Sanctuary and Asylum Linda Rabben Published by University of Washington Press Rabben, L.. Sanctuary and Asylum: A Social and Political History. Seattle: University of Washington Press, 2016. Project MUSE., https://muse.jhu.edu/. For additional information about this book https://muse.jhu.edu/book/47599 Access provided by University of Washington @ Seattle (5 Jan 2017 18:11 GMT) 3 A Thousand Years of Medieval Sanctuary God in heaven forbid We should infringe the holy privilege Of blessed sanctuary! Not for all this land Would I be guilty of so deep a sin. —Shakespeare, Richard III, Act 3, Scene 1 In the fourth century CE, the Roman Empire made a transi- tion from one state religion to another by transforming pagan prac- tices and institutions into Christian ones. Sanctuary was already an ancient custom among many peoples of the empire, from Germans to Hebrews. The first Christian emperor, Constantine, embraced the institution of sanctuary. The Theodosian Law Code of 392 formally codified church sanc- tuary, limiting it according to the type of crime and the character of the accused. Debtors, embezzlers of state funds, Jews, heretics, and apostates were to be excluded from its benefits. Around 450 CE, Theodosius the Younger extended sanctuary from the church interior to the churchyard walls or precincts, including the bishop’s house, cloisters, and cemeteries. About fifty years later, Justinian’s Law Code excluded public debtors, tax officials, murderers, rapists, and adul- terers from sanctuary. But such people often did obtain refuge on church premises over the next 1,100 years. Catholic Church councils laid down rules for church sanctuary throughout the Christian world. As early as 344 CE, the Council of Sardia officially recognized sanctuary in churches, but it did not pro- claim any right to asylum in churches. (It would be anachronistic to talk of any individual right in this context.) 39 40 ChaPteR 3 Fourth-century church fathers such as Augustine, John Chrysos- tom, and Ambrose personally protected fugitives and preached on the inviolability of churches. The Council of Orange, 511 CE, declared, “No one was permitted of his own authority to remove by force from churches those who had fled to them, but they had to apply to the bishops, who took cognizance of the complaints of the slaves, and the wrongful acts of their masters, and interposed to obtain pardon for the former, guaranteed by an oath of the master to observe it or pay two slaves to the church” (Mazzinghi 1887: 90). In the late seventh century, the Council of Toledo declared excom- munication as the penalty for violating sanctuary. It should be kept in mind, however, that transportation and communication were so poor and the rule of law so precarious that legal codes and conciliar proclamations often had little effect, unless officials, clerics, and sec- ular rulers saw the advantages of upholding and enforcing them on the local level. On the one hand, rulers understood that the peace of the church was also the king’s peace (Sartain 2002: 34). On the other hand, the Catholic Church struggled to exert exclusive control over sacred spaces and objects, such as relics housed in churches. To main- tain the sanctity of church premises (and the power of the church as an institution), it was necessary to protect everything and everyone, even fugitives, within them. Above and beyond secular law codes, the church exercised its authority by regulating sanctuary. Pope Leo I (440–61 CE) decreed that church officials were to examine all sanctuary seekers. As sanctified personages, bishops could then grant sanctuary. They could act as intercessors and advocates on behalf of fugitives, becoming interme- diaries between accused wrongdoers and those seeking private ven- geance or legal redress. They also assumed the authority to subject sanctuary seekers to “penitential discipline” and “spiritual punish- ment” (Siebold 1937: 535). The Council of Reims, 630 CE, decreed that “a person delivered by the church from pain of death had to promise before he left to make penance for his crime and to fulfill whatever canonical punishment might be imposed” (quoted by Sartain 2002: 42). The church undertook to exercise mercy and dispense justice in a world that had little time for either. a thoUsand yeaRs of medievaL sanCtUaRy 41 As far as the church was concerned, its power to grant sanctuary came from God and thus superseded that of the state. As a result, secular officials were not allowed to pursue sanctuary seekers into the church. Such pursuit would amount to sacrilege. Public authori- ties’ legal right to seize a sanctuary seeker was thereby suspended (Siebold 1937: 535). Meanwhile conflicts between church and state over the extent and exercise of each institution’s authority led to a gradual erosion of church power, a process that took many centuries. During early medieval times in