The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to the Fifth Edition
• Table of Mediaeval Cases
• Table of Modern Cases N.b. the Report References, Which Appeared In This Table In Earlier Editions, Will Be Found Incorporated In the Footnotes In the Text.
• Table of Laws and Statutes
• A Concise History of the Common Law
• Book One: a General Survey of Legal History
• Part 1: The Crown and the State
• Summary
• Chapter 1: The Anglo-saxon Period: Races and Religion
• Chapter 2: The Conquest to Henry II: The Beginnings of Administration
• Chapter 3: The Great Charters: Law Separates From Administration
• Chapter 4: Edward I to Richard II: Statutes and Social Revolution
• Chapter 5: The Fifteenth Century: the Problem of Enforcement
• Chapter 6: The Tudors: Renaissance, Reformation and Reception
• Chapter 7: The Stuarts: Struggle For the Supremacy of Law
• Chapter 8: The Eighteenth Century: Industrial Revolution
• Chapter 9: The Nineteenth Century: Liberalism and Reform
• Part 2: The Courts and the Profession
• Summary
• Chapter 1: The Communal Courts
• Chapter 2: Seignorial Jurisdiction
• Chapter 3: The Crown and Local Courts
• Chapter 4: The Jury
• Chapter 5: The Origins of the Central Courts
• Chapter 6: The Elaboration of the Judicial System: 1307-1509
• Chapter 7: The Tudors and the Common Law Courts
• Chapter 8: The Rise of the Prerogative Courts
• Chapter 9: Prerogative, Equity and Law Under the Stuarts
• Chapter 10: Parliament and the Privy Council
• Chapter 11: The Courts In the Nineteenth Century
• Chapter 12: The Legal Profession
• Chapter 13: The Growth of the Judiciary
• Chapter 14: Professional Literature
• Part 3: Some Factors In Legal History
• Summary
• Chapter 1: The Civil Law of Rome
• Chapter 2: The Canon Law of the Church
• Chapter 3: Custom
• Chapter 4: Legislation
• Chapter 5: The Principle of Precedent
• Book Two: Special Part
• Part 1: Procedure
• Summary
• Chapter 1: The Forms of Action
• Chapter 2: Civil Procedure
• Chapter 3: Pleading
• Part 2: Crime and Tort
• Summary
• Chapter 1: Criminal Procedure
• Chapter 2: The Felonies
• Chapter 3: Misdemeanours, Trespass and Tort
• Chapter 4: Liability, Civil and Criminal
• Chapter 5: Defamation
• Part 3: Real Property
• Summary
• Chapter 1: Feudalism
• Chapter 2: Feudalism In England
• Chapter 3: Inheritance and Alienability
• Chapter 4: Tenures and Incidents
• Chapter 5: The Rise of the Entail
• Chapter 6: The Common Law Estates Down to 1540
• Chapter 7: Uses and the Statute
• Chapter 8: The Later Law of Real Property
• Chapter 9: The Mortgage
• Chapter 10: Conveyances
• Part 4: Contract
• Summary
• Chapter 1: Origins
• Chapter 2: The Fourteenth Century
• Chapter 3: Assumpsit to Slade’s Case
• Chapter 4: Contract After Slade’s Case
• Chapter 5: Law Merchant and Admiralty
• Part 5: Equity
• Summary
• Chapter 1: The Early History of Equity
• Chapter 2: The Formative Period
• Chapter 3: The Work of the Chancellors
• Part 6: Succession
• Summary
• Chapter 1: Inheritance
• Chapter 2: Intestacy
• Chapter 3: Wills

CHAPTER 4

LEGISLATION

At the present day the most powerful instrument for legal change in the hands of the State is legislation. Every modern nation possesses one or more legislatures—in America, over four dozen—which are all extremely active. Immense quantities of statute law are produced every session; a great deal of it, no doubt, is concerned with problems of administration and police, but nevertheless at the present day it can no longer be denied that legislation has a large place in modern legal systems. Few topics in legal history are more interesting than the rise and progress of legislation, the development of special bodies for the purpose of making statute law, and the attitude of the law courts in applying and interpreting the results of their labours.

IS LEGISLATION A ROMAN TRADITION?

Professor Jenks has developed the interesting thesis that legislation was only known to the middle ages through Roman law. According to this view true legislation is the product of Roman ideas; if these ideas are present, then legislation must be regarded as a conscious imitation of Roman practices; if these ideas are absent then we find likewise an absence of true legislation. The early Germanic laws under this theory are not really legislative, but only official memoranda of tribal custom. When, however, the barbarians had settled down within the old Roman Empire, and had become familiar with its political ideas, we begin to find the appearance of express legislation. Indeed, Professor Jenks would go so far as to say that

One of the most striking functions of the Roman Emperor was his power to legislate, and the Carolingians likewise produced a considerable body of legislative acts called “capitularies”. These instruments are partly administrative, being substantially instructions to royal officials, but some of them are beyond doubt truly legislative, and openly profess to introduce new law. It is perfectly clear that they were an important element in the machinery of government throughout the ninth century. With the fall of the Carolingian Empire at the close of that century, the Roman imperial idea suffered an eclipse. The tenth and eleventh centuries are the periods during which central authority completely failed, and was replaced by the extremely decentralised form of government which we call feudalism.

It is a difficult question to decide how far this theory can be applied to the special facts of English history. Dr Jenks insists that the Anglo-Saxon laws are really declarations of custom, and do not become truly legislative until the reign of Egbert, who had visited the court of Charles the Great, and there learnt the imperial idea. However, if this theory is to be applied to English legal history at all, we shall have to start earlier than Egbert. The very first Anglo-Saxon law we possess, two hundred years before his day, contains matter which surely must be legislative—it is largely concerned with making provision for a completely new class of society, namely, the clergy, which previous to this date had not existed. Here, then, was a piece of radical legislation. If we are to find imperial influence in this, it is to the Church rather than to the Empire directly that it must be ascribed, and there is no doubt that the early Christian missionaries to England deliberately adopted the policy of magnifying the kingly office. In fact, whatever is ultimate origin may be, we find a fairly constant stream of legislation from the very beginning of authentic Anglo-Saxon legal history about the year 600 continuously down to the present day. Of course, at some periods this legislation was more important than in others; for quite long stretches of time we find only comparatively trivial matters, but nevertheless, when radical legislation became necessary, there were the power and the machinery to effect it.

LEGISLATION AND FEUDALISM

An alternative theory would regard legislation as an inseparable element in adjudication. Thus, those lords in France who had rights of justice, inevitably developed legislative powers as well.1 The result is worth noting, for it shows what the common law escaped. In France, every feudatory legislated for his own demesne, but as a necessary result, it followed that an overlord, and even the King, could not legislate for the demesnes of his under-tenants for they were under the jurisdiction of their immediate lord. Hence even the Crown could only legislate for the royal domains and not for the country at large. When national legislation was needed, the Crown would hold a solemn court of vassals and endeavour to persuade them to adopt what we may call, on the American pattern, a “uniform law”. If they agreed, the bargain was embodied in an oath by the vassals to legislate along particular lines. If this practice had continued, France would have had in the end a legislature of King and lords somewhat like the English, although attained by a different line of historical development. It so happened that things went otherwise; where most of the barons agreed, those in the majority would take an oath promising to compel the rest by force to legislate in accordance with the wishes of the greater number.2 Only later did the reception of Romanist maxims make the Crown sole legislator, to the exclusion of the feudatories.

