deferred without danger to public order, to be seized even in

the church.1

96. Zeal of the Clergy for the Maintenance of this Right.

The right of sanctuary, under wise restrictions, was too much in keeping with the mild and merciful principles of the Christian religion, not to enlist in its defence the warmest sympathies of the clergy. Hence, we find the bishops and councils testifying generally great zeal for its preservation, and appealing to it with almost invariable success, sometimes in defence of persecuted innocence, sometimes to obtain the pardon of criminals who had taken refuge in the church, or to obtain at least a mitigation of the punishment which they had incurred; but above all, to prevent the rigour of human justice from depriving them, as was frequently the case, of the spiritual succours which religion never refuses to sinners, and which none need more than the greatest criminals. These were the true motives of the zeal which bishops and councils invariably evinced for the maintenance of the right of sanctuary: they knew well, it is true, the authority vested in the magistrate for the repression and the punishment of crimes opposed to public order and to the rights of individuals; and far from wishing that guilt should go unpunished, they strongly acknowledged the necessity of inflicting in certain cases severe punishment on criminals;3 but they wished that the severity of the magistrate, as well as of the government, should be tempered by clemency; and that in punishing sin, nothing should be left untried to save the sinner, in order that the temporal punishment of the criminals should contribute to their eternal salvation. St. Augustine explains all

Cod. Theod. and Cod. Justin. ubi supra. Index of the Hist. Eccl. of Fleury, and of the Hist. des Auteurs Ecclés, of D. Ceillier, art. Asiles.

2 Thomassin, ubi supra. The lives of St. Augustine, St. Basil, and St. John Chrysostom, contain many remarkable examples of this charitable interference of the prelates in favour both of criminals and of the innocent. See Fleury, and D. Ceillier, ubi supra.

See our reflections, supra (n. 47, et seq.), on the moderate use of temporal penalties against heresy and other crimes of public impiety,

these views admirably in a letter to Macedonius, vicar of Africa, in which he treats the subject fully. "Do you wish to know,' says the holy doctor, "why we intercede as much as we can for all criminals? It is because all sin appears pardonable, so long as the guilty person promises to amend. That is your maxim; it is also ours. We are, therefore, far from approving sin, since we wish rather that people should refrain from it; and if we petition that it should not be punished, it is not because we love it, but because while we abhor the crime, we pity the criminal; and that the greater the horror we have of the evil, the more we dread that he who has committed it should die without having had time to amend. Our love for men, therefore, urges us to intercede for criminals, lest from that punishment which ends with their life, they fall into the punishment which never ends. You can have no doubt that religion authorizes our course, since God himself, with whom no injustice dwelleth, that God, whose power knoweth no limit, who seeth not only what each one is, but what he afterwards is to be, maketh nevertheless, as the Gospel says, his sun to rise on the unjust, and his rain to fall on the wicked, as well as on the just. But if amongst the wicked whom he spareth, and to whom he leaveth health and life, there be many whom he foreseeth will never do penance, and whom he beareth, nevertheless, with the same patience as the others; with how much greater reason ought not we to be touched with compassion for those who promise to amend, since, although we do not know that they will be faithful to their promises, we must, at least, always hope they will. The terrors of the law are, it is true, most usefully employed to repress the audacity and the lawlessness of the wicked: these terrors are useful not only to the good, who by that means live in security among the wicked, but to the wicked themselves, who, under the just punishments

1 S. August. Epist. 153 (alias 54), ad Macedonium. Fleury gives an analysis of that letter, Hist. Eccl. vol. v. book xxii. n. 52. D. Ceillier, Hist. des Auteurs Ecclésiastiques, vol. xi. p. 245, &c. Thomassin, ubi supra, ch. xcv. n. 2, &c.

inflicted on them, may call on God and be converted. Nevertheless, the intercessions of the bishops are not contrary to the order established among men; nay, they exist only by that order; and the pardon which the intercessor obtains for the criminal is the greater, as the punishment was more deeply merited. It may happen, no doubt, that the pardon granted to a criminal who was about being condemned, may have consequences directly the reverse of what we expected. It may happen that the very person whose life we have saved by our intercessions, may yet deprive many others of their lives; and that his audacity, emboldened by impunity, may abuse the indulgence that has been given to him; or that if he profits by it for his own reformation, the hope of a similar impunity may seduce others into similar or perhaps greater disorders. These evils, which may result from our intercessions, must not, however, be imputed to us; nothing should be laid to our account but the good which we intend, and which we endeavour to effect; for in interceding for the guilty we wish to make religion amiable by examples of mildness, that those whom we deliver from a temporal death, may live so, that they shall not fall into eternal death, from which none can deliver them."

