« ForrigeFortsett »
order to obtain and enjoy it. And therefore under these four heads we will briefly consider it.
As to the original of it, there is no dispute made by any author, but that it began to be a privilege of churches from the time of Constantine, though there are no laws about it older than Theodosius, either in the Justinian or the Theodosian Code. But the law of Theodosius is sufficient evidence itself, that it was the custom or practice of the Church before; for his law was not made to authorize the thing itself, but to regulate some points relating to it, which supposes the thing to be in use before. But whether Constantine made any law to establish it, it is very much doubted by learned men. Baronius 33 affirms it upon the credit of the Acts of Pope Sylvester ; but those are known to be spurious and forged writings, no older than the ninth or tenth age, by the acknowledgment of Papebrochius 34 and Pagi 35, who have accurately examined and refuted Baronius's vindication of them. However, Gothofred allows what seems to be the truth of the case, that practice and custom established this privilege by degrees, even from the time of Constantine; for before Theodosius made any law about it, the thing was certainly in use in the church, as appears from the account which Gregory Nazianzen gives of it in the Life of Basil 36, where he tells us, how St. Basil
33 An. 324. n. 61. (t. 3. p. 257 a.) sacerdotes ad disputationem de reliQuinta die concessam esse ab eodem gione ineundam? Quos duodecim imperatore immunitatem ecclesiis, Rabbinos ab Isachar summo saceribi (in Actis Sylvestri] traditur, ut dote delectos sibi fingat, qui conad eas confugientes securi in omni- tra Christianam fidem disputarent; bus essent.
quum a tempore excidii Hieroso34 Conat. Chronico-Histor. dis- lymitani desierint creari summi ponsert. 8. n. 4 et seqq. (p. 49.) Porro tifices. Quare S. Sylvestri Acta plane ipse Rasponus, relaturus verba Syl- supposititia esse minime dubitanvestro ascripta, &c.
dum. 35 Crit. in Baron. an. 315. n. 4.
36 Orat. 20. de Laud. Basil. (t. 1. (t. 1. p. 378.) Narrant Acta St. Syl. P. 353 c.) Tuvaiká riva Tv émipavwv vestri factam hoc anno Rome syno- εξ ανδρός ου προ πολλού τον βίον dum, cui diversarum provinciarum απολιπόντος και του δικαστου σύνεδρος episcopi, numero 75, interfuerint, éßiátero, pòs yapov čakwv åtagiouet Helenam tunc adhuc Gentilem, σαν ή δε, ουκ έχουσα όπως διαφύγη sed a Judeis pene Judeam effectarm, την τυραννίδα, βουλήν βουλεύεται, ου Constantinum filium ad Judaeorum τολμηράν μάλλον ή συνετήν, τη ιερα religionem amplectendam invitasse. τραπέζη προσφεύγει, και θεόν ποιείQuæ similiave narrasse, confutasse ται προστάτην κατά της επηρείας. Τί est. Quis enim sibi persuadeat, in oύν έδει ποιείν, ώ πρός της Τριάδος unum concilium convenisse Chris- αυτής ίν' είπω τι και δικανικώς μεtianorum antistites, et Judaeorum ταξύ των επαίνων" μη ότι τον μέγαν
protected a widow, who fled to the altar, against the violence that was offered to her by the governor of Pontus. The like is reported of St. Ambrose in his Life written by Paulinus 37, and St. Ambrose himself speaks of the custom in one of his Epistles 38, where, in answer to the Emperor Valentinian Junior, who had commanded him to deliver up one of the churches of Milan to the Arians, he tells him, that was a thing he could never obey him in; but if he commanded him to be carried to prison or to death, that he would voluntarily submit to, and neither use force to defend himself, nor fly to the altar to supplicate for his life. These and some other such-like instances shew, that the churches enjoyed this privilege by ancient custom, before Theodosius made any law about it; which he did first, anno 392, not to authorize the thing, but to explain and regulate some things relating to it, of
which more by and by in their proper place. At first 2. Here we are next to examine what part of the church only the
was more peculiarly assigned to be the place of sanctuary inner fabric and refuge. Gothofred thinks, that at first only the inner of the church the buildings and apartments of the church, and especially the place of re- altar, were the places of refuge; whence in Synesius 39,
39, and fuge; but afterwards other ancient writers, the altar is so frequently called šovios any outer Tpáteca, the table from which no one could be ravished or
or precincts of taken away. But whether this was originally so or not, it is
Βασίλειον, και των τοιούτων άπασι rius, qui nunc prefectus est, ad
έργω και λόγω τον Χριστόν έβλασφή37 Vit. Ambros. p. 9. (prefix. ap- μησεν έργω μεν, αφ' ου τη θύρα της pend. t. 2. p. 9.d.) Obsecratus est ekkinoias apogenattálevoev éautou primo scriptis imperatorem misso διατάγματα τους μεν υπ' αυτού παραdiacono: postea vero quam directus νομουμένοις, της ασύλου τραπέζης αποest Joannes, tunc tribunus et nota- Kleiwv onu iketelav.
