Roma Locuta Est

September 17, 2019 (Steven O’Reilly) – As I have previously argued and stated on this blog, I believe one must accept Pope Francis as pope, given all available evidence, outward form and procedure, etc. I reject, for example, all suggestions that Benedict is still pope, and have argued that for quite some time (see note 1). All that said, if concrete and credible evidence to the contrary were to surface — perhaps regarding violations Universi Dominici Gregis, then only a future pope (or possibly the College of Cardinals) could rule definitively on the validity of the results of the 2013 conclave.

If only for the historical record at this point, Roma Locuta Est continues to look into issues and events surrounding the 2013 conclave. For example, Roma Locuta Est has offered a theory as to the potential identity of McCarrick’s The “Influential Italian Gentleman”.  Also, we’ve identified a possible violation of UDG rules by Cardinal Murphy-O’Connor (see 2013 Conclave: Was there a violation of Universi Dominici Gregis 12?), which may also touch upon the cardinal’s credibility regarding his denials of a campaign to elect Cardinal Bergoglio.

Aside from the above, Roma Locuta Est has also explored the topic of Cardinal Bergoglio, S.J., and his Jesuit vows (see Curiouser and Curiouser: Who Dispensed Jorge Bergoglio SJ from his vows?). This current article returns to the questions raised there. All Jesuits make the following vow (emphasis added):

“I also promise that I will never strive for or ambition any prelacy or dignity outside the Society; and I will to the best of my ability never consent to my election unless I am forced to do so by obedience to him who can order me under penalty of sin.” (see here)

If Jesuits take this vow, how then did Cardinal Bergoglio “consent to his election”?  I am not saying he couldn’t properly “consent to his election” or that he didn’t give such  consent. I am interested in how this was done. In other words, as I said in my original article, I just do not like loose ends, and this seems to be one: who dispensed Jorge Bergoglio, S.J., from his Jesuit vows?

I am not asserting Pope Francis is not pope. The original question came to me from inside the Jesuit order.  As I detail in my article, quoting many Jesuits (most favorable to Pope Francis), the Jesuits don’t seem to have a clear and ready answer to the question.  In the article, I did cite canon law (cf Canon 1191) and scripture (cf. Deuteronomy 23:21-23) on vows and the need to honor them. So, I just wanted to know who dispensed Cardinal Bergoglio from his vows. The theoretical possibility this may not have happened, raised an interesting hypothetical:  was Cardinal Bergoglio’s election valid, but his acceptance of the election “invalid”?

I have sought for some time to raise the issue with someone with a canon law background and expertise in hopes of receiving feedback and commentary on the question. Recently, I had discussion via email with a priest, who I will not name, who kindly did just that.  I offered and promised not to name him. This priest said I could describe him as “a priest with a Licentiate in Canon Law (JCL) and curial experience.” The reader should keep in mind…I do not have any training in canon law. 

Below, I provide the substance of our back and forth below.  The priest’s comments are given as written, though I have inserted paragraph breaks for ease of reading. My comments below are substantially what I wrote in the original emails, though I have taken the liberty here to further amplify some points over and above my original responses.

To begin, I forwarded the priest a link to my article.  Our discussion follows.

Priest: 

“You want to look at the Code of Canon Law, Can. 705  “A religious raised to the episcopate remains a member of his institute but is subject only to the Roman Pontiff by virtue of the vow of obedience and is not bound by obligations which he himself prudently judges cannot be reconciled with his condition.”

I don’t believe a dispensation is necessary because it happens ipso facto by application of law when a religious is ordained a bishop.  Since the man is now a Successor to the Apostles, much relies on his own prudential judgment.”

O’Reilly:

Can. 705 states the religious raised to episcopate remain a “member of his institute.” As you note, can. 705 states the one raised, such as Fr, Bergoglio S.J., , is “not bound by obligations which he himself prudently judges cannot be reconciled with his condition” — that condition being bishop. The sort of “obligation” not reconcilable with being a bishop is one like the vow of poverty (see Can. 706), as a bishop must hold property in his position. Also, as you note, Can. 705 has in mind the vow of obedience. Certainly, it would be unthinkable any bishop might be first subject to the superior of their own institute rather than to the pope.  Thus, it is clear a vow of poverty or obedience (to someone other than the pope), clearly, would interfere with being a bishop.

