# The Statutes at Large (Ruffhead)/Volume 1/Preface

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PREFACE.
In the rude State of human Government, while personal Strength and Courage were chiefly held in Esteem, as Qualities most conducive to Honour and Security, Men yielded with Reluctance to the Obligation of Civil Institutions, which were calculated to abridge and restrain their natural Rights and Prerogatives.
During this early Dawn of Legislation, the unpolished Genius of the People, is visible even in the Construction of their Laws, which are, most of them, hastily drawn up without Order and without Precision.
The antient Statutes of this Kingdom, afford abundant Examples of such Irregularity and Inaccuracy; being, most of them, formed without any settled Precedent; and seeming, in particular Instances, rather to be Provisions extorted by some predominant Influence, than Laws instituted by the concurring Assent of a regular Legislature.
Some Degree of Order, however, beamed forth under the Reign of Edward I, many Laws of that Time being penned with a Brevity and Perspicuity, which might do Honour to more enlightened Days. But still the greater Part of the Statutes even of that Reign, and of those immediately succeeding, are not only vague and unsettled in Point of Form, but are sometimes defective in Substance. In many, there are no Words expressing by what Authority they were promulgated; and in those wherein the enacting Authority is declared, it is variously described. In some Instances, the Laws seem to issue from the King alone; several Acts running in the Form of Charters and Patents. In others, they seem to proceed from the King and Lords jointly, without the concurring Assent of the Commons.
It is observable likewise, that Offences are sometimes loosely and ambiguously described; and, in many Statutes, no certain Penalty is inflicted on the Offender; whereby the Courts of Justice were not only entrusted with a Latitude of Construction respecting the Offence, but with a dangerous discretionary Power of punishing the Delinquent; which afforded room for Partiality and Oppression.
The Laws of those Times were likewise extremely defective with regard to civil Proceedings, whereby, in many Instances, the Courts of Judicature were left open to Temptations, and exposed to Menaces: And, even in the Decline of the feudal Policy, they were easily corrupted or overawed by the Influence of the Crown, or of some potent Baron.
​The Inconveniencies arising from such an imperfect System, wherein Power too often took place of Right, must, in those Days, have been frequently and fatally experienced, more especially by the Commoners, or inferior Orders, of the State. Their Experience of these Inconveniencies, taught them to prize the superior Advantages of civil Institutions; and as they, by Degrees, were enabled to assert their Independance, and to obtain that Share in the Administration of Government, to which they are by Nature intitled, we find that the Legislature applied their Attention to the framing of Laws with greater Precision and Uniformity, in order more effectually to ascertain the Bounds of Justice, and compel lawless Force to submit to the Civil Tribunal.
As Industry, however, could make but flow Advances against the overbearing Weight of lordly Power, the Commons were not, for a long Time, in a Condition to procure the express Acknowledgment, much less to maintain the regular Exercise, of their undoubted Rights: And the frequent Struggles among the several Orders of the Constitution were, in Part perhaps, the Occasion of the vague and unsettled Frame of our Statute Law, which, as different Interests predominated, underwent successive Alterations, both in Form and Substance.
These Instances of Disorder and Irregularity, among other Circumstances, have given rife to various Objections against the Validity of several early Acts, printed in former Collections, and continued in this. Should these Objections ever prevail, many antient Statutes must be rejected as utterly invalid; and, to establish their Authority, is perhaps one of the principal Ends to which an Editor should direct his Attention. I shall therefore endeavour, in the first Place, to obviate these Objections; which will lead me briefly to explain the Method in which our antient Acts of Parliament were passed. I shall then offer some Observations on our Statute Law in general: And lastly, shall present the Reader with the Plan of the present Edition.
It is affirmed in several Books, that, if a Record mention only that the King enacts, and the Lords assent, without naming the Commons, that the Omission cannot be supplied by any Intendment: And upon this Principle, the 8 Hen. VI. c. 29. hath, as Serjeant Hawkins observes, been questioned by Dyer, and its Authority denied in 1 Inst. and the 8th Report. Were this Principle, however, which, as applied to the early Statutes, seems ill grounded, to be admitted for the present, yet its Force would not invalidate the Authority of the Act in Question.
It is observable, that, in the old Statutes, there was, for the most Part, a general Preface, or, as some call it, Prologue, to the several Articles or Chapters enacted ​in each Session, which were entered seriatim on the Roll, without a single Break, or even any intervening Punctuation: And they all had Reference to the Preface, which declared the enacting Authority. Thus the Act in Question, of the 8 Hen. VI. begins with the following Preface.
"To the Laud and Honour of Almighty God, &c. our most noble Christian Lord Henry, &c. by the Advice and Assent of the Prelates and great Men of his Realm of England, and at the special Request and Assent of the Commons of the said Realm being in the said Parliament, hath made certain Statutes, &c. in the Form following."
Here we find that, in this Preface, the Assent of the Commons is expressly mentioned: And therefore the Omission in the 29th Chapter, is to be supplied by Reference, and there is no Need of any Intendment.
But admitting that their Assent could not be supplied by such Reference, yet. If such an Omission should be deemed sufficient to invalidate a Statute, then the Authority of the greater Part of the early Acts may be denied: For the Assent of the Commons is frequently omitted, more especially in the enacting Clauses of the Statutes prior to the Reign of Henry VII. nay, sometimes is not even inserted in the Preface.
Lord Coke however takes a Distinction between a general and a particular penning of an Act of Parliament. Thus he allows an Act to be good which runs in these general Terms: "It is enabled by Authority of Parliament." Or, he likewise admits, that if it be indited "quod Dominus Rex statuit," yet if it be entered in the Parliament-Roll, and always allowed to be an Act, it shall be intended to have been by Authority of Parliament. But, he concludes, "If it be penned, that the King enacts with the Assent of the Lords, or with the Assent of the Commons, it is not an Act of Parliament, for the Record of the Act expressing which of them gave their Assent, excludeth all Intendments that any other gave their Assent."
This Distinction however, with due Deference to such great Authority, does not seem to establish any solid Difference. For, the Legislature consisting of three Orders, where one alone, the King for Instance, is expressed, there is the same Ground for excluding all Intendment with regard to the other two, as there is for the Exclusion of one, where two only are mentioned: And no valid Reason can be given, why the Assent of one Order, should not be intended as well as the Assent of two. Besides, the universal Reception in Courts of Justice, seems to be against his Lordship's Position: For the Statute de Malefactoribus in Parcis, where it is said, that "the King hath commanded, at the Instance of his Nobles," hath always been ​deemed a Statute. Other Statutes likewise, mentioned by Serjeant Hawkins, such as Quia emptores terrarum, which is worded as "an Ordinance at the Instance of the great Men;" Articuli super chartas, which only mentions the Prelates, Earls, and Barons; and the Statute of Money, which runs in the same Form, have been universally received as Acts of the whole Legislature, though particularly penned, and omitting the Commons.
But the Doctrine laid down by Lord Coke and others, will appear the more indefensible, if we take a retrospective View of the antient Method of passing Acts of Parliament, wherein we shall find, that the concurring Assent of the several Orders of the State was not for some time held essentially requisite; and that after the Commons were restored, as a Part of the Legislature, their Influence was so inconsiderable, that it was many Years before their Right of Assent in particular was fully acknowledged and established in Practice.
Concerning the antient Method of passing Laws, during the British and Saxon Times, we can conclude little with Certainty. The British Kifrithin, or Great Council, seems to have been rather an occasional and tumultuary Meeting, than an Assembly composed of regular and distinct Orders. With regard however to the Saxon Constitution, though we cannot trace the Forms on which the several Orders of the State concurred in the Business of Legislation, yet we frequently find express Mention of the People in the Saxon Laws: And it may, among other Circumstances, be collected even from the Nature and Design of the Folcmote, that they ​bore no inconsiderable Share in the Administration of Government; as many have, with good Reason, contended.
We may nevertheless venture to conclude, that the Authority of the Commons, however constitutionally extensive in Point of Right, soon became very inconsiderable in Effect. We may indeed judge of the Weakness of their Influence, by attending to the unequal Balance of Property among the Saxons; which is, perhaps, one of the surest Rules to determine the respective Powers of the different Orders of the Constitution. And indeed it appears to have been so small, that it is no ​wonder we find the Traces of it for some Time effaced by the Revolution effected under William the Norman.
While the feodal System which he introduced, or rather, perhaps, extended was preserved in its full Vigour, we find no express Mention of the Commons. But the great Opposition the succeeding Kings met with from the enormous Power of the Barons, and the Struggles between regal and aristocratical Tyranny, occasioned the Decline of that System; and, with other concurring Circumstances, gradually made Way for the Restoration of the Commons into the Great Council. As the greater Baronies escheated, they were, in order to lessen the Influence of the Nobility, portioned out into lesser Tenures, in Capite; and these Tenants were called the Lesser Barons; who had a Right of attending the Parliament. Their Number, according to Gilbert, was at one Time three thousand: Their Attendance consequently becoming inconvenient, if not impossible, two Knights were at length summoned from each County, in the Room of these Lesser Barons.
The first Summons of these Knights, extant on Record, is the 49th of Henry III. And it doth not appear that the Citizens and Burgesses, who were, at that time, the true Commons of the Realm, were regularly summoned at this Time. All we find is, that the Cities of York and Lincoln, and other Boroughs of England, were written to, and required to send two of the most discreet Men, &c.
