Appendix:

On the choice of bishops by clergy and people.

Three letters of Antonio Rosmini Serbati, priest,
to Canon Giuseppe Gatti.

Letter 1
Stresa, 8th June 1848

Dear Canon,

Thank you for the favourable mention in your magazine about The Constitution according to Social Justice which I published recently at Milan. Allow me to give substance to my thanks by taking this opportunity of clarifying the point you were commenting on when you said that Rosmini would like "to admit a democratic element even in ecclesiastical government".

I long to see union develop everywhere, and discord vanish completely. Union is love, and love is true union; it is our divine Master's commandment for human societies as well as for individuals. Because I love the people intensely, I desire union between people and clergy more than anything else. But I do not mean that people have a direct part in the government of the Church. I realise clearly that Jesus Christ entrusted this government to his apostles and their successors, the bishops, who together form an admirable hierarchical unity through the primacy of honour and jurisdiction bequeathed to the supreme pontiffs by St. Peter. The people can only intervene lovingly as advisers in a father-child relationship which varies in manner or degree according to the impulse of love and prudence at work in holy Church.

It was this kind of participation in the choice of bishops that I had in mind when I proposed in the book a return to the ancient custom of election by clergy and people. This only gave the people the opportunity of expressing their opinion of the candidates, of testifying to their good character, and of welcoming the person enjoying their confidence.

I also said that this way of choosing a bishop was of divine right, and had been approved by innumerable conciliar canons. But I certainly did not mean, nor did I say, that the various ways and customs used in elections by clergy and people were of divine right. Nor does the people's exercise of a God-given right in the choice of bishops mean that the Church cannot change the form of the election. I have spoken about this elsewhere, and intend to deal with it more thoroughly later on. In accordance with this spirit of charity governing all her actions, as I have said, the Church can change the form of elections for very serious reasons without doing wrong.

In order to express my opinion unambiguously, I think it useful to add that I am speaking of a divine moral right, not the vastly different divine constitutive right. Violation of the former does not establish grounds for invalidity; bishops nominated by civil governments are true pastors, as the Council of Trent has defined (Sess. 23, can. 8), provided they have been confirmed and given their mission by the supreme pontiff. This distinction between constitutive and moral divine right reconciles the views of differing ecclesiastical authors on the question. Granted there is no express declaration of the Church on the matter, one is free to support any of the views, and I use this liberty to take what I consider the middle way. Opinions can be reconciled by saying that elections by clergy and people are not of divine right if we are speaking of divine constitutive right, but are of divine right if we speak of it in so far as it is simply moral right.

In fact, divine constitutive right relative to the making of bishops is found only in sacred ordination and the Church's mission. Both these things are completely independent of the people and every other lay power, as the Council of Trent teaches: "Moreover, this holy synod teaches that no episcopal, priestly or other ordination in sacris requires for its validity the consent, nomination or authority of the people or civil power or judiciary. Rather, we insist that all those rashly accepting and exercising these ministries after nomination and installation by the people, civil power or judiciary alone are not to be held as ministers of the Church, but as thieves and robbers who do not enter through the gate" (1).

Divine moral right is reduced to the right that the Church has to be free in the choice of her pastors, and in all her other functions. The corresponding duty in the faithful, whatever their position, and of all other societies, is to leave the Church perfectly free. This freedom is of divine right, and it was not the Church who first spontaneously surrendered herself to the chains limiting it. She was oppressed by those trampling underfoot the divine right guaranteeing her essential freedom, and attempting to deprive her of this liberty and involve her in endless wrongs by every way known to violence, seduction and legal subtlety. The Church had to submit to limits placed upon her natural liberties in order to avoid greater evils. As far as choice of bishops was concerned, she never spontaneously offered the nomination of all episcopal sees of certain states to the lay power unless constrained, by bitter circumstances and after long struggles, to make such a sacrifice. History is no one's monopoly, and it fully justifies the Church in this respect.

Indeed, the Church never ceased proclaiming to rulers and peoples the full liberty which is her right, while asserting her hold over that part of freedom which remained to her; she never withheld permission or praise from the zeal of priests and ordinary faithful who defended her liberties by word or in writing. I love this divine freedom as Jesus Christ, whose Bride is the Church, loved it, and as every devoted child of the Church, especially every priest, must love it. This love alone, and no other end, forced me to speak up and show my burning desire for the restoration to the Church of full freedom to choose her pastors. As far as I can see, this freedom is more important than any other because it embraces and strengthens all the rest. The fullness of freedom cannot be restored to the Church until the nomination of bishops, now fallen into the hands of lay powers, comes to an end.

These nominations by lay powers do not depend upon exceptional circumstances; they are permanent and lasting. As such they are an evident lessening of the Church's freedom, and a bond preventing her from freely and unrestrainedly choosing whomsoever she thinks most worthy of a bishopric. As far as I am concerned, they are a violation of the divine right of ecclesial freedom on the part of those imposing on the Church the bitter necessity of conceding them.

Divine moral right related to the choice of pastors demands:

lst. that these elections be carried out freely by the Church, that is, by ecclesial authority. This freedom is immensely restricted and diminished by granting nomination to secular authority. The Church cannot be sure that the most worthy person will be elected, nor the person most trusted by the people. This is particularly the case where governments do not recognise the catholic religion as that of the state, but admit and protect indiscriminately all faiths and religions. Any lessening of the freedom of the Church in the choice of her pastors violates her divine right, because Jesus Christ has made her free and independent. It is imperative that full freedom of the Church in these elections be reasserted and re-established as far as possible;

2nd. that the christian people have a voice in the elections. Their witness should be sincerely accepted; they should not even be morally forced to receive as pastor a person in whom they have no confidence and who may indeed be totally unknown to them. Jesus Christ has said that the sheep know their shepherd (2).

I am not making suggestions about how this should be done. That is another question. The most relevant way has to be sought, but this should not be difficult in times when the people can easily nominate their parliamentary representatives.

I did not say either what means or steps should be taken to reassert full liberty of episcopal elections in the face of lay governments. This depends entirely on the wisdom of the Church and of the apostolic see which presides over her, just as it is her business to judge definitively if the time is ripe, as I hope it is, for this great work of regeneration.

Here I would like to note that even if my hopes for our present moment of history are unfounded, I do not believe that I would be acting rightly by holding back what I long to say. Past events in the Church show that reforms are prepared little by little. Before they can be put into practice, many voices are raised to point them out, with the approval of the Church and her spirit; before legitimate authority judges the moment opportune or succeeds in undertaking the work effectively, great numbers of faithful and priests have eagerly proposed and incessantly requested reforms. I am persuaded therefore that discussing the necessity of asserting full liberty for the Church in episcopal elections is not harmful, except perhaps to me, and that it is possible to prepare the ground for future developments in a way acceptable to the Church and in full conformity with her spirit. I am not seeking the things which are my own, but those of Jesus Christ, and it is this which impels me to say what I feel in my heart.

