( Latin electio , from eligere , to choose from)
This subject will be treated under the following heads:I. Juridical Concept;
In its broadest sense election means a choice among many persons, things, or sides to be taken. In the stricter juridical sense it means the choice of one person among many for a definite charge or function. If we confine ourselves to ecclesiastical law, canonical election, in a broad sense, would be any designation of a person to an ecclesiastical charge or function; thus understood it includes various modes: postulation, presentation, nomination, recommendation, request or petition, and, finally, free collation. In a narrower sense, election is the canonical appointment, by legitimate electors, of a fit person to an ecclesiastical office. Its effect is to confer on the person thus elected an actual right to the benefice or charge, independently of the confirmation or collation ulteriorly necessary. Hence it is easily distinguished from the aforesaid modes that only in a broad sense can be termed election.
Electors are those who are called by ecclesiastical law or statute to constitute an electoral college, i.e. to designate the person of their choice, and who have the qualifications required for the exercise of their right to vote. The law appoints competent electors for each kind of election: cardinals for the election of a pope; the cathedral chapter for the election of a bishop or a vicar capitular ; and the various chapters of their order, etc. for the election of regular prelates. In general, election belongs, strictly speaking, to the college, i.e. the body, of which the person elected will become the superior or prelate ; if this college have a legal existence, like a cathedral chapter, it can exercise its right as long as it exists, even if reduced to a single member, though, of course, such a one could not elect himself. Electors called upon to give a prelate to the Church must be ecclesiastics. Hence laymen are excluded from all participation in a canonical election; it would be invalid, not only if made by them exclusively (c. iii, h. t.), but even if they only co-operate with ecclesiastics, every custom to the contrary notwithstanding. Ecclesiastics alone, and those only who compose the college or community to be provided with a head, can be electors. This is well exemplified in the cathedral chapter, all of whose canons, and they alone, are episcopal electors. Other ecclesiastics have no right to associate with the chapter in the election of a bishop, unless; —
To exercise their right, the electors, whoever they may be, must be full members of the body to which they belong, and must, moreover, be in a condition to perform a juridical, human act. Hence natural law excludes the demented and those who have not reached the age of puberty; ecclesiastical law debars; —
Moreover, in punishment of certain offences, some electors may have forfeited their right to elect, either for once or permanently, e.g. those excommunicated by name, those suspended, or those placed under interdict. The Constitution of Martin V, "Ad evitanda scandala", permits the excommunicated known as tolerati (tolerated) to take part in an election, but exception may be taken to them, and their exclusion must follow; if, after such exception, they cast a vote, it must be considered null. Apart from censures incurred, privation of an active share in elections occurs frequently in the ecclesiastical law affecting regulars; in common law and for the secular clergy, it exists in only three cases: Electors lose the right to elect, for that time, first, when they have elected or postulated an unworthy person (c. vii, h. t.); second, when the election has been held in consequence of an abusive intervention of the civil authority (c. xliii, h. t.); finally, when it has not been made within the required time. In all these cases the election devolves upon the superior (c. xli, h. t.).
Those persons are eligible who meet the requirements of common ecclesiastical law, or special statutes, for the charge or function in question; hence, for each election it is necessary to ascertain what is required of the candidate. In general, for all kinds of elections, the necessary qualifications are mature age, moral integrity, and adequate knowledge (c. vii, h. t.); for each charge or function dependent on an election these conditions are defined with more precision and fullness. Thus, neither a layman nor an ecclesiastic who is not yet a subdeacon can be elected bishop ; and no regular can be elected superior, etc., unless he has made his final profession. Some of the aforesaid requirements are easily verified, e.g. the proper age, adequate knowledge, the latter being presumable when the law formally exacts an academic degree (Council of Trent, Sess. XXII, c. ii, De ref.); others, especially an upright life, must usually depend on negative evidence, i.e. on the absence of proof to the contrary, such proof being positive offences, particularly when they have seriously impaired the reputation of the person in question or called for canonical punishment. It is principally candidates of censurable morality who are termed unworthy; the sacred canons constantly repeat that the unworthy must be set aside. Such unworthy persons are:
Those also are excluded who, at the time of election, hold several incompatible benefices or dignities without dispensation (c. liv, h. t.); or who, at a preceding election, have already been rejected as unworthy (c. xii, h. t.), and all who have consented to be elected through the abusive intervention of lay authority (c. xliii, h. t.). There are other cases in which regulars cease to be eligible. The legislation here described was meant for the episcopal elections of the thirteenth century and aims at abuses now impossible.
