The Statutes of the Realm/Volume 1/Introduction/Chapter 3/Section 1

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The Statutes of the Realm, Volume I, Introduction, Chapter III
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Introduction, Chapter III, Section I

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3905650The Statutes of the Realm, Volume I, Introduction, Chapter III
— Introduction, Chapter III, Section I1810the Record Commission

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Sect. I.

Of the Matters inserted in this Collection of the Statutes; and their Arrangement

1. All Instruments whatever, comprehended in any of the several Collections of Statutes printed previous to the Edition by Hawkins, are inserted in this Work; these having for a long Series of Years been referred to, and accepted as Statutes in Courts of Law: Together with these are inserted all Matters of a public Nature, purporting to be Statutes, first printed by Hawkins or any subsequent Editor; and also New Matters of the like Nature, contained in any Statute Rolls, Inrollments of Acts, Exemplifications, Transcripts by Writ, and Original Acts, although not heretofore printed in any general Collection of Statutes. All these are placed in the Body of the Work as Text. But it is to be particularly observed, that any Decision upon the Degree of Authority to which any new Instrument may be entitled, as being a Statute or not, is entirely disclaimed.

At the Foot of the Text in each page, there are added, such Various Readings as appeared necessary to correct its Errors, or to supply its Deficiencies;^[1] or to reconcile any material Contradiction or Repugnancy between the Text and the Translation; or between different Copies of the Text, where they were of equal or of nearly equal Authority. In the earlier Reigns, or in the Absence of any Authentic Source for the Text, such Various Readings are noted with much greater Freedom than in later Times, or where Authentic Sources exist. Writs and other Instruments, having direct or material Reference to the several Statutes, are occasionally subjoined by way of Notes. These Various Readings and Instruments are taken from the following Sources: Inrollments of Acts; Exemplifications; Transcripts by Writ; Original Acts; Rolls of Parliament; Close, Patent, Fine, and Charter Rolls; Books containing Entries of Record; Antient Books and Manuscripts not of Record, but preserved in the Repositories of Courts of Justice, and Corporation Offices; or in the Libraries of Cathedrals, Universities, Colleges, or Inns of Court, and at the British Museum: Various Readings have been also admitted from the Printed Editions; occasionally in Confirmation of the Manuscript Sources, and more frequently in Cases where those Sources have been found deficient.

Every Thing heretofore printed in any former Collection of Statutes, is in this Volume printed in an uniform Type; and all new Matters, whether Various Readings, Notes, or entire Statutes or Instruments, are distinguished by a smaller Type. The entire Matters whether old or new, of which the Dates are ascertained, are placed in Chronological Order; and all, during the Reigns of Hen. III. Edw. I. and Edw. II., the Dates of which are uncertain, are classed together, after the Manner of former Editions, at the End of the Reign of Edward II.

A compleat Enumeration of all Matters included in this Collection, whether as Text or in the Notes, is exhibited in a general Chronological Table of Contents prefixed to the Body of the Statutes; specifying the Source or Authority, from whence the Text, Notes, and Various Readings are respectively taken.

2. Other Matters of a Parliamentary Form and Character have been recognized at different Periods of our History, as appearing to have Legislative Authority. It has been observed by Lord Coke, that “Acts of Parliament are many times in form of Charters or Letters Patent;”^[2] and many such have been inserted in all Editions of the Statutes: and that there are “many Acts of Parliament that be in the Rolls of Parliament and never yet printed:”^[3] In the Report also of the Select Committee of the House of Commons, in the Year 1800, upon the Subject of the Public Records, it is stated, that many Statutes and Ordinances in the Rolls of Parliament are not inserted in the Printed Statute Books; And it is certain that many Acts and Matters not found on any Statute Roll, nor contained in any printed Editions of the Statutes, are found on the Parliament Rolls, which appear to have received the threefold Assent of King, Lords, and Commons, or to have such Qualities, as have been allowed by Courts of Law to imply that Assent.^[4]

With a View therefore to a Consideration of the Question, whether Matters of this Nature should be comprehended in the present Work, Lists of a great Number of them were prepared, not only from the Parliament 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.^[5] 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,^[6] 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,^[7] 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:^[8] 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.^[9]

