174 THE GREAT STATUTE OF PRAEMUNIRE April sustained to limit the power of the pope and to check appeals to him. Thus these were in general prohibited simply in cases in which the secular authorities were competent ; and even then it was the right of patronage which was mainly defended. . . . Sole competence in all cases was not at this time claimed by the state.' l Quite recently, moreover, Professor Pollard has denied that the statutes of provisors and praemunire 2 were specifically anti-papal in purpose, contending that their animus was ' as much against the clerical courts in England as against the curia at Rome ', that the statutes of praemunire ' set no limit to the pope's control over English ecclesiastical courts ', and that in the middle ages the Crown ' had not the least objection ' ' to appeals from English spiritual jurisdiction to the pope '. 3 And long ago Lingard argued that the measure of 1393 was not really a statute at all and thought it ' plain ' that it was ' never properly passed in parliament '. 4 In face of this remarkable conflict of testimony and argument, no apology is needed for a re-examina- tion of the purport and effect of the statute. One misapprehension, strangely fostered by many modern writers, may be disposed of at the outset. Neither the statute of 1393 nor any other measure passed in England during the middle ages sought to prevent all exercise of the pope's authority in the country. The wording of the statute, though in some respects obscure, is clear on this point. ' If any one obtains or sues ... in the court of Rome or elsewhere any such translations, processes, and sentences of excommunication, bulls, instruments or anything else whatsoever which touches the king our lord against him, his crown and regality, or his realm, as is aforesaid, and those who bring them into the realm or receive them, or make notification or other execution of them within the realm or without, they ', with all their aiders and abettors, ' shall be put out of the protection of our said lord the king, and their lands and tenements, goods and chattels shall be forfeited to the king our lord ', and they shall be arrested and brought before the king and his council to answer there, or process shall be made against them by praemunire facias in the manner ordained in other 1 Constitutional History of the Church of England (English translation), p. 229. 2 Following modern practice, I shall limit the term ' statutes of provisors ' to acts which explicitly sought to defeat the pope's claim to dispose of all ecclesiastical bene- fices. Acts which strove to maintain the jurisdiction of the king's court against the rival claims of other tribunals are commonly called ' statutes of praemunire ', because process by writ of praemunire facias was one of the means prescribed for their enforce- ment. It would be pedantic to quarrel with this long-established usage, but it should be remembered that both terms are applicable to the anti-papal statute of 1365, and that the other ' statutes of praemunire ' were sometimes called ' statutes of provisors ' in the fourteenth and fifteenth centuries. 3 The Evolution of Parliament, pp. 202, 205. 4 History of England, 5th ed., iii. 348 n.
Page:English Historical Review Volume 37.djvu/182
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