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A91198 Irenarches redivivus. Or, A briefe collection of sundry usefull and necessary statutes and petitions in Parliament (not hitherto published in print, but extant onely in the Parliament rolls) concerning the necessity, utility, institution, qualification, jurisdiction, office, commission, oath, and against the causlesse, clandestine dis-commissioning of justices of peace; fit to be publikely known and observed in these reforming times. With some short deductions from them; and a touch of the antiquity and institution of assertors and justices of peace in other forraign kingdomes. Together with a full refutation of Sir Edward Cooks assertion, and the commonly received erronious opinion, of a difference between ordinances and Acts of Parliament in former ages; here cleerly manifested to be then but one and the same in all respects, and in point of the threefold assent. Published for the common good, by William Prynne of Lincolns-Inne, Esq. Prynne, William, 1600-1669.; England and Wales. Parliament. 1648 (1648) Wing P3987; Thomason E452_23; ESTC R203239 36,601 50

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Office of a King the more discreet men of the Realm being called together AS WELL OF THE HIGHER AS OF THE LOWER ESTATE it was provided AGREED AND ORDAINED That whereas the Realm of England of late had been disquieted with manifold troubles and dissentions for reformation whereof STATUTES AND LAWES be most necessary whereby the peace and tranquility of the people must be conserved wherein the King intending to devise convenient remedy hath made these ACTS ORDINANCES AND STATUTES underwritten which he willeth TO BE OBSERVED FOR EVERMORE FIRMLY AND INVIOLABLY OF ALL HIS SUBJECTS as well high as low Then follow twenty nine Statutes continuing yet in force all ushered in with this generall Preamble from which I shall observe First that Acts Ordinances and Statutes were all one and the same and used as Synonumaes in that Age Secondly that they were all equally provided agreed and ordained by the King and the more discreet men of the Realm called together as well of the higher as of the lower estate therefore Ordinances then as well as Acts and Statutes had the threefold assent and the King 's as well as the Lords and Commons concurrence not the assent only of one or two of them Thirdly that those Acts which are termed Statutes and Laws right necessary in the former clause of this Preamble are called Acts Ordinances and Statutes in the later Fourthly that Ordinances then were to be observed for evermore sirmly and inviolably of all Subjects as well high as low and not meer temporary Lawes expiring with the uery Sessions that made them or before and obliging some but not others as most new Ordinances now do Which had Sir Edward Cook observed in his r Comentary on this very Preface and Statute it is probable he would have retracted his mistaken difference between Statutes Acts and Ordinances of Parliament which hath seduced others as well in point of practice as opinion In 50 E. 3. we have this generall Preamble to the printed Acts of Parliament and Statutes then made By assent of the Prelates Dukes Earls Barons and others assembled at the Parliament holden at Westminster at the fifteenth of Saint Hillary the yeer of the reign of our sovereign Lord the King that now is of England the fiftieth the same our soveraign Lord the King much desiring that the Peace of his Land be well kept c. hath for so much made and established certain ORDINANCES c. which ORDINANCES he will that to the honour of God and of the Church and quietnesse of his people they be firmly kept and holden in all points These Statutes being eight in number are onely termed Ordinances in this Prologue though Statutes in the Title and close to Thus endeth the Statutes c. The generall printed Preambles to the severall Acts and Statutes made in the Parliaments of 2 3 5 6 7 9 12 13 14 15 16 17 20 