The Laws of England may aptly enough be divided into two Kinds, viz. Lex Scripta, the written Law: and Lex non Scripta, the unwritten Law: For although (as shall be shewn hereafter) all the Laws of this Kingdom have some Monuments or Memorials thereof in Writing, yet all of them have not their Original in Writing; for some of those Laws have obtain’d their Force by immemorial Usage or Custom, and such Laws are properly call’d Leges non Scriptae, or unwritten Laws or Customs.
Those Laws therefore, that I call Leges Scriptae, or written Laws, are such as are usually called Statute Laws, or Acts of Parliament, which are originally reduced into Writing before they are enacted, or receive any binding Power, every such Law being in the first Instance formally drawn up in Writing, and made, as it were, a Tripartite lndenture, between the King, the Lords and the Commons; for without the concurrent Consent of all those Three Parts of the Legislature, no such Law is, or can be made: But the Kings of this Realm, with the Advice and Consent of both Houses of Parliament, have Power to make New Laws, or to alter, repeal, or enforce the Old. And this has been done in all
Succession of Ages. Now, Statute Laws, or Acts of Parliament, are of Two Kinds, viz. First, Those Statutes which were made before Time of Memory; and, Secondly, Those Statutes which were made within or since Time of Memory; wherein observe, That according to a juridical Account and legal Signification, Time within Memory is the Time of Limitation in a Writ of Right; which by the Statute of
Westminster 1. cap. 38. was settled, and reduced to the Beginning of the Reign of King Richard I or Ex prima Coronatione Regis Richardi Primi, who began his Reign the 6th of July 1189, and was crown’d the 3d of September following: So that whatsoever was before that Time, is before Time of Memory; and what is since that Time, is, in a legal Sense, said to be within or since the Time of Memory.
And therefore it is, that those Statutes or Acts of Parliament that were made before the Beginning of the Reign of King Richard I and have not since been repealed or altered, either by contrary Usage, or by subsequent Acts of Parliament, are now accounted Part of the Lex non Scripta, being as it were incorporated thereinto, and become a Part of the Common Law; and in Truth, such Statutes are not now pleadable as Acts of
Parliament, (because what is before Time of Memory is supposed without a Beginning, or at least such a Beginning as the Law takes Notice of) but they obtain their Strength by meer immemorial Usage or Custom. And doubtless, many of those Things that now obtain as Common Law, had their Original by Parliamentary Acts or Constitutions, made in Writing by the King, Lords and Commons; though those Acts are now either not extant, or if extant, were made before Time of Memory; and the Evidence of the Truth hereof will easily appear, for that in many of those old Acts of Parliament that were made before Time of Memory, and are yet extant, we many find many of those
Laws enacted which now obtain merely as Common Law, or the General Custom of the Realm: And were the rest of those Laws extant, probably the Footsteps of the Original Institution of many more Laws that now obtain meerly as Common Law, or Customary Laws, by immemorial Usage, would appear to have been at first Statute Laws, or Acts of Parliament.
Those ancient Acts of Parliament which are ranged under the Head of Leges non Scriptae, or Customary Laws, as being made before Time of Memory, are to be considered under Two Periods: Viz. First, Such as were made before the coming in of King
William I commonly called, The Conqueror; or, Secondly, Such as intervenedbetween his coming in, and the Beginning of the Reign of Richard I which is the legal Limitation of Time of Memory. The former Sort of these Laws are mentioned by our ancient Historians, especially by Brompton, and are now collected into one Volume by William Lambard, Esq; in his Tractatus de priscis Anglorum Legibus, being a Collection of the Laws of the Kings, Ina, Alfred, Edward, Athelstane, Edmond, Edgar, Ethelred,
Canutus, and of Edward te Confessor; which last Body of Laws, compiled by Edward the Confessor, as they were more full and perfect than the rest, and better accommodated to the then State of Things, so they were such whereof the English were always very zealous, as being the great Rule and Standard of their Rights and Liberties: Whereof more hereafter.