But let us return to the question of clergy and people related to freedom of elections. Mentioning the people should not be a cause for wonder. There are always holy, prudent men and women with the sense of Christ amongst them. The people are a part of the mystical body of Christ; together with their pastors and incorporated with the Head, they form a single body. In baptism and confirmation they have received the impression of an indelible, priestly character. I do not mean that they share in the public priesthood or have any jurisdiction; still less that ecclesial jurisdiction has its source in them, as heretics say. This jurisdiction comes immediately from Christ to the episcopate ordered towards unity under Peter. Nevertheless, the ordinary christian possesses a mystical, private priesthood giving him special dignity and power, and a feeling for spiritual things. The clergy, hierarchical and non-hierarchical, has its rights, but so have the christian people. Clergy and people enjoy freedom within the limits prescribed by sacred tradition and the laws of the Church; all are free in Christ. For example, the christian people can and must oppose a bishop openly teaching heresy; they can and must separate themselves from an intruder in a see, or a schismatic. Their sense of the supernatural teaches them to do this, and gives them the right to do it (3).

The fathers of the Church taught that the people's part in the choice of their pastors derived from the divine law. They took their proofs from:

It would take me too long to develop and confirm all these headings by reference to the fathers and ecclesiastical writers. I shall simply choose some of the most authoritative and noteworthy witnesses to indicate the divine and apostolic tradition of the more famous churches.

First, at the head of all the others, is the church of Rome, mother and ruler of the whole world, whose tradition is attested by St. Clement, pope and martyr, an immediate disciple of the apostles, in his first letter, still extant, to the church of Corinth. The title and context of the letter indicate that it was written in the person of the church of Rome. "Our apostles knew through our LORD JESUS CHRIST that there would be disagreement about the nomination of future bishops. Because of this perfect foreknowledge, they constituted the above-mentioned [bishops], and HANDED DOWN A RULE FOR FUTURE SUCCESSION so that when they died their ministry and office might be accepted by other proven men. They were either constituted, therefore, by the apostles, or from then on by other outstanding men WITH THE CONSENT AND APPROBATION OF THE WHOLE CHURCH. Those chosen, therefore, will have ministered without fault to the flock of Christ humbly, tranquilly and generously, and WILL HAVE OBTAINED THE UNQUALIFIED APPROVAL OF ALL. To dismiss them unjustly from office etc" (4).

I do not believe it possible to find a more noteworthy and authentic testimony of the tradition of the church at Rome than these words of the saintly pope who received directly from St. Peter the rule about choosing and establishing bishops as Christ himself had taught it. Our quotation shows that bishops were constituted, that is ordained, sent and chosen by other bishops (this, I think, is the meaning of "by other outstanding men"), but not without the consent, approbation and acceptable witness of the whole Church, that is of the people also. This way of acting, therefore, forms part of divine and apostolic tradition.

A witness as authoritative as St. Clement must surely be considered sufficient to prove that the christian people's active presence in episcopal elections is of divine and apostolic right, according to the tradition of the Roman church. Nevertheless, I should like to offer additional testimony from the Apostolic Constitutions, book 8, chap. 4. "I, Peter, as first amongst you, declare that the person to be ordained bishop is to be without fault in all things, AND CHOSEN BY ALL THE PEOPLE AS THE MOST WORTHY. This is how bishops have always been selected. When a person has been nominated, therefore, without objection on his part, he will give his consent in an assembly of the PEOPLE, the presbyterate and all the bishops who are present. This assembly will take place on a Sunday. The president of the assembly must ask the presbyterate and the PEOPLE if this is THEIR CHOICE. If they agree, he goes on to ask if ALL witness to the person's worthiness for such an office, if he has carried out his duties to God and his fellow creatures rightly, if he has been a good husband and father, and a good living person. When ALL have testified truthfully, and not conventionally, that this is so, the question about his worthiness is to be put for a third time before Christ as God and judge, and in the presence, as it were, of the Holy Spirit, the saints and the administering angels. Every word, as we know, should be certified by the mouth of two or three witnesses. When they have agreed for the third time that the candidate is worthy, all should be asked individually for their assent, and listened to as they give it swiftly. Then, in silence, etc."

This constitution, whose words are put in the mouth of St. Peter himself, clearly indicates that the active presence of the people in episcopal elections forms part of apostolic tradition (5). St. Clement, in the quotation from his synodal letter given above, shows that the apostles received this commandment from Christ. The Apostolic Constitutions reaffirm the point when they make the apostles say (book 2, chap. 2): "About bishops, we HAVE HEARD FROM OUR LORD" and they go on: "if in some small parish there is no one of a suitable age, but a person can be found whom HIS FELLOW CITIZENS JUDGE worthy of the episcopate because of the maturity and discipline he shows even as a young man, let him be appointed for the sake of peace if he IS WITNESSED TO BY ALL". On the basis of these and other texts, John Beveridge maintains that in such matters "divine and apostolic law coincide" (6).

St. Clement's successors remained faithful to this tradition as we can see from the acts of St. Cornelius (7), Julius (8), Zosimus (9), Boniface I (10), Celestine (11), Leo the Great (12), Hilarius (13), Hormisdas (14), Gregory the Great (15), Hadrian I (16), the incomparable Gregory VII (17), and of Urban II, Pascal II (18) and innumerable others. All these witnesses, according to the deposit of Roman tradition, constantly required and defended the people's active presence in episcopal elections.

It is impossible to date the beginning of the people's active presence in episcopal elections; there is no known year, papal decree or conciliar canon marking its inauguration. One of the rules accepted by theologians for recognising apostolic traditions is their remote and undatable orgin. We have to accept as our conclusion what pope Liberius affirmed before the Emperor Constantine: the Roman church has received its traditions orally from St. Peter himself (19); or, according to the corpus of canon law attributed to pope Anacletus: "God himself granted the people a part in the choice of their pastors" (20).

Some ill-advised attempts are being made today, it would seem, to maintain that the ancient tradition of the Roman church in listening to the whole body of the faithful is ecclesiastical rather than divine and apostolic. This is thought a better way of justifying the popes of the last centuries who, because of circumstances, had to concede the nomination of bishops to different catholic rulers, but in our view it is mistaken. Later we shall outline the correct way allowing us to follow our deep desire of preserving and defending for the Roman church the glory of having received her authoritative traditions from the prince of the apostles who founded that church - a glory vigorously and correctly upheld by all the popes. We say with pope Innocent I: "Everyone knows and is aware that what was handed down to the church of Rome by Peter, the prince of apostles, must be observed by all. No external authority or example can derogate from this" (21). For this reason the councils refer to the ancient tradition of the Roman church when specifying the part of the people in the choice of bishops. The 3rd Council of Orleans offers one example (22).

