any Bishop, and even an entire Conference of Bishops, needs simply to petition the Apostolic See for a dispensation of the rule, or request its amendment.  Until then, the law should be followed.

The Process of a Papal Election

I admit, I am a little late in getting to this, but it’s been a whirlwind of a week!

I had mentioned some time ago, that I would discuss what happens (at this point, ‘happened’) at the Conclave during the election of the Pope.  Now, I have no inside scoop on who got how many votes or how the voting progressed.  All I mean to do is to describe the procedure for voting, putting it in some context with the general law of the Church with regards to voting.

Oaths in the Church

As part of the Conclave, a number of people, in addition to the Cardinals, must take oaths.  The most recent will be the one they take today at the start of the election.  The Cardinal Dean, Cardinal Sodano, will read the following text:

We, the Cardinal electors present in this election of the Supreme Pontiff promise, pledge and swear, as individuals and as a group, to observe faithfully and scrupulously the prescriptions contained in the Apostolic Constitution of the Supreme Pontiff John Paul II, Universi Dominici Gregis, published on 22 February 1996. We likewise promise, pledge and swear that whichever of us by divine disposition is elected Roman Pontiff will commit himself faithfully to carrying out the munus Petrinum of Pastor of the Universal Church and will not fail to affirm and defend strenuously the spiritual and temporal rights and the liberty of the Holy See. In a particular way, we promise and swear to observe with the greatest fidelity and with all persons, clerical or lay, secrecy regarding everything that in any way relates to the election of the Roman Pontiff and regarding what occurs in the place of the election, directly or indirectly related to the results of the voting; we promise and swear not to break this secret in any way, either during or after the election of the new Pontiff, unless explicit authorization is granted by the same Pontiff; and never to lend support or favor to any interference, opposition or any other form of intervention, whereby secular authorities of whatever order and degree or any group of people or individuals might wish to intervene in the election of the Roman Pontiff.

Then each Cardinal in turn will place his hand on the Gospels and swear to the foregoing.

The  taking of oaths, while controversial for some Protestant denominations, has long been acceptable in the Catholic Church.  Over the course of the centuries, the Church has a developed understanding of the nature of oaths, both theologically and legally.

Canon law defines the nature of an oath as: “the invocation of the divine Name as witness to the truth.”  (CIC 1199)  We usually consider oaths in regards to a witness in a court action.  Truth is, of course, the correlation between objective reality and my own internal knowledge of it.  The internal knowledge can only be expressed by an external manifestation—by telling what I know.  Of course, given our fallen human nature, it is possible for us to deliberate break the correlation between what we know and what we say.  The idea of the oath is that we assert the witness of God—who knows both the objective reality and the truth of our hearts—to the correlation between our external words and our internal knowledge of the truth.
In addition, the oath can be similar to a vow in that a person swears his intention to carry out a certain act.  Again, God is invoked as a witness to the truth of the person’s intention.  A man taking an oath does this not by making God testify, but by relying on the authority of God.  Put another way, the man who takes an oath asserts that were God asked, he would agree with the oath taker.

As an oath is by its very nature an act of religion.   In classical Catholic understanding, acts of religion do not mean what we mean in the modern secular use of the word.  Rather, religion is a virtue that is a species of the virtue of justice.  As justice is about giving another his due, the most important act of justice is to give God his due, which is religion.  So the fulfillment of oath involves doing justice to God.  As such, as an act of religion that relies specifically on the greater certainty and power of God, an oath is also inherently an act of worship.  Oaths gain their force because the one making them ties the truth of his statement to his relationship with God, and thus his very salvation.

This is why, in the Church, the taking of an oath is an extremely grave matter.  For many of the Fathers of the Church oaths were to be avoided.  Although not going quite that far, even St. Thomas recognizes that oaths should be taken very carefully:

Even as a medicine is useful for healing, and yet, the stronger it is, the greater harm it does if it be taken unduly, so too an oath is useful indeed as a means of confirmation, yet the greater the reverence it demands the more dangerous it is, unless it be employed aright… (ST, q. II-II, q. 89, a. 5, ad 3)

Thus the Angelic Doctor offers this advice to anyone who might take an oath:  “he who ventures to swear on holy things should do so fasting, with all propriety and fear of God.”  (ST, II-II, q. 89, a. 10.)  One might also recall the words of St. Thomas More to his daughter Meg, as given in Robert Bolt's play A Man for All Seasons:  "When a man takes an oath, Meg, he's holding his own self in his own hands. Like water. And if he opens his fingers then—he needn't hope to find himself again"

This gravity is expressed also in the penalty for its violation. As Benedict XVI made clear during his pontificate, the penalty for violating this particular oath is excommunication latae sententiae, that is automatically.

