The Statutes of the Realm/Volume 1/Introduction/Chapter 1/Section 2

by the Record Commission

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Sect. II.

Plans heretofore proposed for an Authentic Publication, or for the Revision, of the Statutes.

No Complete and Authentic Edition of the Statutes has hitherto been undertaken by Authority; nor has the Design itself ever been suggested, simply, and without Connection with other Schemes of Reformation or Improvement.

A general Revision of the Statute Law has been often recommended from the Throne; and has been petitioned for by both Houses of Parliament; It has engaged the Labours of successive Committees, and has been undertaken by Individuals sometimes with, and sometimes without, the Sanction of Royal or Parliamentary Authority; but has never yet been carried forward to any Degree of Maturity.

In Queen Elizabeth’s Reign, A.D. 1557, Sir N. Bacon,Q. Elizabeth. Sir N. Bacon. Lord Keeper, drew up a short Plan for reducing, ordering, and printing the Statutes of the Realm. The following are the Heads of this Plan:^[1] “First where many Lawes be made for one Thing, the same are to be reduced and established into one Lawe, and the former to be abrogated.—Item, where there is but one Lawe for one Thing, that these Lawes are to remain in Case as they be.—Item, that all the Actes be digested into Titles, and printed according to the Abridgement of the Statutes.—Item, where Part of one Acte standeth in force and another Part abrogated, there should be no more printed but that that standeth in force.—The doing of these Things maie be committed to the Persons hereunder written, if it shall so please her Ma^tie and her Counsell, and Daye wolde be given to the Committees until the First Daie of Michaelmas Terme next coming for the doing of this, and then they are to declare their Doings to be considered of by such Persons as it shall please her Ma^tie to appoint.” Then follow Lists of Twenty Committees of Four each, in which the Judges, Serjeants, Attorney and Solicitor General, &c. are named; One Judge, &c. and Three Counsel forming a Committee, to each of which it was proposed that a Title or Division of the Statute Law should be referred.

The Subject was afterwards taken into Consideration, so far as related to the Penal Laws, at subsequent Periods in the Reign of the same Queen, viz. Anno 27, A.D.1585.^[2]—Anno 35, A.D. 1593.^[3]—Anno 39 & 40, A.D. 1597.^[4]—Anno 43, A.D. 1601.^[5]—In the Proceedings in 1593 and 1597 Sir Francis BaconJac. I. Sir F. Bacon. took Part, and upon them he appears to have founded his Sketch, or Plan of a General Revisal of the Statute Law.^[6]—King James the First, upon his Accession to the Throne of England, 1603-4, and in subsequent Periods of his Reign, recommended also to Parliament a Reform of all the Statute Law, and of the Penal Laws in particular.^[7]

In the Year 1610 a Digest and Repeal of the Penal Law was expressly stipulated for by the House of Commons, and acceded to by the House of Lords, in their joint Transaction of the Great Contract with the Crown^[8]; and in the same Reign Sir Francis Bacon, Lord C. J. Hobart, Serjeant Finch, Mr. Noy, and others, by the King’s Command, made considerable Progress in the general Work of reforming and re-compiling the Statute Law, which Lord Bacon describes^[9] as “An excellent Undertaking, of Honour to His Majesty’s Times, and good to all Times;” and recommends, in Imitation of the Statutes of 27 Hen. VIII. c. 15, and 3 & 4 Edw. VI. c. 11, for appointing Commissioners to examine and establish Ecclesiastical Laws, that Commissioners be named by both Houses for this Purpose also, with Power not to conclude, but only to prepare and propound the Matter to Parliament.

In the British Museum is preserved a Manuscript Volume^[10] containing the Plan of an elaborate Report, particularising the several Statutes, from the Statute of Westminster the First, 3 Ed. I. to 7 Jac. I. 1609, then actually repealed or expired, and also the Statutes thought fit either to be absolutely repealed, or to be repealed and new Laws to be made in their Place. Possibly this may be the very Work spoken of by Sir Francis Bacon.^[11] It is drawn up as by Authority, with detailed Reasons for every proposed Measure; but it is not signed by, or addressed to, any one. A Table is subjoined to it, exhibiting the Result of the Report.

