Tractatus I: PRIMUS DE VIRTUTIBUS THEOLOGICIS

Quaestio I: Whether the state of Regular Prelacy in a Religion is necessary

It must be noted beforehand that a twofold power can be considered in Praelates: one is of Dominion: the other is of Jurisdiction: the former arises from the power of commanding, wherefore it can exist in the Father of a family with respect to his household, as also in a master with respect to his servant: the latter is born of the reception of that Order which Jurisdiction can follow from the declaration of a superior.

Rursus a Praelatus is taken either broadly, insofar as he presides over some in spiritual things, in which sense the Parish priest is said to preside over those entrusted to his care; or properly, for him who has Jurisdiction in the contentious forum, in which sense Praelatus is now commonly understood.

ASSERO, supposing the institution of the regular life, that some pre-eminence in it is simply necessary, so all hold commonly with Suarez, to be cited below.

PROBATUR by the holy Doctor, loco citato. The institution of the regular life is of beginners tending toward the advance of perfection; but such have need of having a superior, at whose nod they may avoid what is harmful, pursue what is useful, be taught what they are ignorant of, etc., as D. Paul says, Hebr. 5. you have need that you be taught, what are the elements of the beginning of the words of the Lord.

PROBATUR secondly in the same place by the holy Doctor: that some are imperfect, who customarily run the more sluggishly in the stadium of virtues, and have need of someone by whom they are not only allured by examples, but also compelled by precepts to the exercise of virtue; which cannot be done without the power of Praelation; but men very imperfect, affected only with the desire of profiting, are wont to enter Religion from the world; and these are detained from sins at the beginning more by human fear than by the divine precept.

PROBATUR thirdly by the Seraphic Doctor. In every well-ordered government it is necessary that there be someone to correct vices and defects; for, as the holy Doctor observes here, sin is like a fever, or a wound, which unless the skill of physicians forestalls them, pass into a worse state; nor can he who falls into fault of himself rise again, unless he is supported by a stronger and corrected; for fault leaves behind it a certain languor, over which it is necessary that power be obtained; wherefore it is said, Luke 9. he gave them virtue and power, that they might cure languors; but the languor of the infirm man is cured by humbly obeying the command of the physician, as the Seraphic Doctor concludes there; but the physician, unless he be in the same house with the infirm man, can allow him to perish before he knows that he is infirm.

PROBATUR finally by Suarez tomo 4. de Relig. lib. 2. cap. 1. There being one correlative, it is necessary that the other exist: but Praelation and obedience in the regular life are two correlatives; the latter exists necessarily in it; therefore also the former.

From these you have that this power ought to be not only directive, but also coercive; for the former without the latter is for the most part useless, since it cannot be given over to execution.

HABES secondly, that it need not necessarily, but befits it, to be a power of jurisdiction; for although everyone is contained sufficiently in religious observance by the dominative power, as appears now in the Nuns, and formerly in so many convents of Monks, whose Prefect for the most part excelled the others not in the dignity of the priesthood, but in the humility of his ministry, as is clear (omitting other instances) in D. Benedict, of whom we read that he was an Abbot, that is, the Father of Monks, but not a priest, as Suarez notes num. 3. et D. Bonavent. in cap. 7. nostrae Regulae: Nevertheless, since the stronger and more efficacious way of coercing faults is through the power of Jurisdiction, and since it can be exercised excellently together with the Power of Dominion, it was fitting that both be joined in the Praelates of Religions, as now almost everywhere it has grown strong by the usage of the Nations.

But this he urges the more strongly, because now most convents of men are exempted from the Jurisdiction of the Bishops, and it would be arduous to govern these either by the supreme Pontiff alone, or by those whom he delegates, since these delegations, being frequent and extraneous, would be liable to various exceptions, and would hinder rather than help.

HABES thirdly, that the power of regular Praelation ought to be Monarchical; both because the Government of the Church, being the most perfect, is such, as the Seraphic Doctor inculcates so often and everywhere; and the fellowship of Religious is (so to speak) a homogeneous part of the ecclesiastical government, the rather because it continually applies itself to the acquiring of perfection, the attainment of which would be not a little delayed if it depended on a multitude, not on unity: Add that the Praelates of Religions ought to succeed into the place and the paternal affection; but one family cannot have several fathers.

Quaestio II: How the Prelate of a Religion is to be chosen

How the Religious Superior is to be Chosen.

ELECTION is made in three ways, according to the chapter, Quia propter de Elect. The first way is by public acclamation, which takes place when, without any preceding consultation, but by a sudden impulse, all agree as one, and at the same time name him and elect him: but this mode, since it depends on a divine impulse, has no rules prescribed by law.

The SECOND way of electing is by Scrutiny, which is made when those who must, will, and can be present are there, two or three trustworthy men are taken from among the rest, who diligently inquire into the votes of each, set them down in writing, and publicly announce them: in which case he is held to be elected in whom the greater part of the electors, or voters, has consented.

The THIRD way is by Compromise, and it takes place when several more suitable men are chosen by the whole assembly, into whose hands all the rest transfer their whole power of electing, according to a certain norm.

BESIDES these modes another is sometimes admitted, which is made by the nomination of a successor; yet this is not in use in ecclesiastical election, lest the prelacy seem to be possessed by succession or hereditary right, and lest various inconveniences be invited which would arise from the perverse affection of someone choosing a successor for himself at pleasure. In some Religions, however, someone is named who, as soon as the General or Provincial Superior dies, supplies his place until the Chapter is celebrated.

The mode MOST USUALLY employed in Religions is by Compromise, whose norm, like that of the scrutiny, is prescribed in the said chapter Quia propter, in these words: When the election is to be celebrated, all being present who must, and will, and can conveniently attend, three men of proven fidelity are to be taken from the college, who in secret and one by one diligently inquire into the votes of all, and, having reduced them to writing, straightway publish them in common, with no obstacle of appeal at all interposed, so that, the scrutiny having been held, he may be elected in whom all, or the greater and saner part of the Chapter, consents.

ALTHOUGH mention is made here of the College, nevertheless the election of any Prelate is included, whether of a Church or of a Religion, as all the expositors approve, at Suarez cap. 5, just as is had more expressly in the Council of Trent, session 25, cap. 6 de reformatione: In the first place the holy Synod strictly commands that all the aforesaid (whether Abbots, namely, or Generals) must be elected by secret votes, in such wise that the names of the individual electors are never published, nor may provincials or abbots in the future constitute priors, or others with any title whatever, for the purpose of carrying out an election, or supply the voices or suffrages of the absent, etc.

Hence, all having been convoked who can, will, and must attend by citata duly issued, according to the words of the said chapter Quia propter, before all else the conditions for electing are to be examined, especially for the General: these however are either canonical or moral; these latter I reviewed above with the Saintly Doctor, in the disp. de prudent., the former I shall briefly indicate here, with Suarez treating at length in cap. 3.

The first condition, therefore, required by the Canons, is that the one elected have the legitimate age, which according to the chapter Cum in cunctis, de elect. is twenty-five years, as you also have repeated in the Council of Trent, session 24, cap. 12. And although in the said places the talk is of those who hold ecclesiastical dignities with the care of souls, we need not doubt that regular prelacy is comprehended there, since it is truly a dignity gravely annexed to the ordinary care of souls, as Suarez teaches, loco citato, num. 7.

Yet since in Bishops an age of 30 years is required in the same place, both on account of the episcopal dignity and on account of the graver causes which it falls to them to expedite, a similar age seems to be demanded also in regular prelates holding a quasi-episcopal power, such as Generals and provincials. But since the law speaks only of Bishops, who are indeed inferior in dignity to the said Prelates, although they often surpass them in the gravity of affairs on account of the diversity of provinces, that law is not to be extended beyond the proper signification of the words, especially because it renders ipso facto null the contrary act, which in that case is odious, and therefore to be restricted, as Suarez notes, loco cit., adducing Panormitanus, who shows that the common law said nothing definite even about an Abbot, although not rarely he holds a quasi-episcopal power, and accordingly that he is comprehended under the inferior dignities, insofar as the disposition of the law demands.

Nevertheless, although the common law determined nothing about these; the common usage of all Religions seems indeed to have provided for them abundantly; for since a Generalate or Provincialate requires long experience of affairs, which is acquired only over the course of many years, they are not wont to be elected to those dignities below the fortieth year of age, and we know only of the Seraphic Doctor Bonaventure, who, as Suarez observes, cit. loco, on account of his singular gifts and the excellence of his doctrine, in the 35th year of his age and the 13th of his Religion was elected General of the whole Order of Minors; for in him the maturity of spirit and genius had long outgone the gray hairs of years: not unlike is the example of Claudius Aquaviva, as Suarez has in the same place, elected Prefect General of the Society while he was in the thirty-ninth year of his age and the fifteenth of his Religion.

The second condition is solemn profession in the same religion: it is had in various chapters of the ancient law, as cap. Cum ad nostram, cap. in magistro, cap. Cum causam de electione; and it is confirmed anew in the Council of Trent, session 14, cap. 10 de reformat. and session 25, cap. 21 de Regular.

Some cry out that this condition is so necessary that they assert it to be of natural law, at Suarez, num. 12, and it seems to be figured in those prohibitions of the old law, Deuteronomy 22, by which it was forbidden to plough with an ox and an ass together, or to take a garment woven of wool and linen; for where the profession is unequal, the bond of love cannot be equal; for unlike things, by a certain natural tedium, do not long sustain one another, but seek divorce: thus argues Clement V, Clementina I, and the Second Council of Seville, saying: In one and the same office the profession ought not to be unequal, for those cannot cohere and be joined whose vows and studies are diverse.

Yet I do not deny, with Suarez, that these inconveniences can be otherwise remedied, namely when necessity presses, and the abundance of grace persuades in the professed of another Order, who can easily make himself conformable to the rest and conciliate their minds benevolently; but this case, being extraordinary, is not subject to the present determination of the laws.

But if the Council of Trent determines concerning an Abbess that she is not to be elected unless she has lived laudably in religion for eight years, or at least five; yet this is not to be extended to the election of men, either from the same precept or from the nature of the thing: both because the masculine genus is not comprehended under the feminine, although not conversely; and because the law is odious, therefore to be restricted. Moreover, a longer probation of morals is demanded in women, in whom an experience of more frequent frailty has been found.

Yet by various constitutions several Religions have provided that some years pass after profession before any professed member is eligible, so that in the meantime he may devote himself to devotion and study; for the practices of religion are not all learned offhand, nor is it seemly that a young neophyte be set over his elders; yet it can be that these defects of age and experience be more happily compensated elsewhere, as if a passage is made from one religion to another, where he has seen equal practices on account of the proximity of the two religions; and there be in the one to which he passes necessity, and in himself sufficiency; wherefore we have said that that condition is not of the nature of the thing.

The third Condition is the Priesthood; for since regular prelates are now ordinary pastors of souls, it is necessary that they obtain not only the dominative power founded in religious profession, but moreover spiritual jurisdiction. Thus cap. 1 de aetate, et qualitate, where it is required that the one elected Abbot, necessity pressing, be at least constituted in minor orders; therefore with no necessity pressing he ought to be a priest: but if the election were not of a priest, the election is not to be rendered null, but the one elected is to be ordained, so Suarez, num. 21.

But if we regard only regular observance and religious subordination; this condition will not be necessary, since the Religion can be well governed with the sole power of dominion, as is plain at the beginning of the Order of Minors, which the holy Patriarch Francis happily instituted and governed, although he was not a priest; and he commands in cap. 7 of the rule, that if the superiors, to whom recourse must be made for Reserved cases, are not priests, they cause penance to be enjoined through other priests of the order.

The fourth condition is that there be no Irregularity in the one elected; we saw this above, while treating of irregularity.

Just as many conditions can be assigned on the part of the elector: for first it is required that he be of the same Congregation with the one elected; the common law indeed enacts that the prelate of any congregation be elected by the members of that one, thus cap. 1 de electione, as also 2, 3, 4 and the following, quest. 8, 2. Secondly it is required that he be professed in that congregation, for novices are excluded from elections in the law; yet an express profession is not required in the elector, although it is required in the one elected, as the law provides, because more is exacted of him who is elected than of him who elects. Thirdly it is required that the elector be a cleric and initiated into the sacred orders, whence converts are not admitted, by which name only those religious are understood who are not destined for the priesthood or sacred orders; it is had in the Clementina Ut i de aetate, et qualitate, where it is decreed: that no one henceforth in cathedral or collegiate churches, secular or regular, have a voice in chapter, even should this be freely conceded to him by others, unless he have been at least constituted in the order of subdiaconate, which Suarez says is to be understood of all chapters, general, provincial, and conventual, cap. 6 num. 5.

If, however, we regard the ancient law, while the old monasteries were made up almost entirely of lay monks, it is certain that the power of electing was in the hands of the laics by equal right as in those of clerics, since the latter were fewer, and sometimes none: but since the monastic body was for the most part at length raised to the dignity of the priesthood, and spiritual jurisdiction itself was conferred on them, it seemed unseemly that this be contributed by laics, who indeed in no way possess it, nor will possess it; as is touched upon in cap. sacrosancta, and cap. Massana de electione.

Nevertheless there prevailed among some Orders the custom, or rather the Privilege petitioned from the Pontiff, that in certain minor Chapters the converts have a voice in electing one whom they call the Discretus, that he may bring to the provincial chapters the needs of the brothers, and in their name, together with the local superior, give his own voice.

Fourthly, Finally, it is required that the elector be entangled in no censure or ecclesiastical incapacity; and if he be secretly incapable, by intruding himself he sins mortally; but if the others knowingly consent to him, beyond the sin the election will be vitiated, and therefore will have to be rescinded; yet if he be such an excommunicate that the others are not bound to avoid him, nor do they reprehend him intruding himself; the election will not be vicious on this account, since no one is bound to reprehend him. Thus it is determined in the Extravagant Ad evitanda.

