A STATUTE OF PROVISORS.

ઃઃ

IR HENRY SPELMAN gives this account of the meaning of the word Provisors, as used in this Statute; the general fignification of the word being fynonymous with a purveyor." Provifores etiam dicuntur, qui vel epifcopatum, vel dignitatem aliam ecclefiafticam in Romana curiâ fibi "ambiebant de futuro, quod ex gratiâ expectativa nuncuparunt, quia ufque "dum vacaret expectandum effet [z]."—As this ftatute is to be confidered as a fort of manifefto against the court of Rome, the preamble is more full and laboured than that of any other law which hath yet occurred-The refiftance and oppofition to the Papal encroachments was not confined to England at this time; for we find, in Boulainvilliers [a], a petition (du tiers etat) to King John of France, that he would infift upon the privileges and immunities of his kingdom against Pope BonifaceFortunately for this country, the victories of Edward had made the English nation fo refpected and feared throughout Europe, that these provifions were thoroughly carried into execution; whereas the humiliating adverfities of the French made them lefs capable of afferting their national dignity and privileges against the Papal impofitions-England likewife, by its advantage of infular fituation, was lefs fubject to the Papal power, which could only be inforced by the pope's employing the army of a catholic country against the state which lay under his anathemas; whereas an invasion of England was impracticable from any other country but France, then much depreffed-The other method which the pope hath of inforcing his affumed powers is, by fomenting a rebellion against the excommunicated king in his own country-This likewife could as little be effected, Edward being at the height of popularity from the eclat of his victories; and, besides this, the parliament joined with him in refifting the Papal encroachments from the strongest motives of intereft, as by this means they fecured their own prefentations to ecclefiaftical benefices, when they happened to be in lay hands.

Though the encroachments of the church of Rome are mentioned throughout this law in their proper light, yet the pope himfelf is treated

[x] The word Provifor might therefore be not improperly rendered a looker out.

[a] Vol. iii. p. 72.

A a

with

with great respect, being ftyled Le faint pere, or Holy Father [6] — Onе of the titles therefore of this ftatute, viz, "the king and lords fhall pre"fent unto benefices of their own, and not the bishop of Rome," hath most evidently not been taken from the parliament roll, but hath been added by a tranflator or editor fince the Reformation.

What most deserves notice in this ftatute, is the explanation of the congé d'eflire, upon the vacancy of an archbishoprick or bishoprick-The statute fuppofes, that the free election in the chapters had been originally granted. by the king's progenitors, upon condition that they should have first asked leave of the king to choofe, and after the election alfo requested his af fent; which conditions (fays the ftatute) having been neglected, it is reafonable that the thing fhould return to its first nature-Now, in the first place, this previous and fubfequent affent of the king does not feem to be very reconcileable to what is ftated to have been a free election, and in which the chapters ftill continue to have the mockery of invoking the Holy Ghost to affift them in their choice: nor is there to be found in Rymer any inftance of the kings of England interfering in fuch an election — The king and parliament were however determined to exclude the pope from nominating, and affumed the right of fuppofing what they pleased to fubftantiate their own claims, and the falutary and beneficial confequences attending the fiction have given a proper fanction to it. This ftatute not having deterred fufficiently fome of these provifors, who ftill folicited at the court of Rome for benefices, and appealed against the decifions of the king's courts, occafioned, two years afterward, the first statute of Premunire, which is so called not from that word being used in the law, which is in French, and directs a garnissement, or warning of two months before fuch provifor or appellant can be punished [c]-The writ to the fheriff, founded upon this ftatute, therefore being in Latin, gives notice of this warning. by the word premunire (a barbarous word used for præmonere) from whence thefe laws have fince been fo ftyled-The punishment for not appearing after fuch warning is imprisonment, to be put out of the king's protection(which I apprehend to fignify the protection of the king's courts of juftice), and a forfeiture of lands and goods.

This first ftatute of Premunire, in the twenty-feventh year of Edward the Third, contains eight chapters, the four last of which relate to Gascony

[6] The beginning of all the letters, from the kings of England to the pope, in the twelfth, thirteenth, and fourteenth, is, Papæ Rex devota pedum ofcula beatorum-The meaning of this is very obvious; but there feems to be a difficulty in filling up this elliptical compliment. [c] He is on this warning to surrender himself.

