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xxxii
INTRODUCTION. Ch. III. Sect. I.
Rolls, but also from other Records, particularly the Close Rolls and Patent Rolls, which were examined for the Purpose with great Care and Diligence, and Transcripts and Collations of many of them were made for the Examination of the Commissioners. In the Progress of this Labour, however, it appeared that the Matters which came within the Description above mentioned, were so numerous, that the indiscriminate Insertion of all of them would constitute a Mass, the very Bulk of which would prove inconvenient. But, what was of still greater Importance, upon Examination it became with respect to many of them, a Subject of Discussion, from which no certain Conclusion could be derived, to what Extent they had in fact received Sanction, and whether therefore they were, in any Degree, entitled to be considered as of Legislative Authority.[1] It was obvious, at the same Time, that to have made a Selection only of such Matters as in the Opinion of the Commissioners were the least doubtful, was in Effect encountering the same Difficulty only in a smaller Degree; and the Sources, from which they were to be taken, not being in themselves conclusive Evidence,[2] that the Matters contained in them were Statutes, the Selection in each Instance necessarily could be nothing more than the Result of private Judgment; without the Authority of that “general received Tradition,” which, as Lord Hale observes,[3] attests and approves those Statutes which are not properly extant of Record.

Acts also which received the Royal Assent, and which were entered only on the Parliament Roll, and not on the Statute Roll, have been frequently termed Ordinances; and various Distinctions have ineffectually been attempted to be made between an Ordinance and a Statute, with regard to the Nature and Validity of each respectively:[4] But whatever has at any Time been written on this Subject is contradictory and indistinct; and in the Reign of Charles I, the Information on this Point, then of some Importance, appears to have been very unsatisfactory.[5]

    should take any Gift or Brocage for doing their Office,” to which the King’s Answer, “Le Roi le veut” is subjoined, was produced in Evidence on the part of the Managers of the Impeachment, as a Statute, or public Act of Parliament, although not entered on the Statute Roll; and it was also urged in Argument, as “common Learning,” that the Parliament Roll was the Voucher to the Statute Roll. See State Trials, Vol. VI. 760. the Earl of Macclesfield’s Case; and 3 Inst. 146, 224, 225, where this Entry is printed at length, and considered by Lord Coke as an Act of Parliament. See also the Argument on the Jurisdiction of Chancery annexed to Vol. I. of Reports of Cases in Chancery, where the necessity and propriety of consulting the Petition and Answer, or the Entry thereof on the Parliament Roll, as the Warrant for the Statute Roll, is much insisted on, upon the Authority of Sir Francis Bacon, and other eminent Lawyers; with Reference to the Statute 4 Hen. IV. cap. 22. In Rot. Parl. 10 Hen. VI. nu. 20. is a Petition of the Commons, settling the Payment of the Fees and Salaries of the King’s Justices, Serjeants, and Attorney, to which is subjoined the King’s Answer, “Fiat prout petitur:” In the oldest Abridgements of the Statutes, Title ‘Justices,’ this is abridged as an Act of 10 Hen. VI. and called ‘Statutum per se;’ and the Abridgement is copied into Rastall’s Collection, and it is there noted that “this is not in the printed Book of Statutes:” The whole is inserted in Cay’s Edition of the Statutes, as Stat. 2. of 10 Henry VI. It is observable also, that the Statute 25 Edw. III. ‘pro hiis qui nati sunt in partibus transmarinis’ pa. 310 of the Statutes in this Volume, is in the Old Abridgements called ‘Statutum per se:’ and that in those Abridgements, Title ‘Excommengement,’ reference is made to an Instrument cited in the earlier Editions as of 9 Ed. III. and in later Editions, as of 8 Edw. III. called ‘Ordinatio per se’ whereby Writs were ordained for excommunicating disturbers of the Peace of the Church and the Realm. In the later Editions, it is alleged that such Writs were framed on a Statute 5 Ed. III st. 2. c. 1.: Rastall in the early Editions Collection, quoting these Abridgements, adds, “But I cannot find anie of these Statutes.” See further Rot. Parl. 35 Edw. I: 5 Edw. II: 14 Edw. II. nu. 5, 33: 5 Edw. III. nu. 3, 5, 6: 6 Edw. III. P. 2. nu. 3: 14 Edw. III. P. 2: 20 Edw. III. nu. 11, 45: 25 Edw. III. nu. 10, 16: 28 Edw. III. nu. 13: 36 Edw. III. nu. 35: 38 Edw. III. nu. 9: 40 E. III. nu. 8: 42 Edw. III. nu. 9: 46 Edw. III. nu. 13, 43: 2 Ric. II. nu. 62: 3 Ric. II. nu. 39: 6 Ric. II. nu. 53: 8 Ric. II. nu. 31: 20 Ric. II. nu. 29: 5 Hen. IV. nu. 22, 24, 41: 8 Hen. IV. nu. 36: 11 Hen. IV. nu. 23, 63: 6 Hen. V. nu. 27: 8 Hen. VI. nu. 27: 9 Hen. VI. nu. 24: 33 Hen. VI. nu. 43: 38 Hen. VI. nu. 29: and very many other Articles, all of which appear to have the same qualities as those of 11 Hen. IV. nu. 28. and 10 Hen. VI. nu. 20. above particularly noted. See also the Instances quoted, post, page xxxvii, note 4. In the Old Report of Statutes from 3 Edw. I. to 1 Jac. I. MS. Harl. No. 244. mentioned in Page xxvi of this Introduction, the Instrument intituled Articuli de Moneta, usually ascribed to 20 Edw. I. is considered as a Proclamation not as a Statute; and this and some other Instruments classed among the antient Statutes are reported therein as fit to be repealed, on account of the uncertainty of their Validity as Statutes.

