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DR. Augustus Jessopp, in the Preface to his Studies 
by a Recluse, says : " Three years ago I published 
a collection of papers which I had the presumption to 
call Historic Essays, in which some of the critics dis- 
covered, as a matter of course, a bad blunder or two, 
and therefore proceeded to censure me for presump- 
tion. The fact is, that I was still possessed by the old- 
fashioned notion that the word * essay ' meant an attempt 
and nothing more." It is only in this old-fashioned 
sense that I have ventured to call this volume an 
"essay." In it I have concerned myself only in tracing 
the history of certain legal ideas. The conclusions that 
have seemed to me to be deducible from the facts met 
with in this historical survey may be summarized as 
follows : 

(a) England after the Norman Conquest was a feudal 
state, i. ., its political character is better expressed by 
the word feudal than by the word national, (b) As a con- 
sequence, her central assembly was a feudal assembly, 
with the general characteristics of feudal assemblies. 

(c) One of those characteristics was the absence of 
law-making. The law was declared rather than made. 

(d) The law which existed and was thus declared was 
a body of custom which in time grew to be looked 
upon as a law fundamental. Rules inconsistent with 

[ vii ] 


this fundamental law were void. Such a law was recog- 
nized in England down to modern times, (e) Another 
characteristic of the times was the absence of a division 
of labour between different "departments" of govern- 
ment and the lack of any clear corresponding distinc- 
tions in governmental activity, as "legislative," "judi- 
cial," or "administrative." (f) Parliament, the highest 
"court" of the Realm, in common with the lower 
courts, participated in these general functions of gov- 
ernment. It both "legislated" and "adjudicated," but 
until modern times no clear distinction was perceived 
between these two kinds of activity, and the former 
being for long relatively the less important, we may 
say roughly that Parliament was more a court than 
a legislature, while the ordinary courts had functions 
now properly called legislative as well as judicial, (g) 
"Acts" of Parliament were thus analogous to judge- 
ments in the inferior courts, and such acts were naturally 
not treated by the judges in these courts as inviolable 
rules made by an external omnipotent legislative as- 
sembly, but rather as judgements of another court, 
which might be, and were at times, treated as no mod- 
ern statute would ever be treated by the courts to-day. 
The "legislative" activity of our courts to-day in 
the United States is a fact that is rightly attracting 
great attention at the present time, as is shown by the 
number of recent monographs and articles upon it. It 


is a subject of the utmost consequence. This legislative 
activity is no mere accident; it must have causes, and 
some of these must be historical causes. Some inves- 
tigation of these is absolutely prerequisite to any 
thorough understanding of our judicial system, and to 
a perception of the kind of changes which would most 
likely tend toward its betterment. This essay is offered 
as an attempt to account on historical grounds for the 
growth of these great powers now exercised by our 
courts, greater here than in England, because the like 
tendency was there checked by the growth in the 
seventeenth century of a new doctrine of parliamentary 

I entered upon this study without preconceptions. 
During the course of it I came to the conclusion that 
the weight of contemporary evidence was against some 
views held by men whom I have always looked up to, 
and shall always look up to, as my leaders and guides 
in this field. As these divergences of views were not 
on matters of detail, but concerned things which are 
the very marrow of the subject under discussion, this 
has unavoidably given to certain parts of the book a 
polemical cast, and might lead one to think that it 
was written from the beginning merely to bolster up a 
preconceived theory. Such is not the case. Accepting 
the fact of the great and far-reaching activity of our 
courts, 1 have here merely tried to trace the tendency 


historically back to mediaeval England, where I be- 
lieve it has its origin; with the later, or American 
part of the development, I have had nothing to do. 

In my treatment of this subject I have tried to 
keep within the limits I set for myself at the begin- 
ning. Though I have argued against historical views 
which seemed insufficiently supported by evidence, I 
have done so without considering the bearing of those 
arguments upon controverted questions of to-day. Our 
legal institutions, in common with our other institu- 
tions, may be looked at in two ways. Even men's high- 
est religious beliefs and aspirations may in all proba- 
bility be rightly traced back to instincts which are so 
elemental and "low" that they are shared by animals 
far down in the scale of life. By demonstrating this 
humble origin, and the gradual development out of it, 
some scientists have supposed that they were dispos- 
ing of the claims of religion upon the attention of men. 
They have assumed that a judgement to use Pro- 
fessor William James's expression which is purely 
"existential" has validity also as "a proposition of 
value." Thus to mistake the history of an institution 
for its rational justification seems to me a confusion of 
the worst sort. 

In like manner, to say that the present attitude of 
our courts toward statutory enactment has an historical 
basis, to hold as I do that it is a judicial habit which 


can be traced back to conditions in mediaeval England, 
is by no means to give it a clean bill of health. To say 
that this habit has precedent for it is not necessarily 
to say that it is wholly good. To show that it has marked 
resemblances to conditions in Tudor England is not 
enough to shield it from the criticism of the twentieth 
century. I have differed in some historical points from 
the excellent article of Professor Roscoe Pound on 
" Common Law and Legislation," in the Harvard Law 
Review of a year or two ago, but I do not feel that 
his views of the present relation of legislation and judi- 
cature are affected in any way by those differences, 
whichever of us should prove to be right. He says : " Our 
constitutional polity expressly contemplates a complete 
separation of legislative from judicial power. . . . Not 
only is a doctrine at variance with that polity inappli- 
cable to American conditions, but if it ever was appli- 
cable, the reasons for it have ceased and it should be 
abandoned." If my study has shown that the present- 
day extension of judicial action in America has grown 
out of conditions in the England of an earlier day, it has 
shown another thing no less clearly namely, that the 
government of Tudor England was a government of 
fused powers (while that of the United States to-day 
is a system of separated powers) ; and therefore, that 
the former activity of the judges in England was due 
to & fusion of governmental powers, not to a division of 



those powers. The extent of "judicial" activity under 
such conditions is a very dangerous precedent, if it is 
to be followed slavishly and applied without discrimi- 
nation to a system in which there is a balance between 
divided powers, where an encroachment of one depart- 
ment upon another may endanger the balance and 
threaten the whole. It is not fitting that the legal his- 
torian should follow precedent to such an extent as in 
all cases to justify the existence of legal rules merely be- 
cause he finds for them an unbroken history or even a 
former usefulness. " The capital fact in the mechanism 
of modern states is the energy of legislatures." 

The fact that I have not been able to follow in all 
points the masters of English historical jurisprudence 
has had another result which probably needs explana- 
tion. It has made necessary quotations from pieces jus- 
ticatives longer and more frequent than is usual in a 
writing which makes no claim to be a treatise. The 
illustrations were intended originally as illustrations 
merely. In some places, where the points illustrated 
were at variance with writers of authority, I have felt, 
however, that it would be presumptuous not to give 
further proof, and in such places more examples have 
been given, even at the risk of tediousness. This might 
seem to give the book an appearance in some places 
of aiming at an exhaustive treatment of the subjects 
covered; an aim which the performance would not jus- 



tify, and one which has been as far as possible from my 

Many essential points concerning the development of 
English central institutions in the middle ages must be 
made less obscure before generalizations can be formed 
concerning them in any but a tentative way. In the 
case of the Receivers and Triers of Petitions in Par- 
liament and one or two other points, I hope in the 
future to be able to offer some conclusions resulting 
from a detailed examination of the unprinted records. 
The materials upon which this study is based are only 
such as may be found in print in the larger libraries of 
the United States. 

I have tried, in the footnotes and the notes at the 
ends of the chapters, to indicate in all cases the author- 
ities or sources on which my statements are based. I 
have also at times placed in them discussions which 
the general reader might consider too technical. These 
footnotes will show how much I owe to writers such 
as Professor Dicey, Sir Frederick Pollock, Mr. Pike, 
and others. But no specific references can indicate the 
general debt I owe to the writings of the greatest Eng- 
lish historian of our day. It is enough to say that this 
volume grew out of a paper which I had the honour 
to read, at a meeting of my colleagues, on the life and 
writings of Frederick William Maitland. 

Hitherto I have spoken mainly of the United States. 

[ xiii ] 


But after all, the subject I have taken up in this vol- 
ume bears even more directly upon the past and pre- 
sent of England and the British Empire than it does 
upon the United States. The principles and tendencies 
I have here tried to present and illustrate have been 
to me a clue which seemed to lead through many a 
part of English history which before appeared a well- 
nigh hopeless labyrinth. If I have succeeded in mak- 
ing plain what those tendencies and principles are, I 
am not without hope that they may be found in some 
degree helpful to others as well as to myself. 

Recent important events in the British Empire, it 
seems to me, have strengthened some conclusions I 
had set down in the text. The federation of South 
Africa and other events of less importance have given 
encouragement to us who believe in and hope for the 
future of the British Empire. In England itself it is be- 
coming evident that the long reign of Edmund Burke 
is about over. For more than a century the political 
principles which his unrivalled genius distilled from 
the Whig system of aristocratic rule have been ac- 
cepted as the ultimate type of free government. These 
principles, however, predicated a legislative body repre- 
sentative indeed, but sovereign. Burke's candid decla- 
ration to his constituents at Bristol, that their candi- 
date when elected was "not a member of Bristol," but 
"a member of Parliament," admirable as it is, would 



lead to certain defeat to-day. "Authoritative instruc- 
tions " may still be unknown to the laws of the land, 
but they are a commonplace of democratic rule which 
no man can now in practice ignore. Mr. Bryce and 
Professor Dicey have invented a distinction between 
legal and practical sovereignty to meet this change, 
the legal sovereign being the Parliament, the practi- 
cal sovereign, the electors. In the eighteenth century 
no such distinction was necessary, for Parliament was 
to all intents and purposes sovereign practically as well 
as legally. But it may well be doubted whether the 
doctrine of parliamentary sovereignty in any form that 
means much can long survive the triumph of demo- 
cracy. In England democracy has but recently begun 
to put forth the power that has been legally hers for 
half a century, but already we find the House of 
Lords itself justifying its rejection even of a govern- 
ment revenue measure, on the ground that it must 
be submitted to the people for ratification. Such doc- 
trines, from whatever source they come, are subver- 
sive of the old Whig doctrine of a Parliament of "re- 
presentatives." When the referendum really comes, the 
sovereign Parliament must go. But whether for good 
or for evil, the referendum, in principle at least, seems 
to be coming. 

Along with the aristocratic sovereign Parliament, it 
seems likely, will go also the ancient party lines. The 



principle of the referendum and of authoritative in- 
structions is a solvent not only of parliamentary sover- 
eignty, but of the old two-party system as well. That 
system was the creature of aristocratic government : it 
would seem that it cannot long survive its creator. One 
is tempted to doubt whether it still survives. "Parlia- 
mentary government," Bagehot thought, "is, in its 
essence, a sectarian government, and is possible only 
when sects are cohesive." But in the chaos of groups and 
coalitions, of conflicting and confusing issues in Eng- 
land to-day, it requires good eyes to see what Burke in 
the eighteenth century so clearly saw and so elegantly 
described, "a body of men united, for promoting by 
their joint endeavours the national interest, upon some 
particular principle in which they are all agreed." On 
the Continent it has never really existed. In the United 
States it may be doubted whether it has ever existed 
in the form meant by Burke. Before the Civil War in 
America a permanent two-party system would have 
been hard to find ; since the war, and largely as a con- 
sequence of it, one party has been able to retain almost 
unbroken power. But now that the results of the war 
are becoming generally accepted, the growth of inde- 
pendent voting, the scramble for "issues, "and the ap- 
pearance of organized disaffection within party lines, 
all point to the passing of a phase whose continuance 
has been due mainly to circumstances that were excep- 



tional and not inherent in our political being. Boling- 
broke and Washington as political philosophers must 
be considered far below the level of Burke, and they 
no more anticipated our modern democracy than he 
did, but some of their ideas of government seem more 
in accord with the phase we are now entering than 
were those of Burke. More than formerly I am not 
expressing opinions; only describing conditions men 
are heeding Bolingbroke's advice: "Whatever minis- 
ters may govern, whatever factions may arise, let the 
friends of liberty lay aside the groundless distinctions, 
which are employed to amuse and betray them; let 
them continue to coalite," and Washington's warn- 
ing: "The common and continual mischiefs of the 
spirit of party are sufficient to make it the interest and 
duty of a wise people to discourage and restrain it." 

Whatever the future of democracy may be, the main 
problems to be worked out are the same in America and 
England, and no thoughtful American can be blind 
to the immense importance for him of England's solu- 
tion of these problems ; no candid American, whatever 
his ancestry, can help feeling the deepest interest in 
them, touched with gratitude for the nation to which 
we all owe our institutions, our laws, and our political 
ideals ; and many of us so much more. 

I hardly dare hope that my work will be found free 
from errors, even errors of a serious character. It is 

[ xvii ] 


scarcely necessary to say that for all such and for all 
untenable views, I alone am responsible. How many 
more errors I have escaped through the kindness of 
friends, no one can know so well as myself. Among 
those to whom I am indebted for many valuable sug- 
gestions are Mr. W. La Roe, Jr. ; Professor Edward S. 
Corwin, whose forthcoming book on the Growth of 
Judicial Review deals with tendencies in the United 
States whose prior development in England I am here 
endeavouring to trace; Professor Morris W. Croll; 
Professor George Burton Adams ; President A. Law- 
rence Lowell, who was kind enough to spare time to 
read over the manuscript and recommend alterations, 
which I have endeavoured to make, though I am afraid 
I have not in all cases succeeded; Professor Edward 
Channing, to whose encouragement and suggestions 
at many stages of the work and long before it began, 
I owe more than I can well express; my friend Mr. 
Walter L. Whittlesey, on whose advice and assistance I 
have depended constantly from the beginning to the end 
of the undertaking; and finally, Professor Winthrop 
M. Daniels, at whose suggestion this book was first 
undertaken, and to whose interest, counsel, and help, 
above all others, its existence is due. One other name 
I regret that I cannot include among these, but I must 
acknowledge the heavy debt I owe to his teaching and 
to the example of his unrivalled scholarship, though 

[ xviii ] 


his death deprived me of the aid he would have given 
so gladly and I should have prized so highly in the 
preparation of this book. I mean Professor Charles 
Gross. My thanks are due also to Mr. Byrne Hackett 
and the Yale University Press for much help and un- 
varying courtesy and consideration. 

I cannot close this preface without referring to one 
whose interest in the fortunes of this volume and un- 
selfish gratification at any favour it may ever chance 
to win would have been far deeper than any like feel- 
ings of my own. It would have been my highest priv- 
ilege to dedicate this book to her: now I can only 
inscribe it with gratitude and love to her memory. 

Princeton University 
Princeton, New Jersey 
June, 1910 

Table of Contents 



Introduction 3 

Note A : The Judges in Council 39 


The Fundamental Law 42 

Note A : The Fundamental Law in Bracton 101 

Note B: The Beginning of Practical Legislative Sover- 
eignty by Parliament 103 

Note C: The Law of Nature in the Dialogue of the Doctor 
and Student 105 


Parliament as a Court 109 

Note A: Judicial Interpretation of Edward Ill's Statute 
of Treason 247 

Note B: Early Cases Determined in Parliament 248 

Note C: The Relations of Chancery and Parliament 250 

Note D: The Auditores or Triers of Petitions in Parlia- 
ment 251 

The Relations of "Judiciary" and "Legislature" 257 

Note A: Parliamentary Omnipotence and International 
Law 329 

Note B: Parliament as an Advisory Council 330 

[ xxi J 


Note C: The Delegation of Power by Parliament 331 

Note D: Secondary Legislation in England 334 


The Political History of Parliamentary Supremacy 336 

Note A: Parliament's Formal Assertion of Sovereignty 
the Declaration of May 27, 1642 389 

Note B: Parliamentary Sovereignty and the British Empire 390 
Index 395 


" We must not be in a hurry to get to the beginning of the 
long history of our law. Very slowly we are making our way 
towards it. The history of law must be a history of ideas. It 
must represent, not merely what men have done and said, but 
what men have thought in bygone ages. The task of recon- 
structing ancient ideas is hazardous, and can only be ac- 
complished little by little. If we are in a hurry to get to 
the beginning we shall miss the path. Against many kinds 
of anachronism we now guard ourselves. We are careful of 
costume, of armour and architecture, of words and forms of 
speech. But it is far easier to be careful of these things than 
to prevent the intrusion of untimely ideas. In particular there 
lies a besetting danger for us in the barbarian s use of a lan- 
guage which is too good for his thought. Mistakes then are 
easy, and when committed they will be fatal and fundamental 
mistakes. If, for example, we introduce the persona ficta too 
soon, we shall be doing worse than if we armed Hengest 
and Horsa with machine guns or pictured the Venerable Bede 
correcting proofs for the press; we shall have built upon a 
crumbling foundation. The most efficient method of protect- 
ing ourselves against such errors is that of reading our his- 
tory backwards as well as forwards, of making sure of our 
middle ages before we talk about the 'archaic,' of accustom- 
ing our eyes to the twilight before we go out into the night." 



ONE of the most remarkable generalizations in 
Professor Dicey 's brilliant book, The Law of the 
Constitution, is the statement that "federalism sub- 
stitutes litigation for legislation.' 71 This statement has 
a peculiar importance in countries of which there are 
so many on the continent of Europe whose central 
institutions have in large part been consciously mod- 
elled in recent times upon those of England. Its im- 
portance is greater still in a country like our own, 
where not only central but local institutions as well 
stand to the English Constitution in the infinitely 
closer and more intimate relationship of parent and 

That there is an extraordinary amount of litigation 
here that we are a "litigious people" may be ad- 
mitted at once. It is true that constitutional matters 
of the highest concern to the people are commonly 
settled in the United States by private actions between 
individuals, matters often that would never in the 
ordinary course come before an English court of law. 

This is so well understood that illustration is unne- 
cessary, and so noticeable a part of our system that 
it has probably attracted more attention among for- 
eign observers than any other of our institutions. De 
Tocqueville was struck with awe at the power of a 


[ 3] 


court that could summon "sovereign powers to its 
bar." 1 Our Supreme Court, and it should not be for- 
gotten others of our courts as well, do adjudicate 
matters of supreme constitutional importance; but, to 
an American and to an English eye, "there is nothing 
strange or mysterious" in this. 2 For, after all, the only 
material difference between the activity of our federal 
courts and that of an English court lies in the fact that 
our courts have a constituent law to interpret; the 
English courts have none. In organization and func- 
tions they are essentially alike. 

It may be said, then, that our surplus litigation 
must be due to that constituent law, to our written 
constitution. It will be readily admitted that a written 
and a "rigid" constitution is a practical necessity in 
a modern federal state. 3 The complex machinery of 
such a composite state as the United States would be 
unworkable without it. Does it follow, however, that 
the deflection of constitutional questions toward the 
courts, here so noticeable, is the result wholly, or even 
in part, of our having a written and a "rigid" consti- 
tution? To put the question concretely: May we say 
that the power or duty of our federal courts by virtue 
of which they submit acts of Congress to the test of a 
comparison with the higher constituent law, is a power 
due to our having a written constitution? Or must we 

1 Democracy in America (tr. by Reeve), 4th ed., vol. i. p. 160. 

2 Bryce, American Commonwealth, 3d ed., vol. i. pp. 250-6. 

3 Dicey, Law of th* Constitution, p. 142. 



not say that it is due to something entirely different? 
An examination of the constitution of Switzerland or 
of the German Empire would seem to set that question 
at rest. In neither of these two great non-English fed- 
erations is the interpretation of the acts of the legisla- 
ture entrusted to the courts ; though in one of them, 
namely, Switzerland, the constituent law is marked off 
from ordinary legislation almost if not entirely as defi- 
nitely as is our own. 

It seems not true, then, that a judicial interpretation 
is a necessary accompaniment to a written constitution. 
" So far as the grounds for this remarkable power are 
found in the mere fact of a constitution being in writ- 
ing, or in judges being sworn to support it, they are 
quite inadequate." 1 If our federal judges have no pow- 
ers not common to an English judge, save the power 
of interpreting laws by the light of a higher constitu- 
tion, and if a higher constitution does not necessarily 
confer on the courts the power to interpret it; then it 
is very hard to see how federalism in itself has any- 
thing directly to do with constitutional interpretation, 
or with the settlement of constitutional questions by 
litigation rather than by legislation alone. 

