Sanctuary: the Legal Institution in England

• Publication year: 1987
• Citation: Vol. 10 No. 03

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 10, No. 3SPRING 1987

COMMENT

Sanctuary: The Legal Institution in England

Steven Pope

I. Introduction

Within the Minster of Beverley, at its liturgical center next to the high altar, sits a stone chair that once bore the inscription, "Haec sedes lapidea Freedstoll dicitur i.e. pacis cathedra, ad quam reus fugiendo perveniens omnimodam habet securitatem."(fn1) On these words the sanctuary seeker relied as he made his desperate way to the refuge that would protect him from the penalties that the Common Law would enforce against him.(fn2) If he could reach the sanctuary limits of the church, confess his crime to the clergy, and invoke the clergy's protection, the fugitive escaped the reach of the criminal law. For a time,(fn3) the walls erected by the clergy against the outside world held the process of the king's law in suspense.

This Article discusses the institution of sanctuary that was recognized under the Common Law of England from at least the early Middle Ages until the Jacobean period, that is, from about the seventh to the seventeenth centuries A.D. This Article will not include a specific discussion of the modern American idea of sanctuary as the term is applied to the act of aiding an alien to remain illegally in the United States to escape political persecution in the alien's own country. However, a consideration of the historical institution of sanctuary may shed light on the contemporary issue in two ways. First, history reveals that sanctuary as an ideology has deep roots in the consciousness of our modern society, which has been shaped by English and Christian heritages. Old notions that religious values should prevail over civil values (such as immigration control) are surfacing in the arguments of modern sanctuary advocates. Second, the contrast between historical sanctuary and present-day sanctuary should become clear. The main contrast, of course, is that in the Middle Ages sanctuary was part of the legal structure while now it is not.(fn4) Medieval secular law permitted the practice of sanctuary because English lawmakers, the kings and Parliament, deferred in certain matters to the authority of the Church. Today, U.S. federal courts, interpreting the first amendment of the federal Constitution, have rejected the argument that secular authority should defer to a higher moral authority or to church law so as to allow the illegal harboring of aliens.(fn5) Hence, sanctuary offered for religious reasons presently receives no legal recognition in the United States.(fn6)

Whether or not the sheltering of illegal aliens ought to be immune from prosecution under the first amendment of the Constitution is a consideration beyond the scope of this Article. However, the historical perspective presented here may help the reader to discover why sanctuary as a legal institution in England became extinct. This perspective may also help the reader to consider whether the legal and social structures of today could support the re-establishment of sanctuary as a legal institution.(fn7)

II. Sanctuary in England: The Beginnings

Sanctuary was already an ancient and respected convention at the time it became legally recognized in England in the seventh century A.D.(fn8) The Old Testament tells us that God directed Moses to "set apart three cities to the east, beyond the Jordan, where a man might find refuge who had killed his fellow unwittingly and with no previous feud against him; by taking flight to one of these cities he could save his life."(fn9) The Greek mind, too, conceived that some places should offer protection to the fugitive from justice. Thus, for example, Orestes in Aeschylus' tragedy, The Eumenides,(fn10) although guilty of matricide, found safety at the sanctuary of Delphi under the patronage of the god, Apollo. The Romans adopted the Greek institution of temple asylum, although the typical trend during the Roman period was to limit the use of sanctuary so as to preserve it from abuse.(fn11)

The first legislation recognizing Christian churches as sanctuaries was promulgated by Emperor Theodosius the Great in 392 A.D. Theodosius' law did not introduce the privilege, but merely explained and regulated the right of sanctuary attaching to churches. There is a strong suggestion, then, that Christian churches operated as sanctuaries earlier than 392 and probably from the time that Constantine declared Christianity the official religion of Rome in 303 A.D.(fn12) In the fifth century, the papacy confirmed the decrees of Theodosius the Younger who in 450 extended the sanctuary protection from the church building itself to the surrounding churchyard and precincts.(fn13) In about the year 620, Pope Boniface V released legislation again declaring the sanctuary privilege valid throughout Christendom.(fn14)