EARLY LEGISLATION IN ENGLAND

In England the Crown was stronger, and although there may have been local legislation occasionally,1 and even feudal legislation,2 there was never much doubt that royal statutes were binding throughout the land.3

Needless to say, legislative methods have changed in the course of thirteen hundred years. Under the Anglo-Saxon kings there was no part of the government which could be described as a legislature. It is impossible in the present state of our knowledge to ascertain the relative influence upon legislation of the King, the clergy, the nobles and the King’s more intimate advisers. It may very well be that the Anglo-Saxon assemblies which were frequently associated with legislation were modelled upon ecclesiastical councils—indeed, it is sometimes impossible to distinguish a royal Witan from a Church council.

The Norman Conquest made little change in the general attitude toward legislation, save to enhance the position of the Crown, assisted by a small, intimate and informal Council. Legislation still continued, and William the Conqueror effected several important changes; he abolished the death penalty for certain offences, and penal slavery,4 and made radical changes in the constitution of the hundred court.5 If we find no legislation under his second son and successor William II, we soon find that his third son, Henry I, did something towards resuming the practice. In 1100 he issued a Charter of Liberties,6 and from that time forward the Charter becomes a frequent form of legislation. Large portions of this Charter, no doubt, consist of a withdrawal of certain oppressive claims by the Crown which were of doubtful legality; other parts, however, seem definitely to establish new rules in the place of old ones; various feudal dues, for example, instead of being arbitrary, were reduced to “reasonable” limits, and this was clearly a change in the law; moreover, the Charter concludes with a grant of the law as it was under Edward the Confessor, “together with those revisions which my father [William the Conqueror] made by the advice of his barons”. In short, Henry I maintains the legislative changes which William the Conqueror made in Anglo-Saxon law. He also restored capital punishment in those cases where it had been abolished.1 A recently discovered charter of the reign of Stephen (1135-1154) refers to a “statutum decretum” which established the rule that where there is no son, daughters will inherit by spindles. It is interesting to have proof that this rule is older than the great age of reform under Henry II, but it is even more remarkable to find it expressly attributed to legislation.2

It is when we come to the reign of Henry II that we find the first great outburst of legislation. The forms which it took were various. Instead of the ancient and solemn charter we find more frequently the assize, but in most cases the text is no longer extant and as a rule we have to depend upon chroniclers for our information. Thus we have the Assize of Clarendon in 1166 which was made with the assent of all the prelates and barons of England, and is in form an expression of the King’s will. Several assizes during his reign established new forms of trial by inquisition or jury, and established new forms of action in the law of real property. At the same time what professed to be ancient custom was ascertained and declared by the remarkable procedure of an inquisition consisting of all the “prelates, nobles and ancients of the realm” in the Constitutions of Clarendon (1164).3 Under his sons Richard I and John we have only the Great Charter of 1215, which, although largely declaratory of ancient custom, was still in other respects legislative, in several cases substituting new rules for old. During the next ten years the Charter was three times revised and much of the first Charter was abrogated—and it must be remembered that the repeal of existing law is just as much legislation as the introduction of new law.

During the long reign of Henry III legislation becomes steadily more frequent. A good deal of it is already known, but it is certain that there is still more awaiting discovery on the voluminous rolls in the Public Record Office.4 The charter still continues to be a form for the most solemn type of legislation, but others also occur. Brief and informal instructions to Justices in Eyre were a particularly convenient method for introducing new rules and practices into the law. In 1236 we find the Provisions of Merton, which all the old collections of statutes agree in treating as the earliest English statute.5 There is, of course, no real basis for this tradition; there are other documents upon the public records of an earlier date which can be regarded as legislation with equal justice. The Provisions (or Statute) of Merton long remained important, particularly in matters of commons, for which it was invoked as late as the eighteenth century. In the middle of Henry III’s reign a revolutionary body of barons established a special machinery for the purpose of legislation, and the Provisions of Westminster (1259) were the result; and when finally the revolution came to an end, most of the Provisions of Westminster were re-enacted in a more regular form in the great Statute of Marlborough (1267).1 Indeed the Statute of Marlborough really belongs to the great group of legislative acts which took place in the next reign, for there are only eight years between it and Edward I’s Statute of Westminster I in 1275.

EARLY LEGISLATIVE FORMS

This brings us to the greatest outburst of legislation in England during the middle ages; it was only equalled in extent and importance by that of the first half of the nineteenth century.2 It will therefore be well at this point to examine very briefly the available forms and methods of legislation existing in the reign of Edward I. The forms, to begin with, were extremely varied. We have already mentioned the form of the charter, and it must be remembered that the charter is really a conveyance, and that the various charters of liberty which we have mentioned are drawn in identically the same form as a conveyance of real property. The Great Charter of 1215, for example, announces that “we have granted and by this present charter confirmed for us and our heirs forever” the following liberties, “to have and to hold to all the freemen of the realm and their heirs, of us and our heirs”—which is exactly the form which would be used in a grant of lands. The Provisions of Merton which we have already mentioned similarly use the word “grant”, although here we find that the grant is embodied in a form which becomes more frequent henceforward—the provision. They begin thus:

Here we clearly see a form which is half-way between the charter which technically moved from the King alone, and the later statute which was made in Parliament. The Statute of Marlborough (1267) is in a rather peculiar form, and this may perhaps be attributed to the presence of several distinguished foreigners. It bears the title “Provisions made at Marlborough in the presence of King Henry, and Richard, King of the Romans, and of Edward, eldest son of the said King Henry, and of the Lord Ottobon, then papal legate in England”, and begins with a short preamble.

All these documents were in Latin; the First Statute of Westminster (1275) is somewhat unusual in being in French. It also adopts a French word for legislative acts, établissement, which is reminiscent of the legislative acts of Louis IX bearing the same name. The Statute of Gloucester three years later (1278) is also in French and claims to have been “established and ordained”, the King himself “providing” for the amendment of his realm with the concurrence of the most discreet persons in the Kingdom, both great and small. The Statute of Mortmain (1279), on the other hand, which is in every way as important as the preceding, is simply in the form of an administrative instruction addressed to the Justices of the Bench. The Statutes of Merchants1 (1283 and 1285) are in French and recount that “the King by himself and his Council” had ordained and established the matters following; the Statute of Westminster II (1285), however, is in Latin and sets the form for subsequent statutes, although for a long time deviations are not uncommon. We now find that “the Lord King in his Parliament at Westminster after Easter on the thirteenth year of his reign caused to be recited the many oppressions and defects of the laws, with a view to supplementing the statutes made at Gloucester, and published these statutes following”. Here we get a form which is clearly and consciously legislative. The Statute of Winchester, however, in the same year, professes to be nothing more than the command of the King alone, no Parliament and not even a Council being mentioned.

THE COUNCIL’S SHARE IN LEGISLATION

So far it is clear that these legislative acts ran in the name of the King and very probably were initiated by him or by his most intimate councillors; there is as yet no necessary connection between legislation and Parliament. In the reign of Edward I we find some extremely important legislation which seems to have emanated from the King in Council alone, or at most from a Council in Parliament, for we find no mention of the Commons; so, too, with the Statute of Westminster II and many others. On the other hand, some of his statutes profess to have been made “by the advice of the barons, earls, magnates, great men and other nobles, and of the commons of the realm in Parliament” (Statute of Carlisle, 1307).2 There is, however, no legal difference whatever in the effect or authority of statutes produced in these different ways. As far as we can see, a statute in the reign of Edward I simply means something established by royal authority; whether it is established by the King in Council, or in a Parliament of nobles, or in a Parliament of nobles and commons as well, is completely immaterial. It is equally immaterial what form the statute takes, whether it be a charter, or a statute enrolled and proclaimed, or merely an administrative expression of the royal will notified to the judicial authorities by means of a letter close (which at this period was a species of interdepartmental correspondence). In short, while we are in the reign of Edward I we feel the typical mediaeval atmosphere, which was, above all, intensely practical. The great concern of the government was to govern, and if in the course of its duties legislation became necessary, then it was effected simply and quickly without any complications or formalities. Even after parliamentary legislation had begun to appear, we still find that the Council exercised a preponderant influence and that among the councillors were frequently to be found the judges, for it is only natural in so practical an age that the Council should call upon the judges to draft legislation, and such in fact was the case.

