Magnus Rotulus Statutor'. There are five other statute rolls in that office, of the times of Richard II. Henry IV. Henry V. Henry VI. and Edward IV.

I shall now give a scheme of those ancient statutes, of the times of Henry III. Edward I. and Edward II. 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. 1. membr. 16.

Charta de. Foresta. Mag. Rot. Stat. membr. 19. & Rot. Cartar. 28. E. 1. membr. 26.

Stat. de Gloucestre. Mag. Rot. Stat. membr. 47.

Westm. 2. Rot. Mag. Stat. membr. 47.

Westm. S. Rot. Clauso, 18. E. 1. membr. 6. Dorso.

Winton. Rot. Mag. Stat. membr. 41. Rot. Clauso, 8. E. 3. membr. 6. Dorso. Pars. 2. Rot. Clauso, 5. R. 2. membr. 13. Rot. Paten. 25. E. 1. 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. 1. 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. $7.

De Defensione Juris liberi Parliam. Lib. Parl. E. 1. 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. 1. 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. 1. membr. 24.

Stat. de Acton Burnel. Rot. Mag. Stat. membr. 46. Dorso, & Rot. Claus. 11. E. 1. membr. 2.

Juramentum Vicecomit. Rot. Mag. Stat. membr. 34. Dorso, & Rot. Claus. 5. E. 2. membr. 23.

Articuli Stat. Gloucestriæ. 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.

C

Westm. 4. De Vicecomitibus & Viridi Cæra. 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. 30. & membr. 36. in Dorso.

Statutum de Scaccar. Mag. Rot. Stat.

Statutum de Rutland. Rot. Claus. 12. E. 1.

Ordinatio Forestæ. Mag. Rot. Stat. membr. 30. & Rot. Claus. 17. E. 2. Pars. 2. membr. 3.

According to a strict enquiry made about thirty years since, these were all the old statutes of the times of Henry III. Edward I. and Edward II. 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, though it be of record in the parliament book of Edward I. yet it never was a statute, nor ever so received; but only some constitution of the king's counsel, or lords in parliament, and which never obtained the strength or force of an act of parliament (a).

Now the statutes that ensue, though most of them 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, though some of them are now antiquated and of little use; viz.

The statutes of Merton, Marlbridge, Westm. 1. Explanatio Statuti Gloucestriæ, De Champertio, De Visu Frank plegii, De Pane & Cervisia, Articuli Inquisitionis super stat. de Winton, Circumspecte Agatis, De Districtione Scaccarii, De Conspirationibus, De Vocatis and Warrant. Statut. de Carliol, De Prærogativa Regis, De Modo faciendi Homag. De Wardis & Releivis, Dies Communis in Banco, Stat. de Bigamis, Dies communes in

(a) Whatever was begun by the commons, was anciently termed Petition; for they had no jurisdiction, or power to ordain; and whatever was commenced by the lords, an ordinance;

the statute was an act made by the lords and commons, and consented to by the King. Elsyn. c. 1. 4 Inst. 25. 186. Rot. Parl. 37 Ed. 3. no. 38.

Banco in casu consimili. Stat. Hiberniæ, 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 Mensarum vel Computatio Mensarum, Stat. de Quo Warranto, Ordinatio de Inquisitionibus, Ordinatio de Foresta, De Admensura Terræ, De Dimissione Denarior. Stat. de Quo Warranto Novum, Ne Rector prosternat Arbores in Cæmeterio, Consuetudines, & Assisa de Foresta, Compositio de Ponderibus, De Tallagio, De Visu Terræ & Servitio Regis, Compositio Ulnarum & Particarum, De Terris amortizandis, Dictum de Kenelworth, &c.

From whence we may collect these two observations, viz.

First, that although 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 received tradition attesting and approving the same (a).

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 the fortieth of Henry III. may, among many others of like nature, be a concurrent evidence of this. For though we have mention made in our histories of many constitutions made in the said parliament at Oxford, and which occasioned

(a) As there are some statutes in print which are not to be found on record, so there are several on record which have never yet been printed. Sir Edw. Coke has enumerated many of this kind. 8. Rep. the Prince's case. But the reader will meet with several in the appendix to my quarto edition

of the Statutes at large, not noticed by Coke or any other person; some of which afford not only gratification to the antiquary, but information to the lawyer and the historian. See also the valuable Index to the Statutes at large, lately published by Mr. Raithby.

much trouble in the kingdom, yet we have no monuments or RECORD concerning that parliament, or what those constitutions

were.

And thus much shall serve touching those old statutes or leges scripta, or acts of parliament, made in the times of those three kings, Henry III. Edward I. and Edward II. Those that follow in the times of Edward III. 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.

CHAP. II.

Concerning the lex non scripta, i. e. the common or municipal law of this kingdom (a).

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 preserved 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 ler 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 scripta, I do not mean as if 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 transferred 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 et decisiones, 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 antient times, and still extant in writing.

But I therefore stile those parts of the law leges non scripta, 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

(a) See the third section to the Introduction of Blackstone's Commenta

ries; and the case of Burdett v. Abbot, 14 East. 1.and 4 Taunt. 401.