Right of Exclusion

Right of Exclusion

(Latin Jus Exclusivæ.

The alleged competence of the more important Catholic countries, Austria, France, and Spain, to indicate to their respective cardinal protector, or cardinal procurator, those members of the Sacred College who were personæ minus gratæ, so that, if there was a possibility of one of these becoming pope, the authorized cardinal might, before the decisive ballot, give his veto, in the name of his government, against such election.

At one time this veto was given orally; later it was given in writing. The cardinal protector, or cardinal procurator, who cast the veto, was, as a rule, that member of the Sacred College who had been created a cardinal at the desire of his government. This declaration could only be made at the last moment, for the reason that, by traditional usage, a government might invoke this alleged right only once at the same conclave, and consequently would not wish to employ it unnecessarily. A veto made after the election was not recognized.

Opinions differ widely as to the antiquity of this right. It cannot be proved that it is in any way related to the rights in the papal election, exercised by German kings and emperors in the early Middle Ages. Indeed, it was not until the sixteenth century, that the more important European countries obtained larger influence over papal elections, owing to the contentions of France, Spain, and the German emperor, for the control of Italy. These governments were originally satisfied with the so-called "ballot of exclusion", i.e., they sought to unite more than one-third of the voters against an undesirable candidate and thus make his election impossible, through lack of the necessary two-thirds majority. About the beginning of the seventeenth century, however, in the conclaves that elected Leo XI and Paul V (1605), Spain raised the claim, that it could exclude a candidate by a general declaration addressed to the College of Cardinals. Soon after, in the conclaves of 1644 and 1655, which elected, respectively, Innocent X and Alexander VII, and in both of which Cardinal Sacchetti was excluded as a candidate, the term used for this action was Jus Exclusivæ (right of exclusion). This right was, therefore, claimed about the middle of the seventeenth century; later dates suggested, e.g., 1691, or 1721, must be abandoned. It was also about the middle of the seventeenth century that treatises and polemic writings began to appear, in which the alleged right of exclusion was discussed; among such controversialists were the Cardinals Albizzi and Lugo.

In the following period repeated use was made of this so-called right. In 1721 the German emperor formally excluded Cardinal Paolucci; in 1730 the King of Spain excluded Cardinal Imperiali; in 1758 France exercised this right to exclude Cardinal Cavalchini. In the nineteenth century Austria maintained the right of exclusion, in 1830, against Cardinal Severoli, and Spain, in 1830, against Cardinal Giustiniani; in 1903 Austria again exercised this right, this time against Cardinal Rampolla.

As a matter of fact, no government has a right to exercise any veto in a papal election. On the contrary the popes have expressly repudiated the exercise of such right. Pius IV in the Bull "In eligendis", of 9 October, 1562 (Magnum Bullarium, II, 97 sqq.), ordered the cardinals to elect a pope "Principum sæcularium intercessionibus, cæterisque mundanis respectibus, minime attentis" (without any regard to the interference of secular rulers, or to other human considerations). That he meant thereby what is now known as the right of exclusion cannot, indeed, be proved; according to the foregoing account of its origin such claim did not then exist. Gregory XV, in the Bull "Æterni Patris Filius" (15 November, 1621, in "Magnum Bullarium", III, 444 sqq.) declared authoritatively:

"Cardinales omnino abstineant ab omnibus pactionibus, conventionibus, promissionibus, intendimentis, condictis, foederibus, aliis quibuscunque obligationibus, minis, signis, contrasignis suffragiorum seu schedularum, aut aliis tam verbo quam scripto aut quomodocunque dandis aut petendis, tam respectu inclusionis quam exclusionis, tam unius person quam plurium aut certi generis, etc.",

the sense of which is, that the cardinals must abstain from all agreements, and from acts of any kind, which might be construed as binding them to include or exclude any one candidate, or several, or candidates of a certain class. It may be that the pope does not even here refer to exclusion by a state, but only to the so-called "ballot of exclusion"; it has already been stated, however, that the governments at this time laid claim to a formal right of exclusion. In the Bull "Apostolatus officium" (11 October, 1732, in "Magnum Bullarium", XIV, 248 sqq.) Clement XII ordered the cardinals in the words of Pius IV, already quoted, to elect, "principum sæcularium intercessionibus cæterisque mundanis respectibus . . . minime attentis et postpositis" (i.e. without regard to the interference of secular rulers or to other human considerations).

