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gress of ecclesiastical courts (e), as well as of purchases in mortmain (s), have already been fully discussed in the preceding volumes; and we shall have an opportunity of examining at large the nature of the privilegium clericale in the progress of the present book. 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 resolutely 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 what might befal that posterity to which they bore no endearing relation : yet it vanished into *nothing, when the eyes of the [*110] people were a little enlightened, and they set themselves with vigour to oppose it. So vain and ridiculous is the attempt to live in society, without acknowledging the obligations 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 The struggles of original and subsequent progress of the papal usurpations in shake off the England, let us now return to the statutes of præmunire, the foundation which were framed to encounter this overgrown yet increas- præmunire. ing evil. King Edward I., a wise and magnanimous prince, set himself in earnest to shake off this servile yoke (g). 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 bulls and processes: attacking Scotland, in defiance of one; and seizing the temporalities of his clergy, who, under pretence of another, refused to pay a tax imposed by parliament. He strengthened the statutes of mortmain; thereby closing the great gulph, in which all the lands of the kingdom were in danger of being swallowed. (e) See vol. III. page 61,

(g) Dav. 83, &c. () See vol. II. page 268.

of

1

Further acts of resistance to the papal power were made in the reigns of Edward II. and III:

[*111]

1

And, one of his subjects having obtained a bull of excom-
munication against another, he ordered him to be executed as
a traitor, according to the ancient 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 (i), 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 encroach, but the parliament manfully with-
stood him; and it was one of the principal articles charged
against that unhappy prince, that he had given allowance to
the bulls of the see of Rome. But Edward the third was
of a temper extremely different; and, to remedy these *incon-
veniences 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 em-
peror, 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. Here-
upon more sharp and penal laws were devised against pro-
visors (1), which enact severally, that the court of Rome shall
not present or collate to any bishopric or living in England ;
and that whoever 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 impri-
soned till he renounces such provision : and the same pu-
nishment 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. at-
tempted 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 assem-
bled, 40 Edw. III. that king John's donation was null and

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(h) Bro. Abr. tit. Coron. 115. Treason, 14. 5 Rep. part 1, fol. 12. 3 Ass. 19.

(i) 2 Inst. 583.

(k) Mod. Un. Hist. xxix. 293.

(1) Stat. 25 Edw. III. st. 6; 27 Edw. III. stat. 1, c. 1; 38 Edw. III. stat. I, c. 4, and stat. 2, c. 1, 2, 3 4.

and in the reign

void, being without the concurrence of parliament, and contrary to his coronation oath: and all the temporal nobility and commons engaged, that if the pope 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 or Richard Ft. to sharpen and strengthen these laws, and therefore it was enacted by statutes 3 Rich. II. c. 3, and 7 Rich. 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 preferments : and, afterwards, that no alien *should be capable to be presented to any ecclesiastical pre- [*112] ferment, under the penalty of the statutes of provisors (3). By the statute 12 Rich. 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 Rich. 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 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 In 16 Richard II. words præmunire facias, being, as we said, used to command præmunire 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 Rich. II. c. 5, which enacts, that whoever procures at Rome, or elsewhere, any translations, processes, excommunications, bulls, instruments, or

passed,

(m) Seld. in Flet. c. 4.

(3) It has recently been decided by country to be free, sovereign, and inthe court of King's Bench, that a per- dependent, is an alien, and cannot take son born in the United States of Ame- lands by descent in England. Doe v. rica, since the treaty of 1783, by which Acklam, 4 D. & R. 394; 2 B. & C. those states were acknowledged by this 779.

and was asterwards enlarged

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 under Henry IV. provision from the pope, to be exempt from canonical obe

dience to their proper ordinary, are also subjected to the penalties of præmunire. And this is the last of our ancient 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 [*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 further attempts were afterwards made in support of

these foreign jurisdictions. Its operation

A learned writer, before referred to, is therefore greatly under Henry VI. 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 Rich. 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 provincial synod, assembled in 1439, 18 Hen. VI. that very synod which at the same time refused to confirm and allow a papal bull, 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 jurisdictions ; the tenor of the petition being, “that those penalties should be taken to extend only to those

was regulated

(n) Dav. 96.

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 occasion (6).

* And indeed so far was the archbishop, who presided in [*114) this synod, from countenancing the usurped power of the The pope's tei pope in this realm, that he was ever a firm opposer of it. change proved 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 principles 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 bull 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 ambassador forthwith to his holiness, on behalf of the arch

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