2. Derogating from the king's common law courts. 3. Appealing to Rome from any of the king's courts. 4. Exercising the jurisdiction of a suffragan without the appointment of the bishop of the diocese. 5. Refusing to elect or consecrate the person nominated by the king to a bishopric. 6. Maintaining the pope's power. 7. Bringing in Agnus Dei. 8. Contributing to the maintenance of a popish seminary. 9. Refusing the oaths. 10. Solemnizing matrimony with certain branches of the royal family. Sect. 1. But inasmuch as these offences depend chiefly upon statutes made for the preservation of the sovereignty of THE CROWN from the incroachments of the see of Rome, I shall, in order to shew the reasonableness of these laws, take a short view of those usurpations which made them necessary. Sect. 2. It is the general opinion that CHRISTIANITY was first planted in this island by some of the Eastern Churches, which is very probable, from THE ANTIENT BRITONS observing Easter always on the fourteenth day of the month, according to the custom of the east. P. 12 to 25. Sect. 3. But THE SAXONS being converted about the year Parsons, c. 6. 600, by persons sent from Rome, and wholly devoted to the interest thereof, it cannot be expected that such an opportunity of enlarging the jurisdiction of that See should wholly be neglected. 57 to 60. Barrow, 258 to 262. 1 R. Abr. 882. Co. Litt. 134. 344. Seld. Ja. Ang. 42. 65. Sect. 4. And yet Parsons, in his attempt to answer Sir Edward Coke's fifth report concerning the king's ecclesiastical authority, is scarce able to produce any instances of the papal power in this kingdom before THE NORMAN CONQUEST. Indeed he tells us, that four or five persons were made bishops by the pope at the first conversion, but offers not any example thereof between the year 669 and THE CONQUEST; and it is certain, that all bishoprics were then conferred by the king's delivery of a ring and a pastoral staff. 258. Sect. 5. Neither is he able to produce any instance that looks Pars. c. 6. p. 29. like an appeal to Rome before THE CONQUEST, except in the case 32.50 to 56. of two bishops; and he is forced to own, that even one of the Barrow, 242 to bishops was deposed by two kings, and could get no relief against Seld. Ja. Ang. either of them, notwithstanding the pope's utmost application in 59. 67, 68, his favour. 1 H. 7. 25. Sect. 6. Nor can he shew more than four or five instances of Pars. c. 6. p. 37 exemptions from ordinary jurisdiction, granted or confirmed by to 48. popes to religious houses in those days, which plainly shews that 21 Ed. 3. 60. this concurrence was not thought necessary; and it appears that Co. Litt. 144. our ancient kings, of their own authority, exempted some abbeys F. N. B. 42. from episcopal jurisdiction; and it hath always been a received 6 H. 7. 14. rule, even in the times of popery, that THE CHANCELLOR shall 2 R. Abr. 230, visit a church of the king's foundation, notwithstanding it be not 231. specially exempted. Sect. 7. But THE POPE having favoured and supported William Davis, 90. 93. the First in his invasion of the kingdom, took that opportunity of 2 Roll. 103. Palm. 25, 26. 67. Seld. Ja. Angl. enlarging his incroachments, and in this king's reign began to send his legates hither; and prevailed at first with Henry the First, and afterwards with King John, to give up the donation of bishoprics; and in the time of King Stephen, gained the prerogative of appeals, and in the time of Henry the Second exempted all clerks from the secular power. Seld. Epinomis, c. 8. Davis, 91. 2 Inst. 584. Davis, 95. 2 Inst. 580. Whoever shall purchase, purpapal bulls, shall be guilty of pre sue, or use any munire. Reg. 64. 3 Inst. 127. 27 Ed. 3. s. 1. c. 1. 