« ForrigeFortsett »
fore their death would atone for a life of incontinence, disorder, and bloodshed. Hence innumerable abbeys and religious houses were built within a *century after the conquest, and endowed not only with the tithes of
[*109 parishes which were ravished from the secular clergy, but also with lands, manors, lordships, and extensive baronies. And the doctrine inculcated was, that whatever was so given to, or purchased by, the monks and friars, was conse. crated to God himself; and that to alienate or take it away was no less than the sin of sacrilege.
I might here have enlarged upon other contrivances, which will occur to the recollection of the reader, set on foot by the court of Rome for effecting an entire exemption of its clergy from any intercourse with the civil magistrate : such as the separation of the ecclesiastical court from the temporal; the appointment of its judges by merely spiritual authority, without any interposition from the crown; the exclusive jurisdiction it claimed over all ecclesiastical persons and causes; and the privilegium clericale, or benefit of clergy, which delivered all clerks from any trial or punishment except before their own tribunal. But the history and progress of ecclesiastical courts,(e) as well as of purchases in mortmain, (f) have already been fully discussed in the preceding book; and we shall have an opportunity of examining at large the nature of the privilegium clericale in the progress of the present one. And therefore I shall only observe at present, that notwithstanding this plan of pontifical power was so deeply laid, and so indefatigably pursued by the unwearied politics of the court of Rome through a long succession of ages; notwithstanding it was polished and improved by the united endeavours of a body of men who engrossed all the learning of Europe for centuries together; notwithstanding it was firmly and resolitely executed by persons the best calculated for establishing tyranny and despotism, being fired with a bigoted enthusiasm, (which prevailed not only among the weak and simple, but even among those of the best natural and acquired endowments,) unconnected with their fellow-subjects, and totally indifferent to what might befall that posterity to which they bore no endearing relation: yet it vanished into *nothing when the eyes of the people were a little enlightened, and they set themselves with vigour to oppose it. So vain
[*110 and ridiculous is the attempt to live in society without acknowledging the obli. gations which it lays us under, and to affect an entire independence of that civil state which protects us in all our rights, and gives us every other liberty, that only excepted of despising the laws of the community.
Having thus in some degree endeavoured to trace out the original and subsequent progress of the papal usurpations in England, let us now return to the statutes of præmunire, which were framed to encounter this overgrown yet increasing evil. King Edward I., a wise and magnanimous prince, set himself in earpest to shake off this servile yoke.(9) He would not suffer his bishops to attend a general council till they had sworn not to receive the papal benediction. He made light of all papal bulles and processes; attacking Scotland in defiance of one, and seizing the temporalities of his clergy, who, under pretenco of another, refused to pay a tax imposed by parliament. He strengthened the statutes of mortmain, thereby closing the great gulf in which all the lands of the kingdom were in danger of being swallowed. And, one of his subjects bav. ing obtained a bulle of excommunication against another, he ordered him to be executed as a traitor, according to the antient law.(h) And in the thirty-fifth year of his reign was made the first statute against papal provisions, being, according to Sir Edward Coke,() the foundation of all the subsequent statutes of præmunire, which we rank as an offence immediately against the king, because every encouragement of the papal power is a diminution of the authority of the crown.
In the weak reign of Edward the Second the pope again endeavoured to en croach, but the parliament manfully withstood him; and it was one of the principal articles charged against that unhappy prince, that he had given allowance ( See book iii. page 61.
(*) Bro. Abr. tit. Corone, 115; Treason, 14. 6 R. p. 1, fol. 12 () See book ii. page 268. c) Dav. 83, &c.