European countries and Britain, the secular legal system was thoroughly corrupt and ineffective when it existed at all. The king was the lawgiver, and if he was absent from the kingdom or in conflict with the nobility, lawlessness reigned. Gangs composed of nobles or their vassals controlled parts of king- doms. Men of lower rank carried knives and gentlemen wore swords, so any quarrel could end in bloodshed, especially since society viewed the willingness to engage in violence as a valuable male quality (Bel- lamy 1973: 25). Armed men could bribe, intimidate, or even kill judges, juries, and witnesses and get away with it. Crime was not the monopoly of the lower orders. Violent feuds were common among the nobility and gentry, and private individuals avenged killings with impunity. Nobles and gentry were as likely to commit crimes as the poor, although most crimes were thefts caused by poverty. Penalties were severe. In England the penalty for stealing goods worth more than 1 shilling was death. It was in this context that people (usually men) accused of serious crimes fled to church sanctuary. To the clergy, crime was the consequence of man’s fall from grace, and the church stood for mercy to sinners (Bellamy 1973: 32). Thus violence within the church’s sacred precincts was forbidden. Sanctu- ary seekers had to sign an oath upon entry that they would not com- mit violent acts in the church. Innocent people also sought sanctuary. During the limited time they were allowed to stay in the church (three to forty days, depending on the period and the place), negotiations could be conducted with the secular authorities to forestall private vengeance killing. The German tribes that came into contact with the declining Roman Empire did not provide sanctuary in their temples to crimi- 42 ChaPteR 3 nals (Cunningham 1995: 221). But under the Merovingian kings, who ruled in the former Roman province of Gaul from the mid-fifth to the eighth centuries, Roman and German concepts of sanctuary merged: Criminals could find refuge from private vengeance and severe pun- ishments but remained subject to the public legal system. The sanc- tuary seeker who was delivered to the secular court was protected from capital punishment and brutal treatment. The German kings also borrowed exile and banishment, accompanied by confiscation of personal property, from Roman law. Charlemagne, who united most of Western Europe between 800 and 814 CE, allowed sanctuary but intervened to prevent feuding and assert the royal right of pardon and punishment. His Saxon Capitulary of 785 declared, “If anyone seeks refuge in a church, no one should attempt to expel him by force, but he should be permitted to have his peace until he presents himself to judgment; and his life should be spared in honor of God and Holy Church” (quoted by Jones 1994: 27). However, Charlemagne reserved the power to send the fugitive wherever he pleased. He was one of many kings who tried to bend the ecclesiastical system to their own political purposes, proclaiming themselves monarchs by divine right and challenging the authority of the pope and his bishops. Meanwhile, in Arabia In the seventh century CE, the Prophet Muhammad was creating what would become the world religion of Islam. Encountering resistance and violent persecution, the Prophet “sought a more receptive envi- ronment for his message, which he eventually found in Medina, a mainly agricultural community in western Arabia. In 622 AD, Muham- mad and his first followers, who became known as al-muhajirin (the migrants) left Mecca and settled in Medina” (An-Na’im 1990: 12). This flight to sanctuary is known as hijra, and that year marks the begin- ning of the Muslim calendar. Hijra had ancient roots in Arab traditions of hospitality. Accord- ing to Westermarck (1909: 162), “At certain Arabian shrines the [pre- a thoUsand yeaRs of medievaL sanCtUaRy 43 Islamic] god gave shelter to all fugitives without distinction.” Among the desert Arabs, any tent could be a sanctuary for a short period (Bau 1985: 127–28). In many tribal cultures that adopted Islam, sanctuary was (and is) connected to the practice and prevention of vengeance. In Afghanistan, for example, the traditional Code of Pashtunwali includes not only vengeance and feuding but hospitality and sanc- tuary. The traditional Bedouin practice of nazaala is an example of the link between sanctuary and conflict resolution (Obermeyer 1969: 201; see chapter 2). Muslim religious practices have preserved and continued these venerable traditions. In late nineteenth-century Morocco, “the tombs of saints and mosques offer shelter to refugees, especially in those parts of the country where the Sultan’s government has no power” (Westermarck 1909: 161). Muslims have taken the idea of sanctuary with them as they spread their religion around the world, from Ara- bia to Indonesia to Detroit, Michigan.