on account of the execution of the foregoing statutes of provisors, shall be imprisoned, 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 praemunire 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 praemunire. And accordingly the next statute I shall mention, which is generally referred to by all subsequent statutes, is usually called the statute of praemunire. 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 praemunire facias shall be made out against them as in other cases of provisors. (7)

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 praemunire. And this is the last of our antient statutes touching this offence; the usurped civil power of the

(7) In the parliament in which this statute was drawn up, the king upon the petition of the commons, had inquired of the estates of the realm, what they would do, if the pope were to excommunicate bishops for instituting the king's presentees, where they had obtained judgment in the king's courts against the appointees of the pope; or should attempt to translate them from their present sees to other sees out of the kingdom (a mode then in use for getting rid of an obnoxious bishop). The answer of the lords and commons was in substance that they would stand by the king, to live and die, against proceedings such as these, which would be subversive of the rights of the crown. The prelates agreed in their condemnation of such acts, and their determination to resist them, but declared that they did not intend to deny the pope's general right of excommunication and translation. Upon these answers the statute was framed; Doctor Lingard doubts whether it was ever formally passed, but it was always acted on, and has been legislatively recognised as a valid statute in many instances. Lingard's Hist. iv.

310.

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 [113] against foreigners, that about this time, in the reign of Henry the fifth, the alien priories, or abbeys for foreign monks, were suppressed, and their lands given to the crown. And no farther attempts were afterwards made in support of these foreign jurisdictions.

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A LEARNED writer, before referred to, is therefore greatly mistaken, when he says ", 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 it's branches. For, first, the application, which he probably means, was made not by the bishops only, but by the unanimous consent of a provincial 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 a 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 jurisdiction: 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 pro"secuted 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 occasion.

AND indeed so far was the archbishop, who presided in this synod, from countenancing the usurped power of the • Wilk. Concil. Mag. Brit.iii. 533.

n Dav.96.

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 it's being within the mischief of papal provisions, and derogatory from the liberties of the English church and nation. (8) 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 praemunire ("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 merits, 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 ambassador 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.

P See Wilk. Concil. Mag. Br. Vol. III. passim, and Dr. Duck's life of archbishop Chichele, who was the prelate here spoken of, and the munificent founder of All Souls college in Oxford: in vindication of whose memory the author hopes to be excused this

digression; if indeed it be a digression to shew how contrary to the sentiments of so learned and pious a prelate, even in the days of popery, those usurpations were, which the statutes of praemunire and provisors were made to restrain.

(8) This prelate (Henry Beaufort, the Bishop of Winchester,) became cardinal in the reign of his great-nephew Henry the Sixth; but he was compelled to promise, that he would do no act in the execution of his office which might derogate from the rights of the crown, or of the subject; and a protest was made in the king's name against the entry of any legate into the kingdom, except on the king's petition. - Lingard, v. 145.

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THIS then is the original meaning of the offence, which we call praemunire; 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 praemunire were indeed extended to more 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 licence or dispensation; or to obey any process from thence; are made liable to the pains of praemunire. And, in order to restore to the king in effect the nomination of vacant bishopricks, and yet keep up the established forms, it is enacted by statute 25 Hen. VIII. 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 praemunire. Also by statute 5 Eliz. c.1. to refuse the oath of supremacy will incur the pains of praemunire; and to defend the pope's jurisdiction in this realm, is a praemunire for the first offence, and high treason for the second. So, too, by statute 13 Eliz. c. 2. if any one 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 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 praemunire. But importing or selling mass-books, or other popish books, is by statute 3 Jac. I. c. 5. § 25. only liable to a 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 praemunire.

THUS far the penalties of praemunire seem to have kept within the proper bounds of their original institution, the de

pressing 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. & Mar. c. 8. to molest the possessors of abbey lands granted by parliament to Henry the eighth, and Edward the sixth, is a praemunire. 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. (9) 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 praemunire, 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 them, is also a praemunire 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, 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 praemunire. (10) 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 praemunire by statute 13 Car. II. c. 1. 7. By the habeas corpus act also, 31 Car. II. c. 2. it is a praemunire, and incapable of the king's pardon, besides other heavy penalties ', to send any See Vol. I. pag.287. See Vol. I. pag. 138. Vol. III. pag. 137.

(9) Several statutes (see Vol. II. p. 463.) have reduced the legal rate of interest; but none seems to have repealed this clause of the statute of Elizabeth.

(10) This is a mistake. By the statute, any person exercising purveyance for the future is to be imprisoned by the justices near, and proceeded against by indictment at the next sessions; and the party grieved may, besides, bring a civil action, and recover treble damages and treble costs: but the penalties of præmunire are inflicted only as in the case of monopolies just before mentioned, where a party, after notice that the action is grounded on the statute, obtains any stay of proceedings or execution, other than by authority of the court, arrest of judgment, or writ of error.