ASYLUM

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ASYLUM, Right of. The concept of asylum from the Greek a;suloj, “inviolable” as a recognized place of refuge in case of need derives both from a system of values and from religion. It implies the right of immunity for a refugee pursued for a crime by the authorities, receiving and protecting the person in a sacred place; it was this special quality of the place that guaranteed the safety of the one who took ad- vantage of it. For this special quality to be respected by the civil or military authorities, however, it had to be accepted in conscience by all involved, and hence its transgression involved consequences of various kinds, as, e.g., the fear of committing sacrilege because of the sacredness of the place. The term asylum asylon was traditional among pagans and was used by the pagan historian Zosimus; it was used very rarely by Christians, who preferred the expression ad ecclesiam confugere or others like it DACL 4,1556; ad domum ipsius fidei confugerant Aug., Ep. 1,3: Divjak; adiutorium in ipsa domo fidei requirebant Aug., Ep. 250,1. Among the Jews temple; city of refuge, Greeks, Egyptians and Romans some sanctuaries enjoyed the right of refuge, but there were also other ways to obtain protection: kneeling before certain persons, altars or deities, or before the emperor’s statue. In this last case the sacredness and protection derived from the statue, which represented the emperor’s majesty. Tacitus speaks of a woman who had an image of Tiberius in her hand and could thus engage in insults against a Roman senator; nothing was done to intervene for fear of committing sacrilege against the emperor Annales 3,36. Only with Theodosius was asylum at statues recognized, with the concession of 10 days of immunity; the practice was abolished by Justinian CTh 9,44,1 of 386: CI 1,25,1. Closely connected with asylum was the practice of intercessio, which consisted in an intervention with the authorities by the bishops on behalf of someone in difficulty as distinct from a simple recommendation, which also occurred frequently; this was born out of the Christian concept of forgiveness, in view of the reformation of the guilty party. Intercessio and asylum were different practices but were often connected; in fact, asylum normally included an intercessio with the authorities on behalf of the refugee. The first known case of asylum among Christians is that of Felix of Cirta Numidia, who, pursued by the imperial authorities for having written a libello against the emperor Maxentius, took refuge with Bishop Mensurius before 312; see Y. Duval; the second is that of Martin of Tours, ca. 326 Sulpicius, Vita Martini 2,1-3. The Council of Serdica of 343, which speaks of asylum in a church, in the same can. 7 also addresses intercessio, seeking to regulate the practice: “It happens often that certain people who merit mercy take refuge in a church; they have been condemned for their crimes, either to imprisonment or to confinement on an island, or punished for some other reason; they should not be denied help, but pardon must be asked for these people with the civil authorities without delay or hesitation.” A person who took refuge in a church might also be innocent, in which case the period of protection was useful for proving their innocence. The first official request we know goes back to the Council of Carthage of 27 April 399, in which two bishops, Epigonius and Vincent, were entrusted with the task of going to court to obtain a law that no one would dare to remove someone who had taken refuge in a church confugientibus ad ecclesiam Munier, Concilia Africae, CCL 149, Turnhout 1974, 194,393. The intervention of the Council of Serdica, which sought to regulate a de facto practice of taking refuge in churches saepe contingit, means that the practice had already arisen, and the intention of the intervention was to oblige bishops to take the refugee’s fate to heart. The church, which for Christians already had a sacred character as a place of Christian worship, was now acquiring a sacred character in the common mentality, a character that also had to be respected by the civil and military authorities. The text does not specify whether the refugees were Christians or pagans: all could have recourse to the practice. The sacred character of the buildings was recognized by the imperial authorities only in 395 CTh 16,2,29; see 16,2,31. Legally churches could be violated, since there was no law protecting them, and they sometimes were violated: we know of too many such cases. Churches therefore did not offer an absolute guarantee see Ammianus 26,3,3: the charioteer Hilarinus, who took refuge ad ritus Christiani sacrarium, was taken and decapitated; Ammianus 15,5: Silvanus the usurper, who took refuge in a church, was taken and killed. Generally the sources mention asylum to recount instances of its violation Stilicho, who had Cresconius removed from a church. During the sack of Rome of 410, Alaric respected the right of asylum, even for pagans who had taken refuge in Roman churches Augustine, Civ. Dei 1,7; Orosius 7,39,10. Augustine’s insistence that taking refuge in a church was accepted and respected by both Romans and Barbarians indicates a change in mentality. In 392 Theodosius intervened on a number of occasions to limit intercessio and asylum. CTh 9,40,15 13 March: he did not allow churchmen to impede the carrying out of sentences through appeal or removal of the condemned; CTh 11,36,31 9 April: he did not allow intercessio by clergy for a condemned person or a confessed criminal; CTh 9,45,1 18 October: public debtors were not allowed asylum in churches, nor could their debts be paid by bishops the first law regulating the matter; CTh 9,45,2 17 June 397: Jews were prohibited from feigning conversions so as to claim asylum; CTh 9,45,3 27 June 398: slaves and debtors were deprived of the right of asylum, nor could their debts be paid by the church; CTh 9,45,2 17 June 397: through Eutropius’s influence asylum was not granted for the crime of lese majesty, which could be understood broadly see 9,14,3,2 of 4 September 397. Eutropius himself took refuge in a church a year later, and John Chrysostom’s intervention did not prevent his death. The first formal recognition of asylum in churches was in 419 Sirmondiana 13. An allusion to this law can be found in Augustine Ep. 22,3: Divjak, 420, who observes that, on the whole, it could only be used by a few: “So it happens that we, at most, can do very little to help and defend those who take refuge in a church.” The right was regulated in more detail with the law of 23 March 431 CTh 9,45,1 and that of 432 CTh 9,45,5. The Codex Theodosianus reports only a passage from the law of 431, while other sources preserve it entirely Mansi 5,437-445. Sometimes the limits within which asylum was effective were marked around the church see DACL 4,1555f.. The Council of Orange of 441 created some norms regarding asylum in churches can. 5 and 6; in the East the emperor Leo intervened CI 1,12,6 of 466. At Constantinople Justinian constituted a board to evaluate the situations of those who sought asylum in St. Sophia slaves, debtors, those accused of homicide. 

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ASYLUM

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