The Statutes at Large (Ruffhead)/Volume 9/The Editor to the Reader
The EDITOR to the READER.
IN the Preface to the First Volume, the Editor hath endeavoured to explain the Method of passing our antient Acts of Parliament, and to reconcile some contradictory Authorities on that Subject. He hath likewise offered some general Observations on the Statute Laws of this Kingdom; and concluded with specifying the Plan he proposed to pursue throughout the Course of the Work: From which he hath found no Reason to make any Deviation. It now only remains therefore to take Notice of such Matter as hath since occurred in his Progress through these Volumes; as also more particularly to explain the Method which hath been pursued in the Arrangement of the Table; and lastly, to give some Account of the Statutes which are printed separately in the Appendix.
Since the Preface was written, it hath occurred that in the fourth Section of the 18 Ed. 1. stat. 4. there is an Error in the Translation which runs through all the Editions now extant; wherein the Conusors are made to acknowledge the Mannor of B. with the Appurtenances, to be the Right of our Lord the King, which he hath of their Gift, &c. Whereas it ought to be that the Conusors acknowledge the Mannor, &c. to be the Right of R. that is, of Sir Robert the Conusee.——By this Statute, which prescribes the Method of passing Fines, the first Thing to be done is for the Pleader to ask of the Justice Conge de accorder, or Licence to agree. To which the Justice answers, naming one of the Parties, What will Sir R. give? (that is, what will he pay for the Fine to the King?) "Then when they be agreed of the Sum of Money that must be given to the King, the Justice shall say, Cry the Peace: And after the Pleader shall say, Insomuch as Peace is licensed unto you, that W. S. and A. his Wife, (the Conusors) that here be, do acknowlege the Manor of B. with the Appurts, to be the Right of R. (the Conusee) which he hath of their Gift." Now there can be no Pretence to suppose the King's Right to the Premises to be acknowledged in this Place, for it is evident the King here can have no Claim but for the Fine upon the Licence, which is called Finis pro Licentia concordandi: And the Foundation of this Claim to the Fine is, that by reason of the Concord between the Parties, the King loseth the Fines or Amerciaments upon the Judgment or Nonsuit, with other Advantages. As the Act Stands in the old Translations, it is wholly unintelligible; and it is the more necessary to state it in a perspicuous Light, as it is of great Use, not only in explaining the subsequent Acts of Henry the VIIth and Henry the VIIIth, &c. but also toward enabling the Student to form a right Understanding of the present Method of acknowleging Fines at Bar.
Here likewise may be noted a material Error in the 31 Eliz. c. 7. against the erecting and maintaining Cottages, which is corrected by a marginal Note. In the later Editions it is said that no Cottage shall be built, &c. unless the Cottager do lay to the same four Acres of Ground at the least, being his or her own Freehold or Inheritance, lying near the same Cottage, &c. But in Rastal and other old Editions, and likewise in 2 Inst. the Words are "his or her own Freehold and Inheritance;" and upon examining the Record they appear to be right.
The Mistake of printing this Clause in the Disjunctive might probably influence a late Adjudication in the Case of the King against Savory, which was to this Effect. The Bishop of Norwich demised to Savory eighty Acres, to hold to him and his Heirs for three Lives: Savory erected a Cottage on the Land, and was indicted for having erected the same without having laid thereto four Acres of his own Freehold and Inheritance: But the later Editions being referred to, where the Words are in the Disjunctive, the Court held that the Defendant had complied with the Terms of the Statute; and he was accordingly acquitted. Taking the Clause however in the Copulative, as it Stands in the Record, it should seem according to Lord Coke's Comment, that "neither Grounds holden by Copy, or for Life or Lives, or for any Number of Years, will serve."
A Mistake of a similar Nature runs through all the Editions in the 6 Geo. 1. c. 23. § 7. where instead of the Words order or contract, it should stand order and contract, An Error which makes a very material Variation in the Sense.
Among the Acts of the present King the following Errors likewise deserve Notice, In the 2 Geo. 3. c. 21. for Paving the Streets, &c. there is a Reference at Clause 44. to an Act made in the twelfth of King George the Second; whereas the Act referred to was made in the twelfth of George the First. In the 2 Geo. 3. c. 25. for naturalizing foreign Protestants, there is likewise a Reference, at Clause 2, to an Act made in the fourth of George the First, whereas the Act referred to was made in the fourth of George the Second. These however are not Errors of the Press, the Editor having carefully consulted the Parliament Rolls, wherewith the printed Statute corresponds. He therefore thought it did not become him to correct these Mistakes in the Text, but he hath rectified them in the Margin. For other more, trivial Inaccuracies the Reader is referred to the List of Errata hereto subjoined.
