Ivereigh + UDG 81 = A Radical Problem for the Pope

Br. Alexis Bugnolo wrote this article in Rome on November 27, 2014, on the stunning revelation contained in Dr. Austen Ivereigh's book, the Great Reformer: Francis and the making of a Radical Pope—a book which, unbeknownst to both men, Francis 1 and Ivereigh, would within a week be the cause of great consternation for them both:

Screen shot, of Dr. Ivereigh’s twitter timeline: 
Nov. 21, 2014 A. D.

As John Bingham, a reporter for the Telegraph, in the UK, reported the next day, Dr. Ivereigh’s book contained the stunning revelation that certain supporters of Jorge Cardinal Bergoglio — whom he names, “Team Bergoglio”— canvassed for his support in the days prior to the Conclave of 2013.

Last Friday, His Holiness Pope Francis had the occasion to receive from Dr. Austen Ivereigh, a copy of his new book, the Great Reformer: Francis and the making of a Radical Pope which unbeknownst to both men, would within a week be the cause of great consternation for them both.

As John Bingham, a reporter for the Telegraph, in the UK, reported the next day, Dr. Ivereigh’s book contained the stunning revelation that certain supporters of Jorge Cardinal Bergoglio — whom he names, “Team Bergoglio”— canvassed for his support in the days prior to the Conclave of 2013.

The Curious denial of Ivereigh

A key fact alleged in the book, namely, that Cardinal Bergoglio expressly consented to the work of Team Bergoglio, was denied in a letter published on the Daily Telegraph Letter’s Page, print edition, by Maggie Doherty, the press-secretary to Cardinal Murphy-O’Connor.  The text of that letter reads:

As I surmised, yesterday, here at the From Rome blog, in my article entitled, “If Ivereigh is to be believed, was Bergoglio’s election invalid?”, the version of events reportedly asserted in Ivereigh’s book, presents the opportunity of a grave canonical challenge to the validity of Pope Francis’ election to the office of Roman Pontiff.

Maggie Doherty’s statement is remarkable for several reasons. The first of which, is that Dr. Ivereigh is, himself, a former secretary to Cormac Cardinal Murphy-O’Connor, a close confident as any Cardinal could have, someone who would be de officio familiar and friendly with all the friends and colleagues of the Cardinal the world over, seeing that it would have been his duty to interact and communicate daily with each and every one of them.  From such experience, Dr. Ivereigh could have legitimately acquired a vast network of contacts from which he could have first hand information of all which regarded the events prior to the Conclave of 2013; information which could be freely offered him, since the Apostolic Constitution regarding the elections of the Roman Pontiff (Universi Dominici Gregis), penalizes only the divulging of information regarding affairs which occurred in or during the conclave itself.

The second of which, I mentioned yesterday, is that if there were no adverse consequences of the facts presented in Dr. Ivereigh’s book, The Great Reformer, then there would be no need for Maggie Doherty to issue a denial, let alone in the form of a letter to the editor!

The third remarkable aspect of her letter is that it speaks only of Cardinal Bergoglio, and denies only that he was approached or consented to the canvassing of votes.  This denial makes it appear that Cardinal Murphy-O’Connor was acting, in divulging it, to protect the reputation of the Pope, perhaps, even on the request of the Vatican Secretary of State.

The fourth remarkable aspect is that she denied only the activities of Cardinals, and said nothing regarding the activities of Bishops or priests or others who may have been involved.

The fifth remarkable aspect is that Maggie Doherty says, “What occurred during the Conclave … is bound by secrecy”.  This is grammatically and canonically not correct.  All who participated in the Conclave are by Pope John Paul II’s aforementioned Apostolic Constitution bound to keep secrecy. (Cardinals promise this in n. 12; all participating are bound to secrecy in n. 47; there is an entire Chapter, the fourth, on it; and in n. 47).  And in n. 58 of that document, the penalty of excommunication is imposed for its violation. But if the Pope permits, this secrecy can be broken. So it is not the events that are bound, but the persons.  Her statement is remarkable in this respect, because it speaks of an undue haste in its composition, without the counsel, at least, of an expert in canon law to review it. (This argues for the possibility that she wrote the letter at the personal request of Cardinal Murphy-O’Connor, which we shall now see, Ivereigh would confirm).

The Thicket into which Ivereigh fell on that account

Dr. Austen Ivereigh, hours after the publication of Doherty’s letter to the editor — and after the publication of my own questioning blog post (If Ivereigh is to be believed, was Bergoglio’s election invalid?, which drew out and explicated the canonical problem resulting from the reported claims of his book) —  retracted what he said on his Twitter Feed, at 3 AM on Nov. 25, writing in reference to the print edition of his book, already on sale in the USA/UK:

“They secured his assent” (p. 355) shd have read “They believed he wd not oppose his election”. Will amend in future eds.#TheGreatReformer

Which is Twitter abbreviated speak, I surmise and explicate, for:

Where I wrote, “They secured his assent” on p. 355, it should have read, “They believe he would not oppose his own election.”  I will amend this in future editions of my book, The Great Reformer.

In another tweet, Dr. Ivereigh included the image of Doherty’s letter, with the message:

+CMOC clarifies in today’s Daily Telegraph letters page

Which lets us know that Doherty acted at the express direction of the Cardinal; somewhat reluctantly admitted, with the positive spin therein, by Dr. Ivereigh.  All this within the first week of the books publication!

All this, so far, by way of introduction. Now, I will cut to the chase, as it were: 

Ivereigh + UDG 81 = A Radical Problem for the Pope

What Ivereigh has, nevertheless, alleged and yet not denied, and what Cardinal Murphy-O’Connor has not yet denied, as far as I know, is that votes were canvassed.

