English law
In
English history
,
praemunire
or
praemunire facias
(
Ecclesiastical Latin
:
[pr?.mu.?niː.r?
?faː.t??i.as]
) refers to a 14th-century law that prohibited the assertion or maintenance of
papal jurisdiction
, or any other foreign jurisdiction or claim of supremacy in
England
, against the supremacy of the
monarch
. This law was enforced by the
writ of praemunire facias
, a
writ of summons
from which the law takes its name.
The name
praemunire
may denote the statute, the writ, or the offence.
Praemunire
in classical Latin means
to fortify
and also
to safeguard
or
to uphold
(munire)
in advance
or
in preference
(prae). From antiquity, munire was also connected, by mistaken etymology, with munera, "duties," "civic obligations." In medieval Latin,
praemunire
was confused with and used for
praemonere
, to forewarn, as the writ commanded that the sheriff do (
facias
) warn (
praemunire
) the summoned person to appear before the Court.
[1]
Another way of understanding the term, more revealing of its sense, and based on its proper meaning, is "to supply support for (munire) something instead of, sooner than or before (prae) its proper object, as someone, for instance, affording support and obedience to the papacy sooner than to the monarchy.
Background
[
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]
A controversy arose between the English kings and the Court of Rome concerning the filling of ecclesiastical benefices by means of papal provisions "by which the Pope, suspending for the time the right of the patron, nominated of his own authority, to the vacant benefice" the papal nominee being called a
provisor
.
Pope Gregory IX
(1227?1241) pronounced against the propriety of such provisions as interfering with the rights of lay patrons; and
Pope Innocent IV
expressed, in 1253, general disapprobation of these nominations.
[2]
The
Statute of Provisors
(1306) (
25 Edw. 3
. Stat. 4), passed in the reign of
Edward I
, was, according to Sir
Edward Coke
, the foundation of all subsequent statutes of
praemunire
. This 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". A much greater check on the freedom of action of the popes was imposed by the
Statute of Provisors
(1351) and the Statute of
Praemunire
passed in the reign of
Edward III
.
[3]
The former of these, after premising "that the Pope of Rome, accroaching to him the seignories of possession and benefices of the holy Church of the realm of England doth give and grant the same benefices to aliens which did never dwell in England, and to cardinals, which might not dwell here, and to others as well aliens as denizens, as if he had been patron or advowee of the said dignities and benefices, as he was not of right by the laws of England", ordained the free election of all dignities and benefices elective in the manner as they were granted by the king's progenitors.
[3]
Origin
[
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]
The
Statute of Praemunire
(
16 Ric. 2
. c. 5) was passed by the
Parliament of England
during the reign of
Richard II
, who purchased various loans from foreign creditors and rulers as well as
bulls
from
Rome
in 1392. It was only one of numerous stringent measures passed for the purpose of restraining the
Holy See
and all forms of papal authority in England and of eliminating in general the influence of foreign powers, especially creditors and the
Holy Roman Emperor
. Because the Papacy had long claimed a form of temporal supremacy over England and Ireland, from the beginning of the 14th century,
papal
intervention had been particularly active, more especially in two forms. The one, the disposal of ecclesiastical benefices, before the same became vacant, to men of the pope's own choosing; the other, the encouragement of resort to himself and his curia, rather than to the courts of the country, for legal justice.
[3]
Later developments
[
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]
The Statute of Praemunire (the first statute so called) (1353), though especially levelled at the pretensions of the
Roman Curia
, was also levelled against the pretensions of any foreign power and therefore was created to maintain the independence of the crown against all pretensions against it. By it, the king "at the grievous and clamorous complaints of the great men and commons of the realm of England" enacts "that all the people of the king's ligeance of what condition that they be, which shall draw any out of the realm in plea" or any matter of which the cognizance properly belongs to the king's court shall be allowed two months in which to answer for their contempt of the king's rights in transferring their pleas abroad. The penalties which were attached to the offence under this statute involved the loss of all civil rights, forfeiture of lands, goods and chattels, and imprisonment during the royal pleasure.
