Front Page Titles (by Subject) CHAPTER VIII.: OF PRÆMUNIRE. - Commentaries on the Laws of England in Four Books, vol. 2
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CHAPTER VIII.: OF PRÆMUNIRE. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).
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**103]A third species of offence more immediately affecting the king and his government, 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 he stands charged: which contempt is particularly recited in the preamble to the writ.(b)1 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 harboured 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 east, to propagate the religion of Mahomet, both witness to the truth of that antient 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 authority, and hath been (as her prelates, on **104]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 papal 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, so lately triumphant over Christendom, but now universally abandoned by even the Roman Catholic powers; but the subject of our present *[*105chapter 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 rigour of our free constitution and the wisdom of successive parliaments.
The antient 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 era 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, he 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 further 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 *[*106clergy themselves paid the most implicit obedience to their own superiors or prelates; and they, in their turns, were as blindly devoted to the will of the sovereign pontiff, whose decisions they held to be infallible, and his authority coextensive with the Christian world. Hence his legates a latere were introduced into every kingdom of Europe; his bulles 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 apprized 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 redeem the souls of the deceased. New-fangled offences were created, and indulgences 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 feodal 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 gradually spread itself to England. The pope became a **107]feodal lord, and all ordinary patrons were to hold their right of patronage under this universal superior. Estates held by feodal 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 feodal 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 seisins 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 feodal 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 personæ 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 feodal 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 **108]became 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 adverse to the laws and constitution of England. The very nomination to bishoprics, that antient 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 parochical clergy, they endeavored 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 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 *[*109century after the conquest, and endowed not only with the tithes of parishes which were ravished 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 to what might befall that posterity to which they bore no endearing relation: yet it vanished into *[*110nothing 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 usurpations in England, let us now return to the statutes of præmunire, 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 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 bulle 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,(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 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 **111]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 Nuremberg, ad 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,(l) 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 resist 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 **112]should be capable to be 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 benefice made void. To which the statute 13 Ric. II. st. 2, c. 2 adds banishment and forfeiture of lands and goods: and, by c. 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 præmunire. It is the statute 16 Ric. II. c. 5, which enacts that whoever procures at Rome, or elsewhere, any translations, 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 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 *[*113against 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 no further attempts were afterwards made in support of these foreign jurisdictions.
A learned writer, before referred to, is therefore greatly mistaken when he says(n) that in Henry the Sixth’s time 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 16 Ric. II., might be repealed, but that this motion was rejected. 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 provisional synod assembled in 1439, 18 Hen. VI., that very synod which at the same time refused to confirm and allow a papal bulle which then was laid before them. Next, the purport of it was not to procure a repeal of the statutes against provisors, or that of Richard II. in particular; but to request that the penalties thereof, which by forced construction were applied 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 oceasion.(o)
*[*114And, 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 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 a 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 that 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 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, 17 Hen. VI., he refused to consecrate a bishop of Ely that was nominated by pope Eugenius IV. A conduct quite consonant to his former behaviour, in 6 Hen. VI., when he refused to obey the commands of pope Martin V., who had required him to exert his endeavours to repeal the statute of præmunire, (“execrabile illud 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 bulle 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 embassador 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.(p)
*[*115This, then, is the original meaning of the offence which we call præmunire, viz., introducing a foreign power into this land, and creating imperium in imperio by paying that obedience to papal process which constitutionally belouged to the king alone, long before the reformation in the reign of Henry the Eighth; at which time the penalties of præmunire 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 Roman church. And therefore, by the several statutes 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 sue to Rome for any license or dispensation, or to obey any process from thence, are made liable to the pains of præmunire. And, in order to restore to the king in effect the nomination of vacant bishoprics, and yet keep up the established forms, it is enacted, by statute 25 Hen. VIII. c. 20, that if the dean and chapter refuse to elect the person named by the king, or any archbishop or bishop to confirm or consecrate him, they shall fall within the penalties of the statutes of præmunire. Also, by statute 5 Eliz. c. 1, to refuse the oath of supremacy will incur the pains of præmunire; and to defend the pope’s jurisdiction in this realm is a præmunire for the first offence, and high treason for the second. So too, 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; or if a justice of the peace, knowing thereof, shall not within fourteen days declare it to a privy counsellor, they all incur præmunire.2 But importing or selling massbooks, or other popish books, is, by statute 3 Jac. I. c. 5, § 25, only liable to the penalty of forty shillings. Lastly, to contribute to the maintenance of a Jesuit’s college, or any popish seminary whatever, beyond sea, or any person in the same, or to contribute to the maintenance of any Jesuit or popish priest in England, is by statute 27 Eliz. c. 2 made liable to the penalties of præmunire.
