Chapter XLVIII: Duties to Gods (2)

[Footnote 122: _Joshua_, ix. 14 _sq._]

Whilst in some cases the object of a sacrifice is to transfer conditional curses either to the god to whom it is made, or to both the god and the worshipper, the victim or article offered may in other instances be used as a vehicle for transferring benign virtue to him who offered it or to other persons. As we have noticed {625} above, a sacrifice is very frequently believed to be endowed with beneficial magic energy in consequence of its contact or communion with the supernatural being to which it is offered, and this energy is then supposed to have a salutary effect upon the person who comes in touch with it. I have said before that in Morocco magic virtue is ascribed to various parts of the sheep which is sacrificed at the "Great Feast," and that every offering to a holy person, especially a dead saint, is considered to participate to some extent in his sanctity.[123] The Vedic people regarded sacrificial food as a kind of medicine.[124] The Siberian Kachinzes blessed their huts with sacrificial milk.[125] The Lapps strewed the ashes of their burnt-offerings upon their heads.[125] It is quite possible that in some instances a desire to receive the benefit of the supernatural energy with which the sacrifice is endowed is by itself a sufficient motive for offering it to a god.

[Footnote 123: _Supra_, i. 445 _sq._ See also Westermarck, 'The Popular Ritual of the Great Feast in Morocco,' in _Folk-Lore_, xxii. 145 _sqq._; Hubert and Mauss, _loc. cit._ p. 133.]

[Footnote 124: Oldenberg, _Die Religion des Veda_, p. 328 _sqq._]

[Footnote 125: Georgi, _op. cit._ iii. 275.]

[Footnote 126: von Düben, _Lappland och Lapparne_, p. 258.]

As is the case with other rites, sacrifices also have a strong tendency to survive the ideas from which they sprang. Thus when the materialistic conception of the nature of gods faded away, offerings continued to be made to them, though their meaning was changed. As Sir E. B. Tylor observes, "the idea of practical acceptableness of the food or valuables presented to the deity, begins early to shade into the sentiment of divine gratification or propitiation by a reverent offering, though in itself of not much account to so mighty a divine personage,"[127] Sacrifice then becomes mainly, or exclusively, a symbol of humility and reverence. Even in the Rig-Veda, in spite of its crude materialism, we meet with indications of the idea that the value of a sacrifice lies in the feelings of the worshipper; if unable to offer an ox or cow, the singer hopes that a small gift from the heart, a fagot, a libation, a bundle of grass, offered with reverence, {626} will be more acceptable to the god than butter or honey.[128] In Greece, though the sacrificial ritual remained unchanged till the end of paganism, we frequently come upon the advanced reflection that righteousness is the best sacrifice, that the poor man's slight offering avails more with the deity than hecatombs of oxen.[129] According to Porphyry, the gods have no need of banquets and magnificent sacrifices, but we should with the greatest alacrity make a moderate oblation to them of our own property, as "the honours which we pay to the gods should be accompanied by the same promptitude as that with which we give the first seat to worthy men."[130] It is said in the Talmud that "he who offers humility unto God and man, shall be rewarded with a reward as if he had offered all the sacrifices in the world."[131]

[Footnote 127: Tylor, _Primitive Culture_, ii. 394.]

[Footnote 128: _Rig-Veda_, viii. 19. 5. Kaegi, _op. cit._ p. 30.]

[Footnote 129: Farnell, _Cults of the Greek States_, i. 101. Schmidt, _Die Ethik der alten Griechen_, ii. 43. Westcott, _Essays in the History of Religious Thought_, p. 116.]

[Footnote 130: Porphyry, _De abstinentia ab esu animalium_, ii. 60.]

[Footnote 131: Deutsch, _Literary Remains_, p. 55.]

I have here spoken of the _practice_ of sacrifice and the ideas on which it is based. But sacrifice has also a moral value attached to it. Though no doubt in many cases optional, it is under various circumstances regarded as a stringent duty. This is particularly the case with the offerings regularly made by the community at large on special occasions fixed by custom.