4

wines,

wines, and, having never been tranflated, feem to have been little attended to by lawyers-The 5th chapter enacts, that it shall be felony, if any English merchant fhall engrofs or foreftail wines in Gafcony; nor may he at any rate purchase them of a Gafcon by money to be payed in England, if the price exceeds what wine is usually fold for in Gafcony-When parliaments enact laws in order to lower the price of provifions [d], they generally make the regulations upon the spur of the occafion, as Lord Bacon expreffes it, and with too eager and warm a fpirit of reformation-This fometimes is productive of ftatutes of moft extraordinary feverity (as the prefent most undoubtedly is), and this new and extraordinary felony must likewife have been committed in Gafcony; and therefore it feems to have escaped the legislature, that the offence, being local, could not have been tried by the jury of any English county [e].

The next chapter enacts, that no English merchant, or person employed by him, fhould be permitted to go into Gafcony, but juft before the vintage [f]; and that no Englishman shall even at that time purchase any wines, but in the towns of Bayonne, or Bourdeaux, under the fame penalties; which are, forfeiture of the wine, and likewise the other forfeitures confequential to a felony; and if any one infringes thefe regulations, he is to be apprehended by the fenefchal of Gafcony, or the conftable of Bourdeaux, and fent in vinculis to the Tower of London-It need not be observed, that these provisions of the statute are of a very extraordinary nature and severity, and therefore by 37 Edw. III. ch. xvi. this law is repealed as far as relates to the punishing of the offence as a felony-In all other respects this ftatute is again confirmed, with this addition, “that the "fenefchal and conftable of Bourdeaux fhall yearly tranfmit to England "certificates against those who have broke the law, together with the bo"dies of the offenders, who, if they contradict the certificate, it is to be "tried by a jury of merchants who trade to thofe parts." If the offender is not fent together with the complaint, the certificate is to be returned into the King's Bench, from whence process of outlawry is to iffue-These statutes continued in force till the forty-third of Edward the Third [g], which in the preamble fets forth, that these laws of severity were pur assay

[d] Wines must be confidered in the fame light with provifions.

[e] This feems to be another confirmation of Carte's affertion, that there were no lawyers in this parliament.

[f] Perfons refiding in Gascony to buy up the wine are, by 37 Edw. III. ch. xvi. called cocheours engleys, viz. liers in wait.

[g] This ftatute likewise hath never been translated.

profitable; but notwithstanding this, upon the representation of the prince of Wales (whom Edward ftyles his Dearly-beloved Son), that the duties which he used to receive from the dutchy of Acquitaine were confiderably diminished, the parliament enacts, that the two preceding ftatutes fhall remain in fufpence [b], till the effects of this repeal are known.

I have stated these heads of the different laws of this reign with regard to French wines, that any admirer of the legislation, or notions of liberty in these times, may ask himself the question, whether a member of either house of parliament could poffibly have proposed fuch regulations fince the Revolution ?-We find, however, that these laws not only paffed, but continued in force for many years; and even when they are repealed, it is to increase the revenue of the Black Prince, without the least complaint or notice taken of the oppreflion to the fubject.

[b] This is supposed to be perhaps the only inftance of a temporary suspension of a law.

STATU

A

STATUTUM DE STAPULIS.

T

27 Edw. III. Stat. ii. A. D. 1353.

HIS ftatute is a most complete code of laws for the regulation of the merchants who attend the ftaples of wool, now transferred from Flanders to England, and to give the moft fummary and expeditious juftice upon all contracts, entered into during the continuance of this great mart-The compiler's of the Parliamentary History fuppofe, that the chief occafion of Edward's removing the ftaple from the Great Towns of Flanders to Newcastle under Lyne, York, Bristol, &c. arofe from his being displeased with the Flemmings, for difappointing him in an intended alliance between his daughter and their young Earl, Lewis-Slight circumstances of this kind perhaps often occafion the greatest events in history, though they are generally accounted for from more deep and important causes; and it hath been faid, that we owe the famous navigation. act (the great foundation and support of our commerce) to a perfonal difpute between St. John, emballador to Oliver Cromwell, and the States: St. John, from this pique, determined to propose to the English parliament regulations, which should prevent the Dutch from being the common carriers of Europe.

The different chapters of this law fpeak fufficiently for themselves, without needing any comment or observations—It may be remarked, however, that the preamble to this ftatute firft ftyles the parliament the King's Great Council; and it should seem, that for most counties there was but one representative at this time, instead of the two which they fend at prefent-The words are thefe: "En bone deliberation ove prelates, "ducs, counts, barons, chivalers des countées (ceft à fcavoir un pour toute "la countée), et des communes des citées et burghs de notre realme."

THE