How the Westminster privilege is to be read: its interpreter, its ends, and no privilege against the common law

Since the almselemosina: alms of such great princes ought not to be wholly extinguished because of the perverse interpretation of those who abuse it, just as the truth of holy scripture ought not to be cheated of its light because of heretics who, taking occasion amiss, draw a perverse sense out of it, we must see in what sense the said privilegeprivilegium / privilegiare / privilegiacio: privilege / to privilege / privileging ought to be conceived, so that it may remain a privilege on both counts, in fact as well as in name.¹ First, then: it belongs to him whose it is to make laws and privileges to interpret them (as is clear from C. 25 q. 1, Ideo permittente, and from the fifth [book] of the Decretals, De sentencia 228excommunicacionis, Inter alia); now the king of England must grant and make such private laws out of his royal lordshipdominium: lordship for the edification of the churchecclesia: church: therefore it must be taken as known of itself that it belongs to the king to interpret those private laws and alms and to defend them in their rightness.² And the Roman pontiff, consulted on this, and his liege priest, asked for the interpretation of the catholic sense, are bound by the gospel lawlex dei / lex Christi / lex evangelica: God's law / the law of Christ / the gospel law to declare humbly as much as they know; and they are not to be obeyed except in so far as they have founded their teachingsentencia: CONTEXTUAL: teaching / sentence in holy scripture.³ Hence, second, it must be supposed that holy theology must principally regulate every such science. This is clear from the fact that it alone principally teaches the way by which the heavenly marriage is honoured; now every lawful deed of a wayfarerviator: wayfarer is to be regulated according to this end; therefore the conclusionconclusio: conclusion. And this is the teaching of distinction 20, De quibus, where Pope Innocent teaches five degrees of proceeding in deciding doubts. First, in so far as recourse must be had to the authority of scripture, which bishops, and especially the popepapa: pope, are bound to defend even to [shedding their] blood, as is clear from C. 25 q. 1, Sunt quidam. Second, if the solution of the doubt does not shine out clearly from holy scripture in the Latin tongue, let recourse be had to the Greek writings, so that at least in this way the divine teaching may be had. Third, if not even so does the light of truth appear, put your hand to the catholic ecclesiastical histories gathered by the holy doctors. Fourth, if the difficulty that is enquired into does not come clear even by them, call keenly to mind the examples of the saints; for the examples of the saints’ life ought to be to us a mirror of how to live. 229Fifth, if, when all these have been examined, the nature of the question does not grow clear, let it be decided by decree of the elders of the province gathered for this, with the help of God, who cannot fail his own.⁴

Third, I suppose this. Since the said privilege is not founded in canon or civil law, but specially in the laws of our kingdom and in the charters of that church recited above, note should be taken of the form, and of the end for the sake of which these privileges were granted (for the end, as the second [book] of the Physics teaches, measures all the means to it); now in the privileges of King Edgar a threefold end is expressed: namely, reverence for God in the relics of his apostle; the quiet of the monks living there; and the honour of the holiness of that peculiar basilica, in which there live special bedesmenoratores: bedesmen for the king and kingdom, who are maintained specially for this out of their alms.⁵ Hence in the bull of Nicholas III it is contained thus: "Let the monks there be subject to no person at all except the king."⁶ From which it seems that the inhabitants of that place are specially subject to their king, not only because [they are] the king’s liege men, nor only because [they are] his special almsmenelemosinarius: almsman, but by the pope’s command; for according to blessed Gregory the multiplicity of benefits increases the obligation of the one benefited to his giver.⁷ From which it seems (since the monks of that place are so singularly subject to the king, and their guests or fugitives ought not to be more exempt or privileged than the monks from whom the privilege flows), it seems, [I say,] that all refugees, in so far as they are in that place, are subject to the king of England with a certain pre-eminence, from the fact that they receive from him there a singular benefit. Nor does it accord with the faith of the religion of Christ that a monk, if (to suppose what is possible) he should kill a man in the said place, would afterwards be freer and receive more of the fruit of the privilege than when he was guiltless before God and 230man and more capable [of it]. Nor does it seem reasonable [to deny] that, supposing capacity in a monk or in any servant of that place, he will have the fruit of the privilege after an offence even rather than an outsider; for otherwise everyone resting there obstinately in crime would, as such, make himself unfitindispositus; (se) indisponere: unfit; to make (oneself) unfit to have the aforesaid privilege.⁸