The first regular Summons we meet with, directed to the Sheriff, for the Election of Citizens and Burgesses, is in the 23d of Edward I. The Commons had by ​this Time obtained some Share of Influence: But such was the little Regard paid to their Rights, that their Assent was not, for a long Time after, held essential to the enacting of Laws.
Even the Barons themselves were, for some Time, considered merely as Counsellors, and, aspiring also to the Honours of the Chace, with the romantic Glory of Chivalry, they were glad to be relieved from the speculative Business of Legislation, which they willingly committed to the King and his Judges.
But as greater Refinement took Place, they not only asserted their Right of Assent to Acts of Legislation, but, while their Influence was predominant, they, in fact, bid open Defiance to the Crown.
The Commons seem at first, among other Reasons, to have been opposed as a Counterbalance to their exorbitant Power: And they naturally adhered to the Sovereign, from Aversion to the Barons, who were no less their Oppressors, than Opponents to the Crown.
​The Commons were for a long Time, nevertheless, so far from being considered as essential Branches of the Legislature, that even after they were unquestionably restored to Parliament, yet we find that they were not constantly and regularly summoned as a distinct Order, the Sheriffs omitting them at Pleasure; and the King sometimes, in the Writ of Summons, expressly naming the Representatives which the Sheriffs were to return.
Their Attendance was, for a long Time, deemed a Burthen both to Representatives and Constituents; and though after Election the Members gave Security for their Attendance, yet it is common to find the Parliament adjourned, because many of the Commons were not come, nor the Writs returned.
In most of the antient Statutes, they are not so much as named: And in several, even where they are mentioned, they are distinguished as Petitioners merely, the Assent of the Lords, being expressed in Contradistinction to the Request of the Commons.
One of the principal Causes, however, of their being summoned, which was to procure their Consent to the levying of Taxes, naturally contributed to extend and enlarge their Influence; for, after they had granted Supplies to the King, in which they were sometimes emulously and ostentatiously liberal, they reasonably expected some Return for their Liberality. Accordingly, after having provided for the King's Necessities, they took Occasion to present Petitions for the Redress of Grievances; from which Petitions, most of our early Statutes are framed. This Method of framing the Acts, seems to have taken rise from near the Beginning of the Reign of Ed. III. For, till then, the Acts were drawn up in the Form of a Law, in the first Instance; but, from that Time, the Petition, with the King's Answer, was entered on the Parliament Rolls, and from them, by Advice of the Judges, and others of the King's Council, the Act was framed, and for the most part entered in a Roll called the Statute Roll, and the Tenor thereof affixed to Proclamation Writs, directed to the several Sheriffs to proclaim it as a Law in their respective Counties.
Many Acts, however, though undoubtedly valid, were not entered on the Statute Roll: For if the Bill did not demand Novel Ley, that is, if the Provision ​required would stand with the Laws in Force, and did not tend to change or alter any Statute then in being, in such Case the Law was compleat by the Royal Assent on the Parliament Roll, without any Entry on the Statute Roll: And such Bills were usually termed Ordinances, being such as might at any Time be amended by the Parliament without any Statute; whereas one Statute could not be altered but by another: And this Distinction is clearly expressed in the Rolls here-under cited.
When the Commons had obtained Answers to their Petitions, such as were granted were framed into Acts, and frequently passed, without their Concurrence or Inspection. And their Assent, though an undoubted Right, was so far from being indisputably established in Practice, that we find it disputed in the most essential Points, and arbitrarily over-ruled during the Reigns of Edward III. and Richard II.
​Nevertheless the Commons, in the Reign Rich. II. had gained a very considerable Ascendancy; for, in the first Year of the succeeding King, they even attempted to share with the Lords in their judicial Capacity: But the Archbishop of Canterbury, by the King's Command, told them, that "they were only Petitioners; and that all Judgments appertain to the King and to the Lords, unless it were in Statutes, Grants, Subsidies, or such like; the which Order the King would have from that Time to be observed."
By this concluding Exception, we find the legislative Right of the Commons expressly acknowledged in Terms, yet it was still so little regarded in Practice, that it was again invaded the very next Year: And the 2d of Hen. IV. c. 15. was passed, though the Commons never assented to it, but, on the contrary, disavowed it. The Force of that Act, nevertheless, was felt till the Reigns of Hen. VIII. and Ed. VI. Nay, afterwards, in Mary’s Time, till its final Repeal in the Reign of Queen Elizabeth. Instances of this Kind probably gave Birth to the Petition in the 8 of Hen. IV. when "it was enacted, at the Request of the Commons, that certain of the Commons House should be present at the engrossing of the Parliament Roll."
But, notwithstanding these Securities, Acts still continued to be passed without the Commons Assent; and they were, from Time to Time, compelled to renew their Claim of Right in this Behalf, which they did in 2 Hen. V. in the following strong Terms.
"Oure Soverain, your humble and trewe Leiges that ben come for the Comens of your Lond, by seeckyn onto your rigt Wissenesse. Tha soo as hit hath evere be thair Libertie and Freedom, that thair should be no Statut no Lawe be made of lasse than they yaf thereto thair Assent, confideringe that the Coē of your Lond, the whiche that is, and evere hath be a Membre of your Parlement, ben as well Assentors as Peticioners: That fro this Tyme foreward, by Compleynte of the Comens of any Mischief, axhinge Remedie by Mouthe of their Speker for the Comens, other else by Peticion writen, that ther nevere be no Lawe made thereuppon and engrosed as Statut and Lawe, nother by Addicions, nother by Dimunucions, by no Maner of Terme ne Termes, the whiche that sholde chaunge the Sentence and the Intente axhed by the Speaker Mouthe, or the Peticions bifore faid, yeven up yn Wrytyng, by the Manere forsaid, withoute Assent of the foresaid Comens, consyderinge oure Soverain Lord, that it is not in no wyse the Entente of oure Comens, gif hit be so that they axhe you by spekyng or by writyng too Thynges or three, or as manye as theym lust, but that ​evere it stonde yn the Fredom of your high Regalie, to graunte which of thoo that you luste, and to wernnethe Remanent."
To this the King gave the following Answer. "The Kyng, of his Grace especial, graunteth yat fro hensforth nothing be enacted to the Peticions of his Commune, yat be contrarie of hir askyng, wharby they shuld be bounde without thair Assent, savyng alwey to our Leige Lord his reall Prerogatif, to graunte and denye what him lust of their Peticions and askynges aforesaid."
Before this Petition, it was usual, upon entering the Bill on the Statute Roll, to make Additions, Diminutions and Alterations, whereby the Act was made to vary materially from the Substance of the Commons Petitions, and sometimes framed directly contrary to their Sense and Meaning. Several Instances of this Kind occur on the Rolls; but it will be sufficient to mention one, which is extremely remarkable, viz. the 36 Ed. III. stat. 1. c. 15. providing that all Pleas shall be pleaded in the English Tongue, which is the Purport of the Petition on the Parliament Roll; but on the Statute Roll, we find these Words added—"And that they be entered and inrolled in Latin," &c. which Words are not on the Parliament Roll.
Nevertheless this Bill of the 2 Hen. V. did not wholly remove the Evil; for many Inconveniencies still arose, from the Method of extracting and drawing up the Statute, from the Petition and Answer on the Parliament Roll. To remedy which, about the End of Hen. VI. and the Beginning of Ed. IV. the Practice was introduced, or rather revived, of reducing the Petitions, even in the first Instance, into the full and compleat Form of Acts of Parliament, which were commonly entered in this Form—Item Quædam Petitio exhibita suit in hoc Parliamento Formam Actus in se continens.
This Form prevailed many Years, but the Title at length was disused, the Method, in other Respects, still continuing the same as it is at present, the Bill being drawn up, in the first Instance, in the Form of an Act, and brought to the Sovereign for his Assent.
The Power of the Commons, however, in these and the succeeding Reigns, was daily increasing; and the civil Wars between the Houses of York and Lancaster, contributed to extend their Influence. For Competitions of this Nature, however fatal to Individuals, never fail of adding Weight to the Body of the People. In ​all contested Titles, they are courted by each Party, and whoever prevails, is directed by Policy to have his Title recognized by them, and to secure the Continuance of their Favour and Support, by some Enlargement or Confirmation of their Privileges. Add to this, that the Power of the Nobility beginning to decline, they were glad to gain the Commons to their Party, which farther extended the Influence of the representative Body.
During these Contests, however, when civil Rights were so far from being established, that the primitive Rights of Justice and Humanity were daily violated, the Business of Legislation was variously and irregularly conducted, both in Form and Substance. And there seems to have been no settled Precedent for penning the enacting Clauses, till the 13th of Charles II. stat. 2. c. 2. when the Form now in Use first took Place.
Our Judgment, however, with regard to the antient Acts, ought to be guided by the Practice of those Times; and it would, with Submission, be very unreasonable to deny the Validity of any of the antient Statutes, upon the Principle laid down in the Books; that is, because the Assent of the Commons is not expressed; since it is evident, that their Assent, after it was allowed in Terms, was often over-ruled in Practice: That where we may safely presume their Assent was given, it frequently was not expressed in the Act: And that there was not any settled Form of declaring the Concurrence of the several Estates of the Kingdom.
