Chapter 135

132Dennett,Folklore of the Fjort, p. 5sq.

133Callaway,Religious System of the Amazulu, p. 57.

134Williams and Calvert,op. cit.p. 212.

135Macdonald,Oceania, p. 208.

136Schmidt,Ethik der alten Griechen, ii. 19sq.Cicero,De legibus, ii. 9, 16; Mommsen,Römisches Strafrecht, p. 458. Wilda,Strafrecht der Germanen, p. 950; Dahn,Bausteine, ii. 106 (Teutons). Du Boys,Histoire du droit criminel des peuples modernes, ii. 605sq.Filangieri,La scienza della legislazione, iv. 205 (laws of Christian countries).

137Montefiore,Hibbert Lectures on the Religion of the Ancient Hebrews, p. 38.

138Wellhausen,Reste arabischen Heidentums, p. 106.

139Westermarck, ‘Sul culto dei santi nel Marocco,’ inActes du XII. Congrès International des Orientalistes, iii. 175.Cf.Goldziher,Muhammedanische Studien, ii. 344sqq.

140See Robertson Smith,op. cit.lec. iv. and Additional Note B.

141Westermarck, inActes du XII. Congrès des Orientalistes, iii. 167sq.

Moreover, anybody who takes refuge at asíyidis for the moment safe. The right of sanctuary is regarded as very sacred in Morocco, especially in those parts of the country where the Sultan’s government has no power. To violate it is an outrage which the saint is sure to punish. I saw a madman whose insanity was attributed to the fact that he once had forcibly removed a fugitive from a saint’s tomb; and of a late Grand-Vizier it is said that he was killed by two powerful saints of Dukkâla, on whose refugees he had laid violent hands. Even the descendants of the saint or his manager (mḳáddem) can only by persuasion and by promising to mediate between the suppliant and his pursuer induce the former to leave the place.142As is well known, this is not a custom restricted to Morocco. Among many peoples, at different stages of civilisation, sacred places give shelter to refugees.143

142See Westermarck,The Moorish Conception of Holiness, p. 116sqq.

143See Andree, ‘Die Asyle,’ inGlobus, xxxviii. 301sq.; Frazer, ‘Origin of Totemism,’ inFortnightly Review, N. S. lxv. 650sqq.; Hellwig,Das Asylrecht,passim; Bulmerincq,Das Asylrecht,passim. Fuld, ‘Das Asylrecht im Alterthum und Mittelalter,’ inZeitschr. f. vergl. Rechtswiss.vii. p. 103sqq.

Among the Central Australian Arunta there is in each local totem centre a spot calledertnatulunga, in the immediate neighbourhood of which everything is sacred and must on no account be hurt. The plants growing there are never interfered with in any way; animals which come there are safefrom the spear of the hunter; and a man who was being pursued by others would not be touched so long as he remained at this spot.144In Upolu, one of the Samoan Islands, a certain god, Vave, had his residence in an old tree, which served as an asylum for murderers and other great offenders; if that tree was reached by the criminal he was safe, and the avenger could pursue no farther, but had to wait for investigation and trial.145In the island of Hawaii there were twopuhonuas, or cities of refuge, which afforded an inviolable sanctuary even to the vilest criminal who entered their precincts, and during war offered safe retreat to all the non-combatants of the neighbouring districts who flocked into them, as well as to the vanquished. As soon as the fugitive had entered, he repaired to the presence of the idol and made a short ejaculatory address, expressive of his obligations to him in reaching the place with security. The priests and their adherents would immediately put to death anyone who should have the temerity to follow or molest those who were once within the pale of thepahu tabu, and, as they put it, under the shade or protection of the spirit of Keave, the tutelary deity of the place. After a short period, probably not more than two or three days, the refugee was permitted to return unmolested to his home, the divine protection being supposed still to abide with him.146In Tahiti themorais, or holy places, likewise gave shelter to criminals of every kind.147At Maiva, in the South-Eastern part of New Guinea, “should a man be pursued by an enemy and take refuge in thedubu[or temple], he is perfectly safe inside. Any one smiting another inside thedubuwould have his arms and legs shrivelled up, and he could do nothing but wish to die.”148

144Spencer and Gillen,Native Tribes of Central Australia, p. 133sqq.