38 Ed. S. s. 1. c. 4. Sect. 8. Indeed this king did at first strenuously withstand these innovations, and abolished most of them by THE CONSTITUTIONS OF CLARENDON: but upon the death of Becket, who, for having violently opposed the king, was slain by some of his servants, THE POPE got such an advantage over the king, that he was never after able effectually to execute those laws. Sect. 9. And not long after this, by a general excommunication of the king and people, for several years, because they would not suffer an archbishop to be imposed upon them, King John was reduced to such straits, that he was obliged to surrender his kingdoms to THE POPE, and to receive them again, to hold of him for the rent of a thousand marks. Sect. 10. And in the following reign of Henry the Third, partly from the profits of our best church benefices, which were generally given to Italians, and others residing at the court of Rome, and partly from the taxes imposed by THE POPE, there went yearly out of the kingdom seventy thousand pounds sterling. Sect. 11. The nation, being under this necessity, was obliged to provide for the prerogative of the prince and the liberties of the people by many strict laws. And in the reign of Edward the First, religious houses were prohibited, under high penalties, to send any thing to their superiors beyond seas; and it was declared by parliament, that the pope's taking upon him to dispose of English benefices to aliens, was an incroachment not to be endured. And soon after these grievances produced those more severe laws against the above-mentioned offences of this nature, the particulars whereof are before set forth. Sect. 12. THE FIRST OFFENCE, viz. That of making use of papal bulls, is made a pramunire by many ancient as well as later statutes; for it is enacted by 25 Edw. 3. st. 6. called the statute of provisors," that whoever shall, by a papal provision, disturb any patron to present to a benefice, &c. shall be fined and imprisoned till he make full renunciation, &c.": by 25 Edw. 3. st. 5. c. 22. "that if any one purchase a provision of an abbey or priory, he shall be out of the king's protection:" by 38 Edw. 3. and 12 Rich. 2. c. 15. and 13 Rich. 2. st. 2. c. 2. " that whoever "shall accept a benefice contrary to 25 Edw. 3. shall be banish"ed:" by 13 Rich. 2. st. 2. c. 3. " that whoever shall bring a sentence of excommunication against any person for executing "the said statute of 25 Edw. 3. shall suffer pain of life and mem7 Rich. 2. c. 12. «ber:" by 16 Rich. 2. c. 5. " that whoever shall purchase or pursue, or cause to be purchased or pursued, in the court of "Rome or elsewhere, any translations, processes, sentences of "excommunication, bulls, instruments, or other things, contrary "to the tenor of that statute, which touch the king, against him,' Stat. 2. c. 1, 2, 3 Rich. 2. c. 3. 12 Rich. 2. c. 15. "his crown, his regality, or his realm, or bring them within this "realm, or receive them, &c. shall be out of the king's protection, "and their lands and tenements, goods and chattels, forfeited to "the king; and they shall be attached by their bodies, &c.": by 2 Hen. 4. c. 4. " that whoever shall purchase from Rome a pro"vision of exemption from ordinary obedience:" and by 2 Hen. 4. c. 4. " that whoever shall put in execution bulls purchased by "those of the order of Cisteaux to be discharged of tithes, shall "incur the like penalty." Also offenders of this nature are farther restrained by the 6 Hen. 4. c. 1.; the 7 Hen. 4. c. 8.; the 9 Hen. 4. c. 8.; and the 3 Hen. 5. c. 4.; by which the statutes abovementioned are enforced and explained. And by 23 Hen. 8. c. 21. s. 22. "whoever shall sue for or execute any licence, dis"pensation, or faculty, from the see of Rome;" and by 28 Hen. 8. c. 46. (by which all bulls, briefs, &c. heretofore obtained from Rome, are made void)" whoever shall use, allege, or plead the same in any court, unless they were confirmed by that statute, or afterwards by the king, shall incur the like penalty." Yet it hath been holden, that the alleging of an ancient bull in order to induce another principal matter whereon to ground a title, without claiming any thing from the bull itself, is not within this 2 Lev. 251. statute. Sect. 13. By 13 Eliz. c. 2. those who purchase any bull, &c. 1 Hale, 643. from Rome, are guilty of high treason. But those ancient sta- Vide sup. c. 3. Davis, 84. tutes still continue in force; and it is in the election of THE CROWN to proceed either upon them, or 13 Eliz. c. 2. Also by the said statute of 13 Eliz. " the aiders, comforters, and main"tainers of such offenders after the offence, to the