Question I: Whether power is necessary in a judge

A JUDGE is one who declares the Law, and for his part many things are required, among which Authority holds the chief place.

It is MOST CERTAIN, by the consensus of all, that it is necessary for a Judge to have power to judge.

THIS the S. Doctor proves in many ways everywhere; first, in the Confessionale, cap. 1. particula 5. et 6. and Deuter. 16., where the formula for instituting Judges is given, to whom power is also given. He has these things more clearly at Sap. 6. and part. 2. Ecclesiasticae Hierarchiae.

The S. Doctor often shows the same thing by that passage Rom. 13. Let every soul be subject to the higher powers, that is, to those who are set over us on high, as he explains in 2. dist. 44. quaest. penult. and part. 2. de Eccles. Hierarchia, cap. 3.

MORE BROADLY the S. Doctor shows this on 6. Sapientiae, on those words: Hear therefore, ye kings, and understand: learn, ye that are judges of the ends of the earth: because power is given you by the Lord, and strength by the most High, who will examine your works: because, being ministers of his kingdom, you have not judged rightly. The same in the chapter At si Clerici, it is said: a sentence pronounced by one who is not its Judge does not bind. And in the chapter Ut animarum, de constit. in 6. it is said: Outside his territory, obedience is not owed to one declaring law with impunity, and S. Gregory, lib. 11 of the Register, as is reported in the chapter Scriptum est 6. quaest. 3.: It is written in the Law, Deuter. 23.: When passing through another's field, you shall not send in a sickle; for you cannot, nor ought you, to send the sickle of judgment into that harvest which is seen to be committed to another. By these means S. Bonaventure proves it in the Confessionale, cap. 4. part. 1. and in 4 dist. 19. art. 3. quaest. 1.

The reason is taken from D. Bonaventure in 4. dist. 17. part. 3. quaest. 2. and in the Confessionale, loco cit., because to judge is to bind and to compel according to the laws unto sentence; but no one can bind anyone and compel him to the observance of the law unless he have coercive power. Therefore Callixtus the Pope says, 9. quaest. 2. cap. 1, as quoted by D. Bonaventure, loco cit.: Such judgment has no force, for the sentence of no other judge will bind but his own. Therefore the Pontiff is able to judge all (the S. Doctor says in 4. loco cit.), because there is given to him coercive power of binding and loosing, Matth. 16. By the same argument D. Thomas and the other Theologians after them make use; and most recently our Eliseus rests upon this single reason, tract. 4. quaest. 1. num. 4., where he infers that a Judge has only as much of coercive power as he decreed of Jurisdiction; which he understands of the ordinary Judge only.

It is PROVED secondly by D. Bonaventure, 4. dist. 19. art. 3. quaest. 1., by many Arguments from can. 16. quaest. 1. and 9. quaest. 2. and from the General Canon, extra de poenitent. et remiss.

Then, because the order of the Church is that one have one immediate or ordained superior. Therefore one cannot have two Bishops, two Patriarchs, etc.; for the Church is as an army well ordered.

THIRDLY, because it would follow that the true superior could have commanded this, and the false one command the contrary.

IT MUST BE OBSERVED, however, with D. Bonaventure in the places alleged, and D. Thomas here, whom follow Valencia disput. 5. quaest. 11. puncto 1. with Gabriel in 4. dist. 15. quaest. 6. art. 1. not. 1., Soto L. 5. de Iust. quaest. 4. art. 1., Bassaeo V. Iudex, num. 2., Lessius lib. 2. cap. 29. dub. 6., Tolet. lib. 5. cap. 56., Bonac. tract. 1. disput. 20. quaest. 2. punct. 1., Sayro lib. 12. cap. 7. num. 3., Tannero disp. 4. quaest. 1. dub. 1. num. 24. and others, that competent power is fourfold.

THE FIRST is ordinary power, whether it be Ecclesiastical or secular, and it is that which belongs to someone by reason of dignity or office, and it sometimes happens by Birth, sometimes by Conferral, as P. Eliseus has it, loco cit. num. 7. Thus the Pope has ordinary spiritual power over all the faithful, and a Bishop over those subject to him.

THE SECOND is delegated power, and it is that which belongs to someone by commission or delegation from some superior judge. Such is the power of a Praetor sent by the King.

