Front Page Titles (by Subject) 26.: THE COMMISSIONERS, AN HISTORICAL SURVEY OF ANCIENT ENGLISH STATUTES 1 - Select Essays in Anglo-American Legal History, vol. 2
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26.: THE COMMISSIONERS, AN HISTORICAL SURVEY OF ANCIENT ENGLISH STATUTES 1 - Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, vol. 2 
Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1908). Vol. 2.
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AN HISTORICAL SURVEY OF ANCIENT ENGLISH STATUTES1
NO Complete and Authentic Edition of the Statutes has hitherto been undertaken by authority; nor has the design itself ever been suggested, simply, and without connection with other schemes of reformation or improvement.
A general revision of the statute law has been often reccommended from the throne; and has been petitioned for by both houses of Parliament; It has engaged the labours of successive committees, and has been undertaken by individuals sometimes with, and sometimes without, the sanction of royal or parliamentary authority; but has never yet been carried forward to any degree of maturity.
In Queen Elizabeth’s Reign ad 1557, Sir N. Bacon, Lord Keeper, drew up a short plan for reducing, ordering, and printing the Statutes of the Realm. The following are the heads of this plan:3 “First where many lawes be made for one thing, the same are to be reduced and established into one lawe, and the former to be abrogated.—Item, where there is but one lawe for one thing, that these lawes are to remain in case as statutes.—Item, where part of one acte standeth in force and another part abrogated, there should be no more printed but that that standeth in force.—The doing of these things maie be committed to the persons hereunder written, if it shall so please her Majesty and her Counsell, and daye wolde be given to the committees until the first daie of Michaelmas terme next coming for the doing of this, and then they are to declare their doings to be considered of by such persons as it shall please her Majesty to appoint.” Then follow lists of twenty committees of four each, in which the judges, sergeants, attorney and solicitor general, &c. are named; One judge, &c. and three counsel forming a committee, to each of which it was proposed that a title or division of the statute law shall be referred.
The subject was afterwards taken into consideration, so far as related to the penal laws, at subsequent periods in the reign of the same Queen, viz. Anno 27, ad 1585.1 —Anno 35, ad 1593.2 —Anno 39 & 40, ad 1597.3 —Anno 43, ad 1601.4 —In the proceedings in 1593 and 1597 Sir Francis Bacon took part, and upon them he appears to have founded his sketch, or plan of a general revisal of the statute law.5 —King James I., upon his accession to the throne of England, 1603-4, and in subsequent periods of his reign, recommended also to Parliament a reform of all the statute law and of the penal laws in particular.6
In the year 1610 a digest and repeal of the penal law was expressly stipulated for by the House of Commons, and acceded to by the House of Lords, in their joint transaction of the great contract with the Crown;7 and in the same reign Sir Francis Bacon, Lord C. J. Hobart, Serjeant Finch, Mr. Noy, and others, by the King’s command, made considerable progress in the general work of reforming and recompiling the statute law, which Lord Bacon describes8 as “an excellent undertaking, of honour to his Majesty’s times, and of good to all time;” and recommends, in imitation of the statutes of 27 Hen. VIII. c. 15, and 3 & 4 Edw. VI. c. 11, for appointing commissioners to examine and establish ecclesiastical laws, that commissioners be named by both houses for this purpose also, with power not to conclude, but only to prepare and propound the matter to Parliament.
In the British Museum is preserved a manuscript volume1 containing the plan of an elaborate report, particularizing the several statutes, from the statute of Westminster First, 3 Edw. I. to 7 Jac. I. 1609, then actually repealed or expired, and also the statutes thought fit either to be absolutely repealed, or to be repealed and new laws to be made in their place. Possibly this may be the very work spoken of by Sir Francis Bacon.2 It is drawn up as by authority, with detailed reasons for every proposed measure; but it is not signed by, or addressed to, any one. A table is subjoined to it, exhibiting the result of the report.
Among the papers of Mr. Petyt, in the inner Temple Library3 is a letter of Lord Bacon’s dated 27th, February 1608, which shews that he had the advantage of using for his proposed plan a manuscript collection of the statutes made with great labour by Mr. Michael Heneage, keeper of the Tower records, in five large volumes, which it is feared has been lost. Lord Bacon’s disgrace at the latter period of the reign of King James I. and the distractions of the Government in what related to Parliament, were probably the causes of the failure of these measures, and of the silence that ensues respecting them in parliamentary history.
During the usurpation, the same undertaking was resumed with ardor. In 1650, a Committee was named, one of the members whereof was Bulstrode Whitelock, then first Lord Commissioner for the Custody of the Great Seal: the purpose was “to revise all former statutes and ordinances, now in force and consider as well which are fit to be continued, altered, or repealed, as how the same may be reduced into a compendious way and exact method, for the more ease and clear understanding of the people.” And the committee were empowered “to advise with the judges and to send for and to employ and call to their assistance therein, any other persons whom they should think fit, for the better effecting thereof, and to prepare the same for the further consideration of the house, and to make report thereof.”1 But no such report has been preserved.
In 1651-2, Mathew Hale, Esq., afterwards Lord Chief Justice Hale, Sir Anthony Ashley Cooper, afterwards Lord Shaftesbury and Rushworth, the author of the historical collections, with other persons out of the House, were appointed to report to the committee their opinions upon the inconveniences of the law; and a revised system of the law was reported to the House in the course of the same year.2 The same labour was afterwards transferred to other hands, but the work was not abandoned; and in 1653, a committee was appointed to consider of a new model or body of the law.3 But of this committee no proceedings are now discoverable.
After the restoration, Finch, Solicitor General, afterwards Earl of Nottingham and Lord Chancellor, Serjeant Maynard, Sir Robert Atkins, Mr. Prynne and others, were appointed in 1666, to be a committee “to confer with such of the Lords, the Judges, and other persons of the long robe, who have already taken pains and made progress in perusing the statute laws; and to consider of repealing such former statute laws as they shall find necessary to be repealed; and of expedience for reducing all statute laws of one nature under such a method and head as may conduce to the more ready understanding and better execution of such laws.”4 This, however, was as ineffectual as any of the former measures; and it is the last recorded instance of the interference of Parliament on the subject, previous to those proceedings which gave rise to the commissions under the authority whereof the present work has been executed.
The earliest instance of the exertions of any individuals without the sanction of parliamentary authority, towards making a collection of statutes from authentic sources, appears to have been afforded by Pulton.—He was a learned barrister, of great age and experience, and was employed for several years in the consideration of the statute law. He published two useful books upon that subject; first, an abridgement of the penal statutes; and afterwards a calendar or abstract of all the statutes in use, chronologically arranged; together with an alphabetical abridgement of them, in the manner of Rastall’s collection. He appears to have been encouraged and assisted in his first work by Sir William Cordell, then Master of the Rolls, to whom it is dedicated; various editions of this were published from 1560 to 1577. His calendar, first published about 1606, is distinguished by the following expression in the title page, viz: “Editum per mandatum Domini Regis.” But nothing else, either in the book or elsewhere, has been found to confirm any marks of royal authority upon the contents of the book. After the publication of these works, without any public patronage or recommendation beyond the permission to use the records, he conceived the plan of copying from their original records, and printing for general use, all the statutes supposed to be in force.
