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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