In 693, shortly after the sanctuary right was officially promulgated by Boniface V, King Ine, the Christian ruler of the West Saxons, introduced it into English secular law:(fn15)If any one be guilty of a capital crime, and flee to the church, let him have his life; but let him make satisfaction, as right directs. If anyone forfeit his hide, and flee to the church, let his lashes be forgiven him.(fn16) Sanctuary was legally instituted in England in a time when the ends of both ecclesiastical and secular governments were indistinct. King Ine's advisory council was composed partly of bishops,(fn17) who promoted the objectives of the Church. The early kings of England who embraced these ecclesiastical objectives believed that their duty to serve God and their duty to govern were coextensive. Moreover, church law provided for them a ready model that could be adopted for achieving political and other governmental ends.

Royal dedication to ruling according to Christian precepts is evident in the codes of Alfred the Great, issued in 877 A.D., about two centuries after Ine's sanctuary law, which transferred the bulk of the Book of Exodus into secular law.(fn18) Promulgating his codes "out of that tenderness which Christ taught towards the greatest crimes whatsoever decreed,"(fn19) Alfred granted fugitives the right of sanctuary:4. We also decree, That every church hallowed by a bishop have this privilege, viz., If a foe run thither, that no man for seven nights draw him from thence; if any man do, he incurs the penalty of breaking the king's protection, and the Church's peace (if he take more [men] from thence, the [penalty] is the greater,) . . .(fn20) Thus, Alfred and other early English monarchs gave legislative effect to the Scriptural ideal of granting pardon to the person who makes his peace with God and men. At this stage in English legal history, then, the care of men's souls was clearly a governmental as well as an ecclesiastical concern.

Apart from its religious effectiveness, however, the sanctuary institution was also a practical tool that early English kings used to help keep the peace. The ancient Saxon law of blood-feud gave injured parties the right to retaliate with force against the offender or his family. To curtail the feuds, however, the communal law adopted a system whereby the offender could pay damages (bot) to the injured party to buy off the threat of feud. The greatest injuries could be offset only by wergeld redemption (the value set on a man's life, increasing with his rank).(fn21) Later, the English kings reinforced the prior communal efforts to prevent retaliatory conflicts. The law against robbery promulgated by King Ine around 690 A.D. sought to eliminate feuds by specifying the amount of money damages to be paid by the criminal to the injured party or his relatives to make them whole.(fn22) Similarly, King Wihtred of Kent enacted a law in 696 A.D. that set out a variety of penalties for thievery, including money damages.(fn23) These laws forestalled the feud by removing the administration of justice from the hands of the injured parties and by granting them a compensation other than blood for blood, life for life. Further, the laws protected the thief-catcher from retaliation by coloring his efforts with royal approbation: the thief-catcher was rewarded with a portion of money damages owed by the criminal.(fn24) Of course, the laws did not always successfully deter aggressive injured parties from taking the law into their own hands. But as early as the seventh century the secular government was taking innovative steps to bring under its own control the means for distributing justice and keeping the peace.

The practice of sanctuary dovetailed into the kings' peacekeeping scheme. Sanctuary removed the felon from the reach of the injured party's retaliation. While in asylum, the felon could negotiate amends with those seeking his blood by offering either wergeld redemption or debt slavery (reduction of the criminal to the status of a dependent in bond to the injured party). The negotiations were customarily conducted by the clergy in charge of the sanctuary. Acting for the felon in an intercessionary role, the clergy facilitated a quid pro quo settlement with the party seeking revenge.(fn25) Thus, by preventing a feud, the settlement achieved the king's political purpose of keeping the peace.

The legal institution of sanctuary, then, originated in England through the medium of the Church. The early English kings, with the bishops in council, incorporated Scriptural precepts and church law...