PRIVILEGE OF SANCTUARY.
The privilege of sanctuary, sometimes called the privilege of asylum, was
the exemption afforded criminals, taking refuge in certain consecrated
places, from the ordinary operation of the law of arrest.
The institution is no doubt older than the time of Moses and we find
frequent references to it in the early books of the Bible.
In the book of Exodus the old Mosaic law was stated to be: “He that
smiteth a man, so that he die, shall be surely put to death,” but in the
same book, it is written: “And if a man lie not in wait, but God deliver
him into his hand; then I will appoint thee a place whither he shall
flee.”
Moses’ law thus distinguished between murder on malice aforethought and
mere manslaughter, as we call it and according to the ancient law of the
Israelites, there were cities of refuge to which a felon might flee, who
killed a man unawares.
Moses appointed six cities of refuge, three “on this side of Jordan”
and three “in the land of Canaan,” in order that the slayer might flee
thither which should kill his neighbour unawares, and hated him not in
times past; and that fleeing to one of these cities, he might live.[1]
Deuteronomy refers to the case of “the slayer which shall flee thither
that he may live”; distinguishing the man who lies in wait, from the
man who “killeth his neighbour innocently, whom he hated not in times
past.”[2]
In the book of Joshua it is provided that “When he that doth flee to one
of those cities shall stand at the entering of the gate of the city, and
shall declare his cause in the ears of the elders of that city, they
shall take him into the city unto them and give him a place, that he may
dwell among them. And if the avenger of blood pursue after him, then
they shall not deliver the slayer up into his hand; because he smote his
neighbour unwittingly and hated him not beforetime.”[3]
Over a thousand years before Christ we find Adonijah claiming the
privilege of sanctuary to protect him from the wrath of Solomon, for it
is recorded in the first book of Kings:[4]
“And Adonijah feared because of Solomon, and arose, and went
and caught hold on the horns of the altar. And it was told
Solomon, saying, Behold, Adonijah feareth king Solomon, for,
lo, he hath caught hold on the horns of the altar, saying:
Let king Solomon swear unto me today that he will not slay
his servant with the sword. And Solomon said: If he will shew
himself a worthy man, there shall not an hair of him fall to
the earth; but if wickedness shall be found in him, he shall
die.”
This case of Adonijah taking refuge in the temple, at the altar, as a
protection against the supposed wrath of Solomon, is nothing more nor
less than a claim of sanctuary, for even the hand of Solomon was stayed
at the threshold of such a consecrated place and the sinner taking refuge
at the altar was supposed to be surrounded by the protecting mantle of
the Great Jehovah. This is only one of many thousand similar concrete
cases that could be mentioned, no doubt, if the unwritten history of the
unnoticed millions of patriarchial days could be known, for the right
of sanctuary obtained generally in those ancient days. The ever-flowing
flood of time has swept away all records of the ordinary mortals,
however, and only the great peer out through the darkness of the past.
The conditions upon which sanctuary was bestowed, in the ancient days
of the patriarchs was that the refugee should not quit the city of
refuge until the death of the High Priest, for on this solemn occasion,
the great public grief was supposed to over-shadow all merely private
affairs. As recorded in the book of Joshua, one claiming sanctuary must
stand at the gate of the city and “declare his cause in the ears of the
elders”[5]; the elders tried his case, to ascertain if he were guilty
of malicious murder, or mere manslaughter, and if the case of murder
was established by the “avenger of blood,” who acted as prosecutor, the
criminal was given up, even though he clung to the altar,[6] but if the
elders found that he was not guilty of wilful murder, he was retained
as “a prisoner at large” in the city of refuge, until the demise of the
High Priest, when he was allowed to return to his home, duly purged of
the crime for which he had fled. If he departed from the “city of refuge”
before the death of the High Priest, however, he was regarded as an
outlaw and could be slain by any man, as such.[7]
According to Plutarch and Dr. Pegge, the right of sanctuary was
recognized among the ancient Greeks and the Oratory of Theseus was one of
the places of refuge for persons of lowly station, who fled to avoid the
oppression of the great and powerful “avengers of blood.” The privilege
afforded these lowly ones soon became a license for the protection of
criminals, however, and the most notorious criminals were protected from
the civil authorities and the holy places and temples came to be used as
asylums and resorts for the most notorious criminals.[8]
From Greece, the right of sanctuary spread to Rome, and although, by the
Roman law, murderers, escaped slaves, robbers, and public debtors were
excluded from sanctuary privileges,[9] in the course of time, the priests
refused to deliver up the slaves to their masters, the debtors to their
creditors, or the murderers to the magistrates, and the temples and
churches became regular dens for thieves, murderers and criminals of the
worst kind.[10]
Long after the civilizations of the ancient Jews and Grecians had passed
away, the privilege of sanctuary, which they recognized, was perpetuated
in various forms, and in most of the later civilizations we find
evidences of similar customs obtaining.
Before the privilege of sanctuary was guaranteed by written statute law,
the right was recognized by the general usage of the Christian church,
in accordance with the early Mosaic law and in all the countries whose
civilization borrowed from the ancient Israelites, there is evidence of
such a custom.