The second Sort are those Edicts, Acts of Parliament, or Laws, that were made after the coming in of King William, commonly named, The Conqueror, and before the beginning of the Reign of King Richard I and more especially are those which follow; whereof I shall make but a brief Remembrance here, because it will be necessary in the Sequel of this Discourse (it may be more than once) to resume the Mention of them; and besides, Mr Selden, in his Book called, Janus Anglorum, has given a full Account of those Laws; so that at present it will be sufficient for me, briefly to collect the Heads or Divisions of them, under the Reigns of those several Kings wherein they were made, viz.
First, The Laws of King William I. These consisted in a great Measure of the Repetition of the Laws of King Edward theConfessor, and of the enforcing them by his own Authority, and the Assent of Parliament, at the Request of the English; and some new Laws were added by himself with the like Assent of Parliament, relating to Military Tenures, and the Preservation of the publick Peace of the Kingdom; all which are mention’d by Mr Lambert, in the Tractate before-mentioned, but more fully by Mr Selden, in his Collections and Observations upon Eadmerus.
Secondly, We find little of new Laws after this, till the Time of King Henry I, who besides the Confirmation of the Laws of the Confessor, and of King William I brought in a new Volume of Laws, which to this Day are extant, and called the Laws of King Henry I. The entire Collection of these is entered in the Red Book of the Exchequer, and from thence are transcribed and
published by the Care of Sir Roger Twisden, in the latter End of Mr Lambart’s Book before-mention’d; what the Success of those Laws were in the Time of King Steven, and King Henry 2 we shall see hereafter: But they did not much obtain in England, and are now for the most Part become wholly obsolete, and in Effect quite antiquated.
Thirdly, The next considerable Body of Acts of Parliament, were those made under the Reign of King Henry 2 commonly called, The Constitiutions of Clarendon; what they were, appears best in Hoveden and Mat. Paris, under the years of that King. We have little Memory else of any considerable Laws enacted in this
King’s Time, except his Assizes, and such Laws as related to the Forests; which were afterwards improv’d under the Reign of King Richard I. But of this hereafter, more at large. And this shall serve for a short Instance of those Statutes, or Acts of Parliament, that were made before Time of Memnory; whereof, as we have no Authentical Records, but only Transcripts, either in our ancient Historians, or other Books and Manuscripts; so they being Things done before Time of Memory, obtain at this Day no further than as by Usage and Custom they are, as it were, engrafted into the Body of the Common Law, and made a Part thereof.
And now I come to those Leges Scriptae, or Acts of Parliament, which were made since or within the Time of Memory, viz. Since the Beginning of the Reign of Richard I and those I shall divide into Two General Heads, viz. Those we usually call the Old Statutes, and those we usually call the New or later Statutes: And because I would prefix some certain Time or
Boundary between them, I shall call those the Old Statutes which end with the Reign of King Edward 2 and those I shall call the New or later Statutes which begin with the Reign of King Edward 3 and so are derived through a Succession of Kings and Queens down to this Day, by a continued and orderly Series.
Touching these later Sort I shall say nothing, for they all keep an orderly and regular Series of Time, and are extant upon Record, either in the Parliament Rolls, or in the Statute Rolls of King Edward 3 and those Kings that follow: For excepting some few years in the Beginning of K. Edward 3. i.e. 2, 3, 7, 8 & 9 Edw. 3. all the Parliament Rolls that ever were since that Time have been preserved, and are extant; and, for the most Part, the Petitions upon which the Acts were drawn up, or the very Acts themselves.
Now therefore touching the elder Acts of Parliament, viz. Those that were made between the First Year of the Reign of K. Richard I and the last year of K. Edward 2 we have little extant in any authentical History; and nothing in any authentical Record touching Acts made in the Time of K. Rich. I unless we take in those Constitutions and Assizes mentioned by Hoveden as
aforesaid.Neither is there any great Evidence, what Acts of Parliament pass’d in the Time of King John, tho’ doubtless many there were both in his Time, and in the Time of K. Rich. I. But there is no Record extant of them, and the English Histories of those Times give us but little Account of those Laws; only Matthew Paris gives us an Historical Account of the Magna Charta, and Charta de Foresta, granted by King John at Running Mead the 15th of June, in the Seventeenth Year of his Reign.