97. Advantages of this Right when duly restricted.

From these observations we may judge what value is to be attached to the opinions of some modern authors, who represent the right of sanctuary as the fruit of ignorance and superstition, as an abuse of ecclesiastical power; finally, as an encouragement to criminals, by promising to them impunity. Much declamation on this point might have been spared, if those writers had reflected that the right of sanctuary is coeval with society itself; that in a greater or less degree it has been admitted by all ancient lawgivers, and by all nations, even the most civilized; that God himself had sanctioned it, though under wise restrictions, in the law of Moses; that at the epoch of the

1 Numb. XXXV.

1

;

establishment of Christianity it was natural to apply to the churches a right founded on usage so ancient and so universal finally, that this right, when restricted within just limits, tends of its own nature to keep alive among the people a profound respect for the holy place, and for the Deity himself, and to prevent a multitude of excesses fatal alike to public order and to the safety of individuals. This right no doubt might be abused, as the most useful and legitimate institutions are every day abused; but those abuses should not prevent us from acknowledging the great advantages which it produced. In the infancy of society especially, and in general in all nations not much advanced in civilization, nothing is more useful than the right of sanctuary to supply the defect of laws and government; to check the revenge of individuals, who commonly imagine that they have a right to do justice to themselves; finally, to prevent or to moderate the first impulses of revenge, which are often unjust, and always dangerous. Montesquieu himself, struck with these considerations, could not but admire on this point the wisdom of the laws of Moses, and approve generally the right of sanctuary, provided it were placed under proper restrictions, to prevent abuses. "As the Divinity," he observes," is the refuge of the unfortunate, and as none are more unfortunate than criminals, men have been naturally led to believe that the temples were an asylum for them; and this idea appeared more natural among the Greeks, among whom murderers expelled from their city and from the society of man, seemed to have no other home but the temples, no other protectors but the gods. This right regarded at first none but involuntary homicides; but when great criminals were included in it, there was a gross incon

1 Correct by these observations the Annales du Moyen Age, vol. vii. p. 337; Hegewisch, Hist. de Charlemagne, p. 176; Gaillard, Hist. de Charlemagne, vol. ii. p. 105, &c.; De Pouilly, Dissert. sur l'Origine et les Progrès de la Jurid. Ecclés. (Mém. de l'Acad. des Inscript. vol. xxxix. 4to. p. 576, &c.).

2 See, in confirmation, Bernardi, De l'Origine et des Progrès de la Législation Française, book i. ch. ii. p. 76; Lingard, Anglo-Saxon Church, ch. iii. 'Montesquieu, Esprit des Lois, book xxv. ch. 3, versus finem.

sistency; for if they had offended men, much more had they offended the gods. The laws of Moses were very wise. Involuntary homicides were innocent; but they should be removed from the sight of the relatives of the slain; a sanctuary was therefore established for them.1 Great criminals deserve no sanctuary: they had none. The Jews had only a portable tabernacle, which continually was changing its place; that excluded the idea of a sanctuary. It is true they were to have a temple; but the criminals who might flock thither from all parts would trouble divine service. If the homicides were expelled from their country, as among the Greeks, they might, it was to be feared, adore strange gods. All these considerations led to the establishment of cities of sanctuary, where the fugitives should remain until the death of the sovereign pontiff." An attentive perusal of history is enough to convince any person, that in the New as well as in the Old Law, the ministers of religion, and the sovereign pontiffs in particular, far from abusing their authority to extend the right of sanctuary to imprudent limits, have at all times co-operated with princes in correcting their abuses, and even in restricting them more and more in proportion as they became more liable to abuse, and less necessary for the maintenance of public order.

2

SECTION V.

Judicial Power of the Bishops in Temporal Matters under the Christian Emperors.3

98. Origin of Ecclesiastical Jurisdiction in Temporal Matters.

As we have already remarked, one of the principal personal immunities of the clergy under the Christian emperors was

1 Numb. xxxv.

2 See, in support of this assertion, the authors cited supra, n. 2, page 143. 3 Cod. Theod. lib. xvi. tit. ii. passim. Cod. Justin. lib. i. tit. iv. Thomassin, Ancienne et Nouvelle Discipline, vol. ii. book iii. ch. ci. &c. De Héricourt, abridgment of the same work, part ii. ch. xxix. Petit-Pied, Traité des Droits et des Prérogatives des Ecclésiastiques; Paris, 1705, 4to. part i. p. 62, &c. Bingham, Origines sive Antiquit. Eccles. tom. i. lib. ii. cap. vii.; tom. ii. lib. v. cap. ii. Fleury, Hist. Eccl. vol. xix. 7th Discourse, n. 4. Dupuy, Traité de la Jurid. Crimin. part i. ch. ii. viii. &c. (at the end of the Traité des Libertés de l'Église Gall.).