Further, although these conditions are specially understood on both sides of the general Prelate and those electing him, yet by a similar proportion they can be applied to the election of an inferior Prelate, both active and passive; so that there is no need to say anything in particular about this matter; especially since the said chapter, Quia propter, must be observed by all as far as possible, in which are certain restrictions substantial, others accidental, which see described at length at Suarez, loco citato.

To this chapter Quia propter have been joined various constitutions, more or less, varying according to the Pleasure of each religion; and they prescribe the manner in which one is to proceed in each Religion for establishing prelates in it; yet for such elections to be valid or invalid in law, it is necessary that constitutions of this kind be approved by the Sovereign Pontiff, otherwise they will be able to add nothing to, or subtract anything from, the common law.

Quaestio III: How many Prelates there are in one religion, and what order among them

How many Prelates there are in one religion, and what order is among them.

Since the hierarchical Order consists in this, that some are supreme, some lowest, and some intermediate, as the Seraphic Doctor inculcates from St. Dionysius more often here and there, and especially in part one de ecclesiast. hierarchia: It is certain that that regimen is more perfect in which this Order is observed, such as that of the Church, whose governance is most perfect and most hierarchical: it has one supreme Prelate, but very many lowest pastors, and many intermediate Bishops, so that it may thus approach nearer to the Church triumphant, in which there is one supreme power, namely the Divine; another intermediate, namely the Angelic; and finally another lowest, namely the Human; in which hierarchy, the higher one ascends, the more excellent a power dominates over the rest; and on the contrary, the more one descends, the more the divided power is weakened.

Hence the Religious Order, whose task it is to stand steadfastly in the footsteps of the Church, that it may better attain that perfection which it vowed in her, is governed under a threefold kind of Prelates; of whom one is supreme, commonly called the General; not that he is simply supreme, since he acknowledges the Pontiff as his superior; but because in that order over which he is set he has no other to whom he owes obedience.

Another is the intermediate Prelate, subject to the General, having many convents under himself in one province, and on that account he is called Provincial.

The lowest Prelate is called the one who has no other inferior to himself, and is set over a certain convent or place, whence he is wont to be called Conventual, or local, or Guardian: he is wont, however, to have another subordinate to himself rather in the economic administration than in any spiritual jurisdiction; this one is called Vicar in some religions, especially where the local superior has the name of Guardian; he is also called Subprior in respect of the Prior, and Prior in respect of the Abbot, just as Minister in respect of Rector: for local superiors rejoice in various names signifying this very thing; and since they are ordinary pastors, they can in some cases delegate their jurisdiction.

There are also those who hold the place of local Superiors, so that after their death, until the chapter is celebrated, or on account of the smallness of the convent or the fewness of the brothers, they preside; and although they are called Vicars, they are nevertheless in fact ordinary prelates, as is gathered from cap. In singulis, de statu Monachor.

In every Religious Order there is wont to be a Provincial, not so in the Monastic, in which the sole Abbot or local Prior, under the general superior, governs each monastery: nevertheless usage has prevailed among the Carthusians that at the time of the chapter they institute certain Visitors, who however are not prelates, but for the time exercise a certain commission, on the completion of which they cease; so also in the Order of Minors Commissaries are created for certain causes, who are as it were intermediate Prelates, holding a delegated power; yet not exceeding the exigency of the cause for which it is given, unless it has been expressed otherwise; nevertheless in certain Missions there are commissaries having ordinary jurisdiction, and these are held in place of provincials there.

AMONG Us the first Ordinary before all is the Lord Pope; after him the General chapter; third the General minister; fourth in each province the provincial chapter; sixth the Provincial; lastly in his place the Guardian, whether elected or provided. Our Elizzus places ordinary jurisdiction also in the Procurator of the curia, in the visitor, and in the commissary, whether general or provincial, and he cites Boerius, and Bictus, tract. 4, quaest. 1, num. 9. Yet it is certain that these do not come into the share of ordinary jurisdiction, if we take it insofar as it is contrasted with delegated; since these cannot subdelegate their own causes, except by the concession of the first delegating one, or with a grave cause pressing, in which the will of the delegating one is presumed, as Elizzus himself concedes, num. 10. Except those general Commissaries who are deputed not for one cause or another, but hold an ordinary residency, while they are set over Missions or a few convents, which cannot be erected into a province, in the governing of which the Commissary has, whether you wish to call him a general commissary or a provincial, ordinary jurisdiction.

THERE are also other intermediate Superiors, frequently among the Minors, called Custodes; which name signifies an act, not a degree, just as the name Seraph signifies an act, not an order, as the holy Doctor says on chapter 8 of the rule: and these, from the beginning of our Religion on account of the breadth of the provinces, which a sole Provincial did not suffice for, were instituted, having in their custodies the same power, though subordinate, which the provincial minister had in the whole Province: but now, this breadth of the provinces having been so restricted that the provincials can visit them twice a year, the use of these custodes has fallen into disuse; yet another succeeded to it, namely of watching over the brothers, in the absence of the Provincial, and of admonishing him of graver cases emerging; but if some sudden case has emerged, which must be provided for at once, the Custos can in that case exercise the office of the Provincial, as also in any other occurring, for which power is delegated to them: moreover he is subject to the local superior together with the others.

THERE is also another kind of Custos, especially customary among us Capuchins: for in the first provincial Chapter, the Pentecost immediately preceding, they are wont to name one Custos alone, who in the election of the General may put forward the voice of the rest.

IN this all the said prelates agree, namely the general, provincial, and local, that each one hold spiritual jurisdiction over subjects, and indeed ordinary, not delegated; since each of them is destined to his office by the election of the whole chapter: they also have immediate jurisdiction; for this pertains to ordinary prelacy; likewise this jurisdiction in all is quasi-episcopal, as Suarez notes, num. 9 and following, yet in a diverse manner, which, that you may understand,

IT IS TO BE NOTED that the particle quasi imports two things, as Suarez notes in the same place. For first it signifies the proper power of a Bishop, residing in an alien subject: second it signifies the power of a Bishop, but with a certain diminution; so that it is not properly an episcopal power, but quasi.

THAT the general minister has this quasi-episcopal power, no one doubts, since he can exercise over his subjects many acts of jurisdiction which the Bishop can over his own; yet it is said quasi in the general, on account of the twofold reason signified, both because in dignity or character he is inferior to the Bishop; and because he cannot exercise absolutely all the acts of jurisdiction which the Bishop can; the same holds a fortiori in the provincial, since something is always in each province reserved to the general; and it flourishes most of all in the local superior; who could be said, by a more fitting similitude, to have a quasi-parochial power, if we compare the religious hierarchy with the ecclesiastical, and regard only ordinary jurisdiction; since nevertheless the local prelates can have from their privileges more acts forbidden to parish priests and commonly proper to Bishops, it must be said that in them there flourishes thus a quasi-episcopal power, yet with a greater diminution than in provincials; as the common law of old granted this quasi power to conventual abbots, as is plain at Suarez, loco citato, although they were subject to Bishops.

But the said prelates DIFFER in many things, especially in the greater or lesser dependence, in subordination, and in the power of restricting the law of the inferior, as also in the breadth of power, especially extensive; for the local superior can care only for those things which are of his house; the provincial, those of his province; and the general, those of the whole religion; the first of these is subject to the second, the second to the third; not contrariwise; yet the rights of each are so composed among themselves that in one religion, according to its proper institute and custom, a conventual prelate can have less, in another more, as also the rest; which, since they rest more on a diverse practice, and the common law has not cared much for these, cannot be prescribed by any certain rules.

Quaestio IV: Whether it befits a Regular Prelate to remain long in the same office

Whether it befit a Regular Prelate to endure long in the same office.

PRELACIES, whose dispensations are in the power of human choice, do not demand from their nature that they be perpetual or temporary; wherefore in the earliest times, while few were those who aspired to the prelacy and the manner of governing was simple, without so many windings of laws with which prelates are now wont to be entangled, one governed a convent perpetually, and was removed only for notable insufficiency or death; and that this was the mind of our holy Father Francis is gathered from those words of our Rule: Let all the brothers always be bound to have one of the brothers of this Religion as general Minister, at whose death the election of a successor is made by the provincial ministers, etc., although on account of grave causes it was afterward otherwise enacted by the Religion, as Croufers notes in his exposition of chapter 8 of the rule.

ON WHICH ACCOUNT now in all religious Orders, and in many monastic ones too, the custom has prevailed that all Prelates may endure for a fixed time only, more or less, according to the proper institute of each religion, or an Apostolic indult.

Thus among the Minors and the Carmelites the general Minister endures for a six-year term; for since his chief duty is to visit personally the brothers of the whole Religion, it pleased to grant him only so much time as would suffice for that duty: if he sometimes ceases from the said visitation, this is per accidens, on account of some inconvenience or obstacle.

The ORDER of St. Augustine, however, has always acknowledged the same general, but as eligible or removable at each general chapter: wherefore he is not perpetual of himself. Otherwise must be said of the Carthusians, the Preachers, and the Jesuits, to each of whom one general minister is for the term of life.

The PROVINCIALS, however, as also the local superiors, are triennial, very rarely perpetual, against whom Navarrus lashes out with relaxed reins, comment. 3 de Regular. num. 3 and following, where he heaps up many inconveniences constantly born of the frequent change of prelates, and protests that he was never by any reasoning persuaded that it would profit the salvation of souls or the peace of communities; against whom Suarez treats learnedly, tome 4 de Relig. lib. 2 cap. 7, where he argues especially from the common custom received in the whole church and approved by the Sovereign Pontiffs, against which to go is not solid doctrine but most insolent madness, as the common rule of St. Augustine argues, which I have inculcated everywhere elsewhere. That this same thing is most fitting in the Order of Minors the Seraphic Doctor shows, in the little Apologetic book against them, and c. in resp. ad quaest. 5.

I ASSERT therefore, with the holy Doctor, that this temporary duration of prelacy is most fittingly ordained.

IT IS PROVED, at the place cited, by St. Bonaventure: In the religious Prelate, besides the many gifts of soul, namely the zeal of justice, the mildness of gentleness, fraternal compassion, solid discretion, etc., there are required also other perfections of body, such as an honest personal presence, lasting vigor, so that he may be indefatigable in regular observance and in attending to offices; that maturity of age, so that he neither declines into excessive old age, burdensome to himself and others, nor begins from excessive youth, which does not press upon itself but insults others: but these perfections are found in few, and in those they are very unstable: Therefore, concludes the holy Doctor, we can have few prelates stable in office, since either they are weakened in body, whence they do not suffice for bearing so many labors, or they are even assailed by fear of conscience, whence not rarely they urgently beseech to be removed from office.

IT IS PROVED secondly by St. Bonav. there at the end, in the relation which Suarez uses, loco citato: He who knows that he will remain long, or forever, in the office of prelacy, easily forgets himself, and thereupon grows insolent; whereas, on the contrary, knowing that he is to be deposed, or to finish, in a short time, he is held in humility and fear; and this happens in both kinds of prelate, perpetual and temporary: for not rarely several, secure in their prelacies, have seemed to lord it over their clerics, against the precept of the Lord, 1 Peter 5, while in others that vice is detected very rarely; for by a certain emulation of virtue (sometimes perhaps also by a vicious ambition, which yet profits others) they imitate those whom they have seen to have borne themselves well and laudably in office, and study that good peace may be for themselves and others in their days, offering to each one such solace as they conveniently can, and diligently cutting off the vices that spread, knowing that they are shortly to render an account of their stewardship, when they have been made subject to another.

ADD that the prelacy is not so much an exercise of virtues as a reward: wherefore distributive Justice would seem to be injured, while so many outstanding in doctrine and virtues should be perpetually subjected to others perhaps untrained and not sufficiently upright; whence the community would be deprived of not a few advantages: and although those who excel in virtue can use such subjection for their own progress; yet it belongs not to themselves to make good use of an evil, but to the Religion, to drive them to so rigid a discipline, whence many experience ruin rather than progress.

HENCE the holy Doctor, 4 dist. 15 part. 2 dub. 13, adduces as an example of the proud prelate, who is for the whole people unto ruin, David, ambitiously numbering the people subject to him, and glorying in their multitude, or perhaps in the years over which he presided; whence the hand of the Lord was made heavy upon the whole people, to signify that nothing harms a community so much as the pride of the prelate, which is born especially from the perpetuity of his duration.

Should you ask whether one must obey prelates thus openly insolent.

THE HOLY DOCTOR ANSWERS, in his exposition on Ecclesiastes, chapter 20, fol. 332, col. 2, that such prelates are of a threefold difference; for some are unjust in themselves; yet commanding others justly, and executing the rest of their office justly; to whom therefore obedience is justly given.

THERE are others elected unjustly, and exercising the office of Prelate in an equally unjust manner, to whom obedience is not due; finally others elected justly, yet pressing hard and harshly, to whom in those things which are according to God one must submit: yet it is just that such a one be removed, because, as the holy Doctor says there, he merits to lose the privilege who abuses the power granted to him.

THE reasons adduced press most of all in Religions in which the sole active life, or rather a mixed one, is pursued; for on account of the immense cares besetting here, on account of the frequent occasions in which the Prelate is bound to command and the subjects to obey, on account of the constant assistance or presence of the prelate himself, that so many arduous things may be better sustained, scarcely can one endure long, and scarcely can subjects obey long with merit or a cheerful spirit; wherefore if he act more harshly, these console themselves that his deposition is near at hand, as the Seraphic Doctor observes, loco prius citato, at the end.