With regard to the Table, it is near a third more copious than any now extant. Among the Heads which have received the most considerable Additions are Certiorari,Costs, Customs, Damages, Excise, Exchequer, Felony, General Issue, Scotland, Seamen and Ships. Under Title Felony, there is added a List of Felonies both within and without Clergy, alphabetically classed; so that the Reader may at one View see what Offences belong to either Class . Several new Heads are likewise added; and some Alterations have been made in the Disposition of the Articles, with a view to assist the Reader in the Course of his Researches. For this Purpose the Editor has been particularly attentive to specify all the relative Titles under each Head; and to facilitate the referring from the various Articles of one Head to those in another, each Article is numbered. As there are several Articles which may, without Impropriety, be classed under several general Heads, and as these will occur differently to different Readers, they who do not find the Matter they are in search of under the Head to which; they resort, will be referred to the Title under which it is classed, and directed to the very Article by Means of this numerical Arrangement. For Example, suppose the Reader should have occasion to search for the Act obliging Masters of Ships in the Plantations to carry Seamen for his Majesty's Service; he will not find the desired Information under the Titles Ships or Plantations. But under each of these Titles he will meet with a Reference directing him to Title Seamen, Art. 54. where he will see an Abstract of the very Clause which is the Object of his Enquiry.
This numerical Arrangement will also be found extremely useful, where the Relation between the Titles is not so obvious. It is moreover to be observed that in some Cases the Article referred to does not, at first Sight, appear to have any Relation whatever with the Title from whence the Reference is made. But if the Reader will consult the Clause of the Statute quoted, he will discover the Connexion. Thus, under the Title Alehouses, there is a Reference to the Title Coffee, Art. . in which Article there is no Expression which implies any Relation with the Title Alehouses but by perusing the Clause of the Statute, the Connexion will evidently appear. In this Case therefore the Figures are likewise of singular Use, for without such numerical Direction, the Reader might peruse every Article without discovering that in which the Relation is to be found.
In some Instances however, References are made to the correlative Titles, without any numerical Direction to particular Articles. This happens where the Relation is so very intimate, that all or the greater Part of the Articles under the Head referred to, have an obvious and reciprocal Connexion with the Head from whence the Reference is made. References are also, in some Instances, made to correlative Heads, meerly with a View of assisting the young Student to form an Analysis of the Subject before him. Thus, under the Title Purchasers, the Reader is directed to Bankrupt, Charitable Uses, Fraud, Judgments, Recognizances, Recovery, &c.
With regard to the Acts printed separately in the Appendix, the first which appears most worthy of Observation, is the famous Dictum de Kenelworth, made in the 51 of Henry III. containing the Award made between the King and his Commons, which affords a striking Picture of the miserable State of Government among our feudal Ancestors. The Intent of this Award, for it seems to be improperly called a Statute, was apparently to quiet those who feared to be disinherited, on account of the Part they took against the King in the Civil Wars, and to ascertain what the Offenders were to pay for their Ransom. Among the rest we meet with the following curious Clause, the Purport of which is, that " Knights and Esquires who were Robbers, and among the principal Robbers in Wars and Plunderings, if they have no Lands but have Goods, shall pay half of their Goods for their Redemption; and find sufficient sureties henceforth  to keep the Peace of the King and the Kingdom." How deplorable must have been the Poverty of these Times, and the Weakness of civil Institutions!
The next Act which merits particular Notice, is the Statute of 16 Edw. II. revoking an Establishment of the Household, as being too restrictive on his Majesty, and against the Dignity of his Crown. The Establishment hereby revoked was made in the 3d of Edw. II. in Ease of the People oppressed with Purveyance; and about this Time the King's House was new formed, and every Officer's Charge and Salary was limited. In these early Times the King's Household was frequently reformed at the Petition of the People. It underwent a Reformation in 36 Edw. III. and again in the 1st of Richard II. Such Liberties were taken with that weak Prince, that a Commission  was granted, at the Petition of the Commons, to survey and abate the Household, which not having the desired Effect, the Commons soon after petitioned that the excessive Number of his menial Servants might be reduced, and that his Household might not exceed the ordinary Revenues of the Realm. In the 4th of Hen. IV. likewise a Reformation was made in the Household, whereby the Charge was limited to 1600 Marks. And Edw the IVth, in the twelfth Year of his Reign, settled a new Form, which, as Sir Robert Cotton faith, is extant in many Hands, intitled, Ordinances for the King's House. This Book, he tells us, was amended by Cardinal Wolsey, and was, in the Time of this great Antiquarian, the Groundwork of the then Establishment. He observes, however, that it was much corrupted, and proposes either to put down the Tables, and leave all Attendants to Allowance of Money, or else by restoring the Hall again, to reduce the Household to the most magnificent Order. So all Things, he adds, being spent in Publick, will be to the King's Honour, and secret Waste will be prevented. For he concludes, that every Back-door in the Court costs the King 2000 l. yearly.