And it seems, that the Concession of these Charters was in a Parliamentary Way; you may see the Transcripts of both Charters verbatim in Mat. Paris, and in the Red Book of the Exchequer. There were seven Pair of these Charters sent to some of the Great Monasteries under the Seal of King John, one Part whereof sent to the Abby of Tewkesbury I have seen under the Seal of that King; the Substance thereof differs something from the Magna Charta, and Charta de Foresta, granted by King Henry 3 but not very much, as may appear by comparing them.
But tho’ these Charters of King John seem to have been passed in a kind of Parliament, yet it was in a Time of great Confusion between that King and his Nobles; and therefore they obtained not a full Settlement till the Time of King Henry 3 when the
Substance of them was enacted by a full and solemn Parliament. I therefore come down to the Times of those succeeding Kings, Henry 3. Edw. I. and Edw. 2. and the Statutes made in the Times of those Kings, I call the Old Statutes; partly because many of them were made but in Affirmance of the Common Law; and partly because the rest of them, that made a Change in the Common Law, are yet so ancient, that they now seem to have been as it were a Part of the Common Law, especially considering the many
Expositions that have been made of them in the several Successions of Times, whereby as they became the great Subject of Judicial Resolutions and Decisions; so those Expositions and Decisions, together also with those old Statutes themselves, are as it were incorporated into the very Common Law, and become a Part of it.
In the Times of those three Kings last mentioned, as likewise in the Times of their Predecessors, there were doubtless many more Acts of Parliament made than are now extant of Record, or otherwise, which might be a Means of the Change of the Common Law in the Times of those Kings from what it was before, tho’ all the Records of Memorials of those Acts of Parliament introducing such a Change, are not at this Day extant: But of those that are
extant, I shall give you a brief Account, not intending a large or accurate Treatise touching that matter. The Reign of Henry 3 was a troublesome Time, in respect of the Differences between him and his Barons, which were not composed till his 51st year, after the Battle of Evesham. In his Time there were many Parliaments, but we have only one Summons of Parliament extant of Record in his Reign, viz. 49 Henry 3. and we have but few of those many Acts of Parliament that passed in his Time, viz. The great Charter, and Charta de Foresta, in the Ninth year of his Reign, which were doubtless pass’d in Parliament; the Statute of Merton, in the 20th year of his Reign; the Statute of Marlbridge, in the 52d year. and the Dictum sive Edictum de
Kenelworth, about the same Time; and some few other old Acts. In the Time of K. Edw. I. there are many more Acts ofParliament extant than in the Time of K. Henry 3. Yet doubtless, in this King’s Time, there were many more Statutes made than are now extant: Those that are now extant, are commonly bound together in the old Book of Magna Charta. By those Statutes, great Alterations and Amendments were made in the Common Law; and by those that are now extant, we may reasonably guess, that there were considerable Alterations and Amendments made by those that are not extant, which possibly may be the real, tho’ sudden Means of the great Advance and Alteration of the Laws of England in this King’s Reign, over what they were in the Time of his
Predecessors.The first Summons of Parliament that I remember extant of Record in this King’s Time, is 23 Edw. I, tho’ doubtless there were many more before this, the Records whereof are either lost or mislaid: For many Parliaments were held by this King before that Time, and many of the Acts pass’d in those Parliaments are still extant; as, the Statutes of Westminster I, in the 3d of Edw. I. The Statutes of Gloucester, 6 Edw. I. The Statutes of Westminster 2, and of Winton, 13 Edw. I. The Statutes of
Westminster 3, and of Quo Warranto, 18 Edw. I. And divers others in other years, which I shall have Occasion to mention hereafter.