The matters over which the Cardinals will decide affects the functioning of the Church, and the salvation of souls.  It is of the gravest of acts, and it is also a deeply spiritual act.  The presence of oaths helps to emphasize the spiritual nature of the undertaking, as well as the gravity of observing what has been determined to be the best ordering of the process.

Canon Law & Voting

As we await the Cardinals’ decision on when the voting for a new Pope will start, it might be opportune to look forward to some of the legal issues involved in the voting process.  The first thing to realize is that when the Cardinals come together to begin the Conclave, they will not start voting right away.  In fact, on the first day there will likely by only one ballot in the afternoon. But, we’re getting ahead of things a bit.  I want to take this blog post to talk about elections in the church generally, and a little bit about the Papal election specifically.  In another post, I will talk about the procedure of a Papal election with more detail.

In the history of the Church, there have been a variety of ways to select a Bishop, the most common being acclamation (or inspiration), compromise, and scrutiny.  For example, there is the famous story of the election of St. Ambrose as Bishop of Milan.  It is said that during the discussion of who should be the next Bishop, a child cried out, “Ambrose, Bishop!” and the crown immediately elected him by acclamation.  This was especially unusual given that Ambrose was not even baptized at the time, he was still just a catechumen!  Election by acclamation remained a legally permissible method of election for centuries.  Under the current law, however, it is no longer permitted and it was explicitly excluded by Pope John Paul II in Universi domenici gregis.  

Another method of election of election is by compromise.  Many people might be thinking, ‘well, every election involves some compromise.’ While true, this refers to a specific legal method of election.  Election by compromise usually arises when a body is unable to come to an agreement on the choice of a candidate.  So, what they do is agree to choose another person or body to make the decision.  (see CIC 174)  This decision must be unanimous.  Its effect is to cede the right to vote to this other person or body.  Needless to say, this method is fairly rare and I know of no actual instance if it, although I am sure there are some.  However, with regard to the election of the Pope, this is explicitly excluded in Universi domenici gregis.  The Cardinals may not delegate their right to vote to any other person or body.

That leaves election by scrutiny, or what we might call election by ballot.  This is by far the most popular and common method of election in the Church today, and the Code has a rather lengthy section on the conduct of elections.  A group may choose to vary from this scheme in various ways and, as we will see, the Papal election has some important variances from the usual law of elections.

The first thing to note is that at the heart of election by scrutiny is the vote itself.  For a vote to be validly made in the law is must be, above all, freely made by a valid elector.  That is, it must be made without any compulsion or grave fear.  This is part of the reason for all of the seclusion of the Cardinal electors, so that even the mere possibility of undue outside in kept to a minimum.  In addition, each individual vote must be secret, certain, absolute, and determined. (CIC 172 §1)

First, it must be secret.  This is something we understand as Americans.  When we vote in elections for President or in local election, we fully expect that our vote will be kept confidential.  The reason for this is so that people can feel as free as possible in casting their ballot.  Second, it must be certain, that is there must be no doubt as to the person for whom one is voting.  This would exclude ballots that were illegible or that were ambiguous.  For example if two people named Robert were running for an office and I write, “I vote for Bob”, my vote is invalid because it is uncertain which ‘Bob’ I’m voting for.  Next, it must be absolute, which means it must be without any conditions.  That is one could not say, “I vote for Bob, unless Pete has more votes, then I vote for him.”  This is a bit different from pre-election conditions to a vote, which I discussed in an earlier post.  Finally, it must be determined.  That means is must be voting for a particular person.  One may not vote for a group or an unspecified person a group.  Thus, the following ballot would be invalid: “I vote for the Italian Cardinal who gets the most votes.”  The ballot must specific a person, which generally means by name.

