Blackstone's Commentaries on the Laws of England
Book the Fourth - Chapter the Eighth : Of Praemunire
CHAPTER THE EIGHTH.
OF PRAEMUNIRE.
A THIRD fpecies of offence more immediately affecting the king and his government, though not fubject to capital punifhment, is that of praemunire: fo called from the words of the writ preparatory to the profecution thereof; “praemunire
a “facias A. B.” forewarn A. B. that he appear before us to anfwer the contempt wherewith he ftands charged; which contempt is particularly recited in the preamble to the writ
b. It took it's original from the exorbitant power claimed and exercifed in England by the pope, which even in the days of blind zeal was too heavy for our anceftors to bear.
IT may juftly be obferved, that religious principles, which (when genuine and pure) have an evident tendency to make their profeffors better citizens as well as better men, have (when perverted and erroneous) been ufually fubverfive of civil government, and been made both the cloak and the inftrument of every pernicious defign that can be harboured in the heart of man. The unbounded authority that was exercifed by the Druids in the weft, under the influence of pagan fuperftition, and the terrible ravages committed by the Saracens in the eaft, to propagate the religion of Mahomet, both witnefs to the truth of
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a A barbarous word for praemonere.
b Old Nat. Brev. 101. edit. 1534.
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that
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that antient univerfal obfervation; that, in all ages and in all countries, civil and ecclefiaftical tyranny are mutually productive of each other. And it is the glory of the church of England, as well as a ftrong prefumptive argument in favour of the purity of her faith, that fhe hath been (as her prelates on a trying occafion once expreffed it
c) in her principles and practice ever moft unqueftionably loyal. The clergy of her perfuafion, holy in their alfo moderate in their ambition, and entertain juft notions of the ties of fociety and the rights of civil government. As in mattes of faith and morality they acknowlege no guide but the fcriptures, fo, in matters of external polity and of private right, they derive all their title from the civil magiftrate; they look up to the king as their head, to the parliament as their lawgiver, and pride themfelves in nothing fo juftly, as in being true members of the church, emphatically by law eftablifhed. Whereas the principles of thofe who differ from them, as well in one extreme as the other, are equally and totally deftructive of thofe ties and obligations by which all fociety is kept together; equally encroaching on thofe rights, which reafon and the original contract of every free ftate in the univerfe have vefted in the fovereign power; and equally aiming at a diftinct independent fupremacy of their own, where fpiritual men and fpiritual caufes are concerned. The dreadful effects of fuch a religious bigotry, when actuated by erroneous principles, even of the proteftant kind, are fufficiently evident from the hiftory of the anabaptifts in Germany, the covenanters in Scotland, and that deluge of fectaries in England, who murdered their fovereign, overturned the church and monarchy, fhook every pillar of law, juftice, and private property, and moft devoutly eftablifhed a kingdom of the faints in their ftead. But thefe horrid devaftations, the effects of mere madnefs or of zeal that was nearly allied to it, though violent and tumultuous, were but of a fhort duration. Whereas the progrefs of the papal policy, long actuated by the fteady counfels of fucceffive pontiffs,
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c Addrefs to James II. 1687.
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took
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took deeper root, and was at length in fome places with difficulty, in others never yet, extirpated. For this we might call to witnefs the black intrigues of the Jefuits, fo lately triumphant over Chriftendom, but now univerfally abandoned by even the Roman catholic powers: but the fubject of our prefent chapter rather leads us to confider the vaft ftrides, which were formerly made in this kingdom by the popifh clergy; how nearly they arrived to effecting their grand defign; fome few of the means they made ufe of for eftablifhing their plan; and how almoft all of them have been defeated or converted to better purpofes, by the vigour of our free conftitution, and the wifdom of fucceffive parliaments.
THE antient Britifh church, by whomfoever planted, was a ftranger to the bifhop of Rome, and all his pretended authority. But, the pagan Saxon invaders having driven the profeffors of chriftianity to the remoteft corners of our ifland, their own converfion was afterwards effected by Auguftin the monk, and other miffionaries from the court of Rome. This naturally introduced fome few of the papal corruptions in point of faith and doctrine; but we read of no civil authority claimed by the pope in thefe kingdoms, till the aera of the Norman conqueft: when the then reigning pontiff having favoured duke William in his projected invafion, by bluffing his hoft and confecrating his banners, he took that opportunity alfo of eftablifhing his fpiritual encroachments; and was even permitted fo 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 flavery, had contracted a reverence and regard for it, and took a pleafure in rivetting the chains of a free-born people.