This plan it will be useful to state at length: And this we are enabled to do by the preservation of the papers, containing his original scheme, among Sir Robert Cotton’s manuscripts in the British Museum.1 In one of these papers the design is set forth: it is indorsed, in a hand frequent among the Cottonian manuscripts, “concerning Mr. Pulton’s suite;” and has no other title, mark or description at the beginning or end; though by another article referring to it, there is proof of its date being in or previous to 1611. “Mr. Pulton seeketh to print the statutes at large. He promiseth to set down which statutes or parts of statutes are repealed, and which, being at the first but temporary, are since expired and void, because not revived. This he hath already done in his late abridgement, for which he had a recompense of the printer. Now, to make this new book at large saleable, he promiseth to print the statutes first in the language the same were first written; and such as were originally in French or Latin, he will translate and print likewise in English. Where the statute has no title, he will devise a title out of the body, and print it with the statute. He will set down which statutes are warranted by the record, and which not. He will correct the printed book by the record. For which purpose he requireth free access at all times to the records in the Tower. Being very aged, viz. almost four score, he desireth that for his ease and better enabling in his work, the keeper of the records within the Tower of London, may every day deliver unto him, when he shall so require, one Parliament Roll, to be by him and his clerk perused and viewed, in a lodging which he hath taken near unto the said office; the same afterwards to be redelivered by them to the said keeper thereof. That the clerk do help further, and assist him in this service by all the means he can.”
Several objections to the prosecution of this plan were made by Bowyer and Elsyng, keepers of the Tower records; among others, that they and their predecessors had actually prepared materials for the work in question, and that they then had ready written five volumes of statutes copied from the records. These were perhaps the volumes alluded to in Lord Bacon’s letter before mentioned.1 The dispute between the parties was continued for some time; but there remains among the Cottonian manuscripts2 a draft of an award for its determination by Sir Robert Cotton himself, to whom they referred their differences; and from a paper in the British Museum, among the manuscript of Mr. Madox,3 it appears that an order of Council passed on the 24th October, 1611, granting license to Pulton to have the use of the records in the manner asked. It recites that he undertook the work by persuasion of the judges and others learned in the laws, and requires the keepers of the records, on account of the importance of the work, and for the benefit of the learned, to assist and further him all they can.
Pulton lived to publish the proposed edition in 1618; which is the work already spoken of as Pulton’s English Statutes. In his preface, after noticing the redundancies of former editions, containing subsidy Acts and other Acts “expired, repealed, altered, and worn out of use,” and his intention to publish such only “which be now in life, force, and general use,” he gives the following statement of the means he had employed in compiling his collection.
“First, with as great means, care, and industry, as possibly I could use, so many of the old statutes heretofore printed in the English tongue, made and published in the reigns of the first ten kings (accounting from 9 of Hen. III. unto 1 Ric. III. inclusive) as be chiefly in use and practice, and which are the foundation of proceedings both legal and judicial, have been by me truly and sincerely examined by the original records thereof remaining in the Tower of London, and the residue with the Register of Writs, being the most antient book of the law, the old and new Natura Brevium, the Books of Entries, the Books of Years, and Terms of the Law; the best approved, printed, and written books; and by all such other circumstances, as might best give probability of truth unto the learned. By reason whereof, the aforesaid defects, imperfections, and emblemishments being reformed in this edition, as it is a collection of the most usual laws, gathered from out the Grand Codex of all the statutes, so it may serve as a correction to the former impressions.”
The defects of Pulton’s publication, as a general collection of statutes, are chiefly these: 1st. As to the statutes preceding Henry VII., it is a translation in English, and does not exhibit the text in the original language of the records, as might have been expected from his proposal: 2dly. Though it had the permission, it had not the authority of the king, by whom all acts of legislation are to be communicated to the subject; and was only the private work of an individual for his own benefit: 3dly. It is a partial selection of such statutes as in the judgment of the author, were fittest to appear in his book; their authority and use, whether in force or repealed, depending on his opinion: 4thly. It is not, nor does it purport to be, a correct and examined copy from the original records, of all those acts which are given at large; but of such only as the author thought necessary so to examine and correct: and it is left uncertain, which, and how many of them were taken from printed or written books. It has, therefore, though in a less degree, the same faults as all the collections and editions of statutes printed before; and it was particularly unfortunate that the author did not execute that part of his proposals which made their greatest merit, namely, the giving an accurate copy of the original text of the antient statutes from the record.
These objections are no less applicable to the editions by Hawkins and Cay, as falling short of the character of a complete and authentic collection of the statutes. They professed indeed to have copied their text from original records, or other manuscripts, in Latin and French; but by printing some statutes and parts of statutes, with a translation, and some without it, and giving only a translation of others, they have rendered their editions liable to still further objections, for which no subsequent editor has hitherto attempted to offer a remedy.
From the preceding statement, the necessity and use of an authentic publication of the statutes of the realm will appear: For, although the defects of all former collections have been long complained of by learned and eminent men, and although various propositions have been offered at different times, for an authentic publication of the statutes, none such has yet been executed. At length, however, a select committee, appointed by the House of Commons of Great Britain, in the year 1800, to enquire into the state of the public records of the kingdom, having reported upon this branch of the matters referred to their consideration, that in their opinion, it was “highly expedient for the honour of the nation, and the benefit of all his Majesty’s subjects, that a complete and authoritative edition of all the statutes should be published;” in pursuance of their recommendation the present work has been undertaken and executed; under the authority and direction of commissioners specially appointed by his Majesty to carry into effect the several measures which were by that committee recommended to the attention of Parliament.
Sect. I.—Of the Matters inserted in this Collection of the Statutes; and their Arrangement. Sect. II.—Of the Sources from whence the several Matters have been taken. Sect. III.—Of the Mode used in searching for, transcribing, collating, noting, and printing the Text of the Statutes.
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 the statutes printed previous to the edition of 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.
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 the form of charters or letters patent;”1 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:”2 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 book; and it is certain that many Acts and matters not found on any statute roll, nor contained in any printed edition of the statutes, are found on the Parliament Rolls, which appeared 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.3
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.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
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, exemplification, 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 enrollment in Chancery. 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.
Of the Sources from whence the several Matters have been taken.
1. The sources from which the materials have been taken for this collection, are necessarily of a different character and description in different periods of our history.
The earliest statutes contained in the several collections are those of Henry III.; but no parliamentary record of statutes is now known to be extant, prior to the Statute Roll 6, Edw. I. To this interval nevertheless belong the statutes of Merton, Marlborough, Westminster the First, and several others, always included in the printed editions. For this early period, therefore, recourse must be had to inferior sources for the text of our statute law: and even in subsequent times, there is not only an interruption in the series of Statute Rolls, namely, after 8 Hen. VI., until 23 Hen. VI., inclusive, during which the like recourse must be had to sources of an inferior degree of authority; but the Statute Rolls themselves do not, within their own period, contain all the instruments which have been acknowledged as statutes. After 8 Edw. IV. the Statute Roll is not preserved; after 4 Hen. VII. it ceased to be made up; and ultimately it was succeeded, for practical purposes by the enrollment in chancery; though during a short period the Statute Roll and the enrollment appear to have been contemporary.