Before Constantinople rose to power, the church of Alexandria came immediately after the church of Rome in order of precedence. What was the Alexandrian tradition about the active presence of the christian people in episcopal elections? The fathers who witness to this tradition affirm that the people's part was of divine and apostolic right. The tradition of St. Mark is in complete harmony with that of St. Peter. We can begin by citing St. Athanasius, the most noteworthy of the great men in the church of Alexandria.

We must remember that it was the arian heretics at the time of St. Athanasius who were the first to infringe and overthrow what the apostles, taught by Christ, had established about the choice of bishops by clergy and people. For this purpose they depended upon pressure applied by the Emperor Constance who supported them. St. Athanasius in his battle against the arians and the temerity of Constance describes the Emperor's methods as follows: "[Constance] thought he would change the LAW OF GOD by violating the Lord's statutes handed down through the APOSTLES. He wanted to overthrow church custom and invent a new kind of ordination. He sent bishops backed by the military to unwilling people great distances away. His only recommendation and notification were threats and letters to the magistrates" (23).

Here, this great father witnesses in accordance with the tradition of his church that it was against the law of God, and against the statutes given by Christ to the apostles who handed them on to the Church, to commission bishops against the wishes of the people whom they had to pasture as their flock, or to commission them when they were neither known to the people nor recommended by their good works.

Athanasius offers a similar witness to prove that Gregory, who took Athanasius' place in the see of Alexandria, was an intruder. "If there had been any valid accusation against us, it should have been supported not by arians or heretical opinion but according to the ecclesiastical canons and the WORDS OF PAUL: when the PEOPLE HAVE GATHERED, with the spirit present to those ordaining in the power of our Lord JESUS Christ, everything should be carried out and completed in the PRESENCE OF THE PEOPLE and clerics who requested the candidate. Nor was it right that the candidate, who was imported by the arians from another region and almost bought the bishopric, should impose himself with the backing of civil judges and by force upon those WHO DID NOT ASK FOR HIM, DID NOT WANT HIM, AND WERE ALTOGETHER IGNORANT OF WHAT WAS GOING ON. When ordinations take place as a result of patronage, and not ACCORDING TO THE DIVINE LAW, church canons are set aside, and pagans are encouraged to blaspheme and bring accusations against us" (24).

He repeats and explains this elsewhere, maintaining that the intruder Gregory "was not ordained according to the canons, nor called to the episcopate according to APOSTOLIC TRADITION. He was sent by the governmnet, and imposed in great splendour by the military" (25).

Origen, another great luminary of Alexandria, spoke according to the same tradition of his church and confirmed it with the law given by God in the Old Testament, commenting on Leviticus: "Moses called together the assembly and said to them...", he said: "...nevertheless, although the Lord commanded the institution of the high priesthood and chose the high pirest, the people also gathered. When a priest is ordained, therefore, the people must be present so that all may know and be sure that the most worthy, learned, holy and virtuous person amongst them has been chosen for the priesthood in the presence of all. Thus, there will be no reproaches later, nor doubts about the incumbent. The APOSTLE INSISTED on this when speaking about sacerdotal ordination. Moreover, the candidate must be well thought of by outsiders" (26).

These fathers, therefore, affirmed the necessity of the people's active presence in elections on the basis of agreement between the two divine laws of the Old and New Testaments, according to the teaching and tradition of their churches. In the passage from Origen, the reason given for the presence of the people is: "so that all may know for sure that the most worthy, learned, holy and virtuous person amongst them has been chosen for the priesthood in the presence of all." It has been held in the Church that it is not sufficient in choosing pastors to be satisfied with finding a person possessing only negative good qualilties; every effort must be made to discover the person endowed with the greatest possible positive attributes - in other words, the most worthy among the entire people. If this is the teaching and rule of the Church how can it be sincerely put into practice when nominations are left to lay governments who decide these matters in the secrecy of cabinet meetings?

Origen indicates (homily 30 on the book of Numbers) the great disparity between the choice of a simple priest and that of a bishop. The latter is compared to the leader of the Hebrew people whom Moses appointed only through divine revelation and in the presence of the people, although he had of his own initiative nominated the elders who, according to Origen, correspond to simple priests. Yet Moses could have done it. "Why does he not dare to act and to choose? Because he did not want to leave an example of presumption to his successors" (27). St. John Chrysostom agrees with Origen (28).

This tradition in the church of Alexandria is not contradicted by the remarks of Sts. Epiphanius (29) and Jerome (30) about the clergy of Alexandria who chose a bishop from their own number immediately after the death of St. Alexander in order to aviod sectarian strife among the people. St. Ephiphanius says that this came about because Athanasius, although designated by Alexander as his successor, had been sent on a mission to the imperial court by Alexander himself, and could not be elected in his absence. Achilla was made bishop instead. However, Epiphanius' declarations are generally reckoned erroneous by the best critics. There is no doubt that Athanasius, as he himself says, was Alexander's immediate successor. At most, therefore, if Achilla ever existed and has not been mistaken for the great Achilla, predecessor to Alexander, he would have occupied the see temporarily and in Athanasius' name until his return. The statements of the two fathers only indicate that there was no delay in electing a bishop when one died; they do not prove that the people took no active part in the election. As Thomassin states, it proves that "the priests of Alexandria were first in authority at an election" (31), which is undoubted. It does not prove that the people took no part, or gave no witness, approval or acceptance.

If matters had been otherwise, the heretics would not have objected to Athanasius' election on the grounds that the people's consent was lacking. Or, if they had objected on these grounds, it would have been sufficient to reply that this was the custom and tradition of the church at Alexandria. This was not the way the objection was resolved: Athanasius' election was shown to have been public and solemn, carried out unanimously with the enthusiastic approval of the whole christian people (32). Finally, we must believe that St. Athanasius knew perfectly well the tradition of his own church when he showed that Gregory had unlawfully usurped the see of Alexandria because, amongst other defects, Gregory's election had not been carried out "according to the words of Paul, in the presence of the people and the spirit of those ordaining, in the power of our Lord, Jesus Christ (33). Origen also must have known this tradition if he considered the active presence of the people to be required by the old and new law of God.

We find the western church, or rather the universal Church represented by St. Clement and the church of Rome, and the eastern church represented by St. Athanasius and the church of Alexandria, in agreement in their witness to the origin of the people's active part in episcopal elections from the immediate tradition of Christ and the apostles, with the support of the written law in Old and New Testaments, interpreted in the light and spirit of the tradition itself. These churches agree in affirming that the active presence of the people in these elections is of divine right. Nevertheless, we can still consult the churches of Africa in the person of St. Cyprian and the bishops of his time, worthy representatives of those churches.