and 21 Rich. 11. run all in this form and words Our Soveraign Lord the King at his Parliament holden at Westminster c. of the assent of the Prelates Dukes Earls Barons and other great men and of the Commons of this Realm summoned to the said Parliament hath ORDAINED and established in the said Parliament for the quietnesse of his people c. the STATUTES AND ORDINANCES following perpetually to endure in his said Realm Or hath done to be made certain ORDINANCES AND STABLISHMENTS for the common profit of the Realm in form following The Preambles to the severall printed Statutes made in the 1 2 4 5 6 and 9 yeers of King Henry the fourth and 1 2 3 4 5 7 and 9 yeers of King Henry the fifth use these expressions At the Parliament holden at Westminster c. Our Soveraign Lord the King by assent of the Prelates Dukes Earls and Barons and at the speciall instance and request of the Commons assembled at this present Parliament hath done to be ORDAINED and established certain STATUTES AND ORDINANCES Or divers ORDINANCES AND STATUTES in form following The printed Preambles to the respective Statutes made in 1 2 3 4 6 8 9 10 11 14 18 20 23 27 28 29 31 33 of King Henry the sixt In 1 3 4 8 12 17 22 of King Edward the fourth In 1 of Richard the third in 1 3 4 11 12 19 of King Henry the seventh and in 1 3 4 5 6 7 14 23 of King Henry the eight run all in the like form of words coupling Ordinances and Statutes alwayes together as one In 24 H. 8. this generall usuall Preamble was altered into this new modle Acts made in the Session of this present Parliament c. and from that Parliament till this present this ancient usuall Preamble hath been discontinued and omitted in our printed Statutes Secondly I shall manifest Statutes Acts and Ordinances of Parliament to be one and the same by sundry printed Acts of Parliament which couple them together and use them promiscuously for one and the same as the forecited generall Preambles do 13 E. 1. the Statute of Merchants The King and his Counsell at his Parliament holden at Acton Burnell hath ordained these establishments which ORDINANCES and establishments the King commandeth they shall be firmly kept and observed throughout his Realm of England and Ireland 37 E. 3. c. 1. That the great Charter and Charter of the Forrest and the STATUTES AND ORDINANCES made in the times past be holden and kept and duly executed according to the form and effect of them 38 E. 3. parl. 1. c. 10. The STATUTES AND ORDINANCES thereupon made shall stand in force 42 E. 3. c. 6. The Statute and ORDINANCE made for Labourers and Artificers c. 1 R. 2. c. 5 7. It is ordained that all STATUTES AND ORDINANCES made before this time c. be holden and firmly kept i● all poynts It is ordained and assented that the Statutes and ORDINANCES made in such case before this time be kept and duly executed 5 R. 2. parl. 1. c. 1. 6 R. 2. parl. 1. c. 1. 7 R. 2. c. 2. 8 R. 2. c. 1. 9 R. 2. c. 1. 13 R. 2. c. 1 8. 14 R. 2. c. 11. 15 R. 2. c. 1. 1 H. 4. c. 1. 2 H. 4. c. 1. 4 H. 4. c. 1 16. 7 H. 4. c. 1. 9 H. 4. c. 1. 11 H. 4. c. 5. and 4 H. 5. c. 1. do all thus couple Ordinances and Statutes together as one It is ordained and accorded c. That the great Charter and the Charter of the Forrest and ALL OTHER GOOD STATUTES AND ORDINANCES before this time made and not yet repealed be firmly observed in all their Articles and put in due execution according to the effect of the same All these Statutes giving the title both of an Ordinance and Statute to Magna Charta the Charter of the Forrest and to all other Statutes formerly made cleerly resolve Statutes and Ordinances to be both one So 6 R. 2. parl. 1. c. 10. Any Statutes Ordinances c. had or made