The materials for the several periods during which no Statute Rolls or parliamentary records exist, can only be collected from records on which copies or extracts of statutes have been entered; or from other manuscripts not on record; or, in default of other authority, from the oldest printed editions in which such matters were first inserted. With respect to entries of record, in these periods, that has been judged to be the most authentic evidence of a statute, which has been preserved as a record or authentic copy from antient times, in the custody of the highest courts authorized for that purpose. Such are copies or extracts of particular statutes found in the Close, Patent, Fine, and Charter Rolls, being records of chancery. Such also are the Red Books of the Exchequer of Westminster, and Dublin. On failure of these records, recourse has, of necessity, been had to manuscripts not of record preserved in the custody of courts of justice, public libraries, or other public repositories. Such are some antient books of statutes in the exchequer at Westminster, in the town clerk’s office, London, in the several cathedrals, in the public and other libraries of the several universities of Oxford, Cambridge, and Dublin, and in the British Museum: When all these sources have proved deficient, and in such case only, a copy has been admitted, from the oldest printed edition, with various readings from subsequent printed editions.
During the periods in which Statute Rolls or other parliamentary records do actually exist, the authentic evidence of statutes (and of other proceedings in Parliament, before the commencement of the journals,) must be searched for upon the Statute Rolls; Inrollments of Acts; exemplifications of such Statute Rolls or enrollments; transcripts by writ into chancery for the purpose of such exemplifications; original Acts; and Rolls of Parliament.—These are the only authentic sources from whence, during those periods, a knowledge can be obtained of the different occurrences in Parliament, whether important or minute. With the exception of some rolls containing proceedings in Parliament from 18 to 35 Edw. I., which are in the Chapter House at Westminster, such of the original Statute Rolls, inrollments of Acts, and Parliament Rolls, as are still preserved, are deposited in the Tower of London, or at the Chapel of the Rolls, places appropriated to the custody of the records of the King’s chancery, which has ever been deemed the proper repository of the statutes of the Kingdom.
II. The Nature and qualities of the several records and manuscripts from whence all the statutes, as well those of an earlier as of a later period, have been taken for insertion or collation in this work, and the place where such original record and manuscript is kept, will more fully appear from the following detail.
1. Statute Rolls.—These are records of chancery, of the highest authority, on which were entered the several statutes, when drawn up in form, for the purpose of being proclaimed and published; these statutes being framed upon such original petitions and answers, or entries thereof on the Parliament Rolls, as related to public concerns. The earliest Statute Roll now known to exist, is that which commences with the statute of Gloucester, 6 Edw. I. ad 1278. From that period to 8 Edw. IV. inclusive, ad 1468, with an interruption after 8 Hen. VI. until 23 Hen. VI. inclusive, the statutes are preserved in the Tower of London in a regular series, on 6 separate rolls, each roll consisting of several membranes tacked together. The contents of each roll are as follows, viz:
Of the Great Roll; statutes from 6 Edw. I. to 50 Edw. III. But this roll does not contain all the statutes which have been printed as of that period.1
Second Roll; statutes temp. Ric. II. there is also a separate roll, of one membrane, containing a duplicate of the statutes 21 Ric. II.
Third Roll; statutes temp. Hen. IV. and V.
Fourth Roll; statutes 1 Hen. VI. to 8 Hen. VI.
Fifth Roll; Statutes 25 Hen. VI. to 39 Hen. VI.
Sixth Roll; Statutes 1 Edw. IV. to 8 Edw. IV. This is the last Statute Roll now known to exist, none of a later date having been found.
These have ever had the reputation annexed to them of being Statute Rolls. Some of them are cited by that name upon the Close and Patent Rolls; and referred to by great law writers, Lord Coke, Lord Hale, and the editors of statutes, Pulton, Hawkins, Cay, &c. There is evidence also that Statute Rolls have existed of a subsequent time; for the statutes after 8 Edward IV., until 4 Henry VII. inclusive, are inserted in the early printed editions in a form manifestly copied from complete Statute Rolls; and they are found in the like form in Lib. XI. in the exchequer at Westminster, MS. Cott. Nero C. I., in the British Museum, and in several other manuscript collections. But there is reason to conclude, that the making up of the Statute Roll entirely ceased with the session 4 Hen. VII., as no such roll of a later date, nor any evidence thereof, has been discovered; and it is observable that in the next session, 7 Hen. VII., public Acts were, for the first time, printed from the several bills passed in Parliament, and not as part of one general statute drawn up in the antient form.
2. Inrollments of Acts of Parliament.—These are records containing the acts of Parliament certified and delivered into chancery. They are preserved in the Chapel of the Rolls, in an uninterrupted series from 1 Ric. III. to the present time; except only during the Usurpation. By the officers of chancery they are commonly termed “Parliament Rolls;” and they are variously endorsed, some with the Phrase “Inrollments of Acts.” From 1 Ric. III. to 3 Car. 1. inclusive, they comprehend several other proceedings of Parliament besides the Acts enrolled; (sometimes for instance, the commissions for giving the royal assent to bills are found entered on them;1 ) thus partaking of the qualities of rolls of Parliament, and including nearly the same contents: until, the miscellaneous matters disappearing by degrees, the Acts inrolled only occur: After 5 Hen. VII. they may be considered in effect, as coming in the place of the Statute Roll. To 25 Hen. VIII. they contain all Acts, public and private, which were passed in every session, each with an introductory and concluding form of their being presented and assented to: From 25 Hen. VIII., to 35 Eliz. several of the private Acts, and afterwards to 3 Car. 1. all the private Acts, are omitted, their titles only being noticed. From 16 Car. 1. to 31 George II., the inrollments contain nothing but public Acts, and the title of the private Acts, with the several forms of assent, without any other parliamentary matter. And from 32 George II. their contents are the same, with the omission of the titles of the private Acts.
At present, after all the public-general Acts of the session have received the royal assent, a transcript of the whole is certified by the clerk of the Parliaments, and deposited in the Rolls Chapel: On that occasion the clerk of the Parliaments sends the roll, or rolls, containing such transcript, apparently in a complete state, engrossed on parchment, signed, and certified by him as clerk of the Parliaments; and it is thereupon arranged with the other records; and thus becomes the inrollment of the statutes of that session of Parliament. For this transcript the clerk of the Parliaments is paid every session out of the Hanaper, on a receipt by the clerk of the records in the Rolls Chapel, stating that the roll is delivered there.
It may be further observed upon this subject, that the proceedings which took place in the House of Lords in Ireland in 1758, for the better preservation of the records of Parliament in that kingdom, where the constitution and law of Parliament were in all essential points conformable to those of England, afford a strong illustration of the practice of certifying statutes and recording them in chancery.1
3. Exemplifications; and transcripts by writ.—Exemplifications are copies sent out of chancery under the King’s seal; either to sheriffs of counties and cities in England, or to the Chancellor or Chief-Justice of Ireland, or to other courts or places, for the safe custody and for the proclaiming and confirming of the statute; or in other cases for affording authentic evidence of the statute. In the Tower of London, copies of the statutes 9, 10, 11, 14, 15, 18 and 20 Hen. VI. (for some years to the number of two, three, six, or seven copies) are preserved on separate skins of parchment, which appear to have been prepared as exemplifications, for the purpose of proclaiming the several statutes; and these serve to supply the deficiency of the Statute Roll during that period. One similar copy of the statutes 13 Ric. II. is also preserved in the Tower.
It is not irrelevant to remark, that an exemplification differs from an original grant under the great seal, or an original act of Parliament, in this; that an exemplification is a copy, and can be made only from the record. At the present day every exemplification, being first made out in form by the proper officer, is examined with the record by two masters in chancery, who not only subscribe a certificate on the exemplification, of their having examined it with the record, but also sign a certificate to that effect, addressed to the Lord Chancellor, on a paper called “The Docket,” which is left with him before the exemplification is allowed to pass the Great Seal.