IT remains now, in farther Support of the early Statutes, to take Notice of some more extensive Objections, which are not levelled against the Authority of any particular Act, but are calculated to overthrow the Statutes in general of several whole Reigns. Of this Nature are the Principles maintained by the anonymous Author of a Treatise, intitled, "The hereditary Right to the Crown of England asserted" who hath boldly objected to all the Laws passed during the Reigns of those Kings, whom he stiles Kings de facto, on pretence that they are voidable: And as an Instance that they lost their Force for want of Confirmation, he hath cited 10 Hen. VI. which Ed. IV. refused to confirm.
This strange Reasoning has been contraverted by Mr. Cay; but as that Gentleman, in the Course of his Animadversions, has advanced some Principles which are ​at least contravertible, it may not be improper to re-consider the Subject, and to endeavour, at least, to throw some additional Light on those disputable Points.
In Answer to the Instance of the 10 of Hen. VI. cited in the Treatise above mentioned, Mr. Cay argues as follows:
"There does appear," saith he, "upon the Parliament Roll of the 10 Hen. VI. a Petition and Answer for the Purpose of the Payment of the Judges Wages, which I suppose the learned Author would insist was the Act of Parliament that was refused to be confirmed. But it will be hard to draw any Inference of Weight from hence: It is plain, that antiently Acts of Parliament had not the Royal Assent compleat, till they had it under the Great Seal. The King's Answer in Parliament was a full Warrant to the Lord Chancellor, to draw it up upon the Statute Roll, and put the Great Seal to it; but till that was done, it had not (antiently) the Force of a Law to bind the People. Many Bills are entered on the Parliament Roll, with the Answers to them, but with a Respectuatur also: And I think none of these are reputed to have the Force of a Law. Dissimulavimus sicut opportuit, & dictum pretensum Statutum Sigillari permisimus illa vice, are the Words of King Ed. III. 15 Ed. III. Stat. 2. See also 4 Hen. IV. c. 13. and 25 Hen. VIII. c. 20. § 2.; and Mayn. Ed. II. fol. 265. Now this Act of 10 Hen. VI. Stat. 2. never was drawn up into a Statute, nor sealed as such, but has a Respectuatur entered against it; so that if King Henry had continued in Possession of the Crown, this Act would have stood in Need of a re-enacting Force, even in his Reign, as well as in the Reign of Ed. IV." So far Mr. Cay.
Now should we admit the general Doctrine here endeavoured to be established, it would tend to invalidate the Force of some old Statutes, which have, by great Authorities, been deemed unquestionably binding. If we consult the Parliament Rolls, whereon the Petitions of the Commons are entered with the Kings Answers, we shall find, that, to Petitions of a public Nature, the King's Assent is entered in these Words, Le Roy le voet. By such Answer, the Royal Assent was compleatly given, and the Bill acquired the Force of a Law, before it passed the Great Seal, and was entered on the Statute Roll. If the Distinction may be allowed, we might say that the Parliament Roll contained the Substance, and the Statute Roll, the Form of the Law. When entered on the latter, the Tenor of it, as hath been observed, was affixed to Proclamation Writs, which were directed to the several Sheriffs, commanding them to proclaim the Act as a Law in their respective Counties: But the Act, especially if it did not require Novel Ley, as above explained, was in all Respects valid, before such Entry and Proclamation; in the same Manner as an Act at this Day, after the Royal Assent given, is a compleat Law, before it is printed: For Printing comes in Lieu of the antient Promulgation by the Sheriff. And such Method of Proclamation heretofore used, was, as Lord Chief Justice Holt observes, but a mere Act of Grace. If an Offence, therefore, had been committed against an Act of Parliament, before Proclamation, the Offender had been at the King's Mercy, and he could not have pleaded Ignorance of the Law: For this manifest Reason—Because all Persons are bound to take notice ​of Acts of Parliament, they being supposed to be present at the enacting of them, either in Person, or by their Representatives.
The Point, however, concerning the Validity of an Act, extant on the Parliament Roll only, and not entered on the Statute Roll, was very amply discussed at the Trial of the Earl of Macclesfield. On that Occasion, the 11 Hen. IV, which was entered on the Parliament Roll only, was produced, and strongly insisted on by the Council against his Lordship, in their Reply. Serjeant Pengelly, in particular, maintained that the Parliament Roll was the Original, as being the Warrant for the Statute Roll, and therefore of greater Authority. In which Principle he was, in Substance, afterwards supported by Mr. West.
After much Litigation on this Head, a Question was proposed by Mr. Onslow, which decided the Matter in Controversy. The Question was, Whether the King's Assent was not entered on the Parliament Roll? To which Mr. Holmes, the Keeper of the Tower Records, and the Person then giving Evidence, answered,—That it was entered, in these Words,—"Le Roy le voet;" which manifestly proved that the Royal Assent was compleat, and that the Act under Consideration had the full Force of a Law.
Upon this Occasion, the Point concerning the Respectuatur also came under Debate: For the Earl, among other Objections to the 11 Hen. V. would have inferred its Invalidity, from the Circumstance of its being entered with a Respectuatur per Dominum Principem & Concilium. But this Objection did not prevail, and it was insisted that the Respite given by these Words, did not destroy its Operation.
Concerning the Authorities cited by Mr. Cay, it is to be observed, that with respect to the 25 of Hen. VIII. c. 20. though it is a Confirmation of the 23 Hen. VIII. concerning Restraints of Payments of Annates, &c. yet this Confirmation was made ​in Pursuance of a Power specially given by a Clause in the said Act, of the 23d, enabling the King, within a limited Time, to declare, by his Letters Patent, whether it should take Effect as an Act, or not.
As to the Words of Ed. III. Dissimulavimus, &c. they ought to be buried in Oblivion; and in Truth it is manifest, from the foregoing Observations, that no conclusive Argument can be deduced from this Confession, so inglorious to Majesty.
Concerning the 4 of Hen. 4. c. 13. which confirmeth the 1, 18, and 25 of Ed. III. nothing can be inferred from thence, that those Statutes had not the Force of a Law, before their Confirmation: For it is well known, that, according to the simple Policy of antient Times, when Laws were not duly observed, they could devise no better Expedient of enforcing them, than by re-enacting them with Clauses of Confirmation. But such Confirmations are no Evidence that the Acts, till then, had not the Force of a Law. The Great Charter hath been confirmed more than thirty Times, yet no one will infer from thence, that it was not a compleat Act in the first Instance. In Truth, the Confirmation of an Act did not add to its legal Efficacy, but, by bringing it more recently to Memory, under the Authority of the Legislature, was thought to make the Dread of Non-Observance the greater.
In the Year-Book of Mayn. Ed. II. it must be confessed that an Objection is there made to the Expositions of the Statute of Gloucester, because they were not under the Great Seal. But this appears to have been an Objection obiter, and nothing was determined on that Point. If any Determination, however, had been made, respecting its Invalidity, yet, it would not have sufficient Weight to overthrow subsequent Authorities.
With regard, however, to the principal Question arising on this Act of 10 H. VI. the Premisses on which the Author of the Treatise above named resteth his Argument, do not warrant his Conclusions. The Denial of Confirmation, saith he, was equivalent to annulling or declaring it void. But this Inference by no Means follows. For an Act once valid, can only be made void, by an express Repeal: And a bare Refusal of Confirmation, only leaves the Act in the State wherein it stood before.
​HAVING thus endeavoured to obviate the Objections which have been made to the Validity of several Acts printed in former Collections, and continued in this, it may be proper to take Notice of a Complaint, frequently made concerning the vast Multiplicity of our Statute Laws, which has been deemed the Occasion of such Confusion and Perplexity, that a Proposal to reduce their Bulk, was long since recommended to the Parliament from the Throne itself, at a Time when the Statute Laws of this Kingdom, were not an Eighth Part so voluminous as they are at present.
It hath been observed, that in early Times former Laws were considered no longer in Force, than as they were preserved in the last Publication; and by this Means, it is said, the Laws were kept within narrower Bounds, until they were greatly enlarged, both in Number and artificial Construction, by King Edward I. .
This Method, it may be allowed, was well adapted to prevent the Statute Code from swelling to an inconvenient Size; but it may be worth while to consider, whether, had this Practice been continued, it might not, in some Respects, have proved of Prejudice to Posterity.
If, upon the Promulgation of a new Law, all former Laws thereby superseded, had been consigned to Oblivion, how many curious and useful Pieces of Antiquity would have been lost; and how many Lights to Jurisprudence would have been utterly extinquished! If all the Laws which have been altered or repealed by subsequent Acts, or which, being grown old by the Introduction of new Habits and Customs, do not agree with the present State of the Times, were to be left out of our Statute Books, how greatly would Posterity be at a Loss to account for several Institutions, which are only to be explained by Reference to those venerable Relicts of Antiquity!
It may be a Question therefore, whether an Attempt to contract the Bulk of our Statute Code by such Expedients, might not prove an Innovation more dangerous than useful; there being many repealed and obsolete Acts, which though they do not govern, are yet very proper to guide; as they frequently contain Matter of ​curious Learning, and may often serve the Purpose of historical Proof and illustration.
It is indeed to be lamented, that our Penal Laws are so numerous; but perhaps this is an Inconvenience unavoidably resulting from the wide and extensive Concerns of a commercial Kingdom. Though a State confined within a narrow Sphere of Action, may be very vicious, yet the Modes of Vice will not there be greatly diversified: Offences will multiply, as the Pursuits and Occupations of Mankind grow more various and diffusive: And in a Kingdom so jealous of its Liberty, as to leave as little as possible to discretionary Power, every Offence must be precisely described, therefore it is well observed by Montesquieu, that the Multiplicity of our Laws is a Price we pay for our Freedom.