145Turner,Samoa, p. 64sq.

146Ellis,Tour through Hawaii, p. 155sqq.Jarves,History of the Hawaiian Islands, p. 28sq.

147Turnbull,Voyage round the World, p. 366. Wilson,Missionary Voyage to the Southern Pacific Ocean, p. 351.

148Chalmers and Gill,Work and Adventure in New Guinea, p. 186.

In many North American tribes certain sacred places or whole villages served as asylums, in which those who were pursued by the tribe or even an enemy were safe as soon as they had obtained admission.149Among the Acagchemem Indians, in the valley and neighbourhood of San Juan Capistrano in California, a criminal who had fled to avanquech, or place of worship, was secure not only as long as he remained there, butalso after he had left the sanctuary. It was not even lawful to mention his crime, but all that the avenger could do to him was to point at him and deride him, saying, “Lo, a coward, who has been forced to flee to Chinigchinich!” This flight, however, turned the punishment from the head of the criminal upon that of some of his relatives.150

149Adair,History of the American Indians, pp. 158, 159, 416. Bradbury,Travels in the Interior of America, p. 165sq.(Aricaras of the Missouri). Bourke, ‘Medicine-Men of the Apache,’ inAnn. Rep. Bur. Ethn.ix. 453. Kohl,Kitchi-Gami, p. 271 (Chippewas).

150Bancroft,Native Races of the Pacific States, iii. 167. Boscana, in [Robinson,]Life in California, p. 262sq.

The South-Central African Barotse have a city of refuge. “Anyone incurring the king’s wrath, or committing a crime, may find safety by fleeing to this town. The man in charge of it is expected to plead for him before the chief, and he can then return to his house in peace.”151Among the same people the tombs of chiefs are sanctuaries or places of refuge,152and this is also the case among the Kafirs.153So, too, in the monarchical states of the Gallas homicides enjoy a legal right of asylum if they have succeeded in taking refuge in a hut near the burial-place of the king.154Among the Ovambo in South-Western Africa the village of a great chief is abandoned at his death, except by the members of a certain family, who remain there to prevent it from falling into utter decay. Condemned criminals who contrive to escape to one of these deserted villages are safe, at least for a time; for not even the chief himself may pursue a fugitive into the sacred place.155In Congo Français there are several sanctuaries:—“The great one in the Calabar district is at Omon. Thither mothers of twins, widows, thieves, and slaves fly, and if they reach it are safe.”156In Ashantee a slave who flies to a temple and dashes himself against the fetish cannot easily be brought back to his master.157Among the Negroes of Accra criminals used to “seat themselves upon the fetish,” that is, place themselves under its protection; but murderers who sought refuge with the fetish were always liable to be delivered up to their pursuers.158A traveller in the seventeenth century tells us that in Fetu, on the Gold Coast, a criminal who deserved death was pardoned by taking refuge in the hut of the high-priest.159Among the Krumen of the Grain Coast the house of the high-priest (bodio) “is a sanctum to which culpritsmay betake themselves without the danger of being removed by anyone except by thebodiohimself.”160In Usambara a murderer cannot be arrested at any of the four places where the great wizards of the country reside.161

151Arnot,Garenganze, p. 77.

152Decle,Three Years in Savage Africa, p. 75.

153Rehme, ‘Das Recht der Amaxosa,’ inZeitschr. f. vergl. Rechtswiss.x. 51.

154Paulitschke,Ethnographie Nordost-Afrikas, Die geistige Cultur der Danâkil, &c.p. 157.

155Schinz,Deutsch-Südwest-Afrika, p. 312.

156Kingsley,Travels in West Africa, p. 466.

157Bowdich,Mission to Ashantee, p. 265.Cf.Monrad,op. cit.p. 42.

158Monrad,op. cit.p. 89.

159Müller,Die Africanische Landschafft Fetu, p. 75.

160Wilson,Western Africa, p. 129.

