[and the privilegium clericale, or benefit of clergy, which delivered all clerks from any trial or punishment except before their own tribunal. But we shall only observe, at present, that notwithstanding this. plan of pontifical power was so deeply laid, and was 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; and being 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 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 usurpation, let us now return to the statutes of præmunire ; which were framed to encounter this overgrown, yet increasing evil. King Edward the first, 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, until they had sworn not to receive the papal benediction. He made light of all papal (g) Dav. 83, &c. [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 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 antient 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, the foundation of all the subsequent statutes of præmunire; which is ranked as an offence immediately against the sovereign, because every encouragement of the papal power is a diminution of the authority of the Crown (i). In the weak reign of Edward the second, the Pope again endeavoured 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 extremely different : and to remedy these inconveniences 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 emperor, who, a few years before, at the Diet of Nuremburg, A.D. 1323, had established a law against provisions, 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 (j). Hereupon more sharp and penal laws were (h) Bro. Abr. tit. Coronæ, 115; Treason, 14; 5 Rep. part 1, fol. 12; 3 Ass. 19. VOL. IV. (i) 2 Inst. 583. (j) See Mod. Un. Hist. xxix. 293. N [devised against provisors; which enacted, 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, shall pay fine and ransom to the king at his will, and be imprisoned till he renounced such provision; and the same punishment was inflicted on such as cite the king, or any of his subjects, to answer in the court of Rome (k). And when the holy see resented these proceedings, and Pope Urban the fifth attempted to revive the vassalage and annual rent to which King John had subjected the kingdom, it was unanimously agreed by all the estates of the realm, in parliament assembled, in the fortieth year of Edward the third, 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 resist and withstand him to the utmost of their power (1). 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 of being presented to any ecclesiastical preferment, under the penalties of the statutes of provisors. By the statute 12 Ric. II. c. 15, all liege men of the king accepting of a living by any foreign provision, were put out of the king's protection, and the benefice made void. To which the statute 13 Ric. II. st. 2, c. 2, added banishment and forfeiture of lands and goods and by the third chapter of the same statute, any (k) See stat. 25 Edw. 3, st. 6; 27 Edw. 3, st. 1, c. 3; 38 Edw. 3, st. 2, cc. 1, 2, 3, 4. [person bringing over any citation or excommunication from beyond sea, on account of the execution of the foregoing statutes of provisors, was to 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 demand 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 we shall mention 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 case 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 antient 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 Henry the fifth, the alien priories or abbeys for foreign monks were suppressed, and their lands given to the Crown. And even prior to the Reformation, all further attempts on the part of our own ecclesiastics to support these foreign jurisdictions had ceased. [A learned writer above referred to, is therefore greatly mistaken, when he says, that in the time of Henry the sixth, 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 of 16 Ric. II., might be repealed; but that this motion was rejected (m). 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, in the eighteenth year of Henry the sixth: that very synod, which at the same time refused to confirm and allow a papal bull, which was then laid before them. Next, the purport of it was not to procure a repeal of the statutes against provisors, or that of Richard the second in particular; but to request that the penalties thereof,which were applied by a forced construction 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 "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 (n). And, indeed, so far was the archbishop, who presided in this synod, from countenancing the usurped power of the Pope in this realm, that he was ever a firm opposer 66 66 (m) Dav. 96. (n) Wilk. Concil. Mag. Brit. iii. 533. |