St. Cyprian's synodal letter (No. 58), written in his own name and that of forty-two other African bishops mentioned at the beginning of the epistle, was not sent to an individual, but to the churches of Spain: ad cleros et ad plebes in Hispania consentientes, after the fall of two Spanish bishops, Basilides and Martial, during the persecution. Cyprian writes: "We recognise that choosing a priest in the PRESENCE AND SIGHT OF ALL THE PEOPLE, when his worthiness and suitability are supported by PUBLIC WITNESS AND TESTIMONY, comes down to us FROM DIVINE AUTHORITY. In Numbers 20, the Lord commanded Moses: 'Take Aaron and Eleazar his son, and bring them up to Mount Hor before the whole assembly; and strip Aaron of his garments, and put them on Eleazar his son; and Aaron shall be gathered to his people, and die there.' The Lord commands the priest to be appointed BEFORE THE ASSEMBLY; he teaches that priestly ordinations cannot come about WITHOUT RECOGNITION ON THE PART OF THE PEOPLE WHO ASSIST at the ordination. THE PRESENCE OF THE PEOPLE, allowing evil to be uncovered and good to be recognised, contributes to a just and lawful ordination scrutinised by the JUDGMENT OF ALL CONCERNED.

This is what indeed happened ACCORDING TO DIVINE TEACHING in the acts of the Apostles when the apostle Peter spoke to the people about the man to be ordained in the place of Judas: 'Peter stood up amongst the brethren (the company of persons was in all about a hundred and twenty' (Acts 1)." Cyprian goes on to cite the example of the election of the seven deascons: "This was carried out DILIGENTLY AND CAREFULLY IN THE PRESENCE OF THE WHOLE PEOPLE to prevent the choice of an unworthy person as minister at the altar or in the place where the priest functions," and he concludes: "What we hold to in practically all our provinces as the rightful celebration of ordination is to be preserved and held as of DIVINE AND APOSTOLIC OBSERVANCE. The people for whom the new leader is ordained, the bishops of the province and the neighbouring districts are to gather so that the bishop may be chosen in the PRESENCE OF THE PEOPLE WHO ARE FULLY CONVERSANT WITH THE LIFE OF INDIVIDUALS AND AWARE OF HOW EACH HAS BEHAVED HIMSELF" (PL 3, 1025-1027).

I shall go no further. I think that the documents are sufficient to support my contention that the active presence of the people in episcopal elections is of divine right. It is clear that this is not an arbitrary opinion of my own; it is founded on unassailable ancient witness.

I am afraid, however, that this opinion may cause scandal (although it is not mine, but that of persons close to the fount of tradition, that is to Christ and the apostles and their legitimate successors who received the sacred deposit to be handed on to the nations), and I feel I should attempt to prevent it. Let me say therefore to those who may take scandal:

"Brothers, if you were to confine yourselves to asserting an opinion different from my own, I would have no complaint. But you will not allow me to dissent from you in something which the Church has not defined in your favour, and you immediately accuse me of heresy, error and rashness. What you should do, if you think I am mistaken, is to attribute the error to learning inferior to your own. I have always confessed my own fallibility, and maintained and shown in word and deed that I wish to submit, as the lowliest of the faithful, to every decision and intention of the holy, apostolic, Roman Church. This is my complaint about you, but in order to convince you that any kind of heresy and error are improbable let me ask you to consider the following.

St. Clement, pope and martyr, disciple of the apostles, successor of St. Peter, vicar of Jesus Christ, wrote to the church of Corinth in the name and person of the Roman church. He maintained that bishops should be constituted with the active presence of all the people, according to the ordinance left by Christ to the apostles. If this statement were mistaken (which was impossible), is it possible that the apostolic church of Corinth, which certainly possessed the recent traditions of Christ and the apostles, would not have been scandalised? If the letter had contained error, is it impossible to believe that there would have been no public protests, or that the letter could have been read without opposition in the public churches almost as though it were inspired by God himself? Knowledgeable people (34) tell us that letters of this kind, although addressed to particular churches, are held to be directed to all the churches alike. In this case, is it possible that there could have been absolutely no sign of protest against the error or heresy which you now uncover in this teaching because I have affirmed it? St. Clement's successors could never have reconfirmed in their own letters without protest or censure what Clement had handed on to them. Pope Liberius, on the contrary, speaks of Clement as one of the first and greatest of his predecessors, who had received and faithfully transmitted from one to another the tradition of the apostle Peter: quam ipsi a beato et magno apostolo Petro acceperunt (35).

When St. Athanasius wrote to the bishops and to all in the catholic world who professed the solitary life, he maintained that the faithful had some part in the choice of bishops by divine and apostolic tradition. Wasn't he afraid that one of those bishops, or one of the churches, or at least the pope of the time would have condemned him and accused him of error or heresy? On the contrary, he was supported by the pope and the universal Church, and considered as the upholder of unsullied faith. Pope St. Julius in a council condemned Gregory as a usurper of the church of Alexandria, giving as one of his reasons the absence of an active presence of the people at the election - the same reason given by Athanasius, who did not hesitate to come to Rome "where", he said, "only fear of God reigns, without external pressure, and anyone is free to offer his opinion" (36).

St. Cyprian, in union with practically all the bishops of Africa, wrote freely and with great certainty to the bishops of Spain about the obligatory active presence of the people at episcopal elections. It was, he maintained, "according to divine teaching, and had its basis in divine authority, in divine and apostolic tradition." The whole Church proclaimed him as a true witness and teacher; no one accused him of heresy or error, or thought of doubting what he said.

The whole Church, all the churches and their bishops, agreed about this: their traditions were exactly the same on the point. And this is the basis on which I have dared to say, without disrespect to the Church or its spirit, canons and decrees, that the people have a divine right to some part in the choice of the pastors who have to feed them and lead them to salvation.

Another consideration will help to prove that it is not heretical, nor even rash, to hold that the faculty given to the Christian people of showing their opinion in the election of their pastors is of divine and apostolic tradition. It is common teaching amongst theologians that a doctrine common to all the churches, especially those founded by the apostles, must be considered of apostolic institution if its origin cannot be traced. Now history shows as an undeniable fact that in the greatest churches in the world, in churches founded by the apostles, in the churches of Rome, Alexandria, Antioch, Constantinople, Ephesus, Caesarea, Heraclea, Corinth, Thessalonica, Carthage and others, the people took an active part for many centuries in the ordinary choice of bishops. A bishop without the support and approval of the people was considered an unlawful usurper (37). This alone would be sufficient to indicate that the custom was established by the apostles according to the spirit of God and the teaching of Christ.

Do you know what you are doing when you refuse to recognise the force of this argument, and deny the apostolicity of even one ecclesial tradition based upon it - or of the other arguments on which it rests? You deny the apostolicity of all traditions and destroy any way of demonstrating the apostolicity of any tradition. This is a real, serious danger.