THAT long series and heap of inconveniences, however, which Navarrus accumulates from the frequent change of Prelates, loco citato, is easily dissolved, if it be noted that those and similar inconveniences arise rather from an undue election of Prelates than from their temporary duration, as Suarez notes, num. 6. But since in cap. Quia propter, and in the Council of Trent de reform. Regularium, provision has been made sufficiently for electing in the due manner, I do not suspect that any grave argument can be drawn from this: and if certain few murmurings of brothers, or the intemperate ambition of some, should disturb these frequent elections, they are readily met by other remedies instituted in each Religion, as seems best to expedite.

Quaestio V: Whether a religious Prelate has the power of coercing subjects with penalties, both spiritual and corporal

Whether in a religious Prelate there is the power of coercing subjects with penalties, both spiritual and corporal.

AS TO the first part, it is presupposed from the treatise on Censures, disp. 1, which we shall deliver, in part 3, where we treat of the Sacrament of Penance, that regular Prelates have the power of inflicting a censure, which contains under itself almost all other spiritual penalties.

Reason also favors it; for since they are instituted for this, that they may diligently exercise their subjects in the study of virtue and perfection, they ought to have not only the Key, that they may introduce them, but also the sword, wherewith to coerce stiff necks and the contumacious. For the directive force has little vigor, unless it is at times pressed harder by a coercive force.

THE penalties, however, which regular Prelates can inflict, must regard persons, not places; wherefore they cannot lay local interdicts, as Suarez teaches, cap. 9 num. 5, since they are destined only for governing persons, not indeed places; they can nevertheless by virtue of simple Obedience forbid brothers to visit certain places; which is not a legal interdict, as is of itself plain; for that generally prohibits a place from being frequented by all, which does not fall under the power of a regular prelate, since not all, but only the community of brothers, is subject to him.

CHAPTERS, however, which are subject to prelates can be suspended by the same, as Suarez teaches, loco citato; but not those to which they are compared as equals, or by which in some things they are surpassed; wherefore the general cannot suspend the general chapter, nor the provincial that which is celebrated in his province, just as neither can the local superior suspend the conventual chapter.

IRREGULARITY, however, to be imposed, is not of regular jurisdiction: for this belongs to the supreme Prelate of the whole church; and in the cases determined by him, in cap. Is qui, de sentent. excom. in 6. The prelates of a Religion can nevertheless declare, if any subject of theirs has fallen into it.

BUT there are certain incapacities for casting a vote in chapters, and for other things which are of regular jurisdiction, which it is plain from the common practice they may have the right to inflict; yet they cannot institute them by their own authority, unless with the common law they have some necessary connection, or an express approval from the Sovereign Pontiff. Above all, however, the common law itself must be examined: is such a penalty expressed in it? in what tenor? does it concern all ecclesiastical persons, under whom religious are understood? or only clerics, from whom they are distinguished? for if the penalty is imposed universally on all ecclesiastical persons, the prelate must still consider whether it is imposed ipso iure, or whether it is to be imposed by the Prelate himself; and in either case fulfill his own duty; but if it is laid only on clerics, the Prelate will be able to inflict a similar penalty on a religious, on account of the similitude of the delict and of the person, as prudence and equity shall demand.

AS TO the second part of the question, it must be said that corporal penalties are of two kinds: some lighter; others graver: that the Prelate can impose the former daily practice teaches, even by a simple word or command, so that the subject is bound to execute them upon himself; in which they are distinguished from the other, graver penalties, which indeed the Prelate can at times inflict, and the subject suffer, yet not execute them upon himself.

THERE is, however, no small doubt, which are those graver penalties which it is lawful for a regular Prelate to impose on his subject.

IT IS CERTAIN first, that the prelate cannot punish a religious cleric with degradation, or similar penalties, by which he is deprived of the clerical privilege; nor indeed, even if he be not a cleric, deliver one deposed from religious profession to the secular arm; unless for this they have a special concession from the Sovereign Pontiff: both because thus the irregularity to be incurred is scarcely forestalled; and because that immunity of the religious from such a penalty is in favor of the whole religion, which a Prelate cannot thus punish.

IF it should sometimes happen that religious are tortured by the secular arm; I say that such men are then, as to the jurisdiction of the Prelates, no longer religious; for they are cast out as incorrigible, and deprived of the habit they are apprehended in some crime, or on account of a misdeed committed in religion, to take note of which belongs to the secular power; which the Prelate can quite justly permit, since he is already emancipated from the religion: by no means, however, when he can hand him over to be punished by his own hands.

SUAREZ concludes the same concerning mutilation or public flogging, num. 3; for these are dispositions unto death or homicide, which no cleric can either command or execute without irregularity; add that they are set in opposition to ecclesiastical mildness and religious compassion: whence it is not in use even among Bishops themselves.

THE same seems to me plainly concerning the penalty of the galleys, that a religious Prelate cannot justly command it by his own authority; although Suarez leans to the opposite; nor does he rightly solve the reasons which he himself objects, so that he ought to hold that opinion equally persuaded to himself.

For FIRST in this penalty there intervene bloody floggings, not only per accidens on account of the rowing, as Suarez says, but per se, since they are inflicted quite well both on those already rowing, and on account of the sole fault for which they are condemned to it.

SECONDLY this is done by laics against the tenor of the Chapter Si quis suadente; and cap. Universitatis de sentent. excom., where degradation is presupposed to be done unto scourging by laics; but that regular prelates cannot degrade, except by a special indult, we said above.

THIRDLY to torture one's subjects thus is not customary among Bishops, and the Sovereign Pontiff alone uses that power; but if the Bishops do not do this, as Suarez says, that they themselves may undergo less burden, and the guilty less peril, by consigning them to perpetual prison, why does it not rather fall to regular prelates, being less able to undergo such great burdens, and no less bound to guard against the perils of guilty subjects; which from this source are wont to accrue most frequently, and at the same time most enormously; whence nowhere among the ancient Fathers, although in ecclesiastical discipline much more severe than the moderns, do we read that this penalty was in use; not on account of the fewness of the brothers, as Suarez says; for although there were not then so many religious orders, there were nevertheless innumerable throngs of Monks, as Suarez himself confessed in express terms a little before this, cap. 1 num. 13, where he says there were at Mount Nitria up to five thousand Monks; who, since they were almost all lay Monks only, not priests, as is gathered from Suarez, eodem num., where he narrates that Epiphanius wrote in a letter to John Bishop of Jerusalem that he had raised to the priesthood a certain monk refusing it, because the multitude of brothers lacked a presbyter — it is almost incredible that at any time some of them gravely did not offend, as we truly read in the Lives of the Fathers of a certain Marianus, who, while a girl, concealed her sex under the habit of a man, and lived laudably for a long time in a certain monastery; and when the Prelate commanded her that on a certain night she spend the night with the other monks in the house of a certain secular benefactor, that on the next day they might carry away from there the things necessary for the convent; it happened that the daughter of the householder permitted herself that same night to be corrupted by a certain soldier; and since she could long no longer conceal the evident crime of her pregnant womb, she cast the whole blame upon the said Marianus, which her parents reported to the Abbot with much exaggeration; and in that time guilt of that kind was most grave, both on account of the singular sanctity of the Monks, and on account of the enormity of a scandal not frequent; the Abbot, however, Marianus being called to the question, and humbly acknowledging that he had committed graver crimes, condemned him with no other sentence than that of ejection: yet the Abbots of convents, although at that time they were subject to Bishops, held over those subject to themselves a quasi-episcopal power, which now regular prelates cannot have greater, as Suarez teaches, cap. 2 num. 11 and following. Wherefore I should not think it lawful for our prelates to be now less indulgent to clerical priests than the ancient Fathers once were to lay monks, unless perhaps we wished to aggravate the fault on account of the excellence of the state; which indeed I do not judge to be impious, provided we reserve its punishment to other, less rigid penalties, or to the superior power: whence I do not think that those Religions in which the custom of inflicting this penalty flourishes, as Navarr. teaches, comment. 3 de regularib. num. 53, and after him Suarez, citato loco, can carry it into execution without a special Pontifical indult, although they act more secretly, and there is less scandal, if they say nothing of it in their books; since graver penalties must always be determined by the common law, or by the Pontiff.

The penalties of exile, however, or of change of place, belong to the ordinary power of the prelate. Yet if the prelate wish to delegate a subject to a remote place outside the religion; that delegation will be equivalent to an ejection; for just as if he had been cast out alone, the subject will not be bound to stay in such a place; since he is already outside the obligation of obedience, which ceases, the subjection ceasing.

Hence if the prelate should command him whom he was about to eject, that he not enter such and such a religion, the one ejected would not be bound to comply with such a condition, because while it is being fulfilled he is his own master; see Suarez, cap. 10 num. 10.

YOU WILL ASK whether the prelate can command the guilty one not to flee from prison.

Couarruvias answers, lib. 1 Variar. cap. 2 num. 4. Caieran. 2 2 quaest. 69 art. 4, and others, at Suarez, loco citato, that such a precept is just, and that the guilty one is bound to comply with it, both because he is bound to keep himself within the cloister according to the prescription of the Superior; and to forestall the scandal that would thence emerge; which, however, Suarez teaches is to be understood in respect of pure detention; for if death, or the gravest inconveniences adverse to the natural law, were feared from it, it would have to be said otherwise, according to what we said above in disput. 30 de reo, quaest. 11.

YOU WILL ASK whether the prelate can command the guilty one to destroy himself gradually by fasting or hunger, by abstaining from food, or taking so little as would not suffice for sustaining life.

IT IS ANSWERED by the common opinion that such a precept is iniquitous, and therefore does not bind; yet as a secular Judge can command his officers not to furnish food to a malefactor, so it seems the same is lawful for a regular prelate in respect of religious, at Suarez, num. 11.

Quaestio VI: What solemnities a Regular Prelate, acting in judgment, is bound to observe

What solemnities a Regular Prelate is bound, acting in judgment, to observe.

The Seraphic Doctor SUPPOSES, in his exposition on Eccles. fol. 332. col. 2., that judicial acts can take place among Regulars, not only over subjects but even over prelates, so that if they are wicked or less suitable, they may be corrected and removed — which doubtless should be done with due order preserved, not clandestinely, or in some unknown manner; otherwise Regulars, by reason of their profession of the Religious life, would be in a worse condition than seculars, against whom no grave sentence is anywhere said to be passed except according to the strict points of the law.

YET since that luxuriant pomp of ceremonies, customarily observed in secular courts, befits neither poverty nor the Religious state, several Popes have granted to Regular prelates that, setting aside the minutiae of the law and rejecting the whole apparatus of subtleties and legal niceties, attending to the simple truth of the matter, they might proceed de plano.

THUS first Innocent III. After willing in the General Lateran Council can. 8. and cap. 4. that certain things of the common law be observed in judgments that are not notorious, so that first there be the inscription before the accusation, and the charitable admonition before the denunciation, and finally the clamorous denunciation arising against a Prelate before the index be made¹ prior to the inquisition, he adds at §. ultimo: This Order, however, we do not believe must be observed everywhere with regard to Regular persons, which, since it requires cause, can more easily and freely be removed from their administrations, in which words the Gloss has, V. Praesent., that around seculars the order of law be observed, but around Regulars not everywhere.

LIKEWISE Boniface VIII., at Rodericus, in coll. Privil. fol. 54. He decreed thus: Boniface, etc. To all the brothers of the Order of the Friars Minor, etc. We grant that they may freely proceed to punishments and corrections, and the Prelate, etc., with the minutiae and points of the law set aside, according to the approved customs generally made and to be made by the institutes of the Order.

LIKEWISE cap. Ea quae, §. quod si Abbas de statu Monachi, says: if a parricide be found, or one otherwise deserving of removal, let him be removed without the noise of judgments: Hence many prelates of Religious Orders, or others delegated to render judgments, supposing all things to be permitted them at their pleasure, pass over more freely those things that are of the law, even substantially, and that concern the intimate truth of the matter, as our Bictus testifies, quaest. 8. num. 5. V. appellare, in compendio Privileg., and P. Elizeus, in rerum criminal. methodo, tract. 3. quaest. 1. num. 1. cum quibus.

I ASSERT, that Regular judges are bound to observe all the substantial, or essential, solemnities of the law.

It is PROVED first, because what pertains to the justice of the law, any judge whatever is bound to observe; such are the said solemnities, as to precede with citation, to require the necessary proofs, etc. Therefore.

It is PROVED second from the sense of those terms of law, de plano, sine strepitu, absque rimulis, et apicibus. For de plano in the elements Dispendiosam, de iudiciis, and in the Gloss, ad cap. Olim, de accusat., signifies to give judgment from a plain inspection of the matter, not pronouncing judgment from the tribunal with the joinder of the issue, the exposure of the libel, etc. Likewise sine strepitu signifies that that great apparatus of witnesses, advocates, or procurators be cut off, by whose caviling and clamor the truth is not infrequently entangled in various labyrinths; Likewise absque rimulis, etc., that those subtleties of the law and sharper points, by which the truth is often blunted, be passed over.

It is CONFIRMED from Clement V., successor of Boniface VIII., who, explaining the aforesaid privilege granted to Regulars, loco citato, indicates six things to be omitted in judgments of Regulars, because they contribute little to the truth of the matter; but four to be admitted, since they more nearly touch the substance of the judgment, as the Gloss notes there, V. Saepe.

FIRST, then, the said Pontiff decrees that the Regular Judge require neither the libel nor the joinder of the issue.

SECOND, that he may proceed in vacation time.

THIRD, that he cut off adjournments, and repel dilatory and frustrating appeals.

FOURTH, that he restrain the quarrels of Procurators and the superfluous multitude of witnesses.

FIFTH, that, citing to the definitive sentence, he not be bound to add the word peremptorie.

