compel such as had crept in, at least to reside on their preferments: and, afterwards, that no alien *should be capable to be pre[*112] 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 benefices made void. To which the statute 13 Ric. II, st. 2, c. 2, adds banishment and forfeiture of lands and goods: and, by chapter 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.

The statute.-In the writ for the execution of all these statutes, the words pramunire 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 pramunire. And accordingly the next statute I shall mention, which is generally referred to by all subsequent statutes, is usually called the statute of præmunire.

Præmunire is a species of treason. 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 pramunire 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 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 *against foreigners, that about this time, in the reign of [*113] Henry the Fifth, the alien priories, or abbeys for foreign monks, were suppressed, and their lands given to the crown. no farther attempts were afterwards made in support of these foreign jurisdictions.

And

A learned writer, before referred to, is therefore greatly mistaken, when he says, (2) 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 not made 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

(n) Dav. 96.

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 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 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 was so satisfied with their success, that they granted to the king a whole tenth upon this occasion. (o) Attitude of English church.-*And, indeed, so far was the archbishop who presided in this synod, from countenanc[*114] ing 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 pramunire ("execrabile illud statutum" (that execrable statute), 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)

(0) Wilk. Concil. Mag. Brit. III. 533.

(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 digres sion to show 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 præmunire and provisors were made to restrain.

The acts prohibited. *This then is the original meaning [*115] of the offence, which we call pramunire, viz.: introducing a foreign power into this land, and creating imperium in imperio (a government within a government), by paying that obedience to papal process, which constitutionally belongs to the king alone, long before the reformation in the reign of Henry the Eighth: at which time the penalties of pramunire (to forewarn) were indeed extended to more papal abuses than before; as the kingdom then entirely renounced the authority of the see of Rome, though not at all the corrupted doctrines of the Roman church. And therefore by the several statutes of 24 Hen. VIII, c. 12, and 25 Hen. VIII, cc. 19 and 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. 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 and 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 præmunire; 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, 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 pramunire. 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 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.

Extending the meaning of the term.-*Thus far the [*116] penalties of pramunire seem to have kept within the 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 and 2 P. and M. 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 promunire 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 pramunire 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, (2) 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. II, 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 seas. 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 by the proper magistrate, are subject to the penalties of a præmunire; and by statute 7 and *8 Wm. III, c. 24, serjeants, counsellors, proctors, attorneys, and all officers of [*117] courts, practising without having taken the oaths of allegiance and supremacy, and subscribed the declaration against popery, are guilty of a præmunire, whether the oaths be tendered or no. 9. By the statute 6 Ann. 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 Ann. 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 pramunire. 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 præmunire 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)

Punishment. Having thus inquired into the nature and several species of pramunire, 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

(q) See book I, page 287.
(8) See book I, ch. 4.
(82)

(r) See book I, page 138. Book III, page 137. (t) 1 Inst. 129.

1297

[*118] prison at the king's pleasure: *or (as other authorities have it) during 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 pramunire, 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 battel, or for necessary self-defence. And to obviate such savage and mistaken notions, (a) the statute 5 Eliz. c. 1, provides that it shall not be lawful to kill any person attainted in a pramunire, 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 grievance which he as an individual may suffer. And no man, knowing him to be guilty, can with safety give him comfort, aid, or relief. (y)

OF MISPRISIONS AND CONTEMPTS AFFECTING THE KING AND GOV.

ERNMENT.

The fourth species of offences more immediately against the king and government are entitled misprisions and contempts.

Misprisions (a term derived from the old French, mespris, a neglect or contempt) are, in the acceptation of our law, generally understood to be all such high offences as are under the degree of capital, but nearly bordering thereon: and it is said, that a misprision is contained in every treason and felony whatsoever: and that if the king so please, the offender may be proceeded against for the misprision only. (a) And upon the same principle, while the jurisdiction of the star-chamber subsisted, it was held that the king might remit a prosecution for treason, and cause the delinquent to be censured in that court, merely for a high misdemeanor: as happened in the case of Roger, earl of Rutland, in 43 Eliz., who was concerned in the earl of Essex's rebellion. (b) Misprisions are generally divided into two sorts: negative, which consist in the concealment of something which ought to be revealed; and positive,

(u) 1 Bulst. 199.
(y) 1 Hawk. P. C. 55.

(w) Stat. 25 Edw. III, st. 5, c. 22.

(x) Bro. Abr. t. Corone, 196.

(a) Year-book, 2 Ric. III, 10. Staundf. P. C. 37. Kel. 71. 1 Hal. P. C. 374. 1 Hawk. P. C. 55, 56. (b) Hudson of the court of star-chamber. MS. in Mus. Brit.