The Emperor Constantine, as early as the year 324 caused laws to be
enacted, extending and recognizing the privilege of sanctuary; Theodosus,
in the year 392, made a law regulating the exemption to criminals of his
day and Theodosus II. extended the freedom of sanctuary, from the altar
and body of the church itself, to which it was previously confined, to
all the buildings and places contained within the outer walls of the
consecrated places, set apart for purposes of sanctuary.[11]
Although the fact is not established by competent authority, it has been
stated that the privilege of sanctuary obtained in England, as early as
the close of the second century after Christ.[12] The right may have been
recognized as early as this date, but the history of the period does not
give us any very authentic record to sustain that it did. Soon after the
conversion of the Saxons to Christianity, however, all places of public
worship were looked upon as so consecrated that criminals taking refuge
in any of them were temporarily protected from the process of the civil
authorities.[13]
Unlike the ancient Jews, the early Saxons received even the felons
guilty of wilful murder, for a period of thirty days, if they paid
the _Wehrgeld_, fixed by the officers of the church, according to
the standing of the person killed; he was protected from the civil
authorities for a period of thirty days, on payment of the _Wehrgeld_,
if he provided his own sustenance, after which he was delivered to his
friends.[14]
As sanctuary was only extended to those, under the Mosaic law, who
“declared their cause in the ears of the elders of the city,” so, under
the Anglo-Saxon law, the criminal claiming sanctuary was required to
confess his crime and declare that he sought the safety of the church to
preserve his life.[15]
Under the old Saxon law, however, the privilege was not extended for
a longer period than forty days and at the end of that time, if the
prisoner did not _abjure the realm_, he was delivered to his friends, or
to the civil authorities. Under the practice known as _abjuration of the
realm_ if the sanctuary felon, within forty days after taking sanctuary,
went, in sackcloth, before the coroner and confessed his guilt and took
an oath to quit the realm and not to return, without the king’s license,
he was then attainted of the felony, but was given an additional period
of forty days to prepare for his journey and to keep the privilege
alive, he was compelled, within this period, to repair, with a cross in
his hand, as an indicia of his crime, but an emblem of the protection
afforded him by the church, to the port assigned him, and to there take
his journey for some foreign shore.[16]
Large numbers of the English felons, at an early day, by this practice
known as _abjuration of the realm_, were induced to leave England and
annually many such “undesirable citizens” took passage from Dover,
to France or Flanders, under the threat of delivery to the civil
authorities, to answer for their crime, if they did not voluntarily
assume this perpetual banishment and suffer the forfeiture of their
estate to the crown.[17]
After _abjuration of the realm_, if the prisoner afterwards returned to
England, without the license of the king, so to do, he was regarded as
an outlaw and, when caught, was condemned to be hanged, unless he was a
clerk, in which event, he was allowed to claim the _benefit of clergy_,
and to be discharged, after the usual preliminaries and the punishment
inflicted upon those claiming clergy for such a crime as the sanctuary
criminal had committed.[18]
During the period of the forty days, while the criminal was enjoying
his privilege of sanctuary, the _villata_ where the crime was committed
was required to watch the sanctuary, to prevent his escape, without
_abjuration of the realm_; if the coroner did not come for the period of
forty days, the township was required to watch the church for this full
period and if the criminal escaped, because of the failure to do so, the
township was amerced accordingly.[19]
The privilege of sanctuary was recognized by the code of Ina, King of
West Saxony, in 693, and the fifth section of the code provides that if a
felon, who had been convicted of a capital offense fled to a church, or
sanctuary, his life should be spared and if any criminal adjudged to be
flogged, sought refuge in such consecrated place, the stripes, that he
would otherwise receive, should be withheld from him.[20]
In the year 887, under a statute of Alfred the Great, the privilege
of three nights was allowed the criminal seeking the protection of
the church, to enable him to prepare for his safety, and by this same
provision of the law, if anyone violated the privilege of sanctuary,
during the period named, by inflicting blows, wounds, or bonds, upon the
sanctuary criminal, he was obliged to pay the sum of One hundred and
twenty shillings to the ministers of the church, whose precincts had
been invaded.[21]
The Mirror of Justice, reports that King Alfred caused a judge to
be hanged, who had invaded the jurisdiction of the holy orders and
removed, by civil process, a criminal who had sought the protection of
sanctuary[22] and it is certain that the right was not only safe-guarded
by the law, in the time of Alfred, but that Ethelred and all subsequent
Saxon kings expressly sanctioned the privilege.[23]
With the advent of William the Conqueror, the law of sanctuary, with the
other Saxon laws that he did not repeal, became more fixed and definite,
but the extent of the privilege was more or less varied, by the laws or
practices of the different subsequent kings.
After the conquest the practice obtained of erecting a stone seat,
beside the altar and several of these seats were erected in the English
churches, and criminals fleeing to these seats were protected by the
peace of the church, _pax ecclesiae_, and guarded by all its sanctity. To
violate the protection afforded by this seat, or of the shrine of relics,
was an offense too grave to be compensated by the payment of a mere money
fine. One of these seats of stone still remains at Beverly and another at
Hexham.
The privilege at Beverley was granted by Athelstan and extended for a
radius of a mile around St. John’s as the center. The outward and next
outer boundaries of this circle were designated by crosses of rich
carving. The third boundary began at the entrance to the church and the
sixth embraced the high altar and the “fridstool.”[24]
In the four roads leading to the monastery of Hexham, in Northumberland,
the boundary stones were rude crosses, around which, in Saxon characters
and letters was the word “Sanctuarium,” which meant so much to the
criminals of early times, seeking the protection of the “Chair of Peace.”
