Monday, 1 March 2010

HOBS: 1542 statute dating - An Act Against Such Persons As Do Make Bankrupts 1542, 34 & 35 Hen VIII, c.4, 1542.

As I have noted elsewhere there is some debate as to whether or not the first bankruptcy statute received Royal assent in 1542 or 1543.[1] Professor Sir Geoffrey Elton, has posited that the statute almost certainly receive Royal assent in 1543.[2] This view has been supported by Professor Lehmberg,[3] who observed that:

“Bills dealing with bankruptcy…were introduced [in 1542] but did not complete their course. All of these were held over and enacted in 1543.”[4]

One modern commentator has cited 1543 as the date of Royal assent but with no explanation as to why this date is preferred.[5] Despite this weight of authority, including of course a sometime Regius Professor of modern history in the University of Cambridge, some specialist insolvency texts still posit that 1542 was the date of Royal assent.[6] Who is correct? There is a long held fiction that a statute is deemed to have obtained Royal assent on the first day of a Parliamentary session (what we might call here the Cheney convention).[7] This is because the entire Parliamentary session is, as a consequence of this fiction, considered as one day. Professor Sir William Maitland QC has thrown doubt on this assertion,[8] but as Cheney observes he did not take account of Partridge v. Strange,[9] a case of 1553 that continues this fiction.

So how does the Cheney convention apply to the first bankruptcy statute known as 34 & 35, Hen VIII, c.4? We must break down this citation into its constituent parts and then apply the fiction. The 34 regnal year for Henry VIII is 22 April 1542 to the 21 April 1543. The 35 regnal year of Henry the VIII is 22 April 1543 to the 21 April 1544. The dates of the Parliamentary sessions in the last ten years of Henry VIII life are: (1) 28 April 1539 to the 24 July 1540; (2) 16 January 1542 to the 28 March 1544, and, (3) 23 November 1545 to the 31 January 1547. The last was dissolved by the death of the King on 28 January 1547. The important Parliamentary session is the one commencing on the 16 January 1542.[10] This spans two regnal years, hence the citation to the first bankruptcy act, namely 34 & 35, Hen VIII, c.4. Applying the fiction, or the Cheney convention, the date of Royal assent for the first English bankruptcy Act is then more likely than not to be 1542 and not 1543. Elton and Lehmberg and, consequentially Graham, appear to be wrong if the fiction is to be considered correct (as far as a fiction can be considered correct) and operating in the 34 and 35 years of Henry VIII reign, namely 1542 and 1543. The use of the word ‘enacted’ in the quote from Lehmberg cited above is perhaps misleading and Graham may have misconstrued the term. It might have been more appropriate to say that the deliberations and debates on the bill were finalised in 1543 and that the act then received Royal assent, which according to the fiction would mean from the first day of the session, namely, 16 January 1542. From 1793 the date of Royal assent had to be endorsed upon the given statute thus alleviating the possibility of any future confusion.[11] There is one other small point that supports the 1542 dating of the first bankruptcy statute. On May 12, 1543, when the bills received royal assent, it is noted:

"Index Statutorum conclusorum in secunda Sessione Parliamenti . . . tertio die Novembris .. . et continuati usque in duodecimum diem Maii. . . ."[12]

It could be argued that this statement supports the contention that the Tudor Parliamentarians of the Henry VIII 33 & 34 Parliament viewed it as a single session. This would of course mean that the first bankruptcy statute should be dated 1542 following the Cheney convention. At least one commentator has sat on the fence in relation to this issue. In a letter to Sir Samuel Romilly published in 1810, William David Evans, a barrister and bankruptcy commissioner, dates the statute as “A.D. 1542-43.”[13] He refers to all other statutes by a single date, i.e. 1570 for the second main statute.

[1] Tribe, J. Core Statutes on Insolvency and Corporate Rescue. Palgrave Macmillan, 2008, page 3.

[2] See: Elton, G. Reform and Renewal: Thomas Cromwell and the Common Weal. CUP, Cambridge, 1973, page 149. Professor David Graham QC has relied on this work when positing that the widely held view that this statute received Royal assent in 1542 is erroneous, see: Graham, D. The formative years of English Insolvency Law – 1543 to 1603 (1995) Phoenix, December 1995, Issue 21, pp. 23 to 25.

[3] Lehmberg, SE. The later parliaments of Henry VIII, 1536-1547. Cambridge University Press, Cambridge, 1977, page 181.

[4] Ibid, page 162, citing 34 & 35 Hen VIII, c.4.

[5] See: Mokal, R.J. Priority as Pathology: the Pari Passu Myth [2001] CLJ 580. There is no examination within the piece as to why that date has been used in preference to the more widely accepted 1542.

[6] See for example: Finch, V. Corporate Insolvency Law: Perspectives and Principles. CUP, Cambridge, 2002; Keay, AR. McPherson’s Law of Company Liquidation. 1st Edition (UK). Sweet & Maxwell Ltd. 2001.

[7] See for example: Cheney, CR. (Ed). Royal Historical Society Guides and Handbooks, No.4, Handbook of Dates. Offices of the Royal Historical Society, University College London, London, 1978, page 71. Hereafter referred to as the Cheney convention.

[8] Maitland, FW. The Collected Papers of Frederic William Maitland ... Edited by H. A. L. Fisher. 3 vol. CUP, Cambridge, 1911, at vol III, page, 195.

[9] Plowden, E. Les comentaires, ou les repores. 1570, page 77. Cheney page 71. See also: Pilkington’s Case (1455) Year Books, 33 Hen.VI, Pasch. No.8.

[10] On the Tudor legislative process see: Miklovich, JI. Legislative Procedure in the Reign of Henry VIII, 1536-1547. Unpublished Ph.D. thesis, University of Cambridge, 1975.

[11] 33 Geo.III, c.13.

[12] JHL, May 22, 1543, i.e. the second session of Parliament began on November 3, 1542 and ended on May 12, 1543.

[13] Evans, WD. A Letter to Sir Samuel Romilly, Knt., on the Revision of the Bankrupt Laws. London, 1810, pages 91 and 94, of Lincoln’s Inn Library’s Cooper Pamphlets, vol.39.

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Fergus O'Rourke said...

Thanks, John.

That issue had been keeping me awake at nights :-)

John Tribe, KPMG Lecturer in Restructuring, Kingston Law School, Kingston University, Surrey, UK said...

I am glad you can rest easy! Your twitter post is wrong though - the post proves it is 1542 in terms of enactment, not 1543 - hence the post!

Fergus O'Rourke said...

Unlike you, I don't fall for Cheney fictions :-)

John Tribe, KPMG Lecturer in Restructuring, Kingston Law School, Kingston University, Surrey, UK said...

What authority do you rely on then for 1543? Cheney is merely short hand for a well known practice on statute dating.

Роман said...

Thanks, John. It may seem strange, but i was looking for this statute' dating problem yesterday but found nothing.

My next question may seem stupid for you (as for lawyer from the common law system), but: what if we say about the year the statute was REALLY passed? And not about fiction date used in citations?

For example, here is the context:
"Henry VIII married his last wife, the wealthy widow Catherine Parr, in 1543... blah-blah-blah... and in the same year An Act Against Such Persons As Do Make Buknrupts was passed". <-- is this correct? Shall I use 1542 or 1543 here?

Thank you.

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