(%) 2 Inst. 583. VOL. II.--26
3 Ass. 19.
to the bulles of the see of Rome. But Edward the Third was of a temper ex*111]
tremely different: and, to remedy these *inconveniences first by gentle
means, he and his nobility wrote an expostulation to the pope; but receiving a menacing and contemptuous answer, withal acquainting him that the emperor, (who a few years before, at the diet of Nuremberg, A.D. 1323, had established a law against provisions,)(k) and also the king of France, had lately submitted to the holy see, the king replied that if both the emperor and the French king should take the pope's part, he was ready to give battle to them both in defence of the liberties of the crown. Hereupon more sharp and penal laws were devised against provisors,(I) which enact, severally, that the court of Rome shall not present or collate to any bishopric or living in England; and that wnoever disturbs any patron in the presentation to a living by virtue of a papal provision, such provisor shall pay fine and ransom to the king at his will, and be im. prisoned till he renounces such provision; and the same punishment is inflicted on such as cite the king, or any of his subjects, to answer in the court of Rome. And when the holy see resented these proceedings, and pope Urban V. attempted to revive the vassalage and annual rent to which king John had subjected his kingdom, it was unanimously agreed by all the estates of the realm, in parliament assembled, 40 Edw. III., that king John's donation was null and void, being without the concurrence of parliament, and contrary to his coronationoath: and all the temporal nobility and commons engaged, that if the popo should endeavour by process or otherwise to maintain these usurpations, they would resist and withstand him with all their power.(m)
In the reign of Richard the Second it was found necessary to sharpen and strengthen these laws, and therefore it was enacted, by statutes 3 Ric. II. c. 3, and 7 Ric. II. c. 12, first, that no alien should be capable of letting his benefice to farm; in order to compel such as had crept in, at least to reside on their pre*112]
ferments; and afterwards, that no alien *should be capable to be pre
sented to any ecclesiastical preferment, under the penalty of the statutes of provisors. By the statute 12 Ric. II. c. 15, all liegemen of the king, accepting of a living by any foreign provision, are put out of the king's protection, and the benefice made void. To which the statute 13 Ric. II. st. 2, c. 2 adds banishment and forfeiture of lands and goods : and, by c. 3 of the same statute, any person bringing over any citation or excommunication from beyond sea on account of the execution of the foregoing statutes of provisors shall be im. prisoned, forfeit his goods and lands, and moreover suffer pain of life and member.
In the writ for the execution of all these statutes the words præmunire facias, being (as we said) used to command a citation of the party, have denominated in common speech not only the writ, but the offence itself of maintaining the papal power, by the name of præmunire. And accordingly the next statute I shall mention, which is generally referred to by all subsequent statutes, is usually called the statute of præmunire. It is the statute 16 Ric. II. c. 5, which enacts that whoever procures at Rome, or elsewhere, any translations, processes, excommunications, bulles, instruments, or other things which touch the king. against him, his crown, and realm, and all persons aiding and assisting therein, shall be put out of the king's protection, their lands and goods forfeited to the king's use, and they shall be attached by their bodies to answer to the king and his council; or process of præmunire facias shall be made out against them as in other cases of provisors.
By the statute 2 Hen. IV. c. 3, all persons who accept any provision from the pope, to be exempt from canonical obedience to their proper ordinary, are also subjected to the penalties of præmunire. And this is the last of our antient statutes touching this offence; the usurped civil power of the bishop of Rome being pretty well broken down by these statutes, as his usurped religious power was in about a century afterwards; the spirit of the nation being so much raised
(*) Seld. in Flet. 10, 4.
() Mod. Un. Hist. xxix. 293.
(Stat 26 Edw. III. st. 6. 27 Edw. III. st. 1, c. 1. 38 Edw. Mil.st. 1, c. 4. and st. 2, c. 1, 2, 3, 4.
*against foreigners that about this time, in the reign of Henry the Fifth,
[*113 the alien priories, or abbeys for foreign monks, were suppressed, and their lands given to the crown. And no further attempts were afterwards made in support of these foreign jurisdictions.
A learned writer, before referred to, is therefore greatly mistaken when he says(n) that in Henry the Sixth's time the archbishop of Canterbury, and other bishops, offered to the king a large supply if he would consent that all laws against provisors, and especially the statute 16 Ric. II., might be repealed, but that this motion was rejected. This account is incorrect in all its branches. For, first, the application, which he probably means, was made not by the bishops only, but by the unanimous consent of a provisional synod assembled in 1439, 18 Hen. VI., that very synod which at the same time refused to confirm and allow a papal bulle which then was laid before them. Next, the purport of it was not to procure a repeal of the statutes against provisors, or that of Richard II. in particular; but to request that the penalties thereof, which by forced construction were applied to all that sued in the spiritual, and even in many temporal, courts of this realm might be turned against the proper objects only: those who appealed to Rome, or to any foreign jurisdictions, the tenor of the petition being, “ that those penalties should be taken to extend only to those that commenced any suits or procured any writs or public instruments at Rome, or elsewhere out of England; and that no one should be prosecuted upon that statute for any suit in the spiritual courts or lay jurisdictions of this kingdom.” Lastly, the motion was so far from being rejected that the king promised to recommend it to the next parliament, and in the mean time that no one should be molested upon this account. And the clergy were so satisfied with their success that they granted to the king a whole tenth upon this octasion.(0) *And, indeed, so far was the archbishop, who presided in this synod,