SIXTH, that the petition of the Plaintiff and the Defendant, which he requires at the very beginning of the suit in writing, or if you refuse in words, be forthwith reduced to writing. But if in these cases the solemn judicial order be observed by consent of the parties, the process shall stand, etc. This position, however, rather belongs to what must be said below.

BUT since it would be prolix to repeat all these in each Bull or grant of the Popes, in their place the said terms of law have sufficed: de plano, sine strepitu, etc.

FOUR things, however, are to be observed from the same Pontiff in each judgment of Regulars.

FIRST, that the judge admit the necessary proofs, and not exclude the citation and the taking of the oath, both de calumnia et malitia and concerning the truth to be said.

SECOND, that he admit the positions, as necessary for arriving at the truth; and fix the term both for giving the positions and for exhibiting the articles and all the acts, nor may they be produced further after the renunciation in the cause, unless each party in turn remit.

THIRD, that he examine the parties, whether ex officio or at their instance.

FOURTH, that he cite to the definitive sentence, which he is bound also to render in writing.

From these positions you have what was the mind of Boniface VIII. in the aforesaid privilege, when he commands that the Regular Judges may freely proceed with the minutiae and points of the law set aside: where he does not will that those solemnities be omitted that pertain to the substance of the act, but only those that contribute to the adornment or pomp of the cause; for as P. Elizaeus, cited above, notes, quaest. 1. num. 15., although subtleties may sometimes come under the name of solemnity, still not vice versa: every solemnity is not understood under the name of subtlety or minutia.

BESIDES, where the words are ambiguous in some law, favor must rather be shown to the defendant, cap. Cum sunt partium, de reg. iuris in 6. leg. favorabiliores, ff. de reg. iuris, et leg. Atrianus, ff. de actione, et obligatione; thus also all Jurists assert with one mouth; but the Privilege of Boniface, whose words are ambiguous, if understood so that it would be licit to omit even things that concern the truth of fact, would be to the ruin not only of the matter but not rarely of the innocent person himself; since thus, neither by appearing, nor defending himself, nor by other licit means of defense could he protect himself: Therefore.

ALTHOUGH the Privilege of Boniface is understood by all to be extended more widely than the concessions of other Pontiffs, it nevertheless contains nothing further, except that he wills that in criminal causes also one proceed civilly de plano, not sitting at the tribunal in the manner of a secular judge, observing those minutiae or subtleties of the law that disfigure the state of Religious and sometimes cast the truth itself into peril: The other concessions, however, speak of a civil cause, so that in it one proceed civilly de plano.

From these things I desire to conclude, that the judge is always bound to examine the truth of the matter to its utmost point in every act whose justice depends on it: And this is true, whether the sentence be interlocutory, which takes on the settling of some circumstances of fact, such as may be the torture of witnesses, ejectments, or adjournments; or definitive, which, all things maturely considered, bears the ultimate sentence on the principal matter, or sometimes on a necessary one, at whose pronouncement in that case the authority of the one pronouncing expires; or finally the sentence of precept, in which the judge, having cognizance of the crime of the Accused, either from his confession or from the notoriety of the fact, condemns him by precept or prohibition to punishment: for although many things are not of the substance of such a judgment, there is nevertheless a substantial order to be observed in it, that the guilty party first confess himself a debtor before he be compelled to payment, and that his crime first be able to be concealed by no tergiversation before he be condemned to condign penalties; yet if the accused be contumacious in acknowledging himself a debtor, let the judge of whatever sort be commanded, without further proof, that he pay; the money once paid is not to be sought back on this account, provided he be truly a debtor, even if the precept was not just.

SHOULD you ask what things are substantially necessary for a rendered sentence to stand. I answer first, that it is necessary that it be reduced to writing, rendered, and rendered; and that this be manifested in the writing itself, cap. fin. de sent. et re iudic. in 6. For since processes are wont to be undertaken from rendered sentences, that they may be better proved and all rashness of fact avoided, it has pleased that without writing there be none; which is so true that by consent of the parties it cannot be omitted.

IT is nevertheless received by custom in many places, that the Judge read and pronounce the sentence through the Aquarius, and he himself pronounce only the word of condemnation or absolution; thus Clarus quaest. 95. cum Bicko 145. num. 6., even though the law provides otherwise, so that the Gloss, in cap. etsi sententia de sent. et re iudic. in 6., says the sentence will be null unless it be rendered and read by the judge himself; yet more honored Judges are excepted, such as Bishops and Prelates of great name, who have the sentence duly pronounced by another; Likewise those who are blind are excepted,² since they cannot read, yet are held to pronounce judgment, as is had in leg. caecus, ff. de iudic. et leg. certi, Cod. eodem: Better, however, in these cases does custom stand, which is the best interpreter of the laws.

IT is nevertheless not necessary that an interlocutory sentence be committed to writing, but it suffices that the judge interpose, and then indicate to the Notary, that he commit to writings what he has interposed; that however this is not necessary for anything else except that the judge be the better believed, the Gloss teaches in the dictum, cap. fin. V. diffinitiua; and that the same can be understood of the precept, although rarely does the necessity of it in writings occur.

SECOND, it is necessary for the value of the sentence that the absent accused be cited, and brought before it, ex Clem. de verb signific. and the other laws cited above. Then let it be published within the term of the citation: But if the Accused act contumaciously and refuse to appear, let it be intimated to him in every better manner, and be affixed to the door or gates of his residence, that thus it may affect the accused as far as can be done. Moreover the term of citation is commonly judged to be ten days.

THIRD, in the sentence is required the determination of the penalty, leg. in summa, ff. de sentent. et re iudic.; yet if one has been established by the law for such a delict, it suffices that it be intimated to the accused, thus several, cited at Elizzaeum, quaest. 16. num. 11. Also some require that the penalty be such, according to the gravity or lightness of the delict, that it not be against penalties limited by the Canons, laws, or custom, otherwise the sentence will be null; because in these cases the cognition of the cause is credited to the judge, but not the diminution or augmentation of the penalty: Vide leg. 1. §. 1. ff. ad S. C. Turpil. There can nevertheless be some causes inducing the Judge to judge a lighter or graver penalty; these the sentence ought to express; and thus the sentence will be valid.

FOURTH, it is required for the sentence that it be professed in word of the present, namely, I absolve, or I condemn; then that it be sealed with the seal of the office, with two subscribed; all these things, however, are to be transacted with that maturity of time, that room be given to the accused for defense, for the advocacy of witnesses, etc., otherwise he will be able to appeal on account of the brevity of the term, as will be said in the following question.

Quaestio VII: Whether appeal can be made from a Prelate, or Regular Judge

Whether an appeal can lie from a Prelate or Regular Judge.

The QUESTION can be put thus, that an appeal is made from a Regular Prelate to the Superior next above,¹ within or outside the Order; outside the Order he cannot appeal, except to the Roman Pontiff, to whom it is licit for all to appeal, Cap. Romanum 2. quaest. 6.; the reason is jurisdiction, which outside the Religion, if it be exempt, is found nowhere else than in the Roman Pontiff; for jurisdiction is necessary for an appeal; hence after the Society of Jesus had been exempted by Paul III., it was added that they should not appeal outside, as Suarez, tomo 4. de Relig. lib. 2. cap. 11. num. 5. teaches, at whom is had also the Constitution of Greg. XIII. gravely commanding the Friars Minor not to dare appeal to secular Tribunals.

Even WITHIN the Religion appeals appear to be prohibited, cap. reprehensibilis, de appellationibus, where it is established that subjects not break out into the voice of appeal against ecclesiastical discipline; and at the end it is said: this especially do we will to be observed in Religious: that Religious, when they are to be corrected for some excess, not presume to appeal against the Regular discipline of their Prelate and Chapter, but humbly and devoutly accept what has been enjoined upon them for their salvation: Similar things are repeated in the statutes of the various Orders, in which Religious are commanded, humb acquiescing in the correction of their Superiors, to desist from the voice of appeal.

I ASSERT nevertheless, that any Religious unjustly and gravely sentenced by his Superior can licitly appeal to another greater Superior in the same Order; thus teaches the Seraphic Doctor, in Speculo animae, loco citato.

It is PROVED: Natural defense is to be denied to no one; but this presses when subjects are too heavily oppressed by Superiors, and sometimes it cannot be done otherwise than by appealing: Therefore. Vide Decium, et Panormitanum, in cap. Ad nostram, de appellationibus, cap. licet de officio Ordinis, Navarrum, Comment. 3. de regular. num. 51. et Suarez loco citato, who does not approve the response of others, ad Cap. Reprehensibilis, supra, etc., where they will that the statutes of the Orders prohibit appeal while it is made, the mode of correction not being exceeded; whence Decius and Panormitanus, already alleged, ad cap. Ad nostram, conclude: from legitimate correction one does not appeal, unless the mode is exceeded; whence, by the rule of contraries, they gather that appeals are legitimately undertaken by Religious if the mode of correction is exceeded; But if this were true, Suarez argues, num. 4., there would be no difference between a cleric with respect to his Bishop and a Religious in the Order with respect to his Prelate; since the former can appeal if the excess of correction requires it, the latter by no means: it is certain, however, that the subjection of the subject to the Religious Prelate is stricter, on account of the constant tending toward perfection, or obligation of tending, as also on account of the cohabitation of both, for the most part, where the presence urged by Turnus presses: than that of clerics to their Bishop: But absurdly would Pontiffs have enacted particular statutes for obtaining the appeal of Religious, if these were not bound to their observance by a stronger bond than secular Clerics are bound to those laws by which appeal is forbidden to them, that excess of correction not being present.

These things certainly neither disprove, nor altogether even prove; first indeed, since against a grave excess of correction natural defense cries out, innate deeply and intimately in all animals, not to say men; I do not see why Clerics and Religious should not be equal in this, since the rational nature of both is of equal condition.

SECOND, however, I freely suppose, that the statutes of the Orders or the grants of the Pontiffs did not precisely intend that no appeal be made except when the correction exceeded the mode; otherwise, as Suarez well deduces, num. 4., since this had long been prohibited to them both by the common law and by the elevated dictate of justice itself; for anyone even moderately sensible knows that where correction is legitimate, there appeal is illicit.

WHEREFORE I judge that the said sayings, whether of Pontiffs or of the statutes of the Orders, were enacted chiefly for two reasons: The first is: that since they were made around the time when those Orders were being exempted by Apostolic Privileges from episcopal jurisdiction, which could the more frequently resume its pristine right in appeals, nor were Religious lacking who bore that exemption more grudgingly than others, and would not accept it, while they were corrected by their own Prelates, attempting it by appealing; it seemed good to the Supreme Pontiff and also to the Prelates of the Orders to oppose special statutes to this liberty; this seems to be insinuated in those words related above; That Religious, when they are to be corrected for some excess, not presume to appeal against the Regular discipline of their Prelate and Chapter; for since the Prelate and the Chapter of the Religion compose the whole Regular discipline, if anyone should appeal against it, he would necessarily appeal outside, which we showed above to be illicit.

NOTE, however, there, when it is said, that Religious, pro aliquo excessu corrigendi, is not understood some excess committed by the Prelate in correcting, but the fault of the subject presupposed to the correction; for although PRO sometimes signifies iuxta, as when it is said that someone PRO suo Munere conducts a cause; yet more frequently, and properly, it is taken for the proposition PROPTER; so that they are said to be corrected on account of, not according to, the excess; otherwise valid would be the response of those saying that one cannot licitly appeal even when the mode of correction is exceeded.

BECAUSE, however, in Canon law, the Chapter is taken for the congregation of all the brothers, with the Prelate presiding, to decide or correct something; sometimes also, according to the common manner of speaking in various Religions, it is taken for the place in which the Religious are wont, at appointed hours before the local superior, to accept and execute penances, for the most part light ones, for faults that either they themselves humbly confess of their own accord, or that the Prelate himself objects to them: Hence the second exposition does not displease me, that the aforesaid statutes of the Religions, at least, willed that brothers thus corrected by their local Prelates acquiesce in them, and not appeal to Superiors, whether General or Provincial, for the lightening of so small a penance. For the custom of many Religions is that the greater Prelates not assist at these chapters except rarely; because the office of correcting in this belongs to the local superior, from whom some brothers, less corrected, are wont to defect irreligiously and appeal to other superiors, either for the lightening of the imposed burden, or on account of a harsher rebuke, or removal from office, by which they persuade themselves that among the rest they will suffer a loss of reputation; wherefore at the end of the said chapter, reprehensibilis, is placed: But let them humbly and devoutly accept what has been enjoined upon them for their salvation; for this is the tribunal of piety, devotion, and humility, not of rigorous justice; wherefore do not wonder if the voice, appellare, there is not taken according to the rigor of the law. To this exposition Suarez himself inclines, num. 11.

The assertion is PROVED therefore second: It is licit in every order to have recourse to the immediate Prelate; therefore also to appeal: For appeal is the genus of recourse; but the General as well as the Provincial, or those called by other names according to the custom of the various Orders, are immediate Prelates, having immediate jurisdiction, independent of the local Prelate. Therefore.

It is PROVED third from the decree of the Sacred Congregation of the year 1587, which I touched above, where concerning the Accused disp. 39. quaest. 9., where certain things are discussed obiter concerning appeal. For this decree ordains that Regulars may appeal from one Prelate of the Religion to the next Superior, from him to the General, from the General to the Protector of the Religion, from him finally to the Sacred Congregation, at Sothus, in compendio privil., under the word appellare, and Lezana, tom. 1. cap. 9. num. 7.; the cause of correction is excepted, however, not breaking into excess, as P. Elizeus notes, tract. 11. quaest. 2.

You will ASK whether a personal appeal is licit for a Religious, setting out on the road toward a greater Superior without the license of the local Prelate; for a verbal appeal can be made even if one remain in his convent.

