A Critique of Blackstone's Praemunire

Abstract

By an uneasy de facto compromise struck by William the Conqueror in 1066, the Christian church in England had its own judicial system, in order that the secular authority might not attempt to wield indirect influence over sacred doctrine and faith. There is a bifurcation to this bifurcation, though. Although the judiciary of the Church existed to judge the Church, it was was necessarily in dialogue with its secular counterpart, much as the King was necessarily in dialogue with the Pope. The church courts might face the East, but they were hewn from English timber, and structural necessities dictated that they account for the peculiarities of the adjoining structures. An assertion of Praemunire, which is to say, a claim that the Christian sovereignty had usurped the powers proper to the secular powers, would be split between a claim against the courts structurally intertwined with the secular courts and one against the distant political agency of the Pope similarly intertwined with the King. Critically, these assertions of power against the foreign or foreign-allied entities are not synonymous, and were, in fact, frequently contradictory. The interplay between these two readings of the offense is the history of the offense; it is not so much that it never rallies to its proper function, but rather that the purpose of the common law offense and the subsequent statutes was to sow doubt over what they might mean. In effect, the history of praemunire was a deliberate ambiguity designed to confound the assertions of sovereignty by two very different political agencies. If this is a tenable reading of the story, the Enlightenment and post-Reformation claims of Praemunire as a liberation of Englishmen from the false sovereignty of sacred institutions is cast into serious doubt. England did not decide to be free from the Pope by means of a common law writ developed three centuries before the Reformation, but rather legally situated the ambiguity between the two sovereignties within a certain calculus. The rest is politics, not law. When Blackstone wrote that Praemunire was some sort of Lockean entitlement under the traditions of the common law that had kept the scarlet lady of Rome (or Avignon) at bay, we are forced to come up for another reason for this assertion other than that it was what actually had occurred. By tracing out the varying historical narratives of the writ and the statute and then proceeding to a critical reading of Blackstone's text, it might be possible to cast doubt on the old chestnut that the distinctiveness of the English common law came from the doctrinal purity of its lack of reception of the foreign traditions of civil law and its healthy distrust of the non-legal adjudications of ecclesiastical equity.