**116]Thus far the penalties of præmunire seem to have kept within the proper bounds of their original institution, the depressing the power of the pope: but, they being pains of no inconsiderable consequence, it has been thought fit to apply the same to other heinous offences, some of which bear more and some less relation to this original offence, and some no relation at all.
Thus, 1. By the statute 1 & 2 Ph. and Mar. c. 8, to molest the possessors of abbey lands granted by parliament to Henry the Eighth and Edward the Sixth is a præmunire. 2. So likewise is the offence of acting as a broker or agent in any usurious contract, when above ten per cent. interest is taken, by statute 13 Eliz. c. 8.3 3. To obtain any stay of proceedings, other than by arrest of judgment or writ of error, in any suit for a monopoly, is likewise a præmunire, by statute 21 Jac. I. c. 3. 4. To obtain an exclusive patent for the sole making or importation of gunpowder or arms, or to hinder others from importing them, is also a præmunire, by two statutes; the one 16 Car. I. c. 21, the other 1 Jac. II. c. 8.4 5. On the abolition, by statute 12 Car. II. c. 24, of purveyance,(q) and the prerogative of pre-emption, or taking any victual, beasts, or goods, for the king’s use, at a stated price, without consent of the proprietor, the exertion of any such power for the future was declared to incur the penalties of præmunire. 6. To assert maliciously and advisedly, by speaking or writing, that both or either house of parliament have a legislative authority without the king, is declared a præmunire by statute 13 Car. II. c. 1. 7. By the habeas corpus act also, 31 Car. II. c. 2, it is a præmunire, and incapable of the king’s pardon, besides other heavy penalties,(r) to send any subject of this realm a prisoner into parts beyond the seas. 8. By the statute 1 W. and M. st. 1, c. 8, persons of eighteen years of age refusing to take the new oaths of allegiance, as well as supremacy, upon tender by the proper magistrate, are subject to the penalties of a præmunire;5 and by statute 7 & 8 *[*117W. III. c. 24, serjeants, counsellors, proctors, attorneys, and all officers of courts practising without having taken the oaths of allegiance and supremacy and subscribing the declaration against popery, are guilty of a præmunire, whether the oaths be tendered or no. 9. By the statute 6 Anne, c. 7, to assert maliciously and directly, by preaching, teaching, or advised speaking, that the then pretended prince of Wales, or any 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, such preaching, teaching, or advised speaking is a præmunire; as writing, printing, or publishing the same doctrines amounted, we may remember, to high treason. 10. By statute 6 Anne, c. 23, if the assembly of peers in Scotland, convened to elect their sixteen representatives in the British parliament, shall presume to treat of any other matter save only the election, they incur the penalties of a præmunire. 11. The statute 6 Geo. I. c. 18 (enacted in the year after the infamous South-Sea project had beggared half the nation) makes all unwarrantable undertakings by unlawful subscriptions, then commonly known by the names of bubbles, subject to the penalties of a præmunire.6 12. The statute 12 Geo III. c. 11 subjects to the penalties of the statute of præmunire all such as knowingly and wilfully solemnize, assist, or are present at any forbidden marriage of such of the descendants of the body of king George II. as are by that act prohibited to contract matrimony without the consent of the crown.(s)
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:(t) “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; *[*118or (as other authorities have it) during life:”(u) 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. These forfeitures here inflicted do not (by the way) bring this offence within our former definition of felony, being inflicted by particular statutes and not by the common law. But so odious, Sir Edward Coke adds, was this offence of præmunire that a man that was attainted of the same might have been slain by any other man without danger of law; because it was provided by law(w) that any man might do to him as to the king’s enemy; and any man may lawfully kill an enemy However, the position itself, 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 battle or for necessary self-defence. And to obviate such savage and mistaken notions,(x) the statute 5 Eliz. c. 1 provides 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.7 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.(y)8
[(a) ] A barbarous word for præmoneri.