It is ANSWERED, if it be made with the local Prelate unaware or unwilling, such a one is condemned by the Council of Trent, sess. 25. cap. 4. de regular., where it is thus read: nor is it licit for Religious to withdraw from their convents, even under the pretext of going to their Superiors, unless they have been sent or called by them; but whoever shall be found without the aforesaid mandate, obtained in writing, is to be punished by the Ordinaries of the places as a deserter of his institute.

These things, however, Suarez asserts true up to that point, num. 15., whatever Navarrus say to the contrary, Comment. 2. de regularib. num. 61., so that even if the subject be unjustly burdened by his Superior, or suffer from it some private damage, nevertheless he cannot depart with him unwilling or unaware. The reason is, because of two evils each must choose the lesser; but a lesser evil is a private harm, arising from the unjust burdening of some private person, than a public disturbance and scandal, overflowing upon the whole Religion from such a departure; But if the mind of the Council had been only to bind the subjects once such a burden was removed, it would have ordained nothing new; since this had long before been ordained by various statutes of the Religions and decrees of the Pontiffs; wherefore the sacred Council saw that such burdens lie under such modes of departing; it saw also that the natural law binds everyone to his own defense; but it saw, on the other side, that a stronger bond of natural law is claimed, namely that the whole Religion not undergo scandal on account of one man's inconvenience: Hence, although in any case such an appellant be found without the mandate of his Superior in writing, he can in the external forum be detained and punished; because the judge judges according to externals, and the presumption stands against one thus appealing.

FOR these reasons I would easily believe that in the forum of conscience only two cases are given excusing from sin in such an appeal; The first is, if the common good should be supremely imperiled by delay or retardation, or some grave evil, repairable by no other way, be feared; which is to be judged not by one's own but by the prudent judgment of another, Suarez admonishes, num. 15.

The SECOND case is, when a grave private harm presses, as of infamy or death, and it is probably hoped that no grave scandal will come of it, as if one must go with a companion, where it is the custom that two always set out socially together, and there be no danger of falling in with those who are wont to examine newly arrived brothers rather harshly, even to the showing of the Obedience, etc.

You will ASK second, whether a Religious convicted in judgment, but not confessing, can appeal, and conversely.

It is ANSWERED, that one who has confessed, but not been convicted, cannot appeal, leg. 2. Cod quor. appellationes non recipiuntur; the reason is, because in order to appeal it is necessary that the accused be burdened, since appeal is in aid of innocence, so the Gloss, cap. Cum special, §. Porro, de appellat. Therefore whoever is unjustly burdened has the faculty of appealing, cap. Ut debitus, de appell. Truly, if he be convicted and not confessing, he will be able to appeal, thus leg. 2. citata. Of one who has confessed, however, it is understood that he cannot appeal if the confession was not extorted, if he confessed in his own defense, and the like: For the Gloss, Cap. Romana, §. cit. V. vel de quo, requires three things in order that the condemned cannot appeal, namely that he be convicted, confessing, and overcome by arguments; wherefore if he was convicted and confessing, nay even overcome concerning a hidden crime, through error or terror and similar impulses, the place of appealing can still be had, as P. Elizzus notes, cap. 2. cit. num. 5.

Quaestio VIII: Who is the Judge from Whom, and to Whom appeal is made

Who is the Judge from Whom, and to Whom, appeal is made.

The Judge from whom the appeal is made must be such that he has begun to burden the accused; wherefore whether he be a delegate or an Ordinary, provided he not be supreme in rendering the judgment, from him appeal is licitly made; I said: unless he be supreme, etc., because from the Supreme Pontiff it is licit to appeal not even to a General Council; as was said, where concerning excommunication of the Bullae Coenae.

But where the Judge has rendered sentence, interposing that clause: omni appellatione remota, or other equivalent terms, appeal cannot be made from him; because such a sentence removes all impediments of execution, unless in some case of law mention of appeal be expressly made.

But if the sentence be actually committed to execution, no appeal is given from the execution, unless he exceed in executing, Cap. pastoralis, §. etsi, de officio iudic. deleg. et leg. ab executione, Cod. quorum appellation. etc.

The Judge ad quem must be the proximate superior of the Judge from whom the appeal is made, and thus grade by grade up to the supreme judge, as is had in the decree of the Sacred Congregation related above. But if it be done otherwise, the adverse party objecting, the appeal is held null; yet if it be done through error and in good faith, the cause is devolved to the competent Judge, leg. 1. ff. de appellat.

These things, however, are not understood of the Pope, to whom, as also to his Legate, the legation still remaining, it is licit to appeal, the intermediate Judges omitted, c. dilecti, 3. de appellat.; say the same if the middle Prelate be long absent, then the cause can be accelerated to another superior to him.

If the Pope has delegated someone to the cognizance of a particular cause, then the appeal is made to the Pope himself, not to his Legate a latere; let the same hold for every delegate judge, from whom the appeal is made immediately to the one delegating.

The OFFICE, however, of the Judge ad quem is manifold. For first he must inquire of you, whether anything substantial is lacking to the appeal?

The SUBSTANTIAL things, however, required for a legitimate appeal are: first, the expression of the name of the appellant party, as also of the judge, a quo; this however is only congruous; then the mention of the place and time at which the appeal was made, that it may be known whether at the due time, etc. Then that it be committed to writing, unless it be made in continenti; yet if sufficient proof of it can be had elsewhere, it may be omitted.

THIRD, the cause must be expressed, except in the definitive sentence, in which it suffices to intimate that one appeals from an unjust cause. Vide the dictum, quaest. 146. num. 17. et seq.

The appellant must also seek from the Judge, a quo, the Apostoli, or letters of notification, by which he signifies that he has had recourse to the appeal; of these letters, however, there are various species; for some are Testimoniales, by which the appellant, in the absence of his Judge, attests before upright and trustworthy men the said appeal: Others are Reverentiales, by which the judge, a quo, attests that out of reverence for the judge, ad quem, he has neither delayed nor impeded the appeal: Finally others are Refutatoriae, by which the appeal, as light and frivolous, is repelled, these having been seen.

SECOND, the Judge, ad quem, must diligently examine the justice of the appeal, whether in it there was a burden to the accused, whether the cause was deferred, etc.

THIRD, whatever has been transacted by the Judge, a quo, he must take care to have transferred to himself, unless it contributes nothing to the declaration or cognition of the cause, cap. Exhibita, de iudiciis; he must, however, diligently inspect whatever things have been established against the Accused, and, as far as can be done, consult the reputation of the Judge, a quo. Other things more numerous, vide at Bictus in the places cited, Elizaeus, tract. 11. throughout, Farin. tract. de Iudice, quaest. 5. et seqq. and others among these.

Quaestio IX: Whether a Regular Prelate can dispense with his subject, Who, and in what

Whether a Regular Prelate can dispense with his subject, who, and in what matters.

THAT this power exists in Prelates the Seraphic Doctor supposes rather than proves, exposit. in Eccl. fol. 314. col. 2. The reason is, that Religious Prelates in exempt Orders succeed to Bishops; whence they are said to have a power, as it were, Episcopal; as was seen above, quaest. 2. But Bishops can dispense with their subjects in many matters: Therefore.

BESIDES, the urgent necessity of the Brethren requires that at times something be dispensed with them; but it would be hard always to have recourse to the Pontiff, or to others delegated by him; while meanwhile the public or private salvation of someone might be endangered.

FINALLY, the common law grants to Greater Prelates, having ordinary jurisdiction, that they may provide for the salvation of their subjects in all things; which cannot be done unless they have the power of dispensing; whose act pertains to ordinary jurisdiction in Bishops, or in those having a power quasi-episcopal.

THERE remains therefore to see in what matters they can dispense; for it is certain that the power of dispensing in all things is not granted to Regular Prelates; since not even Bishops have it; for many things are reserved to the Supreme Pontiff; but that those things which are not reserved, but are left by common law to the disposition of Bishops, are without doubt left also to Prelates of Regulars for their subjects.

WHEREFORE doubt can arise only concerning those things in which the dispensation of a Regular is valid, as Suarez notes, tome 4. de Relig. lib. 2. cap. 120. These are Vows, Irregularities, the precepts of the Church, and the observance of the Rule.

AS TO Vows, if they are essential to Religion, in them only the Pope can dispense, as we said above: on vows with D. Bonavent. in 4. dist. 38. art. 2. quaest. But if they were made within Religion itself, the Prelate can void them by dominative power, or change them; or dispense by the power of Jurisdiction, as Suarez teaches above.

AS TO Irregularities, as they are ordinarily imposed by the Supreme Pontiff, so are they removed; yet since some are in the common law, over which Bishops have power, it must be said that Regular Prelates can over the same, with respect to their subjects. I said in the common law, because if for some special reason the dispensation of certain irregularities is granted to Bishops, it is probably denied to Regulars according to Suarez n. 11. Whence he judges that irregularities contracted from a hidden crime, whose dispensation is given to Bishops in the Council of Trent sess. 14., are not to be dispensed by other Prelates; and he brings forward in proof of this special concession a declaration of the sacred Congregation in these words: In this decree (namely the Tridentine) inferiors are not comprehended, having ordinary and quasi-episcopal jurisdiction, but only Bishops, exclusively as regards all others.

FOR WHICH REASON Suarez does not judge it absurd, num. 12., that Religious, though exempt, should have recourse to Bishops for the absolution of such irregularities, since they cannot be absolved of them by their own through their subordinates; because the act of dispensation was made proper to the Bishop by the Council; wherefore it does not imply that they have jurisdiction in this case, though they do not have it in others, just as Religious can be partakers of an Episcopal Indulgence, because it is in favor, as is also that case of which we speak.

But if the power of dispensing in this irregularity be granted to the Regular Prelates themselves by privilege or delegation, they can forbid their subjects to have recourse to others for absolution; since the Prelate has the power that no one interfere with his subjects in those things which he himself can furnish; otherwise Regular observance and peace would easily be disturbed; as Suarez has it, cit. cap. 12. num. 15. Yet there are not lacking those who think that whatever is granted to Episcopal Prelates for the good governance of souls, the same is not denied to Regulars by an equality of reason and obligation, as Suarez notes, and rightly grants, num. 24. It will be otherwise, however, if such concessions are made to Bishops on account of their greater authority or gravity to be conciliated; for since they frequently deal with uneducated laity, who little venerate the Mysteries of faith or the Majesty of the orthodox Religion, they sometimes need to obtain special indults, by which their authority, sustained with greater splendor and more august veneration, may be set before the people.

Let the same judgment be concerning dispensation in the precepts of the Church, as in the things said above. For the common Rule is: Whatever is granted to Bishops by common law for the salvation of souls, that is not denied to Prelates holding a quasi-episcopal power. For since in the observance of fasting, in hearing Mass on a feast day, in the recitation of the Office, and similar ecclesiastical precepts frequently occurring and not rarely needing dispensation, recourse cannot easily be had to the Supreme Pontiff, nor even to the Bishops themselves, even if the Religion were not exempt; the moral necessity of good governance requires that this power be left in the hands of the Prelates of the Orders, who are accustomed to be had at a nod, since they reside continually in their convents.

But those things which are granted to Bishops by special law, pertaining more to the function of Orders than to the exercise of jurisdiction, are not considered permitted to Regular Prelates; for what would such an indult serve? unless perhaps the said Prelates were such that they could confer minor Orders by privilege.

Hence Suarez proposes the doubt, whether that special Concession made to Bishops by the Council of Trent sess. 11. and 13., for promoting one ordained to a higher order before the year from which he received the former, was made also to Regular Ordinaries, so that by their letters of dimission they can send their Religious before a year from the order received to the Bishop, that they may receive new orders; and he reports the declaration of the Cardinals made in the said sess. 23. at Marzillam, lib. 3. tit. 13. cap. 9., in these words: the Bishop to whom the one ordained is dimitted cannot make this judgment: Therefore it pertains to the Bishop from whom he is dimitted; but such is whoever is an Ordinary, as is clear from the other part of the same declaration of the Cardinals, in cap. 13., in these terms in Suarez, num. 22.: on account of the eminence of Doctrine, and good testimony, and with the consent of the ordinary, the Supreme Pontiff grants that in a shorter time, etc. wherefore since the name of Ordinary comes to the General or Provincial; to these will pertain to grant letters of dimission to those to be ordained, but not to the ordaining Bishop.

It is confirmed because the council grants that promotion before the finished year on account of the necessity or utility of the Church in which the one to be ordained serves; but the judgment of this utility or necessity stands with the Prelate ordaining; therefore it also stands with him to give the said letters.

Nevertheless Suarez concludes that, notwithstanding these, since the whole execution of the matter depends on the ordaining Bishop, who can refuse the letters of dimission, though the validity of the letters depends more on the Ordinary; and truly usage has prevailed that, with both concurring, namely the Ordinary and the Ordaining, that aforesaid promotion takes effect; the former indeed gives sufficient proof of letters and of life, and at the same time intimates the necessity and utility of the Church; the latter, accepting this, is accustomed to dispense in the intervening time by a simple declaration of his will, which he performs for the most part, at least in Gaul, through his Vicar presiding over the examination of those to be ordained.

Finally, as to Regular Observance: there are many things which conduce to it. Some generically and essentially; some specifically; and some even contingently. Generically and essentially, the three substantial vows conduce to Regular observance, emitted in every Religion, without which Religion itself cannot stand, as was said above, where we treated of the Religious state: In these, however, dispensing is granted to no one below the Supreme Pontiff, as was asserted above at the proper beginning of this question; and it is clear from the Council of Trent sess. 25. de Regul. cap. 1. VII. and from the common Custom of all Orders; for nowhere has it yet been seen that Prelates of Religions have usurped this power to themselves, and deservedly, since it leads to ruin of every kind.