forth of Commission without any such just causes as these or the like Some learned men conceive a Writ of Restitution lyes upon a motion in the King's Bench to the Chancellour or Commissioners of the great Seal to put him into the Commission of the Peace again in case they refuse to do it voluntarily as well as against a m Major or Corporation disfranchising or putting any Major Alderman Free-man or Common-Councell man out of his Place or Office without a just and legall cause there being the self-same reason and so the self-same Law for both Sixtly that Justices of the Peace may sometimes be put into and sometimes thrust out of Commission by corrupt and sinister means and false suggestions and that such an abuse is worthy the serious consideration and reformation of a Parliament Seventhly that honest and able n Lawyers in the judgement of our Ancestors and ancient Parliaments are the fittest men to be Justices of Peace Eightly that though Justices of Peace ought not to be Mercenary yet the not allowing of them competent o wages to defray their extraordinary expences especially at generall Quarter Sessions hath been a great occasion of inducing them to be slack and negligent in the diligent and zealous execution of Justice and attending at the Sessions Ninthly that the power and jurisdiction of Justices of the Peace since their first institution hath been much enlarged by sundry new Acts of Parliament and Commissions and that the greater authority they have given them the more are they enabled to promote the Republicks peace and happinesse Tenthly that no Justice of Peace ought to act as a Justice before he be actually sworn and that the Justices of the King's Bench and Common-Pleas and Justices of the Peace took anciently one and the self-same Oath Eleventhly that the form and substance of the Commissions of the Peace and Oath of Justices of the Peace were originally ordained by consent in Parliament Twelftly that Bishops in former times were great countenancers of * Extortion which they would not have Justices of Peace to hear and determine and that an Act of Parliament is p good and valid though all the Bishops whiles Members protested against it as null and voyd Lastly that Ordinances and Acts of Parliament were anciently both one in substance and used promiscuously one for another and were made by joynt consent both of the King Lords and Commons in Parliament and therefore Ordinances of Parliament bound the Subjects as really as far and long as Statutes as well after Parliaments ended as during the Sessions wherein they were made Which is evident by the premises by most Prologues to our printed Statutes at large from King Edward the third to Edward the sixt by some hundreds of printed Acts and Statutes by this clause of the Writ for the election of Knights and Burgesses Ad faciendum consentiendum his quae tunc ibi de communi consilio Regni nostri favente Deo contigerit ORDINARI from which word Ordinari this title of Ordinance was derived and by the Rols of Parliament wch make expresse mention of Ordinances of Parliament as all one with Acts and Statutes as 15 E. 3. n. 15 17 E. 3. n. 8. 21 E. 3. n. 8 16. 27 E. 3. n. 1. Rotulus Ordinationum 20 E. 3. n. 12 13. 28 E. 3. n. 10 16 55. 37 E. 3. n. 12 38. 40 E. 3. n. 11. 50 E. 3. n. 10 12 13 75 79 34 110 186. 51 E. 3. n. 11 47 82. 1 R. 2. n. 56. 2 R. 2. n. 46. 2 H. 4. n. 104 106. with sundry others and the Year-books of 39 E. 3. 7. 8 H. 4. 12 13. Indeed I find q Sir Edw. Cook putting this difference between an Act of Parliament and an Ordinances that an Ordinance wanteth the threefold consent which an Act alwayes hath and is ordained by one or two of them which he endeauours to prove by 25 E. 3. n. 16 c. 37 E. 3. n. 39. 