The “fridstool” at Hexham has been carefully preserved and is much more
extensive and handsome than that at Beverly, as it has interlaced Saxon
and Norman ornaments on the top of the chair and a moulding extends below
and around the seat.[25]
At Durham, the privilege extended to the church, the churchyard and the
circuit. All who came within this solemn circle were protected, for
the church was supposed to throw around them its protecting arms and
the penalties for intruding upon this “charmed circle,” increased in
proportion as the degree of holiness was desecrated.[26]
William the Conqueror granted the charter to St. Martin’s le Grand and
by the charter the privilege extended not only to the church, but to the
college of St. Martin and the precincts thereof.[27]
Westminster, perhaps the most famous sanctuary in England, received its
charters from two of the kings of the Heptarchy and Edward the Confessor
attempted to forever establish it as one of the perpetual sanctuaries of
England, for all classes of criminals, in the following broad grant:
“I order and establish, forever, that what person, of what
condition or estate soever he be, from whence soever he come,
or for what offence or cause it be, either for his refuge in
the said holy place, he be assured of his life, liberty and
limbs. And over this, I forbid, under the pain of everlasting
damnation, that no minister of mine, or of my successors,
intermeddle with any the goods, lands, or possessions of the
said persons taking the said sanctuary.... And whomsoever
presumes or doth contrary to this my graunt I will he lose
his name, worship, dignity and power and that with the great
traitor Judas, that betrayed our Saviour, he be in everlasting
fire of hell; and I will and ordain that this my graunt endure
as long as there remaineth in England, either love or dread of
Christian name.”[28]
So essential was it then regarded to maintain, at all hazards, the _pax
ecclesiae_, that the red handed murderer, even, when he once reached
the sacred precincts of the church’s domain, was to be protected from
the mere temporal powers of the earth, because he thus placed his faith
in a higher law and the mundane officers of the law, for attempting
to preserve the peace of the realm, if they transgressed upon the
sacred soil consecrated to the Lord and used also for the protection of
criminals, were classed along with traitors to the Lord and a dire curse
proclaimed against them. It is well for the race that such delusions have
passed away, along with the delusions of witchcraft and other fanaticisms
of that age.
The Whitefriars, or Alsatia, an establishment of the Carmelites, was
founded by Sir Patrick Grey, in the year 1241, upon a plot of ground,
granted by Edward I., on Fleet street, located between what is now
Salisbury street and the Temple, and Fleet street and the river
Thames.[29]
According to the law, as it finally developed, if a man fled to any one
of the many sanctuaries, _chartered by the Crown_, and claimed protection
from the civil authorities for a crime he had committed, regardless of
the enormity of his crime, he could remain there undisturbed, for life
and was not obliged to make his _abjuration of the realm_, as he was
required to do in case the asylum was not such a chartered institution.
Many of these chartered asylums were established, and aside from those
mentioned, there were sanctuaries so chartered at Wells, Norwich, York,
Manchester, Derby, Lancaster and Northampton.[30]
In the absence of a special charter, however, the crime of treason was
not a sanctuary crime and traitors were not protected, even though they
sought the portals of such consecrated places.[31]
During the reign of Edward I., about the year 1262, the Abbot of
Westminster attempted to extend the privilege of sanctuary, to those
guilty of treason, to debtors and other classes of criminals than those
who had formerly enjoyed the right and he also contended that the civil
officers were not allowed, under the conditions of the charter of that
institution, to enter upon any places, however remote, that belonged to
the abbey. A law suit resulted and notwithstanding the broad terms of the
charter above quoted, it was decided by all the justices that sanctuary
was confined to felons alone and that the sheriffs of London had a right
to enter the town of Westminster and to proceed to the very gates of the
abbey and to enter the houses of the abbey elsewhere in the county, to
arrest felons.[32]
The class of criminals who sought protection under the right of
sanctuary, included the whole gamut of crimes known to English law,
murder or homicide, debt, horse and cattle stealing, housebreaking,
or burglary, escaping from prison, rape, harbouring a thief, treason,
receiving stolen goods, counterfeiting, larceny and the other crimes
common in the realm and made so by statute, or existing at common law.
During the reign of Henry VII., it was decreed that when an offender fled
to sanctuary, it was not enough for him to declare that he came there to
save his life, but he must add that he had committed a felony; though
he need not specify the felony, before the coroner came.[33] But if he
failed to make such a general declaration, he could be dragged from the
sanctuary and was not exempt from civil process.[34]
The system whereby the felon fled to sanctuary and was accorded the
privilege is described in the literature of the period descriptive of the
manner of enjoying this right.
A knocker was usually provided at the outer door of the abbey and one or
two janitors roomed above the door, to admit such nocturnal visitors as
called at different hours to claim their sanctuary. After the refugee was
admitted to the sanctuary, the Galilee Bell was tolled, to announce to
the outer world that another sanctuary criminal had been admitted. A gown
of black cloth, with a yellow cross, was given to the culprit to wear and
he was disarmed and assigned to his quarters.[35]
The oath administered to the refugee has been preserved by the Harleian
Manuscripts[36] and a form of confession and abjuration, administered by
Sir William Rastall, Chief Justice of the Court of Common Pleas during
the reign of Queen Mary, has been handed down to us.[37]
While the right was held not to extend to cases of treason, generally,
in different reigns, we find that it was extended to include treason, as
well as the lesser felonies.
Henry IV. wrote a letter to Cardinal Langley, which is preserved in the
Treasury,[38] wherein that monarch respected the privilege of sanctuary,
even in a case of treason, and asked the protection of St. Cuthbert for
the person of Robert Marshall, “late comitted to prison for treason, now
escaped and broken into the same into youre church of Duresme; we having
tender zele and devocion to the honour of God and St. Cuthbert, ... wol
that for that occasion nothyng be attempted that shal be contrarie to the
liberties and immunitie of our church. We therefor wol and charge you
that he be surely kept there, as ye wol answere unto us for him.—Yeven
under our signet at our towne of Stanford, the xxvii day of July.”