In the Time of K. Edw. 2, many Parliaments were held, and many Laws wereenacted; but we have few Acts of Parliament of his Reign extant, especially of Record.And now, because I intend to give some short Account of some general Observations touching Parliaments, and of Acts ofParliament pass’d in the Times of those three Princes, viz. Henry 3. Edw. I. and Edw. 2. because they are of greatest Antiquity, and therefore the Circumstances that atended them most liable to be worn out by Process of Time, I will here mention some
Particulars relating to them to preserve their Memory, and which may also be useful to be known in relation to other Things. We are therefore to know, That there are these several Kinds of Records of Things done in Parliament, or especially relating thereto, viz. I. The Summons to Parliament. 2. The Rolls of Parliament. 3. Bundles of Petitions in Parliament. 4. The Statutes, or Acts of Parliament themselves. And, 5. The Brevia de Parliamento, which for the most part were such as issued for the Wages of Knights and Burgesses; but with these I shall notmeddle.First, as to the Summons to Parliament. These Summons to Parliament are not all entred of Record in the Times of Henry 3 and Edw. I. none being extant of Record in the Time of Hen. 3. but that of 49 Hen. 3. and none in the Time of Edw. I. till the 23 Edw. I. But after that year, they are for the most part extant of Record, viz. In Dorso Claius’ Rotulorum, in the Backside of the Close Rolls.
Secondly, As to the Rolls of Parliament, viz. The Entry of the several Petitions, Answers and Transactions in Parliament. Those are generally and successively extant of Record in the Tower, from 4 Edw. 3. downward till the End of the Reign of Edw. 4. Excepting only those Parliaments that intervened between the 1st and the 4th, and between the 6th and the 11th, of Edw. 3. But of those Rolls in the Times of Hen. 3. and Edw. I. and Edw. 2. many are lost and few extant; also, of the Time of Henry 3. I have not seen any Parliament Roll; and all that I ever saw of the Time of Edw. I. was one Roll of Parliament in the Receipt of the Exchequer of 18 Edw. I. and those Proceedings and
Remembrances which are in the Liber placitor’ Parliamenti in the Tower, beginning, as I remember, with the 20th year of Edw. I. and ending with the Parliament of Carlisle, 35 Edw. I and not continued between those years with any constant Series; but
including some Remembrances of some Parliaments in the Time of Edw. I. and others in the Time of Edw. 2. In the Time of Edw. 2. besides the Rotulus Ordinationum, of the Lords Ordoners, about 7 Edw. 2. we have little more than the Parliament Rolls of 7 & 8 Edw. 2. and what others are interspersed in the Parliament Book of Edw. I. above mentioned, and, as I remember, some short Remembrances of Things done in Parliament in the 19 Edw. 3. Thirdly, As to the Bundles of Petitions in Parliament. They were for the most part Petitions of private Persons, and are commonly endorsed with Remissions to the several Courts where they were properly determinable. There are many of those Bundles of Petitions, some in the Times of Edw. I. and Edw. 2 and more in the Times of Edw. 3. and the Kings that succeeded him.
Fourthly, The Statutes, or Acts of Parliament themselves. These seem, as if in the Time of Edw. I. they were drawn up into the Form of a Law in the first Instance, and so assented to by both Houses, and the King, as may appear by the very Observation of the Contexture and Fabrick of the Statutes of those Times. But from near the Beginning of the Reign of Edw. 3. till very near the End of Hen. 6. they were not in the first Instance drawn up in the Form of Acts of Parliament; but the Petition and the
Answer were entred in the Parliament Rolls, and out of both, by Advice of the Judges, and others of the King’s Council, the Act was drawn up conformable to the Petition and Answer, and the Act itself for the most part entred in a Roll, called, The Statute Roll, and the Tenor thereof affixed to Proclamation Writs,
directed to the several Sheriffs to proclaim it as a Law in their respective Counties.But because sometimes Difficulties and Troubles arose, by this extracting of the Statute out of the Petition and Answer; about the latter End of Hen. 6. and Beginning of Edward 4. they took a Course to reduce ’em, even in the first Instance, into the full and compleat Form of Acts of Parliament, which was
prosecuted (or Entred) commonly in this Form: Item quaedam Petitio exhibita fuit in hoc Parliamento forman actus in se continens, &c. and abating that Stile, the Method still continues much the same, namely; That the entire Act is drawn up in Form, and so comes to the King for his assent.
