THE

HISTORY

OF

THE COMMON LAW

OF

ENGLAND.

CHAP. I.

Concerning the distribution of the laws of ENGLAND into Common law and Statute law. And first, concerning the Statute law, or Acts of Parliament.

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 (a). 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 obtained their force by

(a) Constat autem jus nostrum, quo utimur, aut scripto, aut sine scripto; ut apud Grecos Των οι μεν 'γραφοι, οι δε ypapo. Inst. 1. 1. t. 2. s. 3. Et non ineleganter in duas species jus civile distributum esse videtur; nam origo ejus ab institutis duarum civitatum, Athenarum scilicet et Lacedæmoniorum, fluxisse videtur. In his enim civitatibus ita agi solitum erat, ut Lacedæmonii quidem ea, quæ pro legibus observabant, memoriæ mandarent: Athenienses vero ea, quæ in legibus scripta comprehendissent, custodirent. Id. s. 10. Indeed under those two comprehensive heads, all laws have

been classed by ancient writers. See Aristotle's distinction of laws, 1 Rhet. c. 3. and the Antigone of Sophocles, v. 459. But see Dr. Taylor's Elements of the Civil Law, 247. seq. and Dr. Adams' Roman Antiquities;-a book which not only facilitates the acquisition of classical learning, but accelerates the communication of useful knowledge. Sir John Fortescue, (who was chancellor to Henry the sixth), remarks, quod omnia jura humana aut sunt lex naturæ, consuetudines, vel statuta, quæ et constitutiones appellantur. De laud. leg. Angl. c. 15.

B

immemorial usage or custom; and such laws are properly called leges non scripta, or unwritten laws or customs.

Those laws, therefore, that I call leges scripta, 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 indenture, 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 (A).

(A) The high court of parliament consists of the king, in his royal political capacity; of the lords spiritual †, who sit there by succession, in respect of their baronies; of the lords temporal, who sit there in consequence of their respective dignities, which they enjoy, either by descent, or creation; who are called to this high and omnipotent court by a writ of summons §; of knights, citizens, and burgesses, who are respectively elected by the different counties, cities, and boroughs of the kingdom, by virtue of a writ which is issued for that purpose. These constitute the parliament of Great Britain- "the highest and "most honourable, and absolute court of justice ¶" in the kingdom. For its laws, usages, and powers, see Com. Dig. 5. v. tit. Parliament. Sir Edward Coke, in treating of the high court of Parliament, says, "there is no act of parliament "but must have the consent of the lords, the commons, and the royal assent of "the king; and as it appeareth by records ** and our books, whatsoever passeth "in parliament by this threefold consent, hath the force of an act of parlia"ment+t."

sa

* Parliamentum-Curia apud nos prema: magnum trium ordinum regni concilium, vel conventus, ut cum rege de rebus arduis consultent. Colloquium quandoq; dictum, et propriè; nam a Gallico (parler) venit, quod loqui significat. Vox huc a Normannis advecta, nec anteà Anglis nota, quibus Concilium illud interdum MICHEL GEMOT, i.c. Synodus magna: interdum WITENA GEMOT, i e. sapientum Conventus; item, MICHEL SINOTU, et similiter nuncupatum. Somner. Tyrrell. 9 Co. Præf. The great council, by which an Anglo-Saxon king was guided in all the main acts of government, bore the appellation of Wittenagemot, or the assembly of the wise men. Upon which subject, as upon most others, connected with the English constitution, the student may receive most valuable informa tion, from Mr. Hallam's View of the Middle Ages a work which cannot but "conduce "to stimulate the reflexion, to guide the re"searches, to correct the prejudices, or to

Now, statute laws, or acts of parliament, are of two kinds. First, those statutes which were made before time of memory;

If there be the consent of one or two of them, it is only an ordinance; for the difference between an act of parliament and an ordinance is," for that the "ordinance wanteth the threefold consent, and is ordained by one or two of the "them." Elsynge states the distinction thus: "what begun in the commons was only termed a petition, (for they had no power to ordain); and what begun "in the lords, was styled an ordinance. Actus Parliamenti was an act made by "the lords and commons; and it became Statutum when it received the king's "consent." This passage is omitted in the late edition of Elsynge (1768, 12mo.) for himself erased it from the MS. from which that edition is printed.†