There was flagrant breach of the ancient privilege of sanctuary,
in England, in 1378, in the case of Sir Robert Haule and Sir John
Shackle. Having escaped from the Tower, these gentlemen took refuge in
Westminster. Boxhall, the constable of the Tower, with fifty armed men
pursued them and although the celebration of mass was in progress, when
they entered the abbey, they pursued the prisoners and although Sir John
Shackle escaped, they killed Sir Robert Haule, by hacking him, with their
swords, while he ran around the choir, until he fell dead, with twelve
serious wounds, near the prior’s cell.[39]
Owen Tudor, the father of Henry VII. took refuge at Westminster and Queen
Elizabeth, the widow of Edward IV., with her son, also took sanctuary
there to escape the ferocity of her inhuman brother-in-law, Richard III.
Sir Thomas More gives a graphic account of the sanctuary of Elizabeth:
“Therefore now she (Queen Elizabeth Woodville) toke her younger
sonne the Duke of Yorke and her daughters, and went out of the
Palays of Westminster, into the Sanctuary and there lodged in
the Abbote’s Hac and she and all her children and campaignie
were registered for Sanctuary persons. Whereupon, the Bishop
(Lord Chancellor Rotheram, Archbishop of Yorke) called up all
his servants and took with him the great seal and came before
day to the Queen, about whom he found much heavyness, rumble,
haste, businesse, conveighaunce, and carriage of her stuffe
into Sanctuary. Every man was busy to carry, bear, conveigh,
stuffe, chestes, and fardelles, no man was unoccupied, and some
carried more than they were commanded to another place. The
Queene sat belowe on the rushes, all desolate and dismayed.”[40]
A pathetic picture, of this poor widowed Queen, sitting all alone,
amid the green rushes, a refugee from the ferocity of her wolfish
brother-in-law. One devoid of chivalry and possessing only common human
instincts of pity would have offered protection to a lady in such sad
plight, but history does not record it of “Crookbacked Richard,” for he
determined early to prove a villain and, to clothe his naked villany
“with old odd ends stol’n forth of holy writ”; he seemed a saint, when
most he played the devil and was not only devoid of pity for others, but
found, in himself, no pity for himself.[41]
An instance of the temporary violation of the royal charter privileges
granted to St. Martin’s le Grand, occurred in September, 1442, when
an officer was conducting a prisoner from Newgate to Guildhall. When
they reached Panyer Alley five of the prisoner’s friends rushed out
and rescued him from the officer and took him to St. Martin’s claiming
sanctuary. The sheriffs of London went to the Church and not only took
the prisoner, but all five of his friends, with chains round their necks
to Newgate. The matter was brought before the King’s Star Chamber, by the
Dean and Chapter of St. Martin’s le Grand and the claim advanced that
the ancient charter privileges of the Church had been violated by the
Sheriffs and the King ordered the men to be sent back to St. Martin’s
“there to abide freely, as in a place having franchises, whiles them
liked.”[42]
During the reign of Henry VII., the interesting case of Humphrey Stafford,
was decided, wherein the right of sanctuary, in treason, was expressly
denied. Stafford had been attainted of treason and claimed sanctuary but
was taken from the sanctuary and imprisoned in the Tower. When brought to
the Bar of the King’s Bench, he pleaded his right of sanctuary, but after
solemn discussion and reflection, the judges gave a unanimous decision
that treason was such an exalted crime against the prerogatives of the
King, that it could not be included within the crimes for which sanctuary
would be allowed, and they disregarded the ancient charters to the
contrary and gave judgment that Stafford should be executed.[43]
It was attempted to have this holding reviewed the year following the
decision, when the Abbot of Abingdon appeared before the judges and
produced his ancient charters, upon which he claimed his privileges were
founded and the whole issue was gone into in exchequer chamber, before
the judges. The Abbot claimed that the judges should confer with the
prelates before pronouncing judgment, but one of the judges replied that:
“There can be no franchise without grant from the king. For the
king can grant that any person who enters such a place, having
committed treason, shall not be taken therefrom. And this shows
that it can be done without the assent of Pope or Bishop, and
that the Pope cannot do it within this realm. For to pardon or
dispense with treason, pertains exclusively to the king. And
a place of safety, is as a _privilege_, not as sanctuary. But
when the Pope has consecrated the place, then it is sanctuary,
not before.... But the principle of protection arises by our
law, of which the cognizance belongs to us.”
And this view obtaining, the Abbot was denied his suit and it was
finally held that no right of sanctuary existed in case of a charge of
treason.[44]
Illustrating the growing tendency to limit the privilege of sanctuary
during the reign of Henry VII., another significant case, will not be
studied in vain. Two felons were taken out of sanctuary, at Southwark
and when arraigned for their crimes before Sir Thomas Frowike, Chief
Justice, they pleaded their sanctuary and prayed to be restored. They
were commanded to plead to the felonies with which they were charged,
on the merits, but refused, claiming that as they were wrongfully taken
out of sanctuary they were bound to plead to the indictment; the court,
however, found that they had not been taken out of sanctuary and then,
without arraigning them again, ordered that they be subjected to the
terrible _peine forte et dure_, for standing mute and refusing to plead.