Generally speaking, the rule of voting is a majority – that is 50% + 1.  (CIC 119)  Of course, as most know, the rules for the Papal election differ.  To be elected Pope, one needs at least 2/3 of the votes of those voters present at the election.  We expect that at the Conclave there will be 115 electors, two thirds of this is 76 2/3.  This means that to elect a Pope will likely require at least 77 votes of the Cardinals. 

The rules for voting also have a procedure when the voters cannot come to agreement.  In canon law, if there have been two ballots without any one being properly elected, the next ballot is limited to the highest vote-getters.  That is, if after two ballots the votes are distributed among 5 candidates, none of whom have received a majority, then the two that have received the highest number of votes are the only ones that may be validly voted for in the next ballot.  Any ballot for another candidate is considered a null vote.  And what happens when the vote is still tied?  Interestingly, canon law breaks the tie by by looking to age—the older candidate is elected.

Papal elections differ substantially from this.  First, there are far more than 2 ballots before the rules begin to change.  Universi Domenici gregis requires at least three days of inconclusive voting before a break may be taken, which can be no longer than a day.  After this break, voting continues for a maximum of seven more ballots (i.e., two days of voting).  If the voting is still inconclusive there is another pause for, “prayer, discussion and an exhortation” by one of the Cardinals.  After this, voting is resumed.  If the votes are still inconclusive after seven more ballots (i.e., two more days), another break is taken wherein, “the Cardinal electors shall be invited by the Camerlengo to express an opinion about the manner of proceeding.”

After this they go back to voting, but with an important change.  As in the basic procedure set out in canon law, after this point only the two top vote-getters are valid candidates (the only two with “passive voice”, to use the canonical term).  But here, Pope Benedict XVI made an important change in the law.  Originally, Bl. Pope John Paul II decreed that the voting threshold would drop to a majority vote. But the current law now requires that the voting remains at 2/3, although the top two candidates are no longer permitted to vote (they no longer have “active voice”, according to canonical terminology).  So, assuming the vote goes this long, with the same number of cardinals (115), one of the two candidates would need at least 76 votes of the remaining voters (113).  The voting will continue with these two candidates until one is elected with a 2/3 majority, however long that might take.

This is just to give some background a bit of procedure with regards to voting.  In later posts I will talk about the actual procedure of a pontifical election itself.  I will also talk about what happens after an election—just because someone is elected does not mean he’s Pope just yet!

In the News

The other day I did a short interview with Edward Pentin, a reporter for The National Catholic Register, among others.  He published the story the other day.  He probably makes me sound more an expert than I really am, but I appreciate the coverage.  You can see the article here, my contribution is towards the end:

Benedict’s New Name: Pope Emeritus, His Holiness Benedict XVI, Roman Pontiff Emeritus

The Interregnum: The First Phase - UPDATE

SECOND UPDATE -- The Press Office of the Holy See is reporting that it is unlikely that the decision on when the Conclave will begin will be decided on Monday.   Paragraph 13 of Universi domenici gregis indicates that the date for voting is set "[i]n one of the Congregations immediately following" the first General Congregation.  I had assumed that the unusual decision to have an afternoon session on Monday meant that it would be taken up then, expressing the Cardinals' desire to finish the voting as soon as possible.  Apparently, that will not be happening.  This makes March 11 an increasingly likely start-date, if they choose to start early.

UPDATE -- As I predicted, the first General Congregation will not occur today, as many expected.  Rather, the first meeting of all of the Cardinals will begin at 9:30am on Monday.  Per the rules governing these, they will not set the date and time of the Conclave at this first meeting. Rather, they will do that at their second meeting.  However, unlike in the past, their next meeting will not be the following day, but rather that afternoon.  I think we can expect the date and time of the voting process in the Conclave to be set by Monday afternoon.  Assuming they work through the "all Cardinals being present" issue, that probably means a start date for the Conclave around March 11, maybe as early as March 9.

John Allen has some good info at his blog.  (Although, I think he has misread Universi domenici gregis regarding some of the timing of things.) 

---

As of 8:00pm Rome Time, February 28, 2013, the See of Peter was made vacant.  Now the process begins to determine a new Supreme Pontiff of the Holy Catholic Church.  The development of the procedure to choose a Pope is an interesting one, and often tracks the controversies in the Church, especially its struggles against the State.  You can get a nice bullet summary from the EWTN website.  The use of Cardinals alone as electors goes back at least to the 8th century, although the forerunners of the Cardinals (the clerics of the major churches of Rome), goes back to the earliest centuries of the Church in Rome.

