the history of the common law of england-第2部分
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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 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 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； 1 3 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 were enacted； 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 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 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 Statiute 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