In this matter, even more than in the preceding paragraphs, we must consider special laws and statutes. Strictly speaking, the common ecclesiastical law, which dates from the thirteenth-century Decretals, considers only episcopal elections (lib. I, tit. vi, De electione et electi potestate; and in VIº). Since an election is held to appoint to a church or an ecclesiastical charge or office that is vacant, it is obvious that the first condition requisite for an election is precisely the vacancy of said church, charge, or office, in consequence of death, transfer, resignation, or deposition ; any election made with a view to filling an office not yet vacant is a canonical offence. When an election becomes necessary, the first step is to convoke the electoral assembly in some specified place, and for a certain day within the legal time-limit. The place is ordinarily the vacant church or, if it be question of an election in a chapter, wherever the deliberations of the chapter are usually held. The time-limit set by common ecclesiastical law is three months, after the lapse of which the election devolves upon the immediate superior (c. xli, h. t.). In an electoral college, the duty of convoking the members belongs to the superior or president; in a chapter this would be the highest dignitary. He must issue an effectual summons, for which no special form is prescribed, to all the electors without exception, whether present in the locality or absent, unless, however, they be too far away. The distance considered as constituting a legitimate excuse for absence (see c. xviii, h. t.) should be more narrowly interpreted today than in the thirteenth century. It is unnecessary to convoke electors publicly known to be incompetent to exercise their electoral right, e.g. canons excommunicated by name or not yet subdeacons. So binding is this convocation that if even one elector be not summoned he can, in all justice, enter a complaint against the election, though the latter is not ipso facto null by reason of such absence. Such an election will stand provided the unsummoned elector abides by the choice of his colleagues or abandons his complaint. As no one is bound to use a right, common law does not oblige an elector to attend the assembly and take part in the voting; the absent are not taken into consideration. As a general rule the absent cannot be represented or vote by proxy unless, according to the chapter "Quia propter" (xlii, h. t., Lateran Council, 1215), they are at a great distance and can prove a legitimate hindrance. Moreover, they can choose as proxy only a member of the assembly, but they can commission him to vote either for a particular person or for whomsoever he himself may deem most worthy.
On the appointed day the president opens the electoral assembly. Though the common law requires no preliminary solemnities, such are frequently imposed by special statute, e.g. the Mass of the Holy Ghost, which should be attended by all the assembled electors and those not prevented from assisting; also the recital of certain prayers. Moreover, the electors are often obliged previously to promise under oath that they will conscientiously vote for the most worthy. However, apart from such oath, their obligation is none the less absolute and serious. These preliminaries over, the electoral assembly proceeds, if necessary, to verify the credentials of certain electors, e.g. those who act as delegates, as happens in the general chapters of religious congregations. Then follows the discussion of the merits ( tituli ) of the candidates. The latter need not have previously made known their candidacy, though they may do so. The electors, nevertheless, have all freedom to propose and sustain the candidates of their choice. Frank and fair discussion of the merits of candidates, far from being forbidden, is perfectly conformable to the law, because it tends to enlighten the electors; indeed, some maintain that an election made without such a discussion would be null or could be annulled (Matthæucci, in Ferraris, "Bibliotheca", s. v. "Electio", art. iv, n. 5). It is more accurate to say that the election would be vitiated if the presiding officer were to oppose this discussion for the purpose of influencing votes. However, though the law strictly prohibits cabals and secret negotiations in the interest of certain candidates, the line between illicit manœuvring and permissible negotiating is in practice not always easily recognizable. [See the Constitution "Ecclesiæ" of Innocent XII (22 Sept., 1695), on the elections of regulars (in Ferraris, art. iii, no. 26), also the regulations that govern a conclave.]
