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.) Quinta die concessam esse ab eodem imperatore immunitatem ecclesiis, ibi [in Actis Sylvestri] traditur, ut ad eas confugientes securi in omnibus essent. 34 Conat. Chronico-Histor. dissert. 8. n. 4 et seqq. (p. 49.) Porro ipse Rasponus, relaturus verba Sylvestro ascripta, &c. 35 Crit. in Baron. an. 315. n. 4. (t. 1. p. 378.) Narrant Acta St. Sylvestri factam hoc anno Romæ synodum, cui diversarum provinciarum episcopi, numero 75, interfuerint, et Helenam tunc adhuc Gentilem, sed a Judais pene Judæam effectam, Constantinum flium ad Judæorum religionem amplectendam invitasse. Quæ similiave narrasse, confutasse est. Quis enim sibi persuadeat, in unum concilium convenisse Christianorum antistites, et Judzorum sacerdotes ad disputationem de religione ineundam? Quos duodecim Rabbinos ab Isachar summo sacerdote delectos sibi fingat, qui contra Christianam fidem disputarent; quum a tempore excidii Hierosolymitani desierint creari summi pontifices. Quare S. Sylvestri Acta plane supposititia esse minime dubitandum. 36 Orat. 20. de Laud. Basil. (t. I. p. 353 c.) Fvvaîká riva тŵv éπipavŵv ἐξ ἀνδρὸς οὐ πρὸ πολλοῦ τὸν βίον ἀπολιπόντος ὁ τοῦ δικαστοῦ σύνεδρος ἐβιάζετο, πρὸς γάμον ἕλκων ἀπαξιοῦσαν· ἡ δὲ, οὐκ ἔχουσα ὅπως διαφύγῃ τὴν τυραννίδα, βουλὴν βουλεύεται, οὐ τολμηρὰν μᾶλλον ἢ συνετὴν, τῇ ἱερᾷ τραπέζῃ προσφεύγει, καὶ Θεὸν ποιεῖται προστάτην κατὰ τῆς ἐπηρείας. Τί οὖν ἔδει ποιεῖν, ὦ πρὸς τῆς Τριάδος αὐτῆς ἵν ̓ εἴπω τι καὶ δικανικώς μετ ταξὺ τῶν ἐπαίνων· μὴ ὅτι τὸν μέγαν At first only the altar and of the 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. 2. Here we are next to examine what part of the church was more peculiarly assigned to be the place of sanctuary inner fabric and refuge. Gothofred thinks, that at first only the inner church the buildings and apartments of the church, and especially the place of re- altar, were the places of refuge; whence in Synesius 39, and fuge; but afterwards other ancient writers, the altar is so frequently called ǎovλos any outer Tрánea, the table from which no one could be ravished or precincts of taken away. But whether this was originally so or not, it is buildings or Βασίλειον, καὶ τῶν τοιούτων ἅπασι 87 Vit. Ambros. p. 9. (præfix. append. t. 2. p. 9 d.) Obsecratus est primo scriptis imperatorem misso diacono: postea vero quam directus est Joannes, tunc tribunus et nota rius, qui nunc præfectus est, ad tuitionem eorum, qui ad ecclesiam confugerant, etiam ipse Aquileiam perrexit, precaturus pro eis. 38 Ep. 33. [al. 20.] ad Marcellin. t. 2. p. 854 c. n. 8.) Si patrimonium petitur, invadite: si corpus, occurram. Vultis in vincula rapere ? vultis in mortem ? voluptati est mihi. Non ego vallabor circumfusione populorum, nec altaria tenebo, vitam obsecrans, sed pro altaribus gratius immolabor. 39 Ep. 58. p. 193. (p. 201 c. 8.) Ἀλλ ̓ ὅτι πρῶτος παρ' ἡμῖν καὶ μόνος ἔργῳ καὶ λόγῳ τὸν Χριστὸν ἐβλασφήμησεν· ἔργῳ μὲν, ἀφ ̓ οὗ τῇ θύρᾳ τῆς ἐκκλησίας προσεπαττάλευσεν ἑαυτοῦ διατάγματα· τοῖς μὲν ὑπ ̓ αὐτοῦ παρανομουμένοις, τῆς ἀσύλου τραπέζης ἀποkλeiwv Tηy iKETEίav. certain that, in the time of Theodosius Junior, these limits for the church invested taking sanctuary were enlarged: for in one of his laws now with the extant in both the Codes 4o, not only the altar and the body of same privilege. 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 qui ad ecclesias confugiunt, leg. 4. (t. 3. p. 363.) Inter templi [templum], quod parietum descripsimus cinctu, et post loca publica, et januas primas ecclesiæ, quicquid fuerit interjacens, sive in cellulis, sive in domibus, hortulis, balneis, areis, atque porticibus, confugas interioris templi vice tueatur, &c.-Conf. Cod. Justin. 1. 1. tit. 12. leg. 3. (t. 4. p. 207. Latine.) Pateant Summi Dei templa timentibus, &c. 4i Breviar. c. 15. (t. 5. p. 763 e.) Et ante triduum Paschæ, quo cœna Domini celebratur, ab ipsis turbis concluditur in ecclesia sanctæ memoriæ Proterius, quo se timore contulerat, ibique eadem die in baptisterio occiditur, laniatur, ejicitur, et funus ejus incenditur, sparguntur et cineres ejus in ventos. 