I think I can conclude, therefore, without deserving censure (38), with Alexandre's words: "I accept it is of divine and apostolic practice that the people vote in sacred elections by bearing witness to the candidate; I deny that the people vote definitively" (39). This is exactly what I say, neither more nor less.

However, I still believe it necessary to answer an objection which could arise as a result of the centuries-old change throughout a great part of the catholic Church in the discipline governing the election of the chief pastors. Is there no fear that by admitting the divine right of the people's active presence in elections, the Church may be censured for exceeding the limits of her power in modifying a custom depending upon divine right, or for having acted imprudently?

If I thought that this were the logical conclusion of the teaching I have expounded, I would never have accepted nor expounded it.

I have answered this objection elsewhere, but will gladly go over it again in the hope that the argument will be useful for well-intentioned opponents who have not yet seen it.

I do not want to make use of the opinions of various theologians about the powers of dispensation which they attribute to the pope, even in matters of divine right, when there is just cause. Suarez (40) and others list these opinions. I would point out, however, that Melchior Cano distinguishes two kinds of divine precepts, changeable and unchangeable. When particular cases arise in which the former, such as a vow or an oath, impede a greater spiritual good, the Church can dispense from them. This affirmation of Cano has not been condemned. Similarly, maintaining that the Church has the faculty to dispense with popular consultation in episcopal elections in order to avoid a greater evil, cannot be condemned despite the people's divine right to active presence. Hence, according to uncensured theological opinion, it does not follow that admitting elections by clergy and people to be of divine right leads to the conclusion that the Church, in changing the form of elections, has overstepped the limits of her authority.

In the second place, theologians admit that matters of apostolic institution are also said to be of divine right, as St. Thomas notes (41). But Aquinas, and many others, grant the pope's faculty to dispense in their regard.

In the third place, we have to distinguish between divine right and the object of divine right. The object of divine right is not always determined by the right itself, and hence the Church has the power to vary its determinations according to the needs of circumstances. The marriage contract, for example, is the object of divine right because it constitutes the matter of the sacrament. Divine right does not specify all the formalities required of the contract in order that it may be suitable matter for the sacrament of matrimony: the contract is the indetermined object of divine right. Consequently, the Church has the power to determine it, and add to it those conditions and formalities which she considers most helpful to the spiritual and temporal well-being of the Christian people. She can also vary these formalities according to different social conditions at various moments of history. The Church uses her power to declare the same kind of contract valid matter of the sacrament of marriage in one period and invalid in another. Before the Council of Trent, clandestine marriages were considered valid by the Church; after the Council, the marriage contract was suitable matter only if entered upon in the presence of the parish priest and two witnesses. We must not conclude from this that the matter of sacraments is not of divine right, or that the Church in changing the matter of the sacrament of marriage has diverged from divine right. She has simply determined in various ways the object which divine right itself had indicated in a general way without fully determining it.

The same can be said about the method of electing bishops, which is an object of divine right not fully determined for every circumstance. The authority of the Church has to determine it according to the needs and well-being of the christian people. Hence the modifications in the method of choosing diocesan pastors throughout the centuries have been subject to the authority of the Church which, moved by the Holy Spirit, determines what is most in harmony with the progress of the kingdom of God.

Fourthly, we have to remember the point made initially: we are dealing with divine moral right, not divine constitutive right. For example, theft and aggression are forbidden by divine right. Nevertheless, I can give away my wallet to someone threatening my life. When I hand over what belongs to me, I am not violating divine right; that is done by the person obliging me to part with my property. The same must be said about the freedom proper to the Church: it remains all of a piece, whole and entire, by divine right. Nevertheless, this inalienable and non-prescriptible freedom has often been undermined and violated. The Church has been forced to tolerate its diminution, and to abandon the less important part of it in order to save what is essential.

The concession of episcopal nominations to christian rulers should be considered in this light. The Church has never made such a grant freely and spontaneously, nor was she ever the first to ask rulers to accept it. She did it because, all things being equal, she wisely thought it was the lesser evil in the difficult circumstances in which she found herself. On the Church's side, there has never been the least infringement of divine right: she had suffered the infringement, not caused it.

Fifthly, we have to note that, despite the pressure of circumstances, which included the barbarism of the times and consequent ignorance, the ease with which violence and mob rule were invoked (42), negligent churchmen (43) and the domineering temporal power of barbarian princes who oppressed their peoples with iron determination and possessed the force which alone upheld public order in those uneasy centuries, the Church, when she had to yield, did not grant episcopal nominations (44) to the princes without preserving the principle at least in legal form and burdening the great concession with every qualification which could diminish its evil effects.

The pinciple was saved according to legal form in the sense that absolute monarchs, according to public law then in force in Europe, represented the people alone, and attended only to their interests. According to this law, it was considered that the people gave their witness to future pastors through their rulers. In a civil context, the people did nothing except through their prince; lay lawyers extended this maxim to ecclesiastical and spiritual orders. Whatever the intrinsic value of this law, the law itself was in force, accepted and trusted.

With regard to the qualifications accompanying the concession of nominations, it must be noted that the prince's proposal has no force unless it is confirmed by the pope who before the confirmation can draw upon the witness he judges necessary from the faithful about the nominee. This proves that the Church retains also de facto the maxim that ordinarily speaking the voice of the flock is not altogether excluded in the choice of its pastor.

Sixthly and lastly, right has to be distinguished from the exercise of right. The former may indeed be of divine institution, but it does not follow that its exercise is of divine origin, nor that the Church cannot regulate the exercise of the right in different ways. The fact that the Church for just causes suspends the exercise of the people's right to an active presence in the choice of bishops does not mean that the right itself is abolished. No church document could ever support such a proposition.

History in fact while showing that to a great extent the people were excluded from active participation in the choice of bishops, provides no proof, as far as I know, that anything more than the exercise of the people's right was suspended. Moreover,the Church regulates and when necessary suspends the exercise even of natural and divine rights in many other cases. There is a natural right to eat, confirmed by divine law (45), but suspended and regulated by the Church without abuse of authority when she imposes fasting and abstinence upon her children amongst the faithful.

The faithful also share by divine right in the eucharist according to Christ's positive commandment. Nevertheless the Church imposes positive conditions on the exercise of this right when she demands fasting from the previous midnight, and other dispositions regulating the reception of the eucharist. For instance, the exercise of this right is totally suspended in the case of excommunicated persons, and restricted to one daily reception of communion for healthy people. Bishops have a divinely instituted right to govern the Church in which the Church has made them overseers, to care for the Church of God (46), but the Church, in the person of the pope, has the faculty of making laws limiting their jurisdiction, and even suspending entirely the exercise of their functions.