The discussion concluded, voting begins. Actually there is only one customary method, i.e. secret voting ( scrutinium secretum ) by written ballots. The common ecclesiastical law (c. Quia propter, xlii, h. t., Lateran Council, 1215) admits only three modes of election: the normal or regular method by ballot, and two exceptional modes, namely, compromise and quasi-inspiration. Recourse to lots is especially prohibited; nevertheless, the Sacred Congregation of the Council (Romana, Electionis, 2 May, 1857) ratified an election where the chapter, equally divided between two candidates in other respects fit, had drawn lots; just about as was done for the Apostolic election of St. Matthias. As to the two exceptional methods:
Formerly this exceptional method was often resorted to, either to terminate long and fruitless sessions, or when there was a lack of exact information concerning the candidates; it is minutely regulated by the law of the Decretals. The compromise must be agreed to by all the electors without exception, and can be confided to ecclesiastics only. It may be absolute, i.e. leaving the arbitrators quite free, or conditional, i.e. accompanied by certain reservations concerning the manner of election, the persons to be elected, the time-limit within which the election should be held, and so on.
The normal or regular method by ballot, according to the law of the Decretals was necessarily neither secret nor written. The law "Quia propter" (see above) merely calls for the choice of three trustworthy scrutineers from among the electors. These were charged with collecting secretly (in a whisper) and in succession the votes of all; the result was then drawn up in writing and made public. The candidate who had obtained the votes of the more numerous or sounder party ( major vel sanior pars ) of the chapter was declared elected. However, this appreciation, not only of the number but also of the value of the votes, led to endless discussions, it being necessary to compare not only the number of votes obtained, but also the merits of the electors and their zeal, i.e. the honesty of their intentions. It was presumed, of course, that the majority was also the sounder party, but proof to the contrary was admitted (c. lvii, h.t.). The use of the secret and written ballot has long since remedied these difficulties. If the Council of Trent did not modify on this point the existing law, at least it exacted the secret ballot for the elections of regulars (Sess. XXV, c. vi, De regul.). According to this method the scrutineers silently collect the ballots of the electors present; when occasion requires it, certain members are delegated to collect the votes of sick electors beneath the same roof (e.g. at a conclave or at one of the regular chapters) or even in the city (for cathedral chapters), if the statutes so prescribe. This accomplished, the scrutineers count the number of ballots collected, and if, as should be, they tally with the number of electors, the same officers proceed to declare the result. Each ballot is in turn opened, and one of the scrutineers proclaims the name inscribed thereon, then passes it to the second scrutineer for registration, while the third, or secretary, adds up the total number of votes obtained by each candidate. As a general rule, election is assured to the candidate who obtains the majority of votes, i.e. an absolute, not merely a relative, majority ; however, certain statutes require, e.g. in a conclave, a majority of two-thirds. When the electors are odd in number, a gain of one vote ensures the majority ; if the number be even, it requires two votes. In calculating the majority, neither absent electors nor blank ballots are taken into account; whoever casts a blank vote is held to have forfeited his electoral right for that ballot. If no candidate obtains an absolute majority, balloting is recommenced, and so on until a definitive vote is reached. However, not to prolong useless balloting, special statutes can prescribe, and in fact have provided, various solutions, e.g. that after three rounds of fruitless balloting the election shall devolve upon the superior; or again, that in the third round the electors can vote only between the two most favoured candidates; or, finally, that in the fourth round a relative majority shall suffice (Rules of the Sacred Congregation of Bishops and Regulars for congregations of women under simple vows, art. ccxxxiii sq.). Other special regulations provide for the case of two candidates receiving the same number of votes (the voters being of even number), in which event the election is decided in favour of the senior (by age, ordination, or religious profession ); sometimes the deciding vote is assigned to the presiding officer. For all these details it is necessary to know and observe the special legislation that covers them.
When the final vote is obtained, whatever its character, it should be made public, i.e. officially communicated to the electoral assembly by the presiding officer. The decree of election is then drawn up; in other words, the document which verifies the voting and the election. The rôle of the electoral college thus fulfilled, the election is closed.