Among the Papers of Mr. Petyt, in the Inner Temple Library,^[12] is a Letter of Lord Bacon’s, dated 27th February 1608, which shews that he had the Advantage of using for his proposed Plan a Manuscript Collection of the Statutes, made with great Labour by Mr. Michael Heneage, Keeper of the Tower Records, in Five large Volumes, which it is feared has been lost. Lord Bacon’s Disgrace at the latter Period of the Reign of King James I. and the Distractions of the Government in what related to Parliament, were probably the Causes of the Failure of these Measures, and of the Silence that ensues respecting them in Parliamentary History.

Usurpation. Whitelock and others.

During the Usurpation, the same Undertaking was resumed with Ardor. In 1650, a Committee was named, one of the Members whereof was Bulstrode Whitelock, then First Lord Commissioner for the Custody of the Great Seal: The Purpose was “to revise all former Statutes and Ordinances now in force, and consider as well which are fit to be continued, altered, or repealed, as how the same may be reduced into a compendious Way and exact Method, for the more ease and clearer Understanding of the People.” And the Committee were empowered “to advise with the Judges, and to send for and to employ and call to their Assistance therein any other Persons whom they should think fit, for the better effecting thereof, and to prepare the same for the further Consideration of the House, and to make Report thereof.”^[13] But no such Report has been preserved.

In 1651-2, Matthew Hale Esquire, afterwards Lord Chief Justice Hale, Sir Anthony Ashley Cooper, afterwards Lord Shaftesbury, and Rushworth the Author of the Historical Collections, with other Persons out of the House, were appointed to report to the Committee their Opinions upon the Inconveniences of the Law; and a revised System of the Law was reported to the House in the Course of the same Year.^[14] The same Labour was afterwards transferred to other Hands, but the Work was not abandoned; and in 1653 a Committee was appointed to consider of a new Model or Body of the Law. ^[15] But of this Committee no Proceedings are now discoverable.

Restoration. Finch, Maynard, and others.

After the Restoration, Finch, Solicitor General, afterwards Earl of Nottingham and Lord Chancellor, Serjeant Maynard, Sir Robert Atkins, Mr. Prynne, and others, were appointed in 1666, to be a Committee “to confer with such of the Lords, the Judges, and other Persons of the Long Robe, who have already taken Pains and made Progress in perusing the Statute Laws; and to consider of repealing such former Statute Laws as they shall find necessary to be repealed; and of Expedients for reducing all Statute Laws of one Nature under such a Method and Head as may conduce to the more ready Understanding and better Execution of such Laws.” ^[16] This, however, was as ineffectual as any of the former Measures; and it is the last recorded Instance of the Interference of Parliament on the Subject, previous to those Proceedings which gave Rise to the Commissions under the Authority whereof the present Work has been executed.

Pulton’s Plan

The earliest Instance of the Exertions of any Individual, without the Sanction of Parliamentary Authority, towards making a Collection of Statutes from authentic Sources, appears to have been afforded by Pulton.—He was a learned Barrister, of great Age and Experience, and was employed for several Years in the Consideration of the Statute Law. He published two useful Books upon that Subject: first, an Abridgement of the Penal Statutes;Catalogue A. No. 38, 44, 45. and afterwards a Calendar or Abstract of all the Statutes in use, chronologically arranged; together with an alphabetical Abridgement of them, in the Manner of Rastall’s Collection. He appears to have been encouraged and assisted in his first Work by Sir William Cordell, then Master of the Rolls, to whom it is dedicated; various Editions of this were published from 1560 to 1577. His Calendar, first published about 1606, is distinguished by the following Expression in the Title Page; viz. “Editum per mandatum Domini Regis.” But nothing else, either in the Book or elsewhere, has been found to confer any Marks of Royal Authority upon the Contents of the Book. After the Publication of these Works, without any Public Patronage or Recommendation beyond a Permission to use the Records, he conceived the Plan of copying from their original Records, and printing for general Use, all the Statutes supposed to be in force.