  1. ↑ For a Statement of the Difficulties upon the Terms Concilium, &c. as descriptive of Parliament in the early Records, according to the Doctrine laid down in the Prince’s Case, 8 Rep. 20, 2 Inst. 267, and elsewhere, see Prynne’s Plea for the Lords and House of Peers, Sect. 2, and Prynne, first Part of an Historical Collection of the Antient Parliaments of England; Lord Hale’s Treatise of the Jurisdiction of the Lords House of Parliament, Hargrave’s Edit. Chapter III; and Luders, Tract. IV. published in 1810.
  2. ↑ See Pa. xxxvii, and Note 4 there.
  3. ↑ Hale H. C. L. ch. 1. ad fin. And in the Prince’s Case 8 Rep. 20 b, it is said, upon the alleged authority of 7 Hen. VII, 14 a, b, and 34 Edw. III, 12, “multa sunt statut̃, que scribunt̃, domiñ Rex statuit; si tamen Rotulo Parliamentario intrentur et semp’ ut Act’ Parliament’ approbentur, intendetur h{{subst:ae}}c authoritat̃ Parliamenti fuisse.”
  4. ↑ See Co. Litt. 159 b. and the Note thereon in the last Edition: and 4 Inst. 25.
  5. ↑ In the British Museum are Two Copies, Donation Manuscripts, N° 4489 and 5668, of a Manuscript Treatise entitled ‘Expeditionis Billarum Antiquitas,’ drawn up apparently by Elsyng, who was Deputy Clerk of the Parliaments in 1620, and for several Years afterwards. See also MSS. Harl. 305, 4273, 6585. This Work professes to give an historical Account of the antient Mode of passing Bills in Parliament: It appears from internal Evidence to have been written between 1628 and 1640, and to have been designed as a Second Part of the Treatise on Parliaments. It is vouched throughout by reference to original Petitions and Rolls of Parliament, from 4 Edward III. the earliest known to the Writer to exist, to 27 Hen. VI. In this Treatise, the Form and Validity of Ordinances, as distinguished from Statutes, are stated much at length; and amongst other Things it is asserted that an Ordinance cannot make New or Permanent Law, nor repeal any Statute, but that temporary Provisions, consistent with the Law in force, may be made by way of Ordinance; and that an Ordinance may be repealed by a subsequent Ordinance without Statute. See Rot. Parl. 21 Edw. III. nu. 13, 47, 52; 22 Edw. III. nu. 20, 21; 37 Edw. III. P. 1. nu. 37, 38, 39; 45 Edw. III. nu. 24, 25, 37, 40; that the King did forbear to grant those Petitions which demanded Novel Ley, when he had no Intent to make a Statute. See also Rot. Parl. 22 Edw. III. nu. 30, that the Laws had and used in Times past could not be changed without making thereon a New Statute: and see Rot. Parl. 11 Hen. IV. nu. 63, 13 Hẹn. IV. nu. 49, that Ordinances of Parliament which introduced Novel Ley were not of any Force. In the Parliament 37 Edw. III. it was precisely demanded by the Chancellor, whether the Matters then agreed on, being new and not before known or used, should be granted by way of Ordinance or Statute, and that of Ordinance was preferred by the Parliament, for the Purpose that if any Thing were to be amended it might be amended at the next Parliament: The Ordinance was accordingly entered on the Back of the Parliament Roll, and was termed an Ordinance in the subsequent Parliament. It is very remarkable, however, that this Ordinance is also entered on the Statute Roll, and has always been received as a Statute of this Year; that Penalties inflicted by former
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