Transcripts by writ were copies sent into chancery in answer to the King’s writ or mandate, calling for a copy of the statute from the officer in whose custody it was preserved. A transcript of the statutes of Wales, 12 Edw. I. is preserved in the Tower of London, with the writ annexed, by which that transcript was required from the exchequer at Westminster, where it was entered of record, according to the usage which formerly prevailed of sometimes inrolling statutes in courts of justice. Transcripts and exemplifications of statutes have also been occasionally found in various other depositories.
4. Original acts.—These, from the 12th year of Henry VII. to the present time, with some interruption, particularly in 14 & 15 Hen. VIII. are preserved in the Parliament office. Some petitions and bills previous to 12 Hen. VII. are in the Tower of London, but in no regular series. The original Acts in the Parliament office consist of the bills as ingrossed after being brought into Parliament, and in the state in which, after such ingrossment they passed both Houses, and received the royal assent. Each Act is on a separate roll numbered; and reference is made to them from a calendar kept of the Acts of each session in the Parliament office. These are the materials from which the clerk of the Parliaments makes up the inrollments of public Acts sent by him into chancery and preserved there; or certifies Acts into chancery, when required so to do.
As to the comparative authority of the original Acts and the inrollments in chancery, it is to be observed, that all the original Acts are separate from each other; and that they are frequently interlined, defaced, erased, and in many instances, with great difficulty intelligible: the inrollment in chancery is always fair and distinct; and the Acts are entered in a regular series, on one roll or subsequent rolls, as part of the proceedings of a Parliament, the time of the holding of which is stated at the beginning of the roll. In modern practice, if any doubt arises as to the correctness of the inrollment in chancery, application is made to the clerk of the Parliaments; and the original Act is thereupon produced, and compared with the inrollment, and an amendment, if requisite, is made in the inrollment accordingly.
5. Rolls of Parliament.—These contain entries of the several transactions in Parliament; when complete they include the adjournments, and all of the common and daily occurrences and proceedings from the opening to the close of each Parliament, with the several petitions or bills, and the answers given thereto, not only on public matters, on which the statute was afterwards framed, but also on private concerns. In some few instances the statute as drawn up in form is entered on the Parliament Roll; but in general the petition and answer only, are found entered; and in such case the entry of itself furnishes no certain evidence, that the petition and answer were at any time put into the form of a statute.1
Copies of petitions in Parliament and answers thereto, as early as 6 Edw. I. and in various years of Edw. II. and Edw. III. are among Lord Hale’s manuscripts in the library of Lincoln’s Inn. Rolls containing pleas, petitions and answers, and other proceedings in Parliament, from 18 to 35 Edw. I. and one of the petitions in Parliament 7 Hen. V., are in the Chapter House at Westminster. A book of inrollment, called Vetus Codex, in which are entered proceedings in Parliament, from 18 Edw. I. to 35 Edw. I. and in 14 Edw. II. is in the Tower of London.2 In that repository also are preserved rolls containing pleas and other proceedings in Parliament, between 5 Edw. II. and 13 Edw. III.; rolls of Parliament of 9 Edw. II.; 4, 5, and 6 Edw. III.; and 13 Edw. III.; and from thence, to the end of the reign of Edw. IV., in a regular and nearly uninterrupted series. After that time the rolls of Parliament are for a certain period supplied by the inrollments of Acts preserved in the Chapel of the Rolls, and finally by the journals of the two Houses of Parliament.3
6. The Close, Patent, Fine, and Charter rolls, among a variety of grants, recognisances, and other miscellaneous matters, concerning the state of the realm, and the rights of the Crown, recorded in them, include entries of statutes, and some instruments having direct reference to statutes wherein such statutes are recited at length. These rolls are kept at the Tower, from the beginning of the reign of King John to 22 Edw. IV., and from the reign of Edw. V., to the present time at the Chapel of the Rolls.
7. Books of record, containing entries of statutes and parliamentary proceedings.—Of this sort is, the Red Book of the Exchequer of Westminster, some of the early part of which was compiled by Alexander de Swereford, first a clerk and afterwards a baron of the exchequer, in the reign of Henry III. It seems afterwards to have been considered and used as an authorized repository by the court itself; and contains entries and inrollments of many charters and antient acts of Parliament, as well as other instruments relating to the King and the rights of the Crown, from the time of William the Conqueror to the end of Edw. III.: the originals of several of these Acts and instruments are preserved in the Tower of London, and in the Chapter House at Westminster, with references to inrollments in this book, or to the circumstance of the Act being sent into the exchequer. The Red Book of the Exchequer at Dublin is considered as of the same authority: it contains entries of Magna Carta, 1 Hen. III. especially granted to the people of Ireland; of the Statute of Westminster the first, 3 Edw. I. (which is not to be found on the Great Roll of statutes in the Tower of London, being prior in date to the present commencement of that roll,) and also of the Statutes of Gloucester, 6 Edw. I. de Viris Religiosis, 7 Edw. I., and Westminster the second, 13 Edw. I., agreeing in general to the text of those statutes on the Statute Roll in the Tower. There is reason to conclude that these statutes were entered in the Red Book at Dublin, from an exemplification sent over from England in the 13th year of Edw. I., as is noticed in a memorandum on the Close Roll of that year. A register book marked “A” preserved at the Chapel House at Westminster, as in the custody of the treasurer and chamberlains of the exchequer, contains entries or inrollments made in the time of Edw. I. Among these are the Statute of Gloucester, 6 Edw. I., and the Statute of Westminster the second, 13 Edw. I. The originals of the several statutes and instruments, it is stated in the register, were deposited in certain chests in the Chapter House; but these originals had not been discovered.
8. Books and manuscripts not of record, containing entries or copies of statutes, are very numerous. In the court of exchequer at Westminster, are three books, marked IX., X., XI. Book X. contains many of the earlier statutes previous to Edw. III.: Books IX., XI. contain the statutes from 1 Edw. III. to 7 Hen. VIII.
In the town clerk’s office, at the Guild Hall of the city of London, are several manuscript volumes; in which, among other matters chiefly relating to the laws and customs of the city of London, are entries of many of the antient statutes previous to Edw. III. The greatest number, and the earliest copies are in two volumes, distinguished by the appellations Liber Horn, and Liber Custumarum. It appears from internal evidence that Liber Horn was compiled about the year 1311, and Liber Custumarum not long after the year 1320: Liber Horn is rendered valuable by having been in many instances corrected, in a later hand writing, from exemplifications of statutes sent under seal to the sheriffs of London. In two other manuscripts one called Liber de Antiquis Legibus and the other Transcriptum Libri Albi, copied from a volume originally compiled in the mayoralty of Richard Whityngton ad 1419, 7 Hen. V., are occasional entries of a few antient statutes. In other volumes marked G. H. and I. are entries of some of the statutes of Edw. III., Richard II., Henry IV., and Henry V.; many of them appearing to have been made from exemplifications sent to the sheriffs of London for proclamation.
Of manuscript collections of statutes, preserved in public repositories, the greatest number collected together in any one place, is to be found in the British Museum. They are distinguished as being of the Cottonian or Harleian Collection; from the royal library; Donation manuscripts; and Lansdowne manuscripts. The Cottonian manuscripts Claudius D. II. and Vespasian B. VII. were resorted to by Hawkins and Cay, for copies of statutes previous to Edw. III.; and Nero C. I. for statutes of Henry VI. and Edw. IV. not found at the Tower.