So final judgment was entered, notwithstanding their right to sanctuary,
that they be taken to the jail, from whence they came, and laid upon the
bare ground, and that so much weight be laid upon them as they could
suffer and more, and that they should have nothing to eat but bread and
water; and that so they should be kept, continually, until they died.[45]
As indicative of the cruelty and barbarism then obtaining, this judgment
is an important index and that such a judgment should have been rendered
against men claiming the privilege of sanctuary, was not only contrary
to the law of _peine forte et dure_, which punishment was only assessed
upon those standing mute and refusing to plead at all, and not to those
claiming an exemption given them by such a well settled custom approved
by the laws and decisions of the courts for many centuries, but it was
certainly contrary to the spirit and intent of the law and condemns the
judges pronouncing such a harsh judgment, even unto this late day.
In Scotland, by the ancient canons of the Scottish Councils, much more
sacredness was attached to the plea of sanctuary, than obtained during
this period of English history. Excommunication was there incurred
for the offense of taking criminals from sanctuaries and depriving
them of the protection of the church. Scottish kings granted charters
recognizing broader privileges in certain churches than in others, and
many particular ecclesiastical asylums were established in Scotland, by
special charters.
One of the most celebrated sanctuaries in Scotland was the church of
Wedale, now called Stow, for in this church there was an image of
the blessed Virgin, believed to have been brought by King Arthur,
from Jerusalem. David I., of Scotland, granted the “king’s peace,” in
addition to the church’s protection, to those refugees taking sanctuary
at the church of Lesmahagow, and it was, for centuries, one of the most
prominent sanctuaries of Scotland.
One of the most remarkable features of the custom of sanctuary, obtaining
in Scotland, was that of the _Clan Macduff_, alleged to have been granted
by Malcolm Canmore, on recovering the throne of his ancestors. Any person
related within the ninth degree to the Chief of the Clan Macduff, who
committed manslaughter, was entitled, when he fled to Macduff’s cross,
in Fife, to have his punishment remitted to a fine, or at least to be
repledged and exempted from trial in any other jurisdiction, by the Earl
of Fife. History records that this privilege of sanctuary, saved the life
of Hugh de Arbuthnot and his accomplices, from trial for the murder of
John de Melvil of Glenbervie, in the year 1421.
The Scotch law of sanctuary was more guarded than the English, in the
middle ages, in affording too easy an immunity for crime, but in this
country, there existed in most recent times, a sanctuary for debtors in
the abbey and palace of Holyrood, with its precincts, including the hill
of Arthur’s Seat and the Queen’s Park.[46]
The privilege of sanctuary, while it obtained in England and Scotland
gave rise to considerable legislation and litigation, to restrain the
right within the proper limits and to interpret the laws governing the
privilege as it had previously been enjoyed.
In 1378 it was ordained that debtors claiming sanctuary with the intent
of defrauding their creditors should have their goods and lands levied
upon to discharge their debts.[47]
In 1487 Pope Innocent VIII. authorized the arrest of persons who left the
sanctuary, to commit murder, robbery or other felony, though they sought
the sanctuary, the second time, for protection and he ordered at the same
time that those inmates of sanctuaries who were guilty of treason should
be prevented from leaving the realm.[48]
Statutes of the time of Henry VIII. greatly curtailed the privilege of
sanctuary. By act of Parliament, passed in the twenty-first year of his
reign,[49] it was provided that the culprit:
“Immediately after his confession, and before his abjuration,
was to be branded by the coroner with a hot iron upon the brawn
of the thumb of the right hand, with the sign of the letter A,
to the intent he might be the better known among the king’s
subjects to have abjured.”
It was found that the citizenship of the realm was becoming weakened
by sanctuary men _abjuring the realm_, so Henry VIII., by statute
provided,[50] That
“every person abjuring was to repair to some sanctuary within
the reign which himself should choose, and there remain during
his natural life; and to be sworn before the coroner upon his
abjuration so to do. But if he went out of that sanctuary,
unless discharged by the king’s pardon, and committed murder or
felony, he was liable to be brought to trial for that offense,
and was excluded from the right of sanctuary.”
In the twenty-sixth year of the reign of this monarch, sanctuary was
taken away where the crime was treason,[51] and in the thirty-second
year of his reign it was enacted that “all sanctuary persons were to
wear a badge or cognisance to be assigned and appointed by the governour
of every sanctuary, openly upon their outer garment, of the compass,
in length and breadth of ten inches under the pain of forfeiting the
privilege of sanctuary.” They were also prevented from carrying knives
or swords or other weapons and were not to leave their lodging except
between sunrise and sunset, and the right of sanctuary was also confined,
by Henry VIII., to parish churches, churchyards, cathedrals, hospitals
and college churches and all dedicated chapels.
One of the first acts of James I., when he began to rule over England,
was to further abridge the right of sanctuary and twenty years afterward
in 1624, the same monarch finally abolished the right of sanctuary for
all kinds of crime, in England.[52]
Various precincts continued to afford shelter for criminals, in and
about London, however, long after the enactment of this statute of James
I., intended to finally abolish the practice and it was not until the
later act of 1697 that the custom was finally abrogated for good, in
England.[53]
Both while the practice of sanctuary obtained and years after it passed
away, however, the institution furnished a theme for popular authors to
weave romances around and Shakespeare, Shadwell, Sir Walter Scott, and
other writers, whose names commence with other letters of the alphabet,
have found the ancient law of sanctuary, an attractive source of legal
reference.
In describing the argument before the Council, as to the right of Queen
Elizabeth, the widow of Edward IV. and her son, to claim sanctuary, when
they had committed no crimes and the son had done nothing to entitle him
to sanctuary, Shakespeare makes Buckingham say, in Richard III.:
“_Buck._ ... You break not sanctuary in seizing him.