The principal duty of an elector is to vote according to his conscience, without allowing himself to be actuated by human or selfish motives, i.e., he must vote for him whom he deems the most worthy and best qualified among the persons fit for the office in question. External law can scarcely go farther, but moralists rightly declare guilty of mortal sin the elector who, against his conscience, casts his vote for one who is unworthy. In order, however, to fulfil his duty, the elector has a right to be entirely free and uninfluenced by the dread of any unjust annoyance ( vexatio ) which might affect his vote, whether such annoyance be in its source civil or ecclesiastical (cc. xiv and xliii, h. t.).
We are confronted here by two hypotheses: either an election is or is not disputed. An election may be disputed by whoever is interested in it, in which case the question of its validity is referred to the superior, in accordance with the same rule as for judicial appeals. Now, an election may be defective in three ways, i.e. as to the electors, the person elected, or the mode of election. The defect concerns the electors if, through culpable neglect, one or more of those who have a right to participate in the election are not summoned; or if laymen, excommunicates vitandi , or unauthorized ecclesiastics are admitted as electors. The defect lies with the person elected if it can be proved that he was not fit ( idoneus ), in which case he may be postulated, or that he was positively unworthy, in which event the election is invalid. Finally, the defect concerns the form or mode of election when the legal prescriptions relative to balloting or compromise have not been observed. The challenged election, with proofs of its imperfection, is judged canonically by the proper ecclesiastical superior. If the alleged defect is not proven, the election is sustained; if it be proven, the judge declares it, whereupon the law provides the following sanctions : An election made by laymen, or with their assistance, is invalid (c. lvi, h. t.); the one at which an excommunicated person has been admitted to vote, as also that to which an elector has not been invited, must be closely investigated, but is not to be annulled unless the absence of the excommunicated person, or the presence of the unsummoned elector might have given a different turn to the vote. The election of a person who is not unworthy, but simply the victim of an impediment, may be treated indulgently; that of an unworthy person is to be annulled, while the electors who, knowing him to be such, nevertheless elected him, are deprived for that time of the right to vote and are suspended for three years from the benefices they hold in the vacant church in question. Finally, the election wherein the prescribed form has not been observed must be annulled. In all of these cases the right to elect ( bishops ) devolves upon the Holy See ( Boniface VIII, c. xviii, h. t., in VIº); the only case in which it devolves upon the immediate superior is when the election has not been made within the prescribed time-limit.
If, on the contrary, the election meets with no opposition the first duty of the presiding officer of the electoral college is to notify the person elected that choice is made of his person. If he be present, e.g. in the elections of regulars, the notification takes place immediately; if he be absent, the decree of election must be forwarded to him within eight days, barring legitimate hindrance. On his side, the person elected is allowed a month within which to make known his acceptance or refusal, the month dating from the time of receiving the decree of election or the permission of the superior when such is obligatory. If the person elected refuses the honour conferred upon him, the electoral college is summoned to proceed with a new election, under the same conditions as the first time and within a month. If he accepts, it is his right as well as his duty to demand from the superior the confirmation of his election within the peremptory limit of three months (c. vi, h. t., in VIº); but if, without legitimate hindrance, he allows this time to pass unused, the election has lapsed. From the moment of his acceptance, the person elected acquires a real, though still incomplete, right to the benefice or charge, the jus ad rem to be completed and transformed into full right ( jus in re ) by the confirmation of the election; it is his privilege to exact this confirmation from the superior, just as it is the latter's duty to give it, except in the event of unworthiness, of which fact the superior remains judge. However, until the person elected has received this confirmation, he cannot take advantage of his still incomplete right to interfere in any way whatever in the administration of his benefice, the punishment being the invalidity of all administrative acts thus accomplished and privation of the benefice itself. The ecclesiastical legislation on this point is very severe, but it concerns episcopal sees only. In the time of Innocent III (1198-1216) those elected to an ordinary episcopal see had to seek the confirmation of their election from the metropolitan only. Bishops outside of Italy who had to obtain from Rome the confirmation of their election ( metropolitans, or bishops immediately subject to the Holy See ) were authorized (c. xliv, h. t.), in cases of necessity, to enter at once on the administration of their churches, provided their election had aroused no opposition; meanwhile the confirmation proceedings went their ordinary course at Rome.