It is to be observed likewise, that to ease the Charge of the King's Household, the Queens in former Times have allowed a Portion of their Jointure adequate to their own Expence: And, among others, the Queen of Henry VI. allowed 2000 l. a Year out of her Jointure for this Purpose .
In this Place likewise the famous Statute of the 4th of Hen. VII. c. 19. inflicting the Penalty for decaying of Houses of Husbandry, or not laying of convenient Land for the Maintenance of the same, deserves particular Attention. About this Time, says Lord Bacon , Inclosures began to be frequent, whereby arable Land, which could not be manured without many Hands, was turned into Pasture, which was easily managed by a few Herdsmen; and the Tenancies for Years, Lives, and at Will, on which most of the Yeomanry subsisted, were turned into Demesnes. This bred a Decay of People, and by consequence, a Decay of Towns, Churches, Tythes, and the like. This, in the End, was attended with a Diminution of Subsidies and Taxes: For the more Gentry, the lower is the Book of Subsidies. To remedy this Inconvenience, the Legislature devised a very prudent Expedient. They did not absolutely forbid Enclosures, for that would have been forbidding Men to improve their Patrimony: Neither did they compel Tillage, for that would have been to strive against Nature: But they took a Mid-way, which redressed the Grievance by way of Consequence. For they enacted, "That all Houses of Husbandry, which were used with twenty Acres of Ground and upward, mould be maintained and kept up for ever, together with a competent Proportion of Land to be used and occupied with them." By this Means the Houses being kept up, did of necessity enforce Inhabitants; and the Proportion of Land to be occupied with them, did require such Inhabitant to be a Man of Substance, who might keep Servants, and contribute to the Improvement of Agriculture. This tended greatly to increase the Military Strength of the Nation; as by Means of these Farms, a great Part of the Lands of the Kingdom were thrown into the Hands of the Yeomanry or middle People, who were of a Condition between Gentlemen and Peasants, and made excellent Infantry . Harrington and other Political Writers, very justly consider this Act among the principal Causes which concurred to throw the Power into the Hands of the People. Indeed it was the ruling Policy of this Prince, to raise the Commons by depressing the Nobility. With this View were the Statutes made against Retainers, which deprived the Lords of their Dependants, being mostly young Gentlemen of Family, who made excellent Horsemen. Thus, as by these Laws the Nobility lost their Cavalry, so by the Statute before mentioned, they were also deprived of their Infantry: And the Weight of both was thereby thrown into the popular Scale.
We proceed, in chronological Order, to the memorable Act of the 4th of Hen. VIII. c. 8. concerning Richard Strode. This has been marked, both by Mr. Hawkins and Mr. Cay, as a Private Act. Nevertheless it has been by great Authorities considered as a general Law. Lord Coke says, that the latter Branch of the second Clause is general, and declaratory of the antient Law and Custom of Parliament ; and this Opinion is supported by the following Resolution of the House of Lords:
"Resolved, &c. that the Act of Parliament 4 Hen. VIII. commonly intitled, 'An Act concerning Richard Stroud,' is a general Law, extending to indemnify all and every of the Members of both Houses of Parliament, in all Parliaments touching any Bills, speaking, reasoning, and declaring, of any Matter or Matters concerning the Parliament, to be communed and treated of, and is a declaratory Law of the antient and necessary Rights and Privileges of Parliament." The Commons likewise, on the Consideration of this Act, held, that whatever concerns Privilege of Parliament, must be a general Law .
But with regard to Lord Coke, it must be observed, that he has misquoted the Words of the Statute. He says, it is enacted, That " all Suits, &c. from that Time " and thenceforth, to be put and had upon any Member, either of that present Parliament, or at any Parliament at any Time after that Act to be holden, for any Bills, speaking, reasoning, or declaring, of any Matter or Matters concerning the Parliament to be communed or treated of, be utterly void, &c." Now the Words of the Act are, that "all Suits, &c. put or had, or hereafter to be put or had unto or upon the said Richard, and to every other of the Person or Persons above specified, that now be of this present Parliament, or that of any Parliament thereafter, shail be, &c.".
This Act, it must be confessed, is not very accurately worded. But the Provision of the foregoing Clause is evidently retrospective, and by grammatical Construction seems confined to Richard Strode, and to every other of the Person or Persons ABOVE SPECIFIED: that is, to the Persons who agreed with him in bringing in certain Bills to Parliament concerning the Tinners, which made him obnoxious to the Stannary Court, by the Authority of which he was condemned and imprisoned, &c.
