robbers, tors, ra "the like 8. But in case men were guilty of crimes of a more heinous Fifthly, nature, such as theft and robbery, or treason and conspiracy murderers, against the government, or murder and bloodshed, or ravish- conspiraing of virgins, or adultery, or any crimes of the like nature, vishers of then it mattered not whether the criminals were bond or free, virgins, adulterers, there was not an hour's respite allowed to such men; but they and other were to be taken immediately, by force of the civil magistrate, criminals of if need required, even from the very altar; or, if they pre- nature. tended to make any resistance with arms, they might, with indemnity, be slain there. This is undeniably evident from the laws of Justinian, which specify these, and all such criminals, as excepted universally from all benefit of sanctuary; it being 75 wholly against the intent and design of that privilege to give any protection to murderers, adulterers, ravishers of virgins, or any the like, but rather to the innocent and injured parties, who were exposed to their violence and abuses. Temples were never designed by law to give sanctuary both to the passive and the aggressors; and therefore, if any that were guilty of such crimes fled to the altar for refuge, they should be drawn thence, and punished, according to law, with punishments suitable to their offences. This one law of Justinian's shews us plainly the true intent and meaning of all other ancient laws relating to this privilege of sanctuary; that the design of them, as I observed before, was chiefly to protect the innocent, the injured, and oppressed, from violence, and, in some hard or dubious cases, to grant a little respite, till a fair hearing might be procured, or some intercession made to the judges, by the bishop or clergy, for such persons as might seem to want it. And so Gothofred 76, upon the doribus excitatus rixam verborum usque ad nefarium collegæ deduxit interitum; sed conscius facti sui, intra ecclesiæ septa refugiens, declinare se credidit præscriptam legibus ultionem, Vulcaniæ insulæ perpetua relegatione damnavit. 75 Vid. Justin. Novel. 17. c. 7. (t. 5. p. 132.) Neque autem homicidis, neque adulteris, neque virginum raptoribus, [vel talia] delinquentibus, terminorum custodies cautelam sed etiam inde extrahes, et supplicium eis inferes. Non enim : talia delinquentibus parcere compe- 76 In Cod. Theod. 1. 9. tit. 45. A just re on the great modern ing men ment, and civil laws. 6 whole matter, determines, that anciently legal refuge was no more but the clergy's deprecation or intercession for men in distress and such as they might laudably and decently intercede for, they might, for some time, legally protect from violence and torture in the church; but not obstruct the due execution upon other sort of criminals, for which it was scandalous to intercede. 9. In which respect most of the modern sanctuaries have flection up- been complained of by considering men as guilty of great abuse of abuses, in giving protection almost to all sorts of criminals, sanctuaries, and so encouraging the practice of villany, by exempting men in exempt from legal punishment, and enervating the force of civil laws. from legal For the canon law of Gratian and the Popes' Decretals grant punishprotection to all criminals, except night-robbers, and robbers enervating on the highway, and such as commit enormous crimes in the the force of church itself upon presumption of its protection. But all other criminals have liberty of taking sanctuary, and it is reckoned a violation of the immunities of the Church to take them thence, unless a promise or an oath be first given, that neither death, nor any corporal punishment, but only a pecuniary mulct, shall be inflicted on them, as Pope Innocent III. determined in one of his letters to the King of Scots, which Gregory IX. inserted into the body of his Decretals 77. The Council of Orleans has some canons 78 to the same purpose, which, though contrary to all other ancient laws, Gratian 79 77 L. 3. tit. 49. de Immunit. Eccles. c. 6. (ap. Corp. Jur. Canon. t. 2. p. 1405. 40.) Si liber quantumcunque gravia maleficia perpetraverit, non est violenter ab ecclesia extrahendus: nec inde damnari debet ad mortem vel ad pœnam, sed rectores ecclesiarum sibi obtinere debent membra et vitam. Super hoc tamen, quod inique fecit, est alias legitime puniendus. 78 C. Aurelian. I. c. 2. (t. 4. p. 1405 a.) De raptoribus id custodiendum esse censuimus, ut si ad ecclesiam raptor cum rapta confugerit, et fœminam ipsam violentiam pertulisse constiterit, statim liberetur de potestate raptoris, et raptor, mortis vel pœnarum impunitate concessa, aut serviendi conditioni subjectus sit, aut redimendi se liberam habeat facultatem, &c.—Ibid. c. 3. (b.) Servus, qui ad ecclesiam pro qualibet culpa profugerit, si a domino pro admissa culpa sacramenta susceperit, statim ad servitium domini sui redire cogatur; sed posteaquam datis a domino sacramentis fuerit consignatus, si aliquid pœnæ pro eadem culpa, qua excusatur, probatus fuerit pertulisse, pro contemptu ecclesiæ et prævaricatione fidei, a communione et convivio catholicorum, sicut superius comprehensum est, extraneus habeatur. Sin vero servus pro culpa sua ab ecclesia defensatus sacramenta domini, clericis exigentibus. de impunitate perceperit, exire nolentem a domino liceat occupari. 79 Caus. 17. quæst. 4. c. 36. (t. I. p. 1191. 