1 R. 2. n. 56 c. to which he might have added 27 E. 3. n. 19. But under his favour these Records will neither prove nor warrant his difference for first there was the consent of the King Lords and Commons to the Ordinance concerning Apparell 37 E. 3. n. 38 39. which was commanded to be strictly executed as a Law till the next Parliament So as this Record is point-blank against him in that very thing for which he cites it and his first Record of 25 E. 3. n. 16 c. hath not one sillable in it concerning Ordinances of Parliament or to warrant any difference betwen Acts and Ordinances for which he quotes it which is cleerly refuted by this notably Record of 50 E. 3. n. 47. where The Commons Petition the King That NO STATVTE NOR ORDINANCE may be made or granted at the Petition of the Clergie without assent of the Commons and that the Commons shall not be bound by any of the Clergies constitutions made without their assent for they will not be obliged to their a STATUTES NOR ORDINANCES made against their assent Secondly the King's consent was to all the Presidents he cites and no Ordinance nor President is produced by him of any Ordinance made by the Lords or Commons joyntly or severally without the King's consent thereto Thirdly 27 E. 3. n. 19. puts a difference between Ordinances of Parliament and b Ordinances of State made by the King and his privy Counsell alone without the Lords and Commons assent the one being to be entred in the Parliament Rolls as binding Laws the other not Fourthly all that 1 R. 2. n. 56. proves is but this That the Kings sole answers to the Cōmons Petitions especially without the Lords concurrent assent makes them c no Acts of Parliament but meerly Ordinances of State AS SOME AFFIRMED Whereupon the Commons prayed That their Petitions to which King Edward the third in his Parliament held the 50th yeer of his reign gave this answer Le Roy le Voet might be turned into into Acts. But it no wayes proves that Acts and Ordinances of Parliament are different things and not one and the same since our Parliaments in all Ages have resolved the contrary This I shall undeniably manifest by our printed Statutes at large which every man may peruse because some may deem it a dangerous paradox in this innovating and erring Age That Statutes Acts and Ordinances of Parliament are all one is evident First by the printed Prologues and preambles to most of our Statutes and Acts of Parliament I shall begin with the Preamble to the Statute of Marlbridge made in the two and fiftieth yeer of King Henry the third In the yeer of grace 1267. in the two and fiftieth yeer of the reign of King Henry son of King John in the Vias of Saint Martin for the better estate of this Realm ef England and for the more speedy administration of justice as belongeth to the
Ordinance c. 3. this Ordinance twice c. 4. this Ordinance twice 29 H. 6. c. 2. Endamaged by this Act And that this Ordinance shall begin c. then Contrary to this Statute 31 H. 6. c. 3. this Ordinance 33 H. 6. c. 1. the said Ordinance c. 6. the said Ordinance c. 7. this Ordinance thrice 39 H. 6. c. 1. Acts Statutes and Ordinances twice 1 E. 4. c. 2. this present Ordinance then Provided that this Act after that this Act and Ordinance next And that this Ordinance 3 E. 4. c. 1. By this Ordinance afterwards that this present Act and Ordinance c. 3. this Ordinance twice c. 4. this Ordinance or Statute after this Ordinance nor Act nor none other Ordinance or Act made c. 4. Ordinances and Statutes then Statutes and Ordinances after Contrary to this Ordinance next Provided that this Statute then Nor that this Ordinance Notwithstanding this Ordinance after Within this Statute and in the close that this Ordinance 4 E. 4. c. 1. this Ordinance twice then the Statutes and Ordinances made before this time after that these Statutes and Ordinances and other Statutes and Ordinances made before this time next Any other Act or Ordinance then Not according to this Act c. 2. this Ordinance twice afterwards termed this Act twice 4 E. 4. c. 5. Forasmuch as a certain Declaration and Ordinance in form of a Statute evermore to endure were of late made by the Duke of Burgony c. Which said Declaration and Ordinance twice next the Statute made against it is stiled this Ordinance four times then that this Act nor none other Act Statute nor Ordinance made or to be made twice c. 7. the like In 7 E. 4. c. 1. 2 3 4. 12 E. 4. c. 3 9. 14 E. 4. c. 1 24. 17. E. 4. c. 1 4 6. 22 E. 4. c. 2. 1 R. 2. c. 6 10 13. 1 H. 7. c. 2 5 8 9. 9 H. 7. c. 2 4 8 9 11 21 22. 