The ancient Method of passing Acts of Parliament being thus declared, I shall now give an Account touching those Acts of Parliament that are at this Day extant of the Times of Henry 3. Edw. I. and Edw. 2. and they are of two Sorts, viz. Some of them are extant of Record; others are extant in ancient Books and Memorials, but none of Record. And those which are extant of Record, are either Recorded in the proper and natural Roll, viz. the Statute Roll: or they are entred in some other Roll,
especially in the Close Rolls and Patent Rolls, or in both. Those that are extant, but not of Record, are such as tho’ they have no Record extant of them, but possibly the same is lost; yet they are preserved in ancient Books and Monuments. and in all Times have had the Reputation and Authority of Acts of Parliament. For an Act of Parliament made within Time of Memory, loses not its being so, because not extant of Record, especially if it be a general Act of Parliament. For of general Acts of
Parliament, the Courts of Common Law are to take Notice without pleading of them; and such acts shall never be put to be tried bythe Record, upon an Issue of Nul tiel Record. but it shall be tried by the Court, who, if there be any Difficulty or Uncertainty touching it or the right Pleading of it, are to use for their nformation ancient Copies, Transcripts, Books, Pleadings and Memorials to inform themselves, but not to admit the same to be put in Issue by a Plea of Niul tiel Record.
For, as shall be shewn hereafter, there are very many old Statutes which are admitted and obtain as such, tho’ there be no Record at this Day extant thereof, nor yet any other written Evidence of the same, but what is in a manner only Traditional, as namely, Ancient and Modern Books of Pleadings, and the common receiv’d Opinion and Reputation, and the Approbation of the
Judges Learned in the Laws: For the Judges and Courts of Justice are, ex Officio, (bound) to take Notice of publick Acts ofParliament, and whether they are truly pleaded or not, and therefore they are the Triers of them. But it is otherwise of private Acts of Parliament, for they may be put in Issue, and tried by the Record upon Nul tiel Record pleaded, unless they are produced exemplified, as was done in the Prince’s Cafe in my Lord Coke’s 8th Rep. and therefore the Averment of Nul tiel Record was refused in that Case.
The old Statutes or Acts of Parliament that are of Record, as is before said, are entred either upon the proper Statute Roll, or some other Roll in Chancery.The first Statute Roll which we have, is in the Tower, and begins with Magna Charta, and ends with Edw. 3. and is called Magnus Rotulus Statutor’. There are five other Statute Rolls in that Office, of the Times of Richard 2. Henry 4. Hen. 5. Hen. 6. and Edw. 4.
I shall now give a Scheme of those ancient Statutes of the Times of Henry 3. Edw. I. and Edw. 2. that are recorded in the first of those Rolls or elsewhere, to the best of my Remembrance, and according to those Memorials I have long had by me, viz.
Magna Charta. Magno Rot. Stat. membr. 40. & Rot. Cartar. 28 E. I and membr. 16.Charta de Foresta. Mag. Rot. Stat. membr. 19 & Rot. Cartar. 28 E. I membr. 26.
Stat. de Gloucestre. Mag. Rot. Stat. memb. 47.Westm. 2. Rot. Mag. Stat. membr. 47.Westm. 3. Rot. Clauso, 18 E. I. membr. 6. Dorso.Winton. Rot. Mag. Stat. memb. 41. Rot. Clauso, 8 E. 3. memb. 6. Dorso. Pars. 2. Rot. Clauso, 5 R. 2. membr. 13. Rot. Paten. 25 E. I. membr. 13.De Mercatoribus. Mag. Rot. Stat. Membr. 47. In Dorso.De Religiosis. Mag. Rot. Stat. membr. 47.Articuli Cleri. Mag. Rot. Stat. membr. 34. Dorso 2 Pars. Pat. E. I. 2. membr. 34. 2 Pars. Pat. 2 E. 3. membr. 15.De hiis qui ponendi sunt in Assisis. Mag. Rot. Stat. membr. 41.De Finibus levatis. Mag. Rot. Stat. membr. 37.De defensione Juris liberi Parliam. Lib. Parl. E. I. fo. 32. Stat. Eborum. Mag. Rot. Stat. membr. 32.De conjunctis infeofatis. Mag. Rot. Stat. membr. 34.De Escaetoribus. Mag. Rot. Stat. membr. 35. Dorso, & Rot. Claus. 29 E. I. membr. 14. Dorso.Stat. de Lincolne. Mag. Rot. Stat. membr. 32.Stat. de Priscis. Rot. Mag. Stat. membr. 33. In Schedula de libertatibus perquirendis, vel Rot. Claus. 27 E. I. membr. 24. Stat. de Acton Burnel. Rot. Mag. Stat. membr. 46. Dorso, & Rot. Claus. II. E. I. membr. 2.