161Krapf,Reisen in Ost-Afrika, ii. 132.

In other Muhammedan countries besides Morocco the tombs of saints, as also the mosques, are or have been places of refuge.162In Persia the great number of such asylums proved so injurious to public safety, that about the middle of the nineteenth century only three mosques were left which were recognised by the government as affording protection to criminals of every description.163Among the Hebrews the right of asylum originally belonged to all altars,164but on the abolition of the local altars it was limited to certain cities of refuge.165According to the Old Testament manslayers could find shelter there only in the case of involuntary homicide; but this was undoubtedly a narrowing of the ancient custom. Many heathen sanctuaries of the Phœnicians and Syrians retained even in Roman times what seems to have been an unlimited right of asylum;166and at certain Arabian shrines the god likewise gave shelter to all fugitives without distinction, and even stray or stolen cattle that reached the holy ground could not be reclaimed by their owners.167

162Goldziher,Muhammedanische Studien, i. 237sq.Quatremère, ‘Mémoire sur les asiles chez les Arabes,’ inMémoires de l’Institut de France, Académie des Inscriptions et Belles-Lettres, xv. pt. ii. 313sq.

163Polak,Persien, ii. 83sqq.Brugsch,Im Lande der Sonne, p. 246.

164Exodus, xxi. 13sq.Cf.Robertson Smith,Religion of the Semites, p. 148, n. 1.

165Numbers, xxxv. 11sqq.Deuteronomy, iv. 41sqq.; xix. 2sqq.

166Robertson Smith,op. cit.p. 148.

167Ibid.p. 148sq.

On the Coast of Malabar a certain temple situated to the south-east of Calicut affords protection to thieves and adulterous women belonging to the Brahmin caste, but this privilege is reckoned among the sixty-fouranatcharams, or “abuses,” which were introduced by Brahmanism.168Among the Káfirs of the Hindu-Kush there are several “cities of refuge,” the largest being the village of Mergrom, which is almost entirely peopled bychiles, or descendants of persons who have slain some fellow tribesman.169In the Caucasus holy groves offer refuge to criminals, as also to animals, which cannot be shot there.170

168Graul,Reise nach Ostindien, iii. 332, 335.

169Scott Robertson,Káfirs of the Hindu-Kush, p. 441.

170Hahn,Kaukasische Reisen, p. 122.

In Greece many sanctuaries possessed the right of asylum down to the end of paganism, and any violation of this rightwas supposed to be severely punished by the deity.171According to an old tradition, Romulus established a sanctuary, dedicated to some unknown god or spirit, on the slope of the Capitoline Hill, proclaiming that all who resorted to it, whether bond or free, should be safe.172This tradition, and also some other statements made by Latin writers,173seem to indicate that from ancient times certain sacred places in Rome gave shelter to refugees; but it was only in a comparatively late period of Roman history that the right of sanctuary, under Greek influence, became a recognised institution of some importance.174This right was expressly conferred upon the temple which in the year 42B.C.was built in honour of Cæsar;175and other imperial temples, as also the statues of emperors, laid claim to the same privilege.176When Christianity became the religion of the State a similar claim was made by the churches; but a legal right of asylum was only granted to them by Honorius in the West and Theodosius in the East.177Subsequently it was restricted by Justinian, who decreed that all manslayers, adulterers, and kidnappers of women who fled to a church should be taken out of it.178

171Tacitus,Annales, iii. 60sqq.Farnell,op. cit.i. 73. Westcott,op. cit.p. 115. Schmidt,Die Ethik der alten Griechen, ii. 285. Bulmerincq,op. cit.p. 35sqq.Fuld,loc. cit.p. 118sqq.

172Dionysius of Halicarnassus,Antiquitates Romanæ, ii. 15. Livy, i. 8. 5sq.Plutarch,Romulus, ix. 5. Strabo, v. 3. 2, p. 230.

173Valerius Maximus,Facta dictaque memorabilia, viii. 9. 1. Dionysius of Halicarnassus,Antiquitates Romanæ, vi. 45. Cicero,De lege agraria oratio secunda, 14 (36). See also Hartung,Die Religion der Römer, ii. 58sq.