Specifically, there conduce to the state or Regular observance, beyond the three vows common to all Religious, certain particular vows, which are as it were the specific differences of such a Religion, as in the Jesuits to obey the Supreme Pontiff in undertaking missions: in the Minims not to eat meat, etc.

That in these also a Regular Prelate cannot dispense is certain; though he can in some event declare the cessation of the obligation in one or another act.

He can first, because those vows compose the special Order of Regular observance within such a state; which no Prelate can change, especially because it depends on the statutes in General Chapters, which are above particular Superiors, not able to dispense in the law of a superior; add that such statutes, approved by the Supreme Pontiff, pass into laws enacted by himself.

I said, though he can in some event, etc. For where subjects are vexed by scruples of doubt whether it be lawful for them, some special cause occurring, to do something against such vows; the authority of a superior can intervene to remove the scruples, by declaring that they may, by way of concession, act in such a case, as is clear from the indult of Pius II. given to the Friars Minor, in Suarez, num. 46., in these words: Prelates may grant, or dispense with, weak and infirm subjects in things which are not contrary to the Rule.

Where note, that those things which are substantial in the genus, or for the whole Religion, cease as to obligation for particular cases in the same genus; whence although in our Rule it is ordained for the whole Order that we walk with bare feet, shod only with sandals; yet the Rule itself declares that for some in particular, on account of their necessity, that obligation does not lie; whence the Pontiff subjoins, after he had said, with weak subjects, etc., those things which are not against the Rule, doubtless because he himself indulges the infirm, that they may take in those things which are necessary for their solace.

Nor does it stand in the way that the Pontiff uses the word dispense, because this is not to relax the law, but to declare it, according to the more probable opinion, which St. Bonaventure teaches, in 4. dist. 38. art. 2. quaest. 3., and which we maintained here, tract. de voto, disp. 1. quaest. 29., where we also showed that this right of dispensing belongs to Prelates having a quasi-episcopal power: Yet it must be noted that the vows of subjects are of a twofold kind; For some are those which each one already professed in Religion emits for the sake of greater devotion and piety, and these the Prelate can void, change, or dispense, as he himself judges better; even if they were emitted with his license, as the master, disp. cit. de voto, above; for by the emission of a vow the will of the subject is not exempted from the power of the Prelate, to whom the dispensation of the vow may seem to conduce more to the Religious's salvation than its observance.

¶ SOME vows also are emitted by subjects, which pertain to such a state by the statute of Religion, as we intimated above. And indeed to dispense with these for the whole Religion is not the part of the Regular Prelate, but of the Supreme Pontiff, as has been proven: yet for one or another case it can be done otherwise, as has been said.

NEITHER will you say: To what purpose then so many indults of Pontiffs, granting Prelates the faculty of dispensing even for one or another case, as experience shows in every Religion?

Suarez ANSWERS, cap. 12. num. 26. that this faculty is indeed annexed by law to the prelacy; yet since the Prelate himself can be anguished by scruples, whether there be a greater or lesser necessity of the subject, and whether such be the circumstance of the matter requiring dispensation, that it can be granted, it is necessary that the authority of the Supreme Prelate intervene to remove this anxiety and to approve such a circumstance of the matter, that dispensation may be made more easily, more expeditiously, and more securely; for the declaration of the law, whereby someone is exempted from its observance, does not suffice on the judgment of a learned man, much less of one seeking it, but an authoritative definition of the Prelate having the power for it is required, as I taught from the mind of the Angelic Doctor, above on the vow.

¶ LASTLY, certain things conduce to Regular observance according to the ordinance of each Religion, made in Provincial or other Chapters, or introduced by laudable custom; as not to lock the door of the cell with a key, to observe silence at the appointed hours, not to enter another's cell, and the like: in these, however, there is not properly a dispensation, but a license granted on petition; for since ordinances of this kind are only directive, or only penal, at the judgment of the Superior, not for the most part binding unto sin, except per accidens, no dispensation is required, which is proper to a law that binds.

¶ THEN these things are not simply commanded, but that they be done in the due manner, that is, with the license of the Superior: therefore this suffices, as a condition affecting the matter of merit; whence although without a cause, or at least for the delight of mind, or at the request of a companion, the subject petition license in these things, he uses it licitly and validly, which however is not admitted in a dispensation: Nor ought the Prelate to be too severe in these, at least if he suspects no bad custom to be bred from them; for otherwise the austerity of Prelates in granting these or similar licenses brings it about that occasions of acting against them stealthily are seized, and bad manners creep in from there; whence, with brow too much furrowed, Prelates sterner than the strict, often strive in vain to shut off their access.

¶ AS TO the Prelates who can grant these dispensations, or licenses, namely whether they are Local, Provincial, or General, the common law determined nothing; which, since it speaks only of Bishops, or Abbots — which Abbots, though they were prefects of convents, yet a single one presided over his whole order — we cannot argue otherwise concerning Regular Prelates than by consequences derived from their power; for Religious Prelates, if exempt, succeeded to their place as regards the governance of subjects, as I have touched upon more than once elsewhere in this disputation.

¶ YET since each Religion has prescribed to itself an order among Prelates, as I said, quaest. 3., that order and its practice must be kept; nevertheless Suarez hands down the general rule of this practice, namely, that each Prelate can dispense in those things which are granted to him to be dispensed either by law or by the Rule itself; and he teaches that this rule is handed down by Innoc. in cap. 2. de eo, qui furt. Ord. suscepit, and confirmed by the common approbation of the Doctors, as is clear from Sylvester and Angelo, V. dispensatio, and others, in cap. ut si Clerici, §. de adulteriis in indic.

¶ BUT since in the Rules and Constitutions of Religions some things are accustomed to be reserved to the General Minister, some also to the Provincial; those things are considered permitted to inferior Prelates which are not found forbidden to them, or specially reserved to superiors: Except the Society of Jesus, by the Bull of Greg. XIII., in Suarez, num. 15. where he teaches, that whatever is not specially granted to the Prelates of this Society is considered forbidden.

¶ FINALLY, as to the persons to whom the dispensation is to be imparted, it is necessary that they be subjects of the one dispensing by some law; wherefore they are in a threefold difference: For either they are the Prelates themselves, middle and lowest; or professed subjects, whose privileges and exemption the Novices in many things enjoy; or finally they are seculars, serving Regulars domestically.

¶ That the lowest Prelate have recourse to the proximate superior for dispensation in those things which are forbidden to himself, or to the supreme Superior of the Religion, if they are specially reserved to him, the common practice teaches.

¶ Say the same of the intermediate Prelate also with respect to the supreme one; but he can dispense with himself by himself: For this is believed to be the intent of the Pontiff, from whom he obtains jurisdiction; otherwise Religion would not be sufficiently provided for in its head, as Suarez argues, cap. 14. num. 5.

¶ But professed subjects are the proper matter into which dispensation falls; whence they are to be dispensed by their own Prelates, to whom they are actually subject; for a local prelate of one convent cannot dispense with the subjects of another; otherwise the order of Prelacy would not be rightly instituted in distinct places.

¶ HENCE those Religious who, according to the particular Statutes, constitutions, or Customs of their order, are subject to the Prelates of the places through which they pass, seek dispensations or licenses from no others than these. For since these are for that time the Prelates of those who among us are commonly called Foreigners, they cannot at the same time be subject to the Prelates of their own residence in the execution of some act; otherwise confusion and contradiction would arise from the diverse wills or mandates of either Prelate; to remove which the Seraphic Doctor shows, in 4. dist. 19. art. 3. quaest. 1. fundam. ult., that God provided for the execution of jurisdiction by a singular Prelation of one, so that all of one parish are governed by one Pastor, all of one diocese by one Bishop, etc., as was shown by me, tomb 4. de Actib. hum. disp. 17. quaest. 14., where I also showed that the Guardian of the way, or of the place through which one passes, commanding the pilgrim brother, can bind him to apply Masses for the alms of his Convent, though the Guardian of the residence of such a Religious had previously commanded the opposite; for our Constitutions subject us, by reason of the journey, to the Prelates of the convents through which we pass.

¶ Yet if it can be done that the dispensation be sought from one's own Prelate, by deferring it, and its execution not touch the Prelate of the place of the journey; for the conservation of peace and order, it is better expedient that it be deferred.

¶ NOR do the things lately said stand in the way, that the sacred Cardinal Congregation declared concerning secular Clerics that they are not subject to the Prelates under whom they pass on a journey as regards dispensation, as Suarez has it, cap. cit. num. 1. at the end; on account of which authority he infers the same concerning Religious, not seeing the contrary kept in the special statutes of Religions on account of the stricter discipline: but where there is a special Constitution, the example of others does not militate against it; otherwise there would be no reason why it should be special.

MOREOVER I said above that Novices enjoy the Privileges and exemption of the professed in many things; because Prelates cannot conduct themselves toward them equally as toward the professed in all things; whence they cannot impart to them those dispensations which are to endure perpetually in their effects, as to dispense in the interstices, irregularities, etc., that they may be promoted to orders; unless they have a special Privilege for it; it is clear because the power of dispensing with professed subjects is prudently believed to be conferred on Prelates for this reason, that as much as lies in them, they are subject to them perpetually; but the state of a Novice is mobile and uncertain, as Suarez well shows, in the place cited.

FINALLY, as to lay or secular persons ministering in the convents of Regulars, they are not to be exempted from the power of Bishops by the Privileges of the latter, unless they are expressed in them under a special title; as appears in the Indult of Eugenius IV. for the Monks of St. Jerome, which is extended by communication to others; where the faculty of dispensing with seculars serving domestically is given to local Prelates, that they may be excused from the ecclesiastical fast, and eat meat, urgent necessity pressing, etc. for which consult the Compendia of the Privileges of the Society, V. dispensatio.

Quaestio X: What power a Regular Prelate has to absolve, both from sins, and from penalties

What power a Regular Prelate has to loose, both from sins and from penalties.

SINCE, when I shall treat of the Minister of the Sacrament of Penance, in the 3. part, treat. on this Sacrament, I shall speak of those who can absolve from reserved cases, censures, and sins, little remains here to be discussed, beyond certain general principles, from which anyone can easily infer whatever is to be alleged in particular.

FIRST therefore it is undoubted that every ordinary Prelate has the faculty of absolving from those penalties and sins which are not forbidden to him by special prohibition; but since that Prelate of the Religion, of which we treated in the preceding questions, is an Ordinary, this power is not to be denied to them.

SECONDLY it is certain, by the same principle, that this power can be delegated to another; for this always follows upon ordinary Jurisdiction. Indeed Suarez holds, cap. 15. num. 4., and usage obtains, that the Prelate is bound to this delegation of jurisdiction; for since he is bound to provide for the salvation of his subjects in the better way, and the delegation of power is the most apt and not rarely necessary means for this, he would not be free from fault if he reserved to himself alone the confessions of all, and the more so because, with the vindicative or dominative power, he could join the knowledge had in confession; whence various scandals would arise, and subjects would be turned away from the Sacrament.

HENCE Clement VIII., in the decree de reservat. casuum, concerning Regulars, reported in Suarez, in the place cited, thus decreed: let it not be lawful for the Superiors of Regulars to hear the confessions of subjects, unless they have committed some reserved sin: or the subjects themselves of their own accord, or of their own motion, have sought it of them. Whence Prelates are accustomed in each convent to depute several to receive the confessions of the brethren, any one of whom the subject may choose for himself as confessor, that he may more freely attend to his salvation. Yet this confessor, thus deputed permanently by the Provincial or another Prelate, does not obtain ordinary jurisdiction, since he cannot subdelegate it to another.

IT IS DOUBTED, however, whether one having jurisdiction delegated by the Pontiff can be hindered from hearing the confession of a Religious of another order? It is answered that such a Religious cannot be hindered on the part of his own Prelate, but can be on the part of the Prelate of him who wishes to confess; for since that power is understood to be given over due matter, and the Prelate makes his subject incapable of passive absolution, he will then not be able to confess, nor on that account can the confessor exercise any jurisdiction over him: yet if the Pontiff should expressly indulge that it be lawful even against the dissent of the penitents' Prelates, then the indult would hold in that sense; yet until he expresses his mind in this or a similar way, he is presumed to have willed otherwise.

IT IS CONFIRMED by the declaration of Innoc. IV. made to the order of Preachers, and had in the supplem. of the Minors, and in the Compendium of the Society, under the word, Confessarius, §. 5., where it is had that the Preaching brethren obtaining from the Supreme Pontiff the faculty of hearing confessions generally cannot nevertheless receive the confessions of Religious, unless these obtain license for it from their own Prelates: a similar concession made to the Minors and Carmelites is recorded in Rodriguez, tome 1. quaest. 62. art. 4., and Suarez commemorates many other indults, lib. 2. tome 4. de Relig. cap. 16. num. 15. The usage also of almost all Religions confirms this same, which, while it is known to the Pontiff and is not disapproved, declares his mind to have been according to the things already said.

HENCE infer that a Religious journeying, and received into hospitality in a convent of another order, ought not to confess there; and this almost every Religion specially ordains for its subjects; unless a grave necessity of confessing, or scandal from the omission of confession, impends.

YOU WILL ASK whether it is lawful for Regular Prelates to reserve cases.

THE UNDOUBTED assertion of all is that it is lawful: it is clear from the practice of all Religions; it is clear moreover from the Council of Trent sess. 14. cap. 7., where, though the discourse be of the supreme Pontiff and Bishops, he nevertheless understands all others who have a quasi-episcopal Jurisdiction; since this power does not depend on the character of a Bishop, nor is it granted to his dignity alone, but to the commodious and more efficacious governance of subjects; which agrees with greater reason in Regular Prelates on account of the greatest obligation of leading to perfection, this means of turning from sin is not to be denied them.