* * * * *

As supernatural beings have material needs like men, they also possess property like men, and this must not be interfered with. The Fjort of West Africa believe that the spirits of the rivers kill those who drink their waters and sometimes punish those who fish in them for greediness, by making them deaf and dumb.[132] When their chief god "played" by thundering, the Amazulu said to him who was frightened, "Why do you start, because the lord plays? What have you taken which belongs to him?"[133] The Fijians speak of a deluge {627} the cause of which was the killing of a favourite bird belonging to the god Ndengei by two mischievous lads, his grandsons.[134] In Efate, of the New Hebrides, to steal cocoanuts which are consecrated to the worship of the gods at some forthcoming festival "would be regarded as a much greater offence than common stealing."[135] So, too, the pillaging of a temple has commonly been looked upon as the worst kind of robbery.[136] Among the Hebrews any trespass upon ground which was hallowed by the localised presence of Yahveh was visited with extreme punishment.[137] In Arabia people were forbidden to cut fodder, fell trees, or hunt game within the precincts of a sacred place.[138] The Moors believe that a person would incur a very great risk indeed by cutting the branch of a tree or shooting a bird in the _[h.]orm_ of a _síyid_, or dead saint. The _[h.]orm_ is the homestead and domain of the saint, and he is the owner of everything within its borders. But the offence is not exclusively one against property, and it may be doubted whether originally any clear idea of ownership at all was connected with it. In a holy place all objects are endowed with supernatural energy, and may therefore themselves, as it were, avenge injuries committed against them. This is true of the _[h.]orm_ of a saint, as well as of any other sanctuary, all his belongings being considered to partake of his sanctity. But, as a matter of fact, the so-called tomb of a saint is frequently a place which was at first regarded as holy by itself, on account of its natural appearance, and was only afterwards traditionally associated with a holy person, when the need was felt of giving an anthropomorphous interpretation of its holiness.[139] According to early ideas a {628} sacred object cannot with impunity be appropriated for ordinary purposes;[140] but, on the other hand, visitors are allowed to take a handful of earth from the tomb of the saint or in certain cases to cut a small piece of wood from some tree growing in his _[h.]orm_, to be used as a charm.[141] It also deserves notice that the saint protects not only his own property, but any goods left in his care; hence the country Arabs of Morocco often have their granaries in the _[h.]ór[)u]mat_ of saints.

[Footnote 132: Dennett, _Folklore of the Fjort_, p. 5 _sq._]

[Footnote 133: Callaway, _Religious System of the Amazulu_, p. 57.]

[Footnote 134: Williams and Calvert, _op. cit._p. 212.]

[Footnote 135: Macdonald, _Oceania_, p. 208.]

[Footnote 136: Schmidt, _Ethik der alten Griechen_, ii. 19 _sq._ Cicero, _De legibus_, ii. 9, 16; Mommsen, _Römisches Strafrecht_, p. 458. Wilda, _Strafrecht der Germanen_, p. 950; Dahn, _Bausteine_, ii. 106 (Teutons). Du Boys, _Histoire du droit criminel des peuples modernes_, ii. 605 _sq._ Filangieri, _La scienza della legislazione_, iv. 205 (laws of Christian countries).]

[Footnote 137: Montefiore, _Hibbert Lectures on the Religion of the Ancient Hebrews_, p. 38.]

[Footnote 138: Wellhausen, _Reste arabischen Heidentums_, p. 106.]

[Footnote 139: Westermarck, 'Sul culto dei santi nel Marocco,' in _Actes du XII. Congrès International des Orientalistes_, iii. 175. _Cf._ Goldziher, _Muhammedanische Studien_, ii. 344 _sqq._]

[Footnote 140: See Robertson Smith, _op. cit._ lec. iv. and Additional Note B.]

[Footnote 141: Westermarck, in _Actes du XII. Congrès des Orientalistes_, iii. 167 _sq._]

Moreover, anybody who takes refuge at a _síyid_ is for the moment safe. The right of sanctuary is regarded as very sacred in Morocco, especially in those parts of the country where the Sultan's government has no power. To violate it is an outrage which the saint is sure to punish. I saw a madman whose insanity was attributed to the fact that he once had forcibly removed a fugitive from a saint's tomb; and of a late Grand-Vizier it is said that he was killed by two powerful saints of Dukkâla, on whose refugees he had laid violent hands. Even the descendants of the saint or his manager (_m[k.]áddem_) can only by persuasion and by promising to mediate between the suppliant and his pursuer induce the former to leave the place.[142] As is well known, this is not a custom restricted to Morocco. Among many peoples, at different stages of civilisation, sacred places give shelter to refugees.[143]

