STATUTES MADE AT WESTMINSTER.

3

Hen. VI. A. D. 1424.

HE fecond chapter of this ftatute hath a very extraordinary pre

TH

amble, viz. that great numbers of sheep, with their fleeces on their back, and ready for fhearing, were carried out of the kingdom into Flanders, and other parts abroad, to the great decrease of the customs, and the impoverishment of the kingdom-I can scarcely fuppofe (notwithstanding this preamble) that it would answer to carry fheep out of the kingdom merely to fhear them and fell the wool; and I fhould therefore conceive, that this was a practice, which only exifted in the imagination of the person who drew the act, and that no fuch allegation could poffibly have been proved, before a committee of parliament - It is frequently said, indeed, that a preamble to a statute is the best key to its construction; it often, however, recites, that which was not the real occafion of the law [e], when, perhaps, the propofer had very different views in contemplation-The most common recital for the introduction of any new regulation, is to fet forth, that doubts have arofe at common law, which doubts, frequently, never exifted, and the recitals have, therefore, much weakened the force of the common law, in many different inftances.

The 12th chapter, of the 18th of this king, furnishes us with a proof of this, as well as many other statutes - By the the 9th of Henry V. it had been enacted, that malicious indictments, fuppofing crimes to have been committed in certain places (where no fuch place was to be found in the county) should be utterly void This statute, by exprefs words, was only to continue till the next parliament after the return of that king from France; and yet, in the 18th year of his fucceffor, it is recited to be a doubt whether the ftatute was then in force: " par opinion de afcuns eft expiré, par "opinion des afcuns nient expiré"-I would not from this compare the preamble of a statute, to the preamble of a patent of nobility; but only infinuate, that they fhould not be implicitely believed-Nor are they always the true occafion or foundation of the law to which they are prefixed.

[e] There is a ftatute of Edward the Fourth, the preamble of which recites, that bad feathers. in beds had been the occafion of a plague-Feathers are never imported from the infected countries.

Not

Not only the preamble, but the enacting part of this ftatute, feem not to prove any great wisdom or knowledge in the legiflature of the timesIt is comparatively, however, a better law than a ftatute of Queen Elizabethf] to the fame purport, which makes it even felony to carry fheep out of the kingdom; whereas the penalty, by this law, is only forfeiture of the fheep-Moft regulations of this fort will always be found ineffectual, and it is providential [g], that one country fhould want the product of another.

"Non omnis fert omnia tellus."

and thus the union between country and country is preferved, by the neceffity of mutual intercourfe and commerce.

The 5th chapter of this law directs, that commiffions may be awarded under the great feal, to promote the navigation of the river Lee, from Ware in Hertfordshire, till it is loft in the Thames, and is the firft inftance of a parliamentary provifion for the navigation of an inland river I fhould imagine, that there had been very great loffes by floods, at this time, on the eftates in the fen countries; as in the 6th year of this king's reign, provifion is made for general commiffions of fewers [b], where we likewife find the form of the first commiffion of this kind, which, perhaps, ever iffued It is directed to the commiffioners for Lyndfey hundred in Lincolnfhire; and, amongst fome other curious particulars, impowers them to prefs as many labourers into their fervice as they should think neceffary.

There is in Riley's Placita Parlamentaria [i] a law of this year, which is not printed in the ftatute book, as it hath expired, together with the occafion of making it, unless it fhould it be conftrued to be a general provifion against the marriage of a queen dowager, without the king's confent.

"Petit Parliamenti de anno vi regni regis Henr. fexti.

"As toward a bille conceyved and miniftred unto the lordes fpirituel and temporel in this parlement to be made for a statut, of the whiche the teneur here followeth.

"Item ordene, foite ftablye per auctorite de ceft prefent parlement pur la falvacion de lonur des trefnobles Eftats des roynes Dengleterre pur le temps eftants, qe nulle homme, de queconque eftat, degree ou condicion quil foit,

[f] 8 Eliz. chap. 3.

[g]

γὰρ ἄλλες

*Αλλον ἔθηκε Θεός τ ̓ ἐπιτηδέα φῶτα.

Theoc.

[b] This word is not a corruption of foars, as fome have fuppofed, but means a fea-wear or mound to keep off the fea.

[i] P. 672.

I i2

ne

ne face contract des efpoufailles ou matrimoigne ne foy marie a quelque Royne Dengleterre fanz efpecial licence et affent du roy mefmes, luy efteant des ans de difcrecion; et celuy qui ferra le contrarie, et ent foit duement convict, forface pur terme de fa vie au roy toutz fes terres et tenements fibien ceulx qui font ou ferront en fes mayns propres, come ceulx qe font ou ferront es mayns daultres a fon oeps, et auffi tous fes biens et chateaux en quelconques mains quilz foient, confiderez qe par la defparagement du royne leftat et lonur du roy ferroient trefgrandement emblemiz, et dorra le greindre confort et example as autres Dames deftat queux font del fang roial pur le plus legierment desparager, We Herry Archebishop of Canterbury, John Archeb. of York, William Bishop of London, the Bishop of Ely, John Bishop of Rouchester, John Bishop of Bath, Will. Bishop of Norwiche, Richard Abbot of Weftmynftre, Nicol Abbot of Glaftingbury, William Abbot of Seynt Maries of York, and Nicol Abbot of Hyde, gife oure affent thus and never otherwise, that is to say, as fetforthe as the faid bille is not ageins the law of God and of his chirche, but ftandeth therewithe, and enporteth no dedly fynne. Requiring this to be enacted in the parliament rolle."

