Asylum.

By: Morris Jastrow, Jr. , Crawford Howell Toy , Marcus Jastrow , Louis Ginzberg

Origin and Character. —Biblical Data (ἰσυλον, "inviolable"):

A place of refuge for slaves, debtors, political offenders, and criminals; a sacred spot, a sanctuary, altar, or grave, protected by the presence of a deity or other supernatural being, and sharing his inviolability. In many cases there was attached to the sacred place a larger or smaller area within which it was forbidden to shed the blood of man or beast or to cut down trees or plants (so in the harem or sacred enclosure of Mecca), and where the fugitive might dwell in comfort. The custom was one of the earliest developed in society; it is found among very low tribes (Australian and others), among some of whom the guilt or innocence of a fugitive was determined by a tribunal. It is probable that this character of refuge belonged originally to all sacred places, the degree of security being in proportion to the sanctity of the spot, the shrines of the more powerful deities naturally having greater potency. Into such a system, abuses, of course, crept: some shrines were nurseries of criminals; and it often became necessary to limit the number of asylums. In Athens only certain sanctuaries were recognized by law as refuges (for example, the temple of Theseus for slaves); in the time of Tiberius the congregations of desperadoes in shrines had become so dangerous that the right of Asylum was limited to a few cities (in the year 22). The sanctuary did not always protect a refugee: if the law were not explicit, or if the man were already condemned or believed to be guilty or dangerous, he was sometimes taken from the sacred spot, or even put to death there; such cases were, however, exceptional.

Early Hebrew Custom.

In Israel the custom of Asylum probably existed from the earliest times, but there is no record of it before the days of Solomon. Possibly an allusion to it is involved in the story of Cain (Gen. iv.): Cain, as murderer, would in any case be exposed to the attack of the avenger of blood, but his situation is made harder by the fact that he is banished from the land and the worship of Yhwh , and therefore can not take refuge in a sanctuary. Absalom, after the murder of Amnon, fled the country (II Sam. xiii. 37), and took refuge with his mother's father. The first distinct notice of the right of Asylum is contained in the narrative of the attempts to place Adonijah on the throne (I Kings i., ii.): Adonijah flees to the altar and refuses to come forth till he has Solomon's word that his life shall be spared; Joab, on the other hand, refusing to leave the altar, is slain, by special command of Solomon, on the sacred spot. There was thus at this time a recognized right of Asylum for offenders (in this case political offenders), which, however, was not absolute. The right was denied Joab, probably, not because he had murdered Abner and Amasa (I Kings ii. 29-34), but because he was a dangerous conspirator, and Solomon had absolute authority over the royal shrine of Jerusalem.

Josiah's Attempts at Reform.

Doubtless every sanctuary in the land was an Asylum (Ex. xxi. 14, compared with Ex. xx. 24), and this state of things continued down to (and probably after) the reform of Josiah, when the attempt was made to abolish all sanctuaries except the Temple of Jerusalem. The plan was not carried out at that time; the provincial shrines continued to exist (Jer. ii. 28; vii. 9, 18; xi. 13; Ezek. vi. 3, 4), and later all reforms were interrupted by the capture of Jerusalem and the consequent confusion that reigned throughout the land. It may thus be assumed that down to the time of the Babylonian Exile all Levitical settlements had the privilege of Asylum for certain offenders, such as homicides and political disturbers, but whether it was also extended to slaves and debtors is not clear. The area of protection probably included all the land attached to the sanctuary.

Legislation.