On this Occasion, however, it may not be improper to observe, that our Statute Laws, with respect to criminal Offences, seem to breathe too much the Spirit of Draco’s; all Degrees of Offence being confounded, and all Proportion of Punishment destroyed: Whence many Delinquents are, with cruel Precipitancy, hurried out of the World for slight Transgressions, who, by prudent and adequate Correction, might be made useful to themselves and to Society.
Men bewildered in the Maze of Stoic Sophistry, may revolt against the obvious Principles of Nature, and contend for the Necessity of commutative Justice: But Reason evidently declares, that Punishments should, as nearly as possible, bear Proportion to the Offences committed: And though this Rule cannot, in some Cases, be strictly adhered to, yet it ought, in general, to be the guiding Principle.
—————————————— Adsit Regula, peccatis quæ pœnas irroget æquas: Nec scutica dignum, horribili sectere flagello.
Experience sufficiently evinces, that extraordinary Severity has never produced any lasting Effect. It has indeed been sometimes found to check the Evil for a Time, but then, as Montesquieu observes, it has returned with the same Violence as before. To render the intended Effects permanent, the Laws should be adapted to the Genius of the People, and the Nature of the Constitution: And it would be a Task well worthy the Wisdom of the Legislature, so to model them that they may better answer the true Ends of Government, which are to prevent, rather than to punish Crimes.
​Perhaps many other Amendments might likewise be made by legislative Authority: And many Irregularities in the Frame of our Statutes might be corrected without any Hazard of Inconvenience. Several Laws enlarged, explained, continued or revived by subsequent Statutes, might be reduced into one Act: And where various Matters, in no wise relative to each other, are comprized in the same Statute, they might be digested and classed under their proper Heads.
IN the present Edition, some Attempts have been made, which may, perhaps, in no small Degree, obviate the abovementioned Inconveniencies, resulting from the confused and irregular State of our Statute Law.
With a View to this End, great Care has been taken to correct the Errors, and supply the Defects in former Collections, by rectifying many mistaken and imperfect References, and by specifying the Operation of the Acts referred to; that is, by distinguishing whether they repeal, enforce, explain, amend, continue, or revive the Act under Consideration. Moreover, where the Statute referred to contains Matter relative to Subjects of different Natures, the Reader is directed to the very Section which regards the Object of his Inquiry: And for the Sake of greater Accuracy, particular Attention hath been paid to place the Act referred to where it hath been found practicable, directly opposite to the Clause affected by the Reference. Many thousand new References likewise are added in this Edition, which, are brought down to the present Time, in a progressive Chain; and also traced upwards in Chronological Order, by which Means the Reader will have the Statute Law relative to the Subject of his Pursuit, under his immediate Inspection.
Such a connected View will obviate the Fatigue and Difficulty of tedious and intricate Searches. By this ready Method of comparing subsequent Statutes with those preceding, the Reader may see how the Law stood at successive Periods, may perceive wherein it was ineffectual, and, by attending to the progressive Alterations and Amendments which have been made, he will be more easily led to the true Meaning and Design of the Acts under his Consideration.
It is to this End likewise that many Statutes, though obsolete or expired, are, in this Edition, inserted at length, in their proper Order of Time, which are only abridged in the later Editions. Of this Kind are the 1st of Rich. III. c. 1. concerning Acts of Cestui que use; the 34 and 35 Hen. VIII. respecting Bankrupts; and also the 39 Eliz. c. 3. relative to the Poor Laws, with several others which seem to be of Use to give the Reader a connective Idea of the successive Provisions of Law on these material Heads. By having the Statute at large before him, he has the Benefit of the Preamble, which, as Lord Coke observes, is a good Guide to discover the Meaning of the Act, or rather a Key which opens to the Knowledge of it: and it is a Rule of Law, that the Preamble must be taken for Truth. The Preamble generally sets forth the Mischief intended to be remedied, and, by having the ​Chain of Acts under his Eyre, the Reader may perceive how the Remedy operated, and how it was counteracted, by which Means he will be better able to judge of the full End and Scope of the Legislature, with respect to the Subject of his Inquiry. It has been thought proper likewise to insert at length, in its proper Order, the Act. of the 13 Eliz. for making the River Lee navigable; as also the 12 Geo. II. for improving its Navigation, a great deal of Property being secured and governed by those Acts.
In this Volume nevertheless, the Reader will observe, that, of some antient Statutes, which are printed at length in the last Edition, the present Editor hath inserted the Titles only, referring to the Appendix or additional Volume, where the Statute will be given at large. As the Acts thus referred to, contain Matter mostly of Curiosity, which can be of Service only to the learned Researchers into Antiquity, it was judged proper to reserve them for the Appendix, in order to relieve those who read solely with a View to Information in the practical Part of the Profession, from the Incumbrance of antiquated Materials, totally useless with relation to their Pursuits. Such therefore may, either take or leave the additional Volume, as their Inclination shall direct them.
Concerning the Statutes in general which are repealed, obsolete, or expired, they will be carefully distinguished by particular Marks; several obsolete Terms likewise will be explained: And as many repealed and obsolete Acts, as hath been observed, contain Matter of curious Information, and frequently serve to explain and illustrate obscure and difficult Passages in History; therefore all such as appear most useful in these Respects, will be printed in the Appendix; except they are in their Nature connected with some material Head of Inquiry, such as the Act of Cestui que use, 1 R. III. c. 1. and others above mentioned, in which Case, they will be inserted in their proper Order of Time.
With respect to the Turnpike Acts, the Plan pursued in former Editions will be followed in this. With regard to the Land-tax Acts, a different Method will be observed: For, in former Editions, even of the first Act of this Kind, the Title only is printed, though it governs the subsequent Acts, and though Assessments are made from it. But in the present Edition, the first Act will be given at large, and of the subsequent Statutes of the same Kind, Abstracts only will be made; except where any Clause occurs, which varieth in Substance from the prior Acts: In which Case, such Clause will be inserted at length. The same Plan will be pursued with respect to the Malt-Tax, and other annual, Acts.
​With regard to the Order of Time in which the Acts are printed, the Editor hath adhered to the Plan of former Editions, though perhaps, in many Instances, the Years of the King's Reigns are not rightly stiled. The Statute de Conspiratoribus, for Example, is printed not only in Serjeant Hawkins’s, and Mr. Cay’s but in all the old Editions, as the 31 Ed. I. Nevertheless it hath been said, by great Authorities, to have been made in the 21st. Many Statutes likewise passed in a Sessions which began one Year, and continued to another, are stiled Acts of both Years, which in Strictness perhaps should have been stiled Acts of the first Year only. All Statutes refer to the first Day of the Session, unless it is otherwise provided by the Act. Upon this Principle, it hath been held by the Court, with respect to the 22 and 23 Car. II. c. 20. that the printed Statute is false, and that it was an Act of the 22d Car. II. For though the Session extended into both Years, yet it commenced the 24th October, 22d Car. II. consequently was an Act of that Year. The Editor, however, has rather chosen to adhere to the stile which has been so long in Use, that it may be deemed communis error, than take upon himself the Charge of rectifying such Inaccuracies.
In a Collection of this Extent and Importance, an enlarged, perspicuous and correct Table, is one of the most essential Requisites; therefore the Editor proposes to make a new Table or Index, alphabetically arranged. In this Table, which will be annexed to the End of the VIIIth Volume, many general Heads, omitted in former Editions, will be supplied: Many particular Articles likewise will be added, which are not taken Notice of, under the general Heads inserted in prior Editions; and Endeavours will be used to arrange the whole with such Order and Perspicuity, that the Reader may be enabled to find all the Laws at one View, on whatever Subject he may have Occasion to turn his Attention.
Here it may not be improper to take Notice, that many Statutes printed in former Editions, and continued in this, have been held, by Writers of great Name, not to be of Record. Of these, the Reader will find a long List in Coke’s 4 Inst. c. 1, Lord Hale’s Hist. of the Common Law, and the Table to Cotton’s Abridgment. Most of them however have, by the Diligence of later Inquirers, been found to be upon Record.
With respect to those mentioned by Lord Coke, Prynne observes, that all of them, ​excepting the first concerning the Judges Oath, though not to be found on the Parliament Rolls of the respective Kings, are yet to be seen at large on the Statute Rolls of these Years: And indeed they are all, except the Judges Oath, printed in Mr. Cay’s Edition, Ex Rot. in Turr. Lond. Concerning the Judges Oath, Prynne remarks farther, that it was not printed in but before the Parliament: And from several subsequent Statutes, which take Notice of this Oath, he presumes, not without Reason, that it was of Record, though not now to be found.