In the Bodleian library at Oxford, are Rawlinson’s, Hatton’s, and Laud’s manuscripts. Among the latter is a roll of statutes, No. 1036, consisting of eleven small membranes of parchment united together; not much more than four inches wide; but each being two feet or more in length. This roll appears to have been written in the time of Edw. I.: it contains no statute later than the Articuli Super Cartas, 28 Edw. I.
At Cambridge several manuscript collections of statutes are preserved in the library of the University and in Trinity College Library. In Corpus Christi or Bene’t College Library are the manuscripts bequeathed to the College by Archbishop Parker.
Chartularies or registers, preserved in several cathedrals, contain copies of some of the old statutes. Such are the Black Book of the cathedral of Christ Church, Dublin, written between the years 1280 and 1299, and register A in Gloucester cathedral, compiled in 1397.
In Lincoln’s Inn Library, are Lord Hale’s manuscript copies of rolls and petitions in Parliament: in the Inner Temple Library, Mr. Petyt’s collection of manuscripts among which are several volumes of the statutes. In many other public libraries also manuscript collections of statutes are preserved.
Of the several manuscripts not of record, an extensive and careful examination has been made in preparing for the present edition: and it has been ascertained that, although they differ from each other considerably in their degrees of antiquity and correctness, yet the credit of no single one is entirely to be relied on; for scarcely any manuscript has yet been discovered, in any repository, in which there are not some material errors perverting or altogether destroying the sense of the text. In some instances, however, such as Cott. Claud. D II. in the British Museum, and M m. v. 19, in the library of the University of Cambridge, several of the instruments contained in the manuscripts purport to be examined by the roll. In Liber Horn, in the town clerk’s office, London, several are marked as examined ‘per Ceram;’ ‘per Ceram Gildaule;’ ‘per Statutum Gildaule London in Cera;’ ‘cum brevi cum eisdem in Gildaula adjunct’; all which signify that the entry in the book has been examined with an exemplification of the statute or instrument under the Great Seal, sent to the mayor and sheriffs of London with or without a writ for publication thereof. The Rawlinson Manuscript No. 337 in the Bodleian Library at Oxford, and the Harleian Manuscript No. 5022 in the British Museum, refer to the inrollment on the Statute Roll, of several articles inserted in those volumes, but do not profess that the articles themselves were examined by that roll.
III. On a mature consideration of all the circumstances before stated, the following Rules of Preference have been adhered to, in the use of the several sources for the text, and for various readings of the statutes, in the present collection.
During the periods in which Statute Rolls exist, such Statute Rolls have been considered and used as the highest authority for the statutes contained in them: namely, the statutes 6 Edw. I. to 8 Edw. IV.; with the omission of the statutes 9 to 23 Hen. VI. both inclusive.
But for such statutes as, during the period of the existence of the Statute Rolls, do not appear on those rolls; and for statutes made in any period of which the Statute Roll is not now in existence namely, previous to 6 Edw. I.; after 8 and before 25 Hen. VI.; and after 8 Edw. IV.; and also for the correction of manifest errors or omissions in the text, whether taken from Statute Rolls or elsewhere the following sources have been recurred to in regular gradation; preference being given to them according to the following order, but all being used and collated, where necessary: viz. 1. Inrollments of Acts.—2. Exemplifications and transcripts.—3. Original Acts.—4. Rolls of Parliament.—5. Close Patent, Fine and Charter rolls.—6. Entries and books of record.—7. Books and manuscripts not of record.—And finally, 8. The printed copies; the earliest of which was not published until more than 200 years subsequent to the present commencement of the Statute Rolls.
The following reasons for preference among manuscripts not of record have been adopted: 1. Their professing to be authentic copies from any records, exemplifications, or transcripts: 2. Their age; the oldest being on the whole the most worthy of credit: 3. The uniformity and regularity of the series of statutes, and instruments in each collection: 4. Their having been already printed and received in use, as evidence of the text of statutes; or, if not so printed, their according with the printed copies, and with each other, so that when the manuscripts differ, the majority should prevail: 5. Certain manuscripts have been holden to be of superior authority upon some particular subjects, having special connection with the places in which they are preserved: Such as the books preserved in the exchequer, for statutes relating to that court, or to accounts, or to money; books at the town clerk’s office, London, relating to the assises of bread and ale, weights, and measures, &c: 6. In all manuscripts some articles are found much more correct than others; a judgment has therefore frequently been formed from internal evidence in favour of a particular statute or reading, although the manuscript in which such statute or reading were found, might not, in other instances, be entitled to preference: 7. Where it has happened that several manuscripts agreed in the text or reading of any instrument, and were so equal in their claims for preference, that it was entirely matter of indifference which should be chosen for a source of extract or quotation, that manuscript has been used which has been quoted or extracted from for other purposes, in preference to one not before quoted; and one which has already been printed from, in preference to one which has not.
Of the Original Language of the Charters and Statutes.
The language of the charters and statutes, from the period of the earliest charter now given, 1 Henry I. to the beginning of the reign of Henry VII. is Latin or French. From that time it has been uniformly English. The petitions or bills on which the statutes were founded, began to be generally in English early in the reign of Hen. VI.
All the Charters of Liberties, and of the Forest, from 1 Hen. I. to 29 Edw. I. (with the exception after mentioned), are in Latin; but translations of some of them into French, are found in various collections. In D’Achery’s Spicilegium1 there is a French translation, as it is called by Blackstone, of the Charter of King John; for it is doubtful whether that charter was ever promulgated in French in this kingdom. Some early manuscripts2 contain French translations of the two charters of 9 Hen. III., and of the Charters of Inspeximus and Confirmation in 25 and 28 Edward I., though these latter appear on the Statute and Charter Rolls in Latin. The charter dated 5 Nov. 25 Edw. I.3 is in French: as is also the duplicate of that charter dated 10 Oct. and entered on the Statute Roll 25 Edw. I.4
The statutes of Henry VIII. are almost entirely in Latin. Some legislative matters, not in the printed collections, are entered on the Patent Rolls in French.5
The statutes of Edward I. are indiscriminately in Latin or French; though the former language is most prevalent. But the Statute of Gloucester 6 Edward I. which on the Statute Roll is in French, appears in many contemporary manuscripts in Latin. In several manuscripts, particularly Register A. in the Chapter House at Westminster, this statute is given at length both in Latin and French. On the other hand the statute of Westminster the second, 13 Edw. I., which is in Latin on the roll, appears in many manuscripts in French; and Chapter 34 of this latter statute, as to violence against women, which on the roll appears in French, is given, like the rest of the statute, in Latin, in several manuscripts.1 The French Chapter, 49, as to champerty by Justices, is omitted in the Tower Roll, and in many other copies, which give the statutes in Latin, but is found in the copies which give the statute in French.2
The statutes of Edward II. are, like those of Edward I., indiscriminately in Latin or French: but the latter language prevails more than in the statutes of Edward I.
The statutes of Edward III. are more generally in French than those of any preceding king: yet some few are in Latin. The statutes of Richard II. are almost universally in French; those of the sixth and eighth years are in Latin. The statutes of Henry IV., with the exception of chapter 15 of the statute 2 Hen. IV. which is in Latin, are entirely in French; as are those of Henry V., with the exception of the short statutes 5 and 7 Henry V. which appear in Latin.