These variations, both in form and method—

As Professor Winfield remarks:

STATUTES AND ORDINANCES

At various times we find a distinction drawn between statutes and ordinances. Down to the middle of the fourteenth century the words are used interchangeably, and it is only in the latter part of the century that some sort of distinction begins to appear. It seems to take the line of discriminating between those acts which received the consent of the King, the Lords and the Commons, and those in which one of these consents was absent.1 As we have seen, in the fourteenth century legislation was none the worse for being extra-parliamentary; as a late example it may be observed that the Ordinance of Labourers (1349) was constantly applied in every respect as if it had been a parliamentary statute, although it had no parliamentary authority until it was included in a general confirmation of all labour legislation nearly thirty years later.2 Indeed it may be that this tardy grant of parliamentary sanction is an early case of doubts first appearing as to the validity of non-parliamentary legislation. A much later example of the confirmation by Parliament of legislation by Crown alone, has already been mentioned in connection with the court of augmentations.3 For the rest, ordinances have played a very small part in English public law, if we are to except the thirteenth- and early fourteenth-century examples, which, moreover, as we have seen, were not distinguished from statutes by contemporaries.

PARLIAMENTARY LEGISLATION

As we pass through the fourteenth century, parliamentary legislation becomes more and more general. Not only does the King use Parliaments for the purpose of giving authority to his own decrees, the Parliament merely ratifying decisions which have really been reached by the Council, but we also find that Parliament will request the Crown to legislate upon some particular matter. At first we find general complaints put into the form of a petition, either by particular members, or outsiders and local bodies. Next, come petitions by the whole Commons. Such petitions will state grievances and pray for a remedy. When the Parliament is over, the Council will consider these requests at its leisure, and if it thinks legislation is necessary it will prepare it according to its discretion and publish it as a statute with parliamentary authority. As the Commons grow more powerful politically they express increasing dissatisfaction at the working of this method. Sometimes the government failed to act at all upon a petition; at other times we find the Commons complaining that although they had petitioned for one thing, the Council had legislated along different lines, of which they did not approve. Henry V promised that “from henceforth nothing be enacted to the petitions of his Commons that be contrary to their asking whereby they should be bound without their assent”, but even after a statute had been passed, the Crown sometimes assumed wide powers of altering or suspending it.4

In the fifteenth century, however, we find the beginnings of a new system which had in fact first been used for government business.1 This consisted of presenting a bill which contained the exact form of words which it was proposed to enact. Even at this late date, however, there were occasional doubts whether the consent of the Commons was always necessary. When we get to this stage we can rightly regard Parliament as being a legislature. In the fifteenth century it also becomes the regular practice for statutes to be written in English, instead of in French as in the fourteenth century, or Latin in the thirteenth.

TUDOR LEGISLATION

As we enter the Tudor period we begin to see clear traces of modern parliamentary procedure, the system of three readings and so on. In mere bulk, the change is striking, for the thirty-eight years of Henry VIII’s reign (although half of them passed without a parliamentary session) produced a volume of statutes equal to the combined output of the previous two and a half centuries. In part, at least, this may be attributed to the verbosity of Henry himself, or his draftsmen. Another cause may be found in the newer view of what a statute should be; the brief indications in an easy—almost conversational—style which sufficed under Edward I had to be accompanied by a wide discretion in their interpretation by the courts. The newer view restricted the courts much more narrowly to the text of the statute, and so that text had to be more artificially drawn, and if all the possible repercussions of the new statute were to be foreseen and provided for, the text necessarily became long, full of enumerations, exceptions, provisions, saving clauses and the like. The Tudor period, moreover, is the great age of the preamble. We may well see in this an involuntary tribute to the growing importance of public opinion. Statutes were not only proclaimed, as in the middle ages, but were now printed and published through the press. Henry VIII was quick to see the advantage of prefixing to his most drastic acts a vigorous polemical defence of their policy, which has been aptly compared to “a leading article in a government newspaper” as the nearest modern equivalent.

Parliament also began to act in a more independent spirit. While it is doubtless true that Henry contrived to secure parliaments which were in general sympathy with his policies, nevertheless even they would balk at some of his proposals. Several government bills on the vital subject of uses, for example, were thrown out before the famous statute was finally passed.

If much of the more notorious legislation of the Tudors was purely political and social, there was still a great deal which made considerable changes (and generally improvements) in the law. Uses, wills, charities, conveyancing, bankruptcy, commercial law and criminal law are all conspicuous in Tudor legislation.

Not only did legislation become more detailed, but it also flowed at a more rapid pace. Parliament having once taken up a subject was apt to return to it again and again, piling act upon act, sometimes with confusing results. From time to time it therefore became necessary to clarify a complicated mass of related statutes, and as early as 1563 we get an example of the typically modern device, the consolidating act, which “digested and reduced into one sole law and statute” the substance of many statutes of artificers which it repealed.1 Another modern feature which appears under Elizabeth is the grant of statutory powers to all and sundry for the performance of things which so far had to be done by special powers obtained ad hoc from the Crown. Thus in 1597 all persons were allowed to erect and even to incorporate various charitable foundations by the simple machinery of a deed enrolled in chancery.2 Nearly a century before this, we find an early example of delegated legislation3 under Henry VII; the practice received more conspicuous employment in the next reign, when the statute of proclamations4 and the act for the succession were striking examples.5

It is in this period, moreover, that we find the regulation of commercial and professional life transferred from the old gild and ecclesiastical authorities to the Crown. The result is a flood of “social” legislation far in excess of any to be found in the middle ages, and this necessitated a theory to support it. Coke, with his unfailing patter of Latin apophthegms, enshrined the new view of the field of legislation in words with the required antique sound. “The king”, said he,6 “is a mixed person, the physician of the realm, the father of the country, the husband of the kingdom to which he is wedded with a ring at his coronation”. In speaking of Henry VIII’s foundation of the Royal College of Physicians, which replaced the Church in supervising the medical profession, Walmesley, J., linked up the new paternalism with the old feudal wardship:7

THE CITATION OF STATUTES

One of the methods of citation of statutes was exactly the same as that used by the civil and canon lawyers, and consisted of calling each statute by the first words. In a few cases this practice has survived; we still speak of the Statutes De Donis and Quia Emptores, and in the fourteenth century there were many more. As parliaments became more frequent, statutes were cited according to the place where the Parliament sat; we therefore have the Statutes of Gloucester, York, Northampton, etc., and numerous Statutes of Westminster. With the growth of statute law it became necessary to have a more precise system, and by the close of the fourteenth century statutes are cited by date (that is, by the regnal year). The Statute of Westminster II, therefore, may also be cited as Statute 13 Edward I. Gradually, although not always, the legislation of one Parliament was published all together in one document, which will therefore contain a number of unrelated matters. For convenience such a long document is divided into chapters; the numbering of the chapters is common in fourteenth-century manuscripts although we do not find it on the rolls; and so citations will take the form of the regnal year followed by the number of the chapter. Occasionally we find more than one of these long statutes in a single year, and the modern printers have made a practice of numbering these as separate statutes. Unfortunately there was no uniformity among the many different editions of the older statutes, and indeed no official reprints at all, until the publication of the Statutes of the Realm between 1810 and 1825 in nine immense folio volumes. At the present day, citations of statutes earlier than 1713 (at which date the Statutes of the Realm end) are usually made according to the regnal years and numberings in this edition, which moreover has received a certain amount of parliamentary sanction.1 Although the citation of a statute consists of a date, that date may need adjustment if the historical date of the statute is to be ascertained,2 and the Statutes of the Realm lays traps for the unwary by retaining the old practice of beginning the year of grace on 25 March instead of 1 January. In the eighteenth century the citation of statutes became more complicated, for Parliaments lasted longer and their sessions overlapped the regnal years. If the whole of a session falls within one year there is no difficulty, but if it overlaps, all of its acts are described as of both years.