[Footnote 142: See Westermarck, _The Moorish Conception of Holiness_, p. 116 _sqq._]

[Footnote 143: See Andree, 'Die Asyle,' in _Globus_, xxxviii. 301 _sq._; Frazer, 'Origin of Totemism,' in _Fortnightly Review_, N. S. lxv. 650 _sqq._; Hellwig, _Das Asylrecht_, _passim_; Bulmerincq, _Das Asylrecht_, _passim_. Fuld, 'Das Asylrecht im Alterthum und Mittelalter,' in _Zeitschr. f. vergl. Rechtswiss._ vii. p. 103 _sqq._]

Among the Central Australian Arunta there is in each local totem centre a spot called _ertnatulunga_, in the immediate neighbourhood of which everything is sacred and must on no account be hurt. The plants growing there are never interfered with in any way; animals which come there are safe {629} from the spear of the hunter; and a man who was being pursued by others would not be touched so long as he remained at this spot.[144] In Upolu, one of the Samoan Islands, a certain god, Vave, had his residence in an old tree, which served as an asylum for murderers and other great offenders; if that tree was reached by the criminal he was safe, and the avenger could pursue no farther, but had to wait for investigation and trial.[145] In the island of Hawaii there were two _puhonuas_, or cities of refuge, which afforded an inviolable sanctuary even to the vilest criminal who entered their precincts, and during war offered safe retreat to all the non-combatants of the neighbouring districts who flocked into them, as well as to the vanquished. As soon as the fugitive had entered, he repaired to the presence of the idol and made a short ejaculatory address, expressive of his obligations to him in reaching the place with security. The priests and their adherents would immediately put to death anyone who should have the temerity to follow or molest those who were once within the pale of the _pahu tabu_, and, as they put it, under the shade or protection of the spirit of Keave, the tutelary deity of the place. After a short period, probably not more than two or three days, the refugee was permitted to return unmolested to his home, the divine protection being supposed still to abide with him.[146] In Tahiti the _morais_, or holy places, likewise gave shelter to criminals of every kind.[147] At Maiva, in the South-Eastern part of New Guinea, "should a man be pursued by an enemy and take refuge in the _dubu_ [or temple], he is perfectly safe inside. Any one smiting another inside the _dubu_ would have his arms and legs shrivelled up, and he could do nothing but wish to die."[148]

[Footnote 144: Spencer and Gillen, _Native Tribes of Central Australia_, p. 133 _sqq._]

[Footnote 145: Turner, _Samoa_, p. 64 _sq._]

[Footnote 146: Ellis, _Tour through Hawaii_, p. 155 _sqq._ Jarves, _History of the Hawaiian Islands_, p. 28 _sq._]

[Footnote 147: Turnbull, _Voyage round the World_, p. 366. Wilson, _Missionary Voyage to the Southern Pacific Ocean_, p. 351.]

[Footnote 148: Chalmers and Gill, _Work and Adventure in New Guinea_, p. 186.]

In many North American tribes certain sacred places or whole villages served as asylums, in which those who were pursued by the tribe or even an enemy were safe as soon as they had obtained admission.[149] Among the Acagchemem Indians, in the valley and neighbourhood of San Juan Capistrano in California, a criminal who had fled to a _vanquech_, or place of worship, was secure not only as long as he remained there, but {630} also after he had left the sanctuary. It was not even lawful to mention his crime, but all that the avenger could do to him was to point at him and deride him, saying, "Lo, a coward, who has been forced to flee to Chinigchinich!" This flight, however, turned the punishment from the head of the criminal upon that of some of his relatives.[150]

[Footnote 149: Adair, _History of the American Indians_, pp. 158, 159, 416. Bradbury, _Travels in the Interior of America_, p. 165 _sq._ (Aricaras of the Missouri). Bourke, 'Medicine-Men of the Apache,' in _Ann. Rep. Bur. Ethn._ ix. 453. Kohl, _Kitchi-Gami_, p. 271 (Chippewas).]