And yet, in the United States, where modern fed- 
eralism has had the longest development, and in the 
greater self-governing colonies of England, where the 
federal principle is increasingly active, it is true that 
this idea of the judicial review of legislation, this liti- 

1 Thayer, Legal Essays, p. 2. 


gious attitude toward constitutional questions, is deeply 
interwoven with the political thought of the people. 
If Professor Dicey had confined his statement to feder- 
ations in English-speaking countries, it would be true; 
but true, because the countries are English-speaking, 
and not because they are organized under a federal 
system. In short, the idea of a judicial review of 
legislation, and of a constituent law as well, are in 
origin English ideas, and arise in no way from federal- 
ism itself. Their source is to be sought in English his- 
tory rather than in the conditions of modern political 

The origin and development of these ideas in Eng- 
land, and their transfer to America, where they have 
had a fuller growth than in the mother country, will 
make up the bulk of this essay. 

The beginnings of that development are wrapped 
up with the beginnings of Parliament itself. It will be 
necessary, therefore, to preface our account of a judi- 
cial review of legislation with a summary statement 
of the character of the English central assemblies in 
the period following the Norman Conquest. The accu- 
racy of any such description of the mediaeval English 
Parliament will depend mainly upon our understand- 
ing of the spirit and working of those political insti- 
tutions which we generalize under the name of feudal- 
ism. Any general description of feudalism or discussion 
of the vexed question of its introduction into England 
would be out of place here, but no adequate idea of 




the nature and activity of the English central assem- 
blies of the middle ages is possible without a brief 
consideration of the influence of feudalism upon the 
government of the Norman kings. We must, for ex- 
ample, inquire whether their rule should best be de- 
scribed as a monarchy practically absolute, or as a 
monarchy limited; if limited, whether the checks upon 
the royal power are to be looked for in a consciousness 
of nationality among the people, or merely in feudal 
immunity. These questions will naturally turn largely 
upon the constitution and powers of the early assem- 
blies. The answers to them are of three principal kinds. 
Three general theories have been held at various times 
by historians as to the character of the English mon- 
archy under the Norman kings, which may be roughly 
designated as the autocratic, the national, and the 

Of these three, Gneist may probably be regarded as 
the chief exponent in recent times of the first, or auto- 
cratic theory. With Brady and Filmer, he regarded the 
Conqueror practically as an absolute despot; for him 
the curia, which the Conqueror used for convenience, 
was neither Saxon Witenagemot nor Norman Cour de 
Baronie, but only a number of individuals whom the 
King employed to carry out his commands. "These 
conventions were not * feudal parliaments,' but only 
great councils of notables." 1 "The error lies in the pe- 
dantic interpretation which would create constitutional 

1 Constitutional History (Eng. trans, by Ashworth), vol. i. p. 292. 



bodies out of a government with changing counsel- 
lors." 1 

The "national theory," or the rather exaggerated 
form it has sometimes taken, which might better be 
called the "insular theory," refuses to see any break of 
much consequence at the Conquest. It was the ancient 
Witenagemot that continued under the Norman kings ; 
everything remained essentially English, with only a 
thin Norman or feudal veneer, most of which was put 
on not by the Conqueror, but later by such persons as 
Ranulf Flambard, of infamous memory. In the nature 
of things, this accretion must soon have worn away and 
the original, the ancient "English" constitution, have 
emerged, unchanged in any important respect by this 
temporary and foreign covering. 2 

The nature of the Curia, or central assembly, under 
this theory is definitely settled. " Our national Assem- 
bly has changed its name and its constitution, but 
its corporate identity has lived on unbroken." 3 "The 

1 Const. Hist., vol. i. p. 271. 

2 "What was the real position of a landowner of Norman descent within a 
generation or two after the Conquest ? He held English lands according to 
English law ; in all but the highest rank, he lived on equal terms with other 
landowners of English birth ; he was himself born on English soil, often of an 
English mother ; he was called on in endless ways to learn, to obey, and to 
administer, the laws of England. Such a man soon became in feeling, and be- 
fore long in speech also, as good an Englishman as if he had come of the 
male line of Hengest or Cerdic. There was nothing to hinder even one of the 
actual conquerors from thoroughly throwing in his lot with his new country 
and with its people. His tongue was French, but in truth he had far more in 
common with the Englishman than with the Frenchman." Freeman, Growth 
of the English Constitution, 4th ed., p. 73. 

3 Ibid., p. 66. 



House of Lords not only springs out of, it actually 
is, the ancient Witenagemot. I can see no break be- 
tween the two. King William summoned his Witan 
as King Eadward had summoned them before him." 1 
The feudal theory is based on the belief that in Eng- 
land, in the period of the Norman kings, feudalism 
was well established, that though those kings were 
stronger and more independent than their brothers of 
the Continent, yet they ruled under feudal conditions. 
Powerful they were, and could do things unheard of 
on the Continent, but this power in the Norman period 
was exercised under feudal forms and subject to most 
of the feudal limitations. With an army made up of 
feudal lords, the King may not have been their peer, 
but neither was he their absolute master. Their help he 
must have in war, and with this was involved their 
counsel in times of peace. But counsel was not com- 
mand and advice was not compulsion. In our modern 
constitutional systems, as Professor Dicey has shown, 
assemblies are seldom truly consultative : their advice is 
a command. A sovereign who must consult an assem- 
bly must usually obey it. It is wrong to assume that 
such must have been the function of counsellors in me- 
diaeval times; it is equally wrong to go to the other 
extreme and deny that the King was bound in any way 
or in any degree. Counsellors were a strength in peace 
because they were a necessity in war. Their advice may 

1 Freeman, op. cit., p. 62. In describing this sort of history writing Professor 
Vinogradoff has used the apt expression "retrospective nationalism." English 
Society in the Eleventh Century, p. 5, note 2. 


not always have been obligatory, but it was never neg- 
ligible ; and beyond doubt the general conditions of the 
feudal regime were felt by all, both King and lords, as 
binding upon them. " It was rather the King's privilege 
than his duty to receive counsel. ... A feudal monarch 
had to dread the isolation, not the union of his liege- 
men. ... It was only a weak or tyrannical king a 
John or a Richard II who neglected to ask counsel ; 
for the ruler who acted without the advice of his great 
men distinctly outraged the moral feeling of his day." 1 
Without such an understanding no state could have 
existed. The state thus depicted was far from an ideal 
one, but it was only obedience to such rules that pre- 
vented utter anarchy. Under then existing conditions 
an absolute despotism was as impossible as a constitu- 
tional government of the modern type. That peculiar 
thing which is neither of these was the feudal mon- 

The solution of such a problem as the character of 
the English monarchy under the Norman kings cannot 
be an easy one, because in England, as elsewhere in 
western Europe, there were diverse precedents. In Eng- 
land, there was the monarchy before the Conquest with 
its Witan; on the Continent, there were the imperial 
traditions of Charles the Great. 2 There were in fact 

1 Dicey, Privy Council, pp. 2-5. 

2 "Considere comme souverain d'institution divine, le roi est 1'unique et su- 
preme distributeur de la justice. Ses fonctionnaires ne doivent la rendre qu'en 
son nom. Tout pouvoir judiciare n'est qu'une emanation du sien. Cette theo- 
rie, realisee deja sous le gouvernement de Charlemagne, sera celle qui prevau- 

[ 10] 


everywhere, or nearly everywhere, in the midst of feudal 
decentralization precedents for a strong monarchy and 
also germs of nationality. But as yet they were germs 
only, even in England. It is an anachronism of the 
worst sort to use the word "nation" or "national "in 
speaking of England in the eleventh and twelfth cen- 
turies, unless that word is to be deprived of most of its 
modern meaning. Such may be said to be the feudal 

Of the above theories, the autocratic has probably 
had the least influence. Filmer and Brady urged it 
against the claims of the parliamentary party in the 
seventeenth century; and Gneist in the nineteenth, if 
compared with Freeman, for example, seems to have 
had few followers. 1 The national theory has had a far 
greater effect. It may almost be called the traditional 
view of early English history. It is the theory that ap- 

dra definitivement au declin de la periode feodale. Elle a toujours e"te prati- 
quee, d'une maniere plus ou moins apparente, raeme pendent les premiers 
siecles capetiens. Mais comme, a cette epoque, le roi joue aussi le role de suze- 
rain, son pouvoir judiciare s'exerce en partie, suivant la forme feodale, par 
la reunion des vassaux ou des pairs qui constituent sa cour. Ainsi que toutes 
les institutions royales de la meme periode, 1'histoire de la justice capetienne 
porte a la fois I'empreinte de la conception purement monarchique et celle de 
la coutume feodale. Au point de vue de ses attributions judiciaires, la curia regis 
est done, des 1'origine, constitute de deux elements de provenance tres diffe- 
rente : des conseillers royaux charges de juger au nom du souverain, et des 
vassaux reunis sous la direction du suzerain. Ces deux elements ont coexist^ 
de tout temps, bien que dans une proportion variable, et le progres monar- 
chique a precisement consiste a faire predominer le premier." A. Luchaire, In- 
stitutlons Monarchiques, vol. i. pp. 277, 278. 

1 Gneist of course admits that a feudal element was introduced later. It is 
only in the Norman period that he denies its influence. Becket's trial he con- 
siders the beginning of its influence on the Curia. Const. Hist., vol. i. p. 288 
and note. 

[n ] 


peals to the national pride of Englishmen, and the one 
that most of them have held more or less strongly. It 
is to be expected that the later constitutional develop- 
ment in England, so entirely different from that on the 
Continent, should lead English historians to the quite 
natural, though entirely unnecessary, assumption that 
this difference had always existed. Such a view was by 
no means unwelcome to those who believed, for exam- 
ple, that their national church had had an organization 
separate from the rest of western Europe before the 
events of the sixteenth century. It is not so much a 
wider outlook (Freeman's certainly was wide enough) 
that has changed, or seems to be changing, all this; it is 
rather that a sounder method has taken the place of the 
older one. It is beginning to be seen that men have in 
the past really advanced the cause of liberty, though 
often entirely unconscious of any such intention, or 
even when their aims were entirely selfish. The Anglo- 
Saxon freeman, proud of his liberty, and consciously 
preserving for future nations those institutions which 
England was later to hand on to the civilized world, is 
harder to see than he was twenty-five years ago. l Ra- 
nulf Flambard even has found a defender, who shows 
that many of those "feudal abuses" Flambard has so 
long been charged with were really the work of the 
Conqueror himself. 2 Simon de Montfort would hardly 
be called by a sober historian of to-day "the hero and 

1 See, for example, Petit-Dutaillis, Studies Supplementary to Stubbs's Constitu- 
tional History, vol. i. p. 127 et seq. 

2 J. H. Round, Feudal England, p. 225 et seq. 


martyr of England." 1 Such a historian would scarcely 
take the view of a fairly recent biographer, that Thomas 
Becket was a great champion of the ancient laws and 
liberties of the realm of England; 2 or hold with Thierry 
that he spent his life fighting the cause of the Saxons 
against the Normans. 3 Even the Church has not es- 
caped, and it is becoming evident that in ecclesiasti- 
cal affairs, as in others, the England of the middle ages 
was not so very unlike the rest of Christendom. 4 

To attack the traditional view of Magna Charta 
would have been almost as bad as blasphemy not so 
very long ago. In 1667 even a Chief Justice of the 
King's Bench was called to the bar of the Commons 
and forced to a humble apology for a contemptuous ex- 
pression let fall concerning it in a moment of anger; 5 
but one of the leading English historians of to-day 
says clearly that in his opinion Magna Charta was 

1 Freeman, Growth of the English Const., p. 69. 

2 R. A. Thompson, Thomas Becket, Martyr Patriot, London, 1889. 

3 A. Thierry, History of the Conquest of England by the Normans. (Translated 
by William Hazlitt, London, 1848.) 

4 See Maitland, Roman Canon Law in the Church of England, London, 1898, 
especially page 51 et seq. Referring to the famous statutes from Merton to 
the statutes of Praemunire, Maitland says : " Here, then, we may see a collision 
between the claims of the church and the claims of the state ; but there was no 
collision between the law of the church of England and the law of the church 
of Rome." Ibid., p. 54. Even Bishop Stubbs, who had presented the opposite 
view in the Report of the Ecclesiastical Courts Commission in 1883, admitted 
before his death that Maitland's position in this matter was unassailable. 
A. T. Carter, A History of English Legal Institutions, 3d ed., p. 233, note 1. 
Professor Pollard admirably sums up Maitland's contention respecting the 
English Church when he says: "But it is not so clear that the Church has 
always been anti-papal, as that the English laity have always been anti-cleri- 
cal." Henry VII I., edition of 1905, p. 233. 

5 Grey's Debates, vol. i. pp. 63, 64, 67. 



merely a class document and not the work of the peo- 
ple ; not a great landmark of constitutional progress, 
but even in certain important respects a hindrance to 
that progress. 1 

Such statements may seem too strong in the 
opinion of the writer they are too strong; but the 
.essential fact is forcing itself on men's minds that in 
1215, and before, England was feudal much as the rest 
of Europe was feudal; that Magna Charta is first of 
all a feudal document and not a national one. 2 

But no formula can fully express the life of any 
period. To say that the epoch of the Norman kings 
was a feudal period is not to exclude all elements of 
nationality, nor to deny a tendency in the monarchy 
toward absolutism. It is a matter of emphasis, and the 
emphasis has in general been put far too strongly on 
these national elements, while there has been a danger 

1 Edward Jenks, The Myth of Magna Carta: Independent Review, vol. iv. p. 260 
et seq. 

2 This view has never been stated with more force and clearness, and yet 
with caution, than by Professor George B. Adams, in an article from which 
the following is an extract : "Before 1215 in the history of English institu- 
tions, general as distinguished from local, lies nothing but the feudal system, 
modified only in the direction of a more absolute monarchy. The two fun- 
damental principles of the constitution which Magna Carta declared were 
both fundamental principles of feudalism, and were drawn directly from it in 
1215. The origin of the English limited monarchy is to be sought not in the 
primitive German state, nor in the idea of an elective monarchy or a coronation 
oath, nor in the survival of institutions of local freedom to exert increasing 
influence on the central government. Though all these were contributory, 
combined they could not alone have produced the result. The principle which 
moulds and shapes all elements into the great result came from feudalism." 
American Historical Review, vol. xiii. pp. 229-45, 713-30. The quotation is from 
page 245. See also Petit-Dutaillis, Studies Supplementary to Stubbs's Consti- 
tutional History, ch. xii. 

[ I*] 


of forgetting that nationality in anything like its de- 
veloped modern form existed nowhere in western Eu- 
rope in the early middle ages, not even in England. 

It is true also that the King in England was often 
able to make the Council more subservient by placing 
in it men who owed everything to him, and thus to les- 
sen the power of the nobility. There is, in fact, no more 
prolific cause of friction between the King and his 
barons in the mediaeval period than this. It is note- 
worthy, however, that the continued opposition of the 
barons to this practice shows that it was regarded as 
an abuse. 

Too much has often been made of the fact that the 
strongest protests against these royal favourites were 
against Gascons and other "foreigners." Native-born 
Englishmen who opposed the interests of the nobility 
were hated almost as much, and the nobility them- 
selves were willing to follow the leadership of a "for- 
eigner" at any time if he would champion their cause 
against the King, as appears in the case of Simon de 
Montfort. They were willing to follow the standard of 
a French prince if he would lead them, even against 
their own King. It was their class rather than their 
nation that attracted their loyalty. When it is really 
seen how much this long struggle between King and 
barons was a class struggle and not a national one, it 
becomes harder to be sure on which side the sympa- 
thies of a modern historian ought to be. When it was 
thought, for example, that Simon embodied simply 

[ 15] 


the national spirit against the despotism of the King, 
it was easy to be on Simon's side ; but when we see 
that it was feudal immunity rather than national well- 
being for which he was fighting, it is hard to avoid 
feeling that, after all, probably Edward, and possibly 
even Henry, was not so much in the wrong in fight- 
ing tendencies so anarchic. At the same time, we must 
always admit that these feudal immunities, the privi- 
leges of a class and not of the nation, and struggled 
for as such by the nobility, were a subtraction from 
the royal power which formed the most valuable pre- 
cedent for the later exercise of national rights when 
the nation had finally become self-conscious enough 
to assert them. The history of that change from class 
feeling to national feeling is the most important and 
the least understood thing in early English history. 1 

The most striking fact about the Council in this 
feudal period is its varied functions. It was court of law, 
advisory council, and exchequer all in one. The assem- 
bly of Tacitus shows this same fusion of judicial func- 
tions with activities which we consider totally different. 
This absence of a division of labour is characteristic of 
the feudal period, 2 and England was no exception to 
the rule. It is utterly impossible in this period, with the 

1 Hatschek, Englisches Staatsrecht, vol. i. pp. 234, 237, 238. 

2 "Ce qui caracterise la justice capetienne durant les deux siecles qui ont imme- 
diatement suivi la fondation de la dynastic, c'est Tabsence d'une organisation 
speciale. La cour du roi remplissait alors sa fonction judiciare avec la meme 
personnel, dans les raemes circonstances de temps et de lieu, que ses autres 
attributions de 1'ordre politique ou administratif." Luchaire, Institutions Mo- 
narchiques, vol. i. p. 304. 



data that we have, safely to draw any definite line be- 
tween Parliamentum, Curia, concilium ordinarium, con- 
cilium privatum, magnum concilium, commune concilium. 
Because all these names have come down to us, and be- 
cause in a later period separate bodies of men did exist 
to correspond with some of these names, it has been 
assumed that there was at the time we are considering 
a series of councils, each with its legal powers definitely 
marked off and assigned to it. This is not borne out by 
any evidence that is contemporary ; and the indiscrim- 
inate way in which contemporaries used these various 
terms indicates that they themselves drew no sharp lines 
of division. 1 Between these separate bodies that might 
be supposed to correspond to the different names, there 
seems to have existed no difference but a difference of 
function. Even this it is not always possible to find, 
and when found, it turns out to be a temporary or oc- 
casional difference arising from accident or convenience, 
not from legal definition. At some times more men 
seem to have attended the Council than at others. At 
such times it may be called the Magnum Concilium. 
That the Magnum Concilium, however, was a distinct 
body, separate in function, in organization, in rights, 
no contemporary description of it gives us the right to 
say. 2 This fusion, which we are tempted wrongly to call 

1 L. O. Pike, Constitutional History of the House of Lords, p. 40. 
2 Stubbs in his usual cautious manner seems to have discarded these distinc- 
tions. Const. Hist., vol. i. (6th ed.), pp. 406, 407. Professor G. B. Adams is more 
outspoken: "These, then, are the two essential things to have clearly in mind 
in beginning to study the constitutional history of England : that all the func- 
tions of the state were exercised by a single institution, and that the institu- 

[ H] 


a confusion of powers judicial and non-judicial, and the 
lack of demarcation between the larger and the smaller 
Council, are clearly indicated in the various official re- 
cords, when we begin to have official records, and they 
furnish the best proof of the statements made above. 
Speaking of the highest court, which we should call the 
Parliament, Maitland says: "For a while this highest 
tribunal is hardly distinct from the king's bench. Every 
plea in the king's bench is in theory a plea coram ipso 
domino rege, and the rolls of the king's bench never 
cease to be coram rege rolls. The superior tribunal is 
rather, if we may so speak, an afforced, an intensified 
form of the inferior tribunal than a separate court ; a 
plea that is put upon the parliament roll may be put 
upon the king's bench roll also; the justices of the 
king's bench are members of the council, and a case 
heard at a full meeting, a parliament, of the council, is 
heard by, among others, the justices of the king's bench. 
A plea may be adjourned from a parliament to the 

tion existed under two forms which were distinguished from each other only 
by size and manner of meeting." Am. Hist. Rev., vol. xiii. p. 13. Again he 
says: "The point of importance and difficulty is not the composition or the 
meeting of the smaller curia, but the fact that it was in rights, powers, and 
functions, the larger. It was not a committee of the larger, its powers were not 
vested in it by the larger, it was not responsible to the larger ; it was the larger." 
Ibid., p. 12. "A full meeting of the council is a full meeting of the king's 
bench, of the common bench, of the chancery, of the exchequer : it is this, 
and more than this." F. W. Maitland, Records of the Parliament of 33 Edw.I. 
(Rolls Series), Introduction, p. xlvii (hereafter cited asParl. Roll). " I have not 
come upon any contemporary and official authority which shows that the king 
has more than one council, or which qualifies the term consilium with any such 
adjectives as ordinarium, privatum, or the like." Ibid., p. xlvii, note 1. See also 
ibid., p. Ixxxviii, note 1; Hale, Jurisdiction of the Lords House, 52-4; Hat- 
schek, Englisches Staatsrecht, vol. i. pp. 233, 234. 

