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CHAPTER VIII.

OF PRÆMUNIRE.

A THIRD species of offence more immediately affecting the king and his gov ernment, though not subject to capital punishment, is that of præmunire; so called from the words of the writ preparatory to the prosecution thereof: "præmunire (a) facias A B" cause A B to be forewarned that he appear before us to answer the contempt wherewith be stands charged: which contempt is particularly recited in the preamble to the writ. (b) It took its original from the exorbitant power claimed and exercised in England by the pope, which even in the days of blind zeal was too heavy for our ancestors to bear.

It may justly be observed, that religious principles, which (when genuine and pure) have an evident tendency to make their professors better citizens as well as better men, have (when perverted and erroneous) been usually subversive of civil government, and been made both the cloak and the instrument of every pernicious design that can be harbored in the heart of man. The unbounded authority that was exercised by the Druids in the west, under the influence of pagan superstition, and the terrible ravages committed by the Saracens in the cast, to propagate the religion of Mahomet, both witness to the truth of that ancient universal observation, that in all ages and in all countries, civil and ecclesiastical tyranny are mutually productive of each other. It is therefore the glory of the church of England, that she inculcates due obedience to lawful [*104] authority, and hath been (as her prelates on *a trying occasion once expressed it) (c) in her principles and practice ever most unquestionably loyal. The clergy of her persuasion, holy in their doctrines and unblemished in their lives and conversation, are also moderate in their ambition, and entertain just notions of the ties of society and the rights of civil government. As in matters of faith and morality they acknowledge no guide but the Scriptures, so, in matters of external polity and of private right, they derive all their title from the civil magistrate; they look up to the king as their head, to the parliament as their lawgiver, and pride themselves in nothing more justly, than in being true members of the church, emphatically by law established. Whereas the notions of ecclesiastical liberty, in those who differ from them, as well in one extreme as the other (for I here only speak of extremes), are equally and totally destructive of those ties and obligations by which all society is kept together; equally encroaching on those rights which reason and the original contract of every free state in the universe have vested in the sovereign power; and equally aiming at a distinct independent supremacy of their own, where spiritual men and spiritual causes are concerned. The dreadful effects of such a religious bigotry, when actuated by erroneous principles, even of the protestant kind, are sufficiently evident from the history of the anabaptists in Germany, the covenanters in Scotland, and that deluge of sectaries in England, who murdered their sovereign, overturned the church and monarchy, shook every pillar of law, justice, and private property, and most devoutly established a kingdom of the saints in their stead. But these horrid devastations, the effects of mere madness, or of zeal that was nearly allied to it, though violent and tumultuous, were but of a short duration. Whereas, the progress of the papa policy, long actuated by the steady counsels of successive pontiffs, took deeper root, and was at length in some places with difficulty, in others never yet, extirpated. For this we might call to witness the black intrigues of the jesuits,

(a) A barbarous word for præmoneri. (1)

(c) Address to James II, 1687.

(b) Old. Nat. Brev. 101, edit. 1534.

(1) [Præmunio, in law-latin, is used, in all its tenses and participles, for præmonio or ci'o. Ducange Gloss.]

This chapter is wholly inapplicable in the United States.

Chap. 8.]

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so lately triumphant over Christendom, but now universally abandoned by even [*105 ] the Roman Catholic powers: but the subject of our present *chapter rather leads us to consider the vast strides which were formerly made in this kingdom by the popish clergy; how nearly they arrived to effecting their grand design; some few of the means they made use of for establishing their plan; and how almost all of them have been defeated or converted to better purposes, by the vigour of our free constitution, and the wisdom of successive parliaments. The ancient British church, by whomsoever planted, was a stranger to the bishop of Rome, and all his pretended authority. But the pagan Saxon invaders, having driven the professors of Christianity to the remotest corners of our island, their own conversion was afterwards effected by Augustin the monk, and other missionaries from the Court of Rome. This naturally introduced some few of the papal corruptions in point of faith and doctrine; but we read of no civil authority claimed by the pope in these kingdoms, till the æra of the Norman conquest; when the then reigning pontiff, having favoured Duke William in his projected invasion, by blessing his host and consecrating his banners, took that opportunity also of establishing his spiritual encroachments: and was even permitted so to do by the policy of the conqueror, in order more effectually to humble the Saxon clergy and aggrandize his Norman prelates; prelates, who, being bred abroad in the doctrine and practice of slavery, had contracted a reverence and regard for it, and took a pleasure in riveting the chains. of a free-born people.

