Page:Ruffhead - The Statutes at Large, 1763.djvu/11

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PREFACE
vii

in each Seſſion, which were entered ſeriatim on the Roll, without a ſingle Break, or even any intervening Punctuation : And they all had Reference to the Preface, which declared the enacting Authority. Thus the Act in Queſtion, of the 8 Hen. VI. begins with the following Preface.

  " To the Laud and Honour of Almighty God, &c. our mo((ls))t noble Chriſtian Lord Henry, &c. by the Advice and AfTent of the Prelates and great Men of his Realm of England, and at the ſpecial Requeſt and Assent of the Commons of the ſaid Realm being in the ſaid Parliament, hath made certain Statutes,&c. in the Form following."

Here we find that, in this Preface, the Aſſent of the Commons is expreſſly mentioned : And therefore the Omiſſion in the 29th Chapter, is to be ſupplied by Reference, and there is no Need of any Intendment[1]

But admitting that their Aſſent could not be ſupplied by ſuch Reference, yet. If ſuch an Omiſſion ſhould be deemed ſufficient to invalidate a Statute, then the Authority of the greater Part of the early Acts may be denied : For the Aſſent of the Commons is frequently omitted, more eſpecially in the enacting Clauſes of the Statutes prior to the Reign of Henry VII. nay, ſometimes is not even inſerted in the Preface [2]

Lord Coke however takes a Diſinction between a general and a particular penning of an Act of Parliament. Thus he allows an Act to be good which runs in theſe general Terms : " It is enabled by Authority of Parliament." Or, he likewiſe admits, that if it be indited "quod Domnus Rex ſiatuit," yet if it be entered in the Parliament-Roll, and always allowed to be an Act, it ſhall be intended to have been by Authority of Parliament. But, he concludes, " If it be penned, that the King enacts with the Aſſent of the Lords, or with the Aſſent of the Commons, it is not an Act of Parliament, for the Record of the Act expreſſing which of them gave their Affent, excludeth all Intendments that any other gave their Aſſent.[3]"

This Diſtinction however, with due Deference to ſuch great Authority, does not ſeem to eſtabliſh any ſolid Difference. For, the Legiſlature confiding of three Orders, where one alone, the King for Inſtance, is expreſſed, there is the ſame Ground; for excluding all Intendment with regard to the other two, as there is for the Excluſion of one, where two only are mentioned : And no valid Reaſon can be given, why the A{ls}}ſent of one Order, ſhould not be intended as well as the Aſſent of two, Befides, the univerſal Reception in Courts of Juſtice, ſeems to be againſt his Lordſhip's Poſition : For the Statute de Malefactoribus in Parcis, where it is ſaid, that

"the King hath commanded, at the Inſtance of his Nobles," hath always been

  1. What farther proves the Authority of the Act in Queſtion, is its having been referred to, and in Part recited, as a Statute in Force, by the Legiſlature itſelf ; for in the 22 H. 8. c. 10. deſcribing certain Offences, it is thus expreſly declared, " That in the Inqueſt that ſhall paſs between the King and any ſuch Party ſhall be altogether of Engliſhmen" albeit that the Party ſo indicted pray Mediatatcm Linguæ, according to the Statute of Anno 8 Henrici 6. or any other Statute thereof made.
  2. Throughout the Reign of Ed. I. the Aſſent of the Commons is not once expreſſed in any of the enacting Claufes ; nor in the Reigns enſuing, till the 9th of Ed. 3. nor in any of the enacting Clauſes of 16 R. 2. Nay even ſo low as H. 6. from the Beginning till the 8th Year of his Reign, the Aſſent of the Commons is not once expreſſed in any enacting Clauſe.
  3. Co. 20. b

deemed