The right of Asylum was defined gradually by custom and law. In Solomon's time, as just noted, a distinction, based on regard for the safety of the throne, was made between refugees. As the legal organization of society was more and more worked out, the just distinction between the innocent and the guilty came to be recognized. This distinction is made definitely in the earliest law-book (Ex. xxi. 13, 14, eighth century): He who slays unintentionally is to be protected from the avenger of blood by the sanctuary, but the wilful slayer is to be taken from the altar and put to death (that is, delivered over to the avenger of blood). Further details are not given—nothing is said of a tribunal to try the case, or of the duration of the fugitive's stay in the sanctuary; these points were, however, probably settled by the existing custom. The first modification of the old usage is made in the Book of Deuteronomy (xix. 1-7, 11-13). As the rural shrines were abolished by the law of that book, it became necessary to make other provisions for the innocent homicide that lived too far from Jerusalem to find shelter there; and accordingly three cities were appointed (their names are not given in the text) to which such a person might flee and within their boundaries be safe. In any one of these a homicide might take refuge and remain secure till his case was decided. The decision was made by the elders of the refugee's city: in general, it may be supposed, by the legal authorities [elders] of the place where the homicide was committed. If he proved to be innocent, he was, of course, under the protection of the authorities of the city of refuge; but it is not said whether or when he was allowed to go home. If he was found guilty, the elders of his own city sent and fetched him, and he was putto death by the avenger of blood. The three cities referred to in Deut. xix. were, no doubt, on the west of the Jordan. The measure was preliminary or tentative, and the trans-Jordanic region, at that time—toward the end of the seventh century—loosely connected with the west (which was really the seat of the nation), was either not thought of, or was left for future legislation. At a later time, probably during or after the Exile, the sense of the ecclesiastical unity of the land grew stronger, and it was thought proper to set apart three cities on the east of the Jordan; or it may be that this step was merely the natural completion of the first measure. The first intimation of this extension of the law is found in Deut. xix. 8-10, which, as it stands, is an interruption of the legal statement, and is manifestly an interpolation by a scribe who wished to bring the Deuteronomic law up to the later usage. In this paragraph it is merely said that three additional cities are to be appointed, but their names are not given; we find them, however, in Deut. iv. 41-43, which, likewise, is an exilic or post-exilic editorial addition to the text, intended, perhaps, as the historical sequel to xix. 8-10. The regulation is stated more fully in Josh. xx. (post-exilic): The fugitive, standing at the entrance of the city-gate, is to lay his case before the elders, who then protect him till he can be tried before the congregation. If he is adjudged innocent by the congregation, he is at liberty, on the death of the high priest of the time, to go to his own house, and can not then be called to account by the avenger of blood. Presumably, if he is adjudged guilty, he is handed over to the avenger. It is expressly stated, in accordance with the humane spirit of the period, that this law is to apply to the resident alien as well as to the native inhabitant. The two new points in the regulation of Joshua (the congregation as tribunal, and the death of the high priest as ushering in the period of liberty for innocent homicides) belong to the post-exilic ecclesiastical organization of the Jewish community. Substantially the same form of the law is given in Num. xxxv. 11-32, where also the fact is emphasized that, up to the death of the high priest within whose reign the offense was committed, the fugitive is safe only within the borders of the city of refuge. It thus appears that the movement of legislation was in the direction of exact justice; the object was to take the decision respecting homicide out of the hands of the angry avenger—whose function was doubtless necessary in a certain stage of society—and assign it to an impartial tribunal. The important specifications in the latest form of the law are: The abolition of the right of Asylum in sanctuaries, and the appointment of cities, in which presumably an innocent fugitive might have a house and live comfortably with his family; the determination of the tribunal that was to try the case; and the fixing a day when the man might go freely and without fear to his own home. The six cities of refuge named are Kedesh in Naphtali, Schechem in Ephraim, Hebron in Judah, and, on the east of the river, Bezer in Reuben, Ramoth in Gad, and Golan in Manasseh. The first three were old sacred places, and so, probably, were the second three. In the texts referred to there is no mention of a right of sanctuary for fugitive debtors and slaves; the reference in Deut. xxiii. 16 [15] is to foreign fugitives, and these are protected by residence anywhere in the land.

Later History.

