The origin and development of the moral ideas

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?

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?

The answer lies in certain ideas which refer to human as well as divine protectors of refugees. The god or saint is in exactly the same position as a man to whose house a person has fled for shelter. Among various peoples the domicile of the chief or king is an asylum for criminals;203 nobody dares to attack a man who is sheltered by so mighty a personage, and from what has been said above, in connection with the rules of hospitality, it is also evident why the chief or king feels himself compelled to protect him. By being in close contact with his host, the suppliant is able to transfer to him a dangerous curse. Sometimes a criminal can in a similar way be a danger to the king even from a distance, or by meeting him, and must in consequence be pardoned. In Madagascar an offender escaped punishment if he could obtain sight of the sovereign, whether before or after conviction; hence criminals at work on the highroad were ordered to withdraw when the sovereign was known to be coming by.204 Among the Bambaras “une fois la sentence prononcée, si le condamné parvient à cracher sur un prince, non-seulement sa personne est sacrée, mais elle est nourrie, logée, etc., par le grand seigneur qui a eu l’imprudence de se tenir à portée de cet étrange projectile.”205 In Usambara even a murderer is safe as soon as he has touched the person of the king.206 Among the Marutse and neighbouring tribes a person who is accused of any crime receives pardon if he lays a cupa—the fossilised base of a conical shell, which is the most highly valued of all their instruments—at the feet of his chief;

and a miscreant likewise escapes punishment if he reaches and throws himself on the king’s drums.207 On the Slave Coast “criminals who are doomed to death are always gagged, because if a man should speak to the king he must be pardoned.”208 In Ashantee, if an offender should succeed in swearing on the king’s life, he must be pardoned, because such an oath is believed to involve danger to the king; hence knives are driven through the cheeks from opposite sides, over the tongue, to prevent him from speaking.209 So also among the Romans, according to an old Jewish writer, a person condemned to death was gagged to prevent him from cursing the king.210 Fear of the curses pronounced by a dissatisfied refugee likewise, in all probability, underlay certain other customs which prevailed in Rome. A servant or slave who came and fell down at the feet of Jupiter’s high-priest, taking hold of his knees, was for that day freed from the whip; and if a prisoner with irons and bolts at his feet succeeded in approaching the high-priest in his house, he was let loose and his fetters were thrown into the road, not through the door, but from the roof.211 Moreover, if a criminal who had been sentenced to death accidentally met a Vestal virgin on his way to the place of execution, his life was saved.212 So sensitive to imprecations were both Jupiter’s high-priest and the priestesses of Vesta, that the Praetor was never allowed to compel them to take an oath.213 Now, as a refugee may by his curse force a king or a priest or any other man with whom he establishes some kind of contact to protect

him, so he may in a similar manner constrain a god or saint as soon as he has entered his sanctuary. According to the Moorish expression he is then in the ʿâr of the saint, and the saint is bound to protect him, just as a host is bound to protect his guest. It is not only men that have to fear the curses of dissatisfied refugees. Let us once more remember the words which Aeschylus puts into the mouth of Apollo, when he declares his intention to assist his suppliant, Orestes:—“Terrible both among men and gods is the wrath of a refugee, when one abandons him with intent.”214