BESIDES it is proven from the Rules of so many Religions, which the Supreme Pontiffs have approved; thus Honorius III. approved the Rule, in which cap. 5. it is read: If any of the brethren have mortally sinned at the instigation of the enemy, for those sins concerning which it has been ordained among the brethren that recourse be had to the Provincial Ministers alone, the aforesaid brethren are bound to have recourse to them, etc., where the discourse is of notorious sins, as the Angelic Doctor notes, on the Rule, cap. 7.; see the Monumenta of the orders, concess. 66., and likewise the supplement of the Minors with the decree of Clement VIII. de casibus reservatis Regularibus, specially ordaining, as I shall say more aptly and more fully, in the 3. part, treatat. on the Sacrament of Penance, where we treat of reserved cases. Here only it is to be noted by the common opinion that, for some sin to be reserved, it must be mortal and completed in act.

But lest the reservation of cases, too frequent and manifold, finally become odious on this account, that it be burdensome, a declaration of the sacred Congregation was made, on January 9, 1601, whereby the local Ordinaries (among whom also understand, by equality of reason, the Prelates of Regulars) are admonished to reserve to themselves as few cases as they can, according to the true exigency of the subjects and places.

To the ORDINARIES of Regulars, moreover, the said decree of Clement VIII. enjoins that they reserve only the eleven cases recalled therein, or those of them they prefer; yet they can reserve some other sin newly emerging, provided it be done for the Province in a Provincial Chapter, or in a General one for the whole Order.

Among US, moreover, by the Consent of the whole General Chapter held at Rome in the year 1613, all the said eleven cases are reserved, which I shall examine in the place cited.

To absolve belongs to him whose it is to reserve; for sins are reserved in order that recourse be had to the Prelate reserving, and thus a stricter rein be cast upon the wicked propensity to sin; But if he shall have delegated the power of absolving from these, or shall have deputed some confessors, according to the decree of Clement VIII. reported above, both for sins and for reserved cases; as is now mostly in use; the cases seem reserved to such confessaries; since those who have lapsed into them are not bound to have recourse to the Superior, while he deputed has functioned with the power given: Yet in these and similar things the practice and ordinance of each Religion is to be inspected; namely, whether the power was granted with some burden to be performed by the confessor, or by the penitent himself? whether with the burden of presenting himself, or the penitent, to the Superior reserving? etc. which are to be observed according to the custom of each Religion: And let these things have been said briefly concerning the first part of the question, as far as the present place concerns it.

The SECOND part of the question, whether Prelates can also absolve from censures, is almost decided by what was said above: for censures are loosed by the same by whom they are imposed, whence since to impose censures is necessary for the office of an Ordinary to be duly executed, and for some Regular observance, to remove them also often expedites the same; wherefore whether the censure be laid by a man, or by the law, by a particular or universal sentence, the Regular Prelate will be able to absolve from it, unless it be reserved to a superior Prelate, in whose special reservations an inferior can do nothing, though conversely he can remove the censures laid by an inferior.

If, however, a Bishop, in a case lawful to him, lay censures upon a Religious, as the Council of Trent defines he can, sess. 25. cap. 13. de Regular., they are now to be removed by the Bishop himself, or by him whom he shall have delegated, according to the universal Rule already handed down: for it would be ridiculous, and against the intent of the council, that a Regular Prelate could remove at will, against the Bishop's own wish, a censure the Bishop had laid; nor does the exemption stand against this, which ceases for such a case. In which matter only the Authority of the Pontiff may be considered, who, as he could wholly bestow exemption on Regulars, so also enjoined subjection upon some of them, as is seen in the various decrees of the Council of Trent concerning Regulars, where it is intimated that Bishops do not act precisely as Ordinaries in laying censures against Religious; but as having a power delegated from the Pontiff; which shows the obligation of a greater bond, on account of the greater jurisdiction, namely Pontifical, as Suarez cited notes, cap. 20. num. 4., where he observes in passing, from the Privilege of Nicholas IV. reported in the Compendium of the Society, under the word, excommunication, §. 3., that whatsoever censures laid by Bishops upon Religious do not hold, unless they were expressed nominatim: for thus it is had, Nicholas IV. did not will the brethren to be bound by any sentence of excommunication, suspension, and interdict of man, unless mention were made nominatim, nor would it suffice if he said in a general sentence, that they hold as much as if they were named expressly. Whence Suarez infers, num. 5., that it does not suffice that the convent or such a Religion be named; for since he speaks of the brethren and subjects nominatim, etc., it is required that these be signified in particular; otherwise the Privilege would serve for little.

MOREOVER Regulars have many Privileges of absolving from censures, reserved in the law to a Bishop, which may be seen in the compendious compilers: But in what order, or upon what persons, they can exercise their Privileged jurisdiction, is better known from the tenor of the indults and from the practice of the Religions than from any juridical demonstration, especially since the common law has expressed nothing on this matter; but ever concerning other Prelates it is understood under the name of Abbot, whose Privileges are some granted to the very places in which they reside, wherefore they cannot be drawn to other houses, even of the same institute; for Privileges hold as much as they sound; Others are personal, given immediately to the Prelates themselves; and if mention be made of a Prelate simply, it is understood to be made of whoever has Ordinary jurisdiction, since he is truly a Prelate; which holds a fortiori of him, if the discourse be in the plural of Prelates; for thus it is extended to Conventuals, Provincials, etc. See on these Suarez at length, differing, Cap. 12. where above.

Quaestio XI: Whether a Regular Prelate has the Power of administering temporal things, and what

Whether a Regular Prelate has the power of administering temporal goods, and of what kind.

SINCE temporal goods are aids and alleviations of the needs which the human race suffers on the way by reason of its condition of constitution, however much a Regular person abstain from the care and handling of secular things, it is necessary that the community subsist by means of them and obtain their dominion, or at least their use. But since, if the administration of temporalities should burden the whole community, disturbances, suspicions, and other inconveniences would thence arise, not without reason did canonical law once transfer this whole burden in the Monastic Order to Abbots; and in the Religious Order now the special statutes of each have provided the same with respect to Regular Prelates.

I ASSERT therefore that this manner of administering, granted to Abbots by ancient law, is most fitting, that the whole dispensation of temporal goods should remain in them. The Seraphic Doctor consequently proves this with most ample testimonies of Scripture, throughout the whole book de Paupertate Christi; where he approves both renunciation of goods, the common and the proper, though he asserts the latter to be more perfect than the former; see him there. Wherefore, this renunciation and polity of living in community being supposed, it is necessary that the Power of ministering be in someone; and this cannot be more fittingly than in the Abbot, or Father of the Community: both because this ministration is of dominative power, which resides in him; and because it is decent that to whom persons are subject, the goods of persons also be subject, because the accessory follows the nature of the principal. Add the congruity, that the power of dominion and of jurisdiction be united in one; whence the manner of governing will be more expeditious if temporal and spiritual things depend on one, than if on diverse; especially if the former goods are ordered immediately to spiritual profit, as happens in Monks, who may expend temporal goods only as much as is necessary for the sustenance of life or the execution of offices.

It IS PROVED, second, by the Saintly Doctor from the example of Christ himself, who willed, while he presided over the College of Apostles, that he himself minister temporal things also to them; to which end he had purses carried by Judas, for three causes, as the Saintly Doctor notes, in the place cited. The first is to supply the need of the poor, begging from door to door. The second is to have compassion on the infirm. The third was to minister to those who were with him in his company; to which he adds, to alleviate also the extreme necessity which could impend while he passed through the lands of foreigners in the time of persecution; whence, being about to approach the Samaritans, whom he foresaw would minister nothing to him, he had purses prepared, as St. Bonaventure notes, in the place cited. Wherefore, in imitation of this temporal ministry which Christ did not disdain to exercise while he was in the company of the Apostles, as appears in John 13, and as St. Bonaventure notes on the Rule there, the disciples thought, when he said to Judas, that which thou dost, do quickly, that because Judas had the purses, Jesus had said to him, buy those things which we have need of, etc.

Hence the Prelates of Regulars take temporal goods to be ministered to their subjects; as Suarez also notes, chap. 26: so that if poverty be only in the particular, property remains with the Community, but use with the Prelate; if however it be also in common, as in the Friars Minor, the Prelates have the naked use of ministering likewise, not dependently on the Community, in which is the property of nothing, but dependently on the supreme Pontiff, or on one of the most Eminent Cardinals whom he shall have deputed to that task, as St. Bonaventure teaches in the chapter, cited of the Rule, and in the Apologia pauperum, where he learnedly explains that common distinction of use and dominion, to prove that one is separable from the other: see him there resp. 3. chap. 1., where he adds more things which are amplified everywhere in the expositors of the Rule, which I omit here; for it is not the place here to defend poverty, since no one now keeps vigil in assailing it like a Vigilantius.

It IS PROVED, third, from the Seraphic Doctor, in the place cited, by the example of the primitive Church, whose heart not only was one, and soul one; but goods also common under Apostolic administration; so that all sold their possessions and carried the prices of them to the feet of the Apostles, to indicate that property, the wellspring of immense evils, must be trodden under the feet of the Prelate, as he notes from St. Jerome to Demetrius, epist. 8., in the place above; where he also subjoins from the same: and distribution was made to every one, according as he had need, by the Apostles, namely; wherefore Ananias and Saphira, struck by the blow of death, fell at the feet of St. Peter, because they had dared to contaminate his public ministration in the common goods of the faithful with private property.

HENCE the Coenobitic life, the Seraphic Doctor says, took its origin and form, according to the Gloss of Bede, ibid., because one ministered the common goods to all; and hence in many Religions, where poverty is stricter, the Prelates claim for themselves the name of Minister, to show that nothing is to be assumed to themselves in the goods of the Religion but the naked ministry.

It IS PROVED, fourth, from the chapter Nullam, 18 q. 2, where it is established by Pope Pelagius: all things which pertain either to the reverence of divine worship or to the utility of the Monastery, the care of the Abbot, to whom the whole power ought to pertain, ought to fulfill, which the Saintly Doctor indicates to be the most ancient law, on chap. 1 of the Rule; and that it was not newly constituted but declarative of old law, Suarez reports, num. 2 chap. 26.

It IS CONFIRMED by the Saintly Doctor on chap. 2 of the Rule, litt. A. 2, from the diverse institutes of St. Augustine, St. Benedict, etc., as Suarez also has it, num. 3.

It IS PROVED, fifth, by St. Bonaventure, in the said chap. 2 of the Apologia, fol. 423 litt. A, by the authority of Gregory IX, whose Rescript to the Friars Minor is read thus: We say, that they ought to have property neither in common nor in particular, but of utensils and books, and those things which it is lawful to have; the Order have the use, and the brethren use them according as the General or Provincial Ministers shall have determined in disposing: wherein he refers the whole administration to the providence of the said Ministers, not however excluding local Prelates, who undertake this burden more immediately, but because the matter there treated was the disposition of weightier things, which must always be with the greater Prelates; see here the Saintly Doctor, chap. 3 resp. 3, weaving a most splendid Panegyric of the poverty of the Minors, praising exceedingly possession also in common, being indeed supported by the examples of so many Patriarchs, Augustine, Benedict, and other Saints; yet in these last times, with avarice creeping in gradually and charity growing tepid, he shows it necessary that some should uproot the whole root of cupidity from the foundation, professing a more sublime poverty, both in common and in particular, than which the Seraphic one, our Father Francis, chap. 6 of his Rule, enriched with these words: This is that height of most high Poverty, etc. Wherefore most high? the Saintly Doctor asks, postilling: unless because most remote from the world, and consequently nearest to the kingdom of heaven, and also most like that eternal life, as far as is possible, where nothing earthly is proper or common.

There REMAINS to be explained the second part of the question, wherein is asked what sort of power of ministering temporalities there be in Regular Prelates.

HERE it must be carefully distinguished between those vowing total poverty, and those only promising it by a special vow; for a different power is found in each; yet both can be considered in three respects as regards ministering, namely as regards receiving, conserving, and alienating; for the whole administration of any temporal good is reduced to these three acts.

OF the power of acquiring the common law limits nothing, leaving it to the prudence of the Prelates in general terms: faithfully and diligently, all things which pertain either to the reverence of divine worship or to the utility of the same Monastery, etc.; by reason of which words the Prelate of a Community which has not vowed poverty in common may receive whatever is offered to him by just title of donation, testament, etc., whether it be offered to himself or to the community; yet its dominion is always acquired to that alone, not to him; for although the Prelate put on a common person as regards those dispositions of goods which accrue to the utility of the Monastery, yet it is nowhere permitted him to possess anything of his own; because as regards the observance of the vow which he made, he does not cease to be a private person; wherefore what other brethren also acquire passes into disposition, as the Saintly Doctor says, in the said chap. 2 litt. E, but not into the dominion of the Abbot.

BESIDES this common manner of acquiring, there are many statutes of Religions and Rules modifying the acquisition of Prelates and subjects, which are varied either by their own judgment or by the Privileges of Pontiffs: each Religious may better see these for himself.

THIS alone is to be noted here, that in the Religion of the Minors, according to the pure observance of the Rule, nothing can be acquired for the Prelate or for the Monastery, as regards quid iuris; but only as regards quid facti, or as regards pure use, so that the Dominion remains with the giver, or if he abdicate it, it passes under the dominion of the supreme Pontiff, or of the Roman Church, as St. Bonaventure teaches in these terms, in the place cited litt. E; and after him the other expositors of the Rule, according to the declarations of diverse Pontiffs, especially Gregory IX, Nicholas III, and Clement V.

