[195] von Haxthausen, Transcaucasia, p. 160, n. *
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.[196] 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.[197] 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 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?
[196] Hegel, Grundlinien der Philosophie des Rechts, § 117, p. 108. Powell, ‘Outlines of Sociology,’ in Saturday Lectures, p. 82.
[197] 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.
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.[198] 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.”[199] There is an almost instinctive fear not only of shedding blood,[200] 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,[201] 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 forbidden to quarrel or fight upon consecrated ground.”[202] 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?
[198] Granger, Worship of the Romans, p. 223 sq.
[199] Robertson Smith, Religion of the Semites, p. 148.
[201] Among the Barea and Kunáma in Eastern Africa a murderer who finds time to flee into another person’s house cannot be seized, and it is considered a point of honour for the community to help him to escape abroad (Munzinger, Ostafrikanische Studien, p. 503). In the Pelew Islands “no enemy may be killed in a house, especially in the presence of the host” (Kubary, ‘Die Palau-Inseln in der Südsee,’ in Jour. d. Museum Godeffroy, iv. 25). In Europe the privilege of asylum went hand in hand with the sanctity of the homestead (Wilda, op. cit. pp. 242, 243, 538, 543; Nordström, 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.).
[202] Mariner, Natives of the Tonga Islands, ii. 232. Cf. ibid. i. 227.