It is true that the Words, "or that of any Parliament thereafter, shall be, &c." do seem to intend a general Import: But to make the Clause general, something must be supplied, and it must be amplified thus —— That all such Suits, &c. put upon the said Richard, and every other of the Person or Persons before specified, or hereafter to be put on any other Member or Members, that now be, or hereafter shall be, &c.It is to be observed likewise, that it was considered in a restrictive Sense by the Judges in the 5 of Car. 1. to whom a Question was propounded by the Attorney General upon this Act, and they resolved that this Statute "was particular Act of Parliament, and extended only to Richard Strode and to those Persons that had joined with him to prefer a Bill to the House of Commons concerning the Tinners:" But they added "that although the Act be private, and extendeth to them alone, yet it was no more than all other Parliament Men, by Privilege of House, ought to have, &c." viz. Freedom of Speech concerning the Matters debated in Parliament, in a parliamentary Course.
With regard to the Resolutions of the two Houses, it must be remembered that they were formed flagrante ira, on occasion of the Debate concerning the arbitrary Proceedings against Sir John Elliot, Denzill Hollis, &c. A Time when the Contests Between Privilege and Prerogative were carried to the most desperate Extremes; and when many unwarrantable Claims were asserted on each Side, and endeavoured to be supported by straining and perverting every kind of Evidence which could give Colour to unjustifiable Conclusions.
This Point however, concerning the Freedom of parliamentary Debate, was happily adjusted at the late Revolution; and it is declared by the Bill of Rights—"That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament."
Particular Notice likewise is due to the 28th Hen. VIII. c. 7. concerning the Succession of the Crown : This is not inserted in the Editions of Serjeant Hawkins, or Mr. Cay. They both consider it as repealed by 1 Mary, Sess. 2. c. 1. which is also printed in this Appendix. But the Serjeant has added, that it is revived by 1 Eliz. c. 1. Dr. Gibson likewise speaks of it as repealed , but in the Case of Harrison and Burwell , Vaughan argues on a Supposition of its being unrepealed. Supposing it however to be repealed by 1 Mary, Sess. 2. c. 1. it does not appear to be revived by 1 Eliz. c. 1. as the Serjeant supposes. But indeed it may very well be doubted whether it be wholly repealed by the Statute of Mary: For after reciting the 25 and 28 of Hen. it is by the third Clause of that Statute enacted, " That as well the said Act of Parliament intitled, An Act declaring the Establishment of the Succession, &c. made in the 25th Year of your Father, be repealed, as also all and every such Clauses, Articles, Branches, and Matters, contained and expressed in the aforesaid Act of Parliament, made in the said 28th Year, or in any other Act: or Acts of Parliament, as whereby your Highness is declared to be illegitimate, &c. shall be repealed." Hereby the Act of the 25th is wholly repealed, and the Act of the 28th seems to be no farther repealed, than with respect to those Clauses which declare the illegitimacy of Mary. Therefore it may reasonably be supposed to stand in Force as to other Points which do not regard that Subject; and it contains some Clauses concerning the Degrees of Marriage prohibited by God's Law, and against the Power of dispensing with Marriages within such Degrees, which are well worthy of observation. It is happy for the Cause of Religion and Liberty, that this Prince found the Pope refractory. Had the Pope favoured Henry's Inconstancy, he probably would never have disputed the Validity of his Holiness's Dispensations. For that he had no Aversion to Papistical Tenets, may be collected from the succeeding Act in this Appendix, viz.
The 31 Hen. VIII. c. 14. " For abolishing Diversity of Opinions in certain Articles concerning Christian Religion." This and some other very singular Acts of this Reign, seem to be levelled more against the Pope than against Popery. By this Act it is most solemnly resolved and agreed, that Priests may not marry, and that private Masses, and auricular Confession, are expedient, and necessary to be retained : With other extraordinary Resolutions, which it is made Felony without Clergy to contradict.
Of a Piece with these Retaliations, are several Clauses of this Act, which confound all Degrees of Offence, and all Distinctions of Morality. By the 8th Clause it is enacted, " That if any Priest keep or use any Woman, to whom he is, or hath been married, or with whom he hath contracted Matrimony ; every such carnal Use, open Conversation, &c. shall be adjudged Felony, as well against the Man, as against the Woman." But,
By the 9th Clause it is enacted, " That if any Priest do carnally use, and accustom any Woman, or keep her as his Concubine, as by paying for her Board, maintaining her with Money, Array, or any Gifts, &c. that then he shall forfeit all his Goods, Chattels, and Benefices, &c. and suffer Imprisonment : And offending after Conviction, shall be adjudged guilty of Felony."
Thus we find that a Priest cohabiting with a Wife, [the Malum Prohibitum by this Statute] was deemed guilty of Felony in the first Instance : Whereas by cohabiting with a Concubine, he only incurred the Forfeiture of Goods and Imprisonment for the first Offence ; and was not deemed guilty of Felony until the second. So that an Offence against the Resolutions of the Convocation and Parliament, was deemed of a more heinous Nature than a Violation of the Laws of Religion and Morality.