The idea of a "conclave" is much later.  A quick foray into linguistics helps here, bear with me.  Latin, like modern Italian, has no verb for "to lock".  So how do say something is locked in these languages?  You say that it is closed with the key.  In Latin the words "with the key" are "con clave", or as we render it in English, 'conclave'.  When Pope Celestine V resigned from the See of Peter after only 6 months back in 1294, which was preceded by a period of sede vacante (i.e., no Pope) for two years, while the Cardinals wrangled over the procedures, they decided to try something radical.  They would take the Cardinals and lock them in (close the doors con clave).  By locking them in, they hoped to get them to decide faster.  There were even rules that food and comforts were to be reduced the longer they were in there, until at one point they would be given only bread and water!  Those extreme measures did not last long, but the Conclave has.  Conclaves have been held in a number of places over the centuries, but eventually (and currently) the Sistine Chapel has become the location for the Conclave.

The current rules for the Conclave were re-codified by Bl. Pope John Paul II in 1996 in a document (an "Apostolic Constitution") called Universi domenici gregis.  (Church documents are often titled by the first few words of the text in Latin.  In this case it means "The Shepherd of the Lord's whole flock".)  That document was amended twice, both by Pope Benedict XVI.  The first one doesn't really matter anymore, because its changes were incorporated into the second.  The second amendment, the Apostolic Letter Normas Nonnullas, came out days before Benedict XVI's resignation came into effect.  I gave a description of it earlier on this blog.

So the rest of this entry, I mean to go through the current rules in place for the upcoming Conclave.  In other words, what happens now that the See is Vacant?

The first thing that must be realized is that just about every Cardinal, and everyone who acts in the name of the Supreme Pontiff, loses his authority.  The heads of all those various dicasteries act in the name of the Holy Father.  Without him, they have no legal authority to act.  There are some exceptions, especially regarding certain dispensations and confessional matter, but that's bit more than I want to get into.  In short, most of the Cardinals in Rome now have only one job, their duty sine-qua-non as Cardinals, which is to elect a Pope.

The College of Cardinals, as a body, is given the collective responsibility of governing the universal Church.  But this is only in regards the ordinary business of the Church and the carrying out of the election.  The "Administrator" of the Holy See during the vacancy is the Cardinal Camerlengo, currently Cardinal Bertone.  For this reason, during the interregnum period, the coat of arms of the Holy See changes from the Papal coat of Arms to the Coat of Arms of the office of the Camerlengo.

The first thing that will happen is that the Cardinal Camerlengo, together with the senior Cardinal of each Order of Cardinals (which are, I believe, Cardinal Sodano, Cardinal Arns, and Cardinal Tauran) will set the date for the first "General Congregation".  These are the meetings of all of the Cardinals, which are to be held daily.  All the Cardinals are required to attend these General Congregations. There are three exceptions.  First, those who do not enjoy the right of election (i.e., they are over 80 years old) are excused.  Also excused are those who are impeded by sickness and those impeded  by some other grave reason.  Only the College of Cardinals can determine whether or not a reason is grave enough to constitute an impediment.  You can read my early comment on this.

In addition to the "General Congregations" there is also a "Particular Congregations".  The Particular Congregations involve a smaller group of Cardinals, and they handle minor issues that need not be brought to the entire body.  (I suppose you might think of them as a kind of Steering Committee or Executive Committee.)  The Particular Congregations also help with the preparation of the Sistine Chapel for voting and they grant permission for any outside communication by the Cardinals.  These Particular Congregations are made up of the Cardinal Camerlengo and three Assistants, all Cardinals.  The Assistants are chosen by lot--one from each order of Cardinal (Cardinal-Bishop, Cardinal-Priest, and Cardinal-Deacon)--and they rotate every three days.

At the first General Congregation, all the Cardinals are given a copy of Universi domenici gregis and  Normas Nonnullas.  They then each take an oath to observe all the norms set forth in each, and to maintain the secrecy of the Conclave.  This takes up the business of the first General Congregation.