THE moft ftable foundation of legal and rational government is a due fubordination of rank, and a gradual fcale of authority; and tyranny alfo itfelf is moft furely fupported by a regular increafe of defpotifm, rifing from the flave to the fultan: with
this
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this difference however, that the meafure of obedience in the one is grounded on the principles of fociety, and is extended no farther than reafon and neceffity will warrant; in the other it is limited only by abfolute will and pleafure, without permitting the inferior to examine the title upon which it is founded. More effectually therefore to enflave the confciences and minds of the people, the Romifh clergy themfelves paid the moft implicit obedience to their own fuperiors or prelates; and they, in their turns, ere as blindly devoted to the will of the fovereign pontiff, whofe decifions they held to be infallible, and his authority co-extenfive with the chriftian world. Hence his legates a latere were introduced into every kingdom of Europe, his bulles and decretal epiftles became the rule both of faith and difcipline, his judgment was the final refort in all cafes of doubt or difficulty, his decrees were enforced by anathemas and fpiritual cenfures, he dethroned even kings that were refractory, and denied to whole kingdoms (when undutiful) the exercife of chriftian ordinances, and the benefits of the gofpel of God.
BUT, though the being fpiritual head of the church was a thing of great found, and of greater authority, among men of confcience and piety, yet the court of Rome was fully apprized that (among the bulk of mankind) power cannot be maintained without property; and therefore it's attention began very early to be rivetted upon every method that promifed pecuniary advantage. The doctrine of purgatory was introduced, and with if the purchafe of maffes to redeem the fouls of the deceafed. New-fangled offences were created, and indulgences were fold to the wealthy, for liberty to fin without danger. The canon law took cognizance of crimes, injoined penance pro falute animae, and commuted that penance for money. Non-refidence and pluralities among the clergy, and marriages among the laity related within the feventh degree, were ftrictly prohibited by canon; but difpenfations were feldom denied to thofe who could afford to buy them. In fhort, all the wealth of chriftendom
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was gradually drained, by a thoufand chanels, into the coffers of the holy fee.
THE eftablifhment alfo of the feodal fyftem in moft 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 ufurping a fimilar authority over all the preferments of the church; which began firft in Italy, and gradually fpread itfelf to England. The pope became a feodal lord; and all ordinary patrons were to hold their right of patronage under this univerfal fuperior. Eftates held by feodal tenure, being originally gratuitous donations, were at that time denominated beneficia: their very name as well as conftitution was borrowed, and the care of the fouls of a parifh thence came to be denominated a benefice. Lay fees were conferred by inveftiture or delivery of corporal poffeffion; and fpiritual benefices, which at firft were univerfally donatives, now received in like manner a fpiritual inveftiture, by inftitution from the bifhop, and induction under his authority. As lands efcheated to the lord, in defect of a legal tenant, fo benefices lapfed to the bifhop upon non-prefentation by the patron, in the nature of a fpiritual efcheat. The annual tenths collected from the clergy were equivalent to the feodal render, or rent referved upon a grant; the oath of canonical obedience was copied from the oath of fealty required from the vafal by his fuperior; and the primer feifins of our military tenures, whereby the firft profits of an heir's eftate were cruelly extorted by his lord, gave birth to as cruel an exaction of firft-fruits from the beneficed clergy. And the occafional aids and talliages, levied by the prince on his vafals, 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 ftep beyond any example of either emperor or feodal lord. He referved to himfelf, by his own apoftolical authority
d, the prefentation to all benefices which
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d Extrav. l. 3. t. 2. c. 13.