However, such considerations do not appear to apply to the Jesuit vow not to ambition for or to accept higher office in the Church. A vow not to accept the Petrine office is implicit in a vow not to accept higher office in the Church.  It seems to me that such a vow cannot be seen as inherently irreconcilable with being a bishop. Whereas not being able to own property, or being subject to another in obedience before the pope are by their nature irreconcilable with being a bishop, the future and hypothetical possibility of being elected the Successor of Peter is in itself neither essential nor necessary to the office or ministry of one’s current condition as bishop.  Therefore, it still appears to me, a vow not to accept the Petrine office — implicit in a vow not to accept higher office in the Church — cannot be deemed to be irreconcilable with being a bishop in the present moment.

Given that, can. 705 should not be read as freeing a Jesuit, raised to bishop or cardinal, from observing his vow not to accept or ambition for still higher office (i.e., the office of the Successor of St. Peter) unless specifically released or ‘dispensed’ from observing this vow by the Roman pontiff.  I am not saying he was not so dispensed, but if this analysis is fair, it seems to me, the onus of proof was on Cardinal Bergoglio at the moment of his election to demonstrate he was so released either by Pope John Paul II, Pope Benedict XVI or a Jesuit Superior General.

Priest:

“First of all, I think there is a distinction between solemn vows (poverty, chastity and obedience) and simple vows.  The Code is primarily concerned with solemn vows, that’s why can. 705 is specifically about obedience and can. 706 is about poverty.  Clearly, chastity doesn’t change.  And you probably know that the Jesuits take a fourth solemn vow of special obedience to the Pope in matters regarding mission.  The other five vows they take are called “simple vows,” one of which you cite.

I would imagine that Bergoglio reminded the Pope of that vow when he was named a bishop, as would be customary.  But once he was ordained a bishop, he no longer had a “superior” under Canon Law; his vow of obedience shifted to the Pope by virtue of can. 705.  Given that he is the first Jesuit Pope, it’s natural that this question has come up about that simple vow.  However, upon the effective resignation of Pope Benedict XVI there would be no one who could “dispense” Bergoglio from that simple vow, unless we can attribute that authority to the Cardinal-electors.  He would then rely on his own prudential judgment as a Successor of the Apostles.

One doesn’t know what happened in the Conclave.  Perhaps he mentioned that vow to the Cardinal-electors, perhaps not.  But upon his election as Pope, the vow was either effectively dispensed by the Cardinal-electors or it disappeared by virtue of his new office. You’ve made some interesting speculations, since the entire episode is de novo, but I think the issue is moot.  Now that Francis is Pope, can. 1404 becomes operative “The First See is judged by no one.

 

O’Reilly:

A few observations.

You say “Given that he is the first Jesuit Pope, it’s natural that this question has come up about that simple vow.  However, upon the effective resignation of Pope Benedict XVI there would be no one who could “dispense” Bergoglio from that simple vow, unless we can attribute that authority to the Cardinal-electors.  He would then rely on his own prudential judgment as a Successor of the Apostles.”

I believe your comment here does not resolve the question. I do agree with you that with the effective resignation of Benedict XVI “there would be no one who could “dispense” Bergoglio from that simple vow, unless we can attribute that authority to the Cardinal electors.”

However, I disagree with you that that it follows “He would then rely on his own prudential judgment as a Successor of the Apostles.” Bergoglio took a vow not to accept higher office. While there might not be anyone at a given moment in time to release or dispense him from his vow, it does not seem to me that this in itself provides adequate justification for Bergoglio — or anyone under any vow  — to release himself or herself from a vow.  One should observe a vow, at least until a proper authority releases one. As canon law states:

“A vow, that is, a deliberate and free promise made to God about a possible and better good, must be fulfilled by reason of the virtue of religion” (Canon 1191).

Similarly, St. Thomas Aquinas discusses the binding value of a vow before God (Summa Theologica II-II, Q 88, A 3, R 3), and scripture says:  “When thou hast made a vow to the Lord thy God thou shalt not delay to pay it: because the Lord thy God will require it; and if thou delay, it shall be imputed to thee for a sin,” and “That which is once gone out of thy lips, thou shalt observe, and shalt do as thou hast promised to the Lord thy God, and hast spoken with thy own will and with thy own mouth” (Deuteronomy 23:21-23).

You wrote toward the end “But upon his election as Pope, the vow was either effectively dispensed by the Cardinal-electors or it disappeared by virtue of his new office. ” First, regarding the latter point, it does not appear logical to me to suggest that a vow not to accept the Chair of Peter — implicit in a vow not to accept a higher office in the Church — disappears when one is elected to the Chair of Peter.  What then was the point of the vow if one were to accept what one promised not to accept?