[(b) ] Old Nat. Brev. 101, edit. 1534.
[1 ]Præmunio, in law-Latin, is used in all its tenses and participles for præmoneo or cito Ducange Gloss.—Christian.
[(c) ] Address to James II. 1687.
[(d) ]Extrav. l. 3, t. 2, c. 13.
[(e) ] See book iii. page 61.
[(f) ] See book ii. page 268.
[(g) ] Dav. 83, &c.
[(h) ] Bro. Abr. tit. Corone, 115; Treason, 14. 5 R. p. 1, for 12, 3 Ass. 19.
[(i) ] 2 Inst. 583.
[(k) ] Mod Un. Hist. xxix. 293.
[(l) ] [Editor: illegible character] at 25 Edw. III. st. 6. 27 Edw. III. st. 1, c. 1. 38 Edw. III. st. 1, c. 4, and st. 2, c. 1, 2, 3, 4.
[(m) ] Seld. in Flet. 10, 4.
[(n) ] Dav. 96.
[(o) ] Wilk. Concil. Mag. Brit. iii. 533.
[(p) ] See Wilk. Concil. Mag. Brit. vol. iii. passim, and Dr. Duck’s Life of Archbishop Chichele, who was the prelate here spokon of, and the munificent founder of All-Souls College in Oxford, in vindication of whose memory the author hopes to be excused this digression,—if indeed it be a digression to show how contrary to the sentiments of so learned and pious a prelate, even in the days of popery, those usurpations were which the statutes of præmuniri and provisors were made to restrain.
[2 ] Repealed by statute 8 & 9 Vict. c. 59.—Stewart.
[3 ] This act was made perpetual by the 39 Eliz. c. 18, ss. 30, 32; but, though not expressly repealed, yet it seems to have virtually expired since the 12 Anne, st. 2, c. 16, s. 1.—Chitty.
[4 ] By the second section of 1 Jac. II. c. 8, the importation must be with the king’s license, (except from Ireland, by the 46 Geo. III. c. 121.)—Chitty.
Repealed by 6 Geo. IV. c. 105.—Stewart.
[(q) ] See book i. page 287.
[(r) ] See book i. p. 138. Book iii. page 137.
[5 ] By the 31 Geo. I. c. 32, s. 18, it is enacted that no persons shall be summoned to take the oath of supremacy, or make the declaration against transubstantiation, or be prosecuted for not obeying the summons for that purpose.—Christian.
[6 ] By the 6 Geo. IV., the greater part of the provisions of this statute are repealed, and illegal companies are left to be dealt with according to the common law.—Chitty.
[(s) ] See book i. ch. 4.
[(t) ] 1 Inst. 129.
[(u) ] 1 Bulst. 199.
[(w) ] Stat. 25 Edw. III. st. 5, c. 22.
[(x) ] Bro. Abr. tit. Corone, 196.
[7 ] And although this statute has been repealed, by the act 9 & 10 Vict. c. 59, it can scarcely be suggested that a man convicted upon a præmunire is wholly out of the pale of the law.—Kerr.
[(y) ] 1 Hawk. P. C. 55.
[8 ] The terrible penalties of a præmunire are denounced by a great variety of statutes; yet prosecutions upon a præmunire are unheard of in our courts. There is only one instance of such a prosecution in the State Trials,—in which case the penalties of a præmunire were inflicted upon some persons for refusing to take the oath of allegiance in the reign of Charles the Second. Harg. St. Tr. vol. ii. 463.—Christian.