This Plan it will be useful to state at Length: And this we are enabled to do by the Preservation of the Papers, containing his original Scheme, among Sir Robert Cotton’s Manuscripts in the British Museum.^[17] In one of these Papers the Design is set forth: It is indorsed, in a Hand frequent among the Cottonian Manuscripts, “Concerning Mr. Pulton’s Suite;” and has no other Title, Mark, or Description at the Beginning or End; though by another Article referring to it, there is Proof of its Date being in or previous to 1611. “Mr. Poulton seeketh to print the Statutes at Large. He promiseth to set down which Statutes or Parts of Statutes are repealed, and which, being at the first but temporary, are since expired and void, because not revived. This he hath already done in his late Abridgment, for which he had a Recompence of the Printer. Now, to make this new Book at large saleable, he promiseth to print the Statutes first in the Language the same were first written; and such as were originally in French or Latin, he will translate and print likewise in English. Where the Statute has no Title, he will devise a Title out of the Body, and print it with the Statute. He will set down which Statutes are warranted by the Record, and which not. He will correct the printed Book by the Record. For which Purpose he requireth free Access at all Times to the Records in the Tower. Being very aged, viz. almost Fourscore, he desireth that for his Ease and better enabling in his Work, the Keeper of the Records within the Tower of London may every Day deliver unto him, when he shall so require, One Parliament Roll, to be by him and his Clerk perused and viewed, in a Lodging which he hath taken near unto the said Office; the same afterwards to be redelivered by them to the said Keeper thereof. That the Clerk do help, further, and assist him in this Service by all the Means he can.”

Several Objections to the Prosecution of this Plan were made by Bowyer and Elsyng, Keepers of the Tower Records; among others, that they and their Predecessors had actually prepared Materials for the Work in question, and that they then had ready written Five Volumes of Statutes copied from the Records. These were perhaps the Volumes alluded to in Lord Bacon’s Letter before mentioned.^[18] The Dispute between the Parties was continued for some Time: But there remains among the Cottonian Manuscripts^[19] a Draught of an Award for its Determination by Sir Robert Cotton himself, to whom they referred their Differences; and from a Paper in the British Museum, among the Manuscripts of Mr. Madox^[20], it appears, that an Order of Council passed on the 24th October 1611, granting Licence to Pulton to have the Use of the Records in the Manner asked. It recites that he undertook the Work by Persuasion of the Judges and others learned in the Laws, and requires the Keepers of the Records, on account of the Importance of the Work, and for the Benefit of the Learned, to assist and further him all they can.

Catalogue, A. No. 47.

Pulton lived to publish this proposed Edition in 1618; which is the Work already spoken of as Pulton’s English Statutes. In his Preface, after noticing the Redundancies of former Editions, containing Subsidy Acts and other Acts “expired, repealed, altered, and worn out of Use,” and his Intention to publish such only “which be now in Life, Force, and general Use,” he gives the following Statement of the Means he had employed in compiling his Collection.

“First, with as great Means, Care, and Industry, as possibly I could use, so many of the old Statutes heretofore printed in the English Tongue, made and published in the Reigns of the first Ten Kings (accounting from 9 of Hen. III. unto 1 of Ric. III. inclusive), as be chiefly in Use and Practice, and which are the Foundation of Proceedings both legal and judicial, have been by me truly and sincerely examined by the original Records thereof remaining in the Tower of London; and the Residue with the Register of Writs, being the most antient Book of the Law, the old and new Natura Brevium, the Books of Entries, the Books of Years, and Terms of the Law; the best approved, printed, and written Books; and by all such other Circumstances as might best give Probability of Truth unto the Learned. By reason whereof, the foresaid Defects, Imperfections, and Emblemishments being reformed in this Edition, as it is a Collection of the most usual Laws, gathered from out the grand Codex of all the Statutes, so it may serve as a Correction to the former Impressions.”