[ 18] 


king's bench or from the king's bench to a parliament 
without breach of continuity." 1 

What, then, were the true relations of " Council " and 
"Parliament"? Legally they were one. The Council 
could act in the name of Parliament, in fact, to all 
intents and purposes was Parliament. And yet certain 
meetings of the Council "parliaments of the coun- 
cil," Maitland calls them were more largely attended 
than ordinary meetings, though this in no way altered 
the legal status of the Council, nor gave any additional 
validity to the acts of these extraordinary sessions. 

The twelfth century had seen the beginning of the 
courts of the King's Bench and Common Pleas, or at) 
least one of them. For the reasons given, these cannot 
be sharply separated from the Council ; neither were 
they committees of the Council, nor distinct offshoots 
of it. And yet we can speak of them as existing, though 
we cannot find the exact line that legally divides them 
from the Council, and practically they were often merged 
with it. 

Now apparently Bracton knew only two central law 

1 Maitland, Parl Roll, Introd., pp. Ixxx, Ixxxi. See also Pollock and Maitland, 
Hist, of Eng. Law, 2d ed., vol. i. pp. 199, 200. The Parliament of 1305 was 
together three weeks. The Council stayed behind after the additional members 
were dismissed and did nearly all the business of the session, and yet it re- 
mained a "parliament" and was styled a "full" and a "general" Parliament. 
Maitland, Parl. Roll, Introd., pp. xxxv, xxxvi. 

"The jurisdiction of the Council over the proceedings of the King's justices 
was exercised in a manner rather resembling the authority which a tribunal 
possesses over its members, than as resulting from the subjection of one 
court to another court, distinct in function, but superior in authority." Pal- 
grave, King's Council, p. 118. See also Pike, Const. Hist, of the House of Lords, 
pp. 42, 43, and the cases there cited. 



courts, the justices de Banco and those Coram Rege. 1 
Half a century later the author of Fleta begins his 
chapter on the courts with the statement: "For the 
King has his court in his Council, in his Parliaments, 
in the presence of the counts, barons, great men and 
other learned men, where are determined the doubts 
of the judges; and when new injuries have arisen, new 
remedies are provided and justice is there meted out 
to each one according to his deserts." 2 What is this 
court which the King has "in his Council, in his Parlia- 
ments ;" what is its jurisdiction, what is its relation to the 
judges de Banco and Coram Rege, and how and when 
and why did it come into existence? Maitland believes 
that here we have a new court above the courts known 
to Bracton. "A new tribunal is evolved, or rather, 
two tribunals become three." 3 "However ancient may 
be the roots whence the jurisdiction of 'the king in his 
council in his parliaments' draws its nourishment, it is 
a new thing that men should see three different tribu- 
nals rising one above the other ; it is a new thing that 
they should see a yet higher court above that court 

1 He is apparently giving an exhaustive list of the courts, in which he men- 
tions the following : (1) " quidam . . . capitales, generales, perpetui et majores a 
latere Regis residentes ... (2) alii perpetui, certo loco residentes, sicut in banco 
... (3) alii itinerantes de loco in locum ... (4) justitiarii constituti ad quasdam 
assisas." Lib. iii. fol. 108, par. 2. 

2 "Habet enim Rex cur[iam] suam in consilio suo, in Parliamentis suis, prae- 
sentibus praelatis, com[itibus], baron [ibus], proceribus, & aliis viris peritis, ubi 
terminatae sunt dubitationes judiciorum, & novis injuriis emersis nova con- 
stituuntur remedia, & unicuique justitia, prout meruit, retribuetur ibidem." 
Lib. ii. cap. 2, sec. 1. 

Roll, Introd., p. Ixxxi. 



which is held in theory cor am ipso domino rege" 1 And 
yet, "to deny that it is the king in council is impossi- 
ble ; to deny that it is the king in parliament, or rather 
that its sessions are parliaments, is impossible." 2 

Probably the simplest explanation of this difficult 
problem is the best. It requires an effort to get rid of 
modern conceptions, but we must if we would under- 
stand these proceedings. Edward had called his great 
men together many times in the years before the 
Parliament of 1305. Occasionally he had summoned 
knights to meet with them; in 1295 he had summoned 
representatives from the towns also. It is well known 
that Edward shared his burdens with more classes of 
the people than his predecessors had done. The fa- 
mous words quoted from Justinian's Code in the writs 
of 1295, though they have often been over-emphasized, 
were not entirely an accident, "what touches all 
should be approved by all." 3 The writs of that year to 
the barons called them to treat with the prelates and 
other nobles "and other inhabitants of our realm." 4 

1 Parl. Roll, Introd., pp. Ixxxiv, Ixxxv. Holdsworth agrees with this view, 
History of English Law, vol. i. pp. 170, 171. See also Pike, op. cit., p. 43. 
2 Maitland, Parl. Roll, Introd., p. Ixxxii. 

3 "Sicut lex justissima, provida circumspectione sacrorum principum stabilita 
ortatur et statuit, ut quod omnes tangit, ab omnibus approbetur, sic et innuit 
evidentur, ut communibus periculis pro remedia provisa communiter obvie- 
tur."ParZ. Writs, vol. i. p. 30; Lords' Report on th'e Dignity of a Peer, vol. i. 
p. 212 et seq., vol. iii. pp. 66, 67 (edition of 1829); Parry, Parliaments and 
Councils of England, pp. 57, 58 ; Code 5, 59, 5 ; Stubbs, C. H., vol. ii. (4th ed.), 
p. 133, note 4, and references there cited. 

4 "Ac aliis incolis regni nostri," etc. Parl. Writs, vol. i. p. 33; Lords' Report, 
vol. iii. p. 71. 

[21 ] 


The preamble of the Statute of Westminster the First 
in the third year of King Edward I (1275) mentions, 
in addition to the spiritual and temporal lords, "la 
Communaute de la tere ileokes somons." 1 

From such examples, which might be multiplied in- 
definitely, it seems clear that at times Edward felt the 
need of help, financial or otherwise, from new classes 
of the people. In such cases they were summoned to 
his "Parliament." But Parliament could exist equally 
well without them. Their presence was in no sense ne- 
cessary in order to give legal validity to its acts. Petitions 
were, in fact, often granted before they came to the ses- 
sion, 2 ordinances were sometimes made after they had 
gone home, 3 cases were heard and determined in their 
absence ; and yet these acts were all done in Parliament, 
in a "full" or "general" Parliament. 4 In other years the 
Parliament was a complete one, though these addi- 
tional members never came at all. When they did come, 
however, they seem to have been a constituent part of 

And now r we must make an attempt at an expla- 
nation of these seeming contradictions. In the years 
closely following the Conquest the administration of 
the law was not differentiated from other administra- 

1 Statutes of the Realm, vol. i. p. 26. There is a list of such statutes in Prynne, 

Brief Register, vol. i. p. 383 et seq. 

2 Maitland, Parl. Roll, Introd., p. Ivii. 

3 Ibid., pp. xxxv, xxxvi; Lords' Report, vol. i. p. 261. 

4 Maitland, loc. cit. ; Parry, Parliaments and Councils of England, p. 65, 

note h. 



tion. The Council could attend to all. It was a council 
of notables not specially trained. Law was not technical 
enough yet to require that. The members of the Coun- 
cil were great nobles, except where the King was strong 
enough to add to their number a colleague of humble 
origin more subservient to himself. 

Increase of business, with its routine, its formalities, 
and its consequent technicalities, in time made this no 
longer practical. A change was sure to come, and it 
was greatly accelerated by the reforms of Henry II. - 
A division of labour was inevitable. Official routine and 
the growth of precedent would naturally follow ; the 
officials would become permanent and men trained in 
their office. It was probably thus that the separate 
courts with their trained judges in time emerged. 

But the old theory remained. These courts were still 
the Council, their acts were its acts, their judges were 
its members; and, on the other hand, any of the mem- 
bers of the Council might on occasion sit as judges in 
the courts. In practice, however, we find that the or- 
dinary business of the courts was usually ended in the 
court where it originated and without outside assis- 

Therefore, though the old theory remained, though 
the Council was the court and the court was the Coun- 
cil, in practice the whole Council would probably be 
actually called in only in extraordinary cases, in cases 
of difficulty where the judges felt the need of having 
their opinion strengthened by their fellow council- 



lors, 1 or where there was no rule in existence to guide 
them in their decision. 2 This is no "court of appeal" in 
our sense. The idea of an appeal is too refined for those 
facts. About all we can say is that at times the judges 
of the Bench or Coram Rege felt the need of help in 
difficult or new cases. The whole Council in such cases 
would assist in the decision, and yet there was no sharp 
division in theory between the court alone and the 
court plus the Council sitting in this capacity. But 
such practices, long enough continued, actually change 
the theory itself, when men have forgotten the previous 
state of affairs. And it may well be that in the half cen- 
tury between Bracton and Fleta, the continuous prac- 
tice had at length led to the feeling that in some way 
the Council was a separate and superior court to the 
judges de Banco and Coram Rege? The line between 
them could not be accurately drawn, for in strict legal 
theory it did not exist, and hence Fleta is very vague 
in his description; but the theory was undergoing a 
change, nevertheless. 

In all this, however, it must be kept in mind that 
the ultimate source of all these divisions and the basis 
of the authority of all whether we mean the judges 
de Banco Regis or Coram Rege, or speak of the whole 
Council, now viewed in the new sense of a court of 

1 Fleta, as we have seen, describes the Curia as the place "ubi terminatae sunt 
dubitationes judiciorum." Ante, p. 20 and note. 

2 "& novis injuriis emersis nova constituuntur remedia." Ante, p. 20, note. 

3 On this subject see The Beginning of the King's Council, by Professor James 
F. Baldwin, in Transactions of the Royal Historical Society (New Series), 
vol. xix., especially sec. 3, p. 47 et seq. 

[24 ] 


higher dignity and authority than these lay in the 
ancient jurisdiction of the Council itself; and that the 
Council, in theory if not always in practice, was identi- 
cal with every one of these bodies. 

Then came the changes mentioned above. New 
classes were called in to assist the King with counsel 
or money. There was in existence, however, but one 
assembly, and, therefore, though these new classes 
might give their money as separate orders and might 
meet apart from the others in doing so, yet in obey- 
ing the King's summons they had to become a part, 
and they did become a real and a constituent part, 
of that one assembly, the Parliament ; but the core 
of this assembly remained the Council, "The King's 
Council in his Parliament." 

The Rolls of Parliament show that a large part of 
the work of the "Parliament" was what we should call 
"judicial," consisting of those cases that had proved 
too hard or too novel for the judges in the separate 
courts. Obviously this would be no kind of business 
for the untrained "aliis incolis regni." So the cases 
were settled before these came to give their advice or 
their money, or were left until they had gone home 
again. As the bulk of early "legislation" if we may 
use such a term was only "no vis injuriis emersis nova 
. . . remedia," limited in amount and exceptional in 
character, most of the business of a session must have 
been of such a nature that it could be done only by 
"The King's Council in his Parliament." Thus the 

[25 ] 


"Commons," when we find a Commons, may have 
lent their authority to Parliament, but in practice at 
first had but little influence over much of its activity. 
This explanation, though in part conjectural, may serve 
in some degree to remove the apparent inconsistency 
resulting from the indiscriminate use by contemporary 
writers of such terms as Consilium and Curia Regis 
for so many different things. 1 

Undoubtedly one reason why we cannot get a 
clearer-cut picture of the great central courts at this 
time is the indefiniteness that we find in the names 
employed to designate these courts and their activities 
in contemporary accounts and records, an indefinite- 
ness in words which is only proof of the indefiniteness 
of the thought of the men of that day, and an indica- 
tion of a corresponding absence of special organization 
in the institutions they described. It is next to impos- 
sible to define such institutions exactly without making 
the definition untrue to the facts. In a picture of the 
institutions of mediaeval times we must be satisfied 
with hazy outlines. If in such a picture we demand all 
the sharpness of figure and detail that we might rea- 
sonably expect when modern institutions are described, 
we deceive ourselves ; for such details can be supplied 
at this late day only by giving words a sense definite 
it may be, but one that they never had in the minds 
of the men that used them. The result may be artistic: 

1 Stubbs, C. H., vol. ii. pp. 260, 261; Pike, Const. History of the House of Lords, 
pp. 47, 48. 


:o. :n 



it will not be truthful. This is but to paraphrase the 
words of the late Professor Maitland: "If we speak, 
we must speak with words ; if we think, we must think 
with thoughts. We are moderns, and our words and 
thoughts can not but be modern. Perhaps, as Mr. 
Gilbert once suggested, it is too late for us to be early 
English. Every thought will be too sharp, every word 
will imply too many contrasts. We must, it is to be 
feared, use many words and qualify our every state- 
ment until we have almost contradicted it. The out- 
come will not be so graceful, so lucid, as Maine's 
Ancient Law." 1 

As an example of this indefiniteness in words, take 
the word Parliament, to which we attach such a defi- 
nite meaning. It meant nothing more in the mouths 
of mediaeval Englishmen than any meeting for speech 
or conference. 2 This might be a conference held by 

1 Township and Borough, p. 22. 

2 See Harrington, Observations on the Statutes, 2d ed., pp. 58,59; Brady, In- 
troduction, pp. 71-3; Twysden, Government of England (Camden Society), 
p. 136. Twysden uses the word himself in this sense. "Who so observes the 
scope of this, the severall instructions given to the privy counsell and judges 
(for they went generally together as persons intrusted in the government of 
the state) by sundry parlyaments too long to bee heere repeated, may easily 
discerne a care taken to preserve the rights of monarchy, "etc. (p. 114). Mait- 
land sums it up in his usual incisive way in speaking of the early petitions 
in Parliament: "Parliament, or 'a parliament,' is not conceived as a body 
that can be petitioned. A parliament is rather an act than a body of persons. 
One cannot present a petition to a colloquy, to a debate. It is but slowly that 
this word is appropriated to colloquies of a particular kind, namely, those 
which the king has with the estates of his realm, and still more slowly that 
it is transferred from the colloquy to the body of men whom the king has 
summoned. As yet any meeting of the King's Council that has been solemnly 
summoned for general business seems to be a parliament." Parl. Roll, In- 
trod., p. Ixvii. "The personification of Parliament which enables us to say 

[27 ] 


the King of England with a foreign king or one with 
his own men. After it came into use, the word for a 
while was interchangeable with colloquium, which is 
usually found instead of it in the earlier records. When 
the full meaning of this is considered, it becomes evi- 
dent what a host of modern ideas crowd upon us when 
we use the word Parliament. It is at once seen that 
the word can be used of the Council with no necessary 
implication of representation, or of legislation in the 
modern sense. Brady makes much of this point in 
his argument with Petyt, and his reasoning seems 
unanswerable. It is not strange, under these circum- 
stances, that we have difficulty in determining the 
exact nature of the court that the King had "in his 
Council in his Parliaments." 1 

The first strictly contemporary mention of the word 
Parliament as a name for the common council of the 
realm seems to have been by Matthew Paris for the 
assembly of 1246; 2 while the first use of the word in 

that laws are made by, and not merely in, parliament, is a slow and subtle 
process. ... As to the word 'council,' it is important to remember that in 
the middle ages no distinction was or could be drawn between 'council' and 
'counsel;' both were consilium." Ibid., p. Ixvii, note 1. Wykes, under the 
date of 1261, speaks of the King's fearing his barons, "quod recusabant cum 
eo parliamentare " (Annales Monastici, Rolls Series, vol. iv. p. 129 ; Hody, His- 
tory of Convocation, p. 357), using the word in a general sense, as Chaucer 
does later : 

"O cruel goddes, that governe 
This world with binding of your word eterne, 
And wryten in the table of athamaunt 
Your parlement and your eterne graunt." 

The Knighte's Tale, lines 445-8. Cf. Troilus and Criseyde, book iv. line 143. 
*Pike, Const. Hist, of the House of Lords, pp. 4T, 48. 
2 Chron. Maj. (Rolls Series), vol. iv. p. 518 ; Hist. Anglvrum (Rolls Series), 



any act or statute was in the preamble of the Statute 
of Westminster the First (3 Edward I). 1 After this the 
use of the word gradually became general and in time 
it became the usual name for the estates of the realm, 
having a definite meaning as it has to-day. 

An equally instructive example of the indistinctness 
of the meaning of words is the word curia, or its French 
and English equivalent, court, the most comprehensive 
of all the terms applied to the early councils. Origi- 
nally a garden or enclosure, a meaning that it still re- 
tains, the word then came to mean the meeting of the 
lord's vassals that was habitually held in his enclosure, 
whether garden or hall. Any meeting of such a formal 

vol. iii. p. 5 ; Hody, History of Convocation, pp. 326, 327 ; Stubbs, C. H., vol. i. 
p. 611 and note 2. Parry (p. 33, note) mentions John of Brompton as using the 
word "long before," but as the chronicle bearing that name was probably not 
written before the middle of the fourteenth century, that case may be dis- 
missed. Prynne notes the fact that though Matthew Paris uses the name five 
or six times for the years 1246-7, he never uses it anywhere else before or 
after. Brief Register, vol. i. p. 401. (This is the final chapter in volume i. of the 
Register, but the paging seems to be wrong.) See also Parry, p. 72, note t>. 
1 Statutes of the Realm, vol. i. p. 26 ; Prynne, Brief Register, vol. i., final chapter. 
See also Stubbs, C. H.,voL i. p. 611 and note 2 ; Gneist, C. H., vol.i. p. 320, note ; 
Hody, Convocation, pp. 326-8; Hearn, Government of England, pp. 261-3. The 
famous assembly that met at Oxford in 1258 is called by the King a " Parlia- 
ment" in his letters of safe conduct to the envoys of Llewellyn (Rymer's 
Foedera, book i. part ii. p. 38, Hague edition); Lords' Report, vol. i. p. 99. 
Earlier still, in a writ of the 28th year of Henry III, directed to the sheriff of 
Northamptonshire, the word Parliamentum was used of the great meeting at 
Runnymede in 1215. Petyt, Rights of the Commons Asserted, p. 33; Brady, 
Introduction, p. 71 ; Lords' Report, vol. i. p. 461 ; Stubbs, C. H., vol. i. p. 611. 
Prynne gives a very complete catalogue of the early mentions of the word, 
both officially and unofficially (Brief Register, vol. i., final chapter) ; see also his 
Observations on Coke's Fourth Institute, p. 2. The early uses of the word on the 
Continent are given by Du Cange, s. v. Parliamentum. Cf. also Stubbs, C. H. t 
vol. i. p. 611 and note 2; Luchaire, Institutions Monarchiques, vol. i. pp. 253, 
254 and notes, p. 305 and note 3. 



kind would be a "court," whatever the character of 
its business might be. "At first this body is not a ju- 
dicial body at all, in the modern sense," says Professor 
Jenks; "it is the Court at St. James', rather than the 
Court at Temple Bar. It is merely the household of a 
great potentate, in which the affairs of interest to its 
master are discussed." 1 In fact, its business was both 
judicial and legislative, for it discussed questions of all 
kinds; and yet, strictly speaking, it was neither, for 
there was no clear distinction then made between "le- 
gislative" and "judicial." The absence of distinction is 
only another proof of the absence of special organi- 
zation. To this day we retain the same indefiniteness of 
meaning noted by Professor Jenks, when speaking of 
the Court of St. James and the Courts at Temple Bar. 
We shall see what a part this vagueness of meaning 
played at a later stage in English history, when we find 
men asserting that the law of Westminster Hall is not 
the same as the law of the High Court of Parliament. 2 

1 Law and Politics in the Middle Ages, p. 134. 

2 On the history of the word court see the dictionaries of Littre, s. v. Cour; 
Du Cange and Spelman, s. v. Curia; New Oxford Dictionary, s. v. Court. 
The "t " which is found at the end of the early French form of the word shows 
that it is derived from the low-Latin cors or cortis, which is nothing but a 
contracted form of cohors, a garden or enclosure, a word related possibly to 
hortus. Later men began to translate cour or court into curia, in their written 
documents. This change does not seem to have brought much alteration of 
meaning, except that it obscured the humble origin of the word and tended 
to bring into it some of the juristic ideas of Rome. Instances of the original 
meaning of the word court are to be found among English documents. Thus in 
a charter of King Stephen we find the expression, "Curia et Domus Regiae." 
Madox, History of the Exchequer, ch. i. sec. ii. (vol. i. p. 2, in edition of 1769). 

The word aula, which was employed in mediaeval England along with curia, 
furnishes another instance of this same vagueness. Aula, like cortis, meant 

[ 30 1 


Two classes of men in the King's Court in his Coun- 
cil in his Parliaments need to be noted especially, 
the barons, including the bishops, and the judges. 