In the next General Congregation, presumably the next day, they get down to business.  The law lists many things for them to decide, but most of them have to do with the arrangements for the Pope's funeral, which obviously is not an issue.   That leaves __ things for them to do, as follows:

1. They have to see to it that the residence Domus Sanctae Marthae is prepared for the arriving Cardinals.  This includes sweeping the place for electronic listening equipment.  One thing to note, is that some people have the impression that the Domus Sanctae Marthae is some residence that stays empty until it's needed for an election.  Not true.  Most of the time, people (all priests, I think) live there who work at the Holy See.  They are required to vacate their rooms, and most have moved out this past week.  Their belongs are put into a sealed cabinet in the rooms, and the rest of the room is given over to these use of the Cardinal who will stay there until after the election.
2. They name two 'ecclesiastics' (usually another Cardinal) to provide meditations "on the problems facing the Church at the time and on the need for careful discernment in choosing the new Pope".  They also fix the dates and times of these meditations.
3. They have to approve the payment of expenses incurred until the new Pope is elected.
4. They have to destroy the implements of the Pope's Office -- the seal of the "Fisherman's Ring" and lead seal that marks Papal documents
5. They assign rooms by lot in the Domus Sanctae Marthae by lot.
   And finally, and most importantly, they:
6. Set the day and hour of the beginning of the voting process.

For the setting of the voting process, and the changes made by the Pope's most recent document, see my earlier blog post here.

One thing I want to emphasize is that, as should be clear, the Cardinals cannot begin voting tomorrow.  (In fact, the current rumor is that the General Congregation won't even be held on Friday, but that they will wait until perhaps Monday to begin).  Even if they decide to begin voting before the 15-day period, it is likely that the earliest they could start would be the 9th.

What we should hear first, from Cardinal Bertone, is the day of the first General Congregation.  Only after that, will they set the date.  In the meantime, they need to schedule the days of meditation and other preparation.  Only then may they begin voting.

I hope to do another blog piece on the process of voting in the next several days.

Normas Nonnullas: Changes to the Papal Conclave

On Monday, His Holiness, Pope Benedict XVI, issued motu proprio an Apostolic Letter amending the guidelines for a Papal Conclave and Election.  As is custom, the name of the document is formed from the first few words of the text in Latin, in this case Normas nonnullas.  It amends the original norms issued by Bl. Pope John Paul II in 1996, Universi dominici gregis.  It also includes earlier changes that Pope Benedict XVI himself made in the Apostolic Letter issued motu proprio, Constitutione apostolica.  I have done a comparison of the changed paragraphs of Universi dominici gregis with Normas nonnullas.  Below is a brief descriptions of all of the changes in the election process, referencing the appropriate paragraph of Universi dominici gregis:

