Objections to the privilege: a harbour for enemies and criminals

Therefore it remains now, fourthly, to object against those [arguments]. It seems, first: if the tenor of the privilegesprivilegium / privilegiare / privilegiacio: privilege / to privilege / privileging must be understood thus, barely, according to the letter, then, supposing that an army of enemies invades England, it must have refuge in that place, so that after refreshment it could plunder the province more boldly. For every person of such an army is 217some man coming from some place, on foot or on horseback, entering that place for some cause; now every such man, according to the tenor of the words of the privilege, will have in that place immunity of every kind; therefore every person of such an army, by virtue of the privilege, will rest there in peace as long as he wishes. For if in any case it admits an objectioninstancia; objectum: objection, the bare words must be cast aside and sound teachingsentencia: CONTEXTUAL: teaching / sentence understood.¹

Here a certain ingenious lawyer told me that every person of such an army will enjoy this privilege, since there is no need, on account of such impossible cases, to limit or restrict the privileges of kings.² But that incurs manifold challenge with anyone in his right mind. For neither could the king grant such a privilege, nor ought the clergyclerus; clericus: the clergy; cleric to admit it as a privilege for themselves, since it cannot be a privilege for our kingdomregnum: kingdom, or for a part of it, to shelter the destroyers of the kingdom and of the whole English churchecclesia: church, just as it is no privilege for anyone to destroy himself by making himself worse. Therefore whoever has obtainedimpetrare: obtain (by request) or defended this as a privilege for our kingdom degenerates, as one faithlessinfidelis: unbeliever; with a dative, faithless (to) to God and to the kingdom. Nor does it avail to say that such a company could not rise up and invade our kingdom, since this happened in three conquests, namely of the Britons, the Saxons and the Normans; indeed, such depopulators had risen in the time of King Edward the Second and despoiled cardinals in the county of Durham; and in the noble kingdom of France, in Lombardy and in other powerful kingdoms such depopulating companies have risen in our times: indeed, in these days kingdoms are never or rarely without such men, confederated bodily or spiritually for their destruction, since such corruption under the cloak of privilege could of itself destroy a kingdom.³ 218Again, the king cannot rightly grant anything that would tend to the enervation of his kingdom or to the injury of his people; now both would happen, given the words of the privilege recited, according to their bare verbal conception. Therefore it does not lie within the king’s power to grant such a privilege. The major is clear from what has been said of privilege, since nothing is a privilege except what tends directly to the benefit of holy mother church; now the destruction of our kingdom and injury done to its people cannot tend directly to the honour of God and the benefit of holy mother church; therefore it does not lie within the power of any king to grant such a privilege; for God cannot [do] what is contradictory.⁴

And the confirmation is that the office of an earthly king, as such, is to defend holy church, rigidly to coercecoactivus; cohercere, cohersitivus: coactive; coerce, coercive its enemies, and to keep justice for all, but especially for his lieges (as is clear in book 3, chapter [ ]).⁵ Now the minor is shown thus: nothing would more enervate a kingdom than the protection of criminals without lawful correction. Hence it is written, Ecclesiasticus 10:8: "A kingdom is translated from one people to another, because of injustices, wrongs, injuries and divers deceits"; now nothing would contribute more to the fostering of these four than to grant anyone the liberty that, whatever crime he has perpetrated, by fleeing to so open a place he will not be chastised by anyone; therefore this would evidently threaten ruin to the kingdom.⁶ For if this privilege were granted throughout all England, how would the kingdom stand? For the king would not have power to coerce his liege men by civil [process], and then he would not be univocally king of them, or of a people that is not subject to his power. Nor is there a reason why the king could grant liberty to so great a place 219but that by the same token [he could grant it] also to a homelandvia / patria: the way / the homeland, and so another king to another homeland, and so on until the whole of England were set at liberty. For if total exemptionexempcio: exemption would extinguish the whole royal power, partial exemption would extinguish a part of it, since to that extent the king would not have power over the place, or over the person dwelling in it, to chastise it, however much it had offended against king or kingdom; and so he would not be king of all England, since the exempt place would be in the kingdom but not of the kingdom.⁷ For the king would not have as much power to subjugate the inhabitants of such a place as he has power to punish the people of France, since they are exempted from royal coercion as much as the inhabitants of Germany or of a wholly foreign province. And as regards the injury of the people, it is clear that a liberty is claimed such that, however wickedly anyone has injured his neighbour, by homicide, theft, adultery, transgressingprevaricari: to transgress against every kind of the commandments of the decalogue, he may flee to that place, and the fulfilment of justice is shut off from the injured man, since [the fugitive] is not bound, in person or by proctorprocurator; procuratrix: proctor, there or elsewhere, to stand to lawius: right / law; and yet the king of England at his coronation is sworn, by a laudable religious bond, that he will not deny but will grant justice to anyone whatever.⁸

O, if the whole kingdom were thus privileged as to every wicked deed, and lying everywhere proclaimed lawful, what a nest would the devil have in England for protecting the people of darkness in offences of word and deed? Truly, in the abyss he has no such privilege.⁹

Hence I put two cases to [my] adversaries. First, whether one who plunders, steals or borrows a treasure however great from another church, and flees thither with the treasure, will have, on the sense expounded, liberty of every kind. And I was told that he would: both because the words of the privilege, from which it is not lawful to depart, 220say that generally, and also because otherwise it would be too suspect, denying the laity the fulfilment of justice and doing justice to the clergy.¹⁰ But then it followssequitur: it follows, first, that the king, who could grant that the most wicked men should unjustly keep back in perpetuity the relics and any goods whatever of an immune church, could grant that the just should take away temporal goodstemporalia: temporal goods from a delinquent church. For it is known of itself that he who can grant what is further removed from common law can grant what is more consonant with the law of God. And again it is known that it would be a greater sin unjustly, pertinaciously and obstinately to keep back another’s property than an unjust taking away would be; because for the first a man is to be excommunicated as a heretic, and for the second not, unless contumacious obstinacy is present, as the lawyers knew.¹¹ Therefore there is no doubt: if the king can grant a privilege that anyone in his kingdom may have liberty perpetually to keep back what has been unjustly taken from holy mother church, much more can he grant licence that the just may take away their almselemosina: alms, which those who defraud the kingdom and holy mother church abuse. Hence it has been an inconsistent thing, and contrary to itself, to defend that so fervently as a catholic privilege, and anxiously to labour, when reasons fail, to condemn the other as heretical.¹²