Palladium theologicum, Tomus quintus: De virtutibus

Name: Palladium theologicum, Tomus quintus: De virtutibus
Author: Gaudenzio da Brescia

Reuerendi patris Gaudentij Bontempi, ... Palladium theologicum, seu Tota theologia scholastica in septem tomos distributa. Ad intimam mentem d. Bonauenturae seraphici doctoris ... Tomus quintus, De virtutibus

First published 1676

Bontempi's Palladium theologicum (Lyon 1676) is a complete scholastic theology composed ad mentem D. Bonaventurae, arranged in seven tractatus on the order of the Secunda secundae. This fifth volume, De virtutibus, treats the theological virtues (faith, hope, charity, with their gifts, beatitudes and fruits), the cardinal virtues and their opposite vices, and the states and offices of men (religious and prelates, bishops, princes), including the extensive disputations on contracts, religion, vows, fortitude, temperance and the judicial process. It is a significant example of the Bonaventurian scholastic school and a counterpart to the Thomist manuals of the period.

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.

↑ Top of work

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