Page:Ruffhead - The Statutes at Large, 1763.djvu/22

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xviii
PREFACE.

of Acts of Parliament, they being ſuppoſed to be preſent at the enacting of them, either in Perſon, or by their Repreſentatives[1] .

The Point, however, concerning the Validity of an Act, extant on the Parliament Roll only, and not entered on the Statute Roll, was very amply diſcuſſed at the Trial of the Earl of Macclesfield[2]. On that Occaſion, the 11 Hen. IV, which was entered on the Parliament Roll only, was produced, and ſtrongly inſiſted on by the Council againſt his Lordſhip, in their Reply. Serjeant Pengelly, in particular, maintained that the Parliament Roll was the Original, as being the Warrant for the Statute Roll, and therefore of greater Authority. In which Principle he was, in Subſtance, afterwards ſupported by Mr. Weſt.

After much Litigation on this Head, a Queſtion was propoſed by Mr. Onflow, which decided the Matter in Controverſy. The Queſtion was. Whether the Kings Aſſent was not entered on the Farliament Roll ? To which Mr. Holmes, the Keeper of the Tower Records, and the Perſon then giving Evidence, anſwered, — That it was entered, in theſe Words, — " Le Roy le voet ;" which manifeſtly proved that the Royal Aſſent was compleat, and that the Act under Conſideration had the full Force of a Law.

Upon this Occaſion, the Point concerning the Reſpecuatur alſo came under Debate : For the Earl, among other Objections to the 11 Hen. IV. would have inferred its Invalidity, from the Circumſtance of its being entered with a Reſpectuatur per Dominum Principem & Concilium. But this Objection did not prevail, and it was inſiſted that the Reſpite given by theſe Words, did not deſtroy its Operation[3].

Concerning the Authorities cited by Mr. Cay, it is to be obſerved, that with reſpect to the 25 of Hen. VIIL c. 20. though it is a Confirmation of the 23 Hen. VIII. concerning Reſtraints of Payments of Annates, &c. yet this Confirmation was made

  1. This Doctrine was maintained very early ; for in the Caſe of a Premunire 39 Ed. 3. upon the Statute of 27 Ed. 3. of Proviſions againſt the Biſhop of Chichiſter, Serjeant Cavendiſh, of Counſel with the Biſhop objected two Things : Firſt, that the Act, Whereupon the Writ was grounded, was no Statute ; Secondly, that if it were a Statute, it was never publiſhed in the County. To whom Sir Robert Thorpe Chief Juſtice, anſwered. Although Proclamation be not made in the County, every one is bound to take Notice of that which is done in Parliament; for, as ſoon as the Parliament hath concluded any Thing, the Law intends that every Perſon hath Notice thereof ; for the Parliament repreſents the Body of the whole Realm, and therefore it is not requiſite that any Proclamation be made, feeing the Statute took Effect before. 3 Inſt. 26.
  2. See State Trials, Vol. 6.
  3. Lord Coke, who firſt printed this Act, gives us to underſtand that the Repecuatur in the Margin, was entered by the Prince - " A ſtrange Preſumption," ſays he, " without Warrant of the King his Father and of the Parliament, to cauſe ſuch a Reprectuatur to be made to an Act of Parliament." His Lordſhip adds, that the Prince, did the like to another Act in the ſame Parliament, concerning Attornies, the like whereof was never done in any former or latter Parliainents." The Act which his Lordſhips here ſpeaks of, is the 11 H. 4. nu. 63. for reducing the Number of Attornies, &c. which was thought ſo grievous, that, in the thirteenth Year of the ſame Reign, they prayed that it might be modified in the preſent Parliament. See Rot. Parl. 13 H. 4. nu 49. But if they had not conſidered it as a valid Act, notwithſtanding the Reſpectuatur, it would have been unnecceſſary for them to have petitioned the King in Parliament, for a Modification of the Bill. Befides if a Respectatur, entered by we know not whom, had the Power of ſuſpending the Operation of a Law, which had ſolemnly received the Royal Aſſent, it would in Fact defeat the Purpoſe of the Lcgiſlature, and amount to a diſpenſing Power.— Biſhop Nicelſonlikewiſe ſpeaks of the Entry of this Reſpectuatur, as one of the Prince's Frolicks. See Nicholſon's Hiſtorical Libraries.

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