We now come to the Consideration of the First of Edward VI. for the Punishment of Vagabonds, and for the Relief of poor and impotent Persons. The Preamble recites,. "That idle and vagabond Persons, being unprofitable Members, or rather Enemies of the Commonwealth, have been suffered to remain and increase, whom, if they should be punished with Death, Whipping, Imprisonment, and other corporal Pain, it were not without their Deserts, for the Example of others." Having in this Manner declared, that these wretched Vagabonds deserved Death, &c. (though their Idleness was probably more the Fault of the State than of themselves) the Enacting-part of this severe Statute was doubtless deemed merciful: For it only enacts, that the Offender there described to be an idle Person, shall be taken before a Justice of Peace, who shall cause him to be marked with a hot Iron in the Breast, the Mark V, and adjudge him to be a Slave to the Person presenting him for two Years, to be fed with Bread and Water, and to be put to Work (how vile soever it be) by beating, chaining, &c. and if he runs away, the Justice, on Conviction, shall cause such Slave to be marked on the Forehead, or Ball of the Cheek, with the Sign of an S, and shall farther adjudge him to be his Master's Slave for ever: And if he again run away, he shall suffer Death as a Felon. There is likewise a Proviso in this Act, by which they might be sold or bequeathed by Will, as any other moveable Goods or Chattels. By the 39 Eliz. c. 4. also printed in this Appendix, they were to be whipped until their Bodies were bloody, or to be banished the Kingdom, or adjudged perpetually to the Gallies of the Realm.
The Editor however is sensible that the Inhumanity of these Laws will admit of some Palliation, when we confider the Time when they were made, which was soon after the Dissolution of the religious Houses, which afforded an Asylum for all poor and impotent People, When these therefore were set at large, without the Means of gaining a Livelihood, and destitute of any Retreat where they might hope for a Provision, the Mischief to be apprehended from Vagrants, must certainly have been very alarming.
What next Claims our Observation is the memorable Act of 13 Car. 2. c. 33. intitled, 'An Act for preventing Abuses, in printing seditious, treasonable and unlicensed Books and Pamphlets ; and for regulating Printing and Printing Presses.' By this Act Printers are forbidden to publish any heretical, seditious, schismatical or offensive  Books, and all Books and Pamphlets are to be licensed by particular Licensers appointed according to the Nature of the Subject, and the Number of Printing Presses are hereby limited.
The Troubles which had subsisted in the late Reign, had given Birth to a free Spirit of political Inquiry, which this Statute was calculated to supprefs: And it is observable, that this Act is founded on a Decree of the Star Chamber, made in the Year 1637, which it copies without any material Variation, except, that by the Decree Offenders are to be punished as by the Honourable Court of Star Chamber, or the High Commission Court, shall be thought fit ; whereas by the Act they are to be punished by Disability to exercise their Profession, and such farther Punishment, not extending to Life or Limb, as the Justices of the King's Bench, or of Oyer and Terminer, &c. shall think fit. It is remarkable also, that the Preamble to this Decree of the Star Chamber takes Notice of divers Decrees and Ordinances made for regulating Printers and Printing, in the Reign of Queen Elizabeth, which are said to have been defective in some Particulars. From hence we may see what early Attempts were made to restrain this invaluable Liberty. So intolerant is the Nature of Power, wherever lodged, that they who have loudest exclaimed against such Restriction as a Badge of Slavery, were no sooner inverted with full Sway, than they began to work on the same Principles of Oppression. About the Year 1644, the Parliament made Ordinances for restraining the Press, which were framed on the Plan of the above Star Chamber Decree ; and against which Milton published a Treatise, called Areopagitica.
This Act was last continued by 1 Jac. 2. c. 17. for seven Years from June 1685; but being incompatible with the noble Principles of the Revolution, it has never since been, and it is to be hoped never will be, revived .
The Appendix likewise contains some very curious Acts never before printed, to the Editor's Knowledge. Of these the first is, the Second of Henry V. for the Union of the Rights and Possessions of the Earldom of Hereford to the Dutchy of Lancaster. These Possessions of the Earl of Hereford descended to Henry V. as Heir to his Mother, who was the Daughter and Heiress of Humphry Bohun, Earl of Hereford, Essex and Northumberland, and Constable of England: And without this Act the King would have been seized thereof in Jure Coronæ; therefore this Act was necessary to sever them from the Crown, which was done by annexing them to the Dutchy of Lancaster, which had been severed before.
This Act is immediately followed by 3 Hen. V. confirming the King's Letters Patent, respecting the Dutchy of Lancaster and its Stewards; which provides, that the Stewards of the said Dutchy shall be Justices of Peace within their Circuit; and that no Grant of any thing from the said Dutchy would pass but under the usual Seal.