Second, regarding the suggestion the vow may have been “effectively dispensed by the Cardinal-electors,” this too does not seem supportable. The papal legislation governing conclaves states the cardinal-electors have no power or jurisdiction concerning matters under the authority of the Roman pontiff:  “During the vacancy of the Apostolic See, the College of Cardinals has no power or jurisdiction in matters which pertain to the Supreme Pontiff during his lifetime or in the exercise of his office…” (Universi Dominici Gregis 1). Thus, it does not appear to me the cardinal-electors could act in the Roman pontiff’s place to dispense Cardinal Bergoglio. Further, as cited in my article, the example of the 2nd Council of Lyon suggests that electors in an ecclesiastical election (at least) cannot dispense the need for the one elected to gain prior approval from a superior to accept his election.[see note 2] As a side note, none of the accounts of the election of Pope Francis suggest he notified the electors of his vow, or that they had to prevail upon him to accept the papacy despite his vow.

This leaves the final hurdle — that the vow “disappeared by virtue of his new office.”  My reply to that is, a vow “not to take a higher office” — by its very nature — cannot disappear in virtue of being elected to a “higher office.” That might be like saying the vow of poverty is dispensed by the very act of receiving property. Such a moment was the very heart, nature and purpose of the vow. Thus, this vow not to accept higher office, more than any other (it would seem), must be dispensed because the one, having taken this vow, is not free before God to accept the new office.

In sum, it seems to me, absent such proper dispensation, there is an argument to be made that there was not only a canonical law prohibition for Bergoglio to accept the papacy, but one of Divine law (per scripture, and see also commentary by Thomas Aquinas cited in my article). As scripture says regarding the fulfillment of a vow: ‘God will require it.’

Priest

“I do admire your persistence.  So, I decided to crack the Code and read some of the commentary.   First, the Code and other laws of the Church must be understood in terms of the long history of ecclesiology.  Once a man is ordained a Bishop, his status vis a vis the Church has definitively changed.  He is now a Successor of the Apostles and subject to no one’s judgement save the Holy Father.  That has been the largest problem in dealing with bishops such as McCarrick.  They are not subject to anyone in the Church except the Holy Father.  It’s not a legal issue, but an ecclesiological issue.  And that’s the purpose of can. 705 insofar as religious priests are concerned.

From the commentary I’ve read on can. 705, a religious who has been ordained a bishop is effectively dispensed from any “not bound by obligations which he himself prudently judges cannot be reconciled with his condition.” As a Successor of the Apostles he has the fullness of the offices of sanctifying, teaching and governing.  He is no longer subject to anyone except the Holy Father.  In effect, he is the judge – according to his prudence – as to the applicability of any vows he has taken.  The Code covers obedience and poverty, and chastity remains, but any other vow would be subject to his prudential judgment.  In effect, he does not need a dispensation because, as a bishop, he can decide which vows cannot be reconciled with his condition.”

O’Reilly:

“And, I admire your patience.”

As to what you say, the difficulty I see is that a vow is ultimately before God. These cannot be dispensed by the individual who made them, unless, as with can. 705 and 706 these are obligations related to and irreconcilable with a new condition (i.e., being bishop).  If that proviso in can. 705 covered all obligations/vows, there would have been no need to qualify them, i.e., as those prudentially judged to be irreconcilable with the condition of being bishop.

There are qualified dispensations (i.e., vows of poverty and obedience), and indeed a very broad allowance for prudential judgment — but with the proviso the obligation is irreconcilable with the condition of being bishop. But, clearly, not all prior obligations are irreconcilable with being bishop. There are in fact obligations that persist “beyond” can. 705 — even in consideration of the man being a successor to the apostles — such as an obvious one like remaining chaste.  But, as I try to argue above, a vow not to accept the Petrine office — clearly implicit in the Jesuit vow not to accept higher offices in the Church — doesn’t fall into the category of an obligation that is irreconcilable with being a bishop, but it is irreconcilable with accepting an election to the Petrine office.

Final Thoughts

I thank the priest in question for taking the time and having the patience to interact with me.  Greatly appreciated, Father…if you’re “out there.”

To be clear, neither my original article (see Curiouser and Curiouser: Who Dispensed Jorge Bergoglio SJ from his vows?) on the question of Jorge Bergoglio, S.J., and his Jesuit vows, nor this current article is asserting Pope Francis’s election was, in fact, null on this point.  Only a future Roman pontiff, it seems to me, could decide that.

As said earlier, the original question came to me from Jesuit circles, and I thought it a fascinating question. I just wanted the answer as to how it was explained away in a way that does not present in itself its own theological or logical difficulties. However, the more I did look into it, the greater my curiosity became for the reasons outlined in that original article. I must say, writing that article, and its several updates along the way, I did not find a satisfying explanation.

