This Article discusses the institution of sanctuary that was recognized under the Common Law of England from at least the early Middle Ages until the Jacobean period, that is, from about the seventh to the seventeenth centuries A.D. This Article does not include a specific discussion of the modern American idea of sanctuary as the term is applied to the act of aiding an alien to remain illegally in the United States to escape political persecution in the alien’s own country. However, a consideration of the historical institution of sanctuary may shed light on the contemporary issue in two ways. First, history reveals that sanctuary as an ideology has deep roots in the consciousness of our modem society, which has been shaped by English and Christian heritages. Old notions that religious values should prevail over civil values (such as immigration control) are surfacing in the arguments of modern sanctuary advocates. Second, the contrast between historical sanctuary and present-day sanctuary should become clear. The main contrast, of course, is that in the Middle Ages sanctuary was part of the legal structure while now it is not. Medieval secular law permitted the practice of sanctuary because English lawmakers, the kings and Parliament, deferred in certain matters to the authority of the Church. Today, U.S. federal courts, interpreting the first amendment of the federal Constitution, have rejected the argument that secular authority should defer to a higher moral authority or to church law so as to allow the illegal harboring of aliens. Hence, sanctuary offered for religious reasons presently receives no legal recognition in the United States. The historical perspective presented in this Article may help the reader to discover why sanctuary as a legal institution in England became extinct. This perspective may also help the reader to consider whether the legal and social structures of today could support the re-establishment of sanctuary as a legal institution.
Steven Pope, Sanctuary: The Legal Institution in England, 10 SEATTLE U. L. REV. 677 (1987).