The benefit thereof is always granted
To those whose dealings have deserv’d the place,
And those who have the wit to claim the place;
This prince hath neither claimed it, nor deserv’d it;
And therefore, in mine opinion, cannot have it;
Then, taking him from thence, that is not there,
You break no privilege nor charter there.
Oft have I heard of sanctuary men;
But sanctuary children, ne’er till now.”[54]
Cardinal Wolsey sought the benefit of sanctuary, after his disgrace, at
the Abbey of Leicester, in King Henry VIII., in the following touching
plea:[55]
“O father Abbot, an old man, broken with the storms of State,
Is come to lay his weary bones among ye; Give him a little
earth, for charity.”
The poor, desolate widow of Edward IV., after the death of her husband,
whose plea of sanctuary we have already described, is thus made to
reflect upon the protection in sanctuary, in 3’ Henry VI.:
“_Queen Elizab._ I’ll hence, forthwith, unto the sanctuary,
To save at least the heir of Edward’s right.
There shall I rest secure from force and fraud.”[56]
And in Coriolanus, as if realizing that sanctuary was an institution that
had out lived its usefulness, Shakespeare thus refers to it as a “rotten
privilege”; when Aufidius is made to say:
“_Auf._ ... nor sleep nor sanctuary, being naked, sick; nor fane nor
capital;
The prayers of priests, nor times of sacrifice,
Embarquements all of fury, shall lift up
Their rotten privilege and custom ’gainst
My hate to Marcius.”[57]
Already the trend of public thought was against the custom which afforded
exemption to the criminal seeking refuge in the sacred places of the
kingdom, and the ancient law of sanctuary, since the reign of Henry
VII. had been gradually amended and so many different limitations were
imposed upon the ancient privilege during the reign of Henry VIII., that
the public were about ready for the final repeal of the law, by King
James, so the gifted Shakespeare, ever alive to the popular views of his
audiences, in referring to sanctuary, in Coriolanus, speaks of it as a
“rotten privilege” that could not stay the hatred of Aufidius for Marcius.
This old institution has passed away forever, in the ever flowing flood
of time, carried away by the current of the centuries. The necessity
for such a custom has long ceased to exist, but in the dim past, when
the “avenger of blood” was abroad in the land and men, fed upon the
delusions that were rampant, clamored, like wolves, for the life blood
of the criminal, the old knockers on the sanctuary doors were most
welcome sights to the fearful criminal, pursued by the howling mob. In
our imagination we can see the cringing murderer, bent and fearful, as
he hurries through the black browed night, followed by his blood-thirsty
pursuers, like a hunted stag, fleeing for the blessed portals of the
sacred places. What a sigh of relief he must have felt, when he reached
the ancient altar of some of the old sanctuaries of the middle ages and
with what exultation his heart must have throbbed, as he clung to the
ancient “frith-stool” that for untold centuries had afforded protection
to criminals from the vengeance of the pursuer.
This obsolete custom of the inhabitants of the lost world of the past
had for its recommendation the charitable and philanthropic object of
saving men from the many “crimes against criminals,” then obtaining. Many
instances, no doubt, existed, where the practice was used to prevent the
civil authorities from enforcing the law and it was used as an instrument
whereby “crimes went unwhipt by justice.” But in the harsh days when
the extremes, in that regard, prevailed, it is as well that Mercy was
thus used to temper Justice, and, upon the beneficent theory that “it is
better for a thousand guilty men to go free than for one innocent man to
suffer,” it was an institution accompanied with most benevolent results.
The hands of the officers of the law were held up when they came to the
charmed portals of the sacred sanctuary. The old Mosaic law and the time
honored charters of the Crown decreed it. And while the officer was thus
thwarted and Justice cheated, the “boys of Westminster Knoll”; “the birds
of St. Martin’s”; the “Bravoes of Alsatia” and “Freemen of the Borough,”
flourished and lived. Many of them, perhaps, belonged to the large class
of the “predestined lost” and if their inner lives had been scanned,
there were no doubt mitigating circumstances why they happened to be
as they were. It may have been decreed, from the beginning that they
should be criminals, instead of honest men. However this may be, they
contributed to the quota of the crime of the world and with the right and
wrong then obtaining, have past away forever. Let us be thankful that as
many of them as did successfully embrace the privileges of sanctuary were
spared through this merciful custom, for, in the end, it will make no
difference whether this or that criminal suffered death just at this or
that particular time, or a little later. He paid the penalty of the flesh
certainly, without much delay and that he was allowed to consort with
holy men, free from the war of the outside world, and feel the influence
of their altruism for a time, and listen to the service of the sacred
altar, with its superstitious chant, could but have had a softening and
leavening influence upon his life.
So while inconsistent with a proper administration of justice, which
contemplates the visitation of equal punishment upon all alike, under
similar conditions, for the same crimes, amid the rapine and murder
of the middle ages it was often a shield for innocence, as well as a
protection for crime and we can hardly regret that there was such an
oasis in the desert, where the persecuted could find rest from the wild
beasts of the desert domains—“wilder than wildest wolf or bear.” They all
have gone, who suffered then—gone, “with the snows of yesterday”—the way
the Mammoth went his way. So whether it was good or ill, since sanctuary
gave to those who lived and suffered here below, “one little glimpse
of Paradise, to ope the eyes and ears of men,” we would not have it
otherwise.
FOOTNOTES:
[1] The six cities appointed in the book of Numbers were only for those
who “killeth any person unawares.” (xxxv.)
[2] Chapter XIX. 4.
[3] Joshua, XX. 4, 5.
