The Right of Sanctuary

Doubtless it would surprise Mr. Al Capone, imprisoned on Alcatraz Island in San Francisco Bay, to learn that bad men of mediaeval England often found themselves in his plight, and that their exile was really connected with the right of sanctuary. But to good people, also, this ancient privilege should be of practical interest. Of course, as an English institution, sanctuary disappeared so long ago as 1624, when Parliament enacted “that no sanctuary or privilege of sanctuary shall be hereafter allowed in any case”; and it was never considered a part of the common law inheritance which America received from England. Thus sanctuary belongs to “the law’s lumber room,” to borrow the words which Mr. Watt, of the English Bar, used as the title of a collection of essays that appeared some forty years ago. To one who is interested only in the lighter side of this long vanished institution, Mr. Watt’s chapter on Sanctuary will be sufficient; although Sir Walter Scott should also be remembered for the picture which, in “The Fortunes of Nigel,” he drew of Al-satia as it was at the time when James I became King of England. But sanctuary can be profitably re-examined in the light of our own times, because it is closely related to three modern problems. I refer to Isolation and Parole of Convicts, to Debtors who are inclined toward Fraud, and to Slum Clearance Projects. Now, our ancestors had to deal with the same questions, and in their efforts the right of sanctuary played a great part. Hardly had the privilege been abolished, indeed, when substitutes had to be found; and the result is that the idea of sanctuary more or less governs us today, although veiled by modern terminology.

In its original form, and also its best aspect, the principle of sanctuary was that sacred places should be protected from acts of violence, no matter how strongly those acts might be justified by law. To that effect is the old Testament, and so is the Code of Justinian, which, in its elementary first book, outlines the right of mistreated slaves to “take sanctuary either in temples or at the statues of the emperors.” And so to this day one can read how the great Antoninus took time from other imperial tasks to make a ruling in the case of one Julius Sabinus, “whose slaves had found sanctuary at the sacred statue.” When the Church came, she emphasized the idea, applying it most particularly to cases where an offender was about to be seized in the name of the law. Remembering certain rough notions of mediaeval justice—the right of “hue and cry” and of “hot pursuit,” which authorized the injured party himself to seize the wrongdoer and inflict condign punishment upon him—it is not surprising that Rome forbade the apprehension of a criminal in the presence of the altar, which meant even at the door of a church. This notion, persisting as it did in England through the centuries that preceded the Tudors, is illustrated by an Information which was drawn for presentation at the Norfolk Assizes in 1452. This paper dealt with the misconduct of a gang of villains who were terrorizing the countryside, a thing which so often happened in the remote counties of mediaeval England; and among other things it said:

Item, un the Moneday next before Esterne daye, sex of the seid persones made a saute upon John Paston and hese two servauntes at the dore of the cathedrall cherce of Nor-weche, wyth swerdes, bokeler, and dagareis drawe smet at the seid Paston, on of them holdying the said Paston be bothe armes at hese bakke, as it semyth purposying there to have morderid the seid Paston and they had not a be lettyd; and also smet on of the servaunts of the seid Paston upon the naked hed wyth a swerd, and poluted the seyntewary.

To a lawyer, this charge seems slightly muddled, because the violation of sanctuary was a crime quite different from assault and battery—cognizable, indeed, in different courts and by different process. The grammarian, too, will find in it a certain anticlimax. The draftsman’s mind was attracted by the fact that John Paston and his servants had been beaten up; and the violation of sanctuary was plainly an afterthought. Herein the case is like that of the Scotch judge, who, in sentencing a man to die for the murder of a soldier, finished an eloquent description of the cruel stabbing with the remark: “And finally, I cannot forget that you pushed, drove and impelled the lethal weapon through the bellyband of the victim’s breeches, which were the property of his Majesty!” Rhetorical exercises apart, however, it remains true that the pollution of a church by acts of violence, even in the name of the law, had only one aspect for our ancestors.

But it was one thing to touch the altar rail, and quite another to take thought of the morrow. At first the breathless wretch would not think about meal times, nor did King Alfred when he ordained that, while the criminal could remain seven days in sanctuary, yet no one should give him food. But the fugitive, as famine seized him, doubtless thought, “What next?” The same point, of course, occurred to both Church and State.