As to how far this post-exilic law was actually in force there is no definite information. Under the rule of the Persians, the Greeks, and the Hasmoneans, the Judean state never had control of the whole of the old territory. If the statement may be trusted (I Macc. x. 43; Josephus, "Ant." xiii. 2, § 3) that the Seleucid Demetrius I. (about 152 B.C. ) offered to make the Jerusalem Temple an Asylum, the natural inference will be that it was not then so regarded; the offer seems, however, not to have been accepted. The custom of Asylum doubtless continued, though the function of the avenger of blood ceased; the six cities may have retained their legal privilege, and possibly the right of Asylum was extended to the other Levitical cities. Under the Greek and Roman rule a number of cities in Syria enjoyed this privilege (lists are given in Barth, "De Græcorum Asylis").

J. Jr. T. —In Rabbinical Literature:

The Biblical ordinances on Asylum are formulated and developed into a complete system in the tannaite tradition. As in many other instances of the Halakah, the law on Asylum is in its main features merely theoretic; at the same time the tannaite sources often hand down actual facts, as, for example, the regulation of the right of Asylum in the period between 100 B.C. and 30 C.E. , especially that which is mentioned by Eliezer ben Jacob (Tosef., Mak. iii. [ii.] 5; Mak. 10 a et seq. ). Eliezer was a tanna who, shortly after the destruction of the Temple in 70, set himself the task of studying and arranging the laws and customs that had lost their force with the fall of the Jewish state.

Although nothing else is known about Jewish Asylum in Palestine (Josephus, "Ant." xiii. 2, § 3, does not mean Asylum in the Jewish sense, and furthermore the passage is of doubtful historic value in view of I Macc. x. 31 et seq. ), the authority of Eliezer is sufficient to prove its existence in Palestine at the beginning of the common era, especially since the validity of his statements is proved by the account of actual conditions in the cities of refuge handed down by tannaim of Akiba's school (Mak. ii. 6). Jewish tradition fixes upon the year 30 as the time when the Jewish courts were deprived of their power to inflict capital punishment (Sanh. 41 a ). From the remark found in a Baraita (Soṭah, 48 b ), that after the destruction of the first Temple the Levitical cities ceased to exist, it does not follow that the cities of refuge, which formed part of them, also passed away; the remark simply means that there were no longer any Levitical cities laid out in the manner prescribed in Num. xxxv. 2-5 (compare also Sifre, Num. 161, where it is expressly statedthat the cities of refuge are not dependent on the existence of the Temple).

Changed political conditions, it is true, occasioned a modification also in the location of the cities of refuge. The country east of the Jordan was in later times no longer looked upon as Israelite territory; nor could Shechem (Sebaste), the seat of the Samaritans, or the Idumean Hebron—which even after its capture by Judas Maccabeus was not really a Jewish city—be considered a city of refuge.

Cities of Refuge.

It was therefore resolved, and perhaps also partly carried out, that not only the six cities of refuge named in the Bible could be regarded as asylums, but also all the forty-eight Levitical cities enumerated in I Chron. vi. 39-66 (A. V. 54-81). The difference between the six cities expressly mentioned in the Bible and these forty-eight cities lay in the fact that the Levitical cities could be used as asylums only with the consent of the inhabitants ( , Mak. 10 a is to be explained this way, not as Rashi has it; compare Jastrow, "Dictionary," s.v. , where several examples are given of this meaning of the word ), while the cities of refuge always afforded protection. Nor did these six cities of refuge always need to remain the same as designated in the Biblical law; others might be substituted, provided the number were kept up, and their situation conformed to the Biblical law with regard to distances and geographical relations (Tosef., Mak. iii. [ii.] 4). For instance, the distance between the southern boundary of Palestine and its nearest city of refuge was exactly the same as that between the northern boundary and the city of refuge nearest to it, and the same distance was maintained between every northern and southern city of refuge and those lying between, so that they were evenly distributed over the country and easily reached. It is even asserted (Tosef., Mak. iii. [ii.] 2; Sifre, Deut. 180) that the cities of refuge on the east of the Jordan and those on the west were parallel to each other—an assertion that does not exactly conform to the facts.