7 H. 7. c. 2 5. 11 H. 7. c. 1 4 8. 19 H. 7. c. 4 22 23. and in sundry other Statutes of King Henry the eighth Edward the sixth Queen Marys Queen Elizabeth King James which for brevity I forbear to cite we have the like connection of Statutes Acts and Ordinances and interchangeable stiling of Acts and Statutes Ordinances and of Ordinances Acts Statutes Lawes c. 31 E. 3. Parl. 2. c. 3. 34 E. 3. c. 20. 5 R. 2. Parl. 2. c. 11. 2 H. 4. Parl. 2 c. 4. 3 H. 7. c. 3. we read of Ordinances to be made by the Chancellour Treasurer and King's Councell or by the King and Barons of the Exchequer by authority of Parliament to stand as binding Lawes and of Ordinances made by the Goldsmiths and by the Major of London without and against Law and 15 H. 6. c. 6. 23 H. 6. c. 4. 7 E. 4. c. 1. 19 H. 7. c. 7. we read of Ordinances and Lawes made by Fraternities and Corporations none of all which are any Ordinances of Parliament but it is undeniable by these and all the forecited Statutes that an Ordinance of Parliament in the opinion resolution stile judgement of all these a ancient Parliaments before these our dayes was all one with an Act of Parliament Law Statute and that these were used reciprocally one for another for what is called an Ordinance in one clause or line is stiled an Act or Statute or both of them in another and what is called a Law a Statute or Act of Parliament in one place is termed an Ordinance or an Act and Ordinance a Statute and Ordinance in another c. as the premises abundantly manifest therefore there was heretofore no diversity at all between an Act or Ordinance of Parliament but they were both one and the same ever made by the same concurrent assent of King Lords and Commons by the opinion resolution of all these forecited Parliaments Statutes a and of our Judges too Fourthly this is undeniable by the manner of penning and enacting our Statutes and Acts of Parliament in all Ages in these very termes It is ORDAINED Be it ORDAINED It is provided agreed and ORDAINED It is assented and ORDAINED It is or be it ORDAINED It is or be it ORDAINED and established The King with the assent c. hath ordained For which you may consult at leisure the forecited Preambles to most of our Statutes 3 E. 1. c. 48 7 E. 1. the Statute of Mortmain 13 E. 1. the Statute of Acton Burnell 13 E. 1. c. 8 to 16 33 36 38 39 41 46 48 13 E. 1. the Statute of Merchants 18 E. 1. c. 1. 27 E. 1. c. 1 2 3 4. of Fines 27 E. 1. A Statute for persons appealed 21 E. 1. Articuli super Chartas the preamble c. 1 2 3 11 20. 30 E. 1. the new Statute of Quo Warranto 34 E. 1. the Statute of Jointenants 9 E. 2. the Statute of Sheriffs 15 E. 2. the Statute of Carlile 18 E. 2. the Statute of Prizes 1 E. 3. c. 1. 2 E. 3. the preamble c. 2 5 6 8 12. 4 E. 3. c. 2 15. 9 E. 3. c. 4. parl. 2. preamble 10 E. 3. parl. 1. preamble 18 E. 3. parl. 2. c. 6. 20 E. 3. preamble c. 4 5 6. 21 E. 3. c. 1 8. 25 E. 3. parl. 1. preamble c. 1. parl. 3. c. 2. parl. 4. c. 2. parl. 5. preamble c. 2 18. parl. 6 7. 27 E. 3. prologue parl. 2. preamble c. 3 7 8 9 11 14 21 22 24 25 27 28. 28 E. 3. preamble c. 7 8 10 11 13. 31 E. c. 5 6 7 10 15. parl. 2. preamble c. 2 3. parl. 3. the Ordinance for Fish 34 E. 3. the prologue c. 21. 36 E. 3. c. 2 4 to 16. 37 E. 3. preamble c. 1 to 20. 38 E 3. parl. 1. preamble c. 2 6 10 11. parl. 2. c. 2 4 5. 42 E. 3. c. 3 9 11. 43 E. 3. c. 1 2 3 4. 45. E. 3. c. 1 2 3. 50 E. 3. c. 1 7 8. 1 R. 2. preamble c. 4 5 6 7 9 11 12 15. 2 R. 2. stat 1. c. 2 3 5 6 7. parl. 2. c. 3. 3 R. 2. parl. 1. c. 1 2 3. parl. 2. c. 1. parl. 1. c. 6 7 to 16. parl 2. c. 5. 6 R. 2. parl. 1. c. 3 6 to 13. parl. 2. c. 3. 7 R. 2. c. 4 to 17. 8 R. 2. c. 2 3. 10 R. 2. c. 1. 11 R. 2. c. 6 to 12. 12 R. 2. c. 2 3 5 8 9 10 14 16. 13 R. 3 preamble c. 1 4 to 20. 13 R. 2. parl. 2. c. 2 3. 14 R. 2. preamble c. 11. 15 R. 2. preamble c. 3 4 6 8. 12. 16 R. 2. preamble c. 1 3 5 6. 17 R. 2. preamble c. 2 5 9. 20 R. 2. preamble c. 1 5. 21 R. 2. c. 2 to 21. 1 H. 4. c. 5 to 20. 2 H. 4. c. 1 to 25. 4 H. 4. c. 2 to 35.