[Footnote 150: Bancroft, _Native Races of the Pacific States_, iii. 167. Boscana, in [Robinson,] _Life in California_, p. 262 _sq._]

The South-Central African Barotse have a city of refuge. "Anyone incurring the king's wrath, or committing a crime, may find safety by fleeing to this town. The man in charge of it is expected to plead for him before the chief, and he can then return to his house in peace."[151] Among the same people the tombs of chiefs are sanctuaries or places of refuge,[152] and this is also the case among the Kafirs.[153] So, too, in the monarchical states of the Gallas homicides enjoy a legal right of asylum if they have succeeded in taking refuge in a hut near the burial-place of the king.[154] Among the Ovambo in South-Western Africa the village of a great chief is abandoned at his death, except by the members of a certain family, who remain there to prevent it from falling into utter decay. Condemned criminals who contrive to escape to one of these deserted villages are safe, at least for a time; for not even the chief himself may pursue a fugitive into the sacred place.[155] In Congo Français there are several sanctuaries:--"The great one in the Calabar district is at Omon. Thither mothers of twins, widows, thieves, and slaves fly, and if they reach it are safe."[156] In Ashantee a slave who flies to a temple and dashes himself against the fetish cannot easily be brought back to his master.[157] Among the Negroes of Accra criminals used to "seat themselves upon the fetish," that is, place themselves under its protection; but murderers who sought refuge with the fetish were always liable to be delivered up to their pursuers.[158] A traveller in the seventeenth century tells us that in Fetu, on the Gold Coast, a criminal who deserved death was pardoned by taking refuge in the hut of the high-priest.[159] Among the Krumen of the Grain Coast the house of the high-priest (_bodio_) "is a sanctum to which culprits {631} may betake themselves without the danger of being removed by anyone except by the _bodio_ himself."[160] In Usambara a murderer cannot be arrested at any of the four places where the great wizards of the country reside.[161]

[Footnote 151: Arnot, _Garenganze_, p. 77.]

[Footnote 152: Decle, _Three Years in Savage Africa_, p. 75.]

[Footnote 153: Rehme, 'Das Recht der Amaxosa,' in _Zeitschr. f. vergl. Rechtswiss._ x. 51.]

[Footnote 154: Paulitschke, _Ethnographie Nordost-Afrikas, Die geistige Cultur der Danâkil, &c._ p. 157.]

[Footnote 155: Schinz, _Deutsch-Südwest-Afrika_, p. 312.]

[Footnote 156: Kingsley, _Travels in West Africa_, p. 466.]

[Footnote 157: Bowdich, _Mission to Ashantee_, p. 265. _Cf._ Monrad, _op. cit._ p. 42.]

[Footnote 158: Monrad, _op. cit._ p. 89.]

[Footnote 159: Müller, _Die Africanische Landschafft Fetu_, p. 75.]

[Footnote 160: Wilson, _Western Africa_, p. 129.]

[Footnote 161: Krapf, _Reisen in Ost-Afrika_, ii. 132.]

In other Muhammedan countries besides Morocco the tombs of saints, as also the mosques, are or have been places of refuge.[162] In Persia the great number of such asylums proved so injurious to public safety, that about the middle of the nineteenth century only three mosques were left which were recognised by the government as affording protection to criminals of every description.[163] Among the Hebrews the right of asylum originally belonged to all altars,[164] but on the abolition of the local altars it was limited to certain cities of refuge.[165] According to the Old Testament manslayers could find shelter there only in the case of involuntary homicide; but this was undoubtedly a narrowing of the ancient custom. Many heathen sanctuaries of the Ph[oe]nicians and Syrians retained even in Roman times what seems to have been an unlimited right of asylum;[166] and at certain Arabian shrines the god likewise gave shelter to all fugitives without distinction, and even stray or stolen cattle that reached the holy ground could not be reclaimed by their owners.[167]

[Footnote 162: Goldziher, _Muhammedanische Studien_, i. 237 _sq._ Quatremère, 'Mémoire sur les asiles chez les Arabes,' in _Mémoires de l'Institut de France, Académie des Inscriptions et Belles-Lettres_, xv. pt. ii. 313 _sq._]

[Footnote 163: Polak, _Persien_, ii. 83 _sqq._ Brugsch, _Im Lande der Sonne_, p. 246.]