The distinction between the nobles and the judges, 
as we have seen, grew up gradually as the growing 
intricacy of the law slowly but surely substituted for 
untrained nobles in the King's courts men whose sole 
claim to the office was their knowledge of the law. 
For long, both classes deliberated together in the Coun- .. 
cil ; but in time the disparity of rank made itself felt. 
The narrowly trained judges were, or were believed to 
be, unfit to counsel the King on great matters of policy, 
and we find at length that they have become mere 
advisers. They are still members of the Council, their 
technical knowledge is necessary especially for the ju- 
dicial work, but the acts of the Council are no longer 
their acts. They give their advice, and the nobles fol- 
low it or not as they wish. The judges are still legally 

an enclosure or hall, and was used of the meetings of the lord's men held there 
exactly in the same way that the word court was used. The barbarous halla 
was also manufactured from the Saxon heall to mean the same thing, but it 
was not applied to the central assembly. The promiscuous use of words such 
as tractatus, colloquium, parliamentum, etc., shows that there was as yet no 
official name for the central "court." Another word that proves the indefi- 
niteness of the functions of the king's ministers is the word justiciarius. It is 
beyond question that the early capitalis justiciarius had functions of the most 
varied kind, as varied, in fact, as those of the King himself. Even the other 
and lesser justiciars for a long time after the Conquest were general admin- 
istrative officers rather than the "justices" which some of them in time be- 
came. It is evidently in this more general sense that Hoveden uses the word 
in reference to events of the year 1191 : "Et eodem die comes Moretonii, et 
archiepiscopus Rothomagensis, et alii regis justitiarii, concesserunt civibus 
Londiniarum habere communam suam." Vol. iii. p. 141 (Rolls Series). See Spel- 
man, Glossary, s.v. Justitia ; Du Cange, Justitiarius. 

[31 ] 


summoned as members, but have become in reality 
very nearly the same as the Crown's legal advisers of 
modern times. The history of the change is very hard 
to trace. I cannot find that it has attracted much atten- 
tion, and yet it seems to me a very important matter. 
For so long as the judges were a constituent part of 
the Council, so long as they had an equal right of delib- 
erating with the barons, we can draw no line between 
tHe Council and the Parliament. But so soon as these 
men of the law are excluded from the decision of ques- 
tions at issue and brought in merely as advisers, a line 
begins to appear between these two bodies. If we knew 
when the two classes of members ceased to have equal 
powers in the Council, we should have an approximate 
date for the separation of the Parliament and Council, 
and thus for the beginning of the jurisdiction of the 
~House of Lords as such. For the most easily marked 
distinction between the House of Lords and the Coun- 
cil in these early days seems to be that in the Lords' 
House the judges advised only; in the early Council 
they both advised and voted. Of course when the 
division was once made, the difference between the 
Council and the Parliament increased, and yet even 
to the end of the Tudor period the difference is not so 
great as we are likely to think, as is attested by the 
activity of the Council in legislative as well as judicial 
matters throughout Elizabeth's reign. When the juris- 
diction of the Council ended and that of the House of 
Lords began is one of the unsolved questions of early 



English history, 1 but we have not gone far enough 
even to state the problem correctly until we grasp the 
fact that it was the voting or not voting of the judges 
that made a great part of the difference. 

Prynne argues elaborately that the councillors were _ 
"no essential members of the Parliaments or Great 
Councils of England." 2 Their functions as mere advis- 
ers he believes to be characteristic of them even from 
the beginning. Sir Matthew Hale, on the other hand, 
thinks that originally the judges had a voice. 3 Much- 
has been made by Prynne and others of the difference 
between the form of summons to the judges and that to 
the barons. The writ to the judges summoned them to 
treat "cum ceteris de consilio nostro" or "cum proceri- 
bus," etc. ; while in the case of the barons it was "cum 
ceteris praelatis, proceribus," etc. On account of the ab- 
sence of the ceteris before proceribus in the writ to the 

1 The Lords Commissioners were unable to answer the question. " When this 
jurisdiction ceased to be exercised by the Sworn Council of the King, and the 
part of it which remains was transferred to the Lords Spiritual and Temporal 
in Parliament assembled, the Committee have been unable to discover." Re- 
port on the Dignity of a Peer, vol. i. p. 296. The commissioners here seem to think 
that an actual "transfer" of the jurisdiction must have taken place. If Par- 
liament and the Council were originally one, it is hardly proper to speak of 
a "transfer." See also Parry, p. 92 and note g. 

2 Brief Register, vol. i. p. 361 et seq. 

3 "But as to their suffrages in point of judicature in the lords house, it should 
seem by the many instances inter placita parliament* tempore E. 1. some 
whereof are before mentioned, they had their voices and suffrages therein. 
But about the time of E. 3 they began to be but in nature of assistants or ad- 
visers, and the authoritative and judiciary power rested in the lords house, 
which what it was we shall hereafter see." Jurisdiction of the Lords House, 
p. 59 ; see also pp. 155,156. Apparently Lord Hale here refers to judicial mat- 
ters exclusively. It will become apparent later, however, that in the earlier 
history of Parliament this line cannot be drawn definitely. 

[33 ] 


judges it has been argued that the judges were not a 
constituent part of the Council. But the writs varied 
from time to time, and their forms were hardly rigid 
enough, in the earlier period of which we are speaking, 
to bear so large an argument. 1 Aside from the writs 
there is little to give us any light on this important 
problem. 2 

To this statement, however, one important excep- 
tion must be made. A study of the councillors' oath 
has brought out some facts which tend to bear out the 
conclusions of Lord Hale. The first mention of such 
an oath is found by Professor Baldwin, whom I am 
following here, in 1233, and references occur fairly 
frequently in the following years. Apparently the same 
oath was taken by the justices in common with the 
other members of the Council in the time of Edward I. 

"Under Edward I, "says Professor Baldwin, "prob- 
ably most of the justices and barons of the exchequer 
were sworn as members of the Council. . . . From this 
time the justices and barons of the exchequer, while 
holding close advisory relations with the council, evi- 
dently became distinct and separate from it. The coun- 
cillor's oath ceased to be taken by them, as oaths of 

1 An account of some of the changes in the writ is to be found in Hale, 
Jurisdiction of the Lords House, pp. 11-13. See Stubbs, C. H., vol. iii. (5th ed.), 
p. 406. Filmer sees no essential difference between the writ to the barons and 
that to the judges. Freeholders 1 Grand Inquest, p. 56. There is a case in Parlia- 
ment cited by Hale from the reign of Edward III, where the judges are spoken 
of together with "aliis proceribus et magnatibus de consilio domini regis." 
Jurisdiction of the Lords House, p. 53. 
2 See Note A at the end of this chapter (p. 39). 



their own offices were devised which were in large part 
germinations from the earlier one. . . . By the twentieth 
year of Edward III, therefore, the justices are clearly 
distinct from sworn members of the council, and 
from this time the settled relation to the council of the 
justices of both benches, the serjeants-at-law, and the 
barons of the exchequer was that of advisers or asses- 
sors, who were summoned on occasion by authority of 
the council. It was furthermore enjoined repeatedly by 
ordinances of parliament that the council should sum- 
mon these advisers in all legal questions, and that the 
justices should not fail to attend and to render their 
services." 1 

Though the judges lost their right to consent, their 
advice continued to have great weight in the delibera- 
tions of Parliament down to the present day. 2 

"With the reign of Richard II," says Professor 
Dicey, "the Council's period of growth closes. Before he 
reached the throne, the character of English institu- 
tions had become permanently fixed." 3 But in the sys- 
tem so fixed, the Council was an important factor, and 
in the Council the judges always took a very important 
part. They were consulted by the judges in the lower 
courts on doubtful or difficult cases; in the great par- 
liamentary trials they took a foremost part; they as- 

. Hist. Rev., vol. xxiii. pp. 3, 4. See the references there cited and the 
article as a whole ; also another article by the same author (ibid., vol. xxi. 
pp. 6, 7), with references cited. 

2 Ibid., vol. xxiii. pp. 4, 5. 

3 Privy Council, pp. 23, 24. 



sisted in all legislation ; in fact, as we shall see, for a 
considerable time the houses of Parliament were con- 
tent to lay down the bare principles they wished to em- 
body in the statutes, and the drafting of the acts was 
entirely in the hands of the Council. It was one of 
these judges of the Council who had announced the 
deposition of Edward II ; it was another who declared 
that Richard II had forfeited his right to the crown; 
and in 1401 one of the judicial members of the Coun- 
cil opened the Parliament instead of the Chancellor. 1 
"And to say the truth," Lord Hale declares, "although 
much of the antient power, jurisdiction, and consis- 
tency of the consilium regis is altered by the process 
of time and several acts of parliament, . . . yet, in the 
great court of parliament, at least the figure and model 
of the consilium regis and the persons whereof it con- 
sisted is to this day preserved in the lords house in 
parliament," 2 a statement that is almost as true in 
our day as it was in Hale's, for the judges are still sum- 
moned to the House of Lords and are assigned places on 
the woolsacks. It was established in the case of Daniel 
O'Connell, in 1844, that upon all cases coming before 
the lords by appeal, the law lords only should take part, 
which, together with the legislation of recent years, re- 
stores a certain measure of the ancient judicial powers of 
the judges in "The King's Council in his Parliaments." 
In 1593 the Queen through the Lord Keeper de- 

1 Stubbs, C. H., ch. xx. sec. 431. 

2 Jurisdiction of the Lords House, p. 58. 



clared to the Parliament that " she misliked also that 
such irreverence was shewed towards privy counsellors, 
who were not to be accounted as common knights and 
burgesses of the house, that are counsellors only dur- 
ing the parliament; whereas the other are standing 
counsellors, and, for their wisdom and great service, 
are called to the council of the state." 1 The power of 
advice that resided in the Council had, as Lord Hale 
says, "a double respect: one to the lords, to assist and 
advise them in passing bills ; another to the king, when 
the bill passed both houses, to give the king their 
opinion touching such questions as should be by him 
or for him moved in council touching the same." 2 

In the activity of the Council after it became a sep- 
arate body, which probably occurred before the time 
of Richard II, in whose reign its separate records be- 
gin, we have no interest here save for its influence on 
Parliament. But it is sufficiently clear, after a study of 
the Tudor period, that both in and out of Parliament 
the Council was then one of the most important or- 
gans of the government, if not the most important. In 
fact, it was not overshadowed by Parliament until the 
unwonted activity of the latter under the Stuarts. It 
was by no means an accident that one of the first acts 
of the Long Parliament was the abolition of the Court 
of Star Chamber. 3 

*ParL Hist., vol. i. p. 891.' 

2 Jurisdiction of the Lords House, p. 80. 

3 For the importance of the Council in Parliament from Edward III to the 
present time see, generally, Hale, Jurisdiction of the Lords House, chs. ix., 



By the fourteenth century, then, we may say that 
the machinery of the English government was prac- 
tically complete, separate courts of law, a court of 
chancery, a council with important functions separate 
from Parliament, the House of Lords the highest ju- 
dicial body in the state, an elective commons whose 
assent was necessary to legislation, etc.; though of course 
great changes were yet to occur within nearly all of 
these and in their relations to each other. 

It remains to look back over this period and note 
some characteristics of the work of the Council and of 
the Parliament. 

xiii., xxvii. ; Prynne, Brief Register, part i. p. 383 et seq.; Holdsworth, 
H. E. L., vol. i. ch. vi.; Stubbs, O. H., vol. iii. pp. 461, 462 ; Dicey, Privy Coun- 
cil, parts ii. and iii. ; May, Parliamentary Practice, 9th ed., pp. 56, 57, 253 et seq. 
(the ninth edition is the last one which appeared in the author's lifetime); 
Macqueen, House of Lords and Privy Council Practice, chs. iii. and xxii. ; Lowell, 
Government of England, vol. ii. pp. 464, 465 ; The Privy Council under the Tu- 
dors, by Lord Eustace Percy (Oxford, 1907); Proceedings of the Privy Council 
(ed. by Sir Harris Nicolas); Acts of the Privy Council (ed. by J. R. Dasent). 




(Page 34) 

THE Lords Commissioners thought that possibly the second year of 
Edward III may have marked the beginning of the change by which 
the judges ceased to be equal with the other members in the Coun- 
cil, because in that year for the first time in the title of the placita 
they are declared to be "in presentia domini regis procerum et mag- 
natum regni in parliamento suo;" thus seemingly indicating that the 
lords spiritual and temporal alone are meant. Lords' Report, vol. i. 
p. 296; Parry, p. 92, note g. The argument is based entirely on the 
supposition that the Council and the Parliament were separate in 
those early times and had been so before this date, a view which 
I believe to be unsupported by the facts. 

The famous case of Judge Tresilian, in the reign of Richard II, 
shows that at that time the judges had become mere advisers, but 
that the old order may have been recent enough to be remembered. 
Briefly stated the circumstances were as follows: In 1386 the "Lords 
Apellant" had impeached Michael de la Pole, Richard's Chancellor, 
for his support of the royal prerogative against them. In the next 
year the King summoned the judges and demanded their opinion 
of the legality of the Chancellor's condemnation of the year before. 
Tresilian and the other judges at that time gave it as their opinion 
that if the case were again before them, "the same justices and ser- 
jeant would not give the same judgment, because it seemed to them 
that the same is revocable as erroneous in every part." Then fol- 
lowed the period of the domination of the baronial party, during 
which Tresilian and others were condemned and executed. By the 
year 1398, however, the King was again in control, and in the Par- 
liament of that year (21 Richard II) questions were again put to the 
judges concerning de la Pole's condemnation, whether he had really 
been guilty of treason, and whether the previous answers of Tresilian 
and his colleagues concerning the matter were proper answers or 
not. When asked what they thought of those answers, "Sir Thomas 
of Skelton learned in the law and William Hankeford and William 
Brenchley, the king's sergeants, being demanded by the king, of 
their advice in this behalf, said, That the answers were good and 
lawful. And that they would have given the same answers, if the said 



questions had been demanded of them. And my lord William Thirn- 
ing, chief justice of the common bench, said, That the declaration of 
treason not declared, belongeth to the parliament; but if he were a 
lord or a peer of parliament, if he had been demanded, he would have 
said in the same manner. And in like manner, said my lord William 
Rikehyl, justice of the common place, and after the coming of my 
lord Walter Clopton, chief justice, he said in the like wise." On the 
strength of these opinions the Parliament adjudged the answer of 
Tresilian "juste bone & loiale," and the condemnation of de la Pole 
erroneous and revocable, and proceeded at once to reverse the sen- 
tence against him. (Statutes of the Realm, vol. ii. p. 104; Rot. Parl, 
vol. iii. p. 358 ; Selden, Judicature in Parliament : Works, vol. iii. columns 
1649, 1650.) The translation here given is Selden' s, but the italics are 
not his. 

In times of such disorder, too much reliance cannot be put on 
such proceedings as precedents, but Selden thinks that Tresilian was 
"much mistaken" because here he was expected to give his advice, 
not his consent, "and yet he saith, he gave his consent" This ques- 
tioning of the judges in the Parliament of 21 Richard II was a formal 
proceeding in Parliament, not a private consultation, for it is set down 
at length on the Parliament Roll, and as a result of it the condem- 
nation of de la Pole was reversed by Parliament. There is no doubt 
that at this time the judges could properly advise, but could not con- 
sent. The cautious answer of the justices is evidence either that they 
knew this, or that they anticipated a possible return of the baronial 
party. The less cautious answer of the Serjeants, while it may indi- 
cate nothing more than a desire on their part to ingratiate them- 
selves with the King, may, on the other hand, have been induced, 
partially at least, by a recollection or a tradition of a time when the 
judicial members of the Council could consent as well as advise. The 
whole incident may be meaningless, for the times were revolution- 
ary; but Selden, at least, did not consider it meaningless, and any- 
thing is welcome that will throw any light on the transformation of 
the jurisdiction of the Council into that of the House of Lords in 
Parliament. As to the judges in the Council in Parliament, see above 
all the valuable series of articles on the Council by Professor James 
F. Baldwin. Royal Hist. Society Transactions, N. S., vol. xix. p. 27 ; Eng. 



Hist. Rev., vol. xxi. p. 1; Am. Hist. Rev., vol. xi. no. 1 ; also The Court of 
Star Chamber, by Cora L.Scofield, pp. xxvi, xxvii; Hatschek, Englisches 
Staatsrecht, vol. i. p. 239 ; and Note A at the end of chapter iii., on 
page 247 of this volume. 



The Fundamental Law 

E1GISLATION is distinguished from other sources 
of law mainly by the fact of its "deriving its 
authority from an external body or person." 1 Of law- 
making of this kind there was very little in mediaeval 
England. If we run through the various forms of law 
from the dooms of Ethelbert or Ine, 2 through the char- 
ter of the Normans, the assize of the earlier Angevins, 
through those great transitional documents such as 
Magna Charta or the Provisions of Oxford, through 
the statutes of Edward I, the petitions of the Com- 
mons, and finally the bills deriving their authority from 
their enactment "by the King our Sovereign Lord, 
with the Assent of the Lords and Commons in Parlia- 
ment assembled," if we pass all these stages in review, 
it seems that the last stage appears only in times that 
are almost modern, and also that even after it has 
appeared, the activity of the legislature is greatly re- 
stricted up to comparatively recent times. In mediaeval 
England legislation in its proper sense was all but un- 
known. Laws in feudal times are in the main declara- 
tions of existing custom ; they are, as Professor Jenks 
says, "not enactments, but records." 3 When on a feudal 

1 Maine, Ancient Law (Pollock's ed.\ p. 28. 

2 These forms are summarized in Stubbs's Lectures on Early English History, 
pp. 297, 298. 

3 Law and Politics in the Middle Ages, p. 61. 


manor there was doubt as to the existence or char- 
acter of a custom of the manor, the question was set- 
tled by an inquest, the enquete par tourbe. There 
was no declaration of a new law by the lord or by the 
suitors ; the suitors on oath simply declared what the 
existing custom of the manor was. 1 Thus, to use Mr. 
Jenks's phrase, it was characteristic of all feudal law 
that it was "the law of a court." 2 So in England, as in 
the rest of feudal Europe, not only the laws of the 
local feudal units, but the laws of the King as well, 
were the laws of a court. Indeed it was mainly that 
which made the King's law "common;" for it could 
become so in those times only through the agency of 
courts whose jurisdiction extended over the whole king- 
dom or nearly so. 3 It was undoubtedly the procedure 
in these courts called despotic, without a doubt, by 
the barons of the day which must be considered as 
the most potent factor in the development of the Eng- 
lish Common Law, a procedure by which cases were 
drawn on one pretext or another from the lords' courts 
to the King's, by fiction of a failure of justice, by in- 
ducement of the Grand Assize or some other form of 
the inquest, or even without any fiction or inducement 
at all. Thus by force and by offering a justice that was 
quicker, surer, and more impartial, the King's courts 
through the various royal writs drew away from the 

1 Jenks, op. cit., p. 23; Esmein, Histoire du Droit Franqais, 4th ed., pp. 720, 
721 ; Brunner, Die Entstehung der Schwurgerlchte, p. 385 et seq. 
2 Op. cit., pp. 24, 25. 
id., pp. 35-7. 



manorial and even from the old local courts the trial 
of the most important causes. What was most effec- 
tive to make the law administered in the King's courts 
"common" was the uniformity of the procedure that 
thus prevailed throughout the kingdom. The substan- 
tive law was mainly custom, declared, not created, and 
not to be essentially altered ; but how declared as the 
"common" custom of the realm by the King's judges. 
Most of the changes that were actually and consciously 
made were effected by means of instructions or "assizes" 
issued to the judges by the King, and were mainly 
alterations in procedure. Of the ordinance creating the 
Assize of Novel Disseisin, "which was in the long run 
to prove itself one of the most important laws ever 
issued in England, we have not the words;" 1 the exact 
dates of the ordinances for the Assize of Darrein Pre- 
sentment and the Grand Assize a corner-stone of early 
English real property law are unknown. 

Nevertheless, the "assizes" about exhaust the sur- 
viving "legislation" of the Norman and early Angevin 
period, a period second to none in importance in the 
development of English law. 

The Common Law was thus in the main the product 
of a court, not of a legislature, and its development was 
brought about through activities that are more accu- 
rately described as judicial than as legislative. 

As in the local feudal courts we find the customs of 

1 Pollock and Maitland, History of English Law, 2d ed., vol. i. p. 146. For a 
general statement of this subject, see Pollock and Maitland, or Holdsworth, 
History of English Law, vol. i. 