As to the Acts mentioned by Lord Hale, his Lordship saith, with his usual Candour and Caution, that they are not of Record, that he knows of: And, from the Note underneath, the Reader will perceive, that the learned Judge had good Reason to speak with Diffidence. Nevertheless, as his Lordship and others have observed, it is no Impeachment of the Validity of an antient Statute, that it cannot to be found upon Record: And it has been held, that nul tiel Record cannot be pleaded to the Allegation of any such Statute: For an Act of Parliament made within Time of Memory, loseth not its Force, because not extant on Record: Since, of general Acts of Parliament, the Courts of Common Law are bound to take notice without pleading of them; and such Acts shall never be put to be tried by the Record, upon an Issue of nul tiel Record, but they shall be tried by the Court, who are to use, for their Information, antient Copies, Transcripts, Books, Pleadings, and Memorials: For, if the Authority of a public Statute, could not be maintained without the Original Record, it would be in the Power of any one, who could destroy such Record, in Effect to repeal the Statute itself. Therefore such Defects are salved by traditional and universal Reception.
As there are some Statutes however in Print, which are not to be found upon Record, so there are several upon Record, which have never yet been printed. Lord Coke has enumerated many of this Kind, but the Reader will meet with ​several in the Appendix to this Edition, not taken Notice of by his Lordship, or to the Editor's Knowlege, by any other Person whatever; of which some contain Matter of great Use, as well as Curiosity.
It now remains to say something with regard to the Translation. It has been observed by Mr. Serjeant Hawkins, that the old Translation hath obtained a kind of prescriptive Authority: And, he adds, that it is easy for the Reader to correct the Mistakes in it, by the Help of the Original. But, with Deference to the Serjeant's Sentiment in this Respect, it must be observed, that the Translation is intended for the Benefit of those who are not qualified to resort to the Original; therefore the Editor hath ventured to correct such Mistakes as were most obvious in the old Translation, and hath endeavoured throughout to make it more conformable to the Original. In the early Statutes, the Errors of the Version are exceedingly numerous more particularly in the Statute de Officio Coronatoris. In many others likewise, the Reader will perceive frequent, and very material Mistakes. Nevertheless, as it might justly be deemed Presumption to alter the old Translation, which, by long Use, hath acquired a kind of prescriptive Authority, it hath been Judged proper to leave the Text, as it stands in former Editions, and to insert the proposed Amendment in the Margin, whereby the learned Reader will be able to determine for himself, and may either adopt or reject the Marginal Alteration, as his better Judgment shall direct him.
The Editor hath observed the same Method throughout; having every where left the Text, as it is printed in the last Edition, and inserted in the Margin such Alterations and Additions as he hath thought proper to make, which are distinguished by an Italick Type. He rather chose to adopt this Plan, that the Errors and Inaccuracies, which may have escaped from his Pen, may be more open to Detection. The Reader, therefore, is apprized, that, for every Word printed in Italicks, the present Editor stands accountable.
OWEN RUFFHEAD.
* ↑ Many of the penal Statutes only enact that the Offender shall be punished at the King's Pleasure; some, that he shall make grievous Ransom to the King: And others are merely prohibitory, or admonitory.
* ↑ See Maddox's Hist. of Exchequer.
* ↑ It sems to be an indispensable Duty of an Editor, to give some Account of the Forms in which our antient Acts were passed; since, without this previous Knowledge, many of them will be very imperfectly understood; such as Articuli Cleri, and others, which do not bear the Form of Statutes. In order however to explain the antient Method of passing Bills, we must necessarily take some Notice concerning the respective Influence of the several Orders of the State at different Times: An Inquiry which has been greatly obscured by the partial and Interested Zeal of the Writers of the last Century, who, by attempting to prove too much, have, on both Sides, fallen equally short of Conviction. The Editor therefore has been cautious of advancing any thing on this Subject, not warranted by the Evidence of the antient Records.
* ↑ 4. Hen. 7. 18. Pl. 11. 8 Coke 20, 21. Moor 824. Pl. 1112. Co. Litt. 159. b. Hob. 111.
* ↑ Dyer 144. p. 60.
* ↑ 1 Inst. 159. b.
* ↑ 8 Co. 20. b.
* ↑ What farther proves the Authority of the Act in Question, is its having been referred to, and in Part recited, as a Statute in Force, by the Legislature itself; for in the 22 H. 8. c. 10. describing certain Offences, it is thus expressly declared, "That in the Inquest that shall pass between the King and any such Party shall be altogether of Englishmen," albeit that the Party so indicted pray Medietatem Linguæ, according to the Statute of Anno 8 Henrici 6. or any other Statute thereof made.
* ↑ Throughout the Reign of Ed. I. the Assent of the Commons is not once expressed in any of the enacting Clauses; nor in the Reigns ensuing, till the 9th of Ed. 3. nor in any of the enacting Clauses of 16 R. 2. Nay even so low as H. 6. from the Beginning till the 8th Year of his Reign, the Assent of the Commons is not once expressed in any enacting Clause.
* ↑ Co. 20. b.
* ↑ Many have undertaken to prove that the Commons were constituent Members of the British Great Council. Of this Opinion is Lord Coke, Pref. to 9th Rep. Petyt likewise adopts the same Notion on the Authority of Dion Cassius, who assures us, in the Life of Severus, that apud Britannos Populus magna ex parte Principatum tenet. But the Word Populus here, according to Brady, can only mean the great Men or Leaders; since Tacitus in the Life of Agricola, long before the Time of Severus, informs us that Britanni olim Regibus parebant, nunc per Principes factonibus & Studiis trahuntur.—Brady however seems to have mistaken the Sense of this Passage, which he translates, or rather amplifies thus. "In Times past, the Britains obeyed their Kings, and lived under Monarchy; now they are drawn into Factions and Parties by their Chiefs and great Men." From the Words in Italicks, which are not to be found in the Original, may be inferred, what Brady indeed supposes, that the Britains no longer lived under Monarchy, but had degenerated into a Populacy, or, as he expresses it, a Compound of Aristocracy and Democracy. Whereas the Fact is, that the Britains, at that Time, lived under their Kings; and the Historian, within a few Pages of the Passage cited, speaks of King Cogidunus and Queen Voadicea. Brady, with some others, seems to have been betrayed into this Misconstruction, by taking the Words Regibus and Principes as opposed to each other; Whereas the Opposition is between the Words Parebant and Factionibus trahuntur. See the Annotator on the Amsterdam Edition of Tacitus.—It is observable that the learned Spelman has fallen into the same Error: For, after quoting the above Passage from Tacitus, he says, "Vides in hisce Consillis nec Regis adesse Presentiam, nec Authoritatem." An Inference by no Means deducible from the Words of the Historian. See Spelm. Gloss. Voce Parliamentum.—Some, who have treated of this Subject, tell us that the Members of the British Councils were their Edl ns, who were of princely Race: Together with the Governors of Districts and Lords of Villages. But this Inquiry is involved in such Obscurity, that perhaps it is not safe to form any positive Conclusion.
* ↑ They are expressly named in the Wittanagemot held by Ethelwolf in the Year 855, when a Tenth was given to the Church by the King, cum Thanis, Baronibus, & populo. They are again expressly named in the 8th Law of Edward the Confessor. And in the 35th Law, we find the Assent of the People expressed as follows. Hoc enim factum fuit per Commune Consilium & Assensum omnium Episcoporum, Principum, Procerum, Comitum, & omnium Sapientum Seniorum, & Populorum totius Regni.
* ↑ The Folcmote was of two Kinds; the Folcmote Comitatus, or Shiremote, and the Folcmote Civitatis vel Burgi, that is, the Burgmote. The former was an yearly Assembly of the People of all Ranks, in the Nature of an annual Parliament, and the Laity there took the Oath of Fealty, before the Bishops: At these yearly Meetings likewise, they consulted for the common Safety about Peace and War, and to promote the Public Good. Besides these annual Meetings, if any sudden Contingency happened, it was the Duty of the Aldermen of Cities and Boroughs to ring the Bell called in English Motbel, in order to bring the People together to the Burgmote, that, by their Common Council, they might provide for the Security of the Crown, and take Measures to suppress the Insolence of Malefactors. See the 35th Law of Edward the Confessor.—It is probable that the Resolutions taken at these annual Meetings were discussed and finally concluded at the Courts de More, which, according to the Institution of Alfred, met at the three great Festivals of Easter, Whitsuntide and Christmas. These Courts de More were sometimes called the Ealra Wittanagemot, or Meeting of all the Wisemen. As to the Wittanagemot, though it was composed of the same Orders in respect of Rank as the Ealra Wittanagemot, yet it appears to have been only an occasional Assembly of some chosen Members, summoned when any Emergency happened in the Intervals of the three great Festivals.—Sir Hen. Spelman, Voce Gemote, saith, "that the Wittanagemote differed little from the Folcmote, except that the latter was annual, and for the most Part summoned on certain Occasions; whereas the former was called at the Will of the Prince, upon arduous Contingencies, and for the Sake of making Laws." But a great Part of this Distinction vanishes, since we find from the Law above-mentioned, that the Folcmote also was summoned on arduous Contingencies. Indeed Sir Henry does not seem to have treated this Subject with his usual Accuracy and Perspicuity: For after having observed, that at the annual Folcmotes, the People consulted about the public Safety, about Peace and War, &c. he adds—"Adhibetur præterea Folcmotum in repentino omni Discrimine: Exigente etiam necessitate sub Aldermanno (hoc est, Comite) cujuslibet Comitatus." Here we find that he erroneously makes the Folcmote on extraordinary Occasions, to be sub Aldermanno Commitatus; whereas it appears from the Law above cited, that it was sub Aldermannis in Civitatibus & Burgis. But to enter into these Minutiæ of the Saxon Constitution, would require a Volume by itself.