[*114 from countenancing the usurped power of the pope in this realm, that he was ever a firm opposer of it. And, particularly in the reign of Henry the Fifth, he prevented the king's uncle from being then made a cardinal and legate a latere from the pope; upon the mere principle of its being within the mischief of papal provisions, and derogatory from the liberties of the English church and nation. For, as he expressed himself to the king in his letter upon that subject," he was bound to oppose it by his ligeance, and also to quit himself to God and the church of this land, of which God and the king had made him governor.”. This was not the language of a prelate addicted to the slavery of the see of Rome; but of one who was indeed of principles so very opposite to the papal usurpations that in the year preceding this synod, 17 Hen. VI., he refused to consecrate a bishop of Ely that was nominated by pope Eugenius IV. A conduct quite consonant to his former behaviour, in 6 Hen. VI., when he refused to obey the commands of pope Martin V., who had required him to exert his endeavours to repeal the statute of præmunire, (“ execrabile illud statutum," as the holy father phrases it;) which refusal so far exasperated the court of Rome against him that at length the pope issued a bulle to suspend him from his office and authority, which the archbishop disregarded and appealed to a general council. And so sensible were the nation of their primate's merit that the lords spiritual and temporal, and also the university of Oxford, wrote letters to the pope in his defence; and the house of commons addressed the king to send an embassador forthwith to his holiness on behalf of the archbishop, who had incurred the displeasure of the pope for opposing the excessive power of the court of Rome.(P). *This, then, is the original meaning of the offence which we call præmu
[*115 nire, viz., introducing a foreign power into this land, and creating imperium in imperio by paying that obedience to papal process which constitutionally belonged to the king alone, long before the reformation in the reign of Henry the Eighth; at which time the penalties of præmunire were indeed extended to moru papal abuses than before, as the kingdom then entirely renounced the authority of the see of Rome, though not all the corrupted doctrines of the Roman church. And therefore, by the several statutes of 24 Hen. VIII. c. 12, and 25 Hen. VIII. c. 19 & 21, to appeal to Rome from any of the king's courts, which (though illegal before) had at times been connived at, to sue to Rome for any license or dispensation, or to obey any process from thence, are made liable to the pains of præmunire. And, in order to restore to the king in effect the nomination of vacant bishoprics, and yet keep up the established forms, it is enacted, by statute 25 Hen. VIÌI. c. 20, that if the dean and chapter refuse to elect the person named by the king, or any archbishop or bishop to confirm or consecrate him, they shall fall within the penalties of the statutes of præmunire. Also, by statute 5 Eliz. c. 1, to refuse the oath of supremacy will incur the pains of premunire; and to defend the pope's jurisdiction in this realm is a præmunire for the first offence, and high treason for the second. So too, by statute 13 Eliz. c. 2, to import any agnus Dei, crosses, beads, or other superstitious things pretended to be hallowed by the bishop of Rome, and tender the same to be used; or to receive the same with such intent and not discover the offender; or if a justice of the peace, knowing thereof, shall not within fourteen days declare it to a privy counsellor, they all incur præmunire. But importing or selling massbooks, or other popish books, is, by statute 3 Jac. I. c. 5, § 25, only liable to the penalty of forty shillings. Lastly, to contribute to the maintenance of a Jesuit's college, or any popish seminary whatever, beyond sea, or any person in the same, or to contribute to the maintenance of any Jesuit or popish priest in England, is by statute 27 Eliz. c. 2. made liable to the penalties of præmunire.
author hopes to be excused this digression,-if indeed it be Wilk. Comcil. Mag. Brit. iii. 533.
a digression to show how contrary to the sentiments of so Roze Wilk. Concil. Mag. Brit. vol. iji. passim, and Dr. learned and pious a prelate, even in the days of popery, Duck's Life of Archbishop Chichele, who was the prelate those usurpations were which the statutes of præmunire bere spoken of, and the munificent founder of All-Souls and provisors were made to restrain. College in Oxford, in vindication of whose memory the
(*) Dav. 96.
*Thus far the penalties of præmunire seem to have kept within the *116]
proper bounds of their original institution, the depressing the power of the pope : but, they being pains of no inconsiderable consequence, it has been thought fit to apply the same to other heinous offences, some of which bear more and some less relation to this original offence, and some no relation at all
. Thus, 1. By the statute 1 & 2 Ph. and Mar. c. 8, to molest the possessors of abbey lands granted by parliament to Henry the Eighth and Edward the Sixth is a præmunire. 2. So likewise is the offence of acting as a broker or agent in any usurious contract, when above ten per cent. interest is taken, by statute 13 Eliz. c. 8. 3. To obtain any stay of proceedings, other than by arrest of judgment or writ of error, in any suit for a monopoly, is likewise a præmunire, by statute 21 Jac. I. c. 3. 4. To obtain an exclusive patent for the sole making or importation of gunpowder or arms, or to hinder others from importing the also a præmunire, by two statutes; the one 16 Car. I. c. 21, the other 1 Jac. II. C. 8. 5. On the abolition, by statute 12 Car. II. c. 24, of purveyance,(9) and the prerogative of pre-emption, or taking any victual, beasts, or goods, for the king's use, at a stated price, without consent of the proprietor, the exertion of any such power for the future was declared to incur the penalties of præmunire. 6. To assert maliciously and advisedly, by speaking or writing, that both or either house of parliament have a legislative authority without the king, is declared a præmunire by statute 13 Car. II. c. 1. 7. By the habeas corpus act also, 31 Car. ÎI. c. 2; it is a præmunire, and incapable of the king's pardon, besides other heavy penalties,(r) to send any subject of this realm a prisoner into parts beyond the
8. By the statute 1 W. and M. st. 1, c. 8, persons of eighteen years of age refusing to take the new oaths of allegiance, as well as supremacy, upon tender (9) See book i. page 287.