[3]
[4]
Many other statutes followed that of 1353, but that which was passed in the sixteenth year of
Richard II
's reign is, as mentioned before, usually referred to as the Statute of Praemunire. This statute, after first stating "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", proceeds to condemn the practice of papal translation, and after rehearsing the promise of the three estates of the realm to stand with the king in all cases touching his crown and his regality, 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
.
[3]
Praemunire declined in importance, but experienced a resurgence under
Henry VIII
as the
Protestant Reformation
unfolded. First individuals were indicted for
praemunire
, then groups of clergy, and lastly the entire English clergy was accused of being agents of a foreign power (the Pope). The fall of both
Lord Chancellor
Thomas Cardinal Wolsey
and
Lord Great Chamberlain
Thomas Cromwell
was precipitated by a charge of praemunire.
William Barlow
was pardoned by the crown for the crime in 1550 when he made a visitation at Wells deanery.
[5]
In time, Henry asserted himself as "
of the Church of England in Earth under Jesus Christ Supreme Head
", and the clergy of the
Church of England
no longer answered to a foreign power.
During the 19th century the
Camerlengo
of the time would on occasion communicate the death of a Pope to the British monarch (along with other rulers), and made occasional other communications. There was some discussion as to whether the Statute of Praemunire meant that no response could be made: the compromises reached included conveying messages on a 'private' rather than 'official' level, or going via the Hanoverian minister at London (responding as
King of Hanover
). Eventually it was decided that there was no legal obstacle to establishing formal diplomatic relations.
[6]
The abolition in 1870 of forfeiture as a penalty for treason and felony did not apply to
praemunire
because it was a misdemeanour.
[4]
As of the
Criminal Law Act 1967
coming into effect, praemunire facias is no longer an offence in England, Wales or Northern Ireland. Afterwards, the
European Communities Act 1972
extended the jurisdiction of the European Court of Justice to the United Kingdom, putting a final end to praemunire. Nevertheless, in a speech at the 2018
Conservative Party Conference
, during the political controversies associated with the
Brexit negotiations
,
Boris Johnson
claimed that the authors of the
Chequers plan
risked prosecution for
Praemunire
.
[7]
[8]
The Times
, in a
fact-check
of Johnson's speech, noted that
Praemunire
had been repealed 51 years previously.
[8]
Acts concerning praemunire
[
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]
Notes
[
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]
- ^
Oxford English Dictionary, s.v. praemunire. Second edition, 1989.
- ^
Sloane, Charles (1911).
"Statute of Provisors"
.
The Catholic Encyclopedia
. Vol. 12. New York: Robert Appleton Company
. Retrieved
29 March
2020
.
This article incorporates text from this source, which is in the
public domain
.
- ^
a
b
c
d
e
One or more of the preceding sentences incorporates text from a publication now in the
public domain
:
Ingram, Thomas Allan (1911). "
Praemunire
". In
Chisholm, Hugh
(ed.).
Encyclopædia Britannica
. Vol. 22 (11th ed.). Cambridge University Press. pp. 242?243.
- ^
a
b
Kenny, C.
Outlines of Criminal Law
(
Cambridge University Press
, 1936), 15th edition, p. 323
- ^
"Colleges: The cathedral of Wells."
A History of the County of Somerset: Volume 2.
Ed. William Page. London: Victoria County History, 1911. 162-169.
British History Online website
Retrieved 3 May 2023.
- ^
FO 95/736,
The National Archives
- ^
Brok, Elmar; Liekenbrock, Anne (2019).
"Brexit - The Negotiatiion Position of the EU 27"
. In Friedemann, Kainer; Repasi, Rene (eds.).
Trade Relations After Brexit
. Nomos Verlag. p. 34.
ISBN
978-3-8452-9334-9
.
- ^
a
b
Coates, Sam (3 October 2018).
"Boris Johnson takes aim at Michael Gove in crusade against Brexit 'bodge'
"
.
The Times
. Retrieved
2 January
2023
.
References
[
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Look up
praemunire
in Wiktionary, the free dictionary.
Further reading
[
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]