* ↑ Elsyng, Petyt, Hackwell, Sadler, Harrington, Dugdale, Lombard, Lord Coke, and others. Lambara, Lord Coke, and many others, rely on the Authority of the old MSS. Modus tenendi Parliamentum, which is rejected as spurious by Selden and Prynne. ☞ There are several Copies of this MSS. Modus, among the Cottonian Manuscripts in the British Museum, which materially differ from each other: And though there is good Ground to suppose that it is not so antient as its Title imports, yet supposing it to have been made even so late as the Time of Edw. 3, as Selden conjectures, yet it may serve to express the Sense of those Times with respect to the Rights of the Commons, to which they were willing to add the Sanction of Antiquity.
* ↑ Dugdale and Lambard conclude very strongly, that the Commons were represented among the Saxons; and the latter produceth a very cogent Reason in support of this Opinion. For, saith he, many antient and long since decayed Burroughs do send Burgesses to Parliament, though it cannot be shewn that those Burroughs have been of any Reputation since the Conquest, much less that they have obtained the Privilege by the Grant of any succeeding King; So, on the contrary, they of antient Demesne do prescribe in not sending Burgesses to the Parliament; which Prescription proves that there were some Burroughs before the Conquest, which did send Burgesses. See Dugd. Orig. Jurid. and Lombard’s Archæon, or Discourse on the High Courts of Justice. The Reader will find the same Arguments in Lord Coke’s Preface to his 9th Report.—Upon the whole, there seems to be the strongest Reason for concluding that the People had a Share in the Administration of the Saxon Government, though it is not easy to ascertain the Forms in which they exercised their Rights. It is not improbable that their Folcmote answered, in some Respects, to our House of Commons: That their Ealra Wittanagemot bore Resemblance to the House of Lords: And that their Wittanagemot was somewhat in the Nature of our Privy Council. But after all perhaps, it is more discreet to confess our Ignorance in these Points, than to form uncertain Conclusions, or hazard vain Conjectures.
* ↑ Under the Saxon Monarchy, the Possessions of the great Thanes were so immense, that they were not only called Reguli, or petty Kings, but in Effect they exercised a Kind of regal Authority within their several Jurisdictions. The Saxon Policy likewise contributed to increase and confirm the aristocratical Power. For, if a Clown obtained a certain Portion of Land, that is, five Hides, he became a Thane; if a Merchant crossed the Sea thrice on his own Account, he rose to the same Honour. And if a Thane improved his Estate to the Amount of an Earldom, then he became an Earl. Though Instances of such Advancement might not probably be very frequent, yet, it is easy to conceive, that, under a Government, where a certain Portion of Property alone, stamped the Rank of Nobility on the Possessor, the Influence of the Burgesses or Commons must be extremely low. The same Law, which gave Encouragement to Trade, proved injurious to Liberty, by its Tendency to increase the Power of the Aristocracy.
* ↑ See Wright's Tenures, where the Authorities concerning Introduction of feudal Tenures are candidly and accurately stated.
* ↑ The Frauds and Impositions in collecting the Scutages and other feodal Revenues, was perhaps among the Causes of restoring the Commons, in order to procure their Assent to such Taxes as were proposed to be levied on them.
* ↑ This Policy is generally attributed to King Stephen.
* ↑ It is well observed by Brady, that it does not appear by the Writ, whether the Sheriffs, or the Counties, were to elect these Knights. The Mandate to the Sheriffs being only Quod venire faciant. It is observable likewise, that these Knights seem, for some Time, to have been considered as a distinct Order from the Commons; as maybe inferred from the 10 Ed. 3. where it is said, "The King hath perceived, at the Complaint of the Prelates, Earls, Barons, and also at the shewing of the Knights of the Shires, and his Commnons, &c." Likewise in 6 Ed. 3. n. 6. the Prelates, Earls, Barons and Great Men by themselves, & les Chivalers des Countez & Gentz du Commune par Eux Mesmes, &c. ☞ It may not be improper, however, to observe of Brady, that though he discovers great Learning and Acuteness, yet he evidently wrote with the illiberal View of serving a Party, rather than of investigating Truth. As an Author, therefore, he ought to be read with Caution: And as a Man, capable of prostituting his Talents to explain away the Rights of the People, he ought to be remembered with Concern.
* ↑ This, however, was more properly the Revival, than the Commencement of their Right. Indeed there are the strongest presumptive Proofs, that the Commons were a Part of the Parliament soon after the Conquest; or at least very early in the Reign of Hen. 3. For the 25th of Ed. I. which confirms Magna Charta, says, that it was made by the common Assent of all the Realm. And the 15th of Ed. 3. speaks more strongly, that Magna Charta was made par le Roy, ses Piers, & la Communalté de la Terre: And the Judgment of those early Times is more to be regarded than the partial Construction of modern Interpreters. Moreover, though the Summons of the 49 H. 3. is the first on Record, which comes near to the Form so long in Use, yet there are Instruments on Record long before this Time, from whence it may be inferred that the Commons were called to the Great Council, as appears from Whitlocke’s Notes's on the King's Writ for chusing of Members of Parliament; a MSS. the Property of Dr. Moreton, who favoured the Editor with the Perusal of it. ☞ Brady, however, with his usual Subtlety, would persuade us, that the Word Commnunalty antiently meant the Barons only, and Tenants in Capite, or military Men: But though he has cited some Instances where the Word maybe so understood, yet, in the 14 Ed. 3. Stat. 2. the Words Communalty and Commons are expressly used as synonymous Terms: And there are such innumerable Instances in the antient Records where the Words Communitas and Communaute are descriptive of the Commons only, that no unprejudiced Writer could overlook or suppress them. But Brady, who rests his Arguments on mere verbal Niceties, would farther persuade us that the Words Proceres, Nobiles, Optimates, Magnates, &c. constantly denote the Barons or Noblemen; whereas, however they maybe so taken in a classical Sense, yet, in the antient Records, they are often applied to distinguish the chief of the Commoners, that is, the representative Body; as in the Stat, de Asportatis Religiosorum, 35 Ed. I.—post deliberationem, &c. cum Comitibus, Baronibus, Proceribus et aliis Nobilibus, ac Communitatibus Regni, where the Words Proceribus, Nobilibus, ac Communitatibus, must be descriptive of the Knights, Citizens, and Burgesses. And of this Opinion is Lord Coke, 2 Inst. 583. Nay, it would not be difficult to produce many Records, where the Word Barones, notwithstanding Brady ridicules the Notion, was antiently applied to denote the Commons, and particularly the Burgesses. Whitlocke's MSS. above cited.
* ↑ That their Assent was a Matter of Right, however it might be overruled by the arbitrary Practices of early Times, may be inferred from the Words of the Writ of Summons, which are ad audiendum & faciendum & consentiendum. It is observable that the Summons to the Bishops and Barons was de arduis Negotiis Regni tractaturi & Consilium impensuri. Yet there are many Instances on Record which prove that the Commons also were consulted about important Affairs of State, such as Peace and War, &c. For which see Cotton. Posthum.
* ↑ We find in the Statute Code, some Traces of this Prerogative exercised by the King. The Statute of Gavelet, 10 Ed. 2. for Instance, runs thus: "It is provided by our Lord the King and his Justices, &c." without any Mention either of Lords or Commons. That Laws in these early Times were made by the sole Authority of the King, without the Concurrence of any other legislative Branch, is farther evident from the Mirroir des Justices, the Author of which complains, "that Ordinances are only made by the King and his Clerks, and by Aliens and others, who dare not contradict the King, but study to please him. Whence," he concludes, "Laws are oftener dictated by Will, than founded on Right."
* ↑ If we confider the Influence the King had in Demesne Towns, he might as well have been absolute with a Parliament as without; and the Parliament at first, so far as it consisted of Commoners, was intended as a Support to Prerogative.
* ↑ No Mention is made of Knights or Burgesses in the 23 Ed. I. m. 8. dorso; nor in 27 Ed. I. m. 17. dorso. We find the like Omission in several other Instances. In one Summons of the 23 Ed. I. the Barons only are mentioned. See likewise the Commons Petition, 13 Ed. 3. Cotton’s, Abridg. n. 23. Also 5 Rich. 2. Stat. 2. c. 4.
* ↑ See Cl. 45 Ed. 3. m. 1. Dors.
* ↑ Patents of Exemption were antiently granted to particular Persons and Boroughs. Prynne’s Animad. on 4 Inst. p. 32. and Maddox’s MSS. in the British Musæum, N$^o$ 13. Tit. Parl.
* ↑ See Cotton’s Abr. passim.
* ↑ See 10 Ed. 3. Stat. 1. c. 2. the Statutes of Rich. 2. throughout, the Statutes of Rich. 3. throughout. See also Hen. 7. where many statutes are said to be made by the Advice and Assent of the Lords Spiritual and Temporal, and at the Supplication of the Commons; at other Times at the Request—sometimes the Prayer of the Commons.
* ↑ Some of our antient Statutes run in the Form of Petition and Answer, such as Articuli Cleri 9 Ed. 2. Stat. 1.
* ↑ See Hale’s Hist. of Common Law.
