The Emperor's Power Over The Wicked: Can He Punish Every Secular Crime? Opinion 1: He Cannot ~ William Of Ockham
Book of Hours of Catherine of Cleves
The Emperor's power over the wicked: Can he punish every secular crime?
Opinion 1: He cannot
Student Thus far we have sought to know whether all the regions of the world are subject to the emperor. And I understand about those things which do not pertain to the temporal jurisdiction or patrimony of the church. For in the third [book] of this [tractate] there will be discourse about those things that pertain to the patrimony of the church and we will also be able to find out much about it in the tractate About the Power of the Pope and Clergy. Now, however, let us come to persons who are not of the temporal jurisdiction of the church. And first let us reflect on the wicked, that is what power the emperor has over the wicked, whether the emperor can, that is to say, punish the wicked who are subject to him for every crime. And because some crimes are ecclesiastical and some are secular, as was alluded to above in chapter three of this second [book], let us inquire here only about secular crimes, because we will deal with ecclesiastical crimes in the third [book] of this [second tractate]. And so I want to ask whether the emperor can punish all those subject to him for any crime at all that is secular and not ecclesiastical.
Master There are different opinions about this. One is that the emperor can not punish all those subject to him for every crime. This is proved by the following argument. The same person should not be punished for the same crime by different judges, one of whom is not under another and who do not have power from one and the same prince. For a dangerous struggle and dissension could arise among those judges from this as each was wanting to drag the criminal to his own court; yet this could not be done. But it does belong to an ecclesiastical judge to punish criminals for various secular crimes. Therefore the emperor should not punish the same people for those crimes. The major [premise] of this argument seems evident of itself, while the minor seems clearly provable from sacred canons. For we find from the Council of Pope John, as we read in Extra, De officio iudicis ordinarii, c. Perniciosa [c.1, col.186], "Therefore let the bishops of every city have unfettered power in their dioceses to inquire into, punish and judge adulteries and crimes." We gather from these words that all secular crimes should be punished by bishops, both because adultery is a secular crime, since it is thought to be a crime even among unbelievers and those content with the law of nature alone, and because he says "and crimes" without distinction. Therefore he means all crimes.
Again, as we find in Extra, De iudiciis, c. Novit [c.13, col.242], Innocent III says, "No one who is sound mind does not know that it pertains to our office to correct every christian for any mortal sin at all and, if he disdains correction, to curb him through an ecclesiastical penalty." We gather from these words that every christian should be punished for any crime by an ecclesiastical judge.
Again, as we find in 24, q. 3, c. Si quis Romipetas [c.23, col.996], Pope Calixtus says, "If anyone tries to seize pilgrims to Rome and pilgrims and visitors to the tombs of the apostles and to the oratories of other saints or to despoil them of the goods they are carrying and to annoy merchants with novel exactions of tolls and taxes, let him be deprived of christian communion until he has made satisfaction."
Again, as we read in the same causa and quaestio, c. Itaque, we find the following from the council of Agatensis [c.20, col.996], "And so we have considered that murderers and false witnesses should be removed from ecclesiastical communion unless they have cleansed themselves of the crimes committed by the reparation of penance." It is clear from these [last two] that those seizing even laymen, despoilers who annoy merchants without just cause by tolls and taxes, murderers and false witnesses are punished by an ecclesiastical judge, and yet it is certain that those are secular crimes.
Again, an ecclesiastical judge punishes arsonists (23, q. 8, c. Pessimam [c.32, col.964]). He also punishes those who kill their own children (Extra, De iis qui filios occiderunt, c. De infantibus [c.3, col.793]), and those who engage in tournaments (Extra, De torneamentis c. Felicis [c.1, col.804] and c. Ad audientiam [c.2, col.804] and archers (Extra, De sagittariis, c. 1, [col.805]) and debauchery (Extra, De adulteriis et stupro, c. 1 [col.805], and adultery (throughout the same titulus), and abductors (Extra, De raptoribus, c. 1 [col.808), and yet these are all secular crimes. Secular crimes, therefore, should be punished by an ecclesiastical judge.
This also seems provable from texts of divine scripture. For Truth himself says in Matthew 18:15-7, "If your brother sins against you, go and point out the fault when the two of you are alone. If he listens to you, you have regained your brother. But if you are not listened to, take one or two others along with you, so that every word may be confirmed by the evidence of two or three witnesses. If he will not listen to them, tell it to the church. If he refuses to listen even to the church, let him be to you as a gentile and a tax gatherer." We gather from these words that it pertains to the church to correct every christian even for sins which are committed against a neighbour and which are certainly secular.
Again, in 1 Cor. 6:3 the apostle rebuked the Corinthians because they were litigating before unbelieving judges who were secular and because they were abandoning the judgement of the church which ought to judge between brother and brother even about secular matters. He said, "Do you not know that we are to judge angels - to say nothing of secular matters?" Therefore it pertains to an ecclesiastical judge to judge concerning secular matters, and consequently criminals should be punished by an ecclesiastical judge even for secular crimes.
William of Ockham, Dialogus,
part 3, tract 2, book 2.
Text and translation by John Scott.
Copyright (c) 1999, The British Academy