The fifth case and the gloss; why offenders forfeit sanctuary; the twofold privilege

And as it seems to me, the fifth case is expressed in the third [book] of the Decretals, at the end of the title De immunitate ecclesie, where it says: "In that in which one offends he ought to be punished, and he invokes the help of the law in vain who offends against the law: we command that you announce publicly that such men ought not to enjoy the privilegeprivilegium / privilegiare / privilegiacio: privilege / to privilege / privileging of immunity of which they make themselves unworthy." And it first expresses who are unworthy, in these words: "Some, hoping to obtain impunity for their excesses through the defence of the churchecclesia: church, are not afraid to commit homicides and mutilations of limbs in the churches themselves or in their cemeteries, who, unless they believed they would be defended by the church to which they flee, would by no means have committed them."¹ Hence the glossglosa: gloss says that all the laws that seem contrary to these, as C. 17 q. 4 and the other laws that tend to the protection of evildoers in sanctuary, are understood of those worthy of such protection. "Huguccio," it says, "spoke ill, 225in harmonizing the decretals and the decrees, [in saying] that the said decretal is understood of those who, fleeing to the church, did not offend in it or in its cemetery, but elsewhere. To such, says Huguccio, immunity is afforded by the church."² But truly, since the church, the bridesponsa / sponsus: bride / bridegroom of Christ, is bound on all sides with the bonds of charitycaritas: charity, it would have regard infinitely more to an offence against any membermembrum: member of it than to the siting of a bodily place. And because a basilica is loved infinitely less than a member of the church, it is clear that wherever on earth anyone sins mortally, the church ought to have more regard to the sin than to the place. For the place is irrelevant to an offence against the church, which ought not so to respect persons or inanimate signs, unless perhaps the place is accidentally a principle for knowing and increasing the gravity of the guilt.³ Whoever, I say, have offended more against God offend more against the whole of holy mother church and each member of it, by force of the communion of saints and of the communication of the members of the devil, since the headcaput: head against which the offence is first committed is everywhere.⁴ Therefore the gloss on the third [book] of the Decretals says well that those who have offended against any church whatever are, as such, unworthy to have the immunity of any church whatever: "They," it says, "do not have immunity from the church, because they have rendered themselves unworthy of its protection; though they have been foolish in guilt, let them be wise in punishment, as blessed Gregory says, as is recited in distinction 38, Qui ea." Hence there is no reason (as the aforesaid gloss touches on) why in these five cases evildoers are excluded from the immunity of the church, except that the church in these perceptiblesensibilis: perceptible cases perceives [more] the unworthiness of such men from notorious sin than the unworthiness 226of others who before God are more unworthy because they have sinned more gravely.⁵ Hence the civil laws, which the canon laws do not reprove, express other evildoers, such as homicides, adulterers and ravishers of virgins, whom the third collation teaches [us] to drag out; and the same without doubt holds of anyone who sins mortally, because every such man, as such, is an enemy of God and of holy mother church, as is clear from C. 23 q. 4 (as I recited above at the end of the preceding chapter). For distance of place does not prevent the sinner from offending against God and withdrawing spiritual aidsuffragium sensus: aid of sense from the church.⁶

Therefore, wherever in the open airsub divo: in the open air anyone has offended more, by so much is he rendered more unqualifiedinhabilis: unqualified (to hold office) to receive the defence of the church. This is proved in three ways: first, by this, that according to the rule of lawius: right / law, known of itself, "he invokes the help of the law in vain who offends against the law"; now such a man, remaining a criminal, offends against the law of the church and against the whole of holy mother church; therefore he invokes in vain the aid of the laws of the church, since by his own fault, by the decree of the bridegroomsponsa / sponsus: bride / bridegroom, he is rendered so unworthy of it.⁷ Again, according to the teachingsentencia: CONTEXTUAL: teaching / sentence of Christ, Matthew 5:25, the law of Christlex dei / lex Christi / lex evangelica: God's law / the law of Christ / the gospel law must be adverse to the sinner and accuse him as long as he lies filthy in sin: "Be at agreement," he says, "with thy adversary betimes, whilst thou art in the way with him." Since, therefore, the most gentle law of Christ does not excuse but accuses, does not protect but betrays, all such men while they remain enemies to the first lawgiver, it followssequitur: it follows that all the laws that serve Christ ought not to procure the defence of an enemy of the church in his sin.⁸

Again, according to blessed Gregory (as I have often repeated), "he ought wholly to lose his privilege who abuses the power permitted him"; now everyone who remains a criminal within the place of refuge, because of the security of the privilege, abuses the power permitted him; therefore he ought, as such, to lack the aid of the place.⁹ 227For it is to the purpose to posit a twofold kind of privilege: namely, the privilege that resides in the inhabitants of such a place, and the privilege that is individuated in the person of the fugitive; since each such [fugitive], worthy to have the aid of the former privilege, has in himself a singular privilege copied from the privilege of the church, whose protection he deserves to lose while he is ungratefulingratus: displeasing (to God) to his mother.¹⁰ And here I ask, first, the professors of canon law to consider how the said so-calledvocatus (vocata bona, vocata ecclesia): so-called privilege is not only not founded in their own law but manifestly conflicts with it: since the law of the church says that in none of the said five cases will the fugitive to a church have refuge, but the pretended privilege says that in each of them he will have refuge. And since this sense seems so patently to conflict with canon law, the law of scripture and the law of conscience, it would be shameful and perilous to defend so urgently a so-called privilege so damnable and heretical, the true privileges of the church being passed over.¹¹