Juramentum Vicecomit. Rot. Mag. Stat. membr. 34. Dorso, & Rot. Claus. 5 E. 2. membr. 23.Articuli Stat. Gloucestriae. Rot. Claus. 2 E. 2. Pars. 2. membr. 8.De Pistoribus & Braciatoribus. 2 Pars, Claus. vel Pat. 2 R 2. membr. 29.De asportatis Religiosor. Mag. Rot. Stat. membr. 33.Westm. 4. De Vicecomitibus & Viridi caera. Rot. Mag. Stat. membr. 33. In Dorso.Confirmationes Chartarum. Mag. Rot. Stat. membr. 28.De Terris Templariorum. Mag. Rot. Stat. membr. 31. in Dorso, & Claus. 17 E. 2. membr. 4.Litera patens super prisis bonorum Cleri. Rot. Mag. Stat. membr. 33. In Dorso.De Forma mittendi extractas ad Scaccar. Rot. Mag. Stat.membr. 36. & membr. 30. In Dorso.
Statutum de Scaccar. Mag. Rot. Stat.Statutum de Rutland. Rot Claus. 12 E. 1.Ordinatio Forestae. Mag. Rot. Stat. membr. 30. & Rot. Claus. 17 E. 2. Pars 2. membr. 3.
According to a strict Inquiry made about 30 years since, these were all the old Statutes of the Times of Hen. 3. Edw. I. and Edw. 2. that were then to be found of Record; what other Statutes have been found since, I know not.
The Ordinance called Butler’s, for the Heir to punish Waste in the Life of the Ancestor, tho’ it be of Record in the Parliament Book of Edw. I yet it never was a Statute, nor never so received, but only some Constitution of the King’s Council or Lords in Parliament, and which never obtain’d the Strength or Force of an Act of Parliament.
Now those Statutes that ensue, tho’ most of ’em are unquestionable Acts of Parliament, yet are not of Record that I know of, but only their Memorials preserved in ancient Printed and Manuscript Books of Statutes; yet they are at this Day for the most part generally accepted and taken as Acts of Parliament, tho’ some of ’em are now antiquated and of little Use, viz.
The Statutes of Merton, Marlbridge, Westm. I. Explanatio Statuti Gloucestriae, De Champertio, De visu Frankplegii, De pane & Cervisia, Articuli Inquisitionis super Stat. de Winton, Circumspecte agatis, De districtione Scaccarii, De Conspirationibus, De vocatis ad Warrant. Statut. de Carliol, De Prerogativa Regis, De modo faciendi Homag. De Wardis & Releivis Dies Communes in Banco. Stat. de Bigamis, Dies Communes in Banco in casu consimili. Stat. Hiberniae, De quo Warranto, De Essoin calumpniand. Judicium collistrigii, De Frangentibus Prisonar’. De malefactoribus in Parcis, De Consultationibus, De Officio
Coronatoris, De Protectionibus, Sententia lata super Chartas, Modus levandi Fines. Statut. de Gavelet, De Militibus, De Vasto, De anno Bissextili, De appellatis, De Extenta Manerii, Compositio Mensearum vel Computatio Mensarum. Stat. de Quo Warranto, Ordinatio de Inquisitionibus, Ordinatio de Foresta, De admensura Terre, De dimissione Denarior. Statut. de Quo Warranto novum, Ne Rector prosternat arbores in Caemeterio, Consuetudines & Assisa de Foresta, Compositio de Ponderibus, De Tallagio, De visu Terrae & servitio Regis, Compositio ulnarum & particarum, De Terris amortizandis, Dictum de Kenelworth, &c.
