The Act 17º Ric. II. cap. 11

Casually consulting the Act 17 Ric. II. cap. 11, as you do...

— Benjamin Lewis (@tc1415) August 8, 2022

Now, this could be the sort of thing someone with more time on their hands than is healthy would write. That, it probably was. It also had a reason. In a few places, whilst hunting down something else, I kept seeing references to this law. But, if you look on legislation.gov.uk (the oracle for almost all things statutory in the United Kingdom) you would find nothing about it. Indeed, this link should, if it was online, take you to it. If it is ever added, it will (or at least it will if I've got it right, which is a push...).

The Act Itself

Arguably the term Act is slightly inapposite here, this being more one section (as we would now term it), one chapter as it was known then and now, of a single statute. Indeed, this is the origin of the chapter number of all modern day (and less modern day) Acts: they are still, theoretically chapters of one ginormous statute roll. In simpler times [1], laws were shorter [2]. So what does it say, and why might anyone care?

Although it were ordained and granted by King Edward Greatgrandfather and also by King Edward Grandfather of our Lord the King that now is, that the Alderman of the City of London should cease and should be removed from their said Office every year at the feast of Saint Gregory, and that they should not be reelected at the year next ensuing; but that other sufficient persons of the said City should be every Year newly elected and put in the Offices aforesaid : 

Nevertheless our said Lord the King, for certain causes Him especially moving, and at the same time for the better governance of His said City in time to come, willeth and hath ordained by the Advice and Assent of His Council in this present Parliament, 

That henceforth the Aldermen  shall not be ousted nor removed from the said Office of Aldermanship at the said Feast of Saint Gregory, nor at any other time of the year, without good and reasonable cause, nor any other elected nor put in their places; but shall remain on from year to year in their said office until they be removed for just and reasonable cause as above; notwithstanding the ordinances aforesaid. [3]

A preamble, an enacting formula [4], and a single operative provision. Short and sweet. If only modern Acts were thus!

The nice thing about this is that the purpose and effect is wholly clear. Originally (one supposes otherwise the charters of Edward II and Edward III would be otiose [5]) the Aldermen were elected for life, and this restored the position. It also added in a modicum of protection of tenure: the Court of Alderman [6] could not depose an Alderman without a decent reason.

Clearly, if this law is still in force, despite its curious absence from the online resource, this is important. 

The Corporation's View

The Corporation of London clearly think it is still in force and binding [7]. Two clear pieces of evidence back this up. Firstly, the Wardmote Book [8] [9] in two places [10] cites this Act as authority for the (notional [11]) lifetime tenure of Aldermen. 

Secondly, a legal opinion of the City Law Officers [12] cites this Act as authority for the inability of both the Court of Aldermen and the Court of Common Council (by Act or otherwise) to put a retirement rule on a binding footing [13], viz. 

It is considered that the power of removal conferred by the Act is limited to removal of individual aldermen who fail to meet expected standards of probity or conduct and does not extend to introducing, by Act of Common Council or binding contract, a compulsory retirement age requiring aldermen to resign at a particular age or a requirement to surrender office every six years. Such requirements could only be introduced by a further Act of Parliament.

This could only be true if the Act was still in force. The confusing situation had it been repealed, that is, were the two Charters cited supra revived or was the pre-charter status quo restored anyway we shall ignore since that would in any case leave the security of tenure question hanging. And in any case, the Law Officers have expressly accepted the security of tenure as binding on the City - as any Act of Parliament, despite the City's considerable degree of autonomy, always and rightfully is.

But where is it?

Local Acts and Revised Editions

This Act predates the concept of local Acts by many centuries. But it is instructive to consider them, and the related personal Acts. Unlike the public general Acts, historically these were not always printed, and indeed not always even acknowledged in any but the most comprehensive lists and tables. This Act predates this Henrician separation of private (or personal, nothing turns on the term used) Acts and therefore well precedes the 1797 creation of the local Acts [14].

Statutes of the Realm was a mammoth undertaking by the Record Commission published between 1810 and 1825 and contained every [15] Act of Parliament [16] passed since time immemorial [17] until 1707. These were presented unamended and only with some editorial changes like the addition of punctuation (which had now been invented) and translation from Latin or Norman French into (modern-ish) English. It was then declared by Act of Parliament that where an Act of Parliament cites another it would (in the absence of something we are about to discover) be treated as reference to these copies prepared by the Record Commission [18]. So we have a snapshot in time. But this is only of limited utility - many Acts amend others. Indeed, the one we are concerned about here abrogated some existing laws itself, so this is hardly a modern concept.

So, in the 1860s [19], Parliament commanded a new task be carried out: the created of the Revised Edition of the Statutes. This ultimately led to several editions of these. The exact cut-off dates are immaterial for our purposes, obviously. The key thing to note is found in the preface to each edition (the last was in 1950, incidentally), viz.

Acts of a local or personal or private nature, and in some instances sections or parts of  sections of a like nature, are omitted [20].

 If we turn to the Chronological Tables [21], we find [22] our Act, 17º Ric. II. cap. 11, marked as local.

And thus we know why it is missing. For legislation.gov.uk only, in general, contains that which the Revised Statutes contains or contained (this is slowly and creditably improving). 

Where Now?