If an act appears to be passed without the assent of the commons, it is void. Mo. 824. Or, without the assent of the lords, or, of the king. Pl. Com. 79. H. Parl. 32. So, if it be by the assent of the king, the lords spiritual ONLY, and the commous, it is but an ordinance, and no act of parliament. Or, by the king, the lords temporal, and commons. 4 Inst. 25. But it is not necessary, that any of the lords spiritual assent; provided there be a MAJORITY of the lords ASSEMBLED in parliament. Seld. 3. v. 2. p. 1528. So, if all the spirituál lords assent conditionally; for, the condition is void. 4 Inst. 35. Or, if the spiritual lords are absent. 3 Rush. 1344. So, it is not material, that the assent of the king, lords, and commons, be particularly expressed: for PER ASSENSUM PARLIAMENTI Comprehends the assent of ALL. Jon. 104. So, if by the roll it appears, that the bill was sent to the lords, by the commons, with a proviso annered, and no proviso is extant upon the record, yet it will be a good statute. Hob. 110. And, if the journal of parliament vary from the record, it will not prejudice, for that is no record. Hob. 110, 111. So, it is not material in what form it is expressed; for it may be in the form of a charter. Co. Lit. 98. 8 Co.

18, 19. Or, by way of a GRANT, by the king in parliament. Co. Lit. 98.—And therefore, if the king grants PER CONSILIUM FIDELIUM SUBDITORUM, and it has always had the reputation of an act of parliament, it is SUFFICIENT. 8 Co. 20. a. Jon. 103. So, if the act be penned, DE CONCILIO PRÆLATORUM, COMITUM, BARONUM, ET ALIORUM DE REGNO NOSTRO STATUIMUS, &c. 8 Co. 20. So, if it be certified as an act of parliament by the chancellor, when nul tiel record is pleaded, and a certiorari goes to him to certify; though the royal assent be not expressed. 3 Keb. 587.

GENERAL acts are always INROLLED by the clerk of the parliament, and delivered to the Chancery; which inrollment in Chancery makes the ORIGINAL record. PRIVATE acts are not inrolled, unless at the special suit of the party: but the original bill, with the assent of the lords and commons and royal assent indorsed and filed, and labelled with the other bills to which the great seal is annexed, which remained with the clerk of parliament, is the original record. Hob. 109.

27. a. Brooke prerogative, 134. Fortescue fo. 20. cap. 18. Dier 1. Mar. 92. Vide also 2 Inst. 157. 8 Co. 20. the Prince's case. Pl. Com. 79. a. Ha. Parl. 31.

4. Inst. 25. cites Rot. Parl. 25 E. 3. nu. 16, &c. 39 E. 3. 12. 22 E. 3. 3. 8 H.

6. cap. 29. Dier. 4. Mar. 144. 39 E. 3. 7. Thorpe male erravit. Rot. Parl. 37 E. 3. nu. 39. 1 R. 2. nu. 56. diversity between acts of parliament and ordinances, 2 R. 2.

stat. 2. nu. 28.

↑ Barr, on Stat. 41.

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. c. 39. (a) was settled and reduced to the beginning of the reign of king Richard I. or ex prima coronatione regis Ricardi primi (b); who began his reign the sixth of July 1189, and was crowned the third of September following. So that whatsoever was before that time, is before time of memory. What is since that time, is, IN A LEGAL SENSE, said to be WITHIN, or since 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 the first, 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 mere immemorial usage or custom (c).

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 (d); though

(a) Made

at Westminster 25th April, ann. 3 Edw. 1. An. Dom. 1275. Co. Lit. 114, 115. Barring. Obs. Stat. 67. seq.

(b) Time of memory hath been long ago ascertained by the law to commence from the reign of Richard the first, and any custom may be destroyed by evidence of its non-existence in any part of the long period, from his days to the present. This rule was adopted, when by the stat. of West. 1. c. 39. the reign of Richard I. was made the time of limitation of a writ of right. But, since by the stat. 32 Hen. 8. c. 2. this period (in a writ of right) hath been very rationally reduced to sixty years, it seems unaccountable, that the date of legal prescription, or memory, should still continue to be reckoned from an æra so ,very antiquated. Black. Com. 2. vol. 31. 2 Rol. Abr. 269. pl. 16. and Hawk.

Abr. of Co. Lit. 168. But see Lit. sec. 170. and Co. Lit. 113.

(c) If found in records or histories, they ought not to be reputed as acts of parliament. Coin. Dig. 4. v. 334. Dr. Taylor's Elements of the Civil Law, 241. seq. and Summary of the Roman Law 11S, 114, 115, 116.

(d) The common law and the statute law flow originally from the same fountain, the legislature; the statute law being the will of the legislature, remaining on record in writing; the common law, nothing else but statutes, antiently written, but which have been worn out by time. All our law began by consent of the legislature; and whether it be now law by custom, by usage, or by writing, it is the same thing. Wils. Par. 2. 348. 351. and see post chap. 4.