Written by Dr. Metelille, 1884
The right of sanctuary…
…that is, the protection secured to persons in danger who fled to certain sacred places, appears very early in history. In one limited form it was divinely sanctioned, under the Mosaic law, by the establishment of the six Cities of refuge, fleeing to which a man who had killed another unwittingly and without evil intention, was saved from the avenger of blood, but might not return home until the death of the High Priest. (See Numbers 35:9-29; Deuteronomy 19:1-10; Joshua 20.) No holy place, however, might shelter a willful murderer. (Exodus 21:14).
Two instances of another manner of seeking sanctuary, not expressly sanctioned by the Law, occur at the beginning of Solomon’s reign. “When Adonijah, after his attempted usurpation, ‘caught hold of the horns of the altar’ before the tabernacle; he received a sworn promise from the King of safety if he did not offend again; but Joab, as being a murderer, was put to death even at the altar. (1 Kings 1: 50-53; 2:28-34).
Among the Israeli test, therefore, the places of refuge were instituted solely for the safety of the innocent…
…but among the heathen nations the sacredness of a locality was in many cases allowed to shelter even criminals. A temple, altar, or precinct which gave such protection was called in Greek Asylon, meaning ‘free from violence or spoliation.’ To drag a fugitive from his asylum was looked upon, by the Athenians at least, as an unpardonable sacrilege. This we see by the lasting horror with which they regarded the family of the Alcmaenidae after they had killed the partisans of Cylon at the altars on the Acropolis. It was, however, sometimes thought lawful to blockade a temple and starve the fugitive till he surrendered or died, as in the case of Pausanias. Romulus was said to have established an asylum in his newly founded city to which the discontented fled from all the neighboring communities.
In later times, several temples and altars in Rome gave sanctuary, and, although Augustus and Tiberius tried to check the growing abuses of the practice, their edicts seem to have had no lasting result. After the imperial government became Christian, the right of taking sanctuary in churches grew up during the fourth century. An edict of Theodosius in 392 confirms and regulates it as an already established custom. According to the Theodosian code all churches alike could give sanctuary, but under these restrictions: the right was refused to those who defrauded the State of its dues, and to all guilty of heinous crimes; it was not in general allowed to fugitive slaves, except those that were Orthodox Christians, and to whom heretical masters tried by force to rebaptise. Justinian extended the privilege to slaves who could prove that their masters cruelly ill-treated them. In fact, the Christian right of sanctuary was not at first intended to interfere with the course of the law, but to shelter those in danger from sudden, arbitrary violence or from false accusations, and to give the clergy time to plead for justice and mercy. In this sense the right was upheld by St. Basil, St. Ambrose, and other eminent bishops, and when Eutropius, the Minister of Arcadius, after giving a cruel and unjust extension to the law of treason, tried to take away the right of sanctuary, he was strenuously opposed by St. Chrysostom. Shortly afterwards, Eutropius, cast down from his power, himself fled for safety to the altar of St. Sophia, and who can forget the striking scene that followed, when Chrysostom, braving the anger of court and people, vindicated the privilege of sanctuary on behalf of the fallen oppressor who had tried to abolish it? The after-fate of Eutropius shows, however, that unscrupulous rulers resorted to deceitful oaths in order to lure their victims from the asylum which they dared not violate openly.
Later on, we find the Patriarch Kyriakos withstanding the tyrant Phokas, when he tried to drag the widow and daughters of the Emperor Maurice from St. Sophia, and exacting from him an oath to spare their lives if they left the church, and Phokas did in fact leave them unmolested until he was able to accuse them of a fresh conspiracy against him. Turning to Gaul, under the Merovingians we, see how the right of sanctuary worked in a state of society where lawless wickedness, violence, and bloodthirstiness prevailed to an extent rarely equaled. The only check upon the ferocity of the Franks was their fear of miraculous vengeance if they violated the privileges of the Church; therefore the Gallican clergy upheld, the right of sanctuary without limit or restriction; every one, innocent or guilty, who fled to a church was safe as long as he chose to remain there, and in the numerous instances which Gregory of Tours records, we find examples both of the use and abuse of the privilege; sometimes it protected persons unjustly pursued by their enemies, or ladies in distress; sometimes it enabled the bishop to intercede successfully with the King for those who had offended him; but it also sometimes gave impunity to murderers, and there “were cases of wretches, like Fredegund and others, who continued their crimes while in sanctuary, and even maltreated the clergy who sheltered them. Very few instances are mentioned during this period of any one being violently taken from sanctuary, but some of the persons being decoyed by false promises.