But he who obtains Jurisdiction by Delegation, if it be universally for many causes, can subdelegate for one cause or another, or even for several which are reckoned as one particular cause, unless it be otherwise expressed in the Delegatory letters, or unless the person was chosen for singular industry, with a clause, Commissi, denoting that very thing; but if he be sent for the decision of one cause, and because of the industry required in that matter, very many deny that he can subdelegate; for the whole cause, but not for some particular part of the cause, as for the examination of some witness. So Eliseus, ubi supra num. 20., where he adds that the delegation lasts until it be revoked, or at least expire with the death of the delegator, the cause remaining intact; otherwise if it have been juridically begun in one act or another. So also Dictus, quoted by him, quaest. 2.

THE THIRD is arbitrary power, which is had by the election and deputation of the litigating parties. Here, however, there is a twofold kind: one elected to settle a dispute amicably; and this one is not bound to judge observing the order of law, but by his own judgment, the equity of natural law being preserved. The other, who is elected, that he may judge according to law. And indeed these judges receive power from the parties; and they can pronounce a sentence firm by the law of nations and unappealable, from which, if either party protests, he sins mortally, and can be compelled by the Prince, as Soto notes, Lib. 3. de Iust. quaest. 4. art. 6. et L. 5. quaest. 4. art. 1., Sayrus Lib. 12. cap. 8. num. 4. and others commonly.

This kind of power is indicated in the chapter Placuit, quoted by D. Bonaventure loco cit., where it is said that he who has once elected another as his Pastor is bound to be subject to him; which Canon also includes the fourth kind of power, which is called by accessory right, such as that which a Judge or Prince has by reason of a crime, or by reason of a person then dwelling in his territory; for individual superiors have, and judges have, their own territories and boundaries within which they can pronounce judgment concerning all coming from such a place; but outside those places it is not permitted them to judge, which the S. Doctor proves in the Confessionale, in the place adduced, from the chapter Ut animarum, de constitut. in 6., where it is said: Outside the territory of those who declare law, obedience is not owed with impunity; and dist. 9. quaest. 2.: Let no one presume to judge the parishioner of another; and de poenit. dist. 6. cap. fin., where Urban II says: Whoever shall attempt to act against these statutes shall lie open to the peril of his rank. And the S. Doctor adds, that it avails nothing to say that the contrary is done all day long, because those who transgress these Canons sin most gravely.

He is held by this statute by reason of a committed debt in another's territory, cap. 1. de Raptoribus, et Leg. Alterius, ff. de Accusationibus.

So also can one be summoned by reason of domicile in that place, cap. final. de foro compet., on which matter the Gloss treats in summa 3. quaest. 6.

SIMILAR is the case which is the fifth mode of jurisdiction, by reason of an injury inflicted upon the subject of another Prince. For if the superior of the injurer be unwilling to punish the guilty party, the injured Prince will be able to afflict him with penalties, as Lessius teaches, Lib. 2. cap. 29. de Iudice, dub. 6., Filliucius Tomo 2. tract. 40. cap. 6. num. 155., Fagundez L. 8. num. 12. on the eighth Precept, after D. Bonaventure in 4. dist. 19. art. 3. quaest. 1. corpore.

From these we have that secular Judges cannot judge Ecclesiastical persons or things, as is had in dist. 19. and in the Decretals, Tit. de immunitate Ecclesiae, and the chapter saeculares, de foro compet. in 6. and from the Council of Constantinople sess. 8. and the Council of Trent sess. 25. de reform. cap. 20., where the Sacred Canons and all the general Councils are renewed, and the Apostolic sanctions in favor of Ecclesiastical persons and the liberty of the Church. And in law, to which the Authentica belongs: That clerics be summoned before their own judges, collat. 6.

All these things the S. Doctor touches in 2. dist. 25. part. 1. dub. 1., while he says that judgment implies an act of reason regulated according to the rules of truth, that is, of the supernal law. Whence he is called Judge whose it is to judge a cause according to the laws. But he is called Arbiter who has to terminate a cause at the mere nod of his own will.

