A just re on the great abuse of modern sanctuaries, the force of civil laws. 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 abuses, in giving protection almost to all sorts of criminals, 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 punishment, and protection to all criminals, except night-robbers, and robbers enervating on the highway, and such as commit enormous crimes in the 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. 80 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 82, 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 confci in concertatione pugnaque contigerit, nulla ejus erit noxa, nec confiandæ 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, ἐκβοήσεσι χρώμενος, ἐκπίπτει τοῦ πράγματος, καὶ διὰ τοῦ ἐπάρχου ἐκβαλλόμενος σωφρονίζεται· ὁ δὲ διὰ δυνατὸν πρόσωπον τῇ ἐκκλησίᾳ προσφεύγων διδασκέτω τὴν βασιλείαν διὰ τοῦ πατριάρχου καὶ τῶν ἐκκληotekdikwv. the church, and be delivered over to the city magistrate, to be punished. one to eat or lodge in 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 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 BOOK IX. A GEOGRAPHICAL DESCRIPTION OF THE ANCIENT CHURCH, The state of empire in stles. CHAP. I. Of the state and division of the Roman empire, and of the Church's conforming to that in modelling her own external polity and government. 1. HAVING thus far spoken of churches, as they signify the Roman the material buildings, or places of convention set apart for the days of Christian worship, I come now to consider them in another the Aponotion, as they are put to signify any number of Christian people within a certain district, as in a parish, diocese, province, patriarchate; which are names that we frequently meet with in ancient writers, though they are not all equally of the same antiquity; and therefore I shall here enquire both into the nature and original of them. Something has already been said upon this head, in speaking of the several officers of the Church that were placed in those districts, as patriarchs, metropolitans, bishops, and presbyters, so far as was necessary to explain the powers and duties of those ministers in the Church. Yet there are many things to be noted further, which could not then come under consideration; for which reason I now make them the subject of a peculiar inquiry. And here, to understand the state and division of the Church aright, it will be proper to take a short view of the state and division of the Roman empire: for it is generally thought by learned men, that the Church held some conformity to that in her external polity and government, both at her first settlement, and in the changes and variations that were made in after-ages. |