•           № 35: A technical change to include a reference to para. 75, regarding the timing of the beginning of an election. 
•           № 37: The phrasing of the timing was altered.  It now says that from the moment the Apostolic See is vacant, there should be a waiting period of 15 full days before the start of the Conclave.  It is left to the Cardinals to alter this in two ways.  First, if all of the Cardinal electors are present, they may begin earlier.  Second, for a very grave reason, they may delay it a few days.  The requirement that the Conclave begin no later than 20 following the vacancy remains.
•           № 43: In managing the areas closed to the public, the Cardinal Camerlengo is now assisted by the Vice Camerlengo, as well as the Substitute of the Secretariat of State.  It also allows for the Cleric Prelates of the Apostolic Camera to assist in the efforts to ensure that the Cardinal electors are not approached along the route from their residence to the Vatican Palace.
•           № 46: Allows for eight (rather than 2) Masters of Ceremonies to be made available to assist at the Domus Sanctae Marthae.
•           № 47:  Binds to the obligation of secrecy the technicians who sweep for sound recording equipment according to para. 55.
•           № 48: Adds to those taking the oath of secrecy the technicians who sweep for sound recording equipment according to para. 55.  It also changes the wording of the oath of secrecy.  Most importantly, it recognizes that a penalty of excommunication latae sententiae is imposed on anyone who violates the oath.  That means, that the penalty is automatically imposed by the law.  It reserves to the Apostolic See alone the power to lift this excommunication.
•           № 49: Cleans up the wording of this paragraph to conform the timing of the beginning of the Conclave to what was set out in para. 37. 
•           № 50:  The following also participate in the procession from the Pauline Chapel to the Apostolic Palace when the election begins:  the Vice Cemerlengo, the Auditor General of the Apostolic Camera, and two members each of the Colleges of the Apostolic Prenotaries from the number of participants,  of the Auditor Prelates of the Roman Rota, and of the Cleric Prelates of the Apostolic Camera. 
•           № 51:  Allows the Vice Camerlengo to assist in preparing the Sistine Chapel for the election.
•           № 55:  Those who attempt to violate the secrecy of the Conclave by recording equipment are subject to excommunication latae sententiae (rather than just a “grave penalty”).
•           № 62: Clarifies that the 2/3 vote required is taken from those present and voting (and not simply from those present).  Interestingly, it also seems to delete the language that says if the number of electors cannot be divided into three equal parts, you need a 2/3 vote +1.  That is to say, if there are, for example, 119 electors, a 2/3 vote would be 79 1/3.  You obviously can’t have a third of a vote, so you would need 80 votes.  Canon law already seems to assume this, so this deletion does not seem to change anything.
•           № 64: It adds a reference that the Secretary of the College of Cardinals and the Master of Papal Liturgical Celebrations are recalled to the election hall during the “pre-scrutiny” phase.
•           № 70: Makes a technical clean-up change saying that at least 2/3 are necessary for election.  This clean-up probably explains the deletion of the language in para. 62.
•           № 75:  This paragraph is significantly changed to conform to Pope Benedict’s earlier change to the voting procedures.  In effect, it now requires that of a Pope has not been elected after three days, they take a day for prayer, reflection and dialogue.  After that, the only two who may be elected (who have “passive voice”, to use the canonical term) are the two who received the highest number of votes in the last vote.  The person to be elected still needs at least a 2/3 vote to be validly elected, rather than the simple majority that Bl. Pope John Paul II has established.  The two who have “passive voice” (i.e., can be elected) do not have “active voice” (i.e., they may not vote, and their number does not count in determining the 2/3 majority).   
•           № 87:  Adds the two Masters of Ceremonies to those who are summoned into the election hall after the valid election of a Pope.

The Conclave: Setting the Date - UPDATED

UPDATE 2/26/13 - Renowned U.S. Canonist E. Peters offers some great commentary on the changes in Normas Nonnullas. As I did, he raises the question of how they can start early without all of the elector present. (For that reason I would suggest he amend his blog title from "Problem Solved" to "Problems Created"!)  He offers the following solution:

Well, I suggest that authorizing an earlier conclave under certain express conditions authorizes resort to reasonable means to determine whether those conditions have been met. Now Darmaatmadja and O’Brien have declared their intention not to enter the conclave. There is no reason not to think that those are free choices. So the opening date can be set without further notice of them

I think it is easier than that.  The law itself allows cardinals to be excused from voting.  They may be excused for illness, and Darmaatmadja is clearly covered by this.  By that alone, I think he would not count in determining whether they could permit early voting.  As I mention, the law also allows a cardinal to be absent for another grave reason.  But this can only be determined by the Cardinals.  The solution, it seems to me, for the case of O'Brien, would be for him to submit his intention not attend, citing his reason.  The other Cardinals could then vote to approve this as a sufficiently grave reason--if they truly believe that it is--and he would be excluded.  With that, and all other Cardinals present and accounted for, I believe they could begin.  Absent this, I do not believe the may begin early.

---

Original Post:

The Pope issued today a new motu proprio (Normas Nonnullas) amending the Apostolic Constitution which governs Papal Conclaves.  A number of changes were made, many of them small or technical.  One of the most expected changes was the decision regarding when the Conclave could begin.  The document is currently not available in English, only Latin and Italian.  From the Italian version:

lascio peraltro al Collegio dei Cardinali la facoltà di anticipare l’inizio del Conclave se consta della presenza di tutti i Cardinali elettori

Essentially, that means that it is left to the Cardinals the faculty to begin the Conclave early, so long as all of them are present.  This is a key point.

For in addition to this, the document requires all cardinals to respond to the convoking of the Conclave. Only those who are unable to attend by reason of illness or other grave impediment are excused. Moreover, it is up to the Cardinals as a body to decide what that means.