THE AUTHENTICITY OF STATUTES

So much then for the forms and methods of legislation. We must now consider the authority and the interpretation of these documents. As for their authority we find very little question. Indeed, there seems a curious tendency to extend statutory authority to a variety of documents, some of them of very questionable origin. An important case as recorded upon the Parliament rolls in the course of time will acquire the reputation and name of the Statute of Waste.2 A few useful extracts from Bracton will also be referred to during the middle ages as statutes.3 The term “statute”, therefore, is a decidedly inclusive one, and it is not often that we find a reputed statute questioned. Occasionally we find suspicions expressed because a particular document has not been sealed—the meaning of which is far from clear.4 Sometimes a very cautious litigant who is relying upon a recent statute will go to the trouble of having an official copy authenticated under the Great Seal, and of bringing it into court. On such occasions it would seem that the court took the precaution of enrolling the statute in question as part of the pleadings. Indeed, it is extremely curious that there was more difficulty in pleading a very recent statute than an old one. The courts seem to have felt a certain reluctance when faced with the problem of applying a statute for the first time. Moreover, it would have been quite difficult in the fourteenth century to decide whether a particular text was a statute, and, if so, what exactly its words were. From the Year Books it would seem that the bench did not always have a copy of the statutes at hand. On those occasions when the bench did examine a copy of the statutes, the Year Books are careful to report the precise words as they were read; more than that, it is not unusual to find statutes even then seriously misquoted. In at least one case everybody concerned seems to have been unaware that a certain statute had been repealed. It is therefore not surprising that there have grown up certain legends as to the operation and effect of particular statutes which have no historical basis.5

THE COMMENCEMENT OF STATUTES

Late in the reign of Edward III there is a case1 which shows that several characteristics of statutes, as they remained for centuries, were already being settled. The Crown was prosecuting the Bishop of Chichester under one of the statutes of premunire, and the defence raised some interesting points. The statute was very recent, and it was objected that it had not been proclaimed in the counties; to this Thorpe, C.J., replied: “although proclamation was not made in the county, everyone is now bound to know what is done in Parliament, for as soon as Parliament has concluded a matter, the law holds that every person has knowledge of it, for the Parliament represents the body of all the realm, and so proclamation is unnecessary for the statute has already become effective”. A further objection seems to suggest that the Commons had not assented to the statute in question; to this Thorpe, C.J., replied, rather mysteriously, “when all the lords are assembled they can make an ordinance, and it shall be held for a statute”. Whatever the last cryptic sentence may mean (and it may relate to peculiar circumstances attaching to that statute),2 it is clear that statutes were already regarded as operative as soon as made, and not from the date of publication. Later ages added a refinement by regarding a statute as operative from the first day of the session in which it was made—which in effect might antedate it by several weeks or even months.3 In doing this they were probably imitating the analogous rules of the law courts, whose judgments dated from the first day of term. The Statute of Frauds4 abolished the rule as to judgments, but the rule as to statutes was not reformed until 1793 when it was enacted that they should take effect from the date of the royal assent unless otherwise provided.5

THE PROBLEM OF INTERPRETATION

Until late in the middle ages, lawyers tried to avoid facing the problem of interpretation. Indeed, even the word connoted in their minds fraud or evasion. Nor was the division of labour into law-making and law-interpreting generally accepted in fourteenth-century thought; the canonists, for example, had a maxim that interpretation properly belonged to the power that ordained, which alone could authoritatively interpret its own acts.1 The civilians were of the same mind: ejus est interpretari cujus est condere.2 There was a possibility that the common law might accept this principle, which the best legal opinion seemed to approve. Early in the reign of Henry III dispute arose on the interpretation of the great charter between certain sheriffs and the inhabitants of their shires; the King therefore called the disputants before him to clear the matter up.3 The same procedure was followed eight years later, when the greater part of the bishops, earls and barons, by their common counsel, placed an interpretation upon c. 35 of the great charter, which the King then published by letters close.4 Nor was this merely a royalist theory, for a quarter of a century later, when Henry III was at the mercy of his barons, they wrote in his name a warning to the Bishop of Durham in these terms—

Edward I frequently put the principle into practice; the King and his justices published an extra-judicial “exposition” of the Statute of Gloucester6 in 1278, and in 1281 the King in Council made a “correction” in the same statute.7

The common law courts themselves acknowledged the principle of appealing to the legislator when faced with difficulties of interpretation. In 1303 Hengham, C. J., cut short a discussion of the statutory procedure of elegit by saying: “this statute was put before the king and his council, who accorded that when the debtor came with the debt ready, his lands should be restored to him; so will you take your money?”8 Even as late as 1366 Thorpe, C.J., recalled that there had been a discussion before him on the interpretation of a statute, “and Sir Hugh Green, C.J., K.B., and I went together to the council where there were a good two dozen bishops and earls, and asked those who made the statute what it meant”. The archbishop told them what the statute meant, after remarking (with some justification) that the judges’ question was rather a silly one.9

Practice, however, was setting the other way, and after this date interpretation was relinquished to the courts. The inherent reasonableness of the principle that the legislator was the best interpreter was still, however, admitted by those who gave thought to the problem. For example, a tract attributed to Lord Ellesmere1 maintains that it would be more reasonable for statutes to be interpreted by Parliament which made them than by the courts. More recently, Lord Nottingham in an early case on the Statute of Frauds reports himself thus:2

Such would appear to be the attitude of some continental systems at the present day,3 but the common law courts have completely reversed their policy since the days of Nottingham. No greater contrast to his words just quoted could be imagined than this statement of Lord Halsbury:4

With the growth of international legislation this divergence of view has already created difficulty.5

THE JUDICIAL INTERPRETATION OF STATUTES

If we had completely adopted the principle that the lawgiver was the only competent interpreter, we should have had to erect a chamber or council specially devoted to the work as legislation grew in bulk and complexity. This in fact is the solution which the canonists reached in the end,6 and the tendency which we have already noticed for the enforcement of statute law to be entrusted to special bodies7 is perhaps a symptom of the same trend in the common law.

The principal reason, however, for the triumph of the present system in the common law may be sought in the history of Parliament. While legislation was the work of a very small group of judges and councillors in close contact with the King, recourse to the same small group was easy when an interpretation was desired. The rise of Parliament and its increasing participation in the task of law-making created a very different situation. We have already noted the proposition that things settled by Parliament cannot be altered save by Parliament. Now Parliament served well as a legislature and as a political assembly, but its sessions were too irregular and its activities too much engaged in other directions to allow it to become a permanent organ for the interpretation of statutes. Declaratory acts represent the best that Parliament could be expected to do under such circumstances. In the meantime, there was the important fact that the legislature and the judiciary did actually have a common membership in the thirteenth century, and so nothing was more natural than to allow the judges considerable latitude in the reign of Edward I and even of his son, for they were intimately connected with the group which in fact drew up the statutes.