Yet this is nothing but the problem that troubles us today, beset as we are with criminals who, although convicted of grave crimes, have succeeded in escaping judgment of death. The law of those days knew but one punishment for any crime of consequence, and that was death. But in every system of criminal justice there must be a certain power of dispensation. Roman law frankly acknowledged this, and in the Middle Ages sanctuary provided a rough substitute. This notion, as we all know, is present even with the modern theories of penal servitude. We have our State prisons and yet, speaking through our parole boards, we apply the theory that it is nice for a convict to start life over again.

So did our English ancestors in the like case, only they made a sporting event of it instead of classifying criminals; and also, with canny prescience, they thought that the experiment should be made at another country’s expense. It is common knowledge that men of the seventeenth century hit upon the idea of transporting villains to the colonies, making it a matter of death if a transported criminal should return to England. Their forefathers made the same point in the case of a criminal who had been able to gain sanctuary. As they knew he could not stay there forever, and it was equally certain that the felon should not be allowed to return to the bosom of his family, certain rules arose which governed the matter of his exile.

According to these regulations, the Church made the accused go to confession in the regular manner, and the law forced him to make a public admission of his guilt to the coroner as representing the King’s justice. This done, the miscreant must get out of the realm and stay out. As a result we have a ritual impressive and full of colour, like all things that in those days were prescribed by the Church and recognized by English custom. Clad in a gown that clearly showed his status, with cross on back, the felon wended his way from sanctuary to the sea; it being required that he reach his journey’s end within forty days after taking refuge in the church, and that he take the straight road, pausing only for nature’s demands in the way of eating, sleeping, and the like. Arrived at the nearest port, the criminal must take passage on the first ship to sail; and, if no vessel happened to be leaving at once, then, no matter what the weather, he must daily wade into the sea, continuing until the water reached his knees before he turned back to shore; and this he must do until a ship became available. Should the delinquent fail in any of these requirements, the king’s law took him into its grasp; and, as he had publicly confessed his crime at the outset, his conviction and execution were a certainty. Meanwhile the Crown did not go without gain, for all property which the emigrant left behind was seized by the King.

We can get a good picture of this business from an inquest which a London coroner held in the reign of Edward I. On a Sunday in the late spring of 1276, it befell that at the hour of Vespers one Gervase le Noreys (Norris, it would be now) got into a dispute with William de Lindesay. What they quarrelled about we do not know—probably Lindesay was brooding over the way his native Scotland had been treated by old Edward. It is equally uncertain what Lindesay was doing in London; but there he was, and it goes to prove that then, as now, London was not without her Scotch denizens. Anyhow, this Quentin Durward of an elder day lost his temper, and there was one less Briton in the world as a result, for Lindesay stabbed Norris in the left side of the latter’s back, from the effect of which wound Norris then and there died, right in the King’s highway. The canny Lindesay forthwith fled “to the Church, that is, the Chapel of St. Mary Barking Church,” and thus he was safe as to body and soul; but he must have been irritated by the fact that the coroner’s jury carefully inventoried for the King’s use the goods and chattels whereof he had been possessed. And so we learn that this thirteenth-century Scot lost to his national enemy, Edward, the following and no more, to-wit: One coat, or tabard, of the value of tenpence; one hatchet and one bow with three arrows, all valued at twopence; and one sheet, valued at fourpence. We can imagine that at the sight of this wardrobe the “four nearest neighbours” who were mentioned in the record, made unkind remarks of the sort that Dr. Johnson, five centuries later, was pleased to make as to the skimpy estates of Scotchmen who came to London to seek their fortune.

