all contested Titles, they are courted by each Party, and whoever prevails, is directed by Policy to have his Title recognized by them, and to secure the Continuance of their Favour and Support, by some Enlargement or Confirmation of their Privileges. Add to this, that the Power of the Nobility beginning to decline, they were glad to gain the Commons to their Party, which farther extended the Influence of the representative Body.
During these Contests, however, when civil Rights were so far from being established, that the primitive Rights of Justice and Humanity were daily violated, the Business of Legislation was variously and irregularly conducted, both in Form and Substance. And there seems to have been no settled Precedent for penning the enacting Clauses [1], till the 13th of Charles II. stat. 2. c. 2. when the Form now in Use first took Place.
Our Judgment, however, with regard to the antient Acts, ought to be guided by the Practice of those Times; and it would, with Submission, be very unreasonable to deny the Validity of any of the antient Statutes, upon the Principle laid down in the Books; that is, because the Assent of the Commons is not expressed; since it is evident, that their Assent, after it was allowed in Terms, was often over-ruled in Practice: That where we may safely presume their Assent was given, it frequently was not expressed in the Act: And that there was not any settled Form of declaring the Concurrence of the several Estates of the Kingdom.
IT remains now, in farther Support of the early Statutes, to take Notice of some more extensive Objections, which are not levelled against the Authority of any particular Act, but are calculated to overthrow the Statutes in general of several whole Reigns. Of this Nature are the Principles maintained by the anonymous Author of a Treatise, intitled, "The hereditary Right to the Crown of England asserted" who hath boldly objected to all the Laws passed during the Reigns of those Kings, whom he stiles Kings de facto, on pretence that they are voidable: And as an Instance that they lost their Force for want of Confirmation, he hath cited 10 Hen. VI. which Ed. IV. refused to confirm.
This strange Reasoning has been contraverted by Mr. Cay [2] but as that Gentleman, in the Course of his Animadversions, has advanced some Principles which are
- ↑ This loose Method of penning the enacting Clauses prevailed even in the Reigns of Elizabeth, James, and Charles the First. See 13 Eliz. c. 20. 18 Eliz, c. 11. 3 Jac. c. 16. 7 Jac. c. 6. 16 Car I. c. 10. with many others of the like Form.
- ↑ The Editor takes this Opportunity of observing, that, however he may fee Occasion to dissent from Mr. Cay, yet he would be always understood to express himself with the Regard so justly due to the Memory
contradict the concurring Testimony of Historians. Stephen, in order to secure his tottering Throne, granted a Charter, by which he endeavoured to conciliate the Favour of all Orders. To the Clergy, he undertook to supply all vacant Benefices—To the Nobility, that they should not be prosecuted for hunting in the Forests—And to the People, that he would remit the Tax of Danegelt, and restore the Laws of King Edward. Henry 4. likewise was obliged to court Popularity; and the Commons, during his Reign, exercised very large, and, till then, unusual Powers: The Particulars of which may be feen in Cotton's Abridgement. And. Prynne, in a Note upon the Abridgement, takes notice, that the Commons young Speaker [Sir John Tiptoft] took more upon him, at this Time, than ever Speaker did before him. It is true, when these Candidates for Royalty are well settled in their Thrones, they then apply themselves to abridge and refcind their Grants, and to lower that Power which has exalted their own: For to preserve the Liberties of a Nation, is a species of Magnanimity, to which most Heroes are unhappily Strangers.