From these Considerations therefore, upon mature Deliberation, it has been deemed advisable that this Collection should include all such Instruments as have been inserted in any general Collection of Statutes printed previously to the Edition by Hawkins; with the Addition, only of such Matters of a public Nature, purporting to be Statutes, as were first introduced by him or subsequent Editors, and of such other New Matters of the like Nature, as could be taken from Sources of Authority not to be controverted; namely, Statute Rolls, Inrollments of Acts, Exemplifications, Transcripts by Writ, and Original Acts.

In the 31st Year of Henry VIII. the Distinction between Public Acts and Private Acts is for the first Time specifically stated on the Inrollment in Chancery.^[10] No Private Acts passed after that Date have been admitted into this Collection: It has been thought sufficient to notice them, by the Insertion of their Titles only.

↑ Many Instances of Errors and Deficiencies exist even in the Statute Roll; it may be sufficient to quote the Clause in Chapter 5, of the Statute Westminster the Second, respecting Damages in Writs of Darrein Presentment and Quare Impedit: In this Clause, the Words which give the Patron damages to the Amount of Two Years Value of the Church, in case of lapse to the Bishop, by reason of the disturbance of the Presentation, are omitted on the Roll. In Chapter 28 of the same Statute, the Statute of Gloucester is quoted instead of the Statute of Westminster the First. See pa. 77, note 6—8; and page 85, note 5 of the Statutes in this Volume.
↑ 2 Inst. 525; and see also the Prince’s Case 8 Rep. 13, throughout. The Creation by Edward III. of his eldest Son to be Duke of Cornwall, was by the King’s Letters Patent, dated at Westminster 17th March, in the 11th Year of his Reign, and therein recited to be “de cõi assensu & consilio Prelatoꝝ, Conitū, Baronū, & alioꝝ de consilio nr̃o in p͛senti ꝑliamento nr̃o apud Westm̄ die Lune ꝓx̃ post festū Sc̃i Mathie Apl̵i ꝓx̃ p͛terito convocato, existenciū.”—The Parliament Roll of that Year is not now known to exist; But the Letters Patent are inrolled on the Charter Roll of that Year, m. 28. nu. 60: Other Letters Patent relating to the Duchy and its Rights, dated at Westminster, 18th March in the same Year, are entered on the same Charter Roll m. 26. nu. 53: and others dated at the Tower of London, 3 January in the same Year, m. 1. nu. 1. of the same Roll.—These Letters Patent are briefly recited in Rot. Parl. 5 H. IV. nu. 22. and fully in Rot. Parl. 38 Hen. VI. nu. 29.—For other antient Grants relating to the Duchy, See Rot. Cart. 11 Edw. III. m. 7. nu. 14: m. 1. nu. 1: and 16 Edw. III. m. 1. nu. 1.
↑ 4 Inst. 50; and see also Co. Litt. 98, a. b; and the Year Book 7 Hen. VII. 14, 15, 16.
↑ On the Trial of the Earl of Macclesfield in 1725, before the House of Lords, on an Impeachment for Extortion in his Office of Chancellor, the Entry in Rot. Parl. 11 Hen. IV. nu. 28. of the Petition of the Commons, “that no Chancellor, Judge, &c. 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.
↑ 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.
↑ See Pa. xxxvii, and Note 4 there.
↑ 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.”
↑ See Co. Litt. 159 b. and the Note thereon in the last Edition: and 4 Inst. 25.
↑ 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 Statutes were repealed by it; and that Words of Enactment for Statute are expressly used therein. See Rot. Parl. 37 Edw. III. Part 1. nu. 38, 39: 38 Edw. III. nu.11: 1 Ric. II. nu. 15: Rot. Stat. 37 Edw. III. m. 5, 6: 38 Edw. III. m. 6 d: Chapters 16 and 19 of the Statute 37 Edw. III; and Chapter 2 of Stat. 38 Edw. III. Stat. 1. as printed in pages 378, 382, 383, of the Statutes in this Volume: and further, Rot. Parl. 38 Edw. III. nu. 9, and the Ordinances there recited, which were entered on the Statute Roll, and are printed as a Statute of that Year in all Editions, and in page 385 of this Volume. See also Prynne’s Irenarchus Redivivus, p. 27, &c. in which, contrary to Lord Coke’s Authority, 4 Inst. 25, he lays it down that Ordinances and Acts of Parliament were one and the same.