22.) Servus etiam, qui, &c. thought fit to adopt into his own collections. And so the modern Canon Law, under pretence of ecclesiastical immunities, opened a wide gap to licentiousness, by taking off those restraints which the ancient laws had justly set upon this matter, when they granted refuge to innocent and injured men, but not to notorious criminals; which difference is not only noted and complained of by all Protestant writers, but also by some of the Romish Church. Polydore Vergil so makes no scruple to condemn them all over the Christian world, but more especially here in England, where protection was given, not to the innocent and oppressed, but to all sorts of criminals, such as were guilty of treason and rebellion not excepted. Whence he thinks it very apparent, that the thing, as then practised, was not to be derived from Moses, who allowed refuge to none, but such as killed a man unawares and against their will, but from Romulus. Which was the cause that so many villains took heart and encouragement to practise wickedness, there being churches every where ready to receive and protect them; though nothing was more directly contrary to the establishment of Moses, whose law was guarded by this sanction, (Exod. 21, 14.) "If a man come presumptuously upon his neighbour, to slay him with guile, thou shalt take him from my altar, that he may die." This was the difference, in the opinion of that author, between the modern sanctuaries and those of Moses and the ancient Church. be observed fled for 10. There is one thing more to be observed concerning the Conditions privilege of sanctuary in the laws of the ancient Church; anciently to which is, that such persons as were allowed this benefit were by such as obliged to observe certain conditions in taking refuge, other- sanctuary. wise they forfeited all their right and title to it. As, first, First, No they were not to fly with arms into the church, nor into any with arms place or building adjoining to it, as the gardens, houses, into the courts, cloisters, to which the privilege of sanctuary was -Caus. 36. quæst. 1. c. 3. (ibid. p. 1879. 49.) De raptoribus autem, &c. 80 De Invent. Rer. 1. 3. c. 12. (p. 250.) Sunt hodie in orbe nostro Christiano, præsertim apud Anglos, passim asyla, quæ non modo insidias timentibus, sed quibusvis sontibus, etiam majestatis reis patent: quod facit ut manifeste appareat, one to fly church. Secondly, No one to raise a se annexed. This is particularly specified and provided by a law of Theodosius Junior 81, which has this sanction added to it, that if any one pretended to act otherwise, and, being admonished by the Church, refused to lay aside his arms, that then it should be lawful for the magistrate, by the consent of the bishop, to send his officers, with arms, into the church, upon such an exigency, and take him thence by force; and if the refugee still persisted in his opposition, and chanced to be slain in the engagement $2, it was to be reckoned purely his own fault, and no violation of the Church's privilege, in that case; because he refused to observe this necessary condition of safety.' The Emperors themselves laid aside their arms and crowns when they entered into the church; and therefore Theodosius 83 argues, that it was but reasonable all refugees should do the same, and trust only to the laws and sacredness of the place for their protection. 11. A second condition to be observed in this case was, that men should betake themselves silently and modestly to the ditious cla- church, and not, by any rude and indecent clamours, endeamult, as he vour to raise any popular tumult. Learned men collect this fled thither. from a law, in the Greek Constitutions and the Justinian Code 84, mour or tu which forbids refugees to make any clamorous petitions to the Emperor on such festivals, as he came to the great church; but if they had any request to be preferred, they should do it privately, by the archbishop or defensors of the church: otherwise they should forfeit their privilege, and be cast out of 81 Cod. Theod. 1. 9. tit. 45. De his, qui ad eccles. confug., leg. 4. (t. 3. p. 363.) Sed si, ecclesiæ voce moniti... noluerint arma relinquere, jam clementiæ nostræ apud Deum et episcoporum causa purgata, armatis, si ita res exegerit, intromissis, trahendos se abstrahendosque esse cognoscant, et omnibus casibus esse subdendos. 82 [Leg. 5. (p. 372.)... Si armorum fiducia resistendi animos, insania impellente, conceperit, abstrahendi abripiendique eum domino, quibus potest id efficere viribus, concedatur. Quod si illum etiam confici in concertatione pugnaque contigerit, nulla ejus erit noxa, nec conflandæ crimi nationis relinquetur occasio: is, qui ex statu servili in hostilis et homicidæ conditionem transivit, occisus sit. Grischov.] 83 Edict. Theod. ad calc. C. Ephes. cited before, ch. 10. s. 8. n. 8, preceding. 84 L. 1. tit. 12. De his, qui ad eccles. confug., leg. 8. (t. 4. p. 212.) Ο, τοῦ βασιλέως εἰς τὴν μεγάλην ἐκκλησίαν ἐν ἑορτῇ προϊόντος, ἐκβοή σεσι χρώμενος, ἐκπίπτει τοῦ πράγ ματος, καὶ διὰ τοῦ ἐπάρχον ἐκβαλλόμενος σωφρονίζεται· ὁ δὲ διὰ δυνατὸν πρόσωπον τῇ ἐκκλησίᾳ προσφεύγων διδασκέτω τὴν βασιλείαν διὰ τοῦ πατριάρχου καὶ τῶν ἐκκλησiekdikwv. the church, and be delivered over to the city magistrate, to be punished. one to eat but to be ward build 12. Thirdly, though refugees might fly to the church, and Thirdly, No even to the very altar, yet they were neither to eat nor lodge or lodge in there; but the clergy were obliged to prohibit them from the church, doing either of these by an express law of Theodosius Junior 84, entertained who, to cut off all pretences for the contrary practices, as if in some outmen could not be safe but within the walls of the church, made ing. not only the church and the altar places of refuge, but all other buildings and places belonging to the church; giving this reason for allowing such an ample space for the benefit of sanctuary, that men might not have the excuse of fear to make them eat or lodge in the church, which he thought to be the things not so decent in their own nature, nor agreeable to the state of religion, and the respect and reverence that was due to churches, as places appropriated to God, and set apart for his service.' 84 Cod. Theod. 1. 9. tit. 45. De his, qui ad eccles. confug., leg. 4. (t. 3. p. 363.) Pateant summi Dei templa timentibus: nec sola altaria et oratorium templi circumjectum, qui ecclesias quadripertito intrinsecus parietum septu concludunt, ad tuitionem confugientium sancimus esse proposita: sed usque ad extremas fores ecclesiæ, quas oratum gestiens populus primas ingreditur, confugientibus oram salutis esse præcipimus: ut inter templi quod parie tum descripsimus cinctu, et post |