The king cannot license wrong; excommunicate fugitives; scripture and canon law against the privilege

But I say, more consonantly with the privilegesprivilegium / privilegiare / privilegiacio: privilege / to privilege / privileging of holy mother churchecclesia: church, that the king cannot grant anyone liberty violently to take away, and much more evidently [none] unjustly to keep back, any good from any membermembrum: member of the church whatever, unless [that member] has first sinned, deserving this.¹ Nor does the sophismsophisma: sophism [hold] here: "The king grants the evildoer liberty not to be punished and to remain for ever unaccused of the crime, but he does not grant him licence to sin or to injure anyone"; for to license 221to what is formally and notoriously antecedent to any injury whatever is to license to the injury itself: as, if God gives me licence to break the headcaput: head of a presbytersacerdos / presbiter: priest / presbyter, and this cannot be done without crime, then God gives me licence to perpetrate a crime.² Correspondingly, when a wicked fugitive is noted resting in the said monastery with his plunder as his own for ever, let it be asked of him, or of the one defending this privilege, from whom he has licence so to rest. If it is said that he has none, then it is lawful to remove so unlawful a bestowal. If it is said that he has that licence from the king, it followssequitur: it follows, together with truths, that the king licenses to what is formally antecedent to sin; and it could be said with far more colourcolor (non est color): colour (a plausible ground) that the king lawfully licenses the taking away of temporal goodstemporalia: temporal goods, but in no way the doing of injury to anyone; for a taking away can be done lawfully, but not such a keeping back.³

Secondly I asked whether such a fugitive can be excommunicated while he is in that place, for a crime perpetrated outside; or whether one excommunicated outside the place, and fleeing to it so as not to be taken to prison by virtue of the king’s writ, will have liberty in the said monastery. And I was told no; because human laws do not derogate from the laws and right of the church, and especially [not from the law] that the medicine of the soul be applied to the most disobedient, who are to be excommunicated; for otherwise it would be lawful to shut off and privilege the spiritually sick man, so that he grows filthy in crime and receives no correction from man.⁴ And since that is against the law of fraternal correction, Matthew 18:15, "If thy brother shall offend against thee", etc., it seems manifest that such a defence has not a privilege but a "pravilege" of Antichrist.⁵ Indeed, since such a man is fully, and no less, excommunicated by God, notwithstanding that sentence has not been passed by man, it follows, 222according to the faith of scripture and the laws of the church, that one is not to communicate with such a man, unless perhaps so that he may be converted, lest he infect the flock of Christ.⁶ From any number of such evidencesevidencia: evidence the answer is that it is lawful to excommunicate such a fugitive and, after forty days of excommunication, to commit him to prison. But, granted this, it follows, since it is lawful to excommunicate for any crime whatever, that such a criminal fugitive is to be excommunicated at once and consequently, after forty days, imprisoned; and since after excommunication he will have no greater favour than "a heathen and a publican", it seems that he is to be dragged out of the monastery and thrust into the public prison with other excommunicates, as a stranger to the sons of the church. Hence, since in doubtful matters the safer way is to be held, and it is either doubtful or probable that one who shelters a criminal in this way will be a partaker in the crime by consent, or guilty by denying the aidsuffragium sensus: aid of sense of correction (which would be the true privilege, opposed on this side to the [pretended] privilege), it seems, since the course of the common law is the safer way, that it is rather to be upheld.⁷ How, I ask, would it tend to the profit of a person [vowed] to seeking blessedness to protect in his house, without distinction, all criminals, devilish men and enemies of the church, and to shut off from them the medicine of correction and the censurescensura: censure of the church by which they might be healed? Truly, neither this nor a share in plunder tends to the advantage of the religiousreligiosi: the religious. For Eli was punished with death, and deprived of the high priesthood in his posterity, not for fostering the malice of his sons but for remitting the correction of his sons, as is clear from 1 Samuel, chapters 2 and 4, and 1 Kings 2.⁸ This, then, could tend to the privilege of the said place: that out of the king’s almselemosina: alms they should mercifully relieve impotent fugitives, of whom there was hope of conversion to the fruit of a better life, in the necessaries of life and in money owed, and faithfully restore the plunder of thieves 223brought in. For this would be alms, and so a privilege turning on all sides to the benefit of the parties, to the honour of God and the profit of the church (as I have often inculcated above).⁹ Thirdly, as a principal [argument], it is argued from this: that every useful good is groundable in scripture, according to the second conclusionconclusio: conclusion of chapter 8; now it is not groundable in scripture, nor in the law of the church, that it is lawful to privilege a place or a person so generally; therefore it is not a useful good of the church, and so it is no privilege for anyone to do so. The minor is clear from this: that in the old testament provision was made concerning cities of refuge, as was said in chapter 7; but nowhere was a refuge designated for the wicked; but it was assignedlimitare; limites: to assign (an office); limits that for accidental killing, beyond intention, the killer should have refuge, as is clear from Leviticus 25, Deuteronomy 19 and Joshua 20.¹⁰ And in the new testament no such refuge is designated; but it is commanded, Matthew 18:17, that such a wicked man be "as the heathen and publican". Whence, then, have we authority to protect thus the enemies of God and of holy church, especially since legal correction or punishment would be more merciful and just, and in the time of the law of gracelex gracie: the law of grace we are bound to a larger mercy?¹¹ And as regards the canon laws, it seems to me that five cases are specified in which evildoers are excluded from the defence of the church; and three cases are expressed in the third [book] of the Decretals, De immunitate ecclesiarum, chapter Inter alia, in this form: "This is true", namely that those fleeing to a church will have 224immunity, "unless he be a public thief or a nocturnal waster of fields who, while he besets frequented routes or public highways with ambushes of assault, can be drawn out of the church, impunity not being afforded, according to the canonical sanctions. But if it be a slave who has fled to the church, after his lorddominus; dominari: lord; to exercise lordship / to lord it has given the clerics an oath concerning his impunity, let him be compelled to return to his lord’s service even unwilling; otherwise he may be seized by his lord."¹² Behold three cases in which it is lawful to drag out a fugitive against his will; and in book 5, De homicidio, that [text] of Exodus 21:14 is laid down for law: "If a man kill on set purpose, thou shalt take him away from my altar, that he may die."¹³