4" V\ 1 TV* fl 


the manor, or the special customs of the district " de- 
clared," so likewise even in the great feudal central 
court of the King in his Council, the customs of the 
realm were "declared" also; on one occasion, it is said, 
by twelve men upon oath "nil pretermittentes, nil pre- 
uaricando commutantes," 1 or, as it occurs in another 
text, "nil pretermittentes, nil addentes, nil preuaricando 
mutantes." 2 

Another famous instance, and this time a well 
attested one, of the use of what may be called an in- 
quest, to declare the custom of the realm, is at Claren- 
don in 1164, when Henry II caused to be written down 
a "recordatio velrecognitio of a certain part of the cus- 
toms and liberties and dignities of his ancestors." 3 

1 This passage is so important that it should be quoted at length. It is the be- 
ginning of the so-called Laws of Edward the Confessor : " Post quartum annum 
adquisitionis regis Willelmi istius terre, consilio baronum suorum fecit sub- 
moniri per universes patrie comitatus Anglos nobiles, sapientes et lege sua 
erudites ut eorum consuetudines ab ipsis audiret. 

"Electis igiturde singulis totius patrie comitatibus duodecim, jurejurando 
inprimis coram eo sanxerunt, ut quoad possent, recto tramite incedentes, 
legum suarum ac consuetudinum sancita edicerent, nil pretermittentes, nil 
preuaricando commutantes." Liebermann, Gesetze, vol. i. p. 627. See Brunner, 
Schwurgerichte, p. 385. As to the authenticity of these laws, see Liebermann, 
Ueber Leges Edwardi Confessoris, Halle, 1896. See also Stubbs, Lectures on 
Early English History, pp. 48, 49, 82. 

2 Liebermann, Gesetze, vol. i. p. 627; Hoveden (Rolls Series), vol. ii. p. 219. 

3 Stubbs, Select Charters, p. 135 et seq. These famous "constitutions, "the re- 
cord declares, were drawn up in the presence of the archbishops and bishops 
and clergy, the counts and barons and great men of the realm, and attested 
" per archiepiscopos et episcopos et comites et barones et per nobiliores et 
antiquiores regni." Becket, whether he set his seal to the Constitutions or 
not, there is some doubt of it (Materials for the Life of Becket, Rolls Series, 
vol. ii. pp. 382, 383; Thomas Saga, Rolls Series, vol. i. p. 169 ; Hoveden, Rolls 
Series, vol. i. p. 222), afterwards refused to recognize their genuineness, but 
always referred to them as the customs "quas rex avitas vocabat." Hoveden, 



Though all the instances are not so clear as these, 
the same principle runs through all: the "charters" 
of the Norman Kings profess always to secure rights 
already existing ; the assizes, where they introduce new 
rules, do so in matters of procedure almost exclusively ; 
Magna Charta corrects "abuses" that have grown up 
in violation of customary rules. 1 

The idea of "making" law is alien to then existing 
modes of thought, and when changes occur, as they 
must, if consciously made, they are usually only the 
correction of defects in the machinery for administer- 
ing the ancient customs, or they purport to be the 

vol. i. p. 222. Herbert of Bosham, hardly a very trustworthy authority for such 
matters, says the "customs" were the work of the archbishop's enemies, who 
had imposed on the King, who himself was ignorant of the customs. Ma- 
terials, vol. iii. pp. 279, 280. William Fitz Stephen goes further, and says 
that "these constitutions had never been written before, and had not even 
existed at all in the realm of England." Materials, vol. iii. pp. 47, 48. These 
ecclesiastical writers are too much prejudiced and too ignorant of the laws of 
England to be witnesses of any value. I cannot find that Becket himself 
whose knowledge at least must have been much greater anywhere denies 
point-blank that the "so-called" constitutions of Henry's grandfather were 
real customs of the realm. He may have known too much law to do that, 
though he professed not to know it. Materials, vol. iii. p. 279. As a matter 
of fact, he cared little whether the constitutions were genuine or not. Mate- 
rials, vol. iii. pp. 268, 269. He refused to recognize the constitutions because 
they were repugnant to a "higher law," above all Kings or their Councils. 
1 Other illustrations running back beyond Magna Charta could easily be given. 
For example : the so-called Laws of William the Conqueror purport to be the 
same as those of Edward the Confessor. Liebermann, Gesetze, vol. i. pp. 492, 
493. The Laws of Edward the Confessor have already been referred to above. 
The Charter of Liberties of Henry I is mainly a promise to put away "the 
bad customs by which the realm of England was oppressed." Stubbs, Select 
Charters, p. 100. Stephen's first charter is an express confirmation of "all the 
liberties and good laws" of Henry I (Stubbs, Select Charters, p. 119), and in 
the second charter we find a promise to observe " bonas leges et antiquas et 
justas consuetudines in murders and pleas and other causes" (ibid., p. 121). 



restoration of these customs after a period of wrongful 
desuetude, or the abolishing of abuses that have con- 
travened the ancient rules; or finally, if the changes 
cannot be brought conveniently under any of these, 
they are concealed under a fiction. Changes must in- 
evitably occur in any system, and in a system of law 
and government which is developing as rapidly as was 
the case in mediaeval England, such changes must be 
great and fundamental. But the fact that these de- 
velopments, great as they were, were so carefully cov- 
ered up shows the attitude of men's minds towards 
"legislation." As Sidgwick says: "Law was to an im- 
portant extent conceived by both governors and gov- 
erned as a subject of science, capable of being learnt by 
special study, but not capable of being altered by the 
mere arbitrary will of government, any more than the 
principles or conclusions of mathematics." 1 Legisla- 
tion, in fact, "was not the primary business of Par- 
liament." 2 This is sufficiently evidenced by the small 
number of statutes that we find on the earlier rolls. 

l The Elements of Politics, 2d ed., pp. 652, 653. 

2 Pollock, First Book of Jurisprudence, pp. 329, 330. See also A. L. Lowell, 
Essays on Government, pp. 195-7; Jenks, Law and Politics, pp. 59-61, 64; 
Pike, Const. Hist, of the House of Lords, pp. 310, 311. The feeling of the people 
against innovations in the law is expressed in a political song current in the 
reign of Henry III and written by some opponent of the baronial party. In the 
course of it the author says : 

"Anglo rum proceres legem fingendo novellam, 
Ubere de regno terram fecere misellam. 

Conjurat populus fruiturus lege novella; 
Faedere mox rupto consurgunt horrida bella." 
Wright's Political Songs (Camden Society), p. 129. See also post, p. 67, note. 



Even when changes were made in the legislative way, 
as we find in the remarkable and quite unusual legis- 
lative activity of Edward I's reign, the enactments, as 
we have seen, were generally restricted in scope and 
were evidently felt to be exceptional in character. This 
is shown in the preambles. To take only one example : 
the purpose of the King in having enacted the Statute 
of Gloucester, 6 Edw. I, is said to be, "pur amend- 
ment de son roialme et pur plus pleiner exhibition de 
droit" "two excellent ends of a Parliament," Coke 
says, " Regni melioratio, that is, for the common good 
of the Kingdom, the Parliament being Commune Con- 
cilium, and exhibitio Justiciae plenior, for nothing is 
more glorious and necessary, then full execution of Jus- 
tice." 1 Of all the Parliaments of Edward I, we probably 
know most about that held in 1305. In that Parliament 
there was very little action we could call legislative, 2 
there was no supply granted, and no evidence that any 
was asked. 3 

The Lords' Commissioners in 1820 were evidently 
under the impression that a Great Council of the King- 
dom in the middle ages ought to be a "legislative" body. 
They are surprised that the Constitutions of Clarendon 
"do not expressly mention any obligation in these 
Ecclesiastics to attend in any Legislative Assembly." 4 

1 2 Inst., 280. 2 Maitland, Parl Roll, Introd., p. 1. 

3 Ibid., p. liii. The famous reply of the barons atMerton in 1235 is here in point : 
" Et omnes Comites et Barones una voce responderunt, quod nolunt leges 
Anglic mutare, que usitate sunt, et approbate." 20 H. 3, c. 9. 

4 Report, vol. i. p. 46. 

[48 ] 


Speaking of the circumstances of the Great Charter, 
they say: "It has appeared to the Committee a striking 
Circumstance, that neither the King, nor the discon- 
tented Barons, nor the Barons who adhered to the 
King, at any' Time appealed, for the Decision of their 
Differences, to a Legislative Assembly to be convened 
for that Purpose." 1 And again: "It is also remarkable 
that no Article in the Charter has Reference to the 
previous Existence of any Assembly convened for gen- 
eral Purposes of Legislation." 2 Still going on the as- 
sumption that Parliament was necessarily a "legisla- 
tive" body, the Commissioners are nonplussed again by 
the proceedings in the year 1297 when the celebrated 
CoTifirmatio Cartarum was forced from Edward I. 
"These extraordinary Proceedings seem to demon- 
strate, that even in the 25th of Edward the First, the 
Constitution of the Legislative Assembly of the King- 
dom was not definitely settled as now established, or that 
Edward did not acknowledge such a legal Establish- 
ment." 3 Although they call these proceedings "ex- 
traordinary," they are forced to admit that the English 

1 Report, vol. i. p. 63. 

z lbid. Speaking of Magna Charta, McKechnie says : "Not a word is said of 
any right inherent in the Council to share in legislation, to control or even to 
advise the Executive, or to concur in choosing the great ministers of the Crown. 
Neither deliberative, administrative, nor legislative powers are secured to it, 
while its control over taxation is strictly limited to the right to veto scutages 
and aids that is to say, it only extends over that very narrow class of exac- 
tions which affected the military tenants of the Crown." Magna Carta, pp. 151, 
152. See also Gneist, C. H., vol. i. p. 309, note. See Lords' Report further, 
pp. 187, 188, 193, 194. 
3 Lords' Report, vol. i. pp. 224, 225. 



Justinian "even at the Close of his Reign . . . took upon 
himself (to a certain Extent) to supersede the Authority 
of this Parliament, by qualifying the Execution of its 
Statute; which seems to shew, either that the Prin- 
ciples of a Constitutional Government were not then 
perfectly understood, or were not well settled by Prac- 
tice; or that Edward assumed to himself a dispensing 
Power not consistent with the Supremacy of a Legis- 
lative Assembly in Matters of Legislation. Throughout 
his whole Reign, indeed, there appears a Mixture of 
Submission to the Controul of his Parliaments, and an 
Usurpation of Authority in Opposition to that Con- 
troul, which seem to demonstrate, not only his Un- 
willingness to submit to that Controul, but a Want of 
that Certainty as to the Extent of the Authority, both 
of the King and of his Parliaments, which Time and 
Practice have since produced." 1 

And though the commissioners were able to per- 
suade themselves, notwithstanding these admissions, 
that by the reign of Edward I, "the Constitution of 
the Legislative Assemblies of England had . . . nearly 
approached the Form in which they have now been 
long established," 2 a half century later, events in the 
Parliament of 14 Edw. Ill bring out again the fami- 
liar statement that "the Constitution of the Legisla- 
ture in Parliament was not then definitely settled as it 
now is." 3 

1 Report, vol. i. p. 253. The italics are not in the original. 
., p. 254. *lbid. t p. 311. 



To look at the Assemblies of Edward I, and be- 
fore Edward I, with the expectation of finding "the 
Supremacy of a Legislative Assembly in Matters of 
Legislation," is surely to have a disappointing result. 
Too many things of that time must be described as 
"extraordinary," which from their frequency we should 
more truly call ordinary and normal. "We must read 
our history backwards as well as forwards," and by so 
doing the modern idea of legislation will almost dis- 
appear, Parliament will grow to seem, in so far as the 
growth of law is concerned, law-declaring rather than 
law-making. Edward I " created the most effective law- 
declaring machine in the Teutonic world of his day," l 
but it cannot be described accurately as a "legislative 

With the reasons why this should be so in the mid- 
dle ages, I am not here particularly interested: that it 
was so there can be no doubt ; and it is further evident 
that such a conception of law, to whatever it may have 
been due, fitted in remarkably well with the other insti- 
tutions and with the general political conceptions of the 
feudal time. Such customary laws as these, declared by 
inquest or by Council, hardly ever ostensibly altered, 
with no assignable beginning, must almost of neces- 
sity in process of time acquire a character of invio- 
lability; and whether this inviolability be the result or 
the cause of the preservation of these customs, the 
feeling has somehow come into existence that there is 

1 Jenks, Law and Politics in the Middle Ages, p. 44. 

[51 ] 


a law fundamental and unalterable, and rights derived 
from it indefeasible and inalienable. The content of 
that law may not be definite, in England it was al- 
ways far from definite, but the idea has lodged itself in 
men's minds as a formative principle, and once lodged 
it colours everything. 

Furthermore, the rights guaranteed under these laws 
may be mainly the rights of a class. In feudal times 
they were almost exclusively so. But as time goes on, 
the basis of the state broadens. New classes "become of 
thegnright worthy," at the least, they become worthy 
to grant a share of the taxes. Through a process that is 
obscure in the extreme, but a process in which the de- 
cline of chivalry, the growth of the new learning, the 
increasing size of the known world, with the conse- 
quent shaking up of economic and social conditions, 
must have played a great part, there emerges finally 
an England where the loyalty to class has broadened 
I out into a feeling of nationality, a solidarity to which 
the word "national" can properly be applied in describ- 
ing its common institutions and ideas. In this process 
of development, the idea of the traditional law is never 
lost. At first it may be the privileges of the few that 
are treasured as inalienable and fundamental, but even 
these "liberties," though they may at first be actually 
licenses to oppress the mass of the people, are in a 
future time to prove the greatest inheritance of the 
nation. For these liberties are rights, and rights imply 
an immunity from arbitrary authority of which the 



nation may avail itself when it has come into being. 
They carry with them the idea of government under law 
instead of limitless discretion, "franchises," they are 
often called, and the word shows how negative was 
their early character and how narrow and exceptional 
they may have been in their origin. 1 But from such 
humble beginnings we may trace the great, if indefinite, 
body of rights which became the pride and boast of Sir 
John Fortescue and Sir Thomas Smith. The idea of a 
fundamental law in the sharpness of outline that it at- 
tained by the sixteenth century, of course we may not 
expect in mediaeval times, but that it existed as a con- 
trolling force is proved, for example, by such instances 
as have already been several times noted, of William 
the Conqueror's professing to restore Edward's laws, 
or Henry I's promising to put away "omnes malas 
consuetudines," 2 or Stephen's engaging to concede "all 
the good laws and good customs" of the time of Ed- 
ward the Confessor. 3 

*No word better illustrates the change from feudalism to "nationalism" if 

1 may use such an expression than this word franchise. "What a word is 
that franchise? The lord may tax his villain high or low, but it is against the 
franchises of the land, for freemen to be taxed, but by their consent in par- 
liament. Franchise is a French word, and in Latin it is Libertas." Coke in 
debate on the supply in 1627 (Parl. Hist., vol. ii. p. 237). Coke's ignoring the 
difference between feudal times and his own is here brought out in character- 
istic style. The passage is instructive in showing how in the seventeenth cen- 
tury men tried to fit feudal words to the facts of nationality. For examples of 
these liberties, see Madox, Exchequer, ch. xi. 

2 Stubbs, Select Charters, p. 100. 

3 Ibid. , p. 119. Twysden mentions the various expressions used in early times for 
these fundamental rights, antiquas libertates regni, rectum judicium terrae, 
lex terrae, jus regni, la franchise de la terre, le droit du royalme, the law of the 
land, etc., "by all which various appellations are meant nothing else but those 



Among the documents of feudal times Magna 
Charta, of course, stands preeminent. Whatever be the 
true character of that great document, whether it be 
really statute, treaty, private compact, or declaration 
of rights, 1 it is strictly true, as Stubbs says, that "the 
whole of the Constitutional History of England is a 
commentary on this charter." 2 The view maintained 
here is that Magna Charta is in the main a promise on 
the part of the King, in the usual form of a royal grant, 
that in future the customary privileges, franchises, and 
liberties of the barons shall not be infringed as they 
had been in the past. The "liberties" it protects are not 
quite all privileges of the barons, but the great prepon- 
derance of these over all others shows that the charter 
is a class document, the product of a period when as 
yet there are only two classes in the state strong enough 
to get their "rights" recognized, the clergy and the 
nobility. 3 The claims arise mainly out of feudal condi- 
tions, the abuses are chiefly abuses of feudal customs, 

immunities the subject hath ever enjoyed as his owne right, perteyning either 
to his person or his goods ; and the grownd that hee doth so is, that they are 
allowed him by the law of the land, which the king alone can not at his owne 
will alter, and therefore can not take them from him, they beeing as auncient 
as the kingdome itselfe, which the king is to protect. 

"It is manyfest these 'liberties, franchises,' etc., are something did precede 
those writers or statutes which mention them, and were a rule or square to 
judge and condemne what is in them complayned of." Government of England 
(Camden Society), p. 82. See Gneist, C. H., vol. i. p. 252. 
1 The various views are summarized in McKechnie, Magna Carta, pp. 123-7. 
Selden considered it a "statute." Works, vol. iii. col. 1993. For most points 
involved in this discussion of Magna Charta, see Petit-Dutaillis, Studies Sup- 
plementary to Stubbs's Constitutional History, vol. i. ch. xii. 
z Select Charters, p. 296. 
3 See the summary in Petit-Dutaillis, op. cit., p. 136 et seq. 



the remedy is a typically feudal remedy. 1 Why, then, 
its great importance ? Simply in this, that in it was em- 
bodied the principle of a fundamental law, a law with 
a penalty attached ; and embodied in a more concrete 
and a more memorable form, if I may so say, than ever 
before, a form that stuck in men's minds, that oc- 
curred to them as a concrete precedent when the same 
rights were infringed again, or as a powerful analogy 
when other rights of a similar character were violated. 
As Professor George B. Adams, whom I have fol- 
lowed here, says, in referring to the principle of a fun- 
damental law binding even an unwilling king: "It 
was the work of Magna Carta to transfer this prin- 
ciple from the feudal to the modern state, and ... in 
this fact we have the explanation of the influence and 
significance of the Great Charter in English history." 2 
Again the same author says: "It was not Magna 
Carta, but the circumstances of the future which gave 
to the fact that there was a body of law above the king 
creative power in English history. Magna Carta em- 
phasized the fact and made the suggestion of the right 
of enforcement, in a way never to be forgotten, but 
this was all it did. Nor did feudal law furnish, except in 
a few particulars and these much transformed, the body 
of law by which the king was bound. The great work 
of Magna Carta was not done by its specific provisions ; 

1 The Charter " was drawn up for the baronage and not for the nation as a 
whole. "Petit-Dutaillis, op. cit.,p. 134. Itwas "essentially a document of feudal 
law."/6U, p. 140. 
2 American Historical Review, vol. xiii. p. 237. 



the secret of its influence is to be found in its under- 
lying idea." 1 It is one of the purposes of the brilliant 
article from which these quotations are taken to show 
that this idea of fundamental law, from which alone 
Magna Charta derived its immense importance, was 
the one formative idea in the English constitution 
whose development created the limited monarchy ; that 
even Parliament itself, in its unintended development 
from the King's Council into the representative law- 
making organ of the state, is significant largely because 
in time it became the guardian of this great idea. 2 Thus 
it is not the circumstances surrounding its origin, but 
the "circumstances of the future; "not its true inter- 
pretation, but the glosses made on it by after genera- 
tions that have given Magna Charta its place. 

