ASYLUM, RIGHT OF. - It is the right of immunity acquired by one who, guilty or in conflict with the authority administering justice, takes refuge in a sacred place or near a sacred object. The place itself is called an asylum (from the Greek word ἄσυλον, "inviolable") to indicate precisely its inviolability.
The custom, privilege, or law by which persons or things in certain places were shielded from any possible arrest provided protection for the individual and represented a corrective to the barbaric tradition of blood vengeance and, at the same time, to state legislation. It was widely practiced among Semitic peoples and in particular among the Hebrews. The idea of justice, inherent in man, had been transformed into that of vengeance, which was exercised by the family of the slain; to curb excesses and distinguish culpable homicide from accidental or provoked homicide, the Mosaic Law established the right of asylum and designated six cities where those guilty of involuntary bloodshed (qui nolens sanguinem fuderit) could find safe refuge while their trial was underway (Ex. 21:13-14; Num. 35:6 and 11-34; Deut. 4:41-43). The benefit of asylum was extended even to foreigners or those of another religion; it was excluded for those guilty of crimes such as theft or adultery. The fugitive remained in asylum, even if found guilty, for a year or until the death of the high priest so that hatred might subside in the minds of men and he could thereafter enjoy his freedom unconditionally.
In Egypt, especially in the Hellenistic period, there is evidence of the right of asylum, which was granted by sovereigns to places of worship. In the 3rd and 2nd centuries B.C., it seems to have been reserved for certain "first-class" temples, such as that of Memphis. Later, it was extended more widely, perhaps because the dynasty sought to win over the inhabitants. The privilege, much sought after by priests because it enhanced their prestige, also extended to a surrounding area determined for each individual case and marked by limestone stelae placed "at the four winds." Severe penalties were imposed on transgressors. The strategos was charged with overseeing compliance with the royal decree.
In Greece, this right was widely practiced; but while at first most temples enjoyed this privilege, abuses led to its regulation and limitation, so that by the classical period it was restricted to a few temples. Asylum (ἀσυλία) could be claimed by any criminal or unprotected individual (a slave, an insolvent debtor) and lasted as long as the fugitive remained within the sacred precinct. Athenian legislation, however, excluded those condemned to death.
The Romans, after conquering Greece and Asia Minor, initially respected all claims of asylum asserted by temples and cities, but after disorders and abuses arose, Tiberius, in 22 A.D., ordered a verification of the titles on which the alleged privilege was based. Temples granted the right of asylum displayed a bronze plaque reproducing the senatus consultum of authorization. The first among these was the temple of Diana at Ephesus.
This right of asylum, which occupied an important place in Greek and Eastern history, was not admitted by the Romans (cf. also Livy, XXXV, 51), except in the earliest times, as evidenced by the right of asylum attached to the temple of Diana on the Aventine (Festus, s.V. SERVUS SERVORUM DEI) and the ritual of priestly succession in the temple of Diana Nemorensis, where the slave who took refuge there became priest (rex Nemorensis) provided he had killed the incumbent priest (Ovid, Fasti, III, 971 ff.; Strabo, V, 3). A lesser form of asylum was that which slaves, debtors, and criminals found by taking refuge near an altar or statue (cf. examples in Plautus and Terence), so much so that among the meanings of asylum was also that of refugium. Servius (Aen., II, 761) states that the right of asylum was limited to those temples that had inscribed it in their lex dedicationis.
Christianity claimed for its churches and the cemeteries surrounding them the privilege enjoyed by the sanctuaries of the East. The causes that had given rise to asylum in pagan temples had not disappeared with the triumph of Christianity; indeed, they may have increased, for it was precisely then that a long period of turmoil and barbarism began.
As to its origin, it is presumed that the institution of the right of asylum was first introduced by custom and then consecrated by law, perpetuating itself on the basis of ancient privileges of pagan temples, especially in the East. Given that Greek Egypt had numerous such asyla and that Western Christianity had frequent contacts with Christian Egypt, it is not improbable that Egypt is the place where the origin of Christian asylum should be sought. Numerous and characteristic analogies are found even in the measures delimiting the areas of immunity (the bull of Nicholas II of 1059) and in the stelae that, in Christian asylum, were replaced by the four crosses (termini salvationis) fixed at the four cardinal points.
From the 4th century, Christian churches were places of asylum; there are numerous testimonies to this effect from St. Ambrose and Ammianus Marcellinus. In 392, a law of Theodosius I introduced some limitations; but in 399, the right of asylum was legalized by the Council of Carthage. Initially, it was limited to the church; in the constitution of 21 November 419, the privilege was extended to 50 paces beyond the doors of the basilica, and in 431, by an edict of Theodosius and Valentinian, to the cloister and the land it enclosed.
The right of asylum in Christian churches differed from the common right of asylum of pagan and Eastern religions because, in addition to respect for the place and the divinity, there was added the "charity" to which religious and the clergy were particularly bound, and it was linked to the recognized power of intercession of bishops on behalf of those who had taken refuge "in ecclesiam."
In the barbarian period, in the Germanic kingdoms, while the right of asylum could not be absolutely admitted, it was forbidden to violate the right of sanctuary, but the guilty party had to be handed over after solemnly swearing not to condemn him to death; thus, the death penalty was often commuted to a fine. The Council of Orléans in 511 established the same thing, and Gratian’s Decree (c. XVII, q. IV) incorporated this provision, which prescribed excommunication for violators. Other provisions are contained in the decretals of Innocent III (c. 6, 10, X, de immunitate ecclesiarum, coemeterii, et rerum ad eas pertinentium, III, 49).
From the churches, the right of asylum gradually extended to the houses of bishops, cardinals, princes, and ambassadors, becoming also secular, and the abuses that resulted made the absurdity of such a widely extended privilege evident. In the 17th century, pending more propitious times for limiting or suppressing local immunities, projects of procedure were attempted to reconcile ecclesiastical rights, sovereign prerogatives, and the demands of public order. These proposals served to elaborate laws and concordats. It was achieved that certain categories of offenders were excluded from immunity, but the principle of local immunity was always maintained by the Church. The Apostolic Constitution Apostolicae Sedis of 12 October 1869, § 2, art. 5, punished the violation of the right of asylum with excommunication "latae sententiae," reserved to the Pope. This provision was not reproduced in the current Code of Canon Law, which, however, maintains intact the principle of the right of asylum in can. 1179: "The Church enjoys the right of asylum so that those who take refuge in it are not to be removed therefrom, unless necessity urges, without the consent of the Ordinary or at least the rector of the church."
In England, where the first mention of the right of asylum is found in a code of laws issued by King Ethelbert in A.D. 600, the admission of fugitives into churches was regulated by numerous conditions, and the right itself was confined to a specific number of churches, reduced by Henry VIII in 1540 to seven. Restricted by James I in 1623 with regard to those guilty of crimes, it was subsequently suppressed (1697 and 1723) even in civil matters.
In France, restricted by an edict of Francis I in 1539, it was abolished with the Revolution. In Germany, its definitive abolition occurred only in 1780.
In Italy, the right of asylum was abolished by the Siccardi Law of 9 April 1850. The Concordat of 1929 did not properly reinstate it; however, it prescribes in Article 9 that “except in cases of urgent necessity, the civil authorities may not enter, for the exercise of their functions, into buildings open to worship without having given prior notice to the ecclesiastical authority.” A broader immunity is recognized by Article 22 for the Roman basilicas of St John Lateran, St Mary Major, and St Paul, not by virtue of the right of asylum, but as a result of the extraterritoriality enjoyed by these churches along with other papal properties.