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The History of the Common Law of England|
by Hale, Matthew
|I. Concerning the Distribution of the Law 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: 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
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been repealed or altered, either by contrary Usage, or by subsequent Acts of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 intervened between 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 the Confessor, 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
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
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
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
In the Time of K. Edw. I. there are many more Acts of Parliament 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
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
In the Time of K. Edw. 2, many Parliaments were held, and many Laws were
enacted; but we have few Acts of Parliament of his Reign extant, especially of
And now, because I intend to give some short Account of some general
Observations touching Parliaments, and of Acts of Parliament 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 not meddle.
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
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 by the 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 Information 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 of Parliament, 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
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
Charta de Foresta. Mag. Rot. Stat. membr. 19 & Rot. Cartar. 28 E. I
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.
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
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
Record concerning 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.