ASILO, DIRITTO di. - It is the right of immunity acquired by one who, guilty or in conflict with the authority that administers justice, takes refuge in a sacred place or near a sacred thing. The place itself is called an asylum (from the Greek word šōwōxē, "inviolable"), to indicate precisely its inviolability.
The custom, privilege or law by which persons or things in certain places were sheltered from any possibility of arrest offered protection to the individual and represented a corrective to the barbaric tradition of blood vengeance and, at the same time, to the legislation of the State. It was widely diffused among the Semitic peoples and in particular among the Hebrews. The idea of justice, innate in man, had been transformed into that of vengeance, which was exercised by the family of the slain; to correct excesses and to distinguish culpable homicide from accidental and provoked homicide, in the Mosaic Law the right of asylum was established and six cities were designated where those guilty of involuntary bloodshed (qui nolens sanguinem fuderit) could find safe refuge while the trial against them was being conducted (Ex. 21, 13-14; Num. 35, 6 and 11-34; Deut. 4, 41-43). The benefit of asylum was extended also to citizens of another nationality or religion; excluded from it were those guilty of crimes such as theft, adultery, etc. The guilty party remained in the asylum, even if recognized as guilty, for a year or until the death of the high priest, so that hatred might be quelled in men's minds and he might afterward enjoy his freedom unconditionally.
In Egypt too, especially in the Hellenistic era, there is evidence of the right of asylum, which was granted by the sovereigns to places of worship. In the 3rd and 2nd centuries B.C. it seems to have been reserved to certain "first-class" temples such as that of Memphis. It was granted more liberally later, perhaps because the dynasty intended to win over the inhabitants. The privilege, much sought after by the priests because it constituted an enhancement of their temple, was extended also to an adjoining zone established for each individual case and marked out by limestone stelae placed "to the four winds." Severe penalties were imposed on transgressors. The strategos was required to oversee observance of the royal decree.
In Greece this right was widely practiced; but, whereas at first the majority of temples enjoyed this privilege, because of the abuses that had arisen from it, it became necessary to regulate and limit the right itself, which in the classical era was already restricted to a few temples. The asylum (ἀσπύλῳ) could be sought by any criminal or unprotected individual (slave, insolvent debtor) and lasted as long as the refugee remained within the sacred precinct. Athenian legislation, however, excluded those condemned to death.
The Romans, having conquered Greece and Asia Minor, at first respected all claims of asylum asserted by temples and cities, but, once disorders and abuses had occurred, Tiberius, in A.D. 22, ordered a verification of the titles on which such a privilege was based. The temples to which the right of asylum was recognized affixed a bronze plaque reproducing the senatus consultum of authorization. First among these was the temple of Diana at Ephesus.
This right of asylum, which occupied a great place in Greek and Eastern history, was not admitted by the Romans (cf. also Livy, XXXV, 51), except in the most ancient times, as is shown by the right of asylum attached to the temple of Aventine Diana (Festus, s.v. Servorum dies) and the rite of succession to the priesthood in the temple of Diana Nemorensis, where the slave who had taken refuge there became its priest (rex Nemorensis), provided he had killed the priest in office (Ovid, Fasti, III, 971 ff.; Strabo, V, 3). A lesser form of asylum was that which slaves, debtors and criminals found by taking refuge at an altar or a statue (cf. examples in Plautus and Terence), so much so that among the meanings of ara there is also that of refugium. Servius (Aen., II, 761) informs us that the right of asylum was limited to those temples that had written it into their lex dedicationis.
Christianity claimed for its churches and for the cemeteries surrounding them the privilege that the sanctuaries of the East had enjoyed. The causes that had given rise to asylum in the pagan temples had not disappeared with the triumph of Christianity; indeed they had perhaps increased, because precisely then a long period of turmoil and barbarism was beginning.
As for its origin, it is presumed that the institution of the right of asylum was first introduced in fact and then consecrated by law, perpetuating itself on the basis of the ancient privileges of the pagan temples, especially Eastern ones. Given that Greek Egypt had numerous such asylums 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 is to be sought. Numerous and characteristic analogies are found even in the measures that delimit the areas of immunity (the bull of Nicholas II of 1059) and in the stelae that are replaced, in Christian asylum, by the four crosses (termini salvationis) fixed at the four cardinal points.
As early as the 4th century Christian churches were places of asylum; numerous in this regard are the testimonies of St. Ambrose and of Ammianus Marcellinus. In 392 a law of Theodosius I introduced certain limitations; but in 399 the right of asylum was legalized by the Council of Carthage. Initially it had to be limited to the church; in the constitution of Nov. 21, 419 the privilege was extended to 50 paces beyond the doors of the basilica and in 431, by edict of Theodosius and Valentinian, to the cloister and the ground it enclosed.
The right of asylum in Christian churches differed from the common right of asylum of the pagan and Eastern religions, because to respect for the place and the divinity was added "charity," to which religious and the clergy are particularly obliged, and it was linked to the power of intercession recognized to bishops on behalf of those who had taken refuge "in ecclesiam."
In barbaric times, in the Germanic kingdoms, since the right of asylum could not be admitted absolutely, it was forbidden to violate the right of the sanctuary, but the guilty party had to be handed over after it had been solemnly sworn not to condemn him to death; and thus the capital penalty was often commuted to a fine. The Council of Orléans of 511 established the same thing, and the Decretum of Gratian (c. XVII, q. IV) absorbed this provision, which prescribed the penalty of 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 secular as well, and the abuses that arose from it made the absurdity of such a widely extended privilege felt. In the 17th century, while awaiting more favorable times for a limitation or suppression of local immunities, projects of procedure were attempted to reconcile ecclesiastical claims, sovereign rights and the requirements of public order. These proposals served to elaborate laws and concordats. It was achieved that certain categories of delinquents be excluded from immunity, but the principle of local immunity was always maintained by the Church. The constitution Apostolicae Sedis of Oct. 12, 1869, § 2, art. 5, punished the violation of the right of asylum with excommunication "latae sententiae," reserved to the Pontiff. This provision was not reproduced by the current CIC, which nevertheless keeps intact the principle of the right of asylum in can. 1179: "Ecclesia iure asylli gaudet ita ut rei, qui ad illam confugerint, inde non sint extrahendi, nisi necessitas urgeat, sine asensu Ordinarii, vel saltem rectoris ecclesiae."
In England, where the first mention of the right of asylum is found in a code of laws issued by King Ethelbert in 600 A.D., the admission of fugitives into churches was regulated by numerous conditions, and the right itself was confined to a fixed number of churches, reduced by Henry VIII in 1540 to seven. Limited by James I in 1623 as regards those responsible for crimes, it was subsequently (1697 and 1723) abolished in civil matters as well.
In France, limited by an edict of Francis I in 1539, it was abolished with the Revolution. In Germany the definitive abolition came 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 restore it; but it prescribes, in art. 9, that "save in cases of urgent necessity, the public force may not enter, for the exercise of its functions, buildings open for worship without having given prior notice to the ecclesiastical authority." A broader immunity is recognized by art. 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 consequence of the extraterritoriality which they enjoy together with other pontifical properties.
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