The laws, however, do not permit a secular [judge] to judge Ecclesiastics. Of which Constantine the Great exhibited a famous example: since, as Ruffinus narrates, L. 10. hist. cap. 2., when he had received at the Council of Nicaea many libelli from some Bishops against other Bishops, that he might proceed against them, the most pious Emperor committed all those libelli, sealed, to the fire, saying: God has constituted you Priests, and has given you power of judging even over us, and therefore we are rightly judged by you, but you cannot be judged by men (namely by laymen).

Indeed, it is repugnant to divine law that Ecclesiastics, or even seculars in spiritual matters, be subjected to the princes of the world: for He constituted the Apostles alone, and their successors, but not Princes or Kings, as the governors of the Church, the masters of the faith, and the judges of spiritual causes, as S. Bonaventure loved to say in the places cited, and in 4. dist. 17. part. 3. art. 1. quaest. 1.

FOR since in the Church militant there are two swords, the chapter Dilecto, de sent. excom. in 6., which signify the twofold power, Ecclesiastical and secular, the chapter solitae de maior. et obed. and the chapter ad verum, dist. 99., these two powers are so distinct from each other that the one ought not usurp the jurisdiction of the other; that is, neither ought the Church to vindicate to itself secular authority in temporal matters which in no way pertain to the good government of the Church and the salvation of souls, nor on the other hand ought secular power to judge of spiritual matters, or of Ecclesiastical persons, except in the cases permitted to it.

ALTHOUGH, however, as Bernard says in his book De consideratione, it [the Church] has also the temporal sword — which he proves by that passage of Luke 22: Behold, here are two swords, and the Lord says: it is enough — yet the spiritual sword is to be drawn by the hand of the Church, because it is directly in her hand; the temporal truly only indirectly, as S. Bonaventure teaches in 4. dist. 37. dub. 4. on the text, and as S. Thomas also has it, Lib. 1 de Regimine Principum cap. 14. and Lib. 3. cap. 13. and 15., Bellarmine Lib. 5 de potestate Pontificis, Panormitanus on the chapter Novit. num. 21. and seq. de Iudiciis. It [the Church] has also power over mixed cases, as in causes of usury, sacrilege, oath, and marriage, arg. the chapter cum sit, and the Gloss, ubi V. Malefactores, de foro compet. But the secular [power] has the temporal sword directly. Whence D. Bernard, Lib. 4 de consideratione, to Eugenius, quoted by D. Bonaventure, on those words, Luke 22: Behold, two swords, says: If the material sword in no way pertained to you, when the Apostles said, behold, here are two swords, the Lord would not have answered: it is enough; but: too much. Both therefore are the Church's, both the spiritual and the material. But this one indeed is for the Church, and that one is to be drawn by the Church; the one by the hand of the priest, the other by the hand of the soldier, yet truly at the nod of the priest and the command of the Emperor.

Yet in three cases he admonishes that a secular Judge can judge a Cleric, Tanner, disp. 4. q. 4. n. 29.

THE FIRST is, if a degraded cleric be handed over to the secular arm. The second, by the consent of the Bishop in a merely civil cause. The third, probably, by the title of reconvention, so that if a cleric cited a layman before a secular judge, he himself in turn can be reconvened, yet not criminally, as Carbo teaches, quaest. 51. de restitut., Lessius cap. 19. dub. 6., Tanner loco cit. And if the opposite, with Panormitanus, I praise it the more.

But conversely widows and wards can drag their guilty parties to the Ecclesiastical Judge, as Couarruvias teaches, in epit. 4. part. 2. §. 12, on the word Iudiciales; Tanner num. 31.; Salon quaest. 60. art. 4.; Clarus in his Praxis, quaest. 30., according to the chapter Inter alia, de Immun. eccles. and other Canons 17. quaest. 4.

From what has been said I bring forward that one who judges without any of the said powers sins mortally. So D. Bonaventure above; Azor, 3. part. lib. 23. cap. 15.; Lessius lib. 2. cap. 29. dub. 6. num. 51.; Bonacina tract. 1. disp. 10. quaest. 2. punct. 1.; our Bassaeus V. Iudex 5.

It is PROVED, because he inflicts injury both on the parties, by unjustly subjecting them to himself, and on the superior, by usurping his authority.

HERE he is bound to restore whatever damage emerges from judgments [given] against justice.

NOTE, however, that if the Judge of the damaging party does not do justice, this one can be judged by the judge of the injured party proportionally: if a secular, by a secular; if an Ecclesiastic, by a similar one.