intent to uphold "the said usurped power, incur a præmunire.” court, to defeat a præmunire. Sect. 14. THE SECOND OFFENCE of this nature, viz. That of If a subject sue derogating from the king's common-law courts, is said to have in any foreign been a high offence at common law, and is made a præmunire by any proceeding many ancient statutes; for by 27 Edw. 3. c. 1. and 38 Edw. 3. in the commonof provisors," If any subject draw any out of the realm in plea, law courts, it is "whereof the cognizance pertains to the king's courts, or of R. Ab. 176. "things whereof judgments be given in the king's court, or sue Rast. 466. "in any other court, to defeat or impeach the judgments given in B. 2. c. 48. s. 9. "the king's court, he shall be warned to appear, &c. in proper person, at a day containing the space of two months; at which "if he appear not, he and his proctors, &c. shall be put out of "the king's protection, his lands and chattels forfeited, his body "imprisoned and ransomed at the king's will, &c." Also in 21 Jac. 1. c. 3. s. 4. to procure any action to be delayed after notice, other than by regular process, is a præmunire. Sect. 15. And by 16 Rich. 2. c. 5. "Both those who shall pursue or cause to be pursued in the court of Rome or else"where any processes or instruments, or other things whatsoever "which touch the king, against him, his crown, and regality, or "his realm, and also those who shall bring, receive, notify, or "execute them, and their abettors, &c. shall be put out of the "king's protection, &c." Sect. 16. 3 Inst. 125. B. Præmu. 3. 2 Bulst. 229. 3 Inst. 125. C. Jac. 336. 3 Inst. 123. 4 H. 4. c. 23. D. 201. 301. 1 Lev. 241. Sect. 16. In the construction of these statutes it was holden, that certain commissioners of sewers for summoning one before them who had got a judgment at law, and imprisoning him till he would release it, were guilty of a pramunire. Sect. 17. Also there have been formerly many strong opinions, 2 Cha. Cas. 97. that suits in equity to relieve against a judgment at law are within these statutes; especially if the end thereof be to controvert the very point determined at law, or to seek relief after judgment in 1 D. Abr. 764. a case wherein the law may relieve, as against excessiveness of damages, &c. But it seems to be generally agreed at this day, that no such suit is within the intention of the said statute. Hard. 125. 1 Sid. 463. 1 Mod. 59. 3 Keb. 221. 2 Buls. 299. 1 Roll. 120. (a) 3 Inst. 120, B. Præmun. 5. 121, 122. Sect. 18. It hath been said, that suits in the admiralty or ecclesiastical courts within the realm are within 16 Rich. 2. c. 5. by force of those words, "or elsewhere," if they concern matters the cognizance whereof belongs to the common law; as where a bishop deprives an incumbent of a donative, or excommunicates a man for hunting in his parks, &c. or where (a) commissioners 2 R. Abr. 177. of sewers imprison a man for not releasing a judgment at law. Moor, 838. C. Jac. 134. 12. 16. 31. 15 H. 7.9. 12 Co. 37. To appeal to the court of munire. Sect. 19. But it seemeth, that a suit in those courts for a matter which appears not by the libel itself, but only by the defendant's plea, or other matter subsequent, to be of temporal cognizance, as where a plaintiff libels for tithes, and the defendant pleads that they were severed from the nine parts, by which they became a lay-fee, is not within the statute, because it appears not that either the plaintiff or the judge knew that they were severed. Sect. 20. THE THIRD OFFENCE of this nature, viz. That of Rome is a pre- appealing to Rome from any of the king's courts, is made a præmunire by 24 Hen. 8. c. 12. and c. 20, 21. and 25 Hen. 8. c. 19. by which it was enacted, "that all such appeals as formerly were "made to Rome, shall from henceforth be made to the high court " of chancery." To exercise the office of a suffra gan is a pramu nire. To refuse consecration to a bishop after election, is a pramunire. To maintain the power of THE POPE. B Eliz. c. 1. Sect. 21. THE FOURTH OFFENCE of this nature, viz. That of exercising the jurisdiction of a suffragan without the appointment of the bishop of the diocese, is made a