his 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. In 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.2 But the right of sanctuary was gradually subjected to various restrictions both by secular legislation and by the Church.3 Innocentius III. enjoined that refuge should not be given to a highway robber or to anybody who devastated cultivated fields at night; and according to Beaumanoir's Coutumes du Beauvoisis,' dating from the thirteenth century, it was also denied to persons guilty of sacrilege or arson.5 The 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. In 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 having 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. Yet as a matter of fact, asylums continued to exist in England so

1 Milman, History of Latin Christianity, ii. 59. Bulmerincq, op. cit. p. 73 sqq. Fuld, loc. cit. p. 136 sqq. Bracton, De legibus et consuetudinibus Angliæ, fol. 136 b, vol. ii. 392 sq. Réville, L'abjuratio regni,' in Revue historique, 1. 14 sqq. Pollock and Maitland, History of English Law before the Time of Edward I. ii. 590 sq. Innes, Scotland in the Middle Ages, p. 195 sq.

2 Lex Baiuwariorum, i. 7.

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

Gregory IX. Decretales, iii. 49. 6. 5 Beaumanoir, Coutumes du Beauvoisis, xi. 15 sqq., vol. i. 164 sq. 6 Innes, op. cit. p. 198.

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

late as the reign of George I., when that of St. Peter's at Westminster was demolished. In the legislation of Sweden the last reference to the privilege of sanctuary is found in an enactment of 1528.2 In France it was abolished by an ordonnance of 1539.3 In Spain it existed even in the nineteenth century.+ Not long ago the most important churches in Abyssinia, the monastery of Affaf Woira in the same country, and the quarter in Gondar where the head of the Abyssinian clergy has his residence, were reported to be asylums for criminals. And the same is the case with the old Christian churches among the Suanetians of the Caucasus.8

6

9

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. The 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. But 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 affords

1

10

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

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

phie des Rechts, § 117, p. 108. Powell, 'Outlines of Sociology,' in Saturday Lectures, p. 82.

10 Meiners, 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, 294 sqq. Kohler, Shakespeare vor dem Forum der Jurisprudenz, p. 185. Quatremère, loc. cit. p. 314. Mr. Mallery (Israelite and Indian, p. 33 sq.), 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.

temporary 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?

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. But 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." There is an almost instinctive fear not only of shedding blood, but 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, it 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 for

2

Europe the privilege of asylum went hand in hand with the sanctity of the homestead (Wilda, op. cit. pp. 242, 243, 538, 543; Nordstrom, op. cit. ii. 435; Fuld, loc. cit. p. 152; Frauenstädt, op. cit. p. 63 sqq.); and the breach of a man's peace was proportionate to his rank. Whilst every man was entitled to peace in his own house, the great man's peace was of more importance than the common man's, the king's peace of more importance than the baron's, and in the spiritual order the peace of the Church commanded yet greater reverence (Pollock, The King's Peace,' in Law Quarterly Review, i. 40 sq.).

bidden to quarrel or fight upon consecrated ground." But 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?

2

The answer lies in certain ideas which refer to human as well as divine protectors of refugees. The god or saint is in exactly the same position as a man to whose house a person has fled for shelter. Among various peoples the domicile of the chief or king is an asylum for criminals; nobody dares to attack a man who is sheltered by so mighty a personage, and from what has been said above, in connection with the rules of hospitality, it is also evident why the chief or king feels himself compelled to protect him. By being in close contact with his host, the suppliant is able to transfer to him a dangerous curse. Sometimes a criminal can in a similar way be a danger to the king even from a distance, or by meeting him, and must in consequence be pardoned. In Madagascar an offender escaped punishment if he could obtain sight of the sovereign, whether before or after conviction; hence criminals at work on the highroad were ordered to withdraw when the sovereign was known to be coming by. Among the Bambaras "une fois la sentence prononcée, si le condamné parvient à cracher sur un

1 Mariner, Natives of the Tonga Islands, ii. 232. Cf. ibid. i. 227.

2 Harmon, Voyages and Travels in the Interior of North America, p. 297 (Tacullies). Lewin, Hill Tracts of Chittagong, p. 100 (Kukis). Junghuhn, Die Battalander auf Sumatra, ii. 329 (Macassars and Bugis of Celebes). Tromp, Uit de Salasila van Koetei,' in Bijdragen tot de taal- land- en volkenkunde van Nederlandsch-Indie, xxxvii. 84 (natives of Koetei, a district of Borneo). Jung, quoted by Kohler, 'Recht der Marschallinsulaner,' in Zeitschr. f. vergl. Rechtswiss. xiv. 447 (natives of Nauru in the Marshall

Group). Turner, Nineteen Years in Polynesia, p. 334 (Samoans). Rautanen, in Steinmetz, Rechtsverhältnisse, p. 342 (Ondonga). Schinz, op. cit. p. 312 (Ovambo). Rehme, 'Das Recht der Amaxosa,' in Zeitschr. f. vergl. Rechtswiss. X. 50. Merker, quoted by Kohler, Banturecht in Östafrika,' ibid. xv. 55 (Wadshagga). Merker, Die Masai, p. 206. Among the Barotse the residences of the Queen and the Prime Minister are places of refuge (Decle, op. cit. p. 75).

3 Ellis, History of Madagascar, i.

376.

1

prince, non-seulement sa personne est sacrée, mais elle est nourrie, logée, etc., par le grand seigneur qui a eu l'imprudence de se tenir a tenir a portée de cet étrange projectile." In Usambara even a murderer is safe as soon as he has touched the person of the king. Among the Marutse and neighbouring tribes a person who is accused of any crime receives pardon if he lays a cupathe fossilised base of a conical shell, which is the most highly valued of all their instruments—at the feet of his chief; and a miscreant likewise escapes punishment if he reaches and throws himself on the king's drums. On the Slave Coast "criminals who are doomed to death are always gagged, because if a man should speak to the king he must be pardoned." In Ashantee, if an offender should succeed in swearing on the king's life, he must be pardoned, because such an oath is believed to involve danger to the king; hence knives are driven through the cheeks from opposite sides, over the tongue, to prevent him from speaking. So also among the Romans, according to an old Jewish writer, a person condemned to death was gagged to prevent him from cursing the king." Fear of the curses pronounced by a dissatisfied refugee likewise, in all probability, underlay certain other customs which prevailed in Rome. A servant or slave who came and fell down at the feet of Jupiter's high-priest, taking hold of his knees, was for that day freed from the whip; and if a prisoner with irons and bolts at his feet succeeded in approaching the high-priest in his house, he was let loose and his fetters were thrown into the road, not through the door, but from the roof. Moreover, if a criminal who had been sentenced to death accidentally met a Vestal virgin on his way to the place of execution, his life