But of one thing his English neighbours could be sure, that they would never be troubled by Lindesay again; because, as I have said, once the convict got to foreign parts, it was better for him to stay there, inasmuch as if he were ever caught in England he would suffer judgment of death as a matter of course. Hard up though a banished man might be, only a miracle would permit of his going home. We have such an instance in the case of “a certain English knight” who, according to Matthew Paris, begged his bread through the countryside of Normandy until, a miracle intervening because of his having amended his ways, he was repatriated by good King Richard. The only man, indeed, whom history records as having boldly “beaten the rap” was Jack Cade, who will be remembered as having organized the Kentish rebellion of 1450 during the weak reign of Henry VI. As might be expected, however, Cade was an Irishman, and therefore imaginative. Having come to England and lived in the household of a great lord—for Cade appears to have been a man of family—this rascal committed murder, took sanctuary, made the lawful pilgrimage to the coast, and so found himself in France, where, naturally enough, he took part with the French in their final blows at the declining English power. Then, of course, he wanted to return to England; and so successful was the rogue in accomplishing his purpose, that, under the name of Aylmer, he won the hand of a squire’s daughter in Kent; and thereafter, as became his station, he went about dressed in scarlet. Shakespeare tells us the rest; how Cade finally pretended to be a Mortimer, and hence a cousin of the Duke of York; how he led a march to the great city, and striking London Stone, cried, “Now is Mortimer lord of London.” When Cade’s band was finally defeated, he was killed in a scuffle that attended his arrest; and it was not until after his death that a vengeful Crown discovered that Mortimer, alias Aylmer, alias Cade, was nothing but a returned sanctuary man.

But not many ventured upon such a colourful career as was Jack Cade’s, we may depend; and so I think we can leave the ordinary right of sanctuary at this point. The privilege, as we have viewed it so far, was confined to the case of the criminal who took refuge in a church, and then, within the quarantine period, left England forever. And, if sanctuary had been limited to that, I do not believe that there would have been any real desire to abolish the system. Nevertheless, abuses of sanctuary did exist, and, as a result, certain neighbourhoods, by no means attached to the altars of churches or even coterminous with churchyards, swarmed with persons on ticket of leave, and also contained large numbers of swindling debtors.

Before considering how this came about, we must notice the debtor, who, no less than the criminal, has always been a problem of society. We will always have, I hope, the sort of insolvent who observes the Beatitudes and also remembers the precept that one must be just before he is generous. But a delight of my profession is the debtor who walks with fraud —the slippery figure who glides through the ages, trailing clouds of writs and subpoenas. Now, both types of debtor enjoyed the right of sanctuary because of the fact that every creditor could enforce his judgment by causing the debtor to be imprisoned until the debt was paid. As to the debtors’ prisons of England, one generally reads Dickens; but the horrors of these places were also described by persons of whom Dickens probably never heard, such as a London merchant in the time of Henry VIII, and an English judge of the days of Edward VI. This latter unctuously reflected that “if the poor debtor in prison have no goods, he shall live of the charity of others, and if others will give him nothing, let him die, in the name of God, if he will, and impute the cause of it to his own fault, for his presumption and ill-behaviour brought him to that imprisonment.”

That was said at a time when the realm was temporarily ruled by the virtues of Calvinism. In earlier days a more easy-going world had considered that the fleeing debtor was entitled to sanctuary because of the dreadful fate that awaited him should he be captured before he got there. In any event the impecunious debtor, marching with the cross on his back and seeking passage abroad, was the precursor of the Georgian bucks who fled to France in order to avoid their creditors. In other words, going broke meant going abroad and staying there, if one could make the grade, and that was as true in the Middle Ages as it was in the days of Beau Brummell; thus Bacon tells us, in his life of Henry VII, that one of the expatriated Englishmen who were wont to advise Perkin Warbeck, the Flemish pretender, was “Heme, a mercer, that had fled for debt.” But probably, had the idea of sanctuary for debtors been confined within its original intent, there would have been little protest, because the English creditor of old apparently displayed the same sporting instincts with regard to his quarry, once the latter had stolen away, as were shown by Brummell’s tailor when he happened to meet his whilom customer on the sands of Boulogne.