“These were the cities appointed for all the children of Israel, and
for the avenger that sojourneth among them, that whomsoever killeth any
person unawares, might flee thither, and not die by the hand of the
avenger of blood, until he stood before the congregation.” _idem._ 9.
[4] Chapter I., 50, 52.
[5] Joshua, XX., 4, 5.
[6] I. Kings, 1, 50, 51.
Nimrod, on the death of his eldest son, erected a golden statue of him
in his palace and ordained that all criminals fleeing thither should be
protected and this was a species of sanctuary. The Green Bag, vol. VIII.,
1896, p. 422.
[7] Chambers Journal, vol. 44, Jan.-June, 1867, p. 170.
[8] The Green Bag, vol. 8, 1896, p. 423.
[9] Chambers Journal, vol. 64, p. 513.
[10] Plutarch, Dr. Pegge; Green Bag, vol. 8, 1896, p. 423.
[11] Chambers Journal, vol. 64, p. 513. Papal sanction was expressly
given in the year 620. _ante idem._
[12] Chambers Journal, Vol. 64, August, 1887, p. 512.
[13] Chambers Journal, Vol. 44, June, 1867, p. 170.
[14] _Ante idem._
[15] I. Reeve’s History English Law, p. 198.
Reeves shows that at this early day the _pax ecclesiae_ was more sacred,
before the law, than the _pax regis_, _ante idem._
[16] Reville, L’Abjuratio regni, Revue historique, vol. 50, p. 1;
M. Reville contends that the law of abjuration is purely an English
institution and was adopted by the Normans, from the early Anglo-Saxons.
See Pl. Cr. pi. 48, 49, 89; Britton, i, 63; Leg. Edw. Conf. c, 5.
[17] II. Pollock and Maitland’s History English Law, p. 590.
[18] _Ante idem._
Speaking of the practice known as _adjuration of the realm_, Pollock and
Maitland, in their excellent history of English Law, say: “The coroner
came and parleyed with the refugee, who had his choice between submitting
to trial and abjuring the realm. If he chose the latter course, he
hurried, dressed in pilgrim’s guise, to the port that was assigned to
him, and left England, being bound by his oath, never to return. His
lands escheated; his chattels were forfeited, and if he ever came back,
his fate was that of an outlaw.” (Vol. II., p. 590.)
[19] I. Pollock and Maitland’s History English Law, pp. 565, 566; R. H.
1, 308; Maddox, Hist. Exch. i, 541, 568.
[20] Chamber’s Journal, Vol. 64, 1887, p. 513; Green Bag, vol. 8, p. 423.
[21] _Ante idem._ I. Reeve’s History English Law, p. 198.
[22] Mirror of Justice, c. 5.
[23] I. Reeve’s History English Law, pp. 198, 199, note, Finlason’s
edition.
[24] This term is composed of the words “frith” and “stol,” meaning “the
seat of peace.” It was a heavy stone chair, or seat and that at Beverly
was devoid of decoration, but perfectly plain, in every particular. It
has been broken and repaired with clamps of iron and we are informed that
it formerly bore a Latin inscription, which stated that: “This stone
chair is called Fridstool—that is, the Chair of Peace, to which what
criminal soever flies to it hath full protection.” Chamber’s Journal,
Vol. 64, 1887, p. 513.
Littell’s Living Age, of July-Sept., 1907, Vol. 254, p. 700, produces a
transcript of the register at Beverley, when one John Spret was entered
as a sanctuary criminal, as follows: “John Spret, gentleman. Memorandum.
That John Spret, of Barton, upon Umber, in the counte of Lyncoln, com to
Beverlay, the first day of October, the vii year of the reen of Keing
Henry the VII., and asked the lybertes of Saint John of Beverlay, for the
death of John Welton, husbondman of the same town, and knawlig hymself to
be at the kylling of the same John with a degart, the 15’ day of August.”
And thus, this tragedy, which resulted in the death of husbandman John
Welton, at the point of a dagger, in the hand of Mr. John Spret, has
caused both of these gentlemen to be known in history after a period of
many centuries, and this sad circumstance of their lives is quoted long
centuries later, to illustrate the manner of an obsolete custom.
[25] Chamber’s Journal, Vol. 64, p. 514.
[26] Violators of the first and second boundary were punished by a fine
of eight pounds; the third space by double that sum; and so on, but if
a person penetrated into the charmed circle of the altar, no fine could
save him, but he was regarded as a “botelas” man. _ante idem._
[27] Chamber’s Journal, 1867, Vol. 44, p. 171.
[28] _Ante idem._
[29] Chamber’s Journal, Vol. 44, p. 171.
[30] _Ante idem._
[31] III. Reeve’s History English Law, p. 331.
[32] 29 Ass. 34; II. Reeve’s History English Law, p. 81; Chamber’s
Journal, Vol. 44, p. 171.
Reeve says, speaking of the sanctuary at Westminster: “The resort of
felons to this place, being in the metropolis of the kingdom, must have
been very great and productive of great disorders.” _ante idem._
The sanctuaries to which special charters had been granted, were known
during the period of Henry VII., as private sanctuaries, while those that
had not received special charters were called general sanctuaries and in
distinguishing the two, a historian of that period has said:
“If a man fled to such a sanctuary as Westminster Knoll, he might remain
undisturbed for life; but if he chose to abjure within the forty days,
the coroner was to appoint him a day to do it. The law of sanctuary is
laid down in a reading of this period in the following manner: None shall
take sanctuary but _in periculo vitae_, as for treason, felony, or the
like and not for debt; for a grant or prescription to have sanctuary
for debt was against law and void. But the reading lays down a strange
quibble to evade this; for it admits, that if a man’s body was in
execution, and he escaped, and came to a sanctuary, ordained as a refuge,
and safeguard for a man’s life, he should have benefit thereof, _because
by long imprisonment his life might be in jeopardy_. If a church was
suspended for bloodshed, he who took it for sanctuary should still enjoy
it for forty days and abjuration for felony, discharged all felonies done
before the abjuration. A man could not abjure for petit larceny, however,
but only for such felonies as induced the pain of death.” IV. Reeve’s
History English Law, p. 255.