() See hook i. p. 138. Book iii. page 137. Repealed by statute 8 & 9 Vict. c. 59.-STEWART. 8 This act was made perpetual by the 39 Eliz. c. 18, ss. 30, 32; but, though not expressly repealed, yet it seems to have virtually expired since the 12 Anne, st. 2, c. 16, s. 1.-Chitty.
* By the second section of 1 Jac. II. c. 8, the importation must be with the king's license, (except from Ireland, by the 46 Geo. III. c. 121.)-CHITTY.
Repealed by 6 Gen. IV. c. 105.-STEWART.
by the proper magistrate, are subject to the penalties of a præmunire ;6 and by statute 7 & 8 *W. III. c. 24, serjeants, counsellors, proctors, attorneys, and all officers of courts practising without having taken the oaths of
[*11. allegiance and supremacy and subscribing the declaration against popery, are guilty of a præmunire, whether the oaths be tendered or no. 9. By the statute 6 Anne, c. 7, to assert maliciously and directly, by preaching, teaching, or advised speaking, that the then pretended prince of Wales, or any person other than according to the acts of settlement and union, hath any right to the throne of these kingdoms, or that the king and parliament cannot make laws to limit the descent of the crown, such preaching, teaching, or advised speaking is a præmunire; as writing, printing, or publishing the same doctrines amounted, we may remember, to high treason. 10. By statute 6 Anne, c. 23, if the assembly of peers in Scotland, convened to elect their sixteen representatives in the British parliament, shall presume to treat of any other matter save only the election, they incur the penalties of a præmunire. 11. The statute 6 Geo. I. c. 18 (enacted in the year after the infamous South-Sea project had beggared half the nation) makes all unwarrantable undertakings by unlawful subscriptions, then commonly known by the names of bubbles, subject to the penalties of a præmunire. 12. The statute 12 Geo. III. c. 11 subjects to the penalties of the statute of premunire all such as knowingly and wilfully solemnize, assist, or are present at any forbidden marriage of such of the descendants of the body of king George II. as are by that act prohibited to contract matrimony without the consent of the crown.(s)
Having thus inquired into the nature and several species of præmunire, its punishment may be gathered from the foregoing statutes, which are thus shortly summed up by Sir Edward Coke:(t) " that from the conviction the defendant shall be out of the king's protection, and his lands and tenements, goods and chattels, forfeited to the king; and that his body shall remain in prison at the king's pleasure; *or (as other authorities have it) during
[*118 life:"(u) both which amount to the same thing ; as the king by his prerogative may any time.remit the whole or any part of the punishment, except in the case of transgressing the statute of habeas corpus. These forfeitures here inflicted do not (by the way) bring this offence within our former definition of felony, being inflicted by particular statutes and not by the common law. But so odious, Sir Edward Coke adds, was this offence of præmunire that a man that was attainted of the same might have been slain by any other man without danger of law; because it was provided by law(w) that any man might do to him as to the king's enemy; and any man may lawfully kill an enemy. However, the position itself, that it is at any time lawful to kill an enemy, is by no means tenable: it is only lawful, by the law of nature and nations, to kill him in the heat of battle or for necessary self-defence. And to obviato such savage and mistaken notions, (x) the statute 5 Eliz. c. 1 provides that it shall not be lawful to kill any person attainted in a præmunire, any law, statute, opinion, or exposition of law to the contrary notwithstanding. But still such delinquent, though protected as a part of the public from public wrongs, can bring no action for any private injury, how atrocious soever, being so far out of the protection of the law that it will not guard his civil rights nor remedy any
(9) See book i. ch. 4.
(0) Stat. 25 Edw. III. st. 5, c. 22.
6 By the 31 Geo. I. c. 32, s. 18, it is enacted that no persons shall be summoned to take the oath of supremacy, or make the declaration against transubstantiation, or be prosecuted for not obeying the summons for that purpose.-CHRISTIAN.
6 By the 6 Geo. IV., the greater part of the provisions of this statute are repealed, and illegal companies are left to be dealt with according to the common law.—Chitty.
And although this statute has been repealed, by the act 9 & 10 Vict. c. 59, it can scarcely be suggested that a man convicted upon a præmunire is wholly out of the pale of the law.-KERR.