But these two troublers of humanity, the paroled prisoner and the fraudulent debtor, came prominently to the fore in connection with abuse of sanctuary privilege. These outrages, like many other things in our history, were the result of well meant errors on the part of government. As far back as the twelfth century at least, there had arisen a custom of the Crown granting to certain abbeys and monasteries a right of sanctuary that differed from the original type previously discussed, in two particulars. In the first place, this kind of sanctuary was not limited to church and churchyard, but included a pretty large residence area as well. At least a fifth of London, so it was said, was occupied by three famous sanctuaries of this sort: the purlieus of Westminster Abbey, the precincts of St. Martin’s le Grand, and the part of Clerkenwell that surrounded the priory of St. John of Jerusalem. The provinces contained certain places of the like nature. One of them adjoined the famous shrine of St. John de Beverley; and we are told that, after the failure of Jack Cade’s rebellion, a follower, named Fauconbridge, “scope to seyntwarye to Beverle.” But the size of such a sanctuary was not its only characteristic. Instead of a mere overnight lodging being offered him, the murderer or debtor who reached this kind of place, could, if his means permitted, arrange to live there “pur amendement de son vie, durant son vie,” occupying a comfortable house, and taking his exercise within a fairly large area. In other words, people who fled to this type of sanctuary did not have to leave the country at all. Not for them the doleful march to the sea, there to take ship, and bid their native land good-night. On the contrary, according to the recitals of a statute of Edward III, the fraudulent debtor could “flee to the franchise of Westminster, of St. Martin’s le Grand of London, or other such privileged places, and there live a great time with an high countenance of another man’s goods and profits of said tenements and chattels, till the said creditors shall be bound to take a small parcel of their debt, and release the remnant.” As for the murderer and the ruffian generally, the privilege was equally available.

In justice to the Church, it may be observed that this kind of sanctuary was not of her making. To that effect was the judgment of the lords spiritual as well as temporal; of the same opinion was Christopher St. German, who wrote a book upon English law before the daystar came that was to guide Henry VIII; and we have also the authority of a Papal Bull of the times. In this Bull, indeed, the Pope declared that there was no authority in canon law for sanctuary being afforded a fraudulent debtor; and in the case of one Savage, the Prior of St. John’s lost his privileges because he could only trace them back to a Papal Bull; whereas the Abbot of Westminster was successful because his franchise came from royal grants, howbeit they had been blessed by early Popes. It was, then, the Crown, not the Church, which had to shoulder responsibility for the sanctuary that commonly was called Alsatia.

Just why such a neighbourhood should have borne the name of a territory which lay on the western marches of the Holy Roman Empire, is by no means clear; but in any event Alsatia, while perhaps not affording all the comforts of home, nevertheless offered a gorgeous vie de boheme. Sir Walter Scott has politely described the scene in his “Fortunes of Nigel”; but in 1517 a judge of the King’s Bench came nearer to the point when he said that Alsatia contained many houses of prostitution—” ‘bordell’ houses,” as he put it.

Of course it was incumbent upon the murderer or debtor to be quite sure that the neighbourhood in which he had taken up his abode was really a privileged sanctuary, because otherwise he was gambling with death or imprisonment. Thus we have the great case of Savage, already referred to above, which was decided by the Star Chamber in 1517. This gentleman, having committed murder, thought himself safe within the precincts of Clerkenwell, and he was living there in comfort when officer Roote (Rotte) laid hands upon him and dragged him to the Tower of London. The Prior of St. John’s intervened in the case, because he was interested in upholding the privileges of sanctuary claimed by his convent. However, the judges, bishops, and canon lawyers all decided against Savage, and so he was hanged. But Westminster Abbey saved her privileges in that case as on previous occasions; and her neighbourhood, indeed, was famous for the choicest collection of scoundrels, ruffians, and cheats that the broad land of England could furnish. These men and their doings have figured in the chronicles. “Squires of Alsatia” was the name they bore in literature; villains and swindlers (“faitours et decevours”) they were called by judges in the days of Henry VII.