[Footnote 164: _Exodus_, xxi. 13 _sq._ _Cf._ Robertson Smith, _Religion of the Semites_, p. 148, n. 1.]

[Footnote 165: _Numbers_, xxxv. 11 _sqq._ _Deuteronomy_, iv. 41 _sqq._; xix. 2 _sqq._]

[Footnote 166: Robertson Smith, _op. cit._ p. 148.]

[Footnote 167: _Ibid._ p. 148 _sq._]

On the Coast of Malabar a certain temple situated to the south-east of Calicut affords protection to thieves and adulterous women belonging to the Brahmin caste, but this privilege is reckoned among the sixty-four _anatcharams_, or "abuses," which were introduced by Brahmanism.[168] Among the Káfirs of the Hindu-Kush there are several "cities of refuge," the largest being the village of Mergrom, which is almost entirely peopled by _chiles_, or descendants of persons who have slain some fellow tribesman.[169] In the Caucasus holy groves offer refuge to criminals, as also to animals, which cannot be shot there.[170]

[Footnote 168: Graul, _Reise nach Ostindien_, iii. 332, 335.]

[Footnote 169: Scott Robertson, _Káfirs of the Hindu-Kush_, p. 441.]

[Footnote 170: Hahn, _Kaukasische Reisen_, p. 122.]

In Greece many sanctuaries possessed the right of asylum down to the end of paganism, and any violation of this right {632} was supposed to be severely punished by the deity.[171] According to an old tradition, Romulus established a sanctuary, dedicated to some unknown god or spirit, on the slope of the Capitoline Hill, proclaiming that all who resorted to it, whether bond or free, should be safe.[172] This tradition, and also some other statements made by Latin writers,[173] seem to indicate that from ancient times certain sacred places in Rome gave shelter to refugees; but it was only in a comparatively late period of Roman history that the right of sanctuary, under Greek influence, became a recognised institution of some importance.[174] This right was expressly conferred upon the temple which in the year 42 B.C. was built in honour of Cæsar;[175] and other imperial temples, as also the statues of emperors, laid claim to the same privilege.[176] When Christianity became the religion of the State a similar claim was made by the churches; but a legal right of asylum was only granted to them by Honorius in the West and Theodosius in the East.[177] Subsequently it was restricted by Justinian, who decreed that all manslayers, adulterers, and kidnappers of women who fled to a church should be taken out of it.[178]

[Footnote 171: Tacitus, _Annales_, iii. 60 _sqq._ Farnell, _op. cit._ i. 73. Westcott, _op. cit._ p. 115. Schmidt, _Die Ethik der alten Griechen_, ii. 285. Bulmerincq, _op. cit._ p. 35 _sqq._ Fuld, _loc. cit._ p. 118 _sqq._]

[Footnote 172: Dionysius of Halicarnassus, _Antiquitates Romanæ_, ii. 15. Livy, i. 8. 5 _sq._ Plutarch, _Romulus_, ix. 5. Strabo, v. 3. 2, p. 230.]

[Footnote 173: Valerius Maximus, _Facta dictaque memorabilia_, viii. 9. 1. Dionysius of Halicarnassus, _Antiquitates Romanæ_, vi. 45. Cicero, _De lege agraria oratio secunda_, 14 (36). See also Hartung, _Die Religion der Römer_, ii. 58 _sq._]

[Footnote 174: See Tacitus, _Annales_, iii. 36; Plautus, _Rudens_, 723; Dio Cassius, _Historia Romana_, xlvii. 19; Bulmerincq, _op. cit._ p. 58 _sqq._; Mommsen, _Römisches Strafrecht_, p. 458 _sq._]

[Footnote 175: Dio Cassius, xlvii. 19.]

[Footnote 176: Tacitus, _Annales_, iv. 67. Suetonius, _Tiberius_, 53. Mommsen, _op. cit._ p. 460.]

[Footnote 177: Mommsen, _op. cit._ p. 461 _sq._]

[Footnote 178: _Novellæ_, xvii. 7.]