For the better understanding these Statutes, it is to be observed with regard to the Dutchy of Lancaster, that it was first erected into a County Palatine by the 50 Ed. III. who honoured his Son John of Gaunt with it for the Term of his Life. It afterwards descended to Henry IV. in Right of his Mother. This politic Prince knew that his Title to the Dutchy was sure and indefeazible, and that he should be seized thereof as King, not as Duke: He knew likewise, that his regal Title was unjustly founded, and that he held the Scepter by a precarious Tenure; therefore, to avoid involving his patrimonial with his regal Rights, he very prudently passed a Charter by Authority of Parliament, by which the Possessions of the Dutchy were severed from the Crown; and thus it continued for some Time. But it is said, that the Possessions of the Duke of Lancaster were not made a Ducatus until the 2 Hen. V. for in the Parliament Roll of this Year, it is entered Quod figilla pro ducatu Lancastriæ allocentur, and that it should be governed per mintstros ducatus .The next memorable Statutes relative to this Dutchy, are two Acts passed in the 1 Edw. IV. being, among other Things, Acts of Forfeiture and Attainder against Henry VI. his Queen Margaret, and a great Number of Noblemen and Gentlemen of the Lancastrian Party. By these Acts the Dutchy of Lancaster and the County Palatine are united, being assured to Edw. IV. and his Heirs, Kings of England: And this was necessary, for without a Saving Statute, the County Palatine might have determined by the Attainder. Before these Ads, the Dutchy and the County Palatine were distinct Bodies, but they are hereby made one; and a Superiority is given to the Dutchy, as the supreme Name of Corporation. It is curious to observe in the Recitals to the first of these Acts, how minutely every Circumstance of Devastation and Cruelty, necessarily attendant on Civil Wars, is here enumerated and imputed wholly to the vanquished Party.
The History of this Dutchy is farther illustrated by the Act of 1 Henry VII. for vesting the Dutchies of Lancaster and Cornwall, &c. in Henry VII. and his Heirs, without saying Kings of England, and for settling the Dutchy of Cornwal on the first born Son of the said Henry. It is observable, that Henry VII. derived his Title under Henry IV. and that he copied the Policy of that Prince by separating the Dutchy again from the Crown.
The Reader will also find a very lingular Act of the 1 Eliz. giving Authority to the Queen's Majesty upon the Avoidance of any Archbishoprick or Bishoprick, to take into her Hands certain of the temporal Possessions thereof; recompensing the same with Parsonages impropriate, and Tenths. This indeed was an effectual way of securing the Revenue; and such a short and peremptory Expedient as was very confident with the Policy of this Princess.
The last of the Acts which, to the Editor's Knowlege, have never been in Print before, is the Statute of 13 Car. II. st. 1. for the Regulation of the publick Office of the Masters in Chancery; by which the Fees are settled and the Hours of Attendance ascertained.There are likewise several other Statutes in this Appendix, which do not require any Explanation or Comment; but which nevertheless contain not only Subjects of Curiosity to the Antiquarian, but Matter of Information to the Historian and Philosopher; who from thence may discover the Causes of many successive Changes which the Constitution hath undergone: And there cannot be a more pleasing and useful Exercise of the Mind, than to trace the Progress toward Refinement, through all the rude Stages of civil Policy. From such an Investigation, however, we shall be led to conclude, that fortuitous Events have often contributed, more than human. Foresight, toward its Improvement .
Besides the Acts printed in the Appendix, which have been omitted by late Editors, the Reader will find several in the Body of the Work which are not inserted in later Editions. Some of these are promised in the Preface; such as 1 R. III. touching Acts of Cestui que use, the 34 and 35 H. VIII. c. 4. concerning Bankrupts , the 39 Eliz. respecting Poor Laws, the 13 Eliz. for making the River Lee navigable, and the 12 Geo. II. for improving its Navigation. There are others likewise which it has been judged expedient to insert therein, such as the 10 W. III. c. 1. for granting an Aid to his Majesty for disbanding the Army, and other necessary Occasions, and the 4 and 5
W. III. c. 1, for granting to their Majesties an Aid of four Shillings in the Pound, &c.
The Editor, in short, hath been careful to insert all such Statutes, however antiquated, as appeared to him to contain any useful Information, or which might afford any Insight into the Constitution ; and he hath, upon the whole, endeavoured to render this Collection as compleat as his Abilities and Power of Attention would allow him  They who are best acquainted with the Difficulty of executing an Undertaking like This, will be most indulgent to its Defects.
