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Mortmain, Praemunire,
and Provisors
Three practices or
principals of the medieval church were seen to interfere in secular rule –
Mortmain, Praemunire and Provisors. These three principals
were eventually enshrined in English law and became the bain of the
clerics` ambitions. It effectively stemmed the flow to Rome of ownership
of land; civil complaints and authority for the secular law ( also a
source of revenue from Indulgences); benefices and money from
rents and tithes, The early legislation tended to lump all three
aspects together but by the reign of Edward III (1327-77) they were
becoming distinct and separate causes ( or abuses) for the law to address.
For simplicity in
understanding their use to counteract the Church of Rome: for Mortmain
think transfer of land ownership; for Praemunire think
the kings supremacy ; for Provisors think church benefices and
patronage.
Mortmain.
Edward I was the
first to introduce a Statute of Mortmain in 1278-9 (7 Edward I )
to constrain the disposal of land by both his lieges and the Church.
Mortmain is a condition imposed by past events, or dead person
often in a will, hence `dead hand`. In Edward`s time the statute forbade
the sale or disposal of land , particularly by and to the Church, save by a
licence from the king. Notably it included the lands of universities and
colleges which were run by the clerics. What was happening was the
disposal of ecclesiastical benefices before they became vacant, to
priests of the Pope’s own choosing and, moreover, not necessarily resident in
England. Another effect was on the King`s revenues as it avoided death
duties.
The technical difficulty
was that the endowment of land to the Church meant it
became their property in perpetuity. Normally land was held in tenancy of
some form (originally from the king as the chief landlord), and could
therefore revert to him when the tenant died, or was declared forfeit for
treason etc. But the Church ( or other corporate body ) never dies,
only its officers change. Thus disposal became permanent. The practice was
having an obvious impact on ownership with more and more land
accruing to the church and the monasteries, and the revenues from it filling foreign pockets.
This effected both local lords and nobles as well as the king. Corporate
ownership was a new phenomenon that emerged from the Middle Ages and It
was the mortmain aspect that affected the early trades and guilds
associations who saw advantage in having a fraternal brotherhood as a
corporate body. They were strictly controlled and licenced ( in Scotland
under Seal of Cause) because incorporation technically replaced an
individual`s personal liability for its debts.
Praemunire
is defined as the offence of disobeying the sovereign’s mandate ,
incurring forfeiture;and, the writ grounded on that offence.
The word is derived from the latin to `forewarn` Praemunire was used
to
mean the offence of introducing papal authority into England and
used to denote the offences, usually ecclesiastical, prosecuted by means
of such a writ, and also the penalties they incurred. In this the Pope was
encouraging people generally, not just the priests, to resort to himself
and his curia for determination of civil grievances – rather than to the
King and his courts. It underlay the very touchy question of supremacy –
King or Pope ?
The first statute to be
called the Statute of Praemunire was in
1353, The king commanded that
” First, whereas our
lord the king has been shown by the clamorous and grievous complaints of
his lords and commons aforesaid how numerous persons have been and are
being taken out of the kingdom to respond in cases of which the cognizance
pertains to the court of our lord the king; and also how the judgments
rendered in the same court are being impeached in the court of another, to
the prejudice and disherison of our lord the king and of his crown and of
all the people of his said kingdom, and to the undoing and annulment of
the common law of the same kingdom at all times customary: therefore,
after good deliberation held with the lords and others of the said
council, it is granted and agreed by our said lord the king and by the
lords and commons aforesaid that all persons of the king’s allegiance, of
whatever condition they may be, who take any one out of the kingdom in a
plea of which the cognizance pertains to the king’s court or in matters
regarding which judgments have been rendered in the king’s court, or who
bring suit in the court of another to undo or impede the judgments
rendered in the king’s court, shall be given a day … [on which] to
appear before the king and his council, or in his chancery, or before the
king’s justices in their courts, either the one bench or the other, or
before other justices of the king who may be deputed for the purpose,
there to answer to the king in proper person regarding the contempt
involved in such action. And if they do not come in proper person on the
said day to stand trial, let them, their procurators, attorneys,
executors, notaries, and supporters, from this day forth be put outside
the king’s protection, and let their lands, goods, and chattels be forfeit
to the king, and let their bodies, wherever they may be found, be taken
and imprisoned and redeemed at the king’s pleasure..”.
An instance where the writ
of praemunire was used against papal intrusion was that of Richard Hun, a
London craftsman who objected to exorbitant fees demanded by a priest when
one of his children died. He won his case but lost his life subsequently,
when murdered while a prisoner in the Lollard`s Tower, at St Paul`s.
Provisors.
A Provisor literally is one
who provides; a purveyor. In the Church terminology he was the
steward, or treasurer of a religious house. Also, one who
is inducted into a benefice by the Pope before the death of the incumbent.
In English law it became someone who procures or receives a papal
provision and overlapped the often thorny matter of patronage and
presentation to benefices.
Edward I (1272-1307) was
the first king to try and curtail the intervention by Rome through his
Statute of Provisors in 1306 and it became the basis on which later
legislation was founded by Edward III in 1351-33.The 1306 statute enacted
“that no tax imposed by any religious persons should be sent out of the
country whether under the name of a rent,
tallage, tribute or any kind of imposition.”
The 1351 Statute of
Provisors of Benefices (25th of Edward III, St. 4 (1350-1) prohibited the
granting of papal benefices and legal appeals to the Papal Curia and
ordained the free election of all dignities and benefices. One of the
considerations at this time was the need to fund the Hundred Years War
against France and diversion of the very substantial flows of money
to Rome would have been most helpful. To complicate issues during the
Great Schism , when there were up to three Popes, England supported Rome
against Avignon.
In
Richard II‘ s reign (1377-99) an Act
referred to as the Statute of Praemunire, stated “that the right of
recovering the presentments to churches,
prebends, and other benefices . . .
belongeth only to the king’s court of the old right of his crown, used and
approved in the time of all his progenitors kings of England,” It
then condemns the practice of papal translation, and enacts
“that if any purchase or pursue, or cause to be purchased or pursued in
the ‘court of Rome, or elsewhere, any such translations, processes, and
sentences of excommunications, bulls, instruments or any other things
whatsoever . . . he and his notaries, abettors and counsellors” shall be
put out of the king’s protection, and their lands
escheat.”
The Statute, therefore,
enacts that elections of bishops shall be free, that owners of advowsons
shall have free collation and presentation, and that attempted
reservation, collation, or provision by the Court of Rome shall cause the
right of collation to revert to the king.
If you want to dig deeper:
related Statutes are 27 Edward III, St. 1, c. 1; 38 Edward III, St. 2; 3
Richard II; 7 Richard II, c. XII; 12 Richard II, c. XV; 13 Richard II, St.
2; 16 Richard II, c. 5, and finally in the parliament of 1400-1, the
Statute 2 Henry IV, c. 3, c. 4. Recent
legislation is Statutory Instrument 1987 No. 773 ,The Patronage
(Benefices) Rules 1987.
Modern Catholic definition of Benefice.
Peter`s Pence.
Restraint on
Rome Letter of 1231 AD.
A view of
ecclesiastical benifices in 1374.
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