EARLY FREEDOM OF INTERPRETATION

It must also be remembered that the earlier mediaeval statute had very little in common with modern legislation. It was possible to handle these enactments with an easy unconcern as to their authenticity and precise content, and obviously there was no trace of the modern notion that every letter of the statute may be significant. Nor did the judges have difficulty in deciding what the real intention of an act was. The famous Chief Justice Hengham, for example, settled a difficult question in these words, “We agreed in Parliament that the wife if not named in the writ should not be received”,1 and when counsel suggested an interpretation of another statute, Hengham again had an authoritative answer. “Do not gloss the statute,” he said, “for we know better than you; we made it.”2 In short, the court was well aware of the intention of a statute because the judges had had the biggest share in making it, and consequently there was little difficulty; the law-maker was simply explaining his own policies. A little later we find the next stage. The great Hengham had gone, but his successors remembered his words. When counsel suggested a particular construction of a statute, Sharshulle, J., replied that when he was at the bar he had used the same argument, and Herle, J., had informed him that Hengham, who had made the statute, read it another way.3 Again, in a remarkable case involving the Statute De Donis, Chief Justice Bereford used these words:

In short there is a tradition among the judges as to the intention of the principal statutes.1 Finally, as we approach the middle of the fourteenth century, the judges have separated from the Council to such an extent that they treat legislation as the product of an alien body, of which they know nothing save from the words of the statute itself, and from that wording alone can they infer its intention—and with the rise of this idea we reach the modern point of view.

CHARACTERISTICS OF FREE INTERPRETATION

This impression is confirmed when we examine the way in which statutes were interpreted in the fourteenth century. Sometimes their wording is strictly applied; sometimes it is stretched very considerably; sometimes the court finds it necessary to restrict the operation of a statute which was too widely drawn; on other occasions the court simply refuses to obey the statute at all. But in this connection two points must be emphasised.

THE LIMITATION OF JUDICIAL DISCRETION

In the middle of the fourteenth century this free and easy attitude begins to disappear. We are beginning to find statements in the Year Books that statutes ought to be interpreted strictly, while in other matters, too, the bench is less confident in using its ancient powers of discretion. By 1340 or thereabout the Court of Common Pleas had developed an elaborate procedure which required considerable technical skill to work. More than that, the intimacy between the Council and the judges which had been such a feature of Edward I’s reign had almost ceased. As a result the judges no longer felt themselves in the position of councillors whose nearness to the King enabled them to exercise the wise royal discretion which, as we have seen, was the privilege of the King’s closest advisers. Instead, the Court of Common Pleas regards itself as a government department whose function is to carry out its duties along prescribed lines. At about this time, therefore, we find such statements as that of Hilary, J., that “we will not and cannot change ancient usages”,1 and “statutes are to be interpreted strictly”,2 while at the same date we see the earliest distinctions drawn between strict law and equity.3 Then, too, it is highly significant that the Chancery begins to appear, in the early years of Richard II, as a court exercising the Council’s discretion.4 Towards the middle of the fourteenth century, therefore, the judges begin to interpret statutes strictly. No longer are they to be regarded as merely suggestions of policy within whose broad limits the court can exercise a wide discretion. Instead they are regarded as texts5 which are to be applied exactly as they stand, and so we find the beginnings of a radical separation into two functions: the first legislates and establishes a text, and the second adjudicates and interprets the text. This separation was momentous for English history, for more than anything else it promoted the isolation of the law courts and the judges, enabling them to develop an independent position and to act as checks upon the executive and as critics of the legislature. This became all the more significant since the legislature inevitably became a political body controlling the executive; the courts now stood outside of both. The extent to which the courts were conscious of this special position is clear from their endeavours to prevent any tribunal except the superior common law courts from exercising the function of interpreting statutes. Ecclesiastical courts were to be resolutely barred, and the admiralty was attacked; even Chancery was expected to send to a common law court when the high mystery of interpretation had to be performed.6

A TECHNIQUE OF INTERPRETATION

As we pass through the fifteenth century to the sixteenth and the age of Coke, we find the courts applying themselves with great diligence to the task of interpreting statutes, which to this day is one of the most difficult functions which a judge has to perform. Shorn of their powers of openly exercising discretion, the common law judges took refuge in logic. Attempts were made to devise rules whereby the grammatical structure of a sentence, combined with a general consideration of the nature of the act, could be used as a guide to the interpretation of the text in question. Some statutes confirmed or amended previous law; others removed abuses; some commanded things to be done, while others prohibited certain actions; some statutes conferred benefits and others were penal. Combined with these general considerations a statute might be drawn in affirmative or negative terms, and out of all this the courts elaborated a system of great complexity.1

THE EQUITY OF THE STATUTE

As a result of this development, there was a multiplicity of rules available for the interpretation of any particular statute. So great was their variety, and so diverse were the rules, that almost any conclusion might be reached, simply by selecting the appropriate rule. The real problem therefore receded farther back than ever, and the power of the courts to construe or misconstrue legislation was unimpaired, and indeed increased.

This became obvious by the reign of Elizabeth, and many lawyers, notably Plowden, gloried in the liberty which the courts enjoyed in playing fast and loose with statutes. “The judges who were our predecessors have sometimes expounded the words quite contrary to the text, and sometimes have taken things by equity contrary to the text in order to make them agree with reason and equity”,2 said Bromley, C.J., in 1554. Rules of construction which produced such striking results were clearly inadequate as an explanation of this situation, and so, when a general theoretical justification was needed, lawyers turned to the convenient word “equity”.

The “equity” of the chancellor and the “equity” of a statute have nothing in common; their nature is different, and their origins are different. The equity of the chancellor is a native growth (although, of course, some of its doctrines may have felt foreign influences); the equity of the statute, however, seems to be a continental notion imported to explain the situation which had grown up in England. Blackstone was looking in the right quarter when he sought a definition of equity in Grotius’ remark that equity was “the correction of that wherein the law (by reason of its universality) is deficient”.3 When the courts therefore spoke of the equity of a statute they meant only that adjustment of detail which is necessary when applying a general rule to a specific case. Obviously it might sometimes amount to subordinate legislation by the courts, and such work had to be done by the courts if it was not done by the legislature or its deputy.

INADMISSIBILITY OF EXTERNAL EVIDENCE

At some time in the middle of the eighteenth century our courts came to the curious conclusion that a statute can only be construed in the light of strictly professional learning. It was permissible to consider what the law was before the statute, what “mischief” the statute was meant to remedy, and what the statute actually said; it was not permissible to refer to the debates in Parliament for light on what the statute meant, nor to the changes which were made in the original bill before it became an act.

The exclusion of parliamentary debates could have been justified, one would have thought, on the ground that there was no official reporting of those debates, and that the reports which did circulate were highly imaginative (as Dr Johnson, himself a reporter, confessed) and actually unlawful, for the House of Commons regarded them as breaches of privilege;1 but this reason for the rule does not seem to have been put forward. The more formal history of amendments, changes in title, and the like, could be traced in the journals of the House, however, and those journals were accessible; but they too were inadmissible.2 The rule appears first, it seems, in the long judgment of Willes, J., on the interpretation of the Copyright Act of 1709:

No authority is cited for this proposition, which rests solely on the reason which follows. As a statement of fact it seems questionable, for there was a great deal of discussion and agitation accompanying the act, and the Houses must have been aware of the views expressed. More interesting is the tacit denial that there is such a thing as the “intention of the legislature” on the ground that the King, Lords and Commons are independent of one another and so cannot have an intention. The rule was not strengthened by the fact that its author immediately abandoned it, and discussed at some length the change in the bill’s title during its passage in the House of Commons.4

The most remarkable extension of the principle was that made by Chief Baron Pollock (again giving no reason) when he refused to admit the report of the real property commissioners as elucidating the legislation based upon it.1 Here we have another aspect of the common law rules of statutory interpretation which is at variance with the practice of other systems, which regard travaux préparatoires as particularly valuable aids to interpretation. The principle has made interpretation a difficult and uncertain operation in our own system, and “may have very unfortunate repercussions” in the growing field of international co-operation in legal matters.2 The interpretation of the codes in India raises the question in a very acute form and has led an eminent authority on that system to urge that—

and to make the attractive speculation that the English rule has some connection with the Whigs’ mysticism of Parliament.

