Asylum, Right of

ASYLUM, RIGHT OF: Among practically all nations is found an early belief that places dedicated to the service of divine beings acquire a sanctity which makes them inviolable places of refuge for people pursued by their enemies. Specific prescriptions for the carrying out of this principle are found in the Mosaic law (Ex. xxi, 13; Deut. xix, 7-10). Certain temples among the Greeks had the same quality; and in Rome, where originally only special temples had been places of refuge for slaves, under the empire statues of the emperor were considered as affording protection, which the law definitely recognized in the case of slaves. In early Christian times the bishops possessed the privilege of interceding for accused persons or condemned criminals, who accordingly fled to the churches; but these were not considered inviolable asylums either by the ecclesiastical or by the imperial law. On the contrary, the latter definitely provided against abuses which had grown up in connection with this practise.

The right of asylum first received legal recognition for the West in 399; this was made more definite in 419, extended by Valentinian III (425-455), and regulated by Leo I in 466. But Justinian restricted it in 535; and the final shape assumed by the Roman law was that certain defined classes of persons who might have taken sanctuary in the churches could not be removed against their will, while the bishops had the right, but not the duty, of allowing them to remain there. In the Germanic kingdoms forcible violation of an asylum was indeed forbidden; but the fugitive had to be surrendered, though he was exempted from the penalty of death or mutilation. In the Frankish kingdom the Decretio Chlotharii (511–558) took a position in harmony with that of the Synod of Orléans (511); the surrender of the fugitive was only required on an oath being given to renounce the penalties just mentioned; but no secular punishment was provided for the violation of sanctuary, and the Carolingian legislation did away with this oath, while it denied the right of asylum altogether to those condemned to death. Under the influence of the Decretum Gratiani and other collections of decretals, the right of asylum was considerably extended; and this extension has been partly confirmed, partly revised by various papal decisions since the sixteenth century.

In general the right may be said to attach to churches and other buildings directly connected with them, to a certain amount of adjacent ground, to the whole enclosures of monasteries, to hospitals and similar pious institutions, and to episcopal palaces. The fugitive, whether judicially condemned or not, and even if he has escaped from prison, may not be repulsed or removed, even with his consent, by state officers. He may only be surrendered when what he has done comes under the head of a casus exceptus, such as murder, treason, robbery of churches, etc. The violation of sanctuary is sacrilege, and incurs excommunication ipso facto. The right of asylum, however, provoked a secular reaction after the sixteenth century, which in the eighteenth went as far as total abolition in some countries. This is now everywhere the case, though the Church holds to the right in principle.

(E. Friedberg.)

Bibliography: The fundamental book is Rittershusius, Ἀδύλια, hoc est, de jure asylorum, Strasburg, 1624, reprinted in Critici Sacri, i. 249 sqq., best ed., Amsterdam, 1698; S. Pegge, in Archæologia, vol. viii (published by the Society of Antiquaries, London, 1770 sqq., gives history of Asylum in Great Britain down to James I); Bingham, Origines, book viii, chap. xi; J. J. Altmeyer, Du Droit d’asils en Brabant, Brussels, 1852; A. Bulwinoq, Das Asylrecht in seiner geschichtlichen Entwickelung, Dorpat, 1853; C. R de Beaurepaire, L’Asile religieux dans l’empire romain et la monarchie française, Paris, 1854; J. J. E. Proost, Histoire du droit d’asile religieux en Belqique, Brussels, 1870; A Stöber, Recherches sur le droit d’asile, Mülhausen, 1884; J. F. Stephen, History of Criminal Law, vol. i, chap xiii, London, 1883; A. P. Riessel, The Law of Asylum in Israel, Leipsic, 1884; A. Gengel, Asylrecht und Fürstenmord, Frauenfeld, 1885; H. Lammasch, Auslieferungspflicht und Asylrecht, Leipsic, 1887; P. Hinschius, Kirchenrecht, iv, 380, Berlin, 1888; N. M. Trenholm, Right of Sanctuary in England, University of Missouri, 1903.