174See Tacitus,Annales, iii. 36; Plautus,Rudens, 723; Dio Cassius,Historia Romana, xlvii. 19; Bulmerincq,op. cit.p. 58sqq.; Mommsen,Römisches Strafrecht, p. 458sq.

175Dio Cassius, xlvii. 19.

176Tacitus,Annales, iv. 67. Suetonius,Tiberius, 53. Mommsen,op. cit.p. 460.

177Mommsen,op. cit.p. 461sq.

178Novellæ, xvii. 7.

The right of sanctuary existed among the pagan Slavs, or some of them,179and probably also among the ancient Teutons.180After their conversion to Christianity the privilege of asylum within the church was recognised in most of their codes. In the Middle Ages and later, persons who fled to a church or to certain boundaries surrounding it were, for a time at least, safe from all persecution, it being considered treason against God, an offence beyond compensation, to force even the most flagrant criminal from His altar. The ordinary of the sacred place, orhis official, was the only one who could try to induce him to leave it, but if he failed, the utmost that could be done was to deny the refugee victuals so that he might go forth voluntarily.181In the ‘Lex Baiuwariorum’ it is asserted in the strongest terms that there is no crime which may not be pardoned from the fear of God and reverence for the saints.182But the right of sanctuary was gradually subjected to various restrictions both by secular legislation and by the Church.183Innocentius III. enjoined that refuge should not be given to a highway robber or to anybody who devastated cultivated fields at night;184and according to Beaumanoir’s ‘Coutumes du Beauvoisis,’ dating from the thirteenth century, it was also denied to persons guilty of sacrilege or arson.185The Parliament of Scotland enacted that whoever took the protection of the Church for homicide should be required to come out and undergo an assize, that it might be found whether it was committed of “forethought felony” or in “chaudemelle”; and only in the latter case was he to be restored to the sanctuary, the sheriff being directed to give him security to that effect before requiring him to leave it.186In England, in the reign of Henry VIII., there were certain places which were allowed to be “places of tuition and privilege,” in addition to churches and their precincts. They were in fact cities of permanent refuge for persons who should, according to ancient usage, have abjured the realm, after they had fled in the ordinary way to a church. There was a governor in each of these privileged places, charged with the duty of mustering every day his men, who were not to exceed twenty in each town and who had to wear a badge whenever they appeared out of doors. But when these regulations were made, the protection of sanctuary was taken away from persons guilty of murder, rape, burglary, highway robbery, or arson. The law of sanctuary was then left unchanged till the reign of James I., when, in theory, the privilege in question was altogether denied to criminals.187Yetas a matter of fact, asylums continued to exist in England so late as the reign of George I., when that of St. Peter’s at Westminster was demolished.188In the legislation of Sweden the last reference to the privilege of sanctuary is found in an enactment of 1528.189In France it was abolished by anordonnanceof 1539.190In Spain it existed even in the nineteenth century.191Not long ago the most important churches in Abyssinia,192the monastery of Affaf Woira in the same country,193and the quarter in Gondar where the head of the Abyssinian clergy has his residence,194were reported to be asylums for criminals. And the same is the case with the old Christian churches among the Suanetians of the Caucasus.195

179Helmold,Chronik der Slaven, i. 83, p. 170.

180Wilda,Das Strafrecht der Germanen, p. 248sq.Stemann,Den danske Retshistorie indtil Christian V.’s Lov, p. 578. Brunner,Deutsche Rechtsgeschichte, ii. 610. Fuld,loc. cit.p. 138sq.Frauenstädt,Blutrache und Todtschlagsühne im Deutschen Mittelalter, p. 51.

181Milman,History of Latin Christianity, ii. 59. Bulmerincq,op. cit.p. 73sqq.Fuld,loc. cit.p. 136sqq.Bracton,De legibus et consuetudinibus Angliæ, fol. 136 b, vol. ii. 392sq.Réville, ‘L’abjuratio regni,’ inRevue historique, l. 14sqq.Pollock and Maitland,History of English Law before the Time of Edward I.ii. 590sq.Innes,Scotland in the Middle Ages, p. 195sq.