STATUTES AND FUNDAMENTAL LAW

One more question remains for consideration. From time to time the theory has been propounded that a statute might actually be invalid because it contravened some fundamental principle or law. It has indeed been suggested that this was, in fact, mediaeval theory and practice.4 This position, however, becomes difficult to maintain after a detailed examination of the authorities. Of course, there is no doubt that the mediaeval mind would never think of postulating the absolute sovereignty of Parliament or State. The whole scheme of things in the middle ages was based upon the assumption that municipal law derived its force from divine law; but we do not find in mediaeval English cases any decisions which clearly hold that a statute is void because it contravenes some fundamental principle. On the contrary, the Year Books constantly assert in express terms that statutes were making new law and abrogating old law, and their consciousness of the fact of radical legislation is therefore apparent. A similar claim has been made in favour of Magna Carta, but here again it is clear that Magna Carta itself has been amended and in part repealed, even during the middle ages. A practical limitation upon the legislature was of course the competing jurisdiction of the Church, and it was universally admitted during the middle ages that an act of Parliament could not operate within the sphere of the Church—a restriction in every way analogous to the inability of Parliament to legislate for a foreign country, for Church and State were two independent sovereign powers, each supreme within its own sphere, in just the same way as two nations exercise sovereignty within their respective frontiers.

It is in the early seventeenth century that the idea of a fundamental law begins to appear for the first time as a practical principle in the law courts under the influence of Coke. As we have already remarked,1 he hoped to subject both Crown and Parliament to a paramount common law, and for a time we find some decisions2 which accept this theory. In the eighteenth century, however, the principle was slowly abandoned—not so much because the mediaeval authority for it adduced by Coke is unconvincing as because subsequent events had proved that there were no legal limitations upon the powers of Parliament. The establishment of the Reformation settlement and of new forms of religion, changes in the succession to the Crown, and extremely radical legislation (much of it in the reign of Henry VIII), finally convinced lawyers, in their own picturesque phrase, that Parliament could do anything except make a man a woman.3 The last great judge to accept the principle whole-heartedly was Holt, who regarded it as part of a judge’s daily work to “construe and expound acts of Parliament, and adjudge them to be void”.4 If the theory disappeared in England5 it bore fruit elsewhere, and the close attention with which Coke’s writings were read in America had something to do with preparing the way for the system of judicial review as it exists in that country.

THE NON-OBSERVANCE OF STATUTES

On the continent there was some speculation during the middle ages as to whether a law could become inoperative through long-continued desuetude. In England, however, the idea of prescription and the acquisition or loss of rights merely by the lapse of a particular length of time found little favour. Moreover, statutes were definitely pronouncements of the Crown, and the royal prerogative included the maxim that “time does not run against the King”. There was consequently no room for any theory that statutes might become obsolete.1

We did have a theory, however, which was much more curious, and which permitted a great deal of discretion to the judiciary in the enforcement of statutes. According to this view, a court was not bound to apply a statute if it could be shown that the statute had never been enforced. If this is strictly construed as a legal principle, it is difficult to escape the conclusion that the judiciary had a veto upon acts of Parliament. It seems likely that by this means the courts regained with one hand the power they lost with the other in abandoning the rule in Bonham’s Case. Nor must it be supposed that we are dealing with an isolated vagary of judicial speculation. On the contrary, there is a long line of examples of its use extending over a period of more than five centuries, although there was certainly no attempt made to explore the theoretical implications or the principle.

As early as 1287 we find the first example, in a case in the county court of Chester.2 The demandant in this case brought a writ founded on the Statute of Gloucester (1278), but the tenant pleaded that no such writ had ever before issued from the Chancery. The demandant then put himself on the statute: “the lord King in his statutes issued at Gloucester established that an action by a writ of entry was available for the heir of the woman in the case proposed”. To this the tenant rejoined “that although the statute is as the tenant has alleged, nevertheless no such writ of entry has so far issued out of the chancery, and so he prays judgment”. The court agreed, and quashed the writ.

In 1345 when a defendant pleaded a statute, Thorpe, J., observed that “some people hold that statute to be of no value as against the King, for it was never put into operation”. Scot, C.J., agreed and told the defendant to say something else.3 The point was raised again in 1409 in a case on the Statute of Provisors of 1351, but seems not to have been argued.4 It is almost certainly the existence of this rule which prompted litigants who wished to rely on a very recent statute to get a special writ from the Crown directed to the judges, which ordered them to apply the statute, the text of which was annexed. Such a writ, and the text of the statute, would be embodied in the pleadings of the case on the roll.1 The notion reappears late in the fifteenth century in the honoured pages of Littleton and concerns no less a statute than Magna Carta itself, and the Statute of Merton, c. 6, which re-enacted it. “It seems to some,” says Littleton, “that no action can be brought upon this statute, for it has never been seen or heard that any action has been brought.” Coke had obvious difficulty in glossing this passage:

If Littleton’s words seem to imply that he personally doubts the rule, Coke’s gloss clearly shows how difficult it was to defend it. In 1712 an act which had been passed only seven years before was set aside on the grounds of continuous non-user.3 Nearly a century after Coke the principle was swept aside by Lord Holt, who declared in general terms that if statute gives a right, the common law will give a remedy.4 Another liberal judge, Pratt, C.J., when the old principle was urged upon him,5 declared that he hoped he would never hear such an objection again, after Ashby v. White.

That ought to have been the end of the matter, but even emphatic declarations by two great chief justices were unavailing, and we still find statutes being nullified on the ground that they had never been enforced. A statute of 1702 had been flatly disobeyed ever since it was enacted, and so Kenyon, C.J., dared not upset the settled law in 1795.6 A few years earlier a statute of James I met the same fate at his hands;7 this time Buller and Grose, JJ., concurred with him in explaining that this did not mean that a statute could be repealed by non-user! It is clear that the courts adopted this principle to frustrate legislation which they considered undesirable. It is particularly interesting to see Park, J., in another case taking refuge in the rule in order to nullify a statute which enabled a party to be examined on oath. This was “repugnant to common right” within the rule in Bonham’s Case, which he quoted at length. Coke’s doctrine of fundamental common law was too heroic by now (the date was 1823), so he based his decision on a line of cases which had ignored the act.8

INTERPRETATION, PAST AND PRESENT

These cases must not be regarded as curiosities, and in studying them we have not left the highway of history to explore a mere by-path. Legislation is such an important factor in legal development that its rise and progress and the development of the attitude of the courts towards it, must receive careful attention in any discussion of the common law system. There is, moreover, the additional interest provided by the fact that the common law has developed a different theory and a different technique of handling statutes from that prevailing in other systems. A glance at the long lines of statutes extending through seven centuries and numerous volumes is apt to obscure the differences between the present attitude and that of other periods. The interpretation of statutes has passed through several stages, and it is not without interest to compare its history with that of the interpretation of deeds. Written deeds, like written statutes, were not essential in our earlier history. The King could legislate, and the subject could enfeoff, without parchment, ink or wax. Even when a written text was drawn up, it was merely evidence, and by no means the best evidence, of what had been done. We therefore find that the wording of a statute is not at first taken very seriously. Copies used by the profession were only approximately accurate; even government departments and the courts were no better off; the recording of statutes in the national archives was by no means regular.

Interpretation in this early period could not be precise. There was no sacrosanct text, but only a traditional one whose meaning was restricted to a general policy, details being left to be filled in as required by the legislator, or by the council, or the courts. So too with deeds. It was possible to say that the actual transaction took place at the livery of seisin—an oral proceeding—and if the deed contradicted the words used in the livery, then the livery prevailed.