- In the old Editions it is printed, What faith Sir R? which is not reconcileable with any Meaning whatever. This gross Inaccuracy was corrected by Mr Cay, who altered it to Who will give? and his Correction is retained in the Margin of the present Edition. But on farther Consideration, it is submitted to the Reader's Judgment whether the above Translation What will Sir R. give? is not nearer to the true Sense. In the Original French it is to be observed, that the Pronoun relative que is used, Que donera Sir R? but if we render it Who will give? it should be the Pronoun personal qui. There is another Circumstance in favour of this Translation, which is that the Verb nomera in grammatical Order, refers to the Justice who names the Party, and not (as Lord Coke supposes) to the Pleader or Serjeant; who must name him if the Question stands who? Beside, the Question What will Sir Robert give? seems more naturally to precede the next Section; which supposes the Sum given to be agreed on, in consequence of that Question; And it may be added, that this is the Question now asked on acknowleging a Fine at Bar.
- This Fine pro Licentia concordandi, is sometimes called the King's Silver, and the post Fine. It is called the post Fine in contradistinction from the primer Fine, or Prefine in the Hamper; for in every Real Action of Lands and Tenements of the yearly Value of five Marks, there is due upon the Original, for every five Marks, 6 s. 8 d. to the Hamper or Haniper: And a write of Covenant is held to be a real Writ for which such fine is paid. But the post Fine is not due until the Conge d' accorder or License to agree be granted by the Court, and it amounts to as much as the premier Fine, and half as much more. 2 Inst. 511.
- A dreadful Catalogue! and daily multiplying!
- The words in the Latin are, qupd amodi pacem servabunt &c. The word amodo is an obsolete Adverb, which signifes henceforth: And in the marginal Note, the Reader will percive that a gross Error has intervened; for instead of distinguishing it as an abverb, according to the Editor's Intention, it stands altered to quoadmodo, a word not to be found in the language
- Cotton's Post. 166.
- This Commission is printed in the Appendix
- Cotton's Post. 168
- Lord Bacon, Vol. II. P. 294
- It is submitted to Public Consideration, whether some Provision is not requisite at this Time, to prevent the engrossing of large Farms into one Hand: For though it may be more for the present Ease and Benefit of the Landlord to have one overgrown opulent Tenant, than to have several of moderate Circumstances; yet such a monopolizing of Farms seems to have a manifest Tendency to depopulate the Kingdom.
- 4 Inst. 9.
- See Lord's Journal, Die Mecurii, 1667.
- See Grey's Parl. Debates, 38.
- See Rushworth's Collections, 662.
- Burn's Eclesiastical Law, Vol. II. p. 5.
- 2 Vent 9.
- The Word Offensive is a Word of dangerous Latitude : But the Words are copied liberatim from the Star Chamber Decree, of which mention will be made hereafter.
- This Decree is so scarce, that it is imagined there is only one copy Extant, which is preserved in a private Library.
- There is an edition of the Areopagiticia published by A. Millar in 1738, with a sensible and spirited Prface, by Mr. Thomson, Author of the Seasons
- It is impossble, however, on this Occasion to avoid lamenting the many flagrant Instances, wherein the Liberty of the Press has been lately abused by such wanton and indiscriminate Scurrility, as tends to make publick Censure lose its Effect, and render Men callous to the Stings of Reproof.
- Counties Palatine are certain Counties which have Jura Regalia for the Administration of Justice, &c. within themselves. They are either by Prescription, such as Chester; or by Statute, as this of Lancaster. These Palatinates had their Foundation in good Policy; for it is reasonably supposed, that Lancaster, Durham and Chester were so made, because they were adjacent to Enemies Countries, viz. the two first to Scotland, and Chester to Wales. So that the Inhabitants having Administration of Justice at home, and not being obliged to attend other Courts, those Parts were not left destitute of Men, who might secure the Country from Incursions. The Power of these Counties Palatine was antiently very exorbitant, but was greatly abridged by 27 Hen. 8. c. 24.
- See 4 Inst. 204. 1 Vent. 157.
- However the Statute Law of this Kingdom may fall short of Perfection, which no human Institutions can attain, yet it ought to be prized by every Friend of our excellent Constitution; as among other Excellencies, it contains the valuable Charters by which we hold that Liberty which is our peculiar Boast. With regard to the Great Charter, though it is obsolete, so far as it regards the feudal Regulations; the 29th: Clause, nevertheless, which contains general Provisions for the Preservation of publick Freedom, and the Security of Property, is still in force. The Liberties of the Subject, however, are farther and more particularly ascertained by the famous Petition of Right of the 3 Car. I. whereby the Lords and Commons, among other Things, claim, that no Man be compelled to make or yield any Loan, Tax, or such like Charge, but by Consent of Parliament: That no Freeman be imprisoned for such Refusal: That no Soldiers or Mariners be quartered upon the People, &c.
It is observable, that when the Commons had framed this Petition, and presented it to the Lords for their Concurrence, the latter thought proper to make the following Addition in the Conclusion:
"We present this our humble Petition, to your Majesty, with the Care not only of preferving our own Liberties, but with due regard to leave entire that Sovereign Power wherewith your Majesty is trusted for the Protection, Safety and Happiness of the People."
