Praemunire

• 1. Introduction

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  Praemunire is a word that stumped medieval English clerks and confounds modern lawyers alike. At its heart, it named a crime: the act of supporting a foreign power's authority in England over the authority of the English monarch. The law carrying that name was rooted in a centuries-long argument between English kings and the Pope in Rome, an argument about who got to fill church positions, who got to collect money from the English faithful, and who got to decide where English people brought their legal disputes. Those questions might sound ecclesiastical and distant. But they nearly destroyed two of Henry VIII's most powerful ministers, they shaped the break with Rome, and they resurfaced as recently as a 2018 party conference speech by Boris Johnson. What, exactly, was praemunire? How did a medieval writ become a tool of royal power? And why did it take until 1967 to finally put it to rest?

• 2. Papal Provisions and the Patron's Grievance

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  Pope Gregory IX, who held the papacy from 1227 to 1241, himself acknowledged the problem. He pronounced against the practice of papal provisions, by which the Pope suspended the rights of local patrons and placed his own nominees into vacant church benefices. Pope Innocent IV then expressed general disapproval of these nominations in 1253. Despite those papal misgivings, the practice continued and deepened English resentment. The Statute of Provisors passed in 1306, during the reign of Edward I, targeted the export of money collected from religious persons out of the country, whether it was called rent, tribute, tallage, or any other name. Sir Edward Coke regarded that 1306 statute as the foundation of all the praemunire legislation that followed. The underlying tension was partly financial and partly a matter of jurisdiction: the papacy had long claimed a form of temporal supremacy over England and Ireland, and by the start of the fourteenth century that claim was generating active friction in two concrete areas. One was the disposal of church positions, often to absentee cardinals or foreign clergy who never set foot in England. The other was the Pope's encouragement of English people to bring their legal disputes to Rome rather than to English courts.

• 3. The Statute's Language and Meaning

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  The Statute of Praemunire commonly referred to in law carries the reference 16 Ric. 2. c. 5, meaning it was passed in the sixteenth year of Richard II's reign. Richard II had been purchasing loans from foreign creditors and rulers and acquiring papal bulls from Rome in the year 1392. The statute he signed into law first established that the right of recovering presentations to churches and other benefices belonged exclusively to the king's court, citing the custom of all his royal predecessors. It then condemned the practice of papal translation and listed what happened to anyone who pursued such matters in the court of Rome or anywhere else: the offender, along with notaries, abettors, and counsellors, would be put outside the king's protection, and their lands would be forfeited. The earlier Statute of Praemunire of 1353 had already set out penalties for drawing disputes out of England to a foreign jurisdiction. Under that statute, offenders were given two months to answer for their contempt of royal rights, and the consequences included the loss of all civil rights, forfeiture of lands, goods, and chattels, and imprisonment at the royal pleasure. The word praemunire itself has a layered etymology. In classical Latin, praemunire means to fortify, safeguard, or uphold in advance or in preference. By medieval usage it had been confused with praemonere, meaning to forewarn, because the writ commanded a sheriff to forewarn the summoned person to appear in court. A more revealing reading, grounded in the word's actual Latin roots, is to supply support for something sooner than, or instead of, its proper object: in other words, to back the papacy before the Crown.

• 4. Henry VIII and the Weapon Sharpened

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  Praemunire had been declining in practical importance for well over a century when Henry VIII found in it a tool of extraordinary leverage. As the Protestant Reformation unfolded, the charge was first applied to individuals, then to groups of clergy, and finally to the entire English clergy, accused collectively of acting as agents of a foreign power. The fall of Lord Chancellor Cardinal Thomas Wolsey was precipitated by a praemunire charge, as was the fall of Lord Great Chamberlain Thomas Cromwell. Neither man survived the accusation in anything like their former form. William Barlow received a pardon from the Crown in 1550 after committing what the Crown deemed the offence, when he made a visitation at Wells deanery. The practical end point of this campaign was not just the defeat of individual powerful men. Henry ultimately asserted that he was, in the words of the declaration, "of the Church of England in Earth under Jesus Christ Supreme Head". From that point the English clergy answered to the Crown rather than to Rome, and the fundamental problem praemunire had addressed, the dual loyalty between monarch and pope, was resolved by abolishing one side of the equation.

• 5. Diplomatic Awkwardness and Slow Abolition

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  By the nineteenth century, praemunire was no longer used as a weapon against powerful courtiers, but it still cast a shadow over diplomatic life. The Camerlengo of the time would occasionally communicate the death of a Pope to the British monarch, along with other European rulers, and sometimes made other communications. Whether responding to such messages violated the Statute of Praemunire became a genuine legal question. The compromises reached were notably awkward: messages could be exchanged on a private rather than official basis, or routed through the Hanoverian minister in London, with Britain responding in its capacity as the King of Hanover rather than as the English Crown. Eventually it was decided that no legal obstacle existed to establishing formal diplomatic relations with the Vatican. The abolition in 1870 of forfeiture as a penalty for treason and felony did not extend to praemunire, because praemunire was classified as a misdemeanour rather than a felony. That distinction kept the offence formally alive longer than many assumed. It was not until the Criminal Law Act of 1967 came into effect that praemunire facias ceased to be an offence in England, Wales, and Northern Ireland. The European Communities Act 1972 then extended the jurisdiction of the European Court of Justice to the United Kingdom, an irony that would not be lost on anyone who had read the 1353 statute's language about foreign jurisdictions. In a speech at the 2018 Conservative Party Conference, Boris Johnson claimed that those behind the Chequers plan risked prosecution for praemunire. The Times fact-checked the claim and noted that the offence had been repealed fifty-one years before the speech was delivered.