That wonderful and to us more or less mysterious 
change in England from a series of feudal ranks to an 
organic nation, which was complete in the reign of 
Elizabeth, made the feudal regime incomprehensible. 3 
For whatever may be true socially, there is a wide gulf 
between a political society of ranks and classes, each 
acting and voting for itself, and a commonwealth as 
described by Sir Thomas Smith in the reign of Eliza- 

1 Am. Hist. Rev., vol. xiii. p. 238, note 10. 
2 Ibid., p. 233. 

3 It is true that Raleigh, in the dialogue, The Prerogatives of Parliaments, 
makes the Counsellor of State speak of the "Beginning of the Great Charter, 
which had first an obscure Birth from Usurpation, and was secondly fostered 
and shewed to the World by Rebellion" (Harleian Misc., vol. v. p. 182, ed. of 
1745), but in the dialogue there is no evidence that Raleigh had any concep- 
tion of the feudal character of the document. See Filmer's Patriarcha (ed. by 
Morley), p. 64. 



beth, "a society or common doing of a multitude 
of free men collected together and united by com- 
mon accord and covenauntes among themselves, for 
the conservation of themselves as well in peace as in 
warre." 1 

The great principle of Magna Charta was as impor- 
tant to the men of the seventeenth century in their 
constitutional struggles as it had been to the barons 
in 1215, and that principle was in essence unchanged, 
but the feudal setting was totally misunderstood. With 
the inevitable habit of reading later ideas into earlier 
institutions, they assumed that the circumstances sur- 
rounding the enunciating of the principle must have 
been the same in 1215 as they would be three centu- 
ries later, and so, to take the most notable example, 
the Judicium parium becomes trial by jury. In short, 
the nation has at last come into existence, and the 
document which is strictly feudal is now interpreted 
in a new and a "national" sense. The baronial rights 
originally protected by the provisions of the charter 
have now become the rights of the "multitude of free 
men." But the principle is the same. There is a funda- 
mental law which binds a king and beyond which he 
may not go. The principle has persisted through all 
changes. And Magna Charta is mainly important his- 
torically because men from feudal times onward cen- 
tred their thought and their feeling on it, though in 
time they lost the comprehension of its details; and 

1 De Republica Anglorum, bk. i. ch. x. 

[57 ] 


because they felt for it the reverence that arose from 
the sacredness of the principle it preserved, a rever- 
ence that men usually cannot feel for an abstract idea 
in itself, but find it necessary to concentrate upon some 
concrete statement or document. "There is scarcely 
one great principle of the English constitution of the 
present day, or indeed of any constitution of any day, 
calculated to secure national liberties, or otherwise to 
win the esteem of mankind, which has not been read 
by commentators into the provisions of Magna Carta." 1 
What we mainly need, as Professor VinogradofF says, 
is a history of the influence of the document. 2 

The importance of the principle contained in Magna 
Charta, and the difficulty of maintaining it, are both 
shown by the necessity for a reissue so soon as 1216, 
and the frequency of the reissues and confirmations 
thereafter. 3 Coke enumerates thirty -two of these in 
separate acts of Parliament. The significance of the 
underlying principle of Magna Charta, in contrast with 

1 McKechnie, p. 156. See also the same, pp. 147, 157, 158. 

2 Law Quarterly Review, vol. xxi. p. 257 ; McKechnie, p. 147 ; Jenks, in Inde- 
pendent Review for 1904, The Myth of Magna Carta. I am unable to go to the 
length the author does there in calling Coke the "inventor " of Magna Charta. 
The change from the feudal interpretation to the national one was gradual, 
and Coke was by no means the first man to adopt the national interpretation. 
Even before it had taken on this new idea, Magna Charta stood out as an 
exceptional and a " fundamental " document, as is evidenced by the frequent 
reissues and the numerous references made to it. Cf., for example, 5 Edw. III., 
cap. ix. A more moderate account, erring, if at all, on the other side, is to be 
found in Holdsworth, H. E. L. t vol. ii. pp. 168, 169. 

3 On this, see McKechnie, p. 164 et seq. For a valuable account of the reissues, 
see also Be*mont, Chartes, Introd., p. xxvi et seq.; Coke, Sndlnst., Proeme; 
Thomson, Magna Charta, p. 376 et seq., passim; Blackstone, Great Charter. 



the specific provisions, is brought out more clearly by 
the importance of those pro visions of the original char- 
ter which are entirely omitted in the reissues. The most 
noteworthy, of course, is the chapter which forbids the 
King to levy an aid without the consent of the com- 
mune concilium. This provision, in our eyes so impor- 
tant, does not appear in the first reissue in 1216, nor in 
the final form of the charter in 1225* and the principle 
of it was not successfully established until the great 
confirmation of 1297. 

Among the confirmations of the Charter, that in 
1368 is especially noteworthy. In the Parliament of 
that year it was "assented and accorded, That the 
Great Charter and the Charter of the Forest be holden 
and kept in all points; and if any Statute be made 
to the contrary, that shall be holden for none." 1 The 
meaning of these words seems clear. There is little 
doubt that when they were used, the intention of the 
men who drew them up was, exactly as stated, that 
thereafter Magna Charta should in its entirety be con- 
sidered as nothing else than a fixed and unalterable 
law. Such an idea is to be expected at that time. It was 
only the habit of legislation, acquired later, and the con- 
sequent actual sovereignty of Parliament which arose 

1 " Est assentu et accorde qe la Grande Chartre et la Chartre de la Foreste 
soient tenez et gardez en touz pointz ; et si nul estatut soit fait a contraire soit 
tenez pur nul." 42 Edw. III., cap. i. The great confirmation of 25 Edward I 
(S. R., vol. i. p. 123) had already declared void all contrary jug ementz in future 
to be made. This may possibly include a statute, for, as we shall see, the word 
judgement in those days had a very inclusive meaning. Prynne seems to in- 
clude a royal ordinance within the term. Fundamental Liberties, vol. i. p. 90. 



in the seventeenth century, that altered men's ways 
of looking at this. The old idea kept cropping out again 
and again. Even when parliamentary sovereignty was 
attained, Parliaments are found every now and then 
using language inconsistent with its necessary corollary, 
the principle that no Parliament is bound by the acts 
of a prior Parliament. When the Parliament in 1706 
passed the Act of Union with Scotland, they meant that 
it should be permanent and unchangeable if words ever 
mean what they seem to mean. This has been disre- 
garded, of course, as was inevitable under the modern 
principle of parliamentary sovereignty when fully real- 
ized, but the fact that the men of 1706 used such 
language shows that even then at times Parliaments 
could fall back into the old manner of thinking. 

The most striking instance of the exercise of par- 
liamentary sovereignty is that of the Septennial Act 
in 1716, but surely the Parliament men of 1694 really 
meant what they said when they declared "That 
within three Years at the farthest, from and after the 
dissolution of this present Parliament, and so from time 
to time forever hereafter, within three Years at the far- 
thest, from and after the Determination of every other 
Parliament, legal Writs under the Great Seal shall be 
issued by Directions of Your Majesties, Your Heirs and 
Successors, for calling, assembling and holding another 
new Parliament." 1 

Before the civil wars of the seventeenth century and 

1 6 and 7 Wm. and Mary, cap. ii. 



the familiarizing of the idea of a sovereign legislature, 
this idea of a fundamental law was normal and usual. 
This is not to say that Parliament never made innova- 
tions, nor is it to say even that enactments of Parlia- 
ments that contravened the principles of Magna Charta 
were never enforced. In a country such as England, 
where there is no formal distinction between a constitu- 
ent law and ordinary legislation, it is hard to draw a line 
between these two kinds of law. If a constituent law ever 
existed in England it must be looked for mainly in the 
attitude of men toward the law, or, better, in the rules 
applied by judges in cases arising under the law. The 
fundamental law there maybe contained in a document, 
or documents, as in the case of Magna Charta, but the 
validity of that law is not due to the form of the doc- 
ument or documents, but rather to the character of the 
principles. There is nothing in the documents them- 
selves that claims superior respect over ordinary legis- 
lation; the documents purport to be only legislative acts 
of the ordinary character, if they be legislative at all. 
To look, then, in a country which has never permanently 
codified its constituent law, and in an age when such 
codification was as yet thought of by few or none, would 
be futile, if we were looking for a formal document 
which should contain the conscious expression of a 

But if we find in such a country, at such a time, that 
judges recognize certain rules, or to put it concretely 
some clauses of Magna Charta, as permanent and un- 



changeable, and avoid acts derogatory of them in the 
most palpable manner, whether by a thin fiction or 
otherwise, without arousing public opposition; if we 
find that legal commentators of accepted authority 
treat such derogatory acts as "infamous" or even as 
void; then it seems safe to conclude that there is in 
existence there, as an active living legal principle, the 
conception of a law superior in authority to the every- 
day enactments of a lawmaking body. When in addi- 
tion it is borne in mind that in the England of that 
time, Parliament had not, as Seeley says, yet become 
an "organ of the commonwealth" in a very real sense; 
that its lawmaking was timid and sporadic ; that it had 
little or no^ control over the frequency or infrequency 
of its sessions or over their duration ; that it was only 
imperfectly representative in character, and that the 
actual lawmaking of the time was in great part ef- 
fected outside its walls, with such considerations in 
mind, the failure to find any written "constitution" 
will not blind us to the fact that even without it there 
is a profound difference between the theory and the 
practice in matters involving a "fundamental law" of 
the men of those times, and the doctrines and rules gen- 
erally accepted in England to-day, when the principle 
of parliamentary omnipotence is a real and a practical 
force strong enough to reach the highest as well as the 
lowest, and inclusive enough to extend to matters no 
matter how minute. 

If in the sixteenth century an act were passed con- 


trary to the principles of Magna Charta, such an act 
might remain for a considerable time on the statute- 
book, and in all probability in most cases men would 
not dare openly to disobey it with impunity; but it is 
nevertheless true that they looked upon such an act, 
and judges acted with reference to it, in a way totally 
different from the disapproval that would be felt to-day 
if Parliament should pass an act which men felt would 
be harmful in operation or wrong in principle. If Par- 
liament to-day should abolish trial by jury, the results 
may be imagined, but it is safe to say that no court 
would refuse to recognize the act as law. They would 
neither declare it void, nor interpret it in a sense pal- 
pably unintended by its makers, nor avoid it by a fic- 
tion. If its meaning was perfectly clear they would sim- 
ply enforce it. I venture to believe that in the sixteenth 
century the case would have been wholly different. 
There was then, in a sense that has lost its vividness 
with the growth of Parliament's power, a true funda- 
mental law. The general principle was more important 
than its specific content. Men may not always have 
been clear as to what particular rights or liberties were 
guaranteed by the fundamental law, but as to the ex- 
istence of such a law there was no doubt, and any act 
that violated it was in a true sense felt to be no law. 1 

1 "The Laws," says the Speaker of the House of Commons in 1604, " whereby 
the ark of this government hath ever been steered, are of three kinds ; the 
1st, the Common Law, grounded or drawn from the Law of God, the Law 
of Reason, and the Law of Nature, not mutable ; the 2d, the positive Law, 
founded, changed, and altered by and through the occasions and policies of 



Coke seldom states flatly that particular acts are not 
binding. Such a statement would hardly have been 
politic, but, to say the least, he habitually displays a 
feeling toward them as a lawyer that no judge of to- 
day would be tempted to express. 1 

Even Bacon agrees with Coke that Magna Charta 
is unalterable. In his Brief Discourse upon the Commis- 
sion of Bridewell he says: "In the said great Charter 
of England, in the last chapter, amongst other things 
the King granteth for him and his heirs, that neither 
he nor his heirs shall procure to do anything whereby 

times ; the 3d, Customs and Usages, practised and allowed with time's appro- 
bation, without known beginnings." Parl, Hist., vol. i. p. 1046. While this 
classification should be objected to, it is interesting to note the sharp division 
he makes between the common law and statute, only the second of which may 
be changed. See an expression of the same idea by James I in 1607 in de- 
scribing the laws of Scotland. Parl. Hist., vol. i. p. 1111. 
1 The statute of Henry VII, allowing justices to hear and determine alleged 
breaches of the statute law without presentment or verdict was his particular 
aversion. 11 Henry VIL, cap. Hi. "The Justices of Assise in their Sessions, 
and the Justices of Peace in every County, upon Information for the King, 
shall have Authority to hear and determine all Offences and Contempts (sav- 
ing Treason, Murder, or Felony) committed by any Person against the Ef- 
fect of any Statute made, and not repealed." This statute was repealed in 
the first year of Henry VIII (1 Henry VIII., cap. vi.). For Coke's opinion of 
this "unjust and injurious Act" of Henry VII, see 2 Inst., 51 ; 4 Inst., 41. The 
question of the interpretation of the confirmation of Magna Charta in the year 
1368, quoted above, illustrates Coke's attitude. In regard to the so-called Sta- 
tute Praerogativa Regis (17 Edw. 1 1 ., st. 1 , cap. xvi. ), regarding forfeiture to the 
King of felons' lands and goods, Coke said : " If any Statute be made to the 
contrary of Magna Charta, it shall be holden for none. And therefore if Prae- 
rogativa Regis, anno 17 E. 2 cap. ultima, be contrary thereunto, it is repealed 
as to the Wast." 3 Inst., Ill ; see also 2 Inst., 37. Of course the confirmation 
of 1368 had occurred in the meantime, and notwithstanding it there was much 
difference of opinion on this particular point (e.g. see Jenkins's Centuries, p. 2, 
and the references there cited. Judge Jenkins himself believed that Magna 
Charta should stand only on points not altered by acts prior to 1368). 

[64 ] 


the liberties in the said Charter contained shall be in- 
fringed or broken ; and if anything be procured or done 
by any person contrary to the premises it shall be had 
of no force or effect." He then cites some of the confir- 
mations and adds : " It is assented and accorded that the 
great Charter of England and the Charter of the For- 
ests shall be kept in all points, and if any statute be 
made to the contrary that shall be holden for none." 1 
Prynne quotes with approval Coke's views of Magna 
Charta expressed in the preface to his Second Insti- 
tute as " a clear resolution, that the Principal Liberties, 
Customs, Laws, contained in these great Charters, and 
ratified by them, are both FUNDAMENTAL, PERPETUAL, 


Along the same lines Prynne argues in his Sover- 
aigne Power of Parliaments and Kingdoms a work 
that was printed by the order of the Commons in 1643 
against the King's right to withhold his assent to 
a bill that has passed the Houses of Parliament, "be- 
cause it is point-blanke against the very letter of Magna 
Charta (the ancient fundamentall Law of the Realm, 
confirmed in at least 60 Parliaments) ch. 29. WE SHALL 
DENY, WE SHALL DEFERRE (both in the future tense) 
TO NO MAN (much lesse to the whole Parliament and 
Kingdome, in denying or deferring to passe such neces- 
sary publike Bills) JUSTICE OR RIGHT, A law which in 

1 Bacon's Works (edited by Spedding, Ellis,and Heath, Boston, 1861), vol. xv. 
p. 16. Mr. Heath thinks this was written in or before the year 1587, and con- 
siders it a genuine work of Bacon. 

2 Fundamental Liberties, pt. i. p. 11 (should be 10). 



terminis takes cleane away the King's pretended abso- 
lute negative Voyce to these Bills we now dispute of." 1 
The importance of the doctrine is manifest, when to 
bolster up the parliamentary party such sophistry as 
this can be gravely endorsed by the House of Com- 
mons. Such a statement serves also to show the influ- 
ence of this principle upon the civil wars of the seven- 
teenth century and its value in helping to explain them. 

But it is not in Magna Charta alone that we must 
look for the fundamental law. Evidences of its con- 
trolling influence are frequent elsewhere, both in un- 
official writings and public documents. In Bracton's 
day, it is clear that there is a body of law that the 
King cannot alter, or to put it another way, that there 
is in the state no "sovereign" freed from all obliga- 
tions, whose will is law. It is true, there may have been 
no definite machinery in existence to punish a king 
who refused to recognize this fundamental principle, 
but nevertheless such action on his part outraged the 
feelings of the men of his day. He was acting lawlessly. 2 

In the troubled reign of Henry III, men felt that 
they were oppressed, but they express no desire for 
things revolutionary, nor even for new law. A sufficient 
remedy exists in the old law, and they ask only for a 
restatement and a better observance of it. 3 

1 Fundamental Liberties, part ii. p. 74. 

2 Pollock and Maitland, H. E. L., vol. i. pp. 181-3. See Note A at the end of 
this chapter (p. 101). 

3 This appears in the following extracts from a long political song, written soon 
after the battle of Lewes, and setting forth the principles of the barons in 


In the next reign the doctrine of a fundamental law 

their struggle with the King. It is printed in Wright's Political Songs of Eng- 
land (Camden Society). 

" Igitur communitas regni consulatur ; 
Et quid universitas sentiat sciatur, 
Cui leges propriae maxime sunt notae. 
Nee cuncti provinciae sic sunt idiotae, 
Quin sciant plus caeteris regni sui mores, 
Quos relinquunt posteris hii qui sunt priores. 
Qui reguntur legibus magis ipsas sciunt ; 
Quorum sunt in usibus plus periti fiunt ; 
Et quia res agitur sua, plus curabunt, 
Et quo pax adquiritur sibi procurabunt." (pp. 110, 111.) 

"Nam rex omnis regitur legibus quas legit; 
Rex Saiil repellitur, quia leges fregit ; 
Et punitus legitur David mox ut egit 
Contra legem ; igitur hinc sciat qui legit, 
Quod non potest regere qui non servat legem : 
Nee hunc debent facere ad quos spectat regem. 
O Edwarde ! fieri vis rex, sine lege ; 
Vere forent miseri recti tali rege ! 
Nam quid lege rectius qua cuncta reguntur, 
Et quid jure verius quo res discernuntur? 
Si regnum desideras, leges venerare ; 
Vias dabit asperas leges impugnare, 
Asperas et invias quae te non perducent ; 
Leges si custodias ut lucerna lucent." (pp. 94, 95.) 

"Praemio praeferimus universitatem ; 
Legem quoque dicimus regis dignitatem 
Regere ; nam credimus esse legem lucem, 
Sine qua concludimus deviare ducem. 
Lex qua mundus regitur atque regna mundi 
Ignea describitur ; quod sensus profundi 
Continet mysterium, lucet, urit, calet ; 
Lucens vetat devium, contra frigus valet, 
Purgat et incinerat quaedam, dura mollit, 
Et quod crudum fuerat ignis coquit, tollit 
Torporem, et alia multa facit bona. 
Sancta lex similia p'rat (?) regi dona." (p. 115.) 

One cannot help thinking that the writer of this must have been reading 
certain passages of Bracton's treatise, which had been completed a few years 



is stated with the greatest clearness by Fleta. 1 The 
articles drawn up against Richard II also set forth 
the doctrine in many places. It is charged that the 
King, "not willing to keep or protect the just laws 
and customs of his kingdom, but according to his arbi- 
trary will to do whatsoever should occur to his de- 
sires; sometimes, and very often, when the laws of 
his kingdom have been expounded and declared to 
him by the judges and others of his council, and that 
they have desired that he would do justice according 
to those laws, hath expressly, and with an angry and 
haughty countenance, said, 'that his laws were in his 
mouth;' and sometimes, 'that they were in his breast;' 
and that 'he himself alone could make and change the 
laws of his kingdom." 2 It may be said that this is 
no assertion of a fundamental law ; it is nothing but 
a statement of the principle that laws should be made 
only in Parliament. By this time, it is true, Parliament 

before. Cf. Bracton, fol. 107-107 B. This remarkable song also illustrates the 
fact, noted above, that legislation was not the rule in the middle ages the 
communitas regni is to be consulted because it knows what the customs are, 
"quos relinquunt posteris hii qui sunt priores." It is not to make new law. 
1 " Parem autem non debet Rex in Regno suo habere, quo minus praecepta sua 
teneantur, cum par in parem imperium non habeat ; nee superiorem habere 
debet in regno, nisi Deum et legem : Et quia per legem factus est Rex, dig- 
num est quod dominatio et potestas legi attribuatur, et per ipsura tueatur cui 
lex honorem tribuit et potestatem." Lib. i. cap. 5. 

'* Temperent igitur Reges potentiam suam per legem, quae fraenum est po- 
tentiae, quod secundum leges vivant, quia hoc sanxit lex humana, quod leges 
suum ligent latorem, et alibi digna vox ex majestate regnantis est, legibus alli- 
gatum se Principem profiteri ; praeterea nihil tarn proprium imperio quam legi- 
bus vivere, et majus est imperio legibus submittere principatum," etc. Lib. i. 
cap. 17. See also Britton, folio 1. 
2 Rot. Par/., vol. iii. p. 419. Translated in Parl Hist., vol. i. p. 259. 



had acquired considerable power. A statement of the 
thirteenth century that the law is above the King will 
mean that it is above every one, for if one might cor- 
rectly look for a "sovereign" power in the state in 
those times, that power would probably be said to re- 
side in the King. A century later, it may be objected, 
there is doubt whether we should not say that Parlia- 
ment is the real "sovereign;" and Richard's saying 
that "the laws are in his mouth" is therefore only a 
denial of "parliamentary sovereignty;" it has nothing 
to do with fundamental law. If such was the real 
ground of the indictment against Richard II, it is, 
however, very hard to understand such a statement 
as the following, which occurs in the arraignment of 
the King and refers to an article in his will: "By which 
article it may evidently enough appear, that the said 
king did obstinately strive to maintain and defend those 
statutes and ordinances, which are erroneous and un- 
just and repugnant to all law and reason" 1 It is also 
charged that the King, "without any reasonable or law- 
ful cause whatsoever, or any other process of law," 2 
"in his Parliament" banished Archbishop Arundel, 
"against the laws of his kingdom, so by him sworn to as 
aforesaid." 3 It seems clear from this that Richard's law- 
breaking here complained of was in part done by Act 

141 Ilia Statuta et Ordinationes, que sunt erronia et iniqua et omnijuri et 
ration! repugnantia." Rot. Parl., vol. iii. p. 421. 