At the Second Council of Lyons, in 1274 (c. Avanitiæ, v, h. t., in VIº), elected persons were forbidden, under penalty of deprivation of their dignity, to meddle in the administration of their benefice by assuming the title of administrator, procurator, or the like. A little later, Boniface VIII (Extrav., Injunctæ, i, h. t.) established the rule still in force for entering on possession of major benefices and episcopal sees, according to which the person elected must not be received unless he present to the provisional administrators the Apostolical Letters of his election, promotion, and confirmation. The Council of Trent having established the vicar capitular as provisional administrator of the diocese during the vacancy of the see, it became necessary to prohibit elected persons from entering on the administration of their future dioceses in the capacity of vicars capitular. This was done by Pius IX in the Constitution "Romanus Pontifex" (28 August, 1873), which recalls and renews the measure taken by Boniface VIII. In this Constitution the pope declares that the law "Avaritiæ" of the aforesaid Council of Lyons applies not only to bishops elected by chapters, but also to candidates named and presented by heads of states in virtue of concordats. He rules that chapters can neither appoint temporarily vicars capitular nor revoke their appointment. He also forbids them to designate as such persons nominated by the civil power, or otherwise elected to a vacant church. Offences against this law are severely punished, by excommunication specially reserved to the pope and by privation of the revenues of their benefices for those dignitaries and canons who turn over the administration of their church to a person elected or nominated. The same penalties are pronounced against said elected or nominated persons, and against all who give them aid, counsel, or countenance. Moreover, the person elected or nominated forfeits all acquired right to the benefice, while all acts performed during his illegitimate administration are declared invalid.
We may now return to the confirmation of the election according to the law of the Decretals. It belonged to the immediate superior. It was his duty to extinguish all opposition by summoning the elected person to defend himself. Even if there were no opposition the superior was bound to summon, by a general edict posted on the door of the vacant church, all who might possibly dispute the election to appear within a fixed period; all this under penalty of the nullity of subsequent confirmation (c. xlvii, h. t., in VIº). The superior had to examine carefully both the election and the person of the one elected, in order to satisfy himself that everything was conformable to law ; if his investigation proved favourable he gave the requisite confirmation whereby the elected person became definitively prelate of his church and received full jurisdiction. While the law did not bind the superior to any strict time-limit for the granting of confirmation, it authorized the elected person to complain if the delay were excessive. All this legislation, especially elaborated for episcopal elections, is now no longer applicable to them; however, it is still in force for inferior benefices, e.g. canonries, when they are conferred by way of election.
Election, considered as the choice made by a college of its future prelate, is verified first of all in the designation of a pope by the cardinals ( see CONCLAVE ). The election of bishops by chapters is still, theoretically, the common rule, but the general reservation formulated in the second rule of the Apostolic Chancery has suppressed in practice the application of this law ; episcopal elections, in the strict sense of the word, occur now in only a small number of sees (see BISHOP). Finally, the prelates of regulars are normally appointed by election; the same is true of abbesses. (See the Council of Trent, Sess. XXV, c. vi, De regul.) The common ecclesiastical law provides for no other elections. There are, however, other ecclesiastical elections that do not concern real prelates. Religious communities of men and women under simple vows proceed by election in the choice of superiors, superiors general, assistants general, and usually the members of the general councils . In cathedral churches it is by election that, on occasion of the vacancy of a see, the chapter appoints the vicar capitular (Council of Trent, Sess. XXIV, c. xvi, De ref.). It is also according to the canonical form of election that colleges, especially chapters, proceed in appointing persons, e.g., to dignities and canonries, when such appointment belongs to the chapter; to inferior benefices to which the chapter has a right to nominate or present; again in the appointment of delegates on seminary commissions (Council of Trent, Sess. XXIII, c. xviii, De ref.), or in bestowing on some of its members various capitulary offices, or making other such designations. The same is true of other ecclesiastical groups, e.g. the chapters of collegiate churches, etc., also of confraternities and other associations recognized by ecclesiastical authority. In the latter cases, however, there is no election in the strictly canonical sense of the term.
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