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became
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became vacant while the incumbent was attending the court of Rome upon any occafion, or on his journey thither, or back again; and moreover fuch alfo as became vacant by his promotion to a bifhoprick or abbey: “etiamfi ad illa perfonae confueverint et debuerint per electionem aut quemvis alium modum affumi.” And this laft, the canonifts declared, was no detriment at all to by the lord. Difpenfations to avoid thefe vacancies begat the doctrine of commendams: and papal provifions were the previous nomination too fuchbenefices, by a kind of anticipation, before they became actually void; though afterwards indifcriminately applied to any right of patronage exerted or ufurped by the pope. in confequence of which the beft livings were filled by Italian and other foreign clergy, equally unfkilled in and averfe to the laws and conftitution of England. The very nomination to bifhopricks, that antient prerogative of the crown, was wrefted from king Henry the firft, and afterwards from his fucceffor king John; and feemighly indeed conferred on the chapters belonging to each fee: but by means of the frequent appeals to Rome, through the intricacy of the laws which regulated canonical elections, was eventually vefted in the pope. and, to fum up this head with a tranfaction moft unparalleled and aftonifhing in it's kind, pope Innocent III had at length the effrontery to demand, and king John had the meannefs to confent to, a refignation of his crown to the pope, whereby England was to become for ever St. Peter's patrimony; and the daftardly monarch re-accepted his fceptre from the hands of the papal legate, to hold as the vafal of the holy fee, at the annual rent of a thoufand marks.
ANOTHER engine fet on foot, or at leaft greatly improved, by the court of Rome, was a mafterpiece of papal policy. Not content with the ample provifion of tithes, which the law of the land had given to the parochial clergy, they endeavoured to grafp at the lands and inheritances of the kingdom, and (had not the legiflature withftood them) would by this time have probably
O 2
been
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been mafters of every foot of ground in the kingdom. To this end they introduced the monks of the Benedictine and other rules, men of four and auftere religion, feparated from the world and it's concerns by a vow of perpetual celibacy, yet fafcinating the minds of the people by pretences to extraordinary fanctity, while all their aim was to aggrandize the power and extend the influence of their grand fuperior the pope. and as, in thofe 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 monaftery a little before their deaths would atone for a life of incontinence, diforder, and bloodfhed. Hence innumerable abbeys and religious houfes were built within a century after the conqueft, and endowed, not only with the tithes of parifhes which were ravifhed from the fecular clergy, but alfo with lands, manors, lordfhips, and extenfive baronies. And the doctrine inculcated was, that whatever was fo given to, or purchafed by, the monks and friers, was confecrated to God himfelf; and that to alienate or take it away was no lefs than the fin of facrilege.
I MIGHT here have enlarged upon other contrivances, which will occur to the recollection of the reader, fet on foot by the court of Rome, for effecting an entire exemption of it's clergy from any intercourfe with the civil magiftrate: fuch as the feparation of the ecclefiaftical court from the temporal; the appointment of it's judges by merely fpiritual authority, without any interpofition from the crown; the exclufive jurifdiction it claimed over all ecclefiaftical perfons and caufes; and the privilegium clericale, or benefit of clergy, which delivered all clerks from any trial or punifhment except before their own tribunal. But the hiftory and progrefs of ecclefiaftical courts
e, as well as of purchafes in mortmain
f, have already been fully difcuffed in the preceding volumes: and we fhall have an opportunity of examining at large the nature of the privilegium clericale in the progrefs of the prefent book. And therefore I fhall only obferve
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e See Vol. III. pag. 61.
f See Vol. II. pag. 268.
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at
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at prefent, that notwithftanding this plan of pontificial power was f deeply laid, and fo indefatigably purfued by the unwearied politics of the court of Rome through a long fucceffion of ages; notwithftanding it was polifhed and improved by the united endeavours of a body of men, who engroffed all the learning of Europe for centuries together; notwithftanding it was firmly and refolutely executed by perfons the beft calculated for eftablifhing tyranny and defpotifm, being fired with a bigoted enthufiafm, (which prevailed not only among the weak and fimple, but even among thofe of the beft natural and acquired endowments) unconnected with their fellow-fubjects, and totally indifferent what might befall that pofterity to which they bore no endearing relation; --- yet it vanifhed into nothing, when the eyes of the people were a little enlightened, and they fet themfelves with vigour to oppofe it. So vain and ridiculous is the attempt to live in fociety, without acknowleging the obligations which it lays us under; and to affect an intire independence of that civil ftate, which protects us in all our rights, and gives us every other liberty, that only excepted of defpifing the laws of the community.