This Addition produced a Conference between the two Houses, wherein the Commons objected against the dangerous Saving included in those Words Sovereign Power; and their Arguments were so cogent and irresistible, that they induced the Lords to withdraw their Addition: And they at length agreed in all Points with the Commons [notes 1]
It is worthy of Remark, with how much Difficulty his Majesty was brought to give a satisfactory Answer to this Petition. At first he answered, " The King willeth, that right be done according to the Laws and Customs of the Realm, &c." But this not being thought sufficiently clear and precise, the Commons pressed his Majesty to be more explicit: To which he replied, "The Answer I have already given you, was made with so good Deliberation, and approved by the Judgments of so many wise Men, that I could not have imagined, but it mould have given you full Satisfaction; but to avoid all ambiguous Interpretations, and to shew you there is no Doubleness in my Meaning, I am willing to pleasure you in Words as well as Substance: Read your Petition, and you shall have an Answer that I am sure will please you." Whereupon the Petition being read, the King returned the Answer, which the Reader will find in the Statute Book: Sett Droit fait tome est desire.
But the last and most glorious Charters, by which our Liberty is secured, are the Bill of Rights, and the Act of Settlement. By these there is an actual Compact established between the King and the Subject. The Rights of the People are enumerated and asserted, the Crown is tendered and accepted, on the Condition of the King's preserving the Rights so asserted, from Violation: And publick Liberty is not left to be supported by obsolete Precedents or litigated Interpretations.
- In the 34th and 35th of Henry the Eighth, which is the first Act against Bankrupts, and which in this Edition is printed at large, there is a Clause which appears to be unrepealed; and which is as follows:
" And be it enacted, That if any such Person or Persons, which shall be indebted, do withdraw himself out of this Realm, or other the King's Dominions, into any foreign Realm or Country, to the Intent thereby to abide and remain in Defraud of his Creditors; that then, upon Complaint in Writing, concerning the Premises thereof, made to the said Lords, having Authority as is aforesaid, the fame Lords shall, by Virtue and Authority of this present Act, have full Power and Authority to award Proclamations to be made in such Places as to them shall be thought meet and convenient; commanding by the same, such Offender, in the King our Sovereign Lord's Name, to return with all convenient Speed into this Realm, and to yield his Body before the faid Lords, having Authority as is aforesaid, or one of them; and if the said Person, within three Months next after he shall have knowledge of such Proclamation, or as soon after as he conveniently may, do not repair and yield his Body as aforesaid, that then the Body of all and every such Offender and Offenders, shall be judged, taken and deemed, to all Intents and Purposes, out of the King's Protection: And that also all Goods, Chattels, Lands, Tenements and Debts of every such Offender, shall be, by Order of the said Lords, employed and distributed among his Creditors, equally and indifferently, Rate for Rate, in like Manner and Form as is afore declared.
This Clause seems to have provided against a Consequence not within the Letter of the subsequent Statutes : For those Statutes only make it an Act of Bankruptcy to depart the Realm with Intent to defraud Creditors ; but if a Debtor should go abroad without such fraudulent Intent, and with the Knowledge and Consent of his Creditors ; and should afterwards remain there, and grow in opulent Circumstances, without paying any Regard to his Creditors : In this Case it might be doubted, whether he were a Bankrupt within the Defcription of these Acts. But the Clause above mentioned provides a Remedy against fuch, as; having withdrawn themselves out of the Realm, remain there with Intent to defraud their Creditors 3 and in this Respect is more full than the subsequent Statutes.
- The 10 W. 3. c. 1. in the later Editions, is said to be expired ; but it may be questioned, whether in Part it is not still in Force. With regard to the 4&5 W. 3. c. 1. all the subsequent Land-Tax Acts refer to it, and Assessments are made from it. Though, properly speaking, the 1 W. 3. c. 20. which is to be found in the Appendix, is the first Land-Tax Act.
- Among the various Proposals which have been suggested for the Improvement of this Edition, one of our Correspondents propossed our printing all the Acts relating to particular Manors. But such a Plan would have enlarged this Collection to a very inconvenient Size : As the Statute Laws of this Kingdom are now become so exceedingly voluminous, and are daily increasing, both in Number and Extent, it is almost: impracticable to retain those Acts which are merely local. For this Reason it has been usual in the later Editions to omit the Road Acts, and others, which, though they are declared to be publick Acts, are nevertheless of a local and private Nature. It has been thought proper, however, to preserve the Titles of such Acts in the present Edition ; and some of them having been omitted in the Table of Contents to the eighth Volume, they are prefixed to the Contents of this : Though, perhaps, had they been wholly left out, it would have been no Loss to our Purchasers ; as the Acts themselves are now never printed, even in the annual Collections
Middle-Temple, Nov. 28th, 1764,
- For the Speeches made on this Occasion, see Rushworth's Collections, Vo'. 1.