præmunire by 26 Hen. 8. c. 14. which sets forth at large for what towns such suffragans may be nominated by the king, and also how they may be nominated, consecrated, and commissioned. Sect. 22. THE FIFTH OFFENCE of this nature, viz. That of refusing to elect or consecrate the person nominated by the king to a bishopric, is made a præmunire by 25 Hen. 8. c. 20. s. 7. by which it is enacted," that if any dean and chapter refuse to elect "the person named in the king's letter for a bishopric, and to signify such election to the king within twenty days after the "licence shall come to their hands, or if any archbishop or bishop after such election (or nomination by the king in default thereof signified unto them by the king), shall refuse within twenty days "to confirm and consecrate the person so signified to them, they "incur a præmunire.' " Sect. 23. THE SIXTH OFFENCE of this nature, viz. That of maintaining the pope's power, is made a præmunire upon the first conviction, and high treason upon the second. Sect. 24. Sect. 24. THE SEVENTH OFFENCE of this nature, viz. That of To import any bringing in Agnus Dei, is made a præmunire by 13 Eliz. c. 2. Agnus Dei or s. 7, 6. by which it is enacted, "that if any one shall bring into tious ornaments, other supersti"the realm, &c. any Agnus Dei, crosses, pictures, beads, or such is præmunire. “like superstitious things, pretended to be hallowed by the bishop Cawley, 52, 53. "of Rome, &c. and shall deliver or offer the same to any subject "to be worn or used in any wise; or if any one shall receive the "same to such intent, and not clear himself by discovering the "offender, &c. he shall incur a præmunire.” Sect. 25. And so shall a justice of peace in the same county, Cawley, 54. who having any offence in that act declared unto him, shall not declare it to a privy counsellor within sixteen days. Sect. 26. THE Eighth offENCE of this nature, viz. That of Keeping a pocontributing to the maintenance of a Popish seminary, is made a pish school. pramunire by 27 Eliz. c. 2. s. 6. 66 per N. B. The 1 Sect. 27. THE NINTH OFFENCE of this nature, viz. That of Refusing to refusing the oaths, is made a præmunire by several statutes; for take the oaths by 1 Eliz. c. 1. s. 19. it is enacted, "that all ecclesiastical is a pramunire. sons, and all ecclesiastical and temporal officers, and all persons Eliz. c. 1. as “having the king's fees or wages; and all persons taking orders, far as concerns or any degree in any university within the realm, shall take the the oath, "oath of supremacy, under pain of losing their benefices and pealed by 1 "offices." By 5 Eliz. c. 1. s. 5. "All the persons above-mentioned who are required by the said statute of 1 Eliz. c. 1. to take the said “oath, and all school-masters, public and private, barristers, "benchers, readers, ancients in any house of court, &c. attornies, "sheriffs, and officers belonging to the common or any other "law, or to the crown, or to any court whatsoever, shall take the "said oath in open court, before they shall be admitted to any "such vocation or office, &c. or before commissioners appointed "under the great seal, &c." By 5 Eliz. c. 1. s. 6. "Any bishop may tender the said oath "to any spiritual person within his diocese, as well in places exempt as others;" and by s. 7. " that commissioners may be 66 appointed by the lord chancellor to tender the same to such persons as by their commission they shall be authorised to "tender it unto." 66 By 5 Eliz. c. 1. s. 8. "If any person, compellable by either "of the said acts, or appointed by such commissioners to take "the said oath, shall refuse to take it on a tender thereof, he "shall incur a præmunire." And by 5 Eliz. c. 3. s. 2. "Such refusal shall be certified "within forty days before the king in his court of king's bench, by those who have authority to tender the said oath, under the "penalty of one hundred pounds; and that the sheriff of the county wherein the said court shall sit, may impanel a jury, "who shall enquire of such refusal, in such mauner as if it had "happened in the same county." In the construction of these statutes it hath been resolved, re W. & M. C. 8. 5.2. Sect. |