The earliest instance recorded of the use of the English language in any parliamentary proceeding, is in 36 Edw. III. The style of the roll of that year is in French as usual, but it is expressly stated that the causes of summoning the Parliament were declared “en Englois,”3 and the like circumstance is noted in 37 and 38 Edw. III.4 In the fifth year of Richard II.,5 the Chancellor is stated to have made ‘un bone collacion en Engley’s (introductory, as was then sometimes the usage, to the commencement of business) though he made use of the common French form for opening the Parliament. A petition from the “Folk of the Mercerye of London,” in the 10th year of the same reign,6 is in English; and it appears also, that in the 17th year1 the Earl of Arundel asked pardon of the Duke of Lancaster by the award of the King and Lords, in their presence in Parliament, in a form of English words. The cession and renunciation of the Crown by Richard II. is stated to have been read before the estates of the realm and the people in Westminster Hall, first in Latin and afterwards in English, but it is entered on the Parliament Roll only in Latin.2 And the challenge of the Crown by Henry IV. with his thanks after the allowance of his title, in the same assembly, are recorded in English; which is termed his maternal tongue.3 So also is the speech of Sir William Thirnyng, the Chief Justice of the Common Pleas, to the late King Richard, announcing to him the sentence of his deposition, and the yielding up, on the part of the people, of their fealty and allegiance. In the sixth year of the reign of Henry IV.4 an English answer is given to a petition of the commons, touching a proposed resumption of certain grants of the Crown, to the intent the King might the better live of his own. The English language afterwards appears occasionally, through the reigns of Henry IV. and V.5
In the first and second, and subsequent years of Hen. VI. the petitions or bills, and in many cases the answers also, on which the statutes were afterwards framed, are found frequently in English; but the statutes are entered on the roll in French or Latin. From the 23rd year of Hen. VI. these petition or bills are almost universally in English, as is also sometimes the form of the royal assent: but the statute continued to be inrolled in French or Latin.6 Sometimes Latin and French are used in the same statute, as in 8 Hen. VI.; 27 Henry VI.; and 39 Henry VI. The last statute wholly in Latin on record is 33 Henry VI.; the last portion of any statute in Latin is 39 Henry VI.; chapter 2.
The statutes of Edward IV. are entirely in French. The statutes of Richard III. are in many manuscripts in French, in a complete statute form; and they are so printed in his reign and that of his successor. In the earlier English editions a translation was inserted, in the same form: but in several editions, since 1618, they have been printed in English, in a different form, agreeing, so far as relates to the Acts printed, with the inrollment in chancery at the Chapel of the Rolls. The petitions and bills in Parliament, during these two reigns, are all in English.
The statutes of Henry VII. have always, it is believed, been published in English; but there are manuscripts containing the statutes of the first two Parliaments, in his first and third year, in French.1 From the fourth year to the end of his reign, and from thence to the present time, they are universally in English.
Attempts have been made by many learned persons to explain this variety of languages in the earlier periods of our legislation; and some have referred the preference of the one language or of the other, to the operation of particular causes.2 Nothing, however, is known with certainty on this subject; and at the present day it is utterly impossible to account, in each instance, for the appearance of the statute in French or in Latin. It seems on the whole to be highly probable that for a long period of time, charters, statutes, and other public instruments were drawn up indiscriminately in French or Latin, and generally translated from one of those languages into the other,1 before the promulgation of them, which in many instances appears to have been made at the same time in both languages.2
It is matter of curiosity to observe, that the use of the French language in statutes was preserved rather longer in Ireland than in England. The Statute Roll of the Irish Parliament, 8 Hen. VII., preserved at the rolls office in Dublin, is in French; on the Statute Roll of the two next Parliaments of Ireland, 16 and 23 Hen. VII., the introductory paragraphs stating the holding of the Parliament, &c. are in Latin; after which follows an Act or chapter in French, confirming the liberties of the church and the land: and all the other Acts of the session are in English.
Of the Methods Successively Adopted for Promulgating the Statutes, Before and Since the Union of Great Britain and Ireland.
The Promulgation of the Statutes, which formerly took place within the realm of England, as well as in Scotland and Ireland, has been wholly superseded by the practice of modern times. Before the introduction of printing, the publication of the statutes of England was made by means of exemplifications thereof, sent to the sheriffs, under the Great Seal, out of chancery, with writs annexed, requiring the proclamation and publication of the same by them,3 and sometimes also directing copies to be made and distributed, and the sheriffs to return what was done by them thereupon. The earliest statutes were published in this manner; as appears not only by copies of the writs subjoined to the records and manuscripts of the respective statutes, of the thirteenth century, but also by original writs still preserved in the Tower of London.
In England printed promulgations of the statutes, in the form of sessional publications, began in the first year of Ric. III. ad 1484, very recently after the introduction of printing; and in consequence thereof, such exemplifications and writs as are above mentioned, were soon altogether discontinued;1 yet the statutes themselves, continued nevertheless to be inrolled in chancery; and some of the earliest sessional publications appear by their form to have been printed from a Statute Roll. All the original bills and Acts now extant in the Parliament office, are some years subsequent in date to the commencement of the printed sessional publications of the statutes; and it is evident, from some of those printed sessional publications in the time of Hen. VII. whereof the contemporary bills and Acts are still preserved, that such bills and Acts, though concurrent in time were not then uniformly used as the original text for such publications. The sessional publications are at present, and have for a long series of years been printed entirely from original Acts in the Parliament office.2
In Scotland it was the exclusive privilege and official duty of the Lord Clerk Register to enter the acts of Parliament in the proper record, and to give authentic copies of them to the sheriffs, magistrates of boroughs, and such as might demand them. A precept is extant for proclaiming and publishing the statutes of Robert I. in the year 1318; and there exists also a parliamentary ordinance made in the reign of David II., 1366, by which the Acts of that Parliament are directed to be sent under royal seal to each sheriff to be by him publicly proclaimed. The earliest printed publication of statutes in Scotland took place in the year 1540-1.
In Ireland the promulgation of such statutes as were passed in England and transmitted to Ireland, was regularly made by means of a transcript sent under seal from England, with a writ directed to the Chancellor of Ireland, requiring the same to be kept in the chancery of that Kingdom, to be enrolled in the rolls of the said chancery, then to be exemplified under the Great Seal of Ireland, and sent unto and proclaimed in the several courts and counties throughout the kingdom. Sometimes the writ was to the justices, in Ireland, simply requiring proclamation.
With respect to the statutes made in Ireland, provisions are contained in several Acts for the special proclamation of such Acts, so that the penalties inflicted by them should not be incurred until after such proclamation.1 It appears also that it was usual to proclaim the statutes in general by the king’s writ, made out by the clerk of the Parliament. Sessional publications of the acts did not take place in Ireland before the reign of Charles I.; and such publications were not continued regularly and uniformly until after the Revolution.
In Great Britain the public inconvenience experienced from the defective promulgation of the statutes, led to the adoption of new measures in the year 1796; by which, the Acts printed by the King’s printer, whose authority had been long deemed sufficient to entitle his printed copies to be received in evidence, in all courts of law,2 were distributed throughout the kingdom as speedily as possible after they had received the royal assent: and the experience of the good effects of those measures led soon afterwards to their execution in a much greater extent.
After The Union of Great Britain and Ireland, a select committee of the House of Commons was appointed in the first session of the United Parliament, to consider of the most effectual means of promulgating the statutes of the United Kingdom; upon whose report resolutions for that purpose were adopted by the Commons, and having been agreed to by the Lords, they were presented to his Majesty by a joint address of both Houses; and his Majesty was thereupon pleased to give directions accordingly.
