Sivut kuvina

dal tenure, being originally gratuitous donations, were at that time denominated beneficia; their very name as well as constitution was borrowed, and the care of the souls of a parish thence came to be denominated a benefice. Lay fees were conferred by investiture or delivery of corporeal possession; and spiritual benefices, which at first were universally donative, now received in like manner a spiritual investiture, by institution from the bishop, and induction under his authority. As lands escheated to the lord in defect of a legal tenant, so benefices lapsed to the bishop upon non-presentation by the patron, in the nature of a spiritual escheat. The annual tenths collected from the clergy were equivalent to the feodal render, or rent reserved upon a grant; the oath of canonical obedience was copied from the oath of fealty required from the vassal by his superior; and the primer seizins of our military tenures, whereby the first profits of an heir's estate were cruelly extorted by his lord, gave birth to as cruel an exaction of the first fruits from the beneficed clergy. And the occasional aids and talliages, levied by the prince on his vassals, gave a handle to the pope to levy, by the means of his legates a latere, Peterpence and other taxations.


At length the holy father went a step beyond any example of either emperor or feodal lord. He reserved to himself, by his own apostolical authority,d the presentation to all benefices which became vacant while the incumbent was attending the court of Rome upon any occasion, or on his journey thither, or back again; and, moreover, such also as became vacant by his promotion to a bishopric or abbey: "etiamsi ad illa persona consueverint et debuerint per electionem aut quemvis alium modum assumi." And this last, the canonists declared, was no detriment at all to the patron, being only like the change of a life in a feodal estate by the lord. Dispensations to avoid these vacancies begat the doctrine of commendams, and papal provisions were the previous nomination to such benefices, by a [108] kind of anticipation, before they became actually void; though afterward indiscriminately applied to any right of patronage exerted or usurped by the pope. In consequence of which the best livings were filled by Italian and other foreign clergy, equally unskilled in and averse to the laws and constitution of England. The very nomination to bishoprics, that ancient prerogative of the crown, was wrested from King Henry the First, and afterward from his successor King John, and seemingly, indeed, conferred on the chapters belonging to each see; but by means of the frequent appeals to Rome, through the intricacy of the laws which regulated canonical elections, was eventually vested in the pope. And to sum up this head with a transaction most unparalleled and astonishing in its kind, Pope Innocent III. had at length the effrontery to demand, and King d Extrav., 1. 3, t. 2, c. 13.

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John had the meanness to consent to, a resignation of his crown to the pope, whereby England was to become forever St. Peter's patrimony, and the dastardly monarch reaccepted his scepter from the hands of the papal legate, to hold as the vassal of the holy see, at the annual rent of a thousand marks.

Another engine set on foot, or at least greatly improved, by the court of Rome, was a master-piece of papal policy. Not content with the ample provisions of tithes, which the law of the land had given to the parochial clergy, they endeavored to grasp at the lands and inheritances of the kingdom, and (had not the legislature withstood them) would by this time have probably been masters of every foot of ground in the kingdom. To this end they introduced the monks of the Benedictine and other rules, men of sour and austere religion, separated from the world and its concerns by a vow of perpetual celibacy, yet fascinating the minds of the people by pretenses to extraordinary sanctity, while all their aim was to aggrandize the power and extend the influence of their grand superior, the pope. And as, in those times of civil tumult, great rapines and violence were daily committed by overgrown lords and their adherents, they were taught to believe that founding a monastery a little before their deaths would atone for a life of incontinence, disorder, and bloodshed. Hence innumerable abbeys and re- [109] ligious houses were built within a century after the Conquest, and endowed, not only with the tithes of 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 consecrated 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 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 • See vol. iii., page 61. See vol. ii., page 268.'

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 endeavors 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 befall that posterity to which they bore no endearing relation; yet it vanished into [110] nothing when the eyes of the people were a little enlightened, and they set themselves with vigor to oppose it. So vain and ridiculous is the attempt to live in society without acknowledg ing 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.

Statutes of præmunire.

Having thus, in some degree, endeavored 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 earnest to shake off this servile yoke. 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 pretense 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 having obtained a bull of excommunication against another, he ordered him to be executed as a traitor, according to the ancient law. 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 offense 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 endeavored to encroach, but the Parliament manfully withstood 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 [111] extremely different; and to remedy these inconveniences first

Edw. III.

i 2 Inst., 583.

Edw. I.

Edw. II.

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Dav., 83, &c.

Bro. Abr., tit. Coron., 115; Trea-
14; 5 Rep., pt. 1, fol. 12; 3 Ass., 19.

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 provisionsk), 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 defense of the liberties of the crown. Hereupon more sharp and penal laws were devised against provisors, 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 imprisoned 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 in 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 coronation oath; and all the temporal nobility and commons engaged that if the pope should endeavor, 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 [112] their preferments; and, afterward, that no alien should be capable to be presented 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 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 Statute of præmunire.

præmunire facias, being (as we said) used to command a cita

Modern Universal History, xxix.,

Stat. 25 Edw. III., st. 6; 27 Edw.

III., st. 1, c. 1; 38 Edw. III., st. 1, v.
4, and st. 2, c. 1, 2, 3, 4.

m Seld. in Flet., 10, 4.

Rich. II.

tion of the party, have denominated in common speech not only the writ, but the offense 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, bulls, 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 ancient statutes touching this offense; 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 afterward; [113] the spirit of the nation being so much raised against foreigners, Hen. V. 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 afterward made in support of these foreign jurisdictions. Archbishop 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 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 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

■ Dav., 96.

Hen. IV.

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