Pope Boniface V, in 602, first expressly extended the right of sanctuary to criminals. Charles the Great, though at first he disallowed it in cases of capital crime, afterwards sanctioned it in the fullest extent. The abuses became so great, that both in the 13th and 15th centuries, various popes ordered restrictions of it. Francis I so narrowed it in France as to practically abolish it. In Germany it was taken away in Protestant states at the Reformation; in some Catholic ones not until the wars of the French Revolution.
In England sanctuary or the “frith” of a church was recognized by the laws of Ethelbert, and more definitely by those of Ina, which decreed that if one guilty of a capital crime took sanctuary his life should be safe, but he should pay amends according to law; a lesser offender should be pardoned altogether. Alfred and later kings confirmed these laws. The general form in which the privilege was allowed in England during the Middle Ages was as follows: –It was denied to habitual criminals, and forfeited by misconduct while in sanctuary; it lasted for forty days only, during that time the fugitive might either surrender to take his trial or go before the coroner and ‘abjure the realm,’ that is, swear to leave the kingdom straightway, and never return without royal licence. If he chose neither of these courses, it was felony to supply him with food after the forty days had expired. In certain churches, however, especially Westminster Abbey, the privilege was not limited by these restrictions. A good historical example of the working of the right is the case of Hubert de Burgh. When Henry III was, by ill-advice, incensed against this faithful minister, and accused him of embezzlement and disloyalty, Hubert fled to the church of Merton, afterwards to that of Boisars, in Essex; he was dragged from the altar by armed men sent by the king, yet when the Bishop of London threatened to excommunicate the authors of the outrage, Henry had to restore the captive to his refuge, but caused him to be closely watched, so that when the forty days were out Hubert, refusing to abjure the realm, was obliged to surrender himself prisoner. He again escaped, and all these proceedings were repeated, except that a party of his friends carried him away to Wales before he was driven to a second surrender.
In the Wars of the Roses, the right of the sanctuary was often resorted to, and by the Lancastrians it was generally religiously respected: thus Elizabeth Woodville and several of her husband’s friends remained unmolested in the precincts of Westminster during the six months of Henry VI’s restoration in 1470, but Edward IV was less scrupulous, and in spite of the promise wrung from him by a courageous priest, he caused the Lancastrian chiefs to be dragged from Tewkesbury Church and put to death, Elizabeth Woodville again fled to Westminster with her daughters and younger son, when Richard of Gloucester assumed the protectorship, but on that occasion the council decided that a child whom no one wished to hurt might not be detained in sanctuary from his lawful guardian, and obliged the queen to give up her son; a decision they soon had cause to repent. Elizabeth and her daughters did not leave the sanctuary until a year later, when Richard made oath that they should be safe.
On the whole, in the notable historical instances, the right of sanctuary in England certainly worked beneficially. Its effect in the case of common crimes is another question; on the one hand, it cannot be denied that it enabled many murderers to escape deserved punishment, but in the case of lesser offences, the banishment for years or for life which ‘abjuring the realm’ entailed, may often have been a sufficient penalty.
The chief abuses arose in permanent sanctuaries, such as Westminster, whence refugees sometimes sallied forth to commit fresh crimes, and then returned with impunity to their asylum. Henry VIII substituted confinement to a sanctuary for life instead of ‘abjuration of the realm,’ and abolished the privileges in cases of treason. Under James I the ecclesiastical right of sanctuary was abrogated; but the precincts of Whitefriars and the Savoy retained a right of sheltering debtors, and became a resort of villains of all kinds, until their immunity was taken away in the reign of William III. In times of settled Law and order the privilege of sanctuary became an anomaly, though it had often worked for good in wild and violent ages.