As government and law develop, they become mechanised. Print and paper form a vast machine for the government of the nation. In the search for precision, oral livery of seisin, and oral or informal legislation, have to be abandoned, and deeds and statutes are treated with more respect. It is important to realise how long this process took in the case of statutes. The courts professed at times to have a great respect for the letter of the statutes and invented a maze of rules for their construction on grammatical lines. But they did not surrender their will absolutely to the legislator. There were limits, they asserted, sometimes defiantly, but later in veiled language. Until little more than a hundred years ago the courts were able, overtly or covertly, to exercise considerable discretion in dealing with statutes, and it is only in the last two or three generations that they have accepted the theory of their absolute submission to the word and the letter of the legislature. It may be doubted, however, whether the acceptance of the principle of literal interpretation brings us nearer to the enforcement of the intention of the legislature. The courts are excluded from using evidence which any historian or scientific investigator would regard as highly valuable, especially in the modern age when statutes introduce changes of social policy, and not merely of technical procedure.1

[1]Jenks, Law and Politics in the Middle Ages (2nd edn.), 17.

[2]Jenks, op. cit., 21. Fritz Kern, Kingship and Law (1914; tr. S. B. Chrimes, 1939) contains many brilliant, but hazardous, generalisations which it is impossible to deal with here. For a reading of English history in the light of Kern’s theories, see Geoffrey Barraclough, Legislation in Medieval England, Law Quarterly Review, lvi. 75. Somewhat similar views had already been expressed by C. H. McIlwain, High Court of Parliament (1910).

[1]Declareuil, Histoire générale du droit français (1925), 213-214. The very interesting theory of Goebel, Felony and Misdemeanour,i. 229 n. 80, is attractive.

[2]Declareuil, 795-796.

[1]Examples of county legislation come from Kent in 1259 (E. F. Jacobs, Baronial Reform, 351-352) and Chester in 1260 (R. Stewart-Brown, Chester County Court Rolls, 5-6); borough bye-laws are very common; we hear of manorial statutes in 1234 (Bracton’s Note Book, no. 842), and there is much material in the thirteenth century (W. O. Ault, Some Early Village Bye-laws, English Historical Review, xlv. 208; G. C. Homans, English Villagers); the text of a late example in 1756 has survived (Vinogradoff, Collected Papers, i. 138-148, 286-296).

[2]An example from St Albans is mentioned, p. 186 above.

[3]The city of London sometimes claimed that general statutes would not derogate from the city’s franchise. Cf. Rot. Parl. Inediti, 128 (5); Sayles, King’s Bench,iii. p. xxxix; Y.B. 19 Henry VI, ff. 64-65 (Pasch. no. 1), per Fortescue. For a similar claim by ancient demesne, see Plucknett, Statutes and their Interpretation, 64.

[4]Hic Intimatur, c. 10 (in Stubbs, Select Charters, 8th edn., 83-85).

[5]Above, p. 12.

[6]Above, p. 14.

[1]Pollock and Maitland, ii. 461.

[2]Stenton, English Feudalism, 37-40.

[3]Summarised above, pp. 17-18.

[4]Valuable references are in Pollock and Maitland, i. 189 n. 4; cf. one such example translated above, p. 119.

[5]The current text is composite: Maitland, Bracton’s Note Book, i. 104 ff.; G. J. Turner, Some Thirteenth Century Statutes, Law Magazine and Review, 4th ser., xxii. 245-250; Woodbine, Statute of Merton, Law Quarterly Review, xxvi. 151; Holdsworth, ii. 221; Powicke, Henry III (1947), ii. 769.

[1]For its significance, see above, p. 26.

[2]The general nature of Edward I’s legislation has been described above, pp. 27-31.

[3]23 January 1236.

[1]The earlier is sometimes called the Statute of Acton Burnel.

[2]As finally published in 1307, the enacting clause thus omits to recite the assent of the bishops; but when first brought before parliament in 1305 the bishops are said to have assented: Maitland, Memoranda de Parliamento, li, 314.

[1]Plucknett, Statutes and Their Interpretation, 9.

[2]Winfield, Chief Sources of English Legal History, 72, 73.

[1]Plucknett, Statutes and Their Interpretation, 32-34; Holdsworth, Sources and Literature of English Law, 48. A slightly different view is taken by Richardson and Sayles, Early Statutes, Law Quarterly Review, l. 556 ff.

[2]Putnam, Enforcement of the Statutes of Labourers, 179.

[3]Above, p. 175.

[4]Examples are given by Richardson and Sayles, Law Quarterly Review, l. 549 ff., 562, who suggest that such action was not so irregular as historians have generally thought.

[1]As to this, see Taswell-Langmead, Constitutional History (ed. Plucknett), 210-211. Cf. p. 333 below.

[1]5 Eliz., c. 4.

[2]39 Eliz., c. 5 (made perpetual, 21 Jac. I, c. 1, § 2). Nothing could be more modern than a general corporation statute, but it will be noticed that Elizabeth’s act ends with an interpretation clause which looks quite mediaeval: “such construction shall be made upon this act as shall be most beneficial . . . for the . . . poor, and for repressing and avoiding all acts and devices to be invented or put in ure [use] contrary to the true meaning of this act”.

[3]19 Hen. VII, c. 28 (1504).

[4]31 Hen. VIII, c. 8 (1539).

[5]28 Hen. VIII, c. 7 (1536). Others are 37 Hen. VIII, c. 12, and 2 & 3 Philip and Mary, c. 4, s. 19.

[6]Magdalen College Case (1615), 11 Rep. 70. Cf. “rex enim omnes artes censetur habere in scrinio pectoris sui”—Bonham’s Case (1610), 8 Rep. 116 b. Similar words were applied to mediaeval popes.

[7]Bonham’s Case (1610), 2 Brownl. 260.

[1]Interpretation Act, 1889. For a survey of the older editions of statutes, see Winfield, Chief Sources of English Legal History, 84-95.

[2]See Plucknett, Legal Chronology, in Handbook of Dates for students of English History (ed. C. R. Cheney: Royal Historical Society, 1945).

[1]Carr, “Citation of Statutes” in Cambridge Legal Essays, 72.

[2]Plucknett, Statutes and Their Interpretation, 23.

[3]The early printers greatly increased the list of pseudo-statutes in their endeavours to bring out ever bigger and more complete collections.

[4]See now, Richardson and Sayles, Early Statutes, in Quarterly Review, l. 548.

[5]References will be found in Plucknett, op. cit. Even in Coke’s day, the problem of proving a statute might be difficult; The Prince’s Case (1606), 8 Rep. 1.

[1]R. v. Bishop of Chichester (1365), Y.B. 39 Edward III, f. 7.

[2]38 Edw. III, stat. 2; they have been noticed by Richardson and Sayles, Law Quarterly Review, l. 559; cf. Plucknett, Statutes and their Interpretation, 34, 143.

[3]The rule is settled in Partridge v. Strange and Croker (1553), Plowd. 77; Maitland, Collected Papers, iii. 195, must have overlooked this case, for he there suggested that the rule may have been unknown in 1559; for its history, in England and America, see Kent, Commentaries, i. 454 ff.

[4]29 Car. II, c. 3 (1677), ss. 14-16.

[5]33 Geo. III, c. 13 (1793).

[1]Unde jus prodit, interpretatio quoque procedat: c. 31, X. 5, 39. The canonists restricted the doctrine somewhat; Lyndewoode, Provinciale (ed. 1679), 246 declarandum.

[2]Bartholomaeus de Saliceto on C. 1. 14. 12. Compare Bracton, f. 106: est enim eius interpretari cuius est concedere (of fines levied in the king’s court), and f. 34 (of the king’s charters). See generally, H. Kantorowicz and W. W. Buckland, Studies in the Glossators, 192, and W. Ullmann, Medieval Idea of Law, 112 ff.

[3]Stubbs, Select Charters (1905), 357. The date was 1226.

