deed of itself most free) into the thraldom and subjection of that foreign, usurped, and unlawful jurisdiction, pre-eminence, and authority claimed by the said see of Rome, have lately procured and obtained to themselves from the said Bishop of Rome, and his said see, divers Bulls and writings," enacted, by the third section, "That if any person shall obtain or get from the said Bishop of Rome, or any of his successors, or see of Rome, any manner of Bull, writing, or instrument, written or printed, containing any thing, matter, or cause whatsoever, or shall publish, or by any ways or means put in ure (use) any such Bull, writing, or instrument, that then all and every such act and acts, offence and offences shall be deemed and adjudged by the authority of this Act to be high treason, and the offender or offenders therein, their procurers, abettors, and counsellers to the fact and committing of the said offence shall be deemed and adjudged high traitors to the Queen and the realm, and being lawfully indicted and attainted according to the course of the laws of this realm, shall suffer pains of death, and also lose and forfeit all their lands, tenements, hereditaments, goods, and chattels, as in cases of high treason by the laws of this realm ought to be lost and forfeited."

The statute then proceeds, in the fourth and fifth sections, to enact "That all aiders, comforters, and maintainers of the said offenders, shall incur the pains and penalties of Præmunire, and that the concealers of a Papal Bull, writing, or instrument shall incur the penalty of misprision of high treason." further attaches the penalties of Præmunire to a variety of secondary offences specified in the seventh section. Now the 9 & 10 Vict. cap. 59. repeals the 13 Eliz. cap. 2. "so far only as the same imposes the

It

penalties or punishments therein mentioned, but it is hereby declared that nothing in this enactment contained shall authorise or render it lawful for any person or persons to import, bring in, or put in execution within this realm, any such Bulls, writings, or instruments, and that, in all respects, save as to the said penalties or punishments, the law shall continue the same as if this enactment had not been made."

The penalties and punishments of 13 Eliz. are thus removed, but the law is declared to continue the same. In regard to the minor offences specified in the 4th, 5th, and 7th sections, there being no express words in the statute defining their character by terms well known to the law, e. g. misdemeanour, felony, or otherwise, they cease to be legal offences with the abolition of the penalties which alone implied their prohibition. If, however, the law had said that such acts should be a high misdemeanour, and should be punished with transportation beyond the seas for the space of fourteen years, or otherwise, the abolition of the specific penalty would still have left untouched the legal character of the acts, which would have remained a misdemeanour, and been punishable as such, according to the Common Law, with fine and imprisonment. So likewise with the major offence in the 3rd section, the statute defined the legal character of that offence in terms well known to the law, independently of the penalty which it attached to it, when it pronounced the act of importing and putting into execution within this realm any manner of writing or instrument whatever from the Bishop of Rome to be High Treason. As, therefore, the law continues the same in all respects, save as to the penalties, the legal character of the act remains unaltered, although the penalty under the statute may be

remitted, and the offence be only punishable under the general Statute of Treasons* (25 Edw. III. s. 5. c. 2.). But as this is a question of constructive repeal, it may be open to argument to what extent it operates, until the judgment of a court of competent jurisdiction shall conclude the question. Thus much, however, may be asserted, that if the putting into execution a Papal Bull is still an offence under 13 Eliz., it can only be the statutory offence of High Treason, as there is no express prohibition in the statute, which would leave it a misdemeanour at Common Law after the penalties had been repealed. Yet it is admitted by all parties that the statute still prohibits the introduction of Bulls and other Papal instruments: the prohibition, therefore, must be implied in the description of the offence, and the prohibition remains, because there is nothing in the 9 & 10 Vict. c. 59., which has changed the legal character of the act; in other words, the offence is crimen læsæ Majestatis coronæ, the highest civil crime which a subject of the Crown can possibly commit. Such an offence is a breach of the duty of allegiance which binds every subject of the Queen to be true and faithful to her. †

*The statute 7 Anne c. 21. which makes it high treason to slay any Lord of Session, or to counterfeit the great seal of Scotland, simply declares that such offence "shall be construed, adjudged, and taken to be high treason." It cannot be reasonably contended, that this statute is not fully operative by reason of no express penalty being recited after the words, which mark the offence with a specific legal character.

† It is a great satisfaction to the author to find, that his opinion as to the state of the law and its positive infringement is countenanced by the eminent authority of Sir Edward Sugden, in his address to the county of Surrey, on December 17. 1850. The ExLord Chancellor of Ireland does not appear to have expressly stated, on that occasion, his opinion of the precise legal character

Dr. Wiseman complains that old and long-dormant statutes should be wakened up, and obsolete legislation should be turned against himself and his colleagues. But the Pope himself has awakened up a long-dormant hierarchy, and has turned against England an obsolete code of law. Surely if the spectre of Popery once more stalks at large on the banks of the Thames, and casts the shadow of its gaunt form before it, if the Pope has disinterred what were believed to be dry bones, and they have come together at his bidding, and he has sought to breathe life into them, shall Dr. Wiseman with reason complain that the guardians of the Temple of the Laws of England rouse themselves up to confront their ancient foe? But the statute law has not been mute since the reign of Elizabeth; it was heard to speak forth in clear and distinct tones in 1846, when it expressly declared the laws of Queen Victoria to continue in this respect the same as those of Queen Elizabeth.

It may be a more debateable point, whether the Statute of Pramunire would apply to a Brief of the character of that in question on the present occasion. If indeed it should be rightly held that the provisions of the present Brief touch the sovereignty of the Queen of England and her Crown, although it may not touch its regality (i. e. quoad regalia), or that they touch her realin, in the sense of 16 Richard II. c. 5., then Dr. Wiseman and his coadjutors will have made themselves subject to the penalty of Præmunire. In Cardinal Wolsey's case before the Reformation, it was

of the offence; but whatever may be, under the circumstances, the legal punishment of publishing and putting into execution the Papal Brief, it is difficult to avoid the conclusion that the offence is still such in its legal character, as it is declared to be by the statute of Queen Elizabeth.

held by the Judges of the Court of Queen's Bench, that the obtaining a Papal Bull from Clement VII. granting to him the dignity and jurisdiction of Legate à Latere, and which Bull was publicly read in Westminster, and the exercising jurisdiction under it, was a contempt of the King and his Crown and contrary to the statute. Wolsey was accordingly convicted. Subsequently to the Reformation, we have the wellknown case of Robert Lalor*, who was indicted for exercising jurisdiction as Vicar-General of the Apostolic See in Ireland, by virtue of a Bull or Brief procured from Rome, and which Bull was said to touch the King's Crown, and Royal dignity. It appeared that Lalor had exercised Ecclesiastical Jurisdiction as Vicar-General, and done various acts pertaining to Episcopal Jurisdiction, within the Dioceses of Dublin, Kildare, and Ferns, which acts were said to be against the King, his Crown, and Royal dignity, in contempt of his Majesty and disherison of the Crown and contrary to the statute. Lalor pleaded not guilty to the charge, and was tried before a jury of the city of Dublin. He was convicted of having accepted his office by virtue of a Papal Bull, of having styled and entitled himself Vicar-Apostolic of the Dioceses of Dublin, Kildare, and Ferns, and of having issued letters of institution, dispensations for matrimony, sentences of divorce, &c., thereby usurping and exercising Episcopal Jurisdiction, and he was sentenced according to the form of "the Statute of Præmunire." Here then is an instance of a law made by the King, Lords, and Commons of the realm, when England was in communion with the Sée of Rome, being held to apply to a state of things subsequent

* 2 Howell's State Trials, p. 555., also Sir John Davies' Reports,

p. 82.