HAVING thus in fome degree endeavoured to trace out the original and fubfequent progrefs of the papal ufurpations in England, let us now return to the ftatutes of praemunire, which were framed to encounter this overgrown yet encreafing evil. King Edward I, a wife and magnanimous prince, fet himfelf in earneft to fhake off this fervile yoke
g. He would not fuffer his bifhops to attend a general council, till they had fworn not to receive the papal benediction. He made light of all papal bulles and proceffes: attacking Scotland in defiance of one; and feifing the temporalties of his clergy, who under pretence of another refufed to pay a tax impofed by parliament. He ftrengthened the ftatutes of mortmain; thereby clofing the great gulph, in which all the lands of the kingdom were in danger of being fwallowed.
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g Dav. 83, &c.
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And,
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And, one of his fubjects having obtained a bulle of excommunication againft 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 firft ftatute againft papal provifions, which, according to fir Edward Coke
I, is the foundation of all the fubfequent ftatutes of praemunire; which we rank as an offence immediately againft the king, becaufe every encouragement of the papal power is a diminution of the authority of the crown.
IN the weak reign of Edward the fecond the pope again endeavoured to encroach, but the parliament manfully withftood him; and it was one of the principal articles charged againft that unhappy prince, that he had given allowance to the bulles of the fee of Rome. But Edward the third was of a temper extremely different; and, to remedy thefe inconveniences firft by gentle means, he and his nobility wrote an expoftulation to the pope: but receiving a menacing and contemptuous anfwer, withal acquainting him, that the emperor, (who a few years before at the diet of Nuremberg, A. D. 1323, had eftablifhed a law againft provifions
k) and alfo the king of France, had lately fubmitted to the holy fee; the king replied, that if both the emperor and the French king fhould take the pope's part, he was ready to give battle to them both, in defence of the liberties of his crown. Hereupon more fharp and penal laws were enacted againft provifors
l, which enact feverally, that the court of Rome fhall prefent or collate to no bifhoprick or living in England; and that whoever difturbs any patron in the prefentation to a living by virtue of a papal provifion, fuch provifor fhall pay fine and ranfom to the king at his will; and be imprifoned till he renounces fuch provifion: and the fame punifhment is inflicted on fuch as cite the king, or any of his fubjects,
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h Bro. Abr. tit. Coron. 115. Treafon. 14. 5 Rep. part. 1. fol. 12. 3 Aff. 19.
I 2 Inft. 583.
k Mod. Univ. Hift. xxix. 293.
l Stat. 25 Edw. III. ft. 6. 27 Edw. III. ft. 1. c. 1. 38 Edw. III. ft. 1. c. 4. & ft. 2. c. 1, 2, 3, 4.
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to
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to anfwer in the court of Rome. And when the holy fee refented thefe proceedings, and pope Urban V attempted to revive the vafalage and annual rent to which king John had fubjected him kingdom, it was unanimoufly agreed by all the eftates of the realm in parliament affembled, 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 noblity and commons engaged, that if the pope fhould endeavour by procefs or otherwife to maintain thefe ufurpations, they would refift and withftand him with all their power
m.
IN the reign of Richard the fecond, it was found neceffary to fharpen and ftrengthen thefe laws, and therefore it was enacted by ftatutes 3 Ric. II. c. 3. and 7 Ric. II. c. 12. firft, that no alien fhould be capable of letting his benefice to farm; in order to compel fuch, as had crept in, at leaft to refide on their preferments: and, afterwards, that no alien fhould be capable to be prefented to any ecclefiaftical preferment, under the penalty of the ftatutes of provifors. By the ftatute 12 Ric. II. c. 15. all liegemen of the king, accepting of a living by any foreign provifion, are put out of the king's protection, and the benefice made void. To which the ftatute 13 Ric. II. ft. 2. c. 2. adds banifhment and forfeiture of lands and goods: and by c. 3. of the fame ftatute, any perfon bringing over any citation or excommunication from beyond fea, on account of the execution of the foregoing ftatutes of provifors, fhall be imprifoned, forfeit his goods and lands, and moreover fuffer pain of life and member.