42 L. 2. c. 8. [leg. 3.] (v. 3. p. 299. 35.) Οὐδὲν ἕτερον ἦν ποιεῖν τὸν μακάριον ἐκεῖνον [Προτέριον] ἢ τόπον δοῦ ναι τῇ ὀργῇ κατὰ τὸ γεγραμμένον, καὶ τὸ σέπτον καταλαβεῖν βαπτιστήριον, φεύγοντα τῶν ἐπ ̓ αὐτῷ τρεχόντων πρὸς φόνον τὴν ἔφοδον ἐν ᾧ τόπῳ καὶ βαρβάροις καὶ πᾶσιν ἀγρίοις ἀνθρώποις ἐγγίνεται δέος, τοῖς καὶ μὴ εἰδόσι τὸ σέβας τοῦ τόπου, καὶ τὴν ἐκεῖθεν βρύουσαν χάριν ὅμως οἱ τὸν ἐξ ἀρχῆς Τιμοθέου σκοπὸν εἰς ἔργον προαγαγεῖν σπουδάζοντες, οἱ μηδὲ ἐν τοῖς ἀχράντοις ἐκείνοις σηκοῖς αὐτὸν ἀνεχόμενοι σώζεσθαι, οὔτε τὸ σέβας αἰδεσθέντες τοῦ τόπου, οὔτε τὸν και ρόν ἦν γὰρ τοῦ σωτηρίου Πάσχα πανήγυρις οὔτε τὴν ἱερωσύνην αὐτὴν φρίξαντες μεσιτεύουσαν Θεῷ καὶ ἀνθρώποις, ἀποκτείνουσι τὸν ἀνεύθυνον, σφάττουσιν αὐτὸν ἀπηνῶς μετὰ καὶ ἄλλων ἕξ· καὶ παραγαγόντες τούτου τὸ λείψανον πανταχοῦ κατατετρωμένον, ὁμῶς τε περισύραντες κατὰ πάντα σχεδὸν τόπον τῆς πόλεως, καὶ καταπομπεύσαντες σχετλίως, ᾐκίζοντο ἀνηλεῶς τὸ τῶν πληγῶν οὐκ αἰσθανόμε νον σῶμα διάτομόν τε καταμέλος, καὶ οὐδὲ τῶν ἔντος ἀπογεύεσθαι κατὰ τοὺς θῆρας φειδόμενοι ἐκείνου, ὃν ἔχειν μεσίτην Θεοῦ καὶ ἀνθρώπων ἔναγχος ἐνομίσθησαν· πυρί τε παραδόντες τὸ ὑπολειφθὲν αὐτοῦ σῶμα, τὴν ἐκ τούτου κόνιν τοῖς ανέμοις παρέπεμπον, θηρίων πᾶσαν ὑπερακοντίσαντες ἀγριότητα. 43 Ad Calc. C. Chalced. n. 22. (CC. t. 4. p. 894 b.). . . Percusserunt inculpabilem vivum, eumque crudeliter occiderunt, &c. What persons allow 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 Elurus, 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 44; 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 pered 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 47 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 statuas imperatorum confugiunt. (t. 3. p. 356.) Eos, qui ad statuas, &c. 45 De Asylis, c. 3 tot. (pp. 19, seqq.) De locis privilegiatis. 46 Orat. 20. de Laud. Basil. See note 36, preceding. 47 Ep. 58. See note 39, preceding. 48 Cod. Theod. 1. 9. tit. 45. De his, qui ad Eccles. confug., leg. 3. (t. 3. p. 361.) Si quis in posterum servus, ancilla, curialis, debitor publicus, procurator, murilegulus, quilibet postremo publicis privatisque rationibus involutus, ad ecclesiam confugiens, vel clericus ordinatus, vel quocumque modo a clericis fuerit defensatus, nec statim conventione præmissa pristinæ conditioni reddatur, 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 functio vocat, vigore et solertia judicantium ad pristinam sortem, velut manu mox injecta, revocentur : quibus ulterius legem prodesse non patimur, quæ, cessione patrimonii subsequuta, decuriones esse clericos non vetabat. Sed etiam ii, quos œconomos vocant, (hoc est, qui ecclesiasticas consueverunt tractare rationes,) ad eam debiti, vel publici vel privati, redhibitionem, amota dilatione, cogantur, in qua eos obnoxios esse constiterit, quos clerici defensando receperint, nec mox crediderint exhibendos, &c. 49 Ibid. tit. 40. de Pœnis, leg. 17. (p. 312.) Omnes res Eutropii, &c. 50 Justin. Novell. 17. c. 6. (t. 5. p. 132.) Sed neque hæc, quæ dicuntur, verba, id est, jusjurandum prompte dare festines, aut amplius tempus: sed et cum examinatione in tempore mediocri, et non transcendente triginta dierum inducias, ne ex hoc infinitæ sint hominibus adinvicem contentiones, &c. 51 De Priscis Legibus Anglorum, p. 28. (ad calc. Bedæ Hist. Cantabr. 1643. append. p. 23. c. 1. leg. 2.) De immunitate templi. Criminis cujuscunque noxius... si ad fanum confugerit, tres noctes, quibus salute suæ prospiciat, (ni interim in gratiam redierit,) ibi maneto. [Conf. ibid. leg. 5. (p. 24.) De sacrarum ædium immunitate, allowing seven days in certain cases Unicuique porro templo religiose ab episcopo consecrato hanc pacem concedimus. Si quis alteri inimicatur, isque templi suffugium implorarit, per septem dies a nemine abstrahitor, &c. ED.] |