Зображення сторінки
[ocr errors]

[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 à 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 the 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 the 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, the seventeenth year of Henry the sixth, he refused to consecrate a bishop of Ely that was nominated by Pope Eugenius the fourth,—a conduct quite consonant to his former behaviour in the sixth year of Henry the sixth, when he refused to obey the commands of Pope Martin the fifth, who had required him to exert his endeavours to repeal the statute of præmunire; illud execrabile 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 archbishop, who had incurred the displeasure of the Pope for opposing the excessive power of the court of Rome (o).

This, then, is the original meaning of the offence which we call pramunire, viz., introducing a foreign power into

(0) See Wilk. Concil. Magn. Br. vol. iii. passim, and Dr. Duck's Life of Archbishop Chichele.


[this land; and creating imperium in imperio, by paying that obedience to papal process which constitutionally belonged to the king alone, long before the Reformation in the reign of Henry the eighth. At which time the penalties of premunire were indeed extended to more papal abuses than before ; as the kingdom then entirely renounced the authority of the see of Rome, though not all the corrupted doctrines of the Romish 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 licence or dispensation ; or to obey any process from thence ;-were made liable to the pains of præmunire. And in order to restore to the king in effect the nomination of vacant bishopries, and yet keep up the established forms,-it was enacted by statute 25 Hen. VIII. c. 20, that if the dean and chapter refused to elect the person named by the king, or any archbishop or bishop to confirm or consecrate him, they should fall within the penalties of the statutes of præmunire.

So also by statute 13 Eliz. c. 2, to 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 to receive the same with such intent, and not discover the offender; brought on the offenders the penalties of a præmunire (P).

Thus far the penalties of præmunire seem to have kept within the proper bounds of their original institution, the

(p) The penalties imposed by 13 Eliz. c. 2, were repealed by 9 & 10 Vict. c. 59. By 11 & 12 Vict. c. 108, reciting that doubts existed whether her Majesty could lawfully establish diplomatic relations and intercourse with the sovereign of the Roman states,- it was declared and enacted, that such relations and intercourse

should be lawful; but with a proviso prohibitory of the reception at the Court of London of any diplomatic agent from Rome who shall be in holy orders in the Church of Rome, or a Jesuit, or member of any order of the Church of Rome bound by monastic or religious vows.

[depressing the power of the Pope:] but being pains of no inconsiderable consequence, it was afterwards thought fit to apply them by other Acts (some of which have been expressly repealed as being obsolete, though others still remain in our statute book) to other heinous offences; of these some bear more and some less relation to the original offence, and some no relation at all.

[Thus, 1. By the statute 1 & 2 Ph. & M. c. 8, to molest the possessors of abbey lands granted by parliament to Henry VIII. and Edward VI., was made a præmunire. 2. To obtain any stay of proceedings, (other than by arrest of judgment or writ of error,) in any suit for a monopoly, was likewise made a præmunire by statute 21 Jac. I. c. 3. 3. To attempt to restrain the importation or making of gunpowder, was also made a præmunire by 16 Car. I. c. 21. 4. On the abolition, by statute 12 Car. II. c. 24, of the prerogative of purveyance and pre-emption (9),the exertion of any such power for the future was declared to be indictable; and in any suit thereon, to obtain any stay of proceedings other than by arrest of judgment, or writ of error, was made a præmunire. 5. To assert maliciously and advisedly, by speaking or writing, that both or either house of parliament have a legislative authority without the king, was declared a præmunire by statute 13 Car. II. c. 1. 6. By the Habeas Corpus Act also,

. 31 Car. II. c. 2, to send any subject of this realm (with certain exceptions in the Act specified) a prisoner into parts beyond the seas was made a præmunire, and one which the king could not pardon; besides being visited with other heavy penalties. 7. By statute 7 & 8 Will. III. C. 24, serjeants, counsellors, proctors, attornies, and all officers of courts practising without having taken the proper oaths were made guilty of a præmunire. 8. By the statute 6 Ann. c. 7, to assert maliciously and directly, by preaching, teaching, or advised speaking, that any

(9) As to this antient prerogative of the Crown, vide sup. vol. II.

P. 537.

[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, was declared a præmunire : as writing, printing or publishing the same doctrines were made to amount to treason. 9. By statute 6 Ann. c. 23, it was enacted, that if the assembly of peers of Scotland, convened to elect their sixteen representatives in the British parliament, should presume to treat of any other matter save only the election, they should incur the penalties of a præmunire. 10. The statute 12 Geo. III. c. 11, subjected to the penalties of the statute of præmunire, all such as should knowingly, and wilfully, solemnize, assist, or be present, at any forbidden marriage of such of the descendants of the body of King George the second, as were, by that Act, prohibited to contract matrimony without the consent of the Crown.

Having thus inquired into the nature and several species of præmunire, its punishment may be gathered from the foregoing statutes, which are thus shortly summed up by Sir Edward Coke. “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 prison at the

king's pleasure; or, as other authorities have it during

life ;" 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 (r).

These forfeitures here inflicted, do not bring this offence within our former definition of felony; being inflicted by particular statutes, and not by the common law (s). But (r) 1 Inst. 129.

But as the penalties affixed to the (8) It may be noticed that the offence of præmunire are not atprovision contained in the 33 & 34 tempted to be enforced by prosecuVict. c. 23, taking away the conse- tions, the point is of no practical quence of forfeiture, applies only to importance. a conviction for treason or felony.

[so odious, Sir Edward Coke adds, was this offence of premunire, that a man that was attainted of the same might have been slain by any other man without danger of law; because it is provided by law that any man might do to him as to the king's enemy, and any man may lawfully kill an enemy (t). However, the position itself that it is at all times lawful to kill an enemy is by no means tenable; it being only lawful to kill him in the heat of battle, or for necessary self-defence. And to obviate such savage or mistaken notions the statute 5 Eliz, c. 1, s. 21, provided, that it shall not be lawful to kill any person attainted in a præmunire; any law, statute, opinion, or exposition of law, to the contrary notwithstanding (u). 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 (x).

VII. Contempts against the sovereign's title, not amounting to treason or præmunire, are chiefly the denial of his right to the Crown, in common and unadvised discourse; for if it be by advisedly speaking, we have seen that it amounts to præmunire (y). This heedless species of contempt is punishable by our law with fine and imprisonment.]

VIII. Contempt against the Crown's ecclesiastical supremacy. This, in our own times, was considered to be committed by endeavouring to establish a hierarchy of the see of Rome within this realm, with titles invasive

(1) 1 Inst. 129.

(u) The Act in which this declaration of the law is contained, relates chiefly to other subjects, and

is among those repealed by 9 & 10 Vict. c. 59.

(3) Hawk. P. C. b. 1, c. 19, s. 47. (y) Vide sup. p. 183.

« НазадПродовжити »