By this time, however, governmental exclusion had long been the accepted form of the interference of secular rulers (intercessio principum) in papal elections. It is, therefore, precisely this exclusion which the pope forbids. This command has all the more weight since we know that this pope was urged to recognize, within certain limits, the right of exclusion put forth by the Catholic states; in the minutes of the deliberations of the commission of cardinals appointed to draw up this Bull the right of exclusion is explicitly characterized as an abuse. By the Constitution "In hâc sublimi", of 23 August, 1871 (Archiv für kath. Kirchenrecht, 1891, LXV, 303 sqq.), Pius IX forbade any interference of the secular power in papal elections.

It is plain, therefore, that the popes have rejected all right of exclusion by a Catholic state in a papal election. Nor can it be admitted that this right has arisen through custom. None of the requisites essential to the growth of a customary right are present; reasonableness and prescription are especially lacking. To debar precisely the most capable candidates is an onerous limitation of the liberty of the electors, and injurious to the Church. Moreover, the cases of exclusion by Catholic states are too few to permit the inference of a right acquired by customary possession. Recent legislation by Pope Pius X has absolutely repudiated and abolished forever this Jus Exclusivae. In the Constitution "Commissum Nobis" (20 Jan., 1904) he declared that the Apostolic See had never approved the civil veto, though previous legislation had not succeeded in preventing it: "Wherefore in virtue of holy obedience, under threat of the Divine judgment, and pain of excommunication latæ sententiæ . . . . . we prohibit the cardinals of the Holy Roman Church, all and single, and likewise the Secretary of the Sacred College of Cardinals, and all others who take part in the conclave, to receive even under the form of a simple desire the office of proposing the veto in whatever manner, either by writing or by word of mouth . . . . . And it is our will that this prohibition be extended . . . . . to all intercessions, etc. . . . . by which the lay powers endeavour to intrude themselves in the election of a pontiff . . . . .

"Let no man infringe this our inhibition . . . . . under pain of incurring the indignation of God Almighty and of his Apostles, Sts. Peter and Paul." The new form of oath to be taken by all cardinals contains these words: "we shall never in any way accept, under any pretext, from any civil power whatever, the office of proposing a veto of exclusion even under the form of a mere desire . . . and we shall never lend favour to any intervention, or intercession, or any other method whatever, by which the lay powers of any grade or order may wish to interfere in the election of a pontiff".

WAHRMUND, Das Ausschliessungsrecht (jus exclusivae) der kath. Staaten Oesterr., Frankr. und Span. bei den Papstwahlen (Vienna, 1888); IDEM, Die Bulle "Aeterni Patris Filius" und der staatl. Einfluss auf die Papstwahlen in Archiv fur kath. Kirchenrecht (1894), LXXII, 201 sqq.; SÄGMÜLLER, Die Papstwahlen und die Staaten von 1447 bis 1555 (Tubingen, 1890); IDEM, Die Papstwahlbullen und das staatl. Recht der Exclusive in der Papstwahl (Tubingen, 1892); IDEM, Das Recht der Exclusive in der Papstwahl in Archiv. fur kath. Kirchenrecht (1895), LXXIII, 193 sqq.; LECTOR, Le conclave (Paris, 1894); GIOBBIO, Austria, Francia e Spagna e l'Esclusiva nel Conclave (Rome, 1903); PIVANO, Il diritto di Veto, "Jus Exclusivae", nell'elezione del Pontefice (Turin, 1905), VIDAL, Le veto d'exclusion en mati re d'election pontificale (Toulouse, 1906); MACK, Das Recht der Exclusive bei der Papstwahl (Leipzig, 1906); HERRE, Papstum und Papstwahl im Zeitalter Phillips II. (Leipzig, 1907); EISLER, Das Veto der kath. Staaten bei der Papstwahl seit dem Ende des 16. Jahrhunderts (Vienna, 1907); EVRARD, Le droit de veto dans les conclaves (Paris, 1908); THURSTON, The Intervention of the State in the Papal Elections in The Month (1903).

JOHANNES BAPTIST SÄGMÜLLER