It may be asked, however, why the Abbot of Westminster and other prelates similarly situated, fought for their privileges so tenaciously. Why should such a person enjoy seeing his abbey surrounded by the homes and resorts of wicked people? The answer, I think, lies in the fact that sanctuary was not abolished until long after the Reformation. The truth is that here was a problem of slum clearance. In this case there is always to be found the landlord who likes things as they are, because from shady tenants one can collect rent in advance, nor is one troubled about repairs and sanitation. I can remember that in one of our great cities a bad tenement section was owned and operated by a famous church. As Westminster derived an easy revenue from her rookeries, and could always count upon tenants who were obliged to stay, because they could not move out, naturally she wanted things to remain as they were. Her Protestant successors were moved by the same idea; and so through Elizabeth’s reign, and most of the period of James I, Alsatia continued to exist.

Nevertheless these sanctuaries fell upon evil days when Henry VII had time to attend to their case. That monarch, indeed, had good reason to dislike the idea of sanctuary. After each of the insurrections which occurred during his reign, one of Henry’s tasks was to pull, or cajole, various rebels from the holy places to which they had fled. Also, he detested the bullies of Alsatia because it seems that in 1487, shortly after his accession to the throne, the sanctuary men —”centuary homes”—of London were credibly informed that their sovereign lord had been defeated in a battle with the army which the last of the great barons had brought over from Ireland to back the pretensions of Lambert Simnel; whereupon these ruffians poured out of the purlieus of Westminster, and robbed the town houses of all the knights and lords who were absent with the King in the field. Very wroth was the King when he heard of this upon returning from the North, where he had beaten the insurgents at Stoke near Nottingham; but, as there was nothing he could do about the riot at the moment, Henry put Simnel to work as a turn-spit in the royal kitchen, and hoped for no more rebellions that would leave London unguarded.

And yet, with Tudor determination, Henry VII decided that he would do what he could toward cutting down the privileges of the wretches who had so annoyed him when he was absent with the army; and to that end he considered two points. First, there was the dangerous idea that a sanctuary man could break bounds, and yet reassert his immunity once he regained the hallowed precincts. Second, the King wanted to aid creditors in recourse upon the property of fraudulent debtors who had taken sanctuary. By the old law there was no recourse, because the debtor, prior to decamping, would make over all his property to a relative or friend, to hold for his benefit. It would do the creditor no good to protest, because he could not capture this property in any case, inasmuch as all available assets of a sanctuary man went to the Crown. Parliament, indeed, changed this by providing that in such cases the creditor, although deprived of the pleasure of jailing the debtor, at least could seize his goods; and, these statutes having died of inattention, Henry’s Parliament once more legislated to the same effect. This law, it may be said in passing, was the precursor of the great Statute of Fraudulent Conveyances which, enacted in the time of Elizabeth, is still the bedrock of our Anglo-American system.

But Henry VII wanted sanction of the highest order; and so he asked the Church to pronounce upon the frauds that debtors were committing, and the morality of sanctuary men being free to roam through London. Thus the father of Henry VIII obtained from Rome a Papal Bull which in a later age Sir Francis Bacon pronounced to be “very just and honorable.” This Bull, as paraphrased by Bacon, “qualified the privileges of sanctuary wherewith the King had been extremely galled, in three points. The first, that if any sanctuary man did by right or otherwise, get out of sanctuary privily and commit mischief and trespass, and then come in again, he should lose the benefit of sanctuary for ever after. The second, that howsoever the person of a sanctuary man was protected from his creditors, yet his goods out of sanctuary should not. The third, that if any took sanctuary for case of treason, the King might appoint him keepers to look to him in sanctuary.”

