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CHAPTER V.

PRÆMUNIRE.

ALTHOUGH frequent mention has been made of præmunire and its consequences in the course of this treatise, it was thought to be more advisable to defer any explanation of the term until we came to consider the question in its general bearing on the existing circumstances of English Roman Catholics.

Præmunire, corrupted from præmonere, is the initial word in the first sentence of the writ to which it gives its name. By that writ the sheriff or other minister is commanded to forewarn (præmonere) the person against whom it is issued to appear to answer within two months for the contempt upon which it is founded, viz., the drawing the queen's subjects out of the realm, in plea whereof the cognizance belongs to the queen's courts, or wherein judgment has already been given in the same(ƒ). The courts before which the offender may be summoned, are specified by the act to be the council or parliament, the Chancery, the justices of the two benches, or the justices deputed for that purpose. What the punishment upon conviction under this act is to be, does not appear upon the face of it; but it is provided, that if the offender does not appear by the day appointed him in the writ, he, his procurators, attornies, executors, notaries, and maintainers, shall be put out of the queen's protection, forfeit their lands, goods, and chattels to the crown, and be imprisoned and ransomed at the queen's will; and that on the return of non est inventus to the writ issued under the award of capiatur, they shall be put in

(f) 27 Edw. III. st. 1, c. 1.

exigent and outlawed. And it is said by learned writers, that the ordinary judgment in a præmunire where the offender has appeared, is, that he be put out of the queen's protection; his lands and tenements, goods and chattels, forfeited to the queen; and that his body shall remain in prison at the queen's pleasure (g). A further provision is made by the 38 Edw. III. st. 2, c. 1, which recites "the great hurt, perils, and importable losses and grievances, because of personal citations out of the Court of Rome by feigned and false suggestions and propositions against all manner of persons of the realm, upon causes whose cognizance and final discussing pertaineth to" the crown and its court. All who shall obtain, purchase, or pursue such personal citations against the queen or any of her subjects, and all their maintainers, counsellors, abettors, aiders, and fautors, shall be taken by the sheriffs and the justices in their sessions, deputies, bailiffs, and other ministers, and presented to the queen or her council, by good, sufficient, and short bail, there to receive what the law will give them. And upon conviction they shall abide in prison without mainprise, bail, or deliverance, until they have made fine and redemption to the queen at her pleasure,―gree to the party aggrieved,—and full remuneration, with good security of ever attempting the like for the time to come, or of suing any process whatever in respect of such imprisonment, remunerations, or other matters thereon depending, against any man, either in the Court of Rome or any where else. Any justice of the peace, on his own knowledge, or on complaint of others, may cause any person to be apprehended for such offence, take his examination and the evidence of material witnesses, and bind the latter over to the Queen's Bench or gaol delivery (h). By the 16 Rich. II. c. 5 again, it is in general terms provided, that any one who shall purchase or pursue, or cause to be purchased or pursued in

(g) Co. Litt. 129 b; 2 Hawk. P. C. c. 48, s. 9.

(h) 2 Hawk. c. 8, s. 34; Hale's Sum. 168.

the Court of Rome, or elsewhere, any thing whatsoever which toucheth the queen, against her, her crown and regalty, or her realm; any one who shall bring into the realm, or receive or make notification or execution of such within the realm or without; and their notaries, procurators, maintainers, abettors, fautors, and counsellers, shall be put out of the queen's protection, their lands, tenements, goods and chattels shall be forfeit to the queen, and they themselves shall be attached by their bodies if they can be found, and brought before the council, there to answer. Otherwise the writ of præmunire may be resorted to against them in manner provided by the former statutes. This act of 16 Rich. II. c. 5, is the one to which almost all the subsequent statutes refer in enacting against new offences the penalties of præmunire. From this circumstance, rather than from any more reasonable cause, it has generally been called the Statute of Præmunire.

These are the only provisions in the ancient acts, passed in derogation of papal jurisdiction, which seem applicable to Roman Catholics in England at the present day. The law of provisors and purveyors is out of date as far as they are concerned. That law regards the benefices and endowments of the Established Church, and therefore any mention of it would be out of place in a book not treating of the laws and immunities of that Establishment.