IN the writ for the execution of all thefe ftatutes the words praemunire facias, being (as was faid) ufed to command a citation of the party, have denominated in common fpeech, not only the writ, but the offence itfelf of maintaining the papal power, by the name of praemunire. And accordingly the next ftatute I fhall mention, which is generally too by all fubfequent:
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m Seld. in Flet. 10. 4.
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fta-
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ftatutes, is ufually called the ftatute of praemunire. It is the ftatute 16 Ric. II. c. 5. which enacts, that whoever procures at Rome, or elfewhere, any tranflations, proceffes, excommunications, bulles, inftruments, or other things which tough the king, againft him, his crown, and realm, and all perfons aiding and affifting therein, fhall be put out of the king's protection, their lands and goods forfeited to the king's ufe, and they fhall be attached by their bodies to anfwer to the king and his council; or procefs of praemunire facias fhall be made out againft them, as in other cafes of provifors.
BY the ftatute 2 Hen. IV. c. 3. all perfons who accept any provifion from the pope, to be exempt from canonical obedience to their proper ordinary, are alfo fubjected t the penalties of praemunire. And this is the laft of our antient ftatutes touching this offence; the ufurped civil power of the bifhop of Rome being pretty well broken down by thefe ftatutes, as his ufurped religious power was in about a century afterwards: the fpirit of the nation being fo much raifed againft foreigners, that about this time, in the reign of Henry the fifth, the alien priories, or abbies for foreign monks, were fuppreffed, and their lands given to the crown. And no farther attempts were afterwards made in fupport of thefe foreign jurifdictions.
A LEARNED writer, before referred to, is therefore greatly miftaken, when he fays
n, that in Henry the fixth's time the archbifhop of Canterbury and other bifhops offered to the king a large fupply, if he would confent that all laws againft provifors, and efpecially the ftatute 16 Ric. II. might be repealed; but that this motion was rejected. This account is incorrect in all it's branches. For, firft, the application, which he probably means was made not by the bifhops only, but by the unanimous confent of a provincial fynod, affembled in 1439, 18 Hen. VI. that very fynod which at the fame time refufed to confirm and allow a papal bulle, which then was laid before them. Next, the
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n Dav. 96.
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purport
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purport of it was not to procure a repeal of the ftatutes againft provifors, or that of Richard II in particular; but to requeft that the penalties thereof, which by a forced conftruction were applied to all that fued in the fpiritual, and even in many temporal, courts of this realm, might be turned againft the proper objects only; thofe who appealed to Rome or to any foreign jurifdictions: the tenor of the petition being, “that thofe “penalties fhould be taken to extend only to thofe that commenced any fuits or procured any writs or public inftruments “at Rome, or elfewhere out of England; and that no one “fhould be profecuted upon that ftatute for any fuit in the fpiritual courts or lay jurifdictions of this kingdom.” Laftly, the motion was fo far from being rejected, that the king promifed to recommend it to the next parliament, and in the mean time that no one fhould be molefted upon this account. And the clergy were fo fatisfied with their fuccefs, that they granted to the king a whole tenth upon this occafion
o.
AND indeed fo far was the archbifhop, who prefided in this fynod, from countenancing the ufurped power of the pope in this realm, that he was ever a firm oppofer of it. And, particularly, in the reign of Henry the fifth, he prevented the king's brother from being then made a cardinal, and legate a latere from the pope; upon the mere principle of it's being within the mifchief of papal provifions, and derogatory from the liberties of the Englifh church and nation. For, as he expreffed himfelf to the king in his letter upon that fubject, “he was “bound to oppofe it by his ligeance, and alfo to quit himfelf “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 flavery of the fee of Rome; but of one, who was indeed of principles fo very oppofite to the papal ufurpations, that in the year preceding this fynod, 17 Hen. VI. he refufed to confecrate a bifhop of Ely, that was nominated by pope Eugenius IV. A conduct quite confonant to his former
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o Wilk. Concil. Mag. III. 533.