These things premised, it seems to me (as elsewhere) that, although throughout all England remission of every kind ought to be granted, in so far as it tends to mercy and no further, yet for the place of Westminster such a general remission ought to be kept, by virtue of the singular privilege piously granted to that place by the kings.⁹ The first part is clear from this, that privileges, since (as such) they tend of themselves to good, are reasonably to be embraced; for it would be better that the whole church should have privilege, that is, law for its own advantage, than that any part of the church should fall short of true privilege, since it sins or is punished by so much as it falls short of the full privileges of the blessed. And it is clear that there is no privilege except in so far as it tends to alms or a work of mercy, since there is no privilege except in so far as it is mercifully given by God, turning to a man’s profit. And the second part is clear from this, that the king’s grantconcessio: grant must have a special efficacy, to be observed there more diligently; for otherwise it would be in vain. And from these it is clear that no privilege is contrary to the common lawius: right / law; for if it were, then it would be against justice, and consequently an unjust law and not a privilege. Hence the saying of some, who say that it would not be a privilege unless it were contrary to the common law, seems to me wholly foolish. For a lawful variation of rite for place and time is not contrary to truth, and consequently not to any law.¹⁰ Therefore those who privilege must take every care 231not to withdraw justice from anyone or inflict injury on anyone. Hence in C. 25 q. 2, Quod vero, Gregory says: "Far be this from me, that I should break the statutes of our forebears with my priests in any church; for I do myself injury if I disturb the rights of my brothers." And without doubt the judgment would be the same of any wayfarer: that if by privileging he shuts anyone off from justice, he harms both himself and the one to be privileged; which it is not lawful even for God to do.¹¹

From these, second, it followssequitur: it follows that the fugitives privileged in Westminster are not thereby set free so as not to satisfy [their creditor], or so as to remain there in perpetuity without the penalty of wholesome correction; but they have there some singular defence, which tends to their advantage and not to the harm or injury of anyone.¹² The first part is clear, both because this does not follow from the tenor of the words of the privilege, and also because this would not be liberty or privilege but the most depraved corruption. For the command of the apostle, and so of God, is Romans 13:8: "Owe no man any thing, but to love one another." How, then, is it lawful for a creature to license anyone to remain in debt to his brother, not making satisfaction, even as regards God? Such heresies, therefore, if they should sprout even through the lords of our kingdom, the prelatesprelatus: prelate are bound to destroy.¹³ Hence in C. 25 q. 1, Omne quod, it is written thus: "An unjust judgment and an unjust definition, ordained by judges through a king’s fear or command, shall not be valid; for in no way shall anything stand that has been done against the evangelical or prophetic or apostolic doctrinedoctrina: doctrine, or their constitution, or [that] of the holy fathers." Hence it is said that the Roman 232pontiffs ought to confirm this doctrine even to [the giving of] life and blood (as in the chapter immediately preceding).¹⁴ How, then, do these stand together: that it is lawful for no one to owe anything to another beyond the love of charitycaritas: charity, and yet a fugitive is licensed in the said place to owe perpetually both a bodily and a spiritual debt without paying back satisfaction? Truly God cannot [consent] to this usurped blasphemy, since he does not license a man to anything for which he damns [him].¹⁵ And the second part of the conclusion is clear from this, that some privilege must be given to such fugitives from the king’s grant, by the preceding conclusion.

And this teaching is notably taught in C. 25 q. 1, Ideo permittente domino, where it is said that whenever the Roman church grants a privilege, it expresses or understands [the clause] "unless it should decree that it be ordered otherwise". "Hence," it says, "in some chapters of the councils, when something is decreed to be observed, there is at once added: 'unless the authority of the Roman church should command it to be done otherwise', or 'saving always in all things the right of the Roman church', or 'saving in all things the apostolic authority'. When, therefore, other privileges are granted to some by the apostolic [pontiff], even if they seem to say something against the general law, yet they are not understood to grant anything against it." "Privileges," it says, "are so called as being private laws (privata legia)"; and it concludes finally: "The Roman church, therefore, has power to grant certain things by special favour outside the general decrees, yet with regard had to the equity of reason, so that the mother of justice may be found in nothing to dissent from it: that is, so that privileges, which are granted for the sake of religion, or of necessity, or of service rendered, may not, by relieving someone, make him so rich that, through failing to look to the losses of many, they cast some into the misery of poverty."¹⁶