By the tenor of these resolutions, his Majesty’s printer was authorized and directed to print not less than five thousand five hundred copies of every public general Act, and three hundred copies of such local and personal Act as were printed; the public general Acts to be transmitted as soon as possible after each bill should receive the royal assent, to the members of both houses of Parliament, the great officers and departments of state, public libraries, courts of justice, sheriffs, municipal magistrates, and resident acting justices of the peace, throughout Great Britain and Ireland; according to a prescribed mode of distribution; with a direction that every chief magistrate and head officer of every city, borough, or town corporate in England and Ireland, and of every royal burgh in Scotland, and every sheriff, clerk of the peace, and town clerk in the United Kingdom, receiving such copies should preserve them for the public use, and transmit them to his successor in office: and this mode of authenticating and promulgating the statutes is now carried into execution, throughout every part of the United Kingdom.
THE COURTS, THEIR ORGANIZATION AND JURISDICTION
[1 ]These extracts are taken from “Statutes of the Realm.” Introduction.
[2 ]The Sub-Commissioners. authors of the Introduction, were Alexander Luders, Thomas Edlyne Tomlins, John France, and William Elias Taunton.
[3 ]MS. Harl. No. 249.
[1 ]Dewe’s Journ. 345.
[2 ]Dewe’s Journ. 469, 473.
[3 ]Dewe’s Journ. 553.
[4 ]Dewe’s Journ. 622.
[5 ]See the following articles in Bacon’s Works, viz. Epistle Dedicatory to Queen Elizabeth, prefixed to Elements of the Law;—Proposal for amending the Laws of England, to King James;—Offer to the King of a Digest: 4to Edit. vol. ii. pa. 326, 546, 547, &c.
[6 ]See Lords’ Journals, i. 144. ii. 661. iii. 81. and preface to Coke’s Fourth Report.
[7 ]Lords’ Journ., ii. 661.
[8 ]Vol. ii. 4to. 547.
[1 ]MS. Harl. No. 244.
[2 ]Vol. ii. pa. 346.
[3 ]Miscell. xvii. p. 279.
[1 ]Commons’ Journal. vi. 427.
[2 ]Commons’ Journ. vii. 58, 74, 249, 250.
[3 ]Commons’ Journ. vii. 304.
[4 ]Commons’ Journal, viii. 631.
[1 ]MS. Cott. Titus B. V. p. 269.
[1 ]See page xxvi, n. 12, Statutes of the Realm.
[2 ]Vesp. F. IX. pa. 279.
[3 ]Miscell. Vol. 94. No. 4572. Plut. 19 C. pa. 82.
[1 ]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 coi assensu & consilio Prelatoz, Comitu, Baronu, & alioz de consilio nro in psenti pliamento nro apud Westm die Lune px post festu sci mathie Apli px pterito convocato, existenciu.” 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. i. nu. i. 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.
[2 ]4 Inst. 50; and see also Co. Litt. 98 a. b; and the Year Book 7 Hen. VII. 14, 15, 16.
[3 ]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, for 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 Hen. 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 Edw. III. st. 2. c. i: Rastall in the early editions of his 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 Edw. 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 2 Hen. IV. nu. 28, and 10 Hen. VI. nu. 20. above particularly noticed. See also the instances quoted post, p. xxxvii, note 4. In the old reported statutes from 3 Edw. I. to 1 Jac. I. MS. Harl no. 244 mentioned in p. xxvii 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 incidents 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, 1st part of an historical collection of the ancient Parliaments of England; Lord Hale’s treatise of the Jurisdiction of the Lord’s House of Parliament, Hargrave’s edit. chap. III; and Luders, Tract. iv. published in 1810.
[2 ]See Pa. xxxvii, and note 4 there.
[3 ]Hale, H. C. L. ch. I. 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 statut, que scribunt, domin Rex statuit; si tamer Rotulo Parliamentario intrentur et semp’ ut act’ Parliament’ approbentur, intendetur hæc authoritat 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. No. 4489 and 5668, of a manuscript treatise entitled ‘Expenditionis 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 ancient 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 Edw. III. the earliest known to the writer to exist, to 27 Hen. IV. 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 laws, 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 Hen. 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. n. 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.
[1 ]Lord Hale, H. C. L. ch. I, says this roll “begins with Magna Carta and ends with Edw. III.” This is erroneous; for though part of the roll antecedent to 6 Edw. 1. may have been lost at the time of Lord Hale, there is no reason to conclude that it ever began with Magna Carta: Magna Carta and Carta de Foresta are not entered on this roll prior to 25 Edw. I. and they are accordingly printed as statutes of that year in this collection. There are not wanting authorities which seem to consider the Great Charter, as possessing the validity of a statute from the 1st or the 9th of Hen. III.; before the confirmation of it by the statute of Marlborough, 52 Hen. III. It is so considered by Coke in 2 Inst. 65, 1 Inst. 43a, 81a; in the Prince’s case, 8 Rep. 19; and elsewhere: by Hale H. C. L. ch. 1; and by Blackstone in his introduction to the charters, 4to. pa. xl. 8vo. pa. lxi.: It is also expressly called a statute by Littleton, sect. 108; but this may be referable to its subsequent confirmation by Parliament. Hale’s idea may probably have arisen from supposing it to be on the Statute Roll before 6 Edw. 1. And Coke and Blackstone founded their opinions chiefly upon two judicial decisions cited from Fitzherbert’s Abridgement; (part 2, fo. 120 b. tit. Mordaunc. pl. 23, and Part 1, fo. 188 a. tit. Briefe pl. 881;) the one as of 5 Hen. III. and the other as of 21 Hen. III.; to which may be added another of 23 Hen. III. Fitz. abr. Part 1, fo. 90 a. tit. Assise. pl. 436. These, if of those years respectively, certainly prove that the Great Charter was then considered as the law of the land, but not, absolutely, that it was previously of parliamentary enactment. In the instances of 5 Hen. III. and 23 Hen. III, the phrase “lestatut de Magna Carta” is merely used incidentally by Fitzherbert stating the points adjudged; and there is some ground to think also that the former decision was possibly of a much later period; see the Year Books 38 Hen. VI. 18 and 39 Hen. VI. 19: In the instance of 21 Hen. III. the Great Charter is referred to, not as a parliamentary Act, but as a grant, ‘concessum’ being the word used to denote its authority; which construction, the preamble of the Articuli super Cartas, Stat. 28 Edw. I., and the beginning of chapter 1 of that statute, confirm; though in the Confirmatio Cartarum, Stat. 25 Edw. I. c. 1. which passed during the absence of the King from the realm, it is recited of the two charters “les queles furent faites p comun assent de tut le Roiaume.”—In an admiralty record, quoted by Prynne (Animad. 120) as of 23 Hen. VI., the laws of Oleron are recognized by the term “Statutum.”
[1 ]No notice is taken, at the present day, on the introllment of Acts in chancery, of any commission by which Acts are passed; it is believed that no instance of the entry of any such commission on that inrollment has occurred since the time of Charles I. See in appendix F. subjoined to the introduction, vol. I. Statutes of the Realm, a further account of these inrollments, and a copy of the earliest commission for giving the royal assent.
[1 ]The following minute respecting the mode of framing statutes is extracted from the treatise intituled, ‘Expeditionis Billarum Antiquitas’ quoted in page xxxii, Statutes of the Realm, vol. I, Note 5.