The Defects of Pulton’s Publication, as a general Collection of Statutes, are chiefly these: 1st, As to the Statutes preceding Henry VII. it is a Translation in Engliſh, and does not exhibit the Text in the original Language of the Records, as might have been expected from his Proposal: 2dly. Though it had the Permission, it had not the Authority of the King, by whom all Acts of Legislation are to be communicated to the Subject; and was only the private Work of an Individual for his own Benefit: 3dly. It is a partial Selection of such Statutes as in the Judgement of the Author, were fittest to appear in his Book; their Authority and Use, whether in force or repealed, depending on his Opinion: 4thly. It is not, nor does it purport to be, a correct and examined Copy from the Original Records, of all those Acts which are given at large; but of such only as the Author thought necessary so to examine and correct: And it is left uncertain, which, and how many of them, were taken from printed or written Books. It has, therefore, though in a less Degree, the same Faults as all the Collections and Editions of Statutes printed before; and it was particularly unfortunate that the Author did not execute that Part of his Proposals which made their greatest Merit, namely, the giving an accurate Copy of the Original Text of the antient Statutes from the Record.

These Objections are no less applicable to the Editions by Hawkins and Cay, as falling short of the Character of a complete and authentic Collection of the Statutes. They professed indeed to have copied their Text from original Records, or other Manuscripts, in Latin and French; but by printing some Statutes, and parts of Statutes, with the Translation, and some without it, and giving only a Translation of others, they have rendered their Editions liable to still further Objections, for which no subsequent Editor has hitherto attempted to offer a Remedy.

From the preceding Statement, the Necessity and Use of an Authentic Publication of the Statutes of the Realm will appear: for, although the Defects of all former Collections have been long complained of by learned and eminent Men, and although various Propositions have been offered at different Times, for an Authentic Publication of the Statutes, none such has yet been executed. At length, however, a Select Committee, appointed by the House of Commons of Great Britain in the Year 1800, to enquire into the State of the Public Records of the Kingdom, having reported upon this Branch of the Matters referred to their Consideration, that in their Opinion, it was “highly expedient for the Honour of the Nation, and the Benefit of all His Majesty’s Subjects, that a complete and authoritative Edition of all the Statutes should be published;” in pursuance of their Recommendation the present Work has been undertaken and executed; under the Authority and Direction of Commissioners specially appointed by His Majesty to carry into Effect the several Measures which were by that Committee recommended to the Attention of Parliament.

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1. MS. Harl. No. 249.
2. Dewes’s Journ. 345.
3. Dewes’s Journ. 469. 473.
4. Dewes’s Journ. 553
5. Dewes’s Journ. 622.
6. See the following Articles in Bacon’s Works, viz. Epistle Dedicatory to Queen Elizabeth, prefixed to Elements of the Law;—Proposal for amending the Laws of England, to King James;—Offer to the King of a Digest: 4to Edit. vol. ii. pa. 326. 546. 547, &c.
7. See Lords’ Journals, i. 144. ii. 651. iii. 81. and Preface to Coke’s Fourth Report.
8. Lords’ Journ. ii. 661.
9. Vol. ii. 4to. 547.
10. MS. Harl. No. 244.
11. Vol. ii. pa. 546.
12. Miscell. xvii. p. 279.
13. Commons’ Journ. vi. 427.
14. Commons’ Journ. vii. 58, 74, 249, 250.
15. Commons’ Journ. vii. 304.
16. Commons’ Journ. viii. 631.
17. MS. Cott. Titus B. V. p. 269.
18. See page xxvi. note 12.
19. Vesp. F. IX. pa. 279.
20. Miscell. Vol. 94. No. 4572. Plut. 19C. pa. 82.