Veto

VETO. - The veto or exclusive (ius exclusionis, ius exclusivae) is one of the forms of interference by civil authority in the election of the Pontiff, and it implied a purported right or privilege by which, in recent centuries, the sovereigns of Germany (later Austria), Spain and France, before the papal election was completed, could each officially exclude one of the cardinals from the election; without, however, the cardinals present being obliged, by any special ecclesiastical law, to adhere to the exclusion thus made as to a true right (Wernz, Ius canon., I, 1st ed., Rome 1894, p. 664).

Extraneous interference in the papal election recurs under different forms and aspects throughout the history of the Papacy, but it assumed a particular and constant aspect during the 16th century, when the disputes over supremacy in Italy, where the pontiff was also a prince, induced France and Spain (together with the Empire) to build up within the Sacred College adherents to their own policy, dividing the cardinals into opposing parties, and to exert influence through these on the papal elections. Hence those conclaves agitated by political rather than religious interests, which are observed in that period. Toward the end of the century, the influence of Spain became intolerable, because Philip III persisted in his father Philip II's tendency to want to direct the conclaves according to his own will, although Pius IV had forbidden any bargaining aimed at including or excluding one or more cardinals from the election. Especially on the occasion of the war with France, plagued by religious struggles, Spain made itself the intolerant champion of Catholicism and therefore claimed to have the leading part in the conclave. It was still a matter of solicitations or threats exercised by the lay or ecclesiastical representatives of the sovereigns to induce individual cardinals to vote for some or to exclude others from the possibility of being elected pontiff. Lists of princes of the Church even circulated, according to whether they seemed more or less favorable and on whom one could count in favoring and making candidacies more likely. These methods continued during the 18th century and made the conclaves long and difficult because of the resulting difficulty of reaching two-thirds of the votes on a single person. But there was the daring to go even further.

The reform by which Gregory XV (1621-22) imposed the secret ballot, in order to avoid surprise elections and make them freer, did not succeed in eliminating the interference of princes and the bargaining conducted more or less openly by ambassadors through the crown cardinals or the protector cardinals of the individual kingdoms or other trusted agents. It was these who indicated the persons deemed less acceptable, on whom the votes of their colleagues were not to converge. In the Conclave of 1644 Cardinal Albornoz, a Spaniard, brought the exclusive against Cardinal Sacchetti, an exclusive that was then repeated against himself in 1655; Cardinal Albizzi then compiled a writing in which he rejected as unlawful Spain's claim to the right of exclusion; he was answered, similarly to what had been said in the previous case, that one could not in conscience give one's vote to a cardinal excluded by so illustrious and pious a king. Thus the true and official exclusive had been reached, presented by a cardinal in the name of his sovereign before the Sacred College. This was proposed as far as possible at the last moment, when an unwanted candidate seemed by then close to the Papacy; and since such an exclusive could be exercised during a conclave only once in the name of a sovereign, it was advisable to propose it only when the other means of preventing an undesired election appeared insufficient. Once the election had taken place, exclusion was no longer admitted. These were the rules, but at times the exclusive was threatened without there then being any need to propose it officially, such as those of France and Spain in 1669 and that of France in 1676. In 1721 the community of interest between the Empire and Spain that had lasted until then broke down, and Spain aligned its interests with those of France against the Empire. It was then that the Emperor proposed his exclusive against Cardinal Paolucci. In 1730 Spain, seconded by France, excluded Cardinal Imperiali; in 1758 France excluded Cardinal Cavalchini; in 1823 Austria excluded Cardinal Severoli; in 1830 Spain excluded Cardinal Giustiniani. Especially clamorous was Austria's exclusion in 1903 against Cardinal Rampolla del Tindaro, which provoked Pius X's measures against the veto.

An abundant literature developed on the question whether the formal exclusive constituted a true and proper right of the three powers mentioned, and therefore bound the Sacred College, or was a mere abuse, even if tolerated in certain periods. The supporters of the first thesis then asked themselves whether such a right was customary or acquired by prescription.

Wahrmund, a supporter of customary right, has pointed out that the first manifestations of the formal exclusive date back to the end of the 17th century and the first part of the 18th, and consequently the prohibitive provisions of earlier date do not refer to the exercise of such a claim by the Catholic States; therefore its development cannot be considered contrary to law. Sägmüller, on the other hand, started from the premise that the origins of the exclusive date back to the 16th century and precisely to Charles V (Conclaves of 1549-50 and 1555), so that this presumed right was directly struck by the bull Aeterni Patris of Gregory XV, and its further development was contrary to law, even if tolerated for reasons of expediency and prudence. Pivano, after criticizing the theory of custom, maintained that the ius exclusivae arose in favor of Spain, Austria and France by prescription, following the uninterrupted exercise, prolonged for at least a hundred years, of quasi-possession in good faith.

The thesis that the formal exclusive was introduced into the order of the Church by a custom contra legem encounters the obstacle of the lack of the two essential requirements, the opinio iuris vel necessitatis and rationabilitas. In other words, it does not seem that, in this case, there was the continuous observance of the acts due to the conviction, in those who performed them, of their juridical obligatoriness, and, in any case, such conduct would have been irrationabilis as conflicting with the principles on which the constitution and legislation of the Church are founded, confirmed by manifold pontifical pronouncements. There is no doubt that the exercise of a true and proper right of veto in the election of the Pontiff would violate the constitutional principle of lay power. Nor does the theory that the ius exclusivae was acquired by prescription seem to have any greater juridical foundation - despite Pivano's penetrating investigation - especially because the continuous bona fides on the part of the Catholic States mentioned above could not be considered present, given that, as has been rightly observed (Falco), it was not a matter here of exercising a right belonging to others, but of an action that the canonical laws prohibited, namely interference in the election of the Pontiff.

It seems possible today to hold that the formal exclusive was never configurable as a right but only as an arbitrary claim, tolerated in a certain historical period (18th century), which created no bond for the cardinals. It is not proved, on the other hand, that they could be considered included in the condemnations of Pius IV, Gregory XV or Clement XII, which speak of the « intercessiones principum » and not of the veto in express and absolute form.

Pius IX, with the bulls In hac sublimis (Aug. 23, 1871), Licet per apostolicas (Sept. 8, 1874) and Consulturi (Oct. 10, 1877), condemned any intervention of the lay power in the election of the Pontiff; in these documents, however, he did not make an express reference to the exclusive, so that some writers (Pivano) have shown themselves to hold that the pontifical condemnation did not concern the exclusive but rather those tendencies, which had become established especially in Germany, that looked forward to a return to the ancient system of the election of the Pontiff with the intervention of the people and the lower clergy.

To eliminate any doubt about the legitimacy of the ius exclusivae, Pius X (v.), driven to this also by the events of the Conclave from which he had emerged elected on 20 Jan. 1904, with the constitution Commissum Nobis "absolutely condemned the civil v., also called the exclusive, even under the form of a simple wish, as well as any intervention or intercession, proclaiming that it was not lawful for anyone, not even for the supreme heads of nations, under any pretext to interpose themselves or interfere in the grave affair of the election of the Roman Pontiff." This explicit prohibition, supported by the sanction of excommunication latae sententiae reserved to the future Pontiff, was published only in March 1909 (v. PAPA, II).

Pio Paschini*