[4]Statutes of the Realm, i. 118.

[5]Close Rolls (1256-1259), 489.

[6]Exposition of the Statute of Gloucester, Statutes of the Realm, i. 50.

[7]Ibid., 52.

[8]Y.B. 30 & 31 Edward I (Rolls Series), 441.

[9]Y.B. 40 Edward III, f. 34 b.

[1]“It is magis congruum that Acts of Parliament should be corrected by the pen that drew them, than to be dashed to pieces by the opinion of a Law Judge” [Egerton], Observations on Coke’s Reports, ii.

[2]Ash v. Abdy (1678), 3 Swans. 664.

[3]Gutteridge, Comparative View of the Interpretation of Statute Law, Tulane Law Review, viii. 10.

[4]Hilder v. Dexter, [1902[ A.C. 474 at 477.

[5]See the literature mentioned by Professor H. C. Gutteridge, above n. 3.

[6]In 1564 Pope Pius IV created a special congregation of cardinals to whom Pius V shortly afterwards gave the exclusive power of interpreting the decrees of the Council of Trent.

[7]Above, p. 183.

[1]Y.B. 32 & 33 Edward I (Rolls Series), 429.

[2]Y.B. 33 & 35 Edward I (Rolls Series), 82. As a litigant remarked in an Irish case of 1290, “no one ought to gloss the king’s statute”: Sayles, King’s Bench, ii. 76.

[3]Y.B. 15 Edward III (Rolls Series), 388-394.

[1]Y.BB. Edward II (Selden Society), xi. 176-177.

[2]Plucknett, Statutes and Their Interpretation, 70.

[1]Y.B. 16 Edward III (Rolls Series), i. 90 (1342).

[2]Y.B. 17 Edward III (Rolls Series), 142 (1343); Y.B. 17 & 18 Edward III (Rolls Series), 446; Y.B. 18 Edward III (Rolls Series), 131.

[3]Y.B. 17 Edward III (Rolls Series), 370 (1343).

[4]Baldwin, Select Cases before the King’s Council (Selden Society), xxiv.

[5]The practice of basing statutes upon common petitions naturally directs attention to the written text, but it is the adoption of the bill procedure (above, p. 324) which finally compels parliament, the courts and the public to scrutinise the ipsissima verba of a statute.

[6]The movement was not successful, although traces of it have survived. Its abandonment may be due to its inconsistency with a more important principle, viz. that statutes are binding even in ecclesiastical matters. See Articuli Cleri, c. 20 (1605) in 2 Inst. 599 ff.; March, N. C., 90, No. 148 (1640); Gould v. Gapper (1804), 5 East, 345.

[1]See the outline in Blackstone, Commentaries, i. 59-61, 85-91, and Kent, Commentaries, i. 454-468 (both reproduced in Pound and Plucknett, Readings, 40-42, 252-269). There is an elaborate discussion of interpretation by a divided court in Y.B. 4 Edward IV, Pasch. no. 4 and no. 19.

[2]Fulmerston v. Steward (1554), Plowd. 109.

[3]Blackstone, Commentaries, i. 61. See in general, Loyd, The Equity of the Statute, in Univ. Pennsylvania Law Review, lviii. 76; Thorne, The Equity of a Statute, Illinois Law Review, xxxi. 202-217, and Thorne, introduction to [Egerton], Discourse on Statutes.

[1]Cf. the treatment of appeal cases in the House of Lords, above, pp. 202-203.

[2]Such material may be sometimes used now: see ReC., an Infant, [1937] All E.R. 783 at 787.

[3]Millar v. Taylor (1769), 4 Burr. 2303 at 2332. Cf. Thorne, in Speculum, xi. 457.

[4]In Entick v. Carrington (1765) 19 S.T. 1030, Lord Camden used the Commons’ Journals to elucidate the statute 16 Charles I, c. 10.

[1]Salkeld v. Johnson (1848), 2 Exch. 256 at 273. Cf. the useful note on this point in Law Quarterly Review, lv. 488-490.

[2]Gutteridge (supra, p. 330 n. 3), 20; cf. H. A. Smith, Interpretation in English and Continental Law, J. Soc. Comparative Legislation (1927), 153.

[3]S. Vesey-FitzGerald, The Interpretation of Codes in British India, Madras Law Journal, lxviii. 67 at 69.

[4]McIlwain, High Court of Parliament (1910); McIlwain, Magna Carta and Common Law (Magna Carta Commemoration Essays); McIlwain, American Revolution (1924). For criticisms see Plucknett, Statutes and Their Interpretation, 26-31; Plucknett, Bonham’s Case and Judicial Review (Harvard Law Review, xl. 30-70); Holdsworth, Sources and Literature, 41-43; Allen, Law in the Making, 250-257; Thorne, Bonham’s Case (Law Quarterly Review, liv. 543).

[1]Above, p. 51.

[2]Bonham’s Case (1610), 8 Rep. 118; City of London v. Wood (1701), 12 Mod. 669 (both in Pound and Plucknett, Readings, 33, 34). Some new material has been collected by C. F. Mullett, Fundamental Law and the American Constitution (1933), and for a critical examination of the whole question, see now J. W. Gough, Fundamental Law in English Constitutional History (1955).

[3]It was easier to make a woman a man: 1 Mary, sess. 3, c. 1, s. 3.

[4]R. v. Earl of Banbury (1695), Skin. 517, 527.

[5]The later stages of the doctrine can be seen in Day v. Savadge (1614), Hob. 85; City of London v. Wood (1701), 12 Mod. 669; Duchess of Hamilton’s Case (1712), 10 Mod. 115; Lee v. Bude & Torrington Junction Ry. (1871), L.R., 6 C.P. 576.

[1][Egerton] Discourse upon Statutes (ed. Thorne), 165-166, refuses to admit that a statute can become obsolete, but has to confess that it may be “enfeebled” by passage of time. The statute 1 Henry V, c. 1, gave great difficulty in the seventeenth and eighteenth centuries when it was never observed; see the curious arguments in R. H. Peckwell, Reports of Elections, I. i. 53 ff. (Owing to the privilege of the House, the law courts were not confronted with this particular puzzle.)

[2]Chester County Court Rolls, ed. R. Stewart-Brown (Chetham Society), 75-76.

[3]R. v. Bishop of Lincoln (1345), Y.B. 19 Edward III (Rolls Series), 170.

[4]R. v. Bishop of St. Davids (1409), Y.B. 11 Henry IV, ff. 7, 39 b. In 1464 the matter was put in doubt: Y.B. 4 Edward IV, Pasch. 4.

[1]For such a case, see Y.B. 13 Richard II (ed. Plucknett), 161 (1390).

[2]Littleton, s. 108; Co. Litt. 81 b; cf. Glanville, J., in Corbet’s Case (1600), 1 Rep. 88, and Choke, J., on the statute 15 Hen. VI, c. 3, in R. v. London (1465), Long Quinto, ff. 33-34.

[3]R. v. Bailiffs and Burgesses of Bewdley (1712), 1 Peere Wms. 207 at 223 per Parker, C.J.

[4]Ashby v. White (1703), 2 Ld. Raym. 938 at 944, 946, 957.

[5]Chapman v. Pickersgill (1762), 2 Wilson 146.

[6]R. v. Inhabitants of Cumberland (1795), 6 Term Rep. 194, 195, 197.

[7]Leigh v. Kent (1789), 3 Term Rep. 362.

[8]Stewart v. Lawton (1823), 1 Bing. 374.

[1]Some recent work on the subject is reviewed in Plucknett, L’Interprétation des lois, in Introduction à l’étude du droit comparé, Recueil Lambert, i. 434-449. The more recent history of the notion is well worked out in the later chapters of J. W. Gough, Fundamental Law (Oxford, 1955).