HC Deb 17 July 1871 vol 207 cc1875-7
MR. G. B. GREGORY

asked Mr. Attorney General, Whether he considers that the Ordinance of 46 Edw. III., printed in the first volume of the Statutes Revised is an existing Statute and operative as law; and, whether, if so, he is prepared to bring in a Bill for the repeal of the same?

THE ATTORNEY GENERAL

replied that in his opinion no valid Statute, properly so called, was ever passed excluding lawyers from the representation of counties. That was the opinion of Lord Coke, who said (4 Inst. p. 48)— Any of the profession of the law which is in practice of the law is eligible. For he which is eligible of common right cannot be disabled by the Ordinance in Parliament in the Lords' House in 46 Edward III., unless it had been by Act of Parliament; and if it had been by authority of Parliament, yet had the same been abrogated by the Statutes of 5 Richard II., stat. 2, cap. 2, and 7 Henry IV., cap. 15, which are general laws without any exception. He had looked at those Statutes, and he found that though they did not expressly repeal the Ordinance of Edward III., they did so impliedly. Lord Coke further stated that— At a Parliament holden at Coventry, anno 6 Henry IV., the Parliament was summoned by writ, and (by colour of the said Ordinance) it was forbidden that no lawyer should be chosen knight, citizen, or burgess, by reason whereof this Parliament was fruitless and never a good law made thereat, and therefore called 'indoctum Parliamentum,' or lack-learning Parliament. And seeing that these writs were against law, lawyers ever since (for the great and good service of commonwealth) have been eligible, and lawyers might have been elected in that Parliament. Lord Coke acted on his opinion by sitting for the county of Norfolk. It appeared that afterwards, in 1649, an attempt was made to revive the Ordinance, and a speech, to be found in the 19th volume of the Parliamentary History, page 226, was made by Whitelock, denying the validity of the Ordinance, and its operation to exclude lawyers from the representation of counties, on the ground, amongst others, that the King did not assent to the prayer of the Petition in its form—Statutes taking the form in those days of a Petition to, and answer from, the Crown. The Petition was to the following effect— That no man of the law following business in the King's Courts, nor Sheriffs, be returned or accepted for Knights of the Shires. The answer was— The King willeth that knights and esquires be from thenceforth returned to be knights in Parliament, and that they be chosen in full county, an evasive answer which gave the go-bye to the Petition. The Parliamentary History proceeds— We presume that the foregoing arguments put a stop to this attack upon gentlemen of the long robe, for we hear no more of it. From that time until last Monday nobody questioned the right of lawyers to sit for counties. He might add that Blackstone (Vol. I., p. 176) observed on the supposed Statute— It was an unconstitutional prohibition, which wsa grounded on an Ordinance of the House of Lords, and inserted in the King's Writs for the Parliament holden at Coventry, 6 Henry IV., that no man of the law should be elected a Knight of the Shire. He had looked through the various editions of the Statutes, and this Ordinance was not to be found in the ordinary editions, he believed, with the exception only of Ruffhead's Collection of Statutes, where it is inserted in the Appendix. It is referred to in the Preface to Cay's Abridgment of the Statutes, 1739; and it is printed by the Record Commissioners in their edition of the Statutes. As the gentlemen charged with the preparation of the Revised Edition of the Statutes found it in the Record Commission Edition, and could not discover that it had been entirely repealed, they did not feel themselves at liberty to omit it. He did not believe it to be valid; but to remove all doubts it would be inserted among the Statutes repealed by the Bill now pending in the House of Lords. It only remained for him to correct a remark made by the hon. Member for Norfolk (Mr. G. Bentinck), who said that it was in virtue of this Ordinance that Sheriffs were excluded from sitting for counties. The Sheriffs were only disqualified for sitting for the counties to which they acted as returning officers, and this not by statute of the general law of Parliament, for, as Blackstone observed, no returning officer could return himself.