It is clear, therefore, that the Church has authority to regulate and suspend for just causes the exercise of all rights of any kind possessed by the faithful without the destruction or abolition of radical rights by such intervention. It follows that the Church, in her wisdom, could suspend or limit (47) the exercise of any part played by the people in the choice of her pastors. The almost universal suspension of such a right over many centuries is not an obstacle to the argument because its essence remains unchanged. The length of the suspension is determined, according to the Church's decision, by the causes upon which it depends. On the other hand, centuries are only a brief time in the long life of the Church. It is clear, therefore,that the distinction between right and the exercise of right is alone more than sufficient to justify the Church's action, and leave intact the ancient teaching that the faithful people received from Christ through the apostles the faculty to give their assent in good faith when bishops are chosen.

For the rest, I have already explained in a work recently published the part of the people in the choice of bishops, and emphasised the urgent necessity, as it seems to me, of abolishing the extraordinary nature of present elections in order to restore legitimate, canonical practice. What I have written here is simply a small sign of my gratitude and esteem for what you have done.

Notes

(1) Sess. 23, c. 4

(2) John 10

(3) In letter 68, St. Cyprian supports this right and duty of the christian populace to cut itself off from an unbelieving bishop. The basis of his argument is that the people have the power to express their opinion at the election of their pastors. Propter quod plebs obsequiens praeceptis dominicis et Deum metuens a peccatore praeposito separare se debet, nec se ad sacrilegi sacerdotis sacrifica miscere, quando ipsa maxime habet potestatem eligendi dignos sacerdotes vel indignos recusandi [PL 3, 1025).

(4) The following learned comment was added to the text here: locus, si qui alius, apprime utilis ad intelligendum quae fuerint partes cleri et populi in episcoporum ordinatione. katàstasis ad apostolos et episcopos, suneudãkesis ad plebem spectat [Cotelier J-B, SS. Patrum qui temporibus apostolicis floruerunt... ex Mss. Codicibus eruit..., vol. 1, p. 173, Amsterdam 1724].

(5) St. Leo the Great certainly had in mind the primitive tradition when he wrote, commenting on a phrase of St. Paul: ut apostolicae auctoritatis norma in omnibus servaretur, QUA PRAECIPITUR ut sacerdos Ecclesiae praefuturus non solum ATTESTATIONE FIDELIUM, sed etiam eorum qui foris sunt testimonio muniatur (Ep. 89).

(6) Cf. Codex Canonum Ecclesiae primitivae illustratus, lib. 2, c. 2, ¦7 [William Beveridge, London 1678].

(7) In a letter to Fabius, bishop of Antioch, quoted by Eusebius, H.E. (lib. 6, c. 43), Cornelius also shows that Novatus had usurped the apostolic see by means of a sadly irregular election. One of the defects indicated was a lack of popular consent: cui universus clerus multique ex populo refragarentur... Cf. St. Cyprian, ep. 24 [PL 4, 294-5].

(8) St. Julius' letter in defence of St. Athanasius, preserved for us by Athansius himself, shows no signs of scandal at Athanasius' statement that the people have an active presence in the choice of bishops according to divine law. On the contrary, it recognises and accepts Athanasius' teaching that Gregory could not be accepted as bishop of Alexandria because neque plebi cognitum neque postulatum a presbyteris (Athan. Ap. c. 2) [PL 8, 897].

(9) St. Zosimus condemns Lazarus and Herod as usurpers in the episcopate because the people did not want them: plebe et clero contradicente, ignotos, alienigenas intra Gallias sacerdotia usurpasse (Ep. 3) [PL 20, 651, ep. 3].

(10) St. Boniface in one of his Constitutions decrees that the person is bishop: quem ex numero clericorum - divinum judicium et universitatis consensus elegerit [PL 20, 750].

(11) St. Celestine writes to the bishops of Gaul: nullus invitus detur episcopus - cleri, plebis et ordinis consensus requiritur. Ep. 2 [PL 50, 434, ep. 5].

(12) No one appreciated more than St. Leo the Great the advantages of maintaining the freedom of the people in the choice of their pastors. Many of his letters witness to this ancient tradition. For example: Cum de summi sacerdotis electione tractabitur, ille omnibus praeponatur, quem cleri plebisque consensus concorditer postularit - metropolitano defuncto, cum in locum alius fuerit subrogandus, provinciales episcopi ad civitatem metropolitanam convenire debebunt, ut omnium clericorum atque omnium civium voluntate discussa ex presbyteris eiusdem ecclesiae, vel ex diaconibus, optimus eligatur (Ep. 84) [PL 54, 673, ep. 14].

Expectarentur certe vota civium, testimonia populorum, quaereretur honoratorum arbitrium, electio clericorum, quae in sacerdotum solent ordinationibus, ab his qui norunt PATRUM REGULAS, custodiri. - Teneatur subscriptio clericorum, honoratorum testimonium, ordinis consensus et plebis. Qui praefuturus est omnibus, ab omnibus eligatur. - Nullus invitus et non patentibus ordinatur; ne civitas episcopum non optatum AUT CONTEMNAT AUT ODERIT ET FIAT MINUS RELIGIOSA QUAM CONVENIT, cui non licuit habere quem voluit. - Nulla ratio sinit ut inter episcopos habeantur, qui nec a clericis sunt electi, nec a plebibus expetiti, nec a provincialibus episcopis cum metropolitani judicio consecrati (Ep. 89) [PL 54, 632-634, ep. 10].

(13) In his first letter pope Hilarius asks for a report from a bishop who had consecrated another without popular consent: nullis petentibus populi [PL 58, 15].

(14) This saintly pope saw a clear sign of God's will in the voice of the people requesting someone as their bishop. In a letter (25) he writes: istam sacerdotibus ordinandis reverentiam servet electio, ut in grave murmure populorum divium credatur esse judicum. Ibi enim Deus, ubi simplex sine pravitate consensus [PL 24, 663].

(15) St. Gregory the Great was very careful about requiring the people's consent, according to ancient tradition, before confirming bishops in their sees. Letters 56, 58, book 1, and letters 3, 8, 20, book 2, are directed not only to the clergy, but also to the people at Rimini, Perugia, Naples and Nepi. Both groups are exhorted to take part in the election of their bishops. Other places in Gregory's letters confirm the same teaching: (lib. 2, ep. 19) qui dum fuerit postulatus, cum solemnitate decreti omnium subscriptionibus roborati et dilectionis tuae testimonio litterarum, ad nos veniat sacrandus [PL 77, 578, ep. 37].
(Lib. 2, ep. 15) saltem tres viros rectos ac sapientes eligite, quos ad hanc urbem generalitatis vice mittatis, quorum et judicio plebs tota consentiat.
Gregory's care in maintaining freedom in the choice of bishops and people was a matter of principle for him. His letters are very clear on this point.