* ↑ Rot. Parl. 37 E. 3. nu. 38. "As the Things granted in this Parliament were new, and not known before then, the King asked the Commons if they would have the Things so granted, by way of Ordinance or Statute?" And they answered, that, "It was good to have them by way of Ordinance, and not by Statute, to the end that if any Thing required Amendment, it might be amended at the next Parliament." It may be collected from this Record, that, though the Law demanded was new, yet if it was such as might stand with the old Laws, and did not alter any Statute then in force, it might pass indifferently by way of Ordinance or Statute; whereas if it changed any old Law, it must have been by Statute: As is farther evident from the following Record. Rot. Parl. 22 E. 3. nu. 30. "The King, by the Assent of the Lords, made Answer that Laws and Process heretofore used could not be changed, without making new Statutes." But after all, it must be confessed that whatever the Right was, yet so irregular was the Practice, that a great Number of printed Acts, as Prynne observes, refute this Distinction. In short, Acts are, by the Legislature, frequently called Ordinances; and Ordinances again are as frequently stiled Acts of Parliament or Statutes; And sometimes the Words Act and Ordinance are coupled together. Therefore perhaps the only Difference, if any, between them is, that Bills entered with the Royal Assent on the Parliament Roll, were called Ordinances, and when entered on the Statute Roll, were stiled Statutes. In short, however they may be verbally distinguished, their Operation was the same.
* ↑ Their Petitions were sometimes slightly regarded, being frequently referred to the Consideration of the Council out of Parliament, or perhaps totally thrown aside. See Cotton’s Abr. Tit. Petition, Councel, &c. passim.
* ↑ The antient Records furnish us with many Instances of Complaints, made by the Commons on those Heads. In the 21 Ed. 3. they pray, that Petitions which be for the Common Profit may be answered in Parliament before them, so as they may know the Indorsement, and have Remedy according to Ordinance of Parliament. See Rot. Parl. 21 E. 3. nu. 8.—In the 5th of Rich. 2. they pray that they might view the Ordinances before they were confirmed. See Rot. Parl. 5 R. 2. nu. 23.
* ↑ In the 51 of Ed. 3. we find an Imposition laid without the Consent of the Commons; and the same King, in the last Year of his Reign, tacitly reserves a Right of taxing them without their Consent. For upon a Petition, praying, "That the Prelates, Earls, Barons, Commons, Citizens and Burgesses of England, be not thenceforth charged, &c. but by common Assent, &c. the King answered, That he is not at all willing to do it, without great Necessity, and for Defence of the Realm, and where he may do it with Reason." Rot. Parl. 51 E. 3. nu. 25.—In the first Year of Rich. 2. Money was raised without Assent of Parliament. Maddox’s M. S. No. 14. Tit. Parl. Two Commissions were granted for the same Purpose in the 2d of Hen. 4. without Assent of Parliament. See Cotton’s Abr. p. 406. nu. 22. In 21 R. 2. Assessments were made upon Counties out of Parliament by the King's Letters Patent only. Maddox M. S. No. 12. Tit. Parl.—As a Proof that Acts were often passed without their Concurrence or Assent, we find in 6 Rich. 2. an Act, made in the last Parliament, revoked, and the Cause assigned is, because the said Statute was never assented to, nor granted by the Commons. It is observable, nevertheless, that the Act of the 6th Rich. 2. was never printed, as Lord Coke assures us, and the Statute of the 5th, though passed without the Assent of the Commons, was, as it is said, put in Execution, and continued in Force till it was repealed by 1 Ed. 6. c. 12. and 1 Eliz. c. 1. See Rot. Parl. 6 R. 2. nu. 52. And see Cotton’s Abr. p. 354. where there are several Instances of Acts passed without the Assent of the Commons.
* ↑ See Fox’s Acts and Monast. And 4 Inst. c. 1.
* ↑ See Rot. Parl. 8 H. 4. nu. 65.
* ↑ Sic in Orig.
* ↑ Wernne is a Saxon Word, which fignifies to deny or refuse.
* ↑ Rot. Parl. p. 1. Mem. 3. N. 22.
* ↑ See Glanville’s Speech, in Rushworth’s Collection, Vol. I. p. 574. which perhaps is one of the most nervous, spirited, and masterly Pieces of Oratory in the English Language.
* ↑ Vid. Rot. Parl. 36 Ed. 3. nu. 38. For farther Instances of this Kind, see Maddox’s MSS. in the British Musæum, entitled Expeditionis Billarum Aquiquitas, which contains a very circumstantial Account of the antient Method of passing Bills: And, as the Editor is informed, will shortly be made public.
* ↑ See Hale’s Hist. of Common Law.
* ↑ The Editor is aware that the celebrated Sidney has declared himself of a different Opinion. Speaking of the Quarrels begun upon personal Titles, between Stephen and Maud; the Houses of York and Lancaster, &c. he says the People get nothing by the Victory which way soever it fall. But in this he seems to contradict the concurring Testimony of Historians. Stephen, in order to secure his tottering Throne, granted a Charter, by which he endeavoured to conciliate the Favour of all Orders. To the Clergy, he undertook to supply all vacant Benefices—To the Nobility, that they should not be prosecuted for hunting in the Forests—And to the People, that he would remit the Tax of Danegelt, and restore the Laws of King Edward. Henry 4. likewise was obliged to court Popularity; and the Commons, during his Reign, exercised very large, and, till then, unusual Powers: The Particulars of which may be seen in Cotton’s Abridgement. And Prynne, in a Note upon the Abridgement, takes notice, that the Commons young Speaker [Sir John Tiptoft] took more upon him, at this Time, than ever Speaker did before him. It is true, when these Candidates for Royalty are well settled in their Thrones, they then apply themselves to abridge and rescind their Grants, and to lower that Power which has exalted their own: For to preserve the Liberties of a Nation, is a species of Magnanimity, to which most Heroes are unhappily Strangers.
* ↑ This loose Method of penning the enacting Clauses prevailed even in the Reigns of Elizabeth, James, and Charles the First. See 13 Eliz. c. 20. 18 Eliz. c. 11. 3 Jac. c. 16. 7 Jac. c. 6. 16 Car. I. c. 10. with many others of the like Form.
* ↑ The Editor takes this Opportunity of observing, that, however he may see Occasion to dissent from Mr. Cay, yet he would be always understood to express himself with the Regard so justly due to the Memory of that very able Editor, and worthy Man, to whose Labours he acknowledgeth himself greatly indebted.
* ↑ See the Cause of the City of London vers. Vanacker, 1 Lord Raymond 501.
* ↑ This Doctrine was maintained very early; for in the Case of a Premunire 39 Ed. 3. upon the Statute of 27 Ed. 3. of Provisions against the Bishop of Chichester, Serjeant Cavendish, of Counsel with the Bishop objected two Things: First, that the Act, Whereupon the Writ was grounded, was no Statute; Secondly, that if it were a Statute, it was never published in the County. To whom Sir Robert Thorpe Chief Justice, answered. Although Proclamation be not made in the County, every one is bound to take Notice of that which is done in Parliament; for, as soon as the Parliament hath concluded any Thing, the Law intends that every Person hath Notice thereof; for the Parliament represents the Body of the whole Realm, and therefore it is not requisite that any Proclamation be made, feeing the Statute took Effect before. 3 Inst. 26.
* ↑ See State Trials, Vol. 6.
* ↑ Lord Coke, who first printed this Act, gives us to understand that the Respectuatur in the Margin, was entered by the Prince—"A strange Presumption," says he, "without Warrant of the King his Father and of the Parliament, to cause such a Respectuatur to be made to an Act of Parliament."—His Lordship adds, that the Prince, "did the like to another Act in the same Parliament, concerning Attornies, the like whereof was never done in any former or latter Parliaments." ☞ The Act which his Lordships here speaks of, is the 11 H. 4. nu. 63. for reducing the Number of Attornies, &c. which was thought so grievous, that, in the thirteenth Year of the same Reign, they prayed that it might be modified in the present Parliament. See Rot. Parl. 13 H. 4. nu. 49. But if they had not considered it as a valid Act, notwithstanding the Respectuatur, it would have been unnecessary for them to have petitioned the King in Parliament, for a Modification of the Bill. Besides if a Respectuatur, entered by we know not whom, had the Power of suspending the Operation of a Law, which had solemnly received the Royal Assent, it would in Fact defeat the Purpose of the Legislature, and amount to a dispensing Power.—Bishop Nicholson likewise speaks of the Entry of this Respectuatur, as one of the Prince's Frolicks. See Nicholson’s Historical Libraries.
* ↑ The Reason of giving this Power, was that the Operation of the Act might be suspended, in order to afford Opportunity of inducing the Pope, by persuasive Means, to redress the Grievance of those Exactions: And it appears by the Preamble to the Aft of the 25th, that the Pope had been actually made acquainted with the Contents of the former Act, and that gentle Means had been used to prevail on his Holiness to reform the Abuse complained of; which proving ineffectual, the King ratified the Act, in Pursuance of the special Power given to him by the Clause above recited. ☞ Note, The Act of the 23d. is not printed in any of the Statute Books, but will be inserted in the Appendix to this Edition.
* ↑ It is observable that this Writer does not attempt to impeach the Validity of this Act on any other Principle, than the Defect, as he conceives it, of the Sovereign Title: And to this it may be objected, that the very Distinction itself of a King de Facto and de Jure, is nugatory; for every King in the actual Administration of Government, whose Authority is recognized by the other Branches of the Legislature, is a King de Jure. A parliamentary Settlement, doth unquestionably give as firm a Title to Sovereignty, as any hereditary Succession whatever: And the slavish Arguments urged by the Advocates of hereditary Succession, tend to preclude Men from their natural and unalienable Right of Resistance against Tyranny, and Oppression.