To take a real example, Cardinal O’Brian of Scotland has declared his intention not to attend the Conclave. I presume he means that he suffers from some impediment preventing his attendance. But what if the Cardinal-Electors decide that is not a sufficiently grave reason? Then they have to wait for him to attend before they can set an earlier vote. In other words, before they can vote to begin the voting early, they first have to determine that all the Cardinal electors are present, except those legitimately impeded. A Cardinal can always refuse to attend, but unless excused the Cardinals may not vote before the lapse of the 15 days.

So, the question is, when will the Conclave start?  The answer now is, we don't know.  We will have to wait for the Cardinals to gather on March 1 and tell us.

[I am happy to see, as I hoped, that in issuing the new motu proprio, the Pope also waived the vacatio legis and declared it would be promulgated in L'Osservatore Romano.]

Cardinals and the Conclave

The news media has been swirling with stories on a few of the Cardinal-electors for the upcoming conclave.  As a result of criticism of his handling of child abuse allegations in his long reign as Archbishop of Los Angeles, many are saying that Roger Cardinal Mahoney should not come to the Conclave and should not vote.  Following the recent resignation of Keith Cardinal O'Brien, he has publicly stated he will not attend the conclave.  There is a sense among some that this refusal to vote is some grand act of humility.  To the contrary, it is an act of lawlessness.

The law that governs the Conclave of Cardinals called to elect the Pope, (Universi domenici gregis (UDG)) establishes guidelines about the convocation of the electors.  The law says quite clearly in paragraph 7:

All the Cardinals who are not legitimately impeded must attend the General Congregations, once they have been informed of the vacancy of the Apostolic See.

Notice the language, the Cardinal-electors "must attend".  This is not optional.  It does not say they can attend, unless they decide not to.  The only exception is for those who may be "legitimately impeded".  What exactly does this mean.  UDG clarifies this a bit later in the document:

38.  All the Cardinal electors, convoked for the election of the new Pope by the Cardinal Dean, or by another Cardinal in his name, are required, in virtue of holy obedience, to obey the announcement of convocation and to proceed to the place designated for this purpose, unless they are hindered by sickness or by some other grave impediment, which however must be recognized as such by the College of Cardinals.

In his statement following his resignation, Cardinal O'Brien gave this as his reason for failing to attend the conclave:

I will not join them for this conclave in person. I do not wish media attention in Rome to be focused on me – but rather on Pope Benedict XVI and on his successor.

This is not a hindrance, nor is it particularly grave.  By grave hindrance means something like a Communist government threatening you if you go, or putting you in prison, or the like.  Moreover, the document is clear that the decision as to what is or what is not a "grave impediment" is not for the individual Cardinal to make.  He must submit himself to the judgment of his brother Cardinals, and they must decide whether not his proffered reason constitutes a grave impediment.

The fact of the matter is that the primary reason for the existence of the office of Cardinal is to elect a new Pope.  It is true that many enjoy other offices and functions in the Roman Curia, but the election is what defines them more than anything else.  None of the men in the conclave is perfect, and all have sinned.  But we must be guided by a commitment not to our own personal decisions, to an over-inflated sense of individualism, but to the law.  A civilized society is founded upon the rule of law, and we ought to strive to obey even when it is difficult.

I understand the impulse to want to protect others from the embarrassment of one's own mistake.  But in this case, this is not Cardinal O'Brien's decision to make.  I would argue, far from it being a laudable example of humility, it is instead an unfortunate act of lawlessness.

Early Conclave?

There has been much discussion in the media about the Conclave.   Two pieces of information have struck me as being incorrect.  The first regards the question of changing the date of the Conclave to make it earlier. The second is the earliest date on which the Conclave can begin. Click on the "Read More" button below to continue.

The Pope Resigns - A Q&A on what happens now (UPDATED)

UPDATED -- 12 Feb. 2013

By now, most people know the news that Pope Benedict XVI has offered his resignation as Bishop of Rome (and therefore as Supreme Pontiff) effective 28 February 2013 at 20:00 (Rome Time).  I thought I'd offer a bit of Q&A on what his means.

If people have specific questions, just ask in the ComBox, and I will try to answer them.  If anyone is interested and request (in the Com Box), I can do a Q&A for the Conclave itself once it begins.

Click on the "Read More" button below for the Q&A.