Corresponding to the care for the proper location of these cities were the other ordinances referring to them. The roads leading to them were marked by sign-posts at the crossroads, with the inscription "Miḳlaṭ" (Refuge); the roads were very broad—32 ells, twice the regulation width—smooth and level, in order that the fugitive might not be hindered in any way (Sifre l.c. ; Tosef. l.c. 5; Mak. 10 b ; B. B. 100 b ). The cities chosen must be neither too small nor too large: in the former case a scarcity of food might arise, and the refugee might consequently be forced to leave his Asylum and imperil himself; in the latter case the crowds of strangers would make it easy for the avenger of blood to enter undetected. There were other measures of precaution in favor of the refugee. Dealing in weapons or implements of the chase was forbidden in the cities of refuge. Furthermore they had to be situated in a populous district, so that a violent attack by the avenger of blood might be repelled, if necessary (Sifre, Num. 159; Tosef., Mak. l.c. 8; Mak. 10 a ).

Besides the six cities of refuge mentioned in the Bible and the forty-eight Levitical cities, the rabbinic law, basing upon Ex. xxi. 14, also recognized the altar as an Asylum, although only for the officiating priest who had accidentally committed manslaughter; but compare Yer. Mak. ii. 31 d , where R. Johanan denies that the altar can afford protection. The priest could not remain at the altar, however, but had to be taken to a city of refuge (Mak. 12 a ). The altar—according to the Talmud only the one at Jerusalem—afforded in a way more protection than the cities of refuge; since a political refugee became inviolable as soon as he had touched the altar (Maimonides, "Yad," Roẓeaḥ, v. 14, probably after an old source, based on I Kings ii. 28, that, however, is not found in extant literature).

Unpremeditated Homicide, Accident.

The rabbinical law concerning Asylum devotes much space to an exact determination of the cases in which the Asylum shall offer protection to the manslayer, and of those in which he must flee to and remain in it. Deliberate murder is of course excluded: that crime can be atoned for only by the blood of the murderer. The following three grades are distinguished in unpremeditated homicide: (1) grave carelessness; (2) contributory negligence; and (3) complete innocence. Only in the second case is exile to the cities of refuge prescribed. Complete innocence—that is, a mere accident or an extraordinary occurrence that could not be foreseen—needs no atonement; but grave carelessness is not sufficiently punished by such exile. The Talmud gives many examples illustrating these grades of homicide, among them the following:

( Mak. ii. 2, 8 a ).

"Any one who neglects the necessary precautions in a courtyard or a shop, so that a person entitled to admittance there is killed, can not atone by going to the city of refuge [ i.e. , banishment is not sufficient] (B. Ḳ. 32 b ); but if he who was killed was a trespasser and had no right in such a court or shop, the owner goes free, as he can not be held responsible for accidents on his private property when he did not anticipate the possible presence of strangers"

Next to the cases of innocence that do not require atonement are those where death has been occasioned in the course of professional or other duties. A teacher punishing his pupil, a father compelling the obedience of his son in learning a trade or in attending to the study of the Law, a servant of the Law scourging an offender according to the instructions he has received (Deut. xxv. 2 et seq. ), are not banished to the city of refuge in case the person disciplined should die under their hands; for they were but fulfilling a duty incumbent upon them (Mak. ii. 2, 8 a et seq. ). Only in such cases as those mentioned in Deut. xix. 4 et seq. , where one negligently commits homicide during an act that is permissible but not commanded by law, does an atonement become necessary.

Asylum a Place of Expiation.

