Concerning the asylums of the Christians, Masius wrote thus in this place (p. 302), so that to some [he] seems to speak heretically. His words are: “Posterity — partly from desire of glory and proud arrogance, that [it] might amplify its own majesty; others, by an imprudent opinion of religion — established the right ‘τῆς ἀσυλίας [tēs asylias]’ [of inviolability] at statues, at any temples whatever, at the very cemeteries, at the Bishops [their persons], and I know not where else — [everywhere]. And those asylums, so numerous, would perhaps have some appearance of greater mercy, if [they] had been instituted for the sake of the safety of innocent men. But [the fact] that [they] protect men liable to any disgraceful act — nay, [men] covered over with all crimes — that certainly seems to me [to be] by far most unworthy, and more consonant with Romulus’s institution than with these laws of God. But Innocent [III] excepts public robbers and nocturnal ravagers of fields; namely, so that no one else — however wicked — who has only fled to the asylums [that lie] everywhere at hand, can be given up to punishment. But though [he] has committed a grave and impious crime, [yet] let [him] have impunity in [his] body, at least. Too little clemently, forsooth, was [it] said by God: ‘if anyone kills his neighbor on purpose, thou shalt tear him away from my altar, that he may die.’ Better, indeed, in the Commonwealth — as [people] are now surely disposed — is the sanction [ordinance] of Justinian, [the] Authentica ‘On the mandates of the Prince,’ §. And [it is] not [too little clement] where [it] decrees [that] wicked homicides, adulterers, [and] ravishers of virgins [are] to be dragged from the asylums, and visited with punishments. For who would bear with an even mind [that] God himself be set up [as] the patron and defender of homicide — than which [he] detests no misdeed more? or [that] Princes, whose duty [it] was to restrain criminals with the penalties of death, be the harborers and protectors of criminals? Certainly the matter cries out, [that] those too-indulgent lawgivers, while [they] aimed at the praise of clemency from the impunity of crimes, have exposed all the best and most innocent men to the lust of evildoers; since [there] is no greater enticement to sinning than the hope of impunity — so that now those disgraceful acts, at which nature itself ought to shudder, by the assiduity and habit of sinning, scarcely seem [to be] grave; and [that], by [reason of] the license of offending [granted] by these same [asylums], many think [they] need not even hasten to the asylums, even if [they] have sinned most atrociously; and [that] in vain could Tiberius seem — if he should return from the underworld to [imperial] power — [as one who was] going to take away all asylums.” These [things], and still more besides, Masius [says]; who seems to me, from hatred of crimes and zeal for justice, to say some [things] not prudently and cautiously enough — yet to say nothing at all heretically.
The former [appears] in this: 1. That he judges the institutors of asylums all [to have acted] rashly enough, while [he] indicates [that], in instituting them, no end and cause [was] set forth from those good [reasons] about which [I spoke] in the previous question, but either glory’s desire alone, or superstition — or, as he himself says, “an imprudent opinion of religion.” 2. That he calls “an imprudent opinion of religion” [that] which is most prudent, and strengthened by the best reasons. 3. That he seems to deny [that they were] instituted also for the sake of the safety of innocent men — whereas, among others, this [is] also one cause of them, although not the only [one]. 4. That he so unfavorably interprets and censures Innocent III — as if, besides [the] two kinds of criminals, [Innocent] wished no other criminal to be given up to punishment — whereas nevertheless [Innocent] numbers those three kinds in the chapter “Inter alia, On the immunity of Churches,” and does not deny the others which I touched [on] above (q. 9). 5. That he so exaggerates the impunity of crimes, as if it were altogether established through the Christians’ asylums — whereas nevertheless it belongs only to those who dwell in the asylums, and [only] as long as [they] dwell [there]; which [itself] is also a certain punishment, although a milder [one]. 6. That, while asylums are established [as] other, and otherwise, than the Lord once established [them], he interprets [it] unfavorably — as if God be accused of lesser clemency, or [as if] the founders of asylums wished to seem more clement thereby — whereas God provided only for the state and condition of the Jews, nor then prescribed either laws or privileges for the Christians; and to no founder of asylums did so great an accusation against God, or [a thought] contrary to God, or [any such] thought, come into [his] mind. 7. That he says [that] God and princes are set up, by the asylum-rulers, [as] patrons and protectors either of homicide or of other crimes. Far be it! But [they] are reckoned [to be] patrons and protectors — [patrons] of the wretched, and indeed of those fleeing to them, and openly begging aid from them, and acknowledging their power and authority — for a good end. 8. That [the things] which are the vices or abuses of certain men, he wrongly and perversely turns [back] upon the asylums, and their religion [sanctity]. 9. Finally, that he seems to affirm [that] the political sanction of Justinian [is] better than the canonical sanctions.
But the latter [point] — namely, that [he] nevertheless does not speak heretically — is proved [thus]: 1. Because he does not deny the Ecclesiastical authority, but only disapproves of a certain act [exercise] of this authority. But [one] is not forthwith a heretic, who thinks [that] the application of the most-sacred authority to this or that particular [case] [is] less correct. (See the chapter [on] “some dispensation, absolution, excommunication.”) 2. He seems to wish to censure the abuse of asylums, not the use. For those words of his mean this: “as [people] are now surely disposed. And many think [they] need not even hasten to the asylums, even if [they] have sinned most atrociously.” 3. According to the variety of times and places, [it] can happen that, in such a matter, certain abuses and excessive licenses creep in; and then [it] would seem good to diminish somewhat an immunity of this kind — as even Covarruvias confesses (cited place, n. 4), [and] Gregorius (bk. 13 On the Commonwealth, ch. 23, which is entitled “The abuse of immunity, or of the Asylums of the Church, and [its] remedies”); Oleaster on Num. 35 (the note “for the reform of morals,” p. 85); [and] Tostatus (in this chapter, q. 12), where [Tostatus] explains Masius’s mind, more or less, when he says: “Very many crimes are committed under the pretext of the Church’s immunity. For some, enjoying the immunity of [their clerical] orders, others [enjoying] the immunity of places, commit horrible misdeeds.” And yet the same Masius keeps himself within [due] measure, when he subjoins: “Nor, however, do I say this in order to detract from or tear at the Ecclesiastical liberty. For [it] was reasonable enough, that the immunity of the Churches be greater
(col. 1225)
[…Masius’s words, continued from col. 1224:] of our [Churches] than [that] of the cities in the Old Testament; because the state of our Church is more perfect than [that] of the Old Testament.” And from this abuse were born those restrictions of immunities in England of old — Polydore [Vergil] (bk. 1 of the English History) [being] witness — and likewise in France, as Rebuffus writes (in the proem of the Royal Constitutions, gloss 5, n. 40), [and] Gregorius (cited place, n. 11), & Covarruvias (n. 17).