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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


other sort of criminals, for which it was scandalous 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 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.


49. 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 comprehensum 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.


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 80 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.

10. There is one thing more to be observed concerning the Conditions privilege of sanctuary in the laws of the ancient Church ; he observed

anciently to 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 Ay 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 bodie 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 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. Secondly, 11. A second condition to be observed in this case was, that No one to raise a se

men should betake themselves silently and modestly to the ditious cla- church, and not, by any rude and indecent clamours, endeamour or tu. mult, 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 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 nationis relinquetur occasio: is, qui his, qui ad eccles. confug., leg. 4. ex statu servili in hostilis et homi(t. 3. P. 363.) Sed si, ecclesiæ voce cidæ conditionem transivit, occisus moniti... noluerint arma relinquere, sit. Grischov.] jam clementiæ nostræ apud Deum 83 Edict. Theod. ad calc. C. Ephes. et episcoporum causa purgata, arma

cited before, ch. 10. 8.8. n. 8, pretis, si ita res exegerit, intromissis, ceding. trahendos se abstrahendosque esse 84 L. 1. tit. 12. De his, qui ad eccognoscant, et omnibus casibus esse cles. confug., leg. 8. (t. 4. p. 212.) subdendos.

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 confci in con- φεύγων διδασκέτω την βασιλείαν certatione pugnaque contigerit, nulla διά του πατριάρχου και των εκκληejus erit noxa, nec confiandæ crimi- σιεκδίκων.

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

one to eat 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 someoutmen 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.'

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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.





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. The state of

1. Having thus far spoken of churches, as they signify the Roman the material buildings, or places of convention set apart for empire in the days of Christian worship, I come now to consider them in another the Apostles. notion, 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.

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