The takeaway here is really that despite the online resource being remarkably comprehensive, it is trivially possible for an old law of some actual importance to slip by. Whether laws concerning the Corporation of London are truly local at all [23] is perhaps debateable. Either way, my personal view is that there is a strong case for this Act to be included even if the general inclusion of all of Statutes of the Realm is a great many years away. It is, after all, being actively cited in legal opinions this very century!

In the meantime, it is always instructive to consult those Chronological Tables. For example, based on those and a bit of further detective work, I am very much satisfied this Act remains both unrepealed and unamended.

Colophon

I am indebted to Rich Greenhill who had the now obvious, but not to me at the time, idea of consulting the Chronological Tables and pointed out the less than obvious fact that because this Act predates the Chronological Table of Local Acts it would not appear in any of the places I expected.

Acts of Parliament this old are obviously in the public domain. The quotation from the City Law Officers is not, like many things in the public sector in the United Kingdom, seemingly covered by the Open Government License, but nonetheless is fair dealing for the purposes of research (or criticism or review or any of the other reasons why). Entirely in my opinion, the Corporation should revise their stance here and adopt the Open Government License or similar.

As ever, this is not a criticism of the National Archives who, with legislation.gov.uk, have produced a truly remarkable resource. If anything, that the situation discussed here occurs so rarely is praise itself, since there is an awful lot of English law out there to wade through if you want to.

[1] This statement is false.

[2] This statement is also false, but less false than [1].

[3] 17º Ric. II. cap. 11, Statutes of the Realm, vol. II, p. 90; punctuation as added by the Record Commission (it not having been invented in the 14th century), paragraphing and some rationalisation of capitalisation as by me to try and make the one continuous run of text manageable to modern eyes.

[4] Conceptually similar to the modern one, still used 629 years hence, one can see the beginning of 'advice and consent', the phrase 'present Parliament Assembled', and 'willeth and hath ordained' would later morph into 'be it enacted'. 'Especially moving' still features in Royal Charters to this day. Truly nothing actually changes in the venerable English, and later British, constitutional orders.

[5] These were two examples of several attempts by mediaeval Kings to clip the wings of the City of London. The process also sometimes went the other way, as the City asserted its powers: another example of that is the very next chapter of this Statute, viz. 17º Ric. II. cap. 12, which ameliorated some confusing, at least to me, anti-incompetence procedure a previous Act had imposed on the City.

[6] Since this has never been tested, while one assumes it is the Court of Aldermen who hold this power, it may actually be the Common Council in totality or by Act of Common Council who do. Nothing for our purposes turns on these mechanics.

[7] And as we shall see, they are correct to think so.

[8] The Wardmotes are the sort-of-annual meetings in each Ward of the City of London, which also are the technical venue at which Aldermen, Common Councillors, and Ward Beadles are elected, and Honorary Ward Clerks appointed, and also a sort of residents' forum, inter alia.

[9] The Wardmote Book, then, is essentially a City of London municipal election manual, consolidating in one place the disparate procedures and forms associated with the City's idiosyncratic (but gorgeous to behold) electoral system.

[10] Wardmote Book, p. 2 fn. 9 & p. 17 fn. 24.

[11] The Court of Aldermen has agreed a non-binding, self-denying ordinance that Aldermen will surrender their office and submit to relection not less often than once in six years and retire at 70 (soon to be 75) years of age. This is wholly, as we shall see momentarily, unenforceable.

[12] The Recorder of London; the Common Serjeant of London; the Comptroller and City Solicitor; and the City Remembrancer. 

[13] Appendix E of the report of the Policy and Resources Committee to the Right Honourable The Lord Mayor, Aldermen and Commons of the City of London in Common Council assembled on the Aldermanic Eligibility Bill, March 2013. 

[14] More about this another time. It is an especially confusing morphological mess.

[15] This is not an exaggeration. Far, far from it. Statutes of the Realm remains the unparalled and unsurpassed source for all old laws to this day, despite - or perhaps because - of the gorgeous Record Type used to typeset the ancient scribal abbreviations in volume one.

[16] And some early pre-Parliament-as-we-know-it Charters and Ordinances which are for all reasonable purposes the hitherto equivalent of Acts.

[17] Including some, labelled with the cryptic Latin abbreviation temp. incert., for which the date of enactment has been lost; parts of one such statute are still in force, viz. cap. 13 and 15 of Prerogative Regis, which is conventionally dated to ca. 17 Edw. II (or ca. 1322, which would have been either 15 or 16 Edw. II I think, depending on who you ask). Cap. 13 thereof is the continuing authority for the Crown to own all beached whales in England and Wales (but not beached Wales, to be clear); cap. 15 does something relating to grants of land that is wholly less exciting. Vide Statutes of the Realm, vol. I, p. 226 et seq. The key takeaway here is that there is a law in force in England and Wales today which no one knows the exact date of, and we will likely never so know!

[18] Now to be found at sec. 19 of the Interpretation Act 1978 (cap. 30)

[19] As part of a general process of legal tidying up and consolidation, things of import to the present day that date from this era includes the Offences Against the Person Act 1861 (24º & 25º Vict. cap. 100).

[20] Statutes Revised, 2nd edition, vol. I, p. vii.

[21] These remain of especial and continuing importance since they detail when exactly all ancient, and less than ancient, laws were ultimately repealed.

[22] ibid. p. xli.

[23] Despite their mode of enactment, even today, being by private Bill and their publication, even today, being as one of the now dwindling population of local Acts. One, relating to Billingsgate Market, may appear later this year, incidentally.