The most stable foundation of legal and rational government is a due subordination of rank, and a gradual scale of authority; and tyranny, also, itself is most surely supported by a regular increase of despotism, rising from the slave to the sultan: with this difference, however, that the measure of obedience in the one is grounded on the principles of society, and is extended no farther than reason and necessity will warrant: in the other it is limited only by absolute will and pleasure, without permitting the inferior to examine the title upon which it is founded. More effectually, therefore, to enslave the consciences and minds of the people, the Romish *clergy themselves paid the most implicit obedience to their own superiors or prelates; and they, in their [*106] turn, were as blindly devoted to the will of the sovereign pontiff, whose decisions they held to be infallible, and his authority co-extensive with the Christian world. Hence his legates a latere were introduced into every kingdom of Europe, his bulls and decretal epistles became the rule both of faith and discipline, his judgment was the final resort in all cases of doubt or difficulty, his decrees were enforced by anathemas and spiritual censures, he dethroned even kings that were refractory, and denied to whole kingdoms (when undutiful) the exercise of Christian ordinances, and the benefits of the gospel of God.

But, though the being spiritual head of the church was a thing of great sound, and of greater authority, among men of conscience and piety, yet the court of Rome was fully apprised that (among the bulk of mankind) power cannot be maintained without property; and therefore its attention began very early to be riveted upon every method that promised pecuniary advantage. The doctrine of purgatory was introduced, and with it the purchase of masses to reNew-fangled offences were created, and induldeem the souls of the deceased. gences were sold to the wealthy, for liberty to sin without danger. The canon law took cognizance of crimes, enjoined penance pro salute animæ, and commuted that penance for money. Non-residence and pluralities among the clergy, and marriages among the laity, related within the seventh degree, were strictly prohibited by canon; but dispensations were seldom denied to those who could afford to buy them. In short, all the wealth of Christendom was gradually drained by a thousand channels into the coffers of the holy see.

The establishment also of the feudal system in most of the governments of Europe, whereby the lands of all private proprietors were declared to be holden of the prince, gave a hint to the court of Rome for usurping a similar authority over all the preferments of the church; which began first in Italy, and

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gradually spread itself to England. The pope became a feudal lord: [*107] and all ordinary patrons were to hold their right of patronage under this universal superior. Estates held by feudal 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 corporal 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 feudal 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 sci sins 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 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, peter-pence and other taxations.

At length the holy father went a step beyond any example of either emperor or feudal 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 feudal 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 kind of anticipation, before they *became [*108] actually void: though afterwards 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 afterwards 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 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 sceptre 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 provision of tithes, which the law of the land had given to the parochial clergy, they endeavoured 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 pretences 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

(d) Extrav. l. 3, t. 2, c. 13.

adherents, they were taught to believe, that founding a monastery a little before their death would atone for a life of incontinence, disorder and bloodshed. Hence innumerable abbeys and religious houses were built within a *century after the conquest, and endowed, not only with the tithes of parishes [*109] which were ravislied 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 book: and we shall have an opportunity of examining at large the nature of the privilegium clericale in the progress of the present one. 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 people were a little enlightened, and they set themselves with vigour to oppose [*110] 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 original and subsequent progress of the papal usurpations in England, let us now return to the statutes of pramunire, 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. (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 bulles and processes: attacking Scotland in defiance of one: and seizing the temporalties 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. And, one of his subjects having obtained a bulle of excommunication against another, he ordered him to be executed as a traitor, according to the ancient law. (h) And in the thirtyfifth 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

(e) See book III, p. 61.
(f: See hook II, p. 268.
(g) Dav. 82, &c.
(h) Bro. Abr. tit. Corone. 115. Treason, 14. 5 Rep. p. 1, fol. 12. 3 Ass. 19.
VOL. II.-46.

(i) 2 Inst. 583.
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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 bulles of the see of Rome. But Edward the Third was of a temper extremely different: and to remedy these *inconveniences first by gentle [*111] 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 Nuremburg, 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. Hereupon more sharp and penal laws were devised against provisors, (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 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 of 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 endeavour, by process or otherwise, to maintain these usurpations, they would reist 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 their preferments: and, afterwards, that no alien should be capable to be [*112] 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 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.

In the writ for the execution of all these statutes, the words præmunire 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 præmunire. And accordingly the next statute I shall mention, which is generally referred to by all subsequent statutes, is usually called the statute of pramunire. It is the statute 16 Ric. II, c. 5, which enacts, that whoever procures at Rome, or elsewhere, any transla tions, 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 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 offence; the usurped civil power of the bishop of Rome

(k) Mod. Un. Hist. xxix, 293. c. 4, and st. 2. c. 1, 2, 3, 4.

(1) Stat. 25 Edw. III, st. 6. 27 Edw. III, st. 1, c. 1. 38 Edw. III, st. 1 (m) Seld. in Flet. 10, 4.

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