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

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vii
PREFACE

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 most noble Christian Lord Henry, &c. by the Advice and Assent 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 Assent, 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 Assent of one Order, should not be intended as well as the Assent of two, Besides, 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 Mediatatem 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 Clauses; 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