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 became actually void, though afterwards applied indiscriminately to any right of patronage exerted or usurped by the pope. The very nomination to bishopricks, that ancient 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 3 had at length the effrontery to demand, and king John had the meanness to consent, to the resignation of his crown to the pope, whereby England was to become for ever St. Peter's patrimony, and the dastardly monarch re-accepted 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.

houses.

Another engine set on foot, or at least greatly improved by He endowed the court of Rome, was a masterpiece of papal policy. Not religious content with the ample provision of tithes which the law of the land had given to the parochial clergy, they endeavoured to grasp at the lands and inheritances of the kingdom, and (had not the legislature withstood them) would probably have become 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 deaths would atone for a life of incontinence, disorder, and bloodshed. Hence innumerable abbeys and religious houses were built within a century 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

And adopted other stratagems for the usurpation of

civil power.

The struggles of Edw. I. to shake off the

papal yoke

dation of the

statutes of præmunire.

Dav. 83, &c.

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.

Other contrivances were 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.

The statutes of præmunire were framed to encounter this overgrown yet increasing evil. King Edward 1, a wise and magnaminous prince, set himself in earnest to shake off this were the foun- servile yoke. 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 bulls and processes; attacking Scotland in defiance of one; and seizing the temporalities of his clergy, who under pretence of another, refused to pay a tax imposed by parliament. He strengthened the statutes of mortmain, thereby closing the great gulph, in which all the lands of the kingdom were in danger of being swallowed. And in the thirty-fifth year of his reign was made the first statute against papal provisions, being, according to Sir Edward Coke, the foundation of all the subsequent statutes of præmunire, which ranked as an offence immediately against the king, because every encouragement of the papal power was considered a diminution of the authority of the crown.

Further acts of resistance to

the papal power were made in the reigns of Edw. 2 & 3.

In the weak reign of Edward the Second, the pope again endeavoured to encroach, but the parliament manfully withstood him; and it was one of the principal articles charged against that unhappy prince, that he had given allowance to the bulls of the see of Rome. But Edward the Third was of a temper extremely different, and to remedy these inconveniences more penal laws were devised against provisors, which enact severally that the court of Rome shall not present or collate to any bishoprick 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 5 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. 3, 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.

reign of Rich. 2.

In the 16 Rich.

2, the statute

passed.

And was enlarged under

In the reign of Richard the Second it was found neces- And in the sary to strengthen these laws, and therefore the statute 16 Rich. 2, c. 5, enacts, that whoever procures at Rome, or elsewhere, any translations, processes, excommunications, of pramunire bulls, instruments, or other things, which touch the king, against him, his crown, and realm, and all persons aiding and assisting therein shall be put out of the king's protection, their lands and goods forfeited to the king's use; and they shall be attached by their bodies to answer to the king and his council, or process of præmunire facias shall be made out against them as in other cases of provisors. And by the statute 2 Hen. 4, 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. This, 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 belonged to the king alone, long before the Reformation, in the reign of Henry 8, 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.

Hen. 4.

The original meaning of

præmunire.

The punishment for præmunire, which may be gathered Punishment of from various statutes, is thus shortly summed up by Sir Edward præmunire. :-"That from the conviction the defendant shall be out 1 Inst. 129.

Coke:

of the king's protection, and his lands and tenements, goods

and chattels forfeited to the king, and that his body shall re

main in prison at the king's pleasure, or (as other authorities 1 Bulst. 199. have it) during life (c).

(c) See note (a) to this chapter.

CHAPTER IX.

OF MISPRISIONS AND CONTEMPTS AFFECTING THE KING'S

GOVERNMENT.

Of misprisions MISPRISIONS, a term derived from the old French, mespris, a and contempts. neglect or contempt, are in the acceptation of our law, such

Misprision of

treason.

1 Hal. P. C. 372.

The punish

ment.

Ibid. 374.

Misprision of felony.

Concealing

treasure trove.

Positive misprisions.

offences as are under the degree of capital, but merely bordering thereon; and it is said that a misprision is contained in every treason and felony. Misprisions are generally divided into two sorts; negative, which consist in the concealment of something which ought to be revealed; and positive, which consist in the commission of something which ought not to be done.

Of the first or negative kind, is what is called misprision of treason: consisting in the bare knowledge and concealment of treason, without any degree of assent thereto: for any assent makes the party a principal traitor. This concealment becomes criminal, if the party apprized of the treason does not, as soon as conveniently may be, reveal it to some judge of assize or justice of the peace.

The punishment of misprision of treason is loss of the profits of lands during life, forfeiture of goods, and imprisonment for life, and whenever an offence is punished by such total forfeiture, it is felony at the common law.

Misprision of felony is the concealment of a felony which a man knows, but never assented to; for if he assented, this makes him either principal or accessary. The punishment of this, in a public officer, is by 3 Edw. 1, c. 9, imprisonment for a year and a day; in a common person imprisonment for a less discretionary time; and in both, fine and ransom at the king's pleasure.

The concealment of treasure trove is also another species of negative misprisions, punishable by fine and imprisonment. Positive misprisions are generally denominated contempts or high misdemeanors: of which

The first and principal is the mal-administration of such high officers as are in public trust and employment, punishable by parliamentary impeachment, with fine, imprisonment, banishment, or perpetual disability. Also embezzling the

public money, punishable by fine and imprisonment (a), which

the Julian law punished with death in a magistrate, and with Inst. 4, 18, 9. deportation or punishment in a private person.

Contempts against the king's prerogative. As by refusing Contempts against the to assist him for the good of the public, either in his councils, king's preroby advice, if called upon, or in his wars by personal service, for gative. defence of the realm against a rebellion or invasion. Under which class may be ranked the neglecting to join the posse

comitatus, or power of the county, being thereunto required by 1 Hawk. P.C. the sheriff or justices according to 2 Hen. 5, c. 8, which is a 59.

duty incumbent upon all above fifteen, and under the degree Lamb. Eir.315. of nobility, and able to travel. So also preferring the interests of a foreign potentate to those of our own, or doing or receiving any thing that may create an undue influence in favour of such intrinsic power; as by taking a pension from any foreign prince without the consent of the king. Or by disobeying 3 Inst. 144. the king's lawful commands: whether by writs issuing out of his courts of justice, or by a summons to attend his privy council, or by letters from the king to a subject, commanding him to return from beyond the seas, or by his writ of ne exeat regnum. Disobedience to any of these commands is a high misprision and contempt; and so is the disobedience to any 1 Hawk. P. C act of parliament where no penalty is assigned.

60.

against the

king's person.

Contempts and misprisions against the king's person and Contempts government may be by speaking or writing against them, cursing or wishing him ill, giving out scandalous stories concerning him, or doing any thing that may lessen him in the esteem of his subjects, or weaken his government, or raise jealousies between him and his people.

Contempts against the king's title, not amounting to treason or præmunire, are the denial of his right to the crown in common and unadvised discourse, punishable by fine and imprisonment; so if any person shall hold or affirm that the common law, not altered by parliament, ought not to direct the crown of England, this is a misdemeanor by 13 Eliz. c. 1, and punishable with forfeiture of goods and chattels.

Contempts

against the king's title.

Contempts against the king's palaces or courts of justice Other conare high misprisions. And striking in the king's superior tempts.

(a) By 2 Wm. 4, c. 4, persons in the public service embezzling any money or valuable securities with which they are intrusted shall be deemed guilty of felony, and be liable to be transported for any term not exceeding fourteen years. By this act part of 50 Geo. 3, c. 59, was repealed.