1911 Encyclopædia Britannica/Ordinance (legislation)

ORDINANCE, in medieval England, a form of legislation. The ordinance differed from the statute because it did not require the sanction of parliament, but was issued by the sovereign by virtue of the royal prerogative, although, especially during the reign of Edward I., the king frequently obtained the assent of his council to his ordinances. Dr Stubbs (Const. Hist. vol. ii.) defines the ordinance as “a regulation made by the king, by himself or in his council or with the advice of his council, promulgated in letters patent or in charter, and liable to be recalled by the same authority.” But after remarking that “these generalizations do not cover all the instances of the use of ordinance,” he adds: “The statute is primarily a legislative act, the ordinance is primarily an executive one.” Legislation by ordinance was very common during the reigns of Henry III. and Edward I. when laws were issued by the king in council or enacted in parliament indifferently. Both were regarded as equally binding. Soon, however, legislation by ordinance aroused the jealousy of parliament, especially when it was found that acts of parliament were altered and their purpose defeated by this means. Consequently in 1389 the Commons presented a petition to King Richard II. asking that no ordinance should be made contrary to the common law, or the ancient customs of the land, or the statutes ordained by parliament. For this and other reasons this form of legislation fell gradually into disuse, becoming obsolete in the 15th century. The modern equivalent of the ordinance is the order in council.

In 1310, when Edward II. was on the throne and England was in a very disturbed condition, a committee of twenty-one bishops, earls and barons was chosen to make certain ordinances for the better government of the country. These men were called ordainers.

In the 17th century the use of the word ordinance was revived, and was applied to some of the measures passed by the Long Parliament, among them the famous self-denying ordinance of 1645. This form was used probably in conformity with the opinion of Sir Edward Coke, who says in his Fourth Institute “an ordinance in parliament wanteth the threefold consent, and is ordained by one or two of them” (i.e. king, lords and commons). The ordinances of the Long Parliament did not, of course, obtain the assent of the king. At the present time the word ordinance is used to describe a body of laws enacted by a body less than sovereign. For example, the ordinances of Southern Nigeria are issued by the governor of that colony with the assent of his council.

Before 1789 the kings of France frequently issued ordonnances. These were acts of legislation, and were similar to the ordinances of the English kings in medieval times.