NOR is this new in law, that use be separated from dominion, since property, possession, usufruct, and simple use are several things concurring under diverse titles in the same thing, and really distinct from one another, as the Saintly Doctor teaches in this chapter, and after him Galitius, Crousers, Corduba, and many others on chap. 4 of the Rule. But the law which once established that use should not be perpetually separated from the Dominion of things is civil, and moreover has no place in the dispositions of Pontifical law. Moreover, the Saintly Doctor notes litt. C that this was therefore provided in Civil law, lest dominion, deprived of perpetual use, be useless to the owner; but this reason ceases in spiritual things, where for one thing relinquished in favor of the poor, a hundredfold is received.

Nor does it avail to urge that then use is separable from dominion when both remain unconsumed; not indeed when the substance of the thing is destroyed by use, for then it draws dominion along with it indistinctly.

To this instance, which the Adversaries of the Minors have made so much of, the Saintly Doctor responds litt. C. 1. fol. 423: that it is most false by daily experience; for by the very law, as the Seraphic notes there, the son of a family uses the adventitious peculium, and consumes it by continuous use, yet does not obtain its property even for a moment.

MOREOVER, what is more improper than for the rich to receive guests with sumptuous dishes, giving them not only things to eat, soon consumed by use, but most splendid utensils, yielding to the use of fact, not to the dominion of law; if anyone were to seize any of these for himself not to use but to possess, he would deservedly be rebuked for injustice; by no means, however, however much he consumed while feasting, although dominion thus perished with the use. Of this use without dominion, lawful, Christ makes mention in those words: behold the birds of the air, which neither sow nor reap; yet to them it is sown and reaped, while they brood upon the harvests of others without any injustice, and indeed enjoy by use the necessary nourishment from the dominion of others; and yet the heavenly Father feeds them, namely the sparrows, snatching the grains of another's field; in a not too unlike manner before the Lord himself: the disciples were plucking the ears of corn while passing through alien fields, since indeed they appeased their pressing hunger with a benefit that offered itself, though offered by no one; who would say them bound to restitution, because they made dominion perish together with the use? Since not even the Lord himself, the fount of all justice, would reproach them even lightly, nay rather the very Jews, most observant in detecting the disciples' defects, upbraided them not with the consumption of another's goods, but with the breaking of the Sabbath; but Christ declared them immune expressly from the latter, and tacitly from the former, saying, Luke 6: Have ye not read this, what David did, etc.; where although he teaches explicitly that extreme necessities are not subject to the observance of the Sabbath, yet implicitly he wills to show it lawful, and most meritorious, to strip oneself of one's own goods in the common and particular renunciation of the vow, and to live on another's; since the disciples voluntarily cast themselves into the aforesaid necessity.

This is further unfolded, if the nature of dominion be weighed, which is a free power of using, selling, alienating one's own thing independently of another, etc., as all the Jurists cry with one mouth; hence it is that a madman and a minor cannot possess without the authority of a tutor, because they have not the affection of holding which is free, although they touch the things themselves with hand or body, as the Saintly Doctor teaches from the Jurist, in the place cited litt. B. 2, where he also exemplifies the same of a sleeper, who should receive some thing closed in his hand; for he is not said to possess it, because he lacks the liberty, or the mind necessary for possessing. So in like manner, although the use and handling of things be with the Friars Minor, yet since they lack the mind of acquiring, they acquire nothing: for liberty is not acquired by one unwilling; nor is a benefit conferred on one who refuses it; nor is anyone compelled to accept a harmful inheritance, as the Seraphic Doctor, cited, reports from the disposition of law; wherefore as the inheritance passes into the dominion of him to whom it is owed by the mind of accepting it, and is repudiated by a contrary mind, whence to comport oneself as heir is not so much of fact as of mind, as the Saintly Doctor reports from Julian; if a Friar Minor lack the mind of acquiring, nay rather possess not only within but declare outwardly the mind of repudiating, how shall he be said to acquire unwillingly that which others are wont to hunger for with full will? The Saintly Doctor has this to the matter, and almost to the word, which are weighed and fortified among the expositors of the Rule with much amplification. But let these things have been said as regards the power of acquiring, both by Prelate and subject, among us equally prohibited as regards property, but otherwise as regards the use of things, as is observed in practice.

AS REGARDS the power of conserving, in which is the second act of Administering, this is left to the prudence of a wise Prelate according to laudable customs of Religions: for the ancient law only requires that temporal things be dispensed faithfully and for the utility of the monastery, as is had in the alleged chapter Nullam: whence the stricter the poverty of each Religion, the tighter in this matter is the obligation of each Prelate. Wherefore if it was thought among the primitive monks, possessing in common, a piaculum and a kind of sacrilege to squander even a little of what pertained to the utility of the Convent, how much rather ought this to be urged now in Religions, at least where property is also abdicated in common; see Cassian, lib. 4 Instit. chap. 20, where he cries out that not only persons but things offered to monasteries are most sacred, and warns that they must be handled not only with careful diligence but with great reverence.

And lest anyone understand this of things serving more immediately the sacred altar, he subjoins: and with such faith do they procure and dispense all things, that they trust with full credulity that they shall obtain a reward from the Lord, who have even moved without place, or placed more fittingly, those things which are held to be of defect and small and vile; for such was the sincere and holy simplicity of the ancient Monks, that they accounted all things made sacred by the touch of a place consecrated to God. These things Suarez notes, num. 7.

MOREOVER this obligation of conserving the goods of the poor weighs upon the Prelate from justice, and upon those whom they have created for this end as officials and ministers, so that they are positively bound to be mindful of their duty; but others are bound to it only negatively (to speak with Suarez), namely not to give or handle the goods of the monastery unduly; and this obligation can pertain either to justice, by which one is bound that what is not his own he not appropriate to himself, or even to the vow of poverty, which relinquished his own, and much more does not admit what is another's.

The POWER finally of alienating is the last appendix of Prelacy; and it can be considered as regards movable or immovable things; likewise movables, whether they endure permanently, as books, utensils, and the like; or are soon consumed, as things to eat and drink, etc. These last, since they consist in mere use, scarcely fall under another rule than frugal and ordered temperance, according to decency.

BUT the power of alienating or exchanging enduring movables, or even immovables, the supreme Pontiffs have so determined and diversified by many sacred sanctions that each Religion can see more aptly for itself what it can do in this matter: Suarez also is to be seen, amply expounding the Pontifical constitutions indulged to his Society for the alienation of goods throughout the whole chap. 27 and 28 to the end.

IT is worth observing for the Friars Minor that from the beginning of the Religion Gregory IX had sanctioned, and St. Bonaventure reports in the Apologia pauperum cited resp. 4 chap. 2: Nor ought movables to be sold, or changed beyond order, or alienated in any way whatsoever, unless the Cardinal of the Roman Church who shall be the Governor of the order have granted authority over this, or assent, to the General or Provincial ministers. Not that the dominion of the things whose use is granted us is properly with the most Eminent Cardinal, Protector of the Religion; since the supreme Pontiff reserves that to himself, as the Saintly Doctor everywhere inculcates not rarely in his opuscula, and especially q. 26 in the determinations of questions around the Rule of St. Francis; but that the Pontiff is wont to transfer his power in this office to one of the Cardinals.

BUT the words of the Seraphic Doctor, in the place just cited, are these: The Prelate of the Apostolic See, who is the General provider of all the poor of the church, having special care of our order, has assumed to himself the property of all movables which are conferred on the order, except those whose dominion those conferring them retained, and he grants us only the use of the same things, etc. But shortly after he subjoins: Alms which is given us by the faithful passes into our use, and the dominion of his, to whom we are prepared, if he shall command it, to resign all things that we have, as to the Lord, as is fitting.

HERE is the primitive state of the Minors, in which the Prelates have no right to alienate in any way the goods of the Religion except according to the concessions of the supreme dispenser of the whole Order; which have been granted to some as perpetual privileges, and as dispensations of the rigor of that rule which many for the vicissitudes of times pretended. But to others they were given according to occurring necessities, so that of such concessions, as of the other things, they have rather a transient use than a right, or permanent duration.

Tractatus I: PRIMUS DE VIRTUTIBUS THEOLOGICIS

Proemium I: Prooemium

Disputatio I: ON FAITH

Quaestio I: What FAITH signifies, and what it is

Quaestio II: What the object of FAITH is

Quaestio III: Whether the object of FAITH is something complex

Quaestio IV: Whether the object of FAITH can be false

Quaestio V: Whether the object of FAITH can be evident scientifically

Quaestio VI: Whether FAITH is concerned with those things which are seen by vision on the way

Quaestio VII: Whether the articles of FAITH are evidently credible

Quaestio VIII: Whether the things to be believed are rightly arranged according to the articles

Quaestio IX: Whether the articles of FAITH have grown over the course of time

Quaestio X: Whether FAITH has grown as regards light

Quaestio XI: Whether Faith has grown in certitude

Quaestio XII: Whether the articles of Faith are to be expounded by some authority which is an infallible teacher, and what it is

Quaestio XIII: What are the marks of the true Church, in which the authority of expounding FAITH resides

Quaestio XIV: What must be believed by the necessity of means

Quaestio XV: What things are to be believed by the necessity of precept

Quaestio XVI: Whether we are bound to confess FAITH, and when

Quaestio XVII: Whether it is lawful to dispute about FAITH, and when

Quaestio XVIII: Whether Faith resides in the Intellect

Quaestio XIX: Whether Faith is perfected by Charity, as by its form

Quaestio XX: Whether it is certain that FAITH remains without CHARITY

Quaestio XXI: Whether, and how, FAITH is a VIRTUE

Quaestio XXII: Whether FAITH is ONE VIRTUE

Quaestio XXIII: Whether FAITH is the first of the Virtues

Quaestio XXIV: Whether FAITH is more certain than any science, or than any intellectual habit

Quaestio XXV: Whether one can know with certainty that he has FAITH

Quaestio XXVI: In whom FAITH is found

Quaestio XXVII: Whether FAITH is a substantial Gift of GOD

Quaestio XXVIII: Whether the difference between FAITH and other acts, natural as opposed to supernatural moral acts, always arises from the object

Quaestio XXIX: On the effects of FAITH

Quaestio XXX: On the GIFT OF UNDERSTANDING

Dubitatio I: Whether UNDERSTANDING is a gift of the Holy Ghost

Dubitatio II: Whether the GIFT OF UNDERSTANDING can coexist with FAITH

Dubitatio III: Whether the GIFT OF UNDERSTANDING consists in the contemplation of the Creator and of Creation

Dubitatio IV: Whether the GIFT OF UNDERSTANDING is found in all who have grace, and whether in these alone

Dubitatio V: What is the necessity and utility of the GIFT OF UNDERSTANDING

Dubitatio VI: Whether* **the GIFT OF UNDERSTANDING** *corresponds to the sixth beatitude, namely, Blessed are the clean of heart, etc.

Dubitatio VII: Whether* **to the GIFT OF UNDERSTANDING** *there corresponds, among the fruits of the Holy Ghost, Faith

Quaestio XXXI: On the Gift of Knowledge

Dubitatio I: Whether* **KNOWLEDGE** *is a gift of the Holy Ghost

Dubitatio II: Whether knowledge is concerned with Divine things

Dubitatio III: Whether the gift of knowledge is speculative

Dubitatio IV: Whether the third Beatitude corresponds to the Gift of Knowledge: Blessed are they that mourn, etc.

Disputatio II: On Unbelief

Quaestio I: What UNBELIEF is, and what kind of sin it is

Quaestio II: Whether all the works of unbelievers are sins

Quaestio III: Whether unbelievers can be compelled to hear FAITH

Quaestio IV: Whether unbelievers can be compelled to embrace our FAITH, when it has been sufficiently set forth

Quaestio V: Whether unbaptized unbelievers can be compelled to abandon errors or rites contrary to natural reason

Quaestio VI: Whether the rites of unbelievers are to be permitted

Quaestio VII: Whether it is lawful to make agreements with unbelievers about the toleration of their rites

Quaestio VIII: Whether unbaptized unbelievers can retain power over the Faithful, and whether they can be deprived of it

Disputatio III: On Heresy

Quaestio I: What HERESY is

Quaestio II: Whether one who doubts about the articles of FAITH is a heretic

Quaestio III: Whether one who gives merely opinionative assent to an article of FAITH is a heretic

Quaestio IV: Whether, and what, Ignorance excuses from Heresy

Quaestio V: What pertinacity is required for HERESY

Quaestio VI: Whether, for one to be deemed a Heretic, it is necessary that he have been baptized and a believer

Quaestio VII: Whether the Church can compel heretics to receive the Catholic FAITH

Quaestio VIII: On the other means the Church uses against heretics, by forbidding their Books

Quaestio IX: Whether we are bound to avoid the conversation of heretics

Quaestio X: What excommunication is inflicted upon heretics

Quaestio XI: On the other spiritual punishments of heretics

Quaestio XII: On the temporal punishments of Heretics

Disputatio IV: On Hope

Quaestio I: What HOPE is

Quaestio II: What the material object of HOPE is

Question III

Quaestio IV: Whether a certain object is set forth for HOPE, and is hoped for

Quaestio V: Whether Hope is a Virtue

Quaestio VI: Whether HOPE is a Theological Virtue

Quaestio VII: Whether HOPE is at times formless

Quaestio VIII: Whether HOPE arises from merits

Quaestio IX: Whether Hope precedes Charity

Quaestio X: What the proximate subject of HOPE is

Quaestio XI: Whether HOPE remains in the Blessed

Quaestio XII: Whether there is a precept of hoping in GOD

Dubitatio VI: Whether* the GIFT OF UNDERSTANDING *corresponds to the sixth beatitude, namely, Blessed are the clean of heart, etc.

Dubitatio VII: Whether* to the GIFT OF UNDERSTANDING *there corresponds, among the fruits of the Holy Ghost, Faith

Dubitatio I: Whether* KNOWLEDGE *is a gift of the Holy Ghost