2 " Absque Causa rationabili seu legitima quacumque, seu alio Juris processu." 

3 "Contra Leges Regni sui, per ipsum ut prefertur juratas." Ibid. 



of Parliament. The charge is against the "King in 
Parliament," if we may use a more modern expres- 
sion. "Statuta" as well as "ordinationes" if there be 
yet any essential difference between them 1 may be 
"omni juri repugnantia." 

It is to be noted also that the case of Archbishop 
Arundel was tried in Parliament, and though, as we 
shall see later, judgements of Parliament cannot in early 
times be distinguished from acts, but were proceedings 
fully as solemn and authoritative as statutes, yet the 
decision in this case was declared by the men of a sub- 
sequent Parliament to be "without lawful cause" and 
against the laws of the realm. The language in which 
Mr. Figgis so accurately describes the period following 
the Wars of the Roses is, except for a phrase or two, 
equally applicable here, and its aptness is my apology 
for quoting it at length: "Nor is it of the statute law 
that men are thinking; but of the Common Law, which, 
though containing much that may have originally been 
directly enacted, yet possesses that mysterious sanctity 
of prescription which no legislator can bestow. The 
Common Law is pictured invested with a halo of dig- 
nity, peculiar to the embodiment of the deepest prin- 
ciples and to the highest expression of human reason 
and of the law of nature implanted by God in the heart 
of man. As yet men are not clear that an Act of Parlia- 
ment can do more than declare the Common Law. It 
is the Common Law which men set up as the object of 

1 For the distinction see post, p. 313 et seq. 



worship. They regard it as the symbol of ordered life and 
disciplined activities, which are to replace the licence 
and violence of the evil times now passed away. Instead 
of local custom or special privilege one system shall be 
common to all. Instead of the caprice of the moment, 
or the changing principles of competing dynastic poli- 
cies, or the pleasure of some great noble, or the cun- 
ning of a usurper, there shall rule in England a system, 
older than Kings and Parliaments, of immemorial ma- 
jesty and almost Divine authority. 'Law is the breath 
of God ; her voice the harmony of the world. ' And the 
Common Law is the perfect ideal of law; for it is na- 
tural reason developed and expounded by the collec- 
tive wisdom of many generations. By it kings reign 
and princes decree judgement. By it are fixed the rela- 
tions of the estates of the realm, and the fundamental 
laws of the constitution. Based on long usage and almost 
supernatural wisdom its authority is above rather than 
below that of Acts of Parliament or Royal ordinances, 
which owe their fleeting existence to the caprice of the 
King or the pleasure of councillors, which have a merely 
material sanction and may be repealed at any moment." 1 
Though historians may have accepted such principles 
as historically true, they have frequently not applied 
them in specific cases, and have often spoken as though 
parliaments were practically as free in the thirteenth 
or fourteenth century to enact new laws as they are 
to-day. In the fifteenth, sixteenth, or even the seven- 

1 The Theory of the Divine Right of Kings, pp. 226-8. 



teenth century, there is reason to believe that English- 
men if their own words can be trusted had not yet 
reached this modern point of view. Legislature and 
Parliament were not for them, as they are for us, prac- 
tically convertible terms. 

It is hardly necessary to refer to Fortescue's famous 
distinction between Dominium Regale and Dominium 
Politicum et Regale, which, along with the celebrated 
extract from Bracton, mentioned above, were quoted 
against the King by all parliamentary writers through- 
out the Stuart period. 1 

It requires conflict, even civil war, to bring out the 
strongest expressions of the principle of the supremacy 
of the law. There were practically no such struggles 
under the Tudor sovereigns, and the statements are 
fewer, but the doctrine was the same. The excellent 
old dialogue of the Doctor and Student, written early 
in the sixteenth century, declares that the sixth and 
last of the grounds of the law of England "standeth 
in divers statutes ... in such cases where the law of 
reason, the law of God, customs, maxims, ne other 
grounds of the law seemed not to be sufficient to pun- 
ish evil men and to reward good men." 2 

Sir Thomas More asserted the same principle in his 
own defence; 3 Man wood, in his treatise on the forest 

1 De Laudibtts, cap. xxxiv., cap. ix. ; Governance of England, chs. i.-iii. 

2 Dialogue I., ch. xi. 

3 When asked why judgement should not be given against him, he gave as 
one reason that the indictment was founded on a statute " contrary e both 
to the Lawes and Statuts of this Land, yete unrepealed, as they might evi- 
dently perceive in Magna charta, Quod Ecclesia Anglicana libera sit et habeat 

[72 ] 


laws, written in the reign of Elizabeth, quoted with 
approval the dictum that the King ought to be under 
God and the Law " because the law doth make him a 
King." 1 "Wherefore," says Hooker, "to define and de- 
termine, even of the Church's affairs by way of assent 
and approbation, as laws are defined in that right of 
power, which doth give them the force of laws; thus to 
define of our own Church's regiment, the Parliament 
of England hath competent authority." 2 

"New laws," says Lord Bacon, "are like the apothe- 
caries' drugs : though they remedy the disease, yet, they 
trouble the body." 3 Coke refers to the repeal of the op- 
pressive act of Parliament of 11 Henry VII., c. 3, as 
"A good caveat to Parliaments to leave all causes to 

omniajura sua Integra, et libertates suas illaesas, and contrary to that sacred 
oath which the King's Heighnes himselfe, and every other Christian Prince 
at theire Coronations receaved." The Life of Sir Thomas More, by William 
Roper (Cambridge, 1888), p. 1. 

1 Edition of 1615, folio 25. See also Staundeford, Pleas of the Crown: Intro- 
duction to the Reader; Hearn, Government of England, 1st ed., p. 37. 
2 Ecclesiastical Polity, bk. viii., Of the Authority of Making Laws. This quota- 
tion may not seem very conclusive, but if it is compared with the power of 
Parliament as stated by Blackstone or De Lolme or Dicey, the great differ- 
ence between it and them will become at once apparent. One reason why the 
Erastianism of Hooker was so much milder than that of Selden or Prynne, and 
therefore so much less objectionable to the great mass of Englishmen, lies in 
Hooker's conception of the powers of Parliament. To him it was not prima- 
rily a legislative body in our sense of the term ; its power was rather a power 
to "define" and "determine," "by way of assent and approbation," existing 
laws and customs, save when changes were indispensable. The quotation 
here given comes from the suspected eighth book, but it sounds like Hooker. 
3 Reading on the Statute of Uses, Bacon's Works (ed. by Spedding, Ellis, and 
Heath), vol. xiv. p. 315 (Boston, 1861). "As the common law is more worthy 
than the statute law ; so the law of nature is more worthy than them both." 
Argument in the Case of the Postnati, Works (Spedding, Ellis, and Heath's 
ed.), vol. xv. p. 202. 



be measured by the golden and streight metwand of 
the Law, and not to the incertain and crooked cord of 
discretion." 1 

"Let your Lawes be looked into," James I declared 
to his Parliament in 1607; "for I desire not the abolish- 
ing of the Lawes, but onely the clearing and sweeping 
off the rust of them, and that by Parliament our Laws 
might be cleared and made knowen to all the Subjects." 2 
"Where they [the statutes] have not altered the pos- 
itive law," says Noy, "but have only increased or de- 
creased the punishment thereof, they have done great 
good ; but where they have altered the common law in 
substance, they have done great harm." 3 

*4 Inst., 41. "For any fundamental point of the ancient common laws and 
customs of the realm, it is a maxim in policy, and a trial by experience, that 
the alteration of any of them is most dangerous ; for that which hath been re- 
fined and perfected by all the wisest men in former succession of ages, and 
proved and approved by continual experience to be good and profitable for 
the commonwealth, cannot without great hazard and danger be altered or 
changed. Infinite were the scruples, suits, and inconveniences that the statute 
of 13 E. I. de donis conditionalibus did introduce; . . . also, what suits and 
troubles arose by the statute of 34 Ed. 3 of nonclaime, enacted against a 
main point of the com. law, whereby ensued the universal trouble of the K's 
subjects, as it was resolved in parliament in 4. H. 7 cap. 24. is apparent 
to all of least understanding." 4 Reports, To the Reader. He also criticizes 
sharply the Statute of Wills, 32 and 34 H. 8, and comments on the famous 
declaration of the barons in the Statute of Merton, " nolumus leges Angliae 
mutare." See also 2 Inst., 210 (Commentary on West. I., c. 26): "It is a cer- 
tain and true observation, that the alteration of any of those Maximes of the 
Common Law is most dangerous." 
z King James's Works, pp. 509, 512. 

3 A Dialogue and Treatise on the Law, p. 29. "The Common Law excelleth the 
Statute Laws, and may controle Statutes." For the Sacred Law of the Land, 
by Francis Whyte (1652), p. 58. " For continual manners approved by the con- 
sent of those who use them, imitate Law : this is matter of fact, and consisteth 
in use and practice only, nor can it be created by charter or Parliament." Ibid., 
p. 60. 



Fundamental law played its greatest part in the great 
contest between the Parliament and the Stuarts, which 
was in its last analysis "a struggle of the common law 
against the king." 1 Fundamental law appears at its 
very outset, in the quarrel between King James and 
Chief Justice Coke. Up to this time the claims of 
kingship were not inconsistent with the existence of 
the fundamental law. In an organic state like Tudor 
England the King was looked upon still as an organ of 
the commonwealth, not as its master. The laws were 
the King's, but he ruled by them and could not rule 
without them. The King needed the support of law; it 
guaranteed him against disherison, it protected him 
against the encroachment of the Church. But the new 
learning, the break with Rome, and the beginnings 
of sectarianism, which resulted from the other two, 
with other causes more obscure, gradually wrought a 
change. Such deep-lying causes ; a king like James, vain, 
weak, bullying and pedantic, but shrewd ; and a royal 
title that was not the strongest possible, all con- 
tributed to bring about the enunciation of the doctrine 
that the King was above the law. That doctrine, which 
James had already stated while under the power of the 
Lords of the Congregation, now that he was really a 
King he lost no occasion to din into the ears of his sub- 
jects. It is not wonderful that he met opposition. That 
opposition in its earlier stages centres about Coke. The 
wonderful amount of legal knowledge that he possessed, 

1 Maitland, Constitutional History of England, p. 271. 



catalogued and un catalogued, the narrowness of his 
outlook, the stubbornness of his character, which in the 
struggle with the King rises to a dignity worthy the 
name of courage, all these, together with the neces- 
sity of finding a principle on which to ground opposi- 
tion to the King's extravagant claims, contributed in 
one way or another to make Coke a marked man, and 
to raise his darling idea of a common law, fixed and 
immutable, to the dignity of a great constitutional prin- 
ciple ; to make it the main base from which attacks 
were directed upon the theory of Divine Right. James's 
instinctive feeling towards lawyers was hostile. His 
Majesty had observed "that ever since his coming to 
the crown, the popular sort of lawyers have been the 
men, that most affrontedly in all parliaments have trod- 
den upon his prerogative." 1 

The fundamentally legal character which was retained 
in a large measure to the very end by the great struggle 
of the seventeenth century in England clearly appears 
in the first skirmishes. So long as King and Parliament 
worked together, as Gardiner acutely remarks, 2 no 
question had arisen to affect the independence of the 
judges. But the Tudor times were gone, when Parlia- 
ment and King were joint organs of the commonwealth. 
Plot and controversy had erected the King above the 
state and above all its other organs. Parliament was 
not yet sufficiently conscious of its powers to compete 

1 Bacon's Works (edited by Montagu), vol. ii. p. 494 (American ed.). 

2 History of England, vol. Hi. pp. 1, 9. 




for that commanding eminence, and so the negative 
check of the law was relied on alone as yet against the 
encroaching prerogative. Naturally it became the cen- 
tral principle in the strategy of both parties to capture 
the artillery of the law and turn it upon the forces of 
the enemy. The clause in the Act of Settlement which 
changes the tenure of judges 1 is justly regarded as one 
of the most important parts of the Revolution settle- 
ment. When the settlement of questions involving 
almost the very existence of the state depended upon 
the bare decision of the King's judges, and their own 
tenure of office upon the favour of the King, it is not 
strange that the oracles were sometimes suspected, nor 
is it strange that judges should be beaten down and 
cowed by the superior power of the King. When the 
King could descend to personal encounter with one of 
them, "looking and speaking fiercely with bended fist, 
offering to strike him," because that judge " humbly 
prayed the king to haue respect to the Common Lawes 
of his land," it is little wonder that even the inflexible 
Coke should fall "flatt on all fower" and humbly beg 
the King's pardon and compassion. 2 

As yet no subject could stand before the clenched 
fist of the King, but such expedients are dangerous. The 
struggle was thus early taking on the character of a 
personal breach between the King and a part of his 

1 Section iii. 

2 From a letter of Sir Rafe Boswell to Dr. Milborne, quoted by Roland G. 
Usher in Eng. Hist. Rev., vol. xviii. pp. 669-70. 



people, and the action of James, in heat of passion, thus 
putting aside the very dignity of which he was the most 
extravagant upholder, was no unimportant stage in the 
decline of respect for the kingly office which made pos- 
sible the execution of Charles. The significance of the 
episode is that such a humiliating scene should be made 
merely because the King's judge begged him to have 
respect to the laws of the land. It serves to illustrate the 
true nature of the whole conflict that follows. It is un- 
necessary to follow the details of the controversy be- 
tween the King and the Chief Justice which led to the 
removal of the latter : all were based on this fundamental 
antagonism between Coke's idea of a fundamental law, 
binding and protecting the King as well as his subjects, 
and the idea of the King, who "said that he was not 
defended by his laws, but by God." 1 It will be sufficient 
to look at some of the statements brought out on both 
sides by the controversy. 

The idea of a King legibus solutus was not a new 
one to James. Long before he had laid down in no 
uncertain terms his idea of a "free" monarchy. In it 
the King was free of the laws, "Domxnus omnium 
bonorum, and Dominus directus totius Dominii, the 
whole subjects being but his vassals, and from him hold- 

1 Letter of John Hercy to the Earl of Shrewsbury, dated Nov. 25, 1608, printed 
in Lodge's Illustrations, vol. iii. p. 248. For the best and fullest account of the 
relations of James and Coke, see Gardiner's History of England, vol. ii. p. 35 
et seq., and vol. iii. pp. 1-27 ; see also Coke's report of the Case of Prohibitions, 
12 Reports, 63-5 ; Hearn, Government of England, pp. 297, 298 ; Homersham 
Cox, Institutions, p. 333 and note; Hallam, ch. vi. See also Mr. Usher's article 
mentioned above. 



ing all their lands as their ouer-lord, who according to 
good seruices done vnto him, chaungeth their hold- 
ings from tacke to few, from ward to blanch, erecteth 
new Baronies, and vniteth old, without aduice or au- 
thoritie of either Parliament, or any other subalterin 
judiciall seate." 1 "As likewise, although I haue said, 
a good king will frame all his actions to be according 
to the Law; yet is hee not bound thereto but of his 
good will, and for good example-giuing to his subjects. 
. . . And where he sees the lawe doubtsome or rigor- 
ous, hee may interpret or mitigate the same, lest other- 
wise Summumjus bee summa injuria; And therefore 
generall lawes, made publikely in Parliament, may 
upon knowen respects to the King by his authoritie 
bee mitigated, and suspended vpon causes onely 
knowen to him." 2 The idea of a fundamental law was 
not unknown to him, but it was a law to keep his 
people in subjection and his succession secure, nothing 
more. 3 In his later years he will hardly admit even 

1 The Trew Law of free Monarchies: Works, p. 202. 
2 Ibid., p. 203. 

3 "And according to these fundamentall Lawes already alledged, we daily 
see that in the Parliament (which is nothing else but the head Court of the 
King and his vassals) the lawes are but craued by his subjects, and onely made 
by him at their rogation, and with their aduice : For albeit the king make 
daily statutes and ordinances, enjoyning such paines thereto as hee thinkes 
meet, without any aduice of Parliament or estates ; yet it lies in the power of 
no Parliament, to make any kinde of Lawe or Statute, without his Scepter be 
to it, for giuing it the force of a law." Ibid., p. 202. See also James's explana- 
tion of the meaning of the term "fundamental laws" used in Scotland, as 
"onely those Lawes whereby confusion is auoyded, and their Kings descent 
mainteined, and the heritage of the succession and Monarchic." Speech before 
Parliament at Whitehall, March, 1607 : Works, p. 520. 



that, "He was not defended by his laws, but by God." 
"As for the absolute Prerogatiue of the Crowne, that 
is no Subject for the tongue of a Lawyer, nor is law- 
full to be disputed." 1 In opposition to this theory, many 
of the lawyers "denied the necessity for there being 
any man or body of men above the law;" 2 it was "the 
golden met- wand and measure to try the causes of the 
subjects; and which protected his Majesty in safety 
and peace." 3 

To James's boast that "although we never studied 
the common law of England, yet are we not ignorant 
of any points which belong to a king to know," 4 it was 
Coke's answer that causes concerning the life or pro- 
perty of the subject were not to be decided by natural 
reason, "but by the artificial reason and judgment of 
the law, which law is an act which requires long study 
and experience, before that a man can attain to the 
cognizance of it." 5 In opposition to the King and his 
claims, men set up the law itself as their sovereign by 
Divine Right, "For them law is the true sovereign, 
and they are not under the necessity of considering 
whether King or Lords or Commons or all three to- 
gether are the ultimate authority in the State." 6 If, 

1 Speech in the Star Chamber, June 20, 1616 : Works, p. 557. See other parts of 
this speech ; also the remarkable speech made to the Lords and Commons on 
March 21, 1609, Works, p. 529. 
2 Maitland, Const. Hist., p. 300. 

3 12 Reports, 65. 

4 Bacon's Works, edited by Montagu (American ed. ), vol. ii. p. 493. 

5 12 Reports, 65. 

6 Figgis, Divine Right of Kings, p. 228. 

[80 ] 



however, the law was to be supreme, and at the same 
time a mystery open only to the initiated, it is clear 
that if the claim of the lawyers was to be admitted, 
the supreme authority would be their exclusive pos- 
session. 1 James's antipathy to the lawyers was founded 
in a true instinct, as was his opposition to the Presby- 

As the constitutional struggle grew more intense, the 
appeals to the fundamental law became more frequent. 
Gardiner thinks the term "fundamental law" origi- 
nated among the courtiers of Queen Henrietta Maria, 
and first came into general use at the time of the agi- 
tation over the second ship-money writ in 1635. 2 The 
ship-money writ affected the people more directly than 
any prior acts of the King of a similar nature, the dis- 
satisfaction that arose over it was more wide-spread 
and general, and the common use of the expression 
"fundamental law" probably dates from it. The idea of 
fundamental law, however, was, as we have seen, an 
old one, and the expression itself did not originate 
with the Queen's courtiers. "Fundamental law," which 
now became the common expression of a general dis- 
satisfaction, had long been in use, at least among 
lawyers. In 1604, in the preamble to the Act of Par- 
liament authorizing commissioners to treat with the 
Scotch commissioners concerning the Union, are men- 

1 Figgis, Divine Right of Kings, p. 229 ; Gooch, English Democratic Ideas, 
p. 63 ; Maitland, Const. Hist, of England, p. 301. 

2 History of England, vol. viii. pp. 84, 85. 

[81 ] 


tioned the "fundamental! and ancient Lawes, Privi- 
ledges and good Customes of this Kingdome." 1 In 
1607, when the question of the Union again came up 
for debate, James, in a speech to both Houses of Par- 
liament, was at great pains to point out that the Scots 
by the term "fundamental law" referred only to the 
royal succession, "not meaning it, as you doe, of their 
Common Law," 2 thus showing that the expression had 
at that time, at least among English Parliament men, 
a definite and well-understood meaning. Coke, in his 
Second Institute, finished in 1628, speaks of Magna 
Charta as an "ancient and fundamental Law." 3 

In a conference between the houses in 1628, the 
Archbishop of Canterbury, on the part of the House 
of Lords, promised "to maintain and support the fun- 
damental laws of the kingdom, and the fundamental 
Liberties of the Subject." Sir Dudley Digges in reply 
expressed the gratification of the Commons at the 
willingness of the Lords "to maintain and support the 
fundamental laws and liberties of England." 4 

The struggle over the Petition of Right and the 
question of Tonnage and Poundage did much to fa- 

l l and 2 James I., ch. ii. 