The right of sanctuary existed among the pagan Slavs, or some of them,[179] and probably also among the ancient Teutons.[180] After their conversion to Christianity the privilege of asylum within the church was recognised in most of their codes. In the Middle Ages and later, persons who fled to a church or to certain boundaries surrounding it were, for a time at least, safe from all persecution, it being considered treason against God, an offence beyond compensation, to force even the most flagrant criminal from His altar. The ordinary of the sacred place, or {633} his official, was the only one who could try to induce him to leave it, but if he failed, the utmost that could be done was to deny the refugee victuals so that he might go forth voluntarily.[181] In the 'Lex Baiuwariorum' it is asserted in the strongest terms that there is no crime which may not be pardoned from the fear of God and reverence for the saints.[182] But the right of sanctuary was gradually subjected to various restrictions both by secular legislation and by the Church.[183] Innocentius III. enjoined that refuge should not be given to a highway robber or to anybody who devastated cultivated fields at night;[184] and according to Beaumanoir's 'Coutumes du Beauvoisis,' dating from the thirteenth century, it was also denied to persons guilty of sacrilege or arson.[185] The Parliament of Scotland enacted that whoever took the protection of the Church for homicide should be required to come out and undergo an assize, that it might be found whether it was committed of "forethought felony" or in "chaudemelle"; and only in the latter case was he to be restored to the sanctuary, the sheriff being directed to give him security to that effect before requiring him to leave it.[186] In England, in the reign of Henry VIII., there were certain places which were allowed to be "places of tuition and privilege," in addition to churches and their precincts. They were in fact cities of permanent refuge for persons who should, according to ancient usage, have abjured the realm, after they had fled in the ordinary way to a church. There was a governor in each of these privileged places, charged with the duty of mustering every day his men, who were not to exceed twenty in each town and who had to wear a badge whenever they appeared out of doors. But when these regulations were made, the protection of sanctuary was taken away from persons guilty of murder, rape, burglary, highway robbery, or arson. The law of sanctuary was then left unchanged till the reign of James I., when, in theory, the privilege in question was altogether denied to criminals.[187] Yet {634} as a matter of fact, asylums continued to exist in England so late as the reign of George I., when that of St. Peter's at Westminster was demolished.[188] In the legislation of Sweden the last reference to the privilege of sanctuary is found in an enactment of 1528.[189] In France it was abolished by an _ordonnance_ of 1539.[190] In Spain it existed even in the nineteenth century.[191] Not long ago the most important churches in Abyssinia,[192] the monastery of Affaf Woira in the same country,[193] and the quarter in Gondar where the head of the Abyssinian clergy has his residence,[194] were reported to be asylums for criminals. And the same is the case with the old Christian churches among the Suanetians of the Caucasus.[195]

[Footnote 179: Helmold, _Chronik der Slaven_, i. 83, p. 170.]

[Footnote 180: Wilda, _Das Strafrecht der Germanen_, p. 248 _sq._ Stemann, _Den danske Retshistorie indtil Christian V.'s Lov_, p. 578. Brunner, _Deutsche Rechtsgeschichte_, ii. 610. Fuld, _loc. cit._ p. 138 _sq._ Frauenstädt, _Blutrache und Todtschlagsühne im Deutschen Mittelalter_, p. 51.]

[Footnote 181: Milman, _History of Latin Christianity_, ii. 59. Bulmerincq, _op. cit._ p. 73 _sqq._ Fuld, _loc. cit._ p. 136 _sqq._ Bracton, _De legibus et consuetudinibus Angliæ_, fol. 136 b, vol. ii. 392 _sq._ Réville, 'L'abjuratio regni,' in _Revue historique_, l. 14 _sqq._ Pollock and Maitland, _History of English Law before the Time of Edward I._ ii. 590 _sq._ Innes, _Scotland in the Middle Ages_, p. 195 _sq._]

[Footnote 182: _Lex Baiuwariorum_, i. 7.]

[Footnote 183: Brunner, _op. cit._ ii. 611 _sq._ Bulmerincq, _op. cit._ p. 91 _sqq._ Fuld, _loc. cit._ p. 140 _sq._]

[Footnote 184: Gregory IX. _Decretales_, iii. 49. 6.]

[Footnote 185: Beaumanoir, _Coutumes du Beauvoisis_, xi. 15 _sqq._, vol. i. 164 _sq._]

[Footnote 186: Innes, _op. cit._ p. 198.]