Dorfo.

"Soit enacte en maner come tielx proteftacions et condicions ont este "enactez devant ces heures."

It is a very extraordinary declaration, that the queen-mother shall not marry without the consent of the infant king, who was now but four years of age; and if it is contended, that the “du consent du roy (luy estant des ans "de difcrecion") means, that his confent was not neceffary till he was of fuch age—the answer is, that this construction would have made the act entirely nugatory, as it could not take effect till twelve years afterwards, when queen Katharine muft probably have dropt all thoughts of marriage: and Grafton [k] informs us, that Owen Tudor, after the queen's death, was committed to the tower upon this ftatute, from which he made his escape, either by the negligence or connivance of the constable.

[k] Chronic. p. 134. Jenkins, in his Centuries, likewife takes notice of this law.

STATUTES

STATUTES MADE AT WESTMINSTER.

IN

8 Henry VI. A. D. 1429.

N the introduction to the ftatutes of this year (which confift of no lefs than eight-and-twenty chapters), Henry the Sixth is for the first time ftiled Christianiffimus Dominus Nofter; which title he had probably asfumed as king of France.

The 2d chapter is of a very fingular nature, as it is made to inforce a regulation in trade made by another country-Christiern, king of Denmark [a] (who was uncle to Henry the Sixth) had iffued a proclamation, that no foreigner should carry any kind of merchandize to any of his ports on the coast of Norway, except the port of Northbarn [b]; and this ftatute directs all Englishmen to obferve this regulation under penalty of forfeiting their goods-The trade between England and Denmark, at this time, confifted chiefly in the exchange of wool for fish, or rather, indeed, in our fishing on their coafts [c]; for we find, by a statute made two years after this, that the Danes having feized the cargoes of fome ships belonging to merchants of York, and Kingston upon Hull, it is complained, that no Danes or Norwegians ever come into this island upon whom they can make reprifals [d]-The remedy given by the legislature is, that the complainants shall be entitled to letters of privy feal, and if fatisfaction is not made, that the king will then provide one.

There is a proclamation in Rymer's Foedera, which iffued in the third year of Henry the Fifth, and which relates to this fishery on the coast of Norway and Iceland-" Rex vicecomitibus Londoniæ falutem-Procla"mari faciatis, quod nullus ligeus nofter ufque ad finem unius anni

[a] It is very remarkable that there hath never been a war between the English and the Danes fince their invasion in the time of the Saxon government-And they are the only power in Europe from whom we have received afsistance at home, except the Dutch and German troops in the war of 1743-The affiftance from the Danes, which I would allude to, was in Ireland under king William.

[b] I fuppofe Northbarn is the fame with Bergen-There is a town called Bergen on the island of Rugen, off the coaft of Pomerania; and therefore Bergen (in Norway) feems to be properly called North Bergen, to distinguish it from Bergen in the Baltick.

[c] By an Irish ftatute of the 7th of Edward the Fourth, foreigners are not permitted to fish off the coaft of Ireland.

[d] This fhews, that by the Law of Nations (as then understood) there was a very fummary method of receiving justice.

proximè jam venturi, ad partes infulares regnorum Danie & Norwegiæ, "præfertim ad infulam de Iceland, pifcandi caufà, feu aliis de caufis, in preτσ judicium regis regnorum iftorum, accedere prefumat aliter quam fieri "antiquitùs folebat"-It may be difficult, at this diftance of time, to know what kind of fifhery was carried on by the English on these coaftsAs for the whale fishery, it is much doubted whether this was known at prefent, unless it is inferred from the direction of this proclamation not to fish on the coaft of Iceland-I fhould rather fuppofe indeed, that the whales, fo far back as the beginning of the fifteenth century, were not to be taken or found in the extreme northern latitudes, in which they are fifhed for at prefent-I have already had occafion to observe, that the northern parts of Europe have gradually become warmer than they were in the time of the Romans; and I should not think it improbable, that the feas in the high northern latitudes were at this time fo frozen as to be incapable of navigation-This conjecture is founded upon fomething more ftrong than arguments of fpeculation. We hear eternally, in the old law books, of the king's prerogative in royal fish; which, therefore, must have made a confiderable branch of the royal revenue [e]; and Juvenal speaks of the Balana Britannica, as we would at prefent of a Greenland whale-It is well known, that fuch fish is fcarcely ever feen at prefent on our coafts; which, therefore, feem to have left our feas (as being too warm) for the more northern sea, where they find a climate more fuited to their wants and feelings The cultivation of North America hath, in the fame manner, rendered their climate more mild than it was; and we find that within these few years great numbers of the spermaceti whales are caught in the Gulph of St. Lawrence, which before that was probably too cold for them.

[e] I apprehend that the cuftom of fending a prefent (as it is filed) to the king, of the fturgeon caught in the Thames, arifes from this antient prerogative of the crown; as fturgeon is one of the Royal Fife.