Page:English Historical Review Volume 37.djvu/201

 the statute, he should be arrested and imprisoned, undergo forfeiture of lands and goods, and incur the pain of life and member. If, then, a secular court had given judgement in an action brought under the statute of provisors, any one bringing into the country a bull excommunicating a churchman for carry- ing out the sentence would presumably have been liable to the penalties recited. In this instance the statute of 1393 would have been superfluous. But the clause just cited could not be applied unless the statute of 1390 had been involved, and most of the sentences which the clergy were called upon to execute would have nothing to do with the statute. For one thing, neither this act, nor that of 1351, which it confirmed, referred to any benefices but those in clerical patronage. 1 The impetration at the court of Rome of any benefice whatever was indeed an offence under the statute of 1365, but that measure was easy to evade and made but perfunctory provision against the use of papal authority to defeat it. 2 Lay patrons, of course, did not need statutes of provisors, for they had at their service such writs as quare impedit, quare non permittit, quare non admisit, not to mention the newfangled one of praemunire facias, which could be obtained on suggestion filed before the king's council. 3 These resources they were expected to use in suits against papal provisors, as well as in the much more numerous suits which did not concern the pope at all. Now for many years the spiritual courts in England had tacitly waived their claim to determine suits regarding patronage, and the papacy had seemingly acquiesced. The secular courts decided who was the rightful patron of any benefice in dispute, and the ecclesiastic with authority to institute admitted his presentee as a matter of course, unless it could be proved that he was personally unfit. But suppose the pope determined to exercise that jurisdiction over patronage which the church had never formally surrendered, and threatened with excommunication any prelate who acted in pursuance of the sentence of a lay court in a suit concerning patronage. A writ of quare non admisit would enforce the claims of the common law ; but the wretched churchman might prefer ruin or even imminent death to the risk of eventual damnation, and it might prove impossible to secure the canonical institution of the presentee. If the church might not say who was patron, she would not allow any one to be parson. One gathers from the preamble to the statute of 1393 that 1 It is true that the statute of 1390 enacts that the statute of 1351 shall hold good of all ecclesiastical benefices whatsoever, and that this reads as though it were to be extended to benefices in lay patronage (Statutes, ii. 73). But an examination of the text of the earlier statute and of other passages in the later one shows that this cannot have been intended. * Ibid. i. 386. s Palgrave, The Original Authority of the King's Council, p. 40. VOL. xxxvn. NO. CXLVI. o