Of course any proposition that might relate to treason was of interest to Henry VII, and in that subject the eighth Henry took an even more passionate interest;, but for our purposes we may pass it by, because common villains are the subject of this story. And so, pushing great lords to one side, we may turn to what Henry VII did when he obtained these moral sanctions from the head of Christendom. The King did just what every good citizen of London doubtless expected him to do; namely, he drove at the chief offender who, in view of what has been said, was the Abbot of Westminster. So on the Sunday next after Candlemas, 1487, the Abbot appeared before the King in Council, and there he was asked to explain why he harboured so many murderers, fraudulent debtors, and other undesirables. To our eyes the procedure is strangely modern, because the Abbot was in the position of a person who is summoned to appear before a congressional committee. But even as many such persons used to make the mistake of bringing contentious counsel with them, so the Abbot, through one Dr. Coke, learned in the law, undertook to defend the privileges of his place. Actually Dr. Coke seems to have made out a good case for his client, for he saved the franchise. But, just the same, the Abbot came in for a severe tongue lashing from the Lords, spiritual as well as temporal. The Abbot was advised by the Lords that he had not done wisely to make these franchises and liberties the subject of argument, but rather he should see to it that they were not abused. With that, as we may imagine, the Abbot and his learned counsel departed to a place where they could conveniently discuss what they should do next. Doubtless they concluded to stand on their rights and fight it out upon the law; for on a later occasion, when the Abbey came in for another castigation, it again demonstrated its legal right to all the privileges claimed. This must have been especially pleasing to counsel for the Abbey, because on the same occasion the Priory of St. John of Jerusalem, a rival place of refuge, was adjudged to have no privilege at all.

Yet, as a result of these attacks, Henry VII accomplished good results. The insolvent debtor who made sanctuary, escaped prison, but he was forced to give up his goods to his creditors; and thus we have the forerunner of bankruptcy laws. The prisoner on parole was required to obey the terms of his ticket of leave; he could go abroad within the quarantine period, but, if he should happen to get within a privileged sanctuary, he was forced to stay there. No longer could he roam through the town, to the danger of honest citizens; and in this respect our own prison parole laws could well be re-examined. At any rate, these restrictions seemed to satisfy Henry VII.

Not so with his successors. In the reign of Henry VIII a law was passed which did away with the old notion that the man who had taken refuge in an ordinary sanctuary was bound to leave the country within forty days. That was just what Henry VIII did not want him to do; indeed, the policy of that monarch was to keep his subjects at home. Mr. Watt quaintly suggests a reason, that people who travelled abroad might tell too much of “the mysteries of trade or politics” as they existed in an England which was rather upset by the combined spectacle of six wives to one King, many beheadings, and a considerable shift of capital assets from church to royal favourites. Further, an Englishman who succeeded in getting out of the country might be seduced by the great exiles of whom Europe was full, and the King desired no invasions by armies of the discontented. Anyway, by virtue of this Henry’s law the sanctuary man, instead of marching to the sea or staying penned up in Alsatia, was branded on the thumb with an A, and required to wear always the garb of his class. Thus fittingly adorned, he could walk abroad by day; but he must be back within the close of his sanctuary by dark, and on his morning walks he was required to be without arms. A “meat knife,” indeed, he could use, but only at meal times, and then for the sole purpose of cutting his food. This policy, however, also failed, and so, with statesmen of later reigns, began a process whereby the idea of sanctuary was finally destroyed. First the privilege was denied to those who were accused of certain crimes, the list of these excepted cases grew with the years, and eventually the right of sanctuary was abolished wholly.

But the idea which underlay this persistent claim was by no means dead. On the contrary, no sooner did sanctuary become a thing of the past than the principle which underlay it began to show its head in new suggestions. No longer could the debtor flee to Westminster or St. Martin’s le Grand; but, as roads became better, it was easy to get to the Continent, where the King’s writ did not run. No longer could an accused flee to the altar (in fact, there were no more altars); no longer could he walk safely to the sea with cross on back; but England soon tired, with Edward Coke, of the sight of so many bodies dangling for some two hundred odd felonies; and so the custom arose of sentencing certain classes of offenders to transportation for life. Thus the convict ship carried away many types who in former days had been at the risk and cost of arranging their own passage. Nor did Alsatia disappear when transportation was superseded by penal servitude. The prison parole boards of to-day bear a faint resemblance to the Abbot of Westminster; and sometimes the follies of these officials remind one strongly of the laxities of Alsatia. Our latest move, indeed, is toward exile in a new guise; and so the new prison on Alcatraz Island is practically a Botany Bay modernized. Finally, we have slum clearance projects, with their macabre developments under the New Deal.

In the strange history of sanctuary, then, we have only another proof of the fact that human nature, and human ways, remain pretty constant. Certainly, as to an understanding of the delinquent, whether criminal, cheat, or landlord, our remote ancestors showed an insight that was surprisingly modern.