Although many of the rabbinical ordinances regarding the asylums are directed chiefly to securing protection for the refugee, the Asylum is, nevertheless, according to the rabbinical law, not a place of protection, but one of expiation. If the homicide die after receiving his sentence, but before reaching the city of refuge, his body must be taken there. If he die before the high priest he must also be buried there until after the high priest's death. Asylum ("galut"= exile) and death of the high priest have together the atoning power ("kapparah") whichis to relieve the homicide's conscience (Mak. 11 b ; compare Tosafot, s.v. ). Therefore the banishment to the Asylum must not be interrupted: the condemned man may not leave the Asylum under any circumstances, not even should the interests of the state demand it (Mak. 11 b ). The consciousness of having taken a human life must never leave the homicide. When, therefore, the inhabitants of a city of refuge wish to honor such a man, he must declare to them that he is a homicide and unworthy such honor; but should they still persist, he may accept it (Mak. ii. 8; on the confession of crime as part of the atonement, compare Confession ). Even the death of the high priest does not entirely wipe out the homicide's guilt; for a man condemned to Asylum may never fill an office, since he has been the cause of an accident ( l.c. ; compare the opinion of R. Judah b. Il'ai, which Maimonides, Hilkot Roẓeaḥ, vii. 14, thinks the correct one).

The Rabbis so strongly emphasized the guilt of a man who became a homicide against his will, not only because they held that a man is responsible even for his involuntary actions ( compare Sin ), but also in accordance with the following theories as expressed by Philo:

(" De Specialibus Legibus ," § 20; ed. Mangey , ii. 319 , compare " De Profugis ," § 13; ed. Mangey , i. 555 et seq. ).

"God, the all-merciful and gracious, neither delivers a wholly innocent man up to death nor will He suffer a man who committed a deed entirely against his will to go into exile. The ordinance of Ex. xxi. 13 must be interpreted as follows: When a murderer has escaped from human justice, God assumes the office of judge, and brings it about that the murderer is killed inadvertently by some one else. God chooses as His executioner a man who has also sinned in some way and is in need of atonement. This homicide is therefore exiled to a city of refuge, where he must remain until the death of the high priest, in expiation of some sins that he must have committed, because an entirely innocent man is never chosen as the instrument of another man's death"

The Biblical Asylum law is explained in almost the same words as these of Philo in Mekilta (Mishpaṭim iv.) and the Talmud (Mak. 10 b ).

Death of the High Priest.

The Talmudic sources agree also with Philo in explaining why the death of the high priest releases the exiled homicide. Philo says that, since the high priest was immaculate and sinless, it is fitting that he should abhor ( i.e. , not suffer in his presence) those who had even involuntarily killed a man, since they themselves were not entirely sinless ("De Specialibus Legibus," xxiii., xxiv.; ed. Mangey, ii. 322). Rabbi gives the following explanation: "The murderer pollutes the land, and drives away the Shekinah ; but the high priest brings it about that the Shekinah dwells in Israel. It is therefore not fitting that he who pollutes the land should appear before him who brings the Shekinah among the people" (Sifre, Num. 160). This explanation, however, does not tally with that given by the Halakah, that even the death of a dispensed high priest releases the exile (Mak. ii. 6); and the phrase, frequently recurring in the Talmud, "the death of the high priest atones" (Mak. 11 b ), really shows that, according to the opinion current among the Rabbis, the chief factor was the death with its atoning power.

This is easily explainable from the point of view of rabbinical theology, since in general the death of the pious acted as an atonement for Israel (Yer. Yoma i. 38 b ; M. Ḳ. 28 a ; and the many parallel passages in Bubers' Tan. iii. 66, notes 140-142), and the death of the high priest all the more possesses power of atonement (approximately so, Ibn Ezra on Num. xxxv. 25). Maimonides' explanation (Moreh iii. 40), that the death of the high priest was an event that moved the entire people so much that no thoughts of vengeance could arise in the avenger of blood, conforms as little to the spirit of the early rabbis as to that of the Bible.

The tradition found in the Mishnah may be mentioned; namely, that the mother of the high priest supplied food and clothing to homicides, in order that they might not wish for the death of her son (Mak. ii. 6). The Talmud thinks (Mak. 11 a ) that such wishes might have been efficacious against the high priests, because they had omitted to implore God's mercy for their contemporaries, that no such hapless events might occur. Compare Avenger of Blood .

J. Sr. L. G.