(16) This pope took Leo and Gregory as his examples of delicate non-intervention in elections, which he left completely free. As a result, he was better able to defend their freedom against usurpation by rulers. He wrote, for instance, to Charlemagne: numquam nos in qualibet electione invenimus nec invenire havemus. Sed neque vestram Excellentiam optamus in talem rem incumbere. Sed qualis a clero et a plebe, cunctoque populo electus canonice fuerit, et nihil sit quod sacro obsit ordini, solita traditione illum ordinamus (Concil. Gall. t. 2, p. 96 and 120) [Thomassin, op. cit., p. 2, lib. 2, c. 20, par. 2].

(17) St. Gregory VII was as careful as his predecessors, including St. Leo the Great and St. Gregory the Great, in maintaining ancient tradition and claiming full freedom for clergy and people in episcopal elections. For example:

It would take too long to indicate all that Gregory VII did in defence of free elections by clergy and people. Thomassin thinks that the great battle over investiture between Church and empire would not have taken place if Henry IV had allowed canonical election by clergy and people before investiture (op. cit. p. 2, lib. 2, c. 38, par. 2). It is sufficient to say that this truly great pope was as careful as Gregory I, Leo and Hadrian in the delicacy with which he normally refused to intervene in elections in order to ensure complete freedom to clergy and people, according to ancient law. Cf. Appendix, letter 3.

(18) These two popes and their successors took the path indicated by Gregory VII, the great reformer of ecclesial discipline, and strongly upheld the right of clergy and people to take an active part in the choice of bishops.

(19) St. Athan. Apol. 2 [PG 8, 1352-53].

(20) Ejectionem quoque, ut supra memoratum est, summorum sacerdotum sibi DOMINUS reservavit, licet electionem eorum bonis sacerdotibus et SPIRITUALIBIUS POPULIS, concessisset (can. 2, dist. 79).

(21) Ep. 1 ad Decentium Ep. (can. 2, dist. 11) [PL 20, 552].

(22) can. 3 [SC 5, 1275].

(23) Ep. omnibus ubique solitariam vitam agentibus, n. 74 [PG 15, 1235].

(24) Ep. encyclica ad omnes ubique comministros Domino dilectos, n. 2 [PG 15, 977].

(25) Ep. omnibus ubique solitariam vitam agentibus n. 14 (PG 15, 1201].

(26) In Levit. Hom. 6, c. 8 [PG 9, 396].

(27) L. M. Franc Hallier explains Origen's mind in this way: Qui (Origenes) notat Moysen elegisse presbyteros quos ipse norat: populo vero ducem nequaquam, nisi ex divina revelatione et synagoga congregata, eligere ausum fuisse: simili enim ratione episcoporum, qui sunt populi duces, electionem videtur ecclesia maioris momenti censuisse, quam ut episcoporum, INCONSULTA PLEBE, arbitrio permitteret (De Sacris electionibus... p. 1, sect. 1, c. 2, a. 40 [Paris 1636, inserted in Migne, Theologiae Cursus Completus, Paris 1840, p. 258].

(28) In Act. Ap, Hom. 14. [PG 32, 115-6] This father holds the same doctrine. He deduces the need for the people in elections as much from the example of the old law as from that of the apostles. He notes that the apostles did not choose the deacons propria sententia, and adds: prius rationem reddunt multitudini, quod etiam nunc fieri oportet. He makes a similar comment when speaking of the choice of St. Matthias. Iam illud quod Petrus agit omnia ex communi discipulorum sententia, nihil auctoritate sua, nihil cum imperio (In Act. Ap., Hom. 3) [PG 32, 34] ), despite his recognition of Peter's full power to choose alone. We can take this great father as an authoritative witness of the tradition of Antioch and Constantinople. If the teaching in these churches had been different, St. John Chrysostom would have been aware of it, and not have interpreted the Scripture as he did.

(29) Haeres. 69, n. 11 [PG 23, 701].

(30) Ep. ad Evangelum [PL 22, 1194].

(31) Vetus et Nova Eccl. disciplina. p. 2, lib. 2, c. 2, par. 6.

(32) Epistola encyclica Concilii Alexandrini, in Athan. Apol., 2 [PG 15, 992 ss].

(33) Ad Ep. Orthodox. n. 2 [PG 15, 977].

(34) Cf. Beveridge, op. cit. in the edition of the Apostolic Fathers.

(35) St. Athan. Ep. ad omnes ubique solitariam vitam agentes [PG 15, 1214].

(36) ibid. n. 29.

(37) Note once more that the active presence of the people in episcopal elections is, we say, of purely moral divine right. Hence considering a bishop as usurper when he takes possession of a diocese against the will of the people is a consequence of ecclesiastical right only, that is, the Church refuses to bestow jurisdiction or mission upon him because she wants him to have the consent of the people required orally by divine and apostolic tradition.

(38) When an author is attacked on the basis of what he has written, a discussion can take place from which truth may emerge. This is not at all the case when he is blamed on the basis of his supposed intentions. My own intentions were at stake when it was suggested that I wanted the sacred liturgy to be celebrated in the vernacular. I have never said a word about this, nor ever desired other than what the Church wants and has decided. The accusation arose because I pointed out historically the causes now preventing the christian people from taking the active part assigned to them in the divine services by the rites and spirit of the Church. From a historical point of view I said that the division between the people and the officiating clergy came about gradually from two causes: inadequate instruction given to the people about the sacred functions, and the loss of Latin with the development of modern languages. Although I said no more than this, it was sufficient to allow some to infer that I wanted to have the functions in the vernacular. Can they deny what I said historically

speaking? They cannot, but they go on to add of their own accord what I have not said. "Therefore," they conclude, "you want the vernacular." Brethren, read ahead a little in my book and your fears will be found groundless. I have indicated historically the two causes of the difficulty, and their remedy, that is, better instruction for the clergy. If the clergy were better educated in the vital spirit of ecclesial worship, they would appreciate the importance of instructing the people and find a way to do this. They would enable the people to share more intimately and deeply in the sacred rites, and in everything the Church says and does in relationship to them. This is all I said, and nothing more, in The Five Wounds of the Church, and it shows clearly that I am not in favour of those who misunderstand the divine wisdom of the church and would like her to change the language she uses in sacred functions. But in order to remove all scruple, I hereby solemnly declare that I hold completely all that is said about the matter in the bull Auctorem Fidei, especially in propositions 33 and 66 {Mansi, Coll. conc., 38, 1276]

(39) In Saecul. diss. 8 [Alexandre, op. cit., saec. 1, diss. 8, prop. 3].

(40) De Legibus, lib. 10, c. 6 [Suarez, Tractatus de Legibus ac Deo Legislatore, Lyons 1619, pp. 735-741].

(41) Quodlib. 4, a. 13, and Quodlib, 9, a. 15; In IV Dist. 27, q. 3, a. 3, ad 2.

(42) This was the wholly exceptional and temporary cause which enabled Pepin to receive from pope Zachary the faculty of filling empty bishoprics: ut acerbitate temporum industria sibi probatissimorum descendentibus episcopis mederetur. Lupus, Ep. 81 [PL 119, 546-7].