certain that, in the time of Theodosius Junior, these limits for the church taking sanctuary were enlarged: for in one of his laws now with the extant in both the Codes 40, not only the altar and the body of same pri
vilege. the church, but all between the church and outward walls, that is, houses and lodgings of the bishop and clergy, gardens, baths, courts, cloisters, are appointed to enjoy the same privilege of being a sanctuary to such as fled for refuge, as well as the innermost part of the temple. Particularly the baptisteries, which, as I have shewed before, were places without the church, were invested with this privilege equally with the altar. For Proterius, bishop of Alexandria, as Liberatus 41 and Evagrius 42 report, took sanctuary in the baptistery of the church, to avoid the fury of the Eutychian faction headed by Timotheus Ælurus; and though that was a place which even the barbarians themselves had some reverence for, yet, as the Egyptian bishops complain in their letter to the Emperor Leo 43, the malice of the Eutychians pursued him thither, and there slew him, mangled his body, dragged it about the streets, and at
40 Cod. Theod. 1. 9. tit. 45. De his ειδόσι το σέβας του τόπου, και την qui ad ecclesias confugiunt, leg. 4. εκείθεν βρύουσαν χάριν όμως οι τον (t. 3. p. 363.) Inter templi [templum], εξ αρχής Τιμοθέου σκοπόν εις έργον quod parietum descripsimus cinctu, προαγαγείν σπουδάζοντες, οι μηδε εν et post Ioca publica, et januas pri- τοις αχράντοις εκείνοις σηκοϊς αυτόν Imas ecclesiae, quicquid fuerit inter- ανεχόμενοι σώζεσθαι, ούτε το σέβας jacens, sive in cellulis, sive in dormi- αιδεσθέντες του τόπου, ούτε τον καιbus, hortulis, balneis, areis, atque ρόν ήν γάρ του σωτηρίου Πάσχα porticibus, confugas interioris tem- πανήγυρις ούτε την ιερωσύνην αυτήν pli vice tueatur, &c.-Conf. Cod. φρίξαντες μεσιτεύουσαν θεό και ανJustin. 1. 1. tit. 12. leg. 3. (t. 4. p. θρώποις, αποκτείνουσι τον ανεύθυνον, 207. Laline.) Pateant Summi Dei σφάττουσιν αυτόν απηνώς μετά και templa timentibus, &c.
άλλων έξ και παραγαγόντες τούτου το 41 Breviar. c. 15. (t. 5. p. 763 e.) λείψανον πανταχού κατατετρωμένον, Εt ante triduum Pasche, quo cena όμως τε περισύραντες κατά πάντα Domini celebratur, ab ipsis turbis σχεδόν τόπον της πόλεως, και καταconcluditur in ecclesia sancte me- πομπεύσαντες σχετλίως, ηκίζοντο άνmorie Proterius, quo se timore con- ηλεώς τό των πληγών ουκ αισθανόμεtulerat, ibique eadem die in baptiste- νον σώμα διάτoμόν τε καταμέλος, και rio occiditur, laniatur, ejicitur, et ουδε των έντος απογεύεσθαι κατά τους funus ejus incenditur, sparguntur et θήρας φειδόμενοι εκείνου, όν έχειν cineres ejus in ventos.
μεσίτην θεού και ανθρώπων έναγχος 42 L. 2. c. 8. [leg. 3.] (ν. 3. p. 299. ένομίσθησαν πυρί τε παραδόντες το 38.) Ουδέν έτερον ήν ποιείν τον μακά- υπολειφθέν αυτού σώμα, την εκ τούριον εκείνον [Προτέριον] ή τόπον δου- του κόνιν τους ανέμους παρέπεμπον, ναι τη οργή κατά το γεγραμμένον, και θηρίων πάσαν υπερακοντίσαντες άγριτο σέπτον καταλαβείν βαπτιστήριον, ότητα. φεύγοντα των επ' αυτώ τρεχόντων
43 Ad Calc. C. Chalced. n. 22. πρός φόνον την έφοδον έν ο τόπο (CC. t. 4. p. 894 b.)... Percusserunt και βαρβάροις και πάσιν αγρίους άν- inculpabilem vivum, eumque
crudeθρώποις εγγίνεται δέος, τους και μη liter occiderunt, &c.
last burnt it to ashes, and scattered his ashes in the wind : for which unparalleled barbarity committed against the laws of religion, the Emperor Leo deposed Timotheus Ælurus, and sent him into banishment all his life. There were a great many other places, which had this privilege of sanctuary also beside churches, as the statues of the Emperors, of which there is a particular title in the Theodosian Code '; also the Emperor's standard in the camp, the bishop's house, the graves and sepulchres of the dead, together with the cross, schools, monasteries, and hospitals in after-ages: of which, being all foreign to the business of churches, I say nothing further, but refer the curious reader to the elaborate treatise of Rittershusius 45
upon this subject, among the London Critics, where each of these and some other privileged places are particularly considered.