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behaviour, in 6 Hen. VI, when he refufed to obey the commands of pope Martin V, who had required him to exert him endeavours to repeal the ftatute of praemunire; (“execrabile illud ftatutum” as the holy father phrafes it) which refufal fo far exafperated the court of Rome againft him, that at length the pope iffued a bulle to fufpend him from his office and authority, which the archbifhop difregarded, and appealed to a general council. And fo fenfible were the nation of their primate's merit, that the lords fpiritual, and temporal, and alfo the univerfity of Oxford, wrote letters to the pope in his defence; and the houfe of commons addreffed the king, to fend an embaffador forthwith to his holinefs, on behalf of the archbifhop, who had incurred the difpleafure of the pope for oppofing the exceffive power of the court of Rome
p.
THIS then is the original meaning of the offence, which we call praemunire; viz. introducing a foreign power into this land, and creating imperium in imperio, by paying that obedience to papal procefs, which conftitutionally belonged to the king alone, long before the reformation in the reign of Henry the eighth: at which time the penalties of praemunire were indeed extended to more papal abufes than before; as the kingdom then entirely renounced the authority of the fee of Rome, though not all the corrupted doctrines of the Roman church. and therefore by the feveral ftatutes of 24 Hen. VIII. c. 12. and 25 Hen. VIII. c. 19 & 21. to appeal to Rome from any of the king's courts, which(though illegal before) had at times been connived at; to fue to Rome for any licence or difpenfation; or to obey any procefs from thence; are made liable to the pains of praemunire. And, in order to reftore to the king in effect the nomination of vacant bifhopricks, and yet keep up the eftablifhed forms, it is
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p See Wilk. Concil. Mag. Br. Vol. III. paffim. And Dr. Duck's life of archbifhop Chichele, who was the prelate here fpoken of, and the munificent founder of All Souls college in Oxford: in vindication of whofe memory the author hopes to be excufed this digreffion; if indeed it be a digreffion, to fhew how contrary to the fentiments of fo learned and pious a prelate, even in the days of popery, thofe ufurpations were, which the ftatutes of praemunire and provifors were made to reftrain.
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enacted
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enacted by treafon 25 Hen. VIII. c. 20. that if the dean and chapter refufe to elect the perfon named by the king, or any archbifhop or bifhop to confirm or confecrate him, they fhall fall within the penalties of the ftatutes of praemunire. Alfo by ftatute 5 Eliz. c. 1. to refufe the oath of fupremacy will incur the pains of praemunire; and to defend the pope's jurifdiction in this realm, is a praemunire for the firft offence, and high treafon for the fecond. So too, by ftatute 13 Eliz. c. 2. to import any agnus Dei, croffes, beads, or other fuperftitious things pretended to be hallowed by the bifhop of Rome, and tender the fame to be ufed; or to receive the fame with fuch intent, and not difcover the offender; or if a juftice of the peace, knowing thereof, fhall not within fourteen days declare it toa privy counfellor; they all incur a praemunire. But importing, or felling mafs books or other popifh books, is by ftatute 3 Jac. I. c. 5. §. 25. only a penalty of forty fhillings. Laftly, to contribute to the maintenance of a jefuit's college, or any popifh feminary whatever, beyond fea; or any perfon in the fame; or to contribute to the maintenance of any jefuit or popifh prieft in England, is by ftatute 27 Eliz. c. 2. made liable to the penalties of praemunire.
THUS far the penalties of praemunire feem to have kept within the proper bounds of their original inftitution, the depreffing the power of the pope: but, hey being pains of no inconfiderable confequence, it has been thought fit to apply the fame to other heinous offences; fome of which bear more, and fome lefs relation to this original offence, and fome no relation at all.
THUS, 1. By the ftatute 1 & 2 Ph. & Mar. c. 8. to moleft the poffeffions of abbey lands granted by parliament to Henry the eighth, and Edward the fixth, is a praemunire. 2. So likewife is the offence of acting as a broker or agent in any ufurious contract, where above ten per cent. intereft is taken, by ftatute 13 Eliz. c. 10. 3. To obtain any ftay of proceedings, other than by arreft of judgment or writ of error, in any fuit for a monopoly, is likewife a praemunire, by ftatute 21 Jac. I. c. 3.