But it is clear, upon principle, that the provisions cited are perfectly applicable to English Roman Catholics and their suits at this day. Whatever controversies may arise among them as to matters cognizable at law or in equity, cannot be adjudicated at Rome or by authority derived from Rome, without the peril of præmunire and all its liabilities above enumerated. For the Relief Acts were not intended to alter the laws passed previously to the Reformation against the authority of the holy see, but only to mitigate some of the severities enacted against the Roman Catholics subsequently to the establishment of

Protestantism as the religion of the land. And it may be even doubted whether some of the enactments of the reign of Henry VIII., touching intercourse with Rome, are not still in force against Roman Catholic as they certainly are against protestant offenders. There is not a section in any of the Relief Acts, that even recites the statutes passed in Henry's reign, nor their revival by the 1 Eliz. c. 1. And the only ground of doubt, as to their being in force at the present day, is furnished by the vague terms of the 4th section of the 31 Geo. III. c. 32, whereby Roman Catholics taking the oath are secured from being presented, indicted, sued, &c. “for being a papist, or for being present at, or performing or observing any rite, ceremony, practice, or observance of the popish religion, or maintaining or assisting others therein." But, however strong this language may be considered to be, and however comprehensive an interpretation it is capable of receiving, it deserves remark that the preamble to this section does not mention either of the statutes of Henry, nor indeed any earlier act than that of the 23 Eliz. c. 1. It then enumerates a great number of other acts of nearly the same description, and recites, that by these various enactments, "papists, persons saying or hearing mass, or being present at, or conforming to, or performing or observing any rite, ceremony, practice or observance of the Church of Rome, or maintaining or assisting others therein," are made liable to the penalties contained in those acts. It is difficult to say that the enacting part of the section which follows this recital was designed to embrace more than the cases therein set forth, or that the words "practice or observance" comprehend the right of appeal to Rome, or indeed any other practice or observance that is not in the nature of a "rite or ceremony." Possibly, however, by a large construction of a remedial enactment, the courts will hold that, with the exemption from prosecution as a papist, the legislature intended to afford to every Roman Catholic the free exercise of all those usages of his ecclesiastical

discipline, without which the headship of the pope would be deprived of much of its practical importance. Notwithstanding this impression, the author still feels it his duty shortly to advert to the main provisions of Henry's

acts.

By the 24 Hen. VIII. c. 12, s. 4, it is enacted, that if any person resiant within the realm or its actual dominions or marches, "or any other person or persons," shall, for any causes testamentary or matrimonial, divorces, tithes, oblations or obventions, attempt, move, purchase or procure from or to the see of Rome or other foreign court, any foreign process, inhibitions, appeals, sentences, summons, citations, suspensions, interdictions, excommunications, restraints or judgments, or execute any such, or do any thing to the let, impediment, hindrance or derogation of any process, sentence, judgment or determination in any courts of the said realm, dominions or marches, for any of the above causes, every such offender, his fautors, comforters, abettors, procurers, executors, and counsellors, upon conviction, shall be liable for every default, to the pains, penalties, and forfeitures ordained by the Statute of Præmunire, 16 Rich. II. c. 5.

The 25 Hen. VIII. c. 19, s. 3, forbids any appeals whatever to be had, provoked, or made out of the realm or its actual dominions, to the bishop of Rome or see of Rome," in any causes or matters happening to be in contention, and having their commencement and beginning in any of the courts" of the said realm or dominions. And such appellants, and persons executing process of the see of Rome, and their respective aiders, counsellors and abettors, are, by section 5, made liable to the penalties of the above-mentioned Act of Præmunire.

But

These two enactments are confined to appeals. the same penalties are enacted by the 25 Hen. VIII. c. 21, ss. 3, 20, and 22, against any subject of the said realm or dominions suing to the pope or the Roman see for "licenses, dispensations, compositions, faculties, grants, rescripts, delegacies, or any other instruments or writings"