And paragraph 81 of John Paul II’s law, Universi Domini Gregis, makes that an excommunicatable offense.  Yesterday, I erred, when I said “certain” form of canvassing was prohibited. Today, looking at the Latin original of the law, it appears rather that all forms of vote canvassing are prohibited.

Let’s take a look, then, at the Latin original, to understand better how, not just any specific form of vote canvassing is a crime according to the Pope who “brought down the Wall”:

81. Cardinales electores praeterea abstineant ab omnibus pactionibus, conventionibus, promissionibus aliisque quibusvis obligationibus, quibus astringi possint ad suffragium cuidam vel quibusdam dandum aut recusandum. Quae omnia, si reapse intervenerint, etiam iure iurando adiecto, decernimus ea nulla et irrita esse, neque eadem observandi obligatione quemquam teneri; facientes contra iam nunc poena excommunicationis latae sententiae innodamus. Vetari tamen non intellegimus, ne per tempus Sedis vacantis de electione sententiae invicem communicentur.

The official English translation from the Vatican Website, renders this text, thus:

81. The Cardinal electors shall further abstain from any form of pact, agreement, promise or other commitment of any kind which could oblige them to give or deny their vote to a person or persons. If this were in fact done, even under oath, I decree that such a commitment shall be null and void and that no one shall be bound to observe it; and I hereby impose the penalty of excommunication latae sententiae upon those who violate this prohibition. It is not my intention however to forbid, during the period in which the See is vacant, the exchange of views concerning the election.

This translation is not exact.  Here is my own exact translation:

81. Let the Cardinal electors, moreover, abstain from all pacts, agreements, promises and any other obligations you like, by which they might be constrained to give or refuse support (suffragium) for anyone (sing. & plural).  All of which, if these were to occur, even when with a foreswearing, We decree are null and void, and none of them are to be held by any obligation of observance; those acting against (this), We now, hereby, bind up with the punishment of excommunication latae sententiae.  Yet, We do not understand to be forbidden, that they communicate with one another concerning the election, during the time of the Sedevacante.

Now, the problem which arises for Pope Francis, from this, I have pointed out in my blog post yesterday, namely, that an election in which those who might fall under excommunication for violation of this law, expressed in n. 81, might be contested as to its validity.  This on account of the general norm of Canon Law (canon 171, § 2), which expressly declares invalid the elections of those who obtained the required number only in virtue of votes of those who were  excommunicated at the time of the election (cf. 171, § 1, 3°).

Such excommunication could be by special or general declaration, of a superior or by a law.  Thus, the papal Law on Elections.

The sticky wicket, as it were, is that the common objection one hears to such formerly hypothetical discussions is that paragraph n. 35, of the Apostolic Constitution withstands this interpretation.

Let’s quote that here, for the importance that it is due.  The text of this paragraph was slightly altered by Pope Benedict XVI, in his decree, Normals nonnullas, just a month before the conclave of 2013.  The modified text reads:

No. 35. “No Cardinal elector can be excluded from active or passive voice in the election of the Supreme Pontiff, for any reason or pretext, with due regard for the provisions of Nos. 40 and 75 of this Constitution.”

(The small addition of the citation to n. 75, is all that was made.)

Any objection on the basis of paragraph 35, which would counter the claim of an invalid election on account of excommunicated voters, seems very probable at first inspection, but fails the test of a strict reading of papal law.

Because, if paragraph 35 excused doubt of the validity of an election in which excommunicated Cardinal electors participated, as a similar provision in the law of Pope Pius XII did do, then, there would have been no need for Pope John Paul II in his own law, which abrogated all the terms of previous papal laws specifically regarding Papal Elections, to state in n. 78 (see yesterdays report for text) the necessity of indulging an election, in which simony was involved, with validity, to remove all such doubts arising from a general norm of canon law or a specific penalty regarding simony. And thus, if there is a general norm or specific penalty which invalidates elections for other reasons, then one must presume it remains in force (cf. Canons 20 & 21).

Moreso, because paragraph 35 does not regard specifically the validity of elections, only the right of the Cardinals to vote.¹  But Canon 171, § 2 does not deny the right of excommunicated electors to vote, only the validity of. elections in which they participate These are 2 separate things; and according to the norms of canonical interpretation, the distinction must be recognized as that which was intended by the legislator.² This interpretation seems more probable, because of Canon 164, which applies the entire section of canons regarding elections to all ecclesiastical elections,³ and because of the norm of canonical interpretation, that laws which do not expressly or directly conflict, are not to be understood as doing so. Thus, the failure to explicitly include the words “or excommunication” in paragraph 35 of UDG, lends to the credence that it does not abrogate Canon 171, § 1, 3°, the validity of the election in which such voters participating, being apparently annulled in some such cases, consequently, in virtue of Canon 171, §2.

Thus, the allegations of Ivereigh + the terms of Universi Dominic Gregis, n. 81 = a Radical problem for the legitimacy of Cardinal Bergoglio’s claim to the Papacy.

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FOOTNOTES

¹ And this without any apparent reference to Canon 171.  For just as it seems incredible that Pope John Paul II in UDC would allow the mad (Canon 171, § 1, 1°) or the schismatic (4°) to vote; hence, similarly, neither those mentioned in 3°, the excommunicated. Thus, it seems more probable that paragraph 35 in UDC is reaffirms the right of the Cardinals not to fall under of Canon 171, § 1, 2° by any claim that might arise during the Conclave from other Cardinals’ accusations.

² However, I remain in the opinion, regarding these matters, as one who is a mere student of Canon Law, not an expert, and certainly not as one whose opinion on how to read it, is anything probative of itself.

³ Including Conclaves: cf. the commentary contained in Codice di Diritto Canonico, a cura di Juan Ignacio Arrieta, Colletti a San Pietro 2004, p. 163.