In Clarendon’s History of the Rebellion sub. an. 1641-2, Vol. I. Part. II. page 431. (8° Edit. Oxford 1707.) it is stated that “An Ordinance for settling the Militia was agreed on by both Houses, and sent to the King for his Approbation.”—The Form of the Ordinance follows: It is entitled, “An Ordinance of both Houses of Parliament for the ordering of the Militia,” &c.—After a short Preamble the formal Words are, “It is ordained by the King the Lords and Commons now in Parliament assembled, That,” &c.—In the first answer which the King sent, he said “that to avoid all future doubts and questions, he desired it might be digested into an Act of Parliament rather than an Ordinance; so that all his Subjects might thereby particularly know, both what they were to do and what they were to suffer for their neglect.” pa. 437, 8.—Afterwards the King in answer to a Petition presented by the Commons says, “For the Militia - - - - we never denied the thing - - - we only denied the way. You ask it by way of Ordinance - - - we tell you we would have the thing done - - - but desire a Bill, the only good old way of imposing on our Subjects. We are extremely unsatisfied what an Ordinance is, but well satisfied that without our Consent it is nothing nor binding.” pa. 70.—A Bill was afterwards prepared by the King’s Order, and submitted to both Houses, who made several Alterations in it.—In the King’s Message, refusing the Royal Assent to the Bill so altered, his Majesty told them “he was pleased they had declined the unwarrantable course of their Ordinance, to the which he was confident his good Subjects would never have yielded their Consent, and chosen that only right way of imposing upon the People.” pa. 503. In the King’s Declaration in answer to that made by the two Houses, whereby they assumed the Power of the Militia, “He said it was true that he had, out of tenderness of the Constitution of the Kingdom, and care of the Law, which he was bound to defend, and being most assured of the unjustifiableness of the pretended Ordinance, invited and desired both Houses of Parliament to settle whatsoever should be fit of that Nature by Act of Parliament.” pa. 524.
↑ See Appendix E. subjoined to this Introduction.

[1_31_1-1] Many Instances of Errors and Deficiencies exist even in the Statute Roll; it may be sufficient to quote the Clause in Chapter 5, of the Statute Westminster the Second, respecting Damages in Writs of Darrein Presentment and Quare Impedit: In this Clause, the Words which give the Patron damages to the Amount of Two Years Value of the Church, in case of lapse to the Bishop, by reason of the disturbance of the Presentation, are omitted on the Roll. In Chapter 28 of the same Statute, the Statute of Gloucester is quoted instead of the Statute of Westminster the First. See pa. 77, note 6—8; and page 85, note 5 of the Statutes in this Volume.

[1_31_2-2] 2 Inst. 525; and see also the Prince’s Case 8 Rep. 13, throughout. The Creation by Edward III. of his eldest Son to be Duke of Cornwall, was by the King’s Letters Patent, dated at Westminster 17th March, in the 11th Year of his Reign, and therein recited to be “de cõi assensu & consilio Prelatoꝝ, Conitū, Baronū, & alioꝝ de consilio nr̃o in p͛senti ꝑliamento nr̃o apud Westm̄ die Lune ꝓx̃ post festū Sc̃i Mathie Apl̵i ꝓx̃ p͛terito convocato, existenciū.”—The Parliament Roll of that Year is not now known to exist; But the Letters Patent are inrolled on the Charter Roll of that Year, m. 28. nu. 60: Other Letters Patent relating to the Duchy and its Rights, dated at Westminster, 18th March in the same Year, are entered on the same Charter Roll m. 26. nu. 53: and others dated at the Tower of London, 3 January in the same Year, m. 1. nu. 1. of the same Roll.—These Letters Patent are briefly recited in Rot. Parl. 5 H. IV. nu. 22. and fully in Rot. Parl. 38 Hen. VI. nu. 29.—For other antient Grants relating to the Duchy, See Rot. Cart. 11 Edw. III. m. 7. nu. 14: m. 1. nu. 1: and 16 Edw. III. m. 1. nu. 1.