The priest who I quote in this present article has canon law training and expertise. I do not. In response to the priest’s argument, I did provide what I believe are some common sense observations — but, again, these are not informed by training in canon law (NB: If other canon lawyers or theologians would like to send me comments — on either side of the discussion, my contact info is given further below. All names and correspondence will be kept confidential, unless otherwise specified by the correspondent).

Still, as improbable or outlandish as my observations may in fact be, might another canon lawyer or theologian argue the potential invalidity of Bergoglio’s acceptance of the papacy on these or similar grounds? I don’t know. But, I do wonder. Given the Roman Pontiff is the supreme legislator and interpreter of canon law, is it hypothetically possible a future pope could interpret canon law in such a way — perhaps along a line similar to what I outlined above; and then authoritatively nullify Cardinal Jorge Bergoglio’s acceptance of his election?

That question is hypothetical and speculative. In the meantime, based on all information available, we must accept Pope Francis as pope. Let us pray for Pope Francis that he remembers the Lord’s words to Peter: “Simon, Simon, behold Satan hath desired to have you, that he may sift you like wheat. But I have prayed for thee, that thy faith fail not: and thou being once converted, confirm thy brethren” (Luke 22:31-32).

Steven O’Reilly is a graduate of the University of Dallas and the Georgia Institute of Technology. A former intelligence officer, he and his wife, Margaret, live near Atlanta with their family. He has written apologetic articles and is working on a historical-adventure trilogy, entitled Pia Fidelis, set during the time of the Arian crisis. The first book of the Pia Fidelis trilogy. The Two Kingdoms, should be out later this summer or by early fall (Follow on twitter at @fidelispia for updates). He asks for your prayers for his intentions.  He can be contacted at StevenOReilly@AOL.com (or follow on Twitter: @S_OReilly_USA).

 

Notes:

Note 1: (see Thoughts on Free Will and Hypothetical Papal Plots) or was it a “partial” or bifurcated one (see Benedict is NOT pope; Benedict is STILL not Pope; and Benedict is really, really still not pope! Really!).  In addition, articles addressed other questions as well  (e.g., see Against the Arguments that Claim Benedict XVI is STILL Pope,  Benedict is Still Pope and Other Errors). Also see Did Benedict XVI resign because of threats? One reader even penned a “testimony” regarding the reader’s former beliefs on the question, which Roma Locuta Est printed (see The Testimony of a former Benevacantist).

Note 2: On the question of whether the electors can “command” or authorize someone to accept his ecclesiastical election irrespective of any obligation he may be under which would otherwise require the permission of a superior – or alternatively, that someone is free to accept his election without obtaining permission in such a case, the proceedings of the Second Council of Lyon (1274) would seem to suggest not.  This Council established rules governing papal and other ecclesiastical elections at the time. In its second Constitution entitled “On election and the power of the elected person” in section 5 it is stated (emphasis added):

5. {12} Not only do the laws bear witness but also experience, that effective teacher of reality, makes clear how damaging to churches is their vacancy, how dangerous it usually is to souls. Desirous, then, of counteracting the long duration of vacancies by suitable remedies, we make a perpetual decree that after there has been an election in any church, the electors are obliged to inform the elect as soon as conveniently possible and to ask his consent. The elect in his turn is to give it within a month from the day of being informed. If the elect delays beyond this, he is to know that from then on he is deprived of the right he would have acquired from his election,unless perhaps his condition is such that he cannot consent to his election without his superior’s leave, on account of a prohibition or some disposition of the apostolic see {13} . The elect or his electors must then earnestly seek and gain the superior’s leave as quickly as his presence or absence will permit. Otherwise, if the time has expired, even with the allowance made for the presence or absence of the superior, and permission has not been obtained, the electors are then free to proceed to another election. Furthermore, any elect must ask for confirmation of his election within three months after giving consent. If without lawful impediment he omits to do this within such a three-month period, the election is by that very fact null and void. (Second Council of Lyons, Constitutions II, 5)

My point here is to state that the principle is not what Matt Spotts S.J., suggests (See Spotts S.J., comments in my original article here).  That is to say, contrary to Spotts S.J., that the electors’ can neither “command” the one elected to accept, nor dispense him of the requirement to obtain permission if such is needed. It appears quite evident that where such permission is not obtained, the one elected is not free to accept his election. The Council held that if “permission has not been obtained, the electors then are free to proceed to another election.” While the council is speaking broadly of ecclesiastical elections, the principle would seem to hold in a papal election as well if there is a case where the elected needs permission from a superior to accept. Thus, the solution suggested by Matt Spotts S.J. does not appear to be sufficient on these grounds, if we assume – arguendo – that Jorge Bergoglio S.J. going into the 2013 conclave needed permission from the Superior General of the Jesuit order to accept his election.