[1 ]See Hale H. C. L. ch. 1, and 3 Keb. Rep. 588. That the royal assent given to a petition did not of itself constitute a statute; see Rot. Parl. 14, E. III. nu. 7: 15 E. III. nu. 42: 17 E. III. nu. 48: 18 E. III. nu. 33, 39: 25 E. III. nu. 12, 13: 37 E. III. nu. 39: 1 Ric. II. nu. 15: 2 Hen. IV. nu. 114: 7, 8 Hen. IV. nu. 60, 66: 13 Hen. IV. nu. 49: 23 Hen. VI. nu. 18, 19: see also Statutes of the Realm, vol. I, pp. xxxi, n. 4; xxxii, n. 5; xxxv, n. 5.
[2 ]The contents of this volume were printed in 1661, by W. Ryley, a clerk in the Record office in the Tower, with an appendix of additional matter, under the title of Placita Parliamentaria. The original manuscript volume is referred to in Rot. Par. 6 Ric. II. P. 2. m. 26. as an authentic book of inrollment, as follows: “D’Exemplific Tykford. Rx Omibz ad quos, &c. saltm. Inspexim tenorem cujusdam pcepti dni E. quondam regis angl fit Regis Henr pgenitoris nri, in quodam libro de pliamentis ejusdem dni E. anno regni sui vicesimo irrotulati in hec verba.” Then follows verbatim the Article ‘De Abbati de Mermonster,’ entered in fo. 36 of the Vetus Codex, and printed in page 102 of Ryley’s Placita Parliamentaria.
[3 ]The journals of the House of Lords commence in I. Hen. VIII.: But of the years 4, 5, 14 & 15, 21, 22, 23, 24, 26 and 27 Hen. VIII., and of the first two sessions in 1 Mary, the journals have not been preserved. In the printed editions therefore, the journals for those years are supplied by copies of, and extracts from, what are there termed the Parliament Rolls, being the inrollments in chancery mentioned above. The Journals of the House of Commons commence in 1 Edw. VI.; But until the beginning of the reign of Elizabeth they contain merely short notes of the several readings of the respective bills before the House, with a few occasional entries only of other proceedings. See further Appendix F, vol. I, Statutes of the Realm.
[1 ]XII., 593 of the first edition; III. 579 of the Paris edition 1723.
[2 ]MS. Harl. No. 5326 and others.
[3 ]Statutes of the Realm, vol. I, p. 37.
[4 ]Ib. p. 123.
[5 ]See Rot. Pat. 43 Hen. III. m. 10; 48 Hen. III. m. 2, d; 53 Hen. III. m. 25, d.
[1 ]Lib. Custum. London; MSS. Harl. No. 79, 3824; MS. Reg. 20 A. VIII. in Mus. Brit.
[2 ]See note at the end of Stat. Westm. 2, pa. 95 of the Statutes of the Realm.
[3 ]Rot. Parl. 36 Edw. III. m. 1. In this year was made the statute (36 E. III. c. 15) that all pleadings in the courts shall be in English.
[4 ]Rot. Parl. 37 Edw. III. nu. 1: 38 Edw. III. nu. 1.
[5 ]Rot. Parl. 5 Ric. II. nu. 1, 2.
[6 ]Petitions in Parl. 10 Ric. II. in Turr. Lond.
[1 ]Rot. Parl. 17 Ric. II. nu. 11.
[2 ]Rot. Parl. 1 Hen. IV. nu. 14.
[3 ]Rot. Parl. 1 Hen. IV. nu. 53, 56.
[4 ]Rot. Parl. 6 Hen. IV. nu. 20.
[5 ]See particularly Rot. Parl. 2 Hen. V. nu. 22.
[6 ]See Stat. 18 Hen. VI. c. 18, 19, as to soldiers, and compare those chapters with the petitions in the Parliament Roll of that year, nu. 62, 63, and with the Writ of Proclamation upon the Close Roll, 18 H. VI. m. 3, 6. The statute is in French, but the petition is in English, and is accordingly so recited in the Proclamation Writ.
[1 ]Petyt Manuscript nu. 8 in the Inner Temple Library; and MS. Hatton 10 No. 4135, in the Bodleian Library. The first of these ends with the statutes of 3 Hen. VII. in French, apparently as from some Statute Roll; or copy thereof. In the latter, which ends with 11 Hen. VII. the statutes of the third year are in French; but those of the fourth and all the following years are in English. The old printed editions of the statutes 1 and 3 Hen. VII. in English, appear to be taken entirely from a Statute Roll; while in the modern editions, some parts of the statutes are manifestly taken from the original acts, or from a Parliament Roll or Inrollment in Chancery.
[2 ]See 2 Inst. 485, as to the two chapters of Stat. Westm. 2, which are in French, although the body of the statute is in Latin. Barrington in his Comments on the Statutum de Scaccario, remarks that when the interests of the clergy are particularly concerned, the statute is in Latin: But on examination, the correctness of this remark may be doubted. See also N. Bacon’s Treatise on Government, Part I. Cap. 56 (pa. 101. 4to Edit. 1760).
[1 ]See Luder’s Essay on the use of the French Language, in our Ancient Laws and Acts of State; Tract. VI. 1810; where it is suggested that many of the Latin statutes were first made in French, and from thence translated into Latin.
[2 ]See the entries of Stat. Glouc. 6 Edw. I. in Register A. preserved in the Chapter House Westminster.
[3 ]See 4 Inst. 26, 28: the Case of Heresy, 12 Rep. 58: 2 Inst. 526: 3 Inst. 41: Hale on Parl. 36: Arg. 1. Ch. Rep. 51, 53. Copies of parliamentary proceedings, or Acts of state, though not statutes, were occasionally proclaimed and published. See the Roll of the Ordinances of the Staple 27 E. III.—Sometimes the knights, citizens, and burgesses were simply charged upon their return into the country to shew and publish to the people the matters agreed on in Parliament. Rot. Parl. 37 E. III. nu. 38.—Sometimes copies were delivered to them of such matters ‘pur ent notifier en soun pavs.’ Rot. Parl. 9 Hen. IV. nu. 27.
[1 ]The last Proclamation Writ entered on the Statute Rolls, is at the end of Stat. 7 Hen. V. ad 1419. Lord Coke, 2 Inst. 526 says the writ continued to issue till the Reign of Henry VII. In printed editions of the statutes, a Proclamation Writ is prefixed to the statutes of 19 Hen. VII.
[2 ]See Commons’ Journals vol. viii, 11th January 1661-2, when it was resolved that a message should be sent to the Lords, requesting “that the original rolls of Acts of Parliament be kept in the office, and not delivered to the printer, but that true copies be delivered to him from the roll, fairly written and carefully examined and attested.”
[1 ]See Irish Acts 12 Edw. IV. c. 2.: 14 Hen. VII. c. I.: 28 Hen. VIII. c. 2. sec. 4: (for the succession of the King and Queen Anne: the clause for proclamation of which is copied from the English Act 25 Hen. VIII. c. 22): 33 Hen. VIII. c. 1. sec. 2. (enacting that the King and his successors, kings of England, should be always kings of Ireland); 14 and 15 Car. II. c. 18 sec. 12.
[2 ]By Stat. 41 Geo. 3 (U. K.) c. 90 sec. 9 it is expressly provided, that the copy of the statutes of England and Great Britain printed by the King’s printer, shall be evidence in Ireland, and that the copy of the statutes in Ireland, printed by the King’s printer, shall be evidence in Great Britain, of the statutes respectively passed, previous to the union between Great Britain and Ireland.