1911 Encyclopædia Britannica/Praemunire

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PRAEMUNIRE (Lat. praemonere, to pre-admonish or forewarn), in English law an offence so called from the introductory words of the writ of summons issued to the defendant to answer the charge, “Praemunire facias A.B.,” &c., i.e. “cause A.B. to be forewarned.” From this the word came to be used to denote the offences, usually ecclesiastical, prosecuted by means of such a writ, and also the penalties they incurred. The statute of Richard II., Purchasing bulls from Rome' (1392), is usually designated the Statute of Praemunire, but it is only one of numerous stringent measures (some still unrepeated, and, as a body, of the most confused character) passed for the purpose of putting restraint on the papal usurpation of authority in England. From the beginning of the 14th century papal aggression 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. The Statute of Provisors 1306, passed in the reign of Edward I., was, according to 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 (1350–1351) and the Statute of Praemunire passed in the reign of Edward III. 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. The Statute of Praemunire (the first statute so called) 1353, though expressly levelled at the pretensions of the Roman curia, excludes any direct reference to it in actual words. 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.

Many other statutes followed that of 1353, but that 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 regalty, 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 tenements, goods and chattels forfeit to the king, and they shall be attached by their bodies or process made against them by praemunire facias. This statute, says Stubbs, was one of the strongest defensive measures taken during the middle ages against Rome and was called for by the conduct of the pope, who had forbidden the bishops to execute the sentences of the royal courts in suits connected with ecclesiastical patronage. The last ancient statute concerning praemunire, until the Reformation, was an extension in the reign of Henry IV. (1400) of the Statute of Provisors, by which all persons who accepted any provision from the pope to be exempt from canonical obedience to their proper ordinary were subjected to the penalties prescribed. The range and description of offences subject to the penalties of praemunire were greatly widened after the Reformation, so that acts of a very miscellaneous character were from time to time brought within the scope of enactments passed for a very different purpose. For instance, the penalties of praemunire were incurred, under an act of Queen Elizabeth (1571), for denying the Queen’s title; and under an act of James I. the Statute of Monopolies (1623), for obtaining any stay of proceedings (other than by arrest of judgment or a writ of error) in any suit for a monopoly; under an act of Charles I. (1640) the attempting to restrain the importation or making of gunpowder was a praemunire; in the reign of Charles II. an act of 1661 made the asserting maliciously and advisedly, by speaking or writing, that both or either house of parliament has a legislative authority without the king, a praemunire. In the same reign, the Habeas Corpus Act 1679 made the committing of any man to prison out of the realm a praemunire, unpardonable even by the king. It thus appears that while the Crown by its prerogative might at any time remit the whole or any part of the punishment incurred by a praemunire, an exception was made in transgressions of the Statute of Habeas Corpus.[1] An act of William III. (1695) made sergeants, counsellors, proctors, attorneys, and all officers of courts practising without having taken the proper oaths guilty of a praemunire. By the Succession to the Crown Act 1707, verbally to assert the rights of a person to the Crown contrary to the Acts of Settlement and Union is praemunire (to do so by writing or printing is treason). The Royal Marriages Act 1772 is the last statute which subjects anyone to the penalties of a praemunire. A peer charged with praemunire is not entitled to trial by his peers, but is to be tried by a jury. The most famous historical instance of a prosecution of the Statute of Praemunire was that of Cardinal Wolsey in 1529.

Authorities.—Statutes of the Realm; Coke, Institutes; Collier, Ecclesiastical History; Hallam, Middle Ages; Reeves’ History of English Law; Stephen’s Commentaries on the Laws of England; Sir J. Stephen’s History of Criminal Law; Sir T. E. Tomlin’s Law Dictionary; Stubbs, Constitutional History.  (T. A. I.) 

  1. Sir T. E. Tomlins says that there is only one instance of prosecution on a praemunire to be found in the state trials, in which case the penalties were inflicted upon some persons for refusing to take the oath of allegiance to Charles II.