3. Next to the places of refuge, we are to consider the persons allowed to take sons to whom this benefit extended, and in what cases they sanctuary. were allowed to take sanctuary in their churches. For this
privilege anciently was not intended to patronise wickedness, or shelter men from the due execution of justice, or the force of the laws in ordinary cases; but chiefly to be a refuge for the innocent, the injured, and oppressed. Or in doubtful causes, whether criminal or civil, only to give men protection so long, till they might have an equitable and fair hearing of the judges, and not be proceeded against barbarously and rigorously under pretence and colour of justice; or at most, only to give bishops opportunity to intercede for criminals and delinquents in such cases, as it was both becoming and lawful for bishops to turn intercessors. These were the sanctuaries which Basil 46 pleaded for against the governor of Pontus, and Synesius 17 against Andronicus, governor of Ptolemais, and Chrysostom against Eutropius, who had prevailed with Arcadius to abrogate by law all privileges 48 of this nature belonging to the Church; but by
44 L. 9. tit. 44. De his, qui ad sta- p. 361.) Si quis in posterum servus, tuas imperatorum confugiunt. (t. 3. ancilla, curialis, debitor publicus, p. 356.) Eos, qui ad statuas, &c. procurator, murilegulus, quilibet
45 De Asylis, c. 3 tot. (pp. 19, postremo publicis privatisque ratioseqq.) De locis privilegiatis. nibus involutus, ad ecclesiam con
46 Orat. 20. de Laud. Basil. See fugiens, vel clericus ordinatus, vel note 36, preceding.
quocumque modo a clericis fuerit 47 Ep. 58. See note 39, preceding. defensatus, nec statim conventione
48 Cod. Theod. l. 9. tit. 45. De his, præmissa pristinæ conditioni reddaqui ad Eccles. confug., leg. 3. (t. 3. tur, decuriones quidem et omnes,
God's providence, he was the first man that wanted this privilege, being fallen under the Emperor's displeasure, and forced to fly to the altar for that refuge, which he had denied to others. This gave Chrysostom occasion to make that eloquent and curious oration upon his case, whereby he artfully wrought the people into a tender compassion for their bitterest enemy, that they might go and supplicate the Emperor for him, who now lay prostrate at the altar ; and by their supplications they obtained his life, for the sentence of death was mitigated and turned into confiscation and banishment only 49, though afterward by treachery he lost his life. These were chiefly the cases which the ancient privilege of sanctuary respected, and · commonly thirty days' protection was granted to men in such pitiable circumstances, which term was thought sufficient by the law 50 to end any controversies that such men might have before the civil judges : though the Saxon law of King Alfred allowed but three days' time for this, as both Rittershusius and Gothofred have observed out of Lambard's 51 account of our ancient English and Saxon laws. During this time they were maintained by the Church, if they were poor, out of the revenues of the poor; but if they were able to subsist themselves, it was sufficient for the Church to grant them her protection, and that only in the forementioned cases, and no other.
quos solita ad debitum munus func- tempus : sed et cum examinatione tio vocat, vigore et solertia judican- in tempore mediocri, et non trantium ad pristinam sortem, velut ma- scendente triginta dierum inducias, nu mox injecta, revocentur: quibus ne ex hoc infinitæ sint hominibus ulterius legem prodesse non pati- adinvicem contentiones, &c. mur, quæ, cessione patrimonii sub- 51 De Priscis Legibus Anglorum, sequuta, decuriones esse clericos non p. 28. (ad calc. Bedæ Hist. Cantabr. vetabat. Sed etiam ii, quos æcono- 1643. append. p. 23. c. 1. leg. 2.) De mos vocant, (hoc est, qui ecclesiasti- immunitate templi. Criminis cujuscas consueverunt tractare rationes,) cunque noxius ... si ad fanum conad eam debiti, vel publici vel pri- fugerit, tres noctes, quibus salute vati, redhibitionem, amota dilatione, suæ prospiciat, (ni interim in gratiam cogantur, in qua eos obnoxios esse redierit,) ibi maneto. (Conf.ibid. leg. constiterit, quos clerici defensando 5. (p. 24.) De sacrarum ædium imreceperint, nec mox crediderint ex- munitate, allowing seven days in cerhibendos, &c.
tain cases : Unicuique porro templo 49 Ibid. tit. 40. de Pænis, leg. 17. religiose ab episcopo consecrato hanc (p.312.) Omnes res Eutropii, &c. pacem concedimus. Si quis alteri
bỏ Justin. Novell. 17. c. 6. (t. 5. inimicatur, isque templi suffugium P. 132.) Sed neque hæc, quæ di- implorarit, per septem dies a nemine
a cuntur, verba, id est, jusjurandum abstrahitor, &c. Ed.] prompte dare festines, aut amplius