James I’s sanctuary legislation

I have just added two pieces of Jacobean legislation to the statutes archive: the clause of 1604 repealing sanctuary acts and  the clauses of 1623 that purportedly abolished sanctuary outright. Unlike all the other laws on sanctuary, these are extreme in their brevity, and aren’t even full acts, but sections of longer acts that extend, revive or revoke a great miscellany of diverse laws.

The tortuous wording of many laws, with their repeated stock phrases, such as ‘Sheriff or Sheriffs, Gaoler or Gaolers, or Keeper of any such Prison’, make me think that they are trying to pre-empt overly literal argumentation by including as many possible variants as possible. This makes them very difficult to follow, to the point of inducing headaches. Here we have the very opposite: minimal and concise, as if fewer words means less to debate. Yet these clauses are quite unfathomable.

To take the clause of 1604 first, this repeals the whole body of legislation on sanctuary prior to 1592, all swept away, without even specifying which particular acts are refered to. Quite why this was done has yet to be explained; the historians I’ve read on sanctuary do seem to scratch their heads at this point. It’s difficult to understand why 1592, Elizabeth’s  35th year, was taken as a cut-off point; there isn’t, as far as I can see, any legislation relating to sanctuary in that year, and the only mention of it after that is to deny the benefit of it to raiders and brigands in northern England. But what this benefit could be is thrown into doubt because there is now nothing on the statute books to define it.

What the act actually means for sanctuary is just as unclear. Given that in the same year taking sanctuary was listed as an act of bankruptcy (1 or 2 James 1 c.15) it abolishes neither the practice nor the spaces.

The 1604 clause was itself amended by the 1623 act, which was just as sweeping. Twenty years after all the acts touching sanctuary were repealed, those parts that took away sanctuary were restored. This is paradoxical, like throwing a hole into a void. Only the negation of sanctuary exists on the statute book; there is no recognition or definition of it there otherwise.

And to confuse matters still more this clause is immediately followed by what seems to be a definitive end to sanctuary: “no sanctuary or privilege of sanctuary shall be hereafter admitted or allowed in any case.”

Interpreting this second clause as the absolute abolition of sanctuary might be due to Danby Pickering’s annotation of it. His marginal note reads “All Sanctuaries taken away”, citing Coke’s Institutes, volume 3, first published 1644. But this is a circular argument: Coke simply repeats the the meat of the clause,  dropping the word “hereafter.”

So as David Loades has written in connection with the sanctuary at Westminster Abbey, “it did not actually legislate the surviving sanctuaries out of existence, it merely declared that no one could take advantage of them.” (David Loades, The Sanctuary, in Knighton, ed., Westminster Abbey Reformed: 1540-1640, p.91.) To be precise, I think this should read no one could take sanctuary ‘hereafter’; it is not clear that those already in sanctuary are required to give up their situation. The phrasing also suggests that it is to do with sanctuary in a procedural sense – “in any case” – leaving the geographical rights in place. This is supported by the three subesquent references to sanctuaries in English legislation, where they are listed as a form of special territory, alongside liberties, franchises and ancient demeasnes. Quite how someone could avail themselves of the rights of these places when such rights were stripped from the person, is, like much else here, a mystery.

Sanctuary has been said to have been a hard right to end. On the basis of this legislation, one could suggest that the law-makers made a very bad job of it, creating an ambiguity that was exploited later by the ‘Alsatians’ of Whitefriars.


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