From whence we may collect these Two observations, viz.
First, That altho’ the Record itself be not extant, yet general Statutes made within Time of Memory, namely, since 1 Richardi Primi, do not lose their Strength, if any authentical Memorials thereof are in Books, and seconded with a general receiv’d Tradition attesting and approving the same.
Secondly, That many Records, even of Acts of Parliament, have in long Process of Time been lost, and possibly the Things themselves forgotten at this Day, which yet in or near the Times wherein they were made, might cause many of those authoritative Alterations in some Things touching the Proceedings and Decisions in Law: The Original Cause of which Change being otherwise at this Day hid and unknown to us; and indeed, Histories (and
Annals) give us an Account of the Suffrages of many Parliaments, whereof we at this Time have none, or few Footsteps extant in Records or Acts of Parliament. The Instance of the great Parliament at Oxford, about 40th of Henry 3, may, among many others of like Nature, be a concurrent Evidence of this: For tho’ we have Mention made in our Histories of many Constitutions made in the said Parliament at Oxford, and which occasioned much
Trouble in the Kingdom, yet we have no Monuments of Recordconcerning that Parliament, or what those Constitutions were.
And thus much shall serve touching those Old Statutes or Leges Scriptae, or Acts of Parliament made in the Times of those three Kings, Henry 3. Edw. I. and Edw. 2. Those that follow in the Times of Edw. 3. and the succeeding Kings, are drawn down in a continued Series of Time, and are extant of Record in the Parliament Rolls, and in the Statute Rolls, without any remarkable Omission, and therefore I shall say nothing of them.
II. Concerning the Lex non Scripta, i.e. The Common or Municipal Laws of this Kingdom
In the former Chapter, I have given you a short Account of that Part of the Laws of England which is called Lex Scripta, namely, Statutes or Acts of Parliament, which in their original Formation are reduced into Writing, and are so preserv’d in their Original Form, and in the same Stile and Words wherein they were first made: I now come to that Part of our Laws called, Lex non Scripta, under which I include not only General Customs, or the Common Law properly so called, but even those more particular Laws and Customs applicable to certain Courts and Persons,
whereof more hereafter.And when I call those Parts of our Laws Leges non Scriptae, I do not mean as if all those Laws were only Oral, or communicated from the former Ages to the later, merely by Word. For all those Laws have their several Monuments in Writing, whereby they are transferr’d from one Age to another, and without which they would soon lose all kind of Certainty: For as the Civil and Canon Laws have their Responsa Prudentum Consilia & Decisions, i.e. their Canons, Decrees, and Decretal Determinations extant in Writing; so those Laws of England which are not comprised under the Title of Acts of Parliament, are for the most part extant in Records of Pleas, Proceedings and Judgments, in Books of Reports, and
Judicial Decisions, in Tractates of Learned Men’s Arguments and Opinions, preserved from ancient Times, and still extant in Writing. But I therefore stile those Parts of the Law, Leges non Scriptae, because their Authoritative and Original Institutions are not set down in Writing in that Manner, or with that Authority that Acts of Parliament are, but they are grown into Use, and have acquired their binding Power and the Force of Laws by a long and immemorial Usage, and by the Strength of Custom and Reception in this Kingdom. The Matters indeed, and the Substance of those Laws, are in Writing, but the formal and obliging Force and Power of them grows by long Custom and Use, as will fully appear in the ensuing Discourse.
For the Municipal Laws of this Kingdom, which I thus call Leges non Scriptae, are of a vast Extant, and indeed include in their Generality all those several Laws which are allowed, as the Rule and Direction of Justice and Judicial Proceedings, and which are applicable to all those various Subjects, about which Justice is conversant. I shall, for more Order, and the better to guide my Reader, distinguish them into Two Kinds, viz.
First, The Common Law, as it is taken in its proper and usual Acceptation. Secondly, Those particular Laws applicable to particular subjects, Matters or Courts.
1. Touching the former, viz. The Common Law in its usual and proper Acceptation. This is that Law by which Proceedings and Determinations in the King’s