(43) The negligence of churchmen in maintaining freedom in elections according to ancient law is witnessed by councils of the time: in ordinandis metropolitanis episcopis antiquam institutionis formulam renovamus, QUAM PER INCURIAM OMNIMODIS VIDEMUS OMISSAM. Itaque metropolitanus episcopus a comprovincialibus episcopis, clericis vel populis electus, congregatis in unum omnibus comprovincialibus episcopis, ordinetur (2nd Council of Orleans). The same can be seen in the 5th Council of Paris, can. 1, which re-established iuxta statuta patrum elections by clergy and people [SC 5, 927; SC 6, 619].

(44) The 7th and 8th councils were held in the 8th and 9th centuries when invasion from the north had submerged western and southern Europe in barbarism, destroyed ancient social ties and overwhelmed more civiliesed peoples with ignorance and disaster. But the common opinion, which attributes to these councils the people's elimination from an active presence at episcopal elections is false. A careful examination of their canons shows that these councils did exactly the opposite by resisting the intrusion of rulers and their nobles in the elections, and sustaining the freedom of the Church: Omnis electio a principibus facta episcopi aut presbyteri aut diaconi, irrita maneat secundum regulam quae dicit: Si quis episcopus saecularibus potestatibus usus, ecclesiam per eas obtineat, deponatur, et segregentur omnes qui illi communicant (Cant. Ap. 30). Oportet enim ut qui provehendus est in episcopum, ab episcopis eligatur; quemadmodum a sanctis patribus qui apud Nicaeam convenerunt, definitum est ... (2nd Council of Nicea, can. 3) [SC 15, 43]. The title given to this canon by Hervet [Canones Sanctorum Apostolorum..., Paris 1561] runs as follows: quod non oportet a principibus eligi episcopum. Clearly there is no question of excluding the people's witness. This council abrogates nothing previously established by the Church, but renews the apostolic canons and the decrees of the 1st Council of Nicea which certainly do not exclude the people. The council's only aim is to protect the freedom of episcopal elections against intrusion by lay powers which at the time tended to appropriate violently the rights of the people and of the Church. When the council requires bishops to carry out the election in accordance with tradition, it does not prevent the people from continuing to express their wishes and bear witness as they had done before.

The 8th council (4th Constantinople, 869) renewed the same ordinance in canons 12 and 22, without abrogating or changing ancient traditions. As it says: concordans prioribus conciliis. Athanasius the Librarian gives the following rásumá of canon 12: Statutum est etiam istud admodum Ecclesiae Dei proficuum, ne favore principum eligantur episcopi. It is true that after ordering neminem laicorum principum vel potentum semet inserere electioni vel promotioni patriarchae vel metropolitae, aut cuiuslibet episcopi, ne videlicet inordinata hinc et incongrua fiat confusio, it adds: praesertim cum nullam in talibus potestatem quemquam potestativorum vel ceterorum laicorum habere conveniat, sed potius silere, ac attendere sibi, usquequo regulariter a collegio Ecclesiae suscipiat finem electio futuri pontificis [PL 129. 1 ss., can. 12, pp. 154-5, can. 22, p. 160].

This raises no difficulties, however. 1st. It is universally accepted that no layman has the power to choose a bishop. This has always been the responsibility of church authority, that is, of the bishops and the pope. We have to distinguish between the power to elect, and the people's right to give witness, which is all we defend. 2nd. The council is speaking of individual laypeople, not of the body of the faithful, and intends to exclude pressure from rulers and nobles. 3rd. The council orders laypeople to hold silence until the end of the election. Hence it permits their consent and acceptance after the election. 4th. The council permits laypeople invited by the church not only to express their witness and acceptance, but to take part in the election provided they do so modestly: si vero quis laicorum ad concertandum et coooperandum ab Ecclesia invitatur, licet hiusmodi cum reverentia, si forte voluerit, obtemperare se asciscentibus. 5th. The council wants election to ecclesial orders to be carried out as usual, decently and canonically, and defends it against intervention by any lay power attempting to overthrow its result. Quisquis autem saecularium principum et potentum, vel alterius dignitatis laicus high-ranking laypeople are always referred to in the singular - adversus communem ac consonantem atque cononicam electionem ecclesiastici ordinis agere tentaverit, anathema sit... 6th. And finally, it must be observed that the people's active presence at elections ceased only gradually in the eastern church after these councils. This went hand in hand with the degraded state of the people when rights were abolished by the absolutism of civil governments. As princes and nobles were excluded from elections, the presence of the people ceased either through their indifference, or lack of freedom, overthrown by lay power in order to usurp the people's place in elections

Defending the Church's modern discipline in every way is an excellent thing, but it must be done truthfully and loyally, as the Church desires. Justifying the modern practice of the Church must not occasion a bias against the glory she has acquired through ancient practice. There is nothing to be gained by imitating certain Greek authors of the late empire like Zonara [cf. PG 134-5] and Balsomone [cf. PG 112, 119, 137, 138] whose prejudices in favour of their own times, when people took no active part in elections, caused them to lie in maintaining that the faculty for the people's active presence had been abolished by the 1st Council of Nicea whose canons were referred to by 2nd Nicea and 4th Constantinople.

This is not my own subjective interpretation of the councils. Louis Thomassin explains them in the same way, clearly indicated by the councils themselves. He says in reference to 2nd Nicea: ut ergo Nicaeni Concilii Canone ita episcopis adsignabatur summa electionum potestas, ut cleri populique nihilominus momenti aliquid haberent suffragia, quorum tamen omnium arbitri et judices essent episcopi; non aliter Nicaenae II. Synodi canone supra laudato, ita constitutitur episcoporum quidam auctoritatis apex, ut nec clero tamen, nec populo sua excutiantur suffragia... (Vetus et Nova Ecclesiae disciplina p. 2, lib. 2, c. 26, 1). Thomassin makes the same observations about the 8th ecumenical council, and offers numerous examples to show that the people's active presence in episcopal elections continued after the council, in accordance with the ancient canons.

(45) Gen 2. 15-17; 9. 2-5

(46) Acts 20. 28

(47) It is certain that even now a city which has lost its bishop can express its opinion about a trustworthy successor if it wishes to do so. This has happened on more than one occasion in modern times, and the Church has never reproved these spontaneous manifestations of public opinion amongst the faithful. The Roman Pontifical still contains, in the rite of ordination to the priesthood, a ceremony in which the people are asked to witness to the good character of the candidate. As Hallier says: nec hoc nostro tempore populus excusatur, si de meritis vel demeritis ordinandorum interrogatus reticeat, indignorum ordinationi aeque ac dignorum consensum praebendo. [Hallier, op. cit., art. 1, p. 199].