Question V: Whether a religious prelate has 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.