182Lex Baiuwariorum, i. 7.

183Brunner,op. cit.ii. 611sq.Bulmerincq,op. cit.p. 91sqq.Fuld,loc. cit.p. 140sq.

184Gregory IX.Decretales, iii. 49. 6.

185Beaumanoir,Coutumes du Beauvoisis, xi. 15sqq., vol. i. 164sq.

186Innes,op. cit.p. 198.

187Pike,History of Crime in England, ii. 253. Blackstone,Commentaries on the Laws of England, iv. 347, n. a.

188Jusserand,English Wayfaring Life in the Middle Ages, p. 166.

189Nordström,Bidrag till den svenska samhälls-författningens historia, ii. 405.

190Du Boys,Histoire du droit criminel des peuples modernes, ii. 246.

191Idem,Histoire du droit criminel de l’Espagne, p. 227sq.

192Hellwig,op. cit.p. 52.

193Harris,Highlands of Æthiopia, ii. 93.

194Rüppell,Reise in Abyssinien, ii. 74, 81. von Heuglin,Reise nach Abessinien, p. 213.

195von Haxthausen,Transcaucasia, p. 160, n. *

The right of sanctuary has been ascribed to various causes. Obviously erroneous is the suggestion that places of refuge were established with a view to protecting unintentional offenders from punishment or revenge.196The restriction of the privilege of sanctuary to cases of accidental injuries is not at all general, and where it occurs it is undoubtedly an innovation due to moral or social considerations. Very frequently this privilege has been attributed to a desire to give time for the first heat of resentment to pass over before the injured party could seek redress.197But although I admit that such a desire may have helped to preserve the right of asylum where it has once come into existence, I do not believe that it could account for the origin of this right. We should remember that the privilege of sanctuary not only affordstemporary protection to the refugee, but in many cases altogether exempts him from punishment or retaliation, and that shelter is given even to animals which have fled to a sacred place. And, if the theory referred to were correct, how could we explain the fact that the right of asylum is particularly attached to sanctuaries?

196Hegel,Grundlinien der Philosophie des Rechts, § 117, p. 108. Powell, ‘Outlines of Sociology,’ inSaturday Lectures, p. 82.

197Meiners,Geschichte der Menschheit, p. 189. Nordström,op. cit.ii. 401. Pardessus,Loi Salique, p. 656. Bulmerincq,op. cit.pp. 34, 47. Fuld,loc. cit.pp. 102, 118, 119, 294sqq.Kohler,Shakespeare vor dem Forum der Jurisprudenz, p. 185. Quatremère,loc. cit.p. 314. Mr. Mallery (Israelite and Indian, p. 33sq.), also, thinks that the original object of the right of sanctuary was to restrict vengeance and maintain peace, and that this right only subsequently appeared as a prerogative of religion.

It has been said that the right of sanctuary bears testimony to the power of certain places to transmit their virtues to those who entered them.198But we have no evidence that the fugitive is supposed to partake of the sanctity of the place which shelters him. In Morocco persons who are permanently attached to mosques or the shrines of saints are generally regarded as more or less holy, but this is never the case with casual visitors or suppliants; hence it is hardly for fear of the refugee that his pursuer refrains from laying hands on him. Professor Robertson Smith has stated part of the truth in saying that “the assertion of a man’s undoubted rights as against a fugitive at the sanctuary is regarded as an encroachment on its holiness.”199There is an almost instinctive fear not only of shedding blood,200but of disturbing the peace in a holy place; and if it is improper to commit any act of violence in the house of another man,201it is naturally considered equally offensive, and also infinitely more dangerous, to do so in the homestead of a supernatural being. In the Tonga Islands, for instance, “it is forbiddento quarrel or fight upon consecrated ground.”202But this is only one aspect of the matter; another, equally important, still calls for an explanation. Why should the gods or saints themselves be so anxious to protect criminals who have sought refuge in their sanctuaries? Why do they not deliver them up to justice through their earthly representatives?

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