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4. To
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4. To obtain an exclufive patent for the fole making or importation of gunpowder or arms, or to hinder others from importing them, is alfo a praemunire by two ftatutes; the one 16 Car. I. c. 21. the other 1 Jac. II. c. 8. 5. On the abolition, by ftatute 12 Car. II. c. 24. of purveyance
q, and the prerogative of preemption, or taking any victual, beafts, or goods for the king's ufe, at a ftated price, without confent of the proprietor, the exertion of any fuch power for the future was declared to incur the penalties of praemunire. 6. To affert, malicioufly and advifedly, by fpeaking or writing, that both or either houfe of pee have a legiflative authority without the king, is declared a praemunire by ftatute 13 Car. II. c. 1. 7. By the habeas corpus act alfo, 31 Car. II. c. 2. it is a praemunire, and incapable of the kings' pardon, befides other heavy penalties
r, to fend any fubject of this realm a prifoner into parts beyond the feas. 8. By the ftatute 1 W. & M. ft. 1. c. 8. perfons of eighteen years of age, refufing to take the new oaths of allegiance, as well as fupremacy, upon tender by the proper magiftrate, are fubject to the penalties of a praemunire; and by ftatute 7 & 8 W. III. c. 24. ferjeants, counfellors, proctors, attorneys, and all officers of courts, practifing without having taken the oaths of allegiance and fupremacy, and fubfcribing the declaration againft popery, are guilty of a praemunire, whether the oaths be tendered or no. 9. By the ftatute 6 Ann. c. 7. to affert malicioufly and directly, by preaching, teaching, or advifed fpeaking, that the then pretended prince of Wales, or any perfon other than according to the acts of fettlement and union, hath any right to the throne of thefe kingdoms; or that the king and parliament cannot make laws to limit the defcent of the crown; fuch preaching, teaching, or advifed fpeaking is a praemunire: as writing, printing, or publifhing the fame doctrines amounted, we may remember, to high treafon. 10. By ftatute 6 Ann. c. 23. if the affembly of peers of Scotland, convened to elect their fixteen reprefentatives in the British parliament, fhall prefume to treat
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q See Vol. I. pag. 287.
r See Vol. I. pag. 138. Vol. III. pag. 137.
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of any other matter fave only the election, they incur the penalties of a praemunire. 11. The laft offence that has been made a praemunire, was by ftatute 6 Geo. I. c. 18. the year after the infamous fouth fea project had beggared half the nation. This therefore makes all unwarrantable undertakings by unlawful fubfcriptions, then commonly known by the name of bubbles, fubject to the penalties of a praemunire.
HAVING thus enquired into the nature and feveral fpecies of praemunire, it's punifhment may be gathered from the foregoing ftatutes, which are thus fhortly fumed up by fir Edward Coke
s: “that, from the conviction, the defendant fhall “be out of the king's protection, and his lands and tenements, “goods and chattels forfeited to the king: and that his body “fhall remain in prifon at the king's pleafure; or (as other authorities have it) during life
t:” both which amount to the fame thing; as the king by his prerogative may any time remit the whole, or any part of the punifhment, except in the cafe of tranfgreffing the ftatute of habeas corpus. Thefe forfeitures, here inflicted, do not (by the way) bring this offence within our former definition of felony; being inflicted by particular ftatutes, and not by the common law. But fo odious, fir Edward Coke adds, was this offence of praemunire, that a man that was attainted of the fame might have been flain by any other man without danger of law: becaufe it was provided by law
u, that any man might do to him as to the king's enemy; and any man may lawfully kill an enemy. However, the pofition itfelf, 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 neceffary felf-defence. And, to obviate fuch favage and miftaken notions, the ftatute 5 Eliz. c. 1. provides, that it fhall not be lawful to kill any perfon attainted in a praemunire, any law, ftatute, opinion, or expofi-
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s 1 Inft. 129.
t 1 Bulftr. 199.
u Stat. 25 Edw. III. ft. 5. c. 22.
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tion
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tion of law to the contrary notwithftanding. But ftill fuch delinquent, though protected as a part of the public from public wrongs, can bring no action for any private injury, how atrocious foever; being fo 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 fuffer. And no man, knowing him to be guilty, can with fafety give him comfort, aid, or relief
w.
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w 1 Hawk. P. C. 55.
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