[33] 3’ Henry VII., 12; IV. Reeve’s History English Law, 253.
[34] _Ante idem._
[35] Preface of Rev. James Raine’s to the Fifth Volume of the Surtees
Society, gives the following description of the manner of claiming
sanctuary at Beverley and Durham:
“Persons who took refuge fled to the north door and knocked for
admission.... As soon as anyone was so admitted the galilee bell was
immediately tolled, to give notice that some one had taken sanctuary. The
offender was required, before the shrine of the patron saint, and certain
credible witnesses, to tell the nature of his offense, and to toll a
bell, in token of his demanding the privilege of sanctuary.... Everyone
who had the privilege of sanctuary was provided with a black gown and a
yellow cross, called St. Cuthbert’s Cross, upon the left shoulder.... If
one’s life was saved the third time, by the privilege of sanctuary, he
became permanently a servant of the church.” Chamber’s Journal, Vol. 64,
p. 514.
[36] This is the oath administered by the Archbishop of York, at
Beverley, as same is preserved in the register, according to the Harleian
Manuscript: “Ye shal be trew and feythful to my Lord Archbishop of York,
lord of this towne; to the Provost of the same; to the Chanons of this
chirch, and all other ministers thereof. Also, ye shal here gude hert
to the Baillie and Governors of this towne, to al burges and comyners
of the same. Also, ye shal bere no poynted wapen, dagger, knyfe, nor
no other wapen agenst the kyng’s pece. And ye shal be redy at all your
power if there be any debate or stryf, or oder sotham case of fyre within
the towne, to help to surcess it.... So help you God, and this holy
Evangelistes.” Chamber’s Journal, Vol. 64, p. 514.
[37] As reproduced, in Chamber’s Journal (Vol. 64, p. 514), this oath is
as follows: “This hear thou, Sir Coroner, that I M of H. am a robber of
sheep or of any other beast, or a murderer of one or mo, and a felon of
our lord, the king of England; and because I have done many such evils
or robberies, in his land, I abjure the land of our lord the king of
England and I shall haste me toward the port of such a place which thou
hast given me; and that I shall not go out of the highway; and if I do, I
will that I be taken as a robber and a felon, of our lord the king; and
that at such a place I will diligently seek for passage and that I will
not tarry there but one flood and ebb, if I can have passage; and unless
I can have it at such a place, I will go every day into the sea up to my
knees, assaying to pass over; and unless I can do this within forty days,
I will put myself again into the church as a robber and a felon of our
lord the king; so God help me and his holy judgment.”
[38] Chamber’s Journal, Vol. 64, p. 515.
[39] The Green Bag, Vol. 8, p. 425. He was buried as a martyr, in the
south transept of this abbey and was followed by Chaucer, a few years
later, who was buried at his feet. _ante idem._
[40] Littell’s Living Age, Vol. 254, July-Sept., 1907, 701.
[41] Richard III., Act V., Scene III.
[42] Chamber’s Journal, Vol. 44, p. 171.
The debate at the Council Board, over the right to take refugees from the
sanctuary, occasioned by Queen Elizabeth’s refuge to Westminster, is not
without interest, in showing the views then obtaining on this custom.
It was contended that no right of sanctuary existed, since no crime had
been committed, as the right was only extended to criminals, in fear of
their lives; that the little son had no right to sanctuary at all and
that it was a flagrant abuse of the privilege for the Queen to claim it.
Those who advocated roughly taking them away, were overcome by the mild
persuasion urged by the Archbishop of York, who counseled that the child
be obtained without force, if possible. See, Chamber’s Journal, Vol. 44,
p. 171, Speed; Sir Thomas More.
[43] Year Book, I. Henry VII., fol. 24; IV. Reeve’s History English Law,
p. 253.
[44] IV. Reeve’s History English Law, p. 254, Finlason’s note.
This is one of the many instances of the struggle going on for centuries
between the civil authority, in its attempt to narrow the right of
sanctuary and the church, to enlarge or preserve it.
[45] 21 Henry VII., Keilway, 70; IV. Reeve’s History English Law,
Finlason’s note, p. 254.
[46] Chamber’s Journal, Vol. 44, p. 170, 171; _idem._, Vol. 64, 515.
Imprisonment for debt was abolished in Scotland, in 1880, and while the
privilege still exists in form, at the places noted, in fact it has
ceased to be a necessary legal exemption, since the repeal of this law.
[47] Chamber’s Journal, Vol. 64, p. 515.
[48] This bull was confirmed by Alexander VI., and Julius II., in 1493,
and 1504. _ante idem._
[49] 21 Henry VIII., c. 8.
[50] 64 Chamber’s Journal, p. 515.
[51] 26 Henry VIII.
[52] 21 James I., c. 28.
[53] 8 & 9 William IV., c. 26.
[54] Richard III., Act III., Scene I. For discussion of this and other
references in Shakespeare, to the Law of Sanctuary, see White’s “Law in
Shakespeare,” Sec. 324, p. 354.
[55] Act IV., Scene I.
[56] 3’ Henry VI., Act IV., Scene IV.
[57] Act I., Scene X.