Question VII: Whether appeal can be made from a regular prelate or 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. ¹ Editor's note: the 1655 print reads 'ad Superiorem posttatem', a transposition of 'potestatem' (the superior authority); rendered 'next above'.

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.