[Footnote 187: Pike, _History of Crime in England_, ii. 253. Blackstone, _Commentaries on the Laws of England_, iv. 347, n. a.]

[Footnote 188: Jusserand, _English Wayfaring Life in the Middle Ages_, p. 166.]

[Footnote 189: Nordström, _Bidrag till den svenska samhälls-författningens historia_, ii. 405.]

[Footnote 190: Du Boys, _Histoire du droit criminel des peuples modernes_, ii. 246.]

[Footnote 191: _Idem_, _Histoire du droit criminel de l'Espagne_, p. 227 _sq._]

[Footnote 192: Hellwig, _op. cit._ p. 52.]

[Footnote 193: Harris, _Highlands of Æthiopia_, ii. 93.]

[Footnote 194: Rüppell, _Reise in Abyssinien_, ii. 74, 81. von Heuglin, _Reise nach Abessinien_, p. 213.]

[Footnote 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 {635} 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?

[Footnote 196: Hegel, _Grundlinien der Philosophie des Rechts_, § 117, p. 108. Powell, 'Outlines of Sociology,' in _Saturday Lectures_, p. 82.]

[Footnote 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 {636} 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?

[Footnote 198: Granger, _Worship of the Romans_, p. 223 _sq._]

[Footnote 199: Robertson Smith, _Religion of the Semites_, p. 148.]

[Footnote 200: _Supra_, i. 380.]

[Footnote 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._).]

[Footnote 202: Mariner, _Natives of the Tonga Islands_, ii. 232. _Cf._ _ibid._ i. 227.]

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 {637} 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 {638} 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 _[(]âr_ 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]

[Footnote 203: Harmon, _Voyages and Travels in the Interior of North America_, p. 297 (Tacullies). Lewin, _Hill Tracts of Chittagong_, p. 100 (Kukis). Junghuhn, _Die Battaländer auf Sumatra_, (Macassars and Bugis of Celebes). Tromp, 'Uit de Salasila van Koetei,' in _Bijdragen tot de taal- land- en volkenkunde van Nederlandsch-Indië_, xxxvii. 84 (natives of Koetei, a district of Borneo). Jung, quoted by Kohler, 'Recht der Marschallinsulaner,' in _Zeitschr. f. vergl. Rechtswiss._ xiv. 447 (natives of Nauru in the Marshall Group). Turner, _Nineteen Years in Polynesia_, p. 334 (Samoans). Rautanen, in Steinmetz, _Rechtsverhältnisse_, p. 342 (Ondonga). Schinz, _op. cit._ p. 312 (Ovambo). Rehme, 'Das Recht der Amaxosa,' in _Zeitschr. f. vergl. Rechtswiss._ x. 50. Merker, quoted by Kohler, 'Banturecht in Ostafrika,' _ibid._ xv. 55 (Wadshagga). Merker, _Die Masai_, p. 206. Among the Barotse the residences of the Queen and the Prime Minister are places of refuge (Decle, _op. cit._ p. 75).]

[Footnote 204: Ellis, _History of Madagascar_, i. 376.]

[Footnote 205: Raffenel, _Nouveau voyage dans le pays des nègres_, i. 385.]

[Footnote 206: Krapf, _Reisen in Ost-Afrika_, ii. 132, n. * See also Schinz, _op. cit._ p. 312 (Ovambo).]

[Footnote 207: Gibbons, _Exploration in Central Africa_, p. 129. I am indebted to Mr. N. W. Thomas for drawing my attention to this statement.]

[Footnote 208: Ellis, _E[(w]e-speaking Peoples of the Slave Coast_, p. 224.]

[Footnote 209: _Ibid._ p. 224.]

[Footnote 210: Quoted by Levias, 'Cursing,' in _Jewish Encyclopedia_, iv. 390.]

[Footnote 211: Plutarch, _Questiones Romanæ_, 111. Aulus Gellius, _Noctes Atticæ_, x. 15. 8, 10.]

[Footnote 212: Plutarch, _Numa_, x. 5.]

[Footnote 213: Aulus Gellius, _op. cit._ x. 15. 31.]

[Footnote 214: Aeschylus, _Eumenides_, 232 _sqq._]