« ForrigeFortsett »
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,
robbers, against the government, or murder and bloodshed, or ravish- conspira
tors, raing of virgins, or adultery, or any crimes of the like nature,— vishers of then it mattered not whether the criminals were bond or free,
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, 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
criminals of the like
doribus excitatus rixam verborum talia delinquentibus parcere compeusque ad nefarium collegæ deduxit tit, sed hoc patientibus, ut non talia interitum; sed conscius facti sui, a præsumptoribus patiantur. Deinde intra ecclesiæ septa refugiens, decli- templorum cautela non nocentibus, nare se credidit præscriptam legibus sed læsis datur a lege, et non erit ultionem, Vulcaniæ insulæ perpetua possibile utrumque tueri cautela sarelegatione damnavit.
crorum locorum, et lædentem, et 75 Vid. Justin. Novel. 17. c. 7. (t. læsum. 5. p. 132.) Neque autem homicidis, 76 In Cod. Theod. 1. 9. tit. 45. neque adulteris, neque virginum leg. 5. (t. 3. p. 373. col. sinistr.) raptoribus, (vel talia] delinquenti- Nihil ad ecclesiam perfugium erat, bus, terminorum custodies caute- quam clericorum deprecatio seu inlam : sed etiam inde extrahes, et tercessio. supplicium eis inferes. Non enim
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 scan
dalous to intercede. A just re- 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, modern sanctuaries, and so encouraging the practice of villany, by exempting men in exempt- from legal punishment, and enervating the force of civil laws. ing men from legal For the canon law of Gratian and the Popes' Decretals grant ment, and protection to all criminals, except night-robbers, and robbers enervating on the highway, and such as commit enormous crimes in the the force of civil laws.
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 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 50 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.
de Immunit. Ec- facultatem, &c.-Ibid. c. 3. (b.) Sercles. c. 6. (ap. Corp. Jur. Canon. t. vus, qui ad ecclesiam pro quali2. p. 1405. 40.) Si liber quantum- bet culpa profugerit, si a domino cunque gravia maleficia perpetrave pro admissa culpa sacramenta suscerit, non est violenter ab ecclesia perit, statim ad servitium domini sui extrahendus: : nec inde damnari de- redire cogatur ; sed posteaquam datis bet ad mortem vel ad pænam, sed a domino sacramentis fuerit consigrectores ecclesiarum sibi obtinere natus, si aliquid pænæ pro eadem debent membra et vitam. Super culpa, qua excusatur, probatus fuhoc tamen, quod inique fecit, est erit pertulisse, pro contemptu ecclealias legitime puniendus.
siæ et prævaricatione fidei, a com78 C. Aurelian. I. c. 2. (t. 4. p. munione et convivio catholicorum, 1405 a.) De raptoribus id custodien- sicut superius comprehensuni est, dum esse censuimus, ut si ad eccle- extraneus habeatur. Sin vero sersiam raptor cum rapta confugerit, vus pro culpa sua ab ecclesia deet fæminam ipsam violentiam per- fensatus sacramenta domini, clericis tulisse constiterit, statim liberetur exigentibus, de impunitate percepede potestate raptoris, et raptor, mor- rit, exire nolentem a domino liceat tis vel pænarum impunitate conces- occupari. sa, aut serviendi conditioni subjectus 79 Caus. 17. quæst. 4. c. 36. (t. 1. sit, aut redimendi se liberam habeat p. 1191. 22.) Servus etiam, qui, &c.
10. There is one thing more to be observed concerning the Conditions privilege of sanctuary in the laws of the ancient Church ; anciently to
be observed which is, that such persons as were allowed this benefit were by such as
fled for obliged to observe certain conditions in taking refuge, other
sanctuary. wise they forfeited all their right and title to it. As, first, First, No
one to fly 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. I. c. 3. (ibid. p. quod facit ut manifeste appareat, 1879. 49.) De raptoribus autem, &c. nos id institutum non a Mose, qui
80 De Invent. Rer. 1. 3. c. 12. (p. illis duntaxat, qui nolentes hominem 250.) Sunt hodie in orbe nostro occidissent, asylum posuit, sed a Christiano, præsertim apud Anglos, Romulo esse mutuatos. Quæ nempe passim asyla, quæ non modo insi- res haud dubie in causa est, cur dias timentibus, sed quibusvis son- bene multi a maleficiis minus abstitibus, etiam majestatis reis patent: neant manus, &c.
annexed. This is particularly specified and provided by a
sacredness of the place for their protection.
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,
which forbids refugees to make any clamorous petitions to the
mour or tu.
81 Cod. Theod. 1. 9. tit. 45. De nationis relinquetur occasio: is, qui
84 L. 1. tit. 12. De his, qui ad ec-
“0, του βασιλέως εις την μεγάλης 82 [Leg. 5. (p.372.)... Si armorum εκκλησίαν εν εορτή προϊόντος, εκβοήfiducia resistendi animos, insania σεσι χρώμενος, εκπίπτει του πράγimpellente, conceperit, abstrahendi ματος, και διά του επάρχου εκβαλabripiendique eum domino, quibus λόμενος σωφρονίζεται και δε διά δυναpotest id eficere viribus, concedatur. τον πρόσωπον τη εκκλησία προσQuod si illum etiam confici in con- φεύγων διδασκέτω την βασιλείαν certatione pugnaque contigerit, nulla διά του πατριάρχου και των εκκληejus erit noxa, nec conflandæ crimi- Lekdikwv.
one to eat
but to be
the church, and be delivered over to the city magistrate, to be punished.
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 out
ward build. men 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 tum descripsimus cinctu, et post his, qui ad eccles.confug., leg. 4.(t. 3. loca publica et januas primas ecclep. 363.) Pateant summi Dei templa siæ, quidquid fuerit interjacens, sive timentibus : nec sola altaria et ora- in cellulis, sive in domibus, hortutorium templi circumjectum, qui ec- lis, balneis, areis, atque porticibus, clesias quadripertito intrinsecus pa- confugas, interioris templi vice, tuerietum septu concludunt, ad tuitio- atur. ... Hanc autem spatii latitunem confugientium sancimus esse dinem ideo indulgemus, ne in ipso proposita : sed usque ad extremas Dei templo et sacrosanctis altaribus fores ecclesiæ, quas oratum gestiens confugientium quenquam mane vel populus primas ingreditur, confu- vespere cubare vel pernoctare liceat; gientibus oram salutis esse præcipi- ipsis hoc clericis religionis causa vemus : ut inter templi quod parie- tantibus, &c.