* ↑ King James I. in one of his Speeches to Parliament, expresseth himself in the following Terms. "There be in the Common Law divers contrary Reports and Precedents; and this Corruption doth likewise concern the Statutes and Acts of Parliament, in respect that there are divers cross and cuffing Statutes, and some so penned, as they may be taken in divers, yea, contrary Senses: And therefore would I wish both those Statutes and Reports, as well in the Parliament as Common Law, to be once maturely reviewed and reconciled, and that not only all Contrarieties should be scraped out of our Books but even that such Penal Statutes as were made but for the Use of the Time (from Breach whereof no Man can be free) which do not now agree with the Condition of this our Time, ought likewise to be left out of our Books, which, under a tyrannous or avaritious King, could not be endured; and this Reformation might, methinks, be made a worthy Work, and well deserves a Parliament to be sat of Purpose for it." See Lord Coke’s Remarks on this Speech, in his Pref. to 4 Report.—☞ The same Proposal was made in a Speech by Sir Francis Bacon, Lord Keeper in Queen Elizabeth’s Time—And again, in an Address to the long Parliament.
* ↑ See Mr. Cay’s Preface,—and Mr. Serjeant Hawkins, upon the Statute of 44. H. 3. Vol. 7. fol. 622. Appendix, No. 1.
* ↑ The narrow Bounds of the Statutes, in those early Times, were not perhaps altogether owing to the Means here spoken of, but to the low State of Trade and Commerce, and the little Attention paid to the Rights of public Liberty.
* ↑ They who exclaim against the Multiplicity of our Laws, are fond of quoting the Passage in Tacitus, where he says, Corruptissima Respublica, plurimæ Leges; but they should consider that the Historian does not throw this out as a general Reflection, but as applicable to the particular Circumstances of Rome during the licentious Authority of the Tribunes; when, in Contravention to the Laws of the twelve Tables, particular and partial Laws were made by the Influence of private Men: The twelve Tables provided that no Laws should be made by private Persons, and that no capital Punishments should be adjudged, but at the Comitia Centuriata. The frequent Revolutions however among the Romans, rendered these Provisions ineffectual; for whenever the lawless Attempts of an ambitious Leader prevailed, the Usurper instantly commenced Legislator: And consequently in this corrupt State of the Commonwealth, the Laws, as Tactitus observeth, were very numerous. See Cicero pro Sextio—And Id. pro Domo sua.
* ↑ Perhaps it might be shewn, that the present unequal System of our Criminal Laws, is not calculated even to answer the End of deterring Offenders: But this would open into a Field of Argument, too wide to find Place here, and may well demand a Treatise of itself.
* ↑ See Preface to Wood’s Institutes.
* ↑ By imperfect References is to be understood, those which refer the Reader to the Year of the King's Reign, and the Chapter, but do not specify the particular Statute: And, as it sometimes happens, that there are five or six Statutes in the same Year, the Omission often occasions great Perplexity and Trouble.
* ↑ Many additional References likewise will be made to the Report Books, &c.
* ↑ The Words, Repealed and Obsolete are often confounded, and indiscriminately used. But an Act repealed, seems to imply a Statute which has lost its Force, by virtue of a subsequent Act, which directly orders its Effect to cease, over that Subject upon which it was made to operate, leaving the Subject itself still in being: Whereas what is usually, and perhaps improperly, called an obsolete Act, is that which loses its Effect consequentially, by the Annihilation of the Subject itself, on which alone its Power could operate. Of this Kind are all the Acts concerning feodal Tenures, they being rendered obsolete by 12 Car. 2. which abolishes the Tenures themselves. The same may be said of the Statutes concerning religious Houses, in like Manner rendered obsolete by 31 Hen. 8. for the Dissolution of Monasteries, &c. In these Instances, the Statutes of Charles the Second, and Henry the Eighth, do not formally repeal the Feodal and Monastic Laws, but render them obsolete by destroying the Subjects themselves, over which alone their Force could extend. Where the Subject is destroyed, the Adjunct drops of Course. It may be proper to observe, however, that though the Editor has retained the Word Obsolete, which has been used in all former Editions, yet he apprehends that it would be more accurate to say that these Laws were Superseded; since no Law, in our Constitution, can be properly, termed Obsolete.
* ↑ It is so printed in Berthelet’s Edit. 1543—Likewise in Rastall’s Abr. 1583—Also in Pulton’s Kalendar, 1617—And lastly, in Rastell’s Statutes at Large, 1618.
* ↑ See 2 Inst. 562.—and Holt’s Argument. Savil vers. Roberts, 1 Ld Raymond 378.
* ↑ See 4 Inst. 25.
* ↑ It may not be improper to add that the Courts at Westminster, are bound to take Notice of the Beginning of all Parliaments. But they take no Notice of Adjournments, though heretofore Adjournments and Prorogations were considered as the same Thing: And it was said by Treby Chief Justice, in the Case of Birt and Rothwell, that the Word Prorogation was not found upon the Rolls, till the Time of Edward the Fourth. Their Effects however are, at this Day, essentially different. See Birt, qui tam vers. Rotwell. 1 Lord Raym. 210 and 343.
* ↑ 20 Ed. 3. (N. B. It is printed as the 18. in the Stat. Books.) 27 Ed. 3. c. 4, 5, 6, 7 & 8. (N. B. Cotton says nothing of the 4th Cap.) 37 Ed. 3. c. 7 & 19. 2 R. 2. Stat. 1. c. 5. 2 R. 2. Stat. 2. c. 3. 7 R. 2. c. 15. 19 R. 2. c. 3. (N. B. Cotton adds c. 4 & 5.) 11 R. 2. c. 4, 5 & 6. 13 R. 2. Stat. 1. c. 11, 15, 19 & 20. 14 R. 2. c. 7. 17 R. 2. c. 8 & 9. 27 H. 6. c. 3. ☞ Most of the Acts in this List are to be found in the Table to Cotton’s Abr. But Cotton mentions farther 15 R. 2. c. 9 & 12. 16 R. 2. c. 1 (And, according to him, c. 5. concerning Præmunire, does not agree with the Record.) 8 H. 6. c. 28 & 29. and 18 H. 6. c. 3. But these likewise are of Record, and are printed Ex Rot. in Turr. Lond.
* ↑ The Statutes of Merton, Marlbridge, West. 1. Explanatio Statuti Gloucestiræ, De Champertio, De Visu Frankplegii, De Pane & Cervisia, Articuli Inquisitionis super Stat. de Winton, Circumspecte agatis, De Districtione Scaccarii, De Conspirationibus, De Vocatis ad Warrant’, Statut. de Carliol, De Prerogativa Regis, De Modo faciendi Homag’, De Wardis & Releviis, Dies Communes in Banco, Stat. de Bigamis, Dies Communes in Banco in Casu Consimili, Stat. Hiberniæ, De quo Warranto, De Essoin columpniand’, Judicium Collistrigii, De frangentibus, Prisonar’, De Malefactoribus in Parcis, De Consultationibis, De Officio Coronatoris, De Protectionibus, Sententia lata super Chartas, Modus levandi Fines, Statut. de Gavelet, De Militibus, De Vasto, De Anno Bissextili, De Appellatis, De Extenta Manerii, Compositio Mensearum, Vel Computatio Mensarum, Stat. de quo Warranto, Ordinatio de Inquistionibus, Ordinatio de Foresta, De Admensura Terræ, De Dimissione Denarior’, Stat. de quo Warranto Novum, Ne Rector Prosternat Arbores in Cœmeterio, Consuetudines & Assia de Foresta, Compositio de Ponderibus, De Tallagio, De Visu Terræ & Servitio Regis, Compostio Ulnarum & Perticarum, De Terris amortizandis, Dictum de Kenelworth, &c. ☞ The Acts distinguished by Capitals, are printed Ex Rot. in Turr. Lond.—Those in Italicks, Ex Cotton MS.—The rest are from old MSS.
* ↑ 11 Ed. 3. for the Creation of the Duke of Cornwall, by Authority of Parliament. (The Parliament Rolls of this Year are lost, but this was held to be a Statute in the Prince's Case, 8 Rep.)—3 R. 2. nu. 39. concerning Justices of the Peace. (N. B. There being no such Number, this is probably intended for 2 R. 2. nu. 62. for allowing Fees to Justices of the Peace; which Conjecture is the more probable, since his Lordship adds that the Act he mentions was a profitable Law for the justices.) 8 R. 2. nu. 31. of the Jurisdiction of Constable and Marshall. (N. B. This hath been since printed.)—20 R. 2. nu. 29. for legitimating the Children of John Duke of Lancaster.—5 H. 4. nu. 24. for Mustering of Men. (N. B. This hath been since printed.)—8 H. 4. nu. 36. exempting Clergy from mustering Men.—11 H. 4. nu. 28. against Bribery and Brocage in great Officers, Judges, &c.—11 H. 4. nu. 63. concerning Attornies.—6 H. 6. nu. 27. that no Man shall marry any Queen of England, without the King's Licence. (N. B. The Bishops gave a conditional Assent to this Bill, i.e. so far as the same did not swerve from the Law of God, and so as the same imported no deadly Sin)—9 H. 6. nu. 24. concerning Fees of King's Council and other head Officers, &c.
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