[1_31_3-3] 4 Inst. 50; and see also Co. Litt. 98, a. b; and the Year Book 7 Hen. VII. 14, 15, 16.

[1_31_4-4] On the Trial of the Earl of Macclesfield in 1725, before the House of Lords, on an Impeachment for Extortion in his Office of Chancellor, the Entry in Rot. Parl. 11 Hen. IV. nu. 28. of the Petition of the Commons, “that no Chancellor, Judge, &c. 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_32_1-5] 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.

[1_32_2-6] See Pa. xxxvii, and Note 4 there.

[1_32_3-7] 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.”

[1_32_4-8] See Co. Litt. 159 b. and the Note thereon in the last Edition: and 4 Inst. 25.

[1_32_5-9] 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 Statutes were repealed by it; and that Words of Enactment for Statute are expressly used therein. See Rot. Parl. 37 Edw. III. Part 1. nu. 38, 39: 38 Edw. III. nu.11: 1 Ric. II. nu. 15: Rot. Stat. 37 Edw. III. m. 5, 6: 38 Edw. III. m. 6 d: Chapters 16 and 19 of the Statute 37 Edw. III; and Chapter 2 of Stat. 38 Edw. III. Stat. 1. as printed in pages 378, 382, 383, of the Statutes in this Volume: and further, Rot. Parl. 38 Edw. III. nu. 9, and the Ordinances there recited, which were entered on the Statute Roll, and are printed as a Statute of that Year in all Editions, and in page 385 of this Volume. See also Prynne’s Irenarchus Redivivus, p. 27, &c. in which, contrary to Lord Coke’s Authority, 4 Inst. 25, he lays it down that Ordinances and Acts of Parliament were one and the same.

In Clarendon’s History of the Rebellion sub. an. 1641-2, Vol. I. Part. II. page 431. (8° Edit. Oxford 1707.) it is stated that “An Ordinance for settling the Militia was agreed on by both Houses, and sent to the King for his Approbation.”—The Form of the Ordinance follows: It is entitled, “An Ordinance of both Houses of Parliament for the ordering of the Militia,” &c.—After a short Preamble the formal Words are, “It is ordained by the King the Lords and Commons now in Parliament assembled, That,” &c.—In the first answer which the King sent, he said “that to avoid all future doubts and questions, he desired it might be digested into an Act of Parliament rather than an Ordinance; so that all his Subjects might thereby particularly know, both what they were to do and what they were to suffer for their neglect.” pa. 437, 8.—Afterwards the King in answer to a Petition presented by the Commons says, “For the Militia - - - - we never denied the thing - - - we only denied the way. You ask it by way of Ordinance - - - we tell you we would have the thing done - - - but desire a Bill, the only good old way of imposing on our Subjects. We are extremely unsatisfied what an Ordinance is, but well satisfied that without our Consent it is nothing nor binding.” pa. 70.—A Bill was afterwards prepared by the King’s Order, and submitted to both Houses, who made several Alterations in it.—In the King’s Message, refusing the Royal Assent to the Bill so altered, his Majesty told them “he was pleased they had declined the unwarrantable course of their Ordinance, to the which he was confident his good Subjects would never have yielded their Consent, and chosen that only right way of imposing upon the People.” pa. 503. In the King’s Declaration in answer to that made by the two Houses, whereby they assumed the Power of the Militia, “He said it was true that he had, out of tenderness of the Constitution of the Kingdom, and care of the Law, which he was bound to defend, and being most assured of the unjustifiableness of the pretended Ordinance, invited and desired both Houses of Parliament to settle whatsoever should be fit of that Nature by Act of Parliament.” pa. 524.

[1_33_1-10] See Appendix E. subjoined to this Introduction.

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