2 Works of King James /., p. 520. "Their meaning in the word of Fundamen- 
tall Lawes, you shall perceiue more fully hereafter, when I handle the ob- 
jection of the difference of Lawes : For they intend thereby onely those Lawes 
whereby confusion is auoyded, and their King's descent maintained, and the 
heritage of the succession and Monarchic. . . . Not meaning as you doe, of 
their Common Law, for they haue none, but that which is called Jus REGIS." 

3 Page 51. For date of Second Institute, see Dictionary of National Biography, 
s. v. Coke. 

Hist., vol. ii. pp. 330, 331. 



miliarize men still further with the idea of fundamen- 
tal law. For example, when the Lords would have 
added to the Petition of Right the clause saving the 
"Sovereign Power" of the King, a storm of protest 
arose in the Commons. To acquiesce in this addition 
would be to "acknowledge a Regal as well as a Legal 
Power." 1 Pym recognizes clearly the sovereignty of 
the fundamental law, not only over the King, but over 
Parliament as well. "All our Petition is for the Laws 
of England, and this Power seems to be another dis- 
tinct Power from the Power of the Law: I know how 
to add Sovereign to his Person, but not to his Power: 
And we cannot leave to him a Sovereign Power: Also 
we never were possessed of it" 2 "These Laws are not 
acquainted with Sovereign Power," Wentworth de- 
clares. Coke's speech on this occasion is probably the 
most noteworthy of all. " I know," he says, " that Pre- 
rogative is part of the Law, but Sovereign Power is 
no Parliamentary word: In my opinion, it weakens 
Magna Charta, and all our Statutes ; for they are ab- 
solute without any saving of Sovereign Power: And 
shall we now add it, we shall weaken the Foundation 
of Law, and then the Building must needs fall; take 
we heed what we yield unto, Magna Charta is such 
a Fellow, that he will have no Sovereign. I wonder this 
Sovereign was not in Magna Charta, or in the Con- 
firmations of it : If we grant this, by implication we give 

1 Rushworth, vol. i. p. 562. 

2 Ibid. 



a Sovereign Power above all these Laws." 1 Soon after, 
the receiving of Tonnage and Poundage without a 
grant was declared to be "a breach of the fundamen- 
tal liberties of this kingdom." 2 

In 1641, in his argument against the Earl of Straf- 
ford, St. John declared: "In England there is the 
Common-Law, the Statutes, the Acts of Parliament, 
and Customs peculiar to certain places, differing from 
the Common-Law ; If any question arise concerning 
either a Custom or an Act of Parliament, the Com- 
mon-Law of England, the First, the Primitive and the 
General Law, that's the Rule and Expositor of them, 
and of their several extents." 3 

Once seized, the idea of fundamental law became 
the groundwork of most of the political writing of the 

Prynne declares that "the people of England have 
both ancient and Fundamentall Rights, Liberties, 
Franchises, Laws, and a Fundamental Government, 
which like the Laws of the Medes and Persians, neither 
may nor ought to be altered, or innovated upon any 
pretence, but perpetually maintained, defended, with 

1 Rushworth, vol. i. p. 562. The italics are not in the original. 

2 Gardiner, Documents, p. 7. 

3 Rushworth, Stafford's Trial, p. 695. The great ship-money case had also 
brought out many fresh expressions of the old doctrine (State Trials, vol. iii. 
p. 825 et seq.) ; and from that time on, references in the debates of Parliament 
and in the documents drawn up there become so frequent that it is needless to 
follow them further. See, for example, in the Grand Remonstrance (Gardiner, 
Documents, p. 131), in the ordinance erecting a court to try the King (ibid., 
p. 268), in the Agreement of the People (ibid., pp. 281, 282). 

[84 ] 


greatest care, vigilancy, resolution, . ... it being no 
lesse than a transcendent crime, and High Treason by 
our Laws, for any person or persons secretly or openly, 
to attempt the undermining or subversion of our 
fundamental laws, rights, Liberties, Government, es- 
pecially by fraud, treachery, force or armed power and 
violence." 1 Selden, in his Judicature in Parliament, 
tries to prove that in early times judgements in Parlia- 
ment were strictly guided per legem terrae, "which the 
parliament could not alter." 2 

Though the legislative activity of the Long Par- 
liament was completing the creation of the sovereign 
legislature, 3 few leaders of the day saw it. Theoretically 
the sway of the fundamental law was unbroken and 
even extended. Between the meeting of the Long Par- 
liament and the death of the King, the idea seems to 
have been gradually accepted by the majority of both 
parties, though they interpreted it differently. In 1647 
the royalist Judge Jenkins wrote from his prison in the 
Tower: "The Law of this Land hath three grounds: 
First Custome, Secondly, Judiciall Records, Thirdly, 

1 Good Old Fundamental Liberties, pt. i. p. 27. In chapter i of the same work 
he sets about to prove that "the Kingdome and Freemen of England, have 
some ancient Hereditary Rights, Liberties, Priviledges, Franchises, Laws and 
Customs, properly called FUNDAMENTAL ; and likewise a FUNDAMENTALL GOV- 
ERNMENT, no wayes to be altered, undermined, subverted, directly or indirectly, 
under pain of High Treason in those who shall attempt it: especially by fraud, 
force, or armed power" (pt. i. p. 9). He also enumerates the various state- 
ments by Parliament of the doctrine of a fundamental law (ibid., pp. 9-27), 
and gives a list of what he considers the fundamentals (ibid., p. 60 et seq.). 

2 Works, vol. iii. col. 1651. 

3 See Note B at the end of this chapter (p. 103). 

[85 ] 


Acts of Parliament. The two latter are but declarations 
of the Common-Law and Custome of the Realme, 
touching Royall Government. And this Law of Royall 
Government is a Law Fundamental!. "* 

Such royalists as adhered to the doctrine did so 
mainly because they looked on it as a safeguard of 
the kingship. When Cromwell became Protector, it is 
clear from his speeches that for him, as well, its prin- 
cipal value was as a protection from anarchy, or at least 
from extreme republicanism or the unchecked rule of 
the army. The writs of return to the Parliament, held 
under the Instrument of Government, contained the 
proviso that the persons elected " should not have power 
to alter the Government as now settled in one Single 
Person and a Parliament." 2 

In Cromwell's famous speech, provoked by this Par- 
liament's refusal to be thus restricted, and by their 
"disowning" the Instrument, "contrary to the very 
fundamental things, yea against the very root itself of 
this Establishment," he sets forth his idea of the neces- 
sity for a fundamental law. "It is true, "he says, "as 
there are some things in the Establishment which are 
Fundamental, so there are others which are not, but 
are Circumstantial. . . . But some things are Funda- 
mentals ! . . . These may not be parted with ; but will, 
I trust, be delivered over to Posterity, as the fruits of 
our blood and travail. The Government by a single 

1 The Works of Judge Jenkins (1648), p. 5. 

2 Cromwell's Speech of 12 September 1654, Carlyle. 



Person and a Parliament is a Fundamental ! It is the 
esse, it is constitutive. ... In every Government there 
must be Somewhat Fundamental, Somewhat like a 
Magna Charta, which should be standing, be unalter- 
able. . . . That Parliaments should not make themselves 
perpetual is a Fundamental. Of what assurance is a. Law 
to prevent so great an evil, if it lie in the same Legis- 
lature to unlaw it again ? Is such a Law like to be last- 
ing? It will be a rope of sand; it will give no security; 
for the same men may unbuild what they have built. 5>1 
The Levellers on their side at times avowed the 
same opinions. 2 "They assert it as Fundamental, that 
the Government of England ought to be by Laws, 
and not by Men," a phrase that had lately been made 
famous by Harrington 3 and was destined to cross the 
sea and influence the constitutional thinking of the 
New World. 4 


2 The Leveller, an anonymous pamphlet published in 1659 and reprinted in 
the Harleian Miscellany. The quotation is from the latter (vol. iv. pp. 515, 
516, edition of 1745); see also ibid., p. 520. 

3 "Government (to define it dejure, or according to antient Prudence) is an 
Art whereby a Civil Society of Men is instituted and preserv'd upon the 
Foundation of common Right or Interest ; or (to follow Aristotle and Livy) 
It is the Empire of Laws, and not of Men." Oceana: Works, p. 37. 

4 '* In the government of this commonwealth, the legislative department shall 
never exercise the executive and judicial powers, or either of them ; the ex- 
ecutive shall never exercise the legislative and judicial powers, or either of 
them ; the judicial shall never exercise the legislative and executive powers, 
or either of them ; to the end it may be a government of laws and not of men." 
Pt. i. art. xxx., Massachusetts Constitution of 1780, Poore, Charters and Con- 
stitutions, vol. i. p. 960. For the influence of Harrington on the political think- 
ing of the New World, see the article by Theodore W. Dwight in Political 
Science Quarterly, vol. ii. p. 1. 

[87 ] 


But events had moved so rapidly in England since 
the first session of the Long Parliament that men's 
views of the fundamental law had changed. The doc- 
trine first emphasized by those who wished to keep 
the King within a legally defined prerogative, and op- 
posed by the believers in Divine Right, had come 
to be used by both royalists and parliamentarians to 
a great extent. In the mouths of royalists, fundamen- 
tal law meant royal government, and it was used to 
fend off the growing pretensions of Parliament. Parlia- 
ment itself, on the other hand, as yet based its opposi- 
tion to the King mainly on precedent; and the rights 
guaranteed by Magna Charta as then interpreted were 
looked on as their main protection against prerogative. 
Things could not stop there, however. As the contest 
became more bitter, and especially after the outbreak 
of hostilities, Parliament found itself doing acts of state 
quite unwarranted by any former or existing law. 
Drawing back was out of the question. The funda- 
mental law was a weapon that might be turned against 
themselves, now that their own acts were clearly il- 
legal. The execution of the King was a demonstration 
of that which the dullest man could understand. If fun- 
damental law could be relied on by either party, the 
royalists had now violated it in a less startling man- 
ner than their opponents. But it was not the royalists 
alone that the parliamentarians found using the fun- 
damental law to their disadvantage. The extreme re- 
publicans, of whatever name, found protection against 

[88 ] 


the tyranny of a legislature in the same old funda- 
mental law. While their own views were as repugnant 
to that old law as they could well be, these men were 
acute enough to see that here was a weapon that could 
be used against the Parliament with great success. 
Parliament was still preserving such few forms of the 
constitution as were consistent with its own indepen- 
dent existence. It was peculiarly embarrassing to have 
its acts judged by the test of precedent and law, and 
it is an indication of the hold which the old idea still 
had upon Englishmen that the appeal to that idea 
should still have been so effective. The remarkable trial 
of Lilburne, in 1649, well illustrates this point. The 
popularity of Lilburne with the people, the reaction 
after the execution of the King, the evident timidity 
and almost terror displayed by the judges in that case, 
all serve to explain the acquittal of the accused ; but it 
is none the less noteworthy that Lilburne depended 
almost entirely on his rights as a subject guaranteed 
by the ancient laws, and his iteration and reiteration of 
those laws is at once irritating, amusing, and instruc- 
tive. Clarendon says that Cromwell looked upon Lil- 
burne's acquittal "as a greater defeat than the loss of 
a battle would have been." 1 In the same year as his 
trial, Lilburne published his pamphlet on "The Legall 
Fundamentall Liberties of the People of England Re- 
vived, Asserted, and Vindicated." In it he asserts the 
illegality of Parliament's Acts, especially the Act for 

1 Rebellion, bk. xiv. 



continuing their own existence, and cites Bonham's 
Case against the theory of parliamentary sovereignty. 
In a pamphlet published two years earlier "The 
Peoples Prerogative and Priviledges, asserted and vin- 
dicated, (against all Tyranny whatsoever) By Law and 
Reason, Being a Collection of the Marrow and Soule 
of Magna Charta, and all the most principall Statutes 
made ever since to this present yeare, 1647. For the 
preservation of the peoples Liberties and Properties" 
he attacks the same Act. "And for them [the Par- 
liament] forever to shelter themselves from the lash 
and stroak of justice, or forever from being called to 
accompt, for all their Cheats, Robberies, and murthers, 
by getting the Kings hand to an Act to make them 
an everlasting Parliament, no more lyes in the King's 
power justly and legally to do, then to give them power 
to make us al absolute Vassals and Slaves, and to de- 
stroy all our Lawes, Libertys and propertys, and when 
they have so done, then to cut the throats of all the 
men in England besides themselves." 

In reality, however, while the extreme republicans 
might make use of the idea of fundamental law on 
occasion, especially as a protection when in danger, 
there was nothing in the old law to which they could 
appeal as a basis for their constructive programme. It 
was only the negative aspect of the fundamental law 
that they accepted, a limitation of the powers of a 
king or a parliament; their republicanism could find 
no precedent in the English constitution. Lilburne 



might talk of fundamental law at the time of his trial, 
but his real feeling is better expressed when he says: 
"The greatest mischief of all and the oppressing bon- 
dage of England ever since the Norman yoke is a law 
called the common law." And again: "Magna Charta 
itself being but a beggarly thing, containing many 
marks of intolerable bondage, and the laws that have 
been made since by Parliaments in very many partic- 
ulars made our government more oppressive and in- 
tolerable." 1 

The feeling in the army was much the same way. 
Wildman gave voice to it in 1647 when he said: "I 
thinke [that] according to the letter of the law, if the 
King will [he may] kill mee by law. Aske any lawiers 
of itt ; by the letter of the present law hee may kill 
mee, and 40 more, and noe law call him to account for 
itt." 2 

This double position of the republicans, while in- 
consistent, was not so inconsistent as it might seem at 
first sight. Though they rejected the common law, and 
regarded Magna Charta as "a beggarly thing," Crom- 
well himself only insisting on " Somewhat like a Magna 
Charta," 3 the pretensions of a virtually non-repre- 
sentative legislature had brought home to them the 
necessity of a check for it. The royalists could regard 

1 Just Man's Justification, quoted in Clarke Papers (Camden Society), vol. i. 
preface, p. Ixi. 

2 Clarke Papers, vol. i. p. 406. 

3 For his contemptuous remarks concerning Magna Charta, quoted by Claren- 
don, see the History of the Rebellion, book xv. 



the old fundamental law as such a check. That alter- 
native was not open to the republicans. It was a 
double-edged weapon. The principles of the common 
law were as destructive of their own theories as they 
were of parliamentary sovereignty. A check on that 
sovereignty must be found, however, and the idea of 
a fundamental law supplied it. If an ancient funda- 
mental law if Magna Charta could curb the King 
or the Parliament, why could not a new document be 
drawn embodying their own principles and free from 
the encumbrance of the old law, which should be bind- 
ing upon and unalterable by the legislative power? 
Such a notion received the assent of the more extreme 
republicans because it restricted Parliament; it was 
favored by the more conservative, as Cromwell, be- 
cause it offered a protection against the too sudden 
and sweeping changes which the radicals were clam- 
ouring for. And so we have the trial of a new thing in 
English history, the written constitution. 1 

1 It is no part of my purpose to trace the development of the idea of a written 
constitution except in so far as it appears to be an outgrowth of the older idea 
of a fundamental law. No doubt the English Puritans were influenced by ear- 
lier experiments of a like nature in New England. For the most complete ac- 
count of the history of the written constitution, seeW. Rothschild, DerGedanke 
der geschriebenen Verfassung in der Englischen Revolution, Tubingen and Leip- 
zig, 1903. Rothschild says comparatively little about the origin of the idea, 
but he traces it carefully through all the state papers from the Heads of the 
Proposals to the Humble Petition and Advice. Jellinek gives a short account, 
but traces the idea back to Fortescue, Allgemeine Staatslehre, 2d ed., p. 494 
et seq. See Charles Borgeaud, The Rise of Modern Democracy in New and Old 
England; also The Constitutional Experiments of the Commonwealth (1649- 
60), by Edward Jenks. The texts of the various documents are given in con- 
venient form in Gardiner's Documents of the Puritan Revolution; Ameri- 


14- , 


It would be wrong to think that the more extreme 
of the republicans were the only ones who regarded the 
common law as a "mischief." The work of the Long 
Parliament could not be undone. England had seen 
practically for the first time a legislative assembly of the 
modern type, no longer a mere law-declaring, but 
a law-making, machine. The " High Court of Parlia- 
ment" had not disappeared, but henceforth, as never 
before, lawmaking takes precedence of all other mat- 
ters. The great phases of the English Parliament have 
been its history as a court, then as a legislature, and 
finally as a government-making organ. Parliament de- 
finitely passed out of the first of these stages at the first 
session of the Long Parliament. 1 

Men's political theories reflect the conditions about 
them. The English political thought of to-day and the 
speculation of the seventeenth century, from which it is 
. directly derived, are no exception to this rule. Practical 
parliamentary omnipotence begat a theory of parlia- 
mentary sovereignty. After the parliamentary activity 
of the years following 1640, Parliament could never fall 
back into the place it had occupied under the Tudors 
and before, and men could never again think of it as 

can constitutions are in Poore's Charters and Constitutions. The growth of the 
idea of putting restrictions on the Parliament may be traced in the Clarke 
Papers. See, for example, vol. i., preface, and pp. 386, 403, 406, 407-9, etc. 
1 This will not be misunderstood to mean that Parliament is not largely judicial 
or legislative to-day. It is only a question of emphasis, of precedence. It is one 
of the main purposes of this essay to prove the continued existence of Parlia- 
ment's functions as a court, and to try to explain some of its modern charac- 
teristics by means of them. 



they had formerly done. The strength of precedent 
might influence legal decisions for some time to come, 
but political philosophy henceforth strikes out in a new 
line. Milton in his zeal for the Parliament speaks of his 
opponents as "contesting for privileges, customs, forms, 
and that old entanglement of iniquity, their gibber- 
ish laws, though the badge of their ancient slavery." 1 
Later he wrote: "But the parliament is above all pos- 
itive law, whether civil or common, makes or unmakes 
them both." "For how," he asks, "could our forefathers 
bind us to any certain form of government more than 
we can bind our posterity?" 2 

The royalist writers are as much affected by the 
change as their opponents. For the future, there is 
little difference whether the writers be royalist or par- 
liamentarian, they both accept the new idea of legis- 
lative sovereignty. For the royalists this sovereignty 
lies in the King alone, for their opponents in the Par- 
liament ; but both reject the idea of a supremacy of law. 
To say with Hobbes and Filmer that the King is above 
the law, or with Milton that Parliament can make or 
unmake any law whatsoever, is to deny the traditional 
doctrine. The functions of King and Parliament are 
not jus dicere, as Coke thought, but jus dare. Judicial 
supremacy has given place to legislative sovereignty, 
whether the sovereign be the King or the Parliament. 
Speculators on both sides would have agreed with the 

1 The Tenure of Kings and Magistrates (published 1648-9). 

2 Brief Notes on Dr. Griffith's Sermon (published 1660). 



admirable summary of Hobbes: "It is not wisdom, but 
authority that makes a law." 1 

In a nation's history, periods of civil war are usually 
followed by an acquiescence in strong government. The 
security of the Tudors on the throne after the Wars of 
the Roses was largely due to this fact, and out of it also 
in England of the seventeenth century grew the doc- 
trine of legislative sovereignty which has had an un- 
broken history down to our time. The main source of 
the new theory was the actual exercise of legislative 
power after 1640, and the habituating of men's minds 
to it in those years. Hobbes makes his philosopher in the 
dialogue ask the lawyer : " When their new republic re- 
turned into monarchy by Oliver, who durst deny him 
money upon any pretence ofMagna Chart a, or of these 
other Acts of Parliament which you have cited ? You 
may therefore think it good law, for all your books, that 
the King of England may at all times, that he thinks in 
his conscience it will be necessary for the defence of his 
people, levy as many soldiers and as much money as 
he please, and that himself is judge of the necessity." 2 
"As for the common law contained in reports, they 
have no force but what the King gives them." 3 Filmer's 

1 A Dialogue of the Common Laws: English Works (Molesworth), vol. vi. p. 5. 
Hobbes's words here may be worth quoting a little more at length : " It is not 
wisdom, but authority that makes a law. Obscure also are the words legal rea- 
son. There is no reason in earthly creatures, but human reason. But I suppose 
that he [Coke] means, that the reason of a judge, or of all the judges together 
without the King, is that summa ratio, and the very law: which I deny, be- 
cause none can make a law but he that hath the legislative power." 
2 Ibid., p. 18. 3 Behemoth: English Works, vol. vi. p. 210. 



statements of this view have a more modern sound than 
those of Hobbes ; his words might well have come from 
Austin himself: " It is not the being of a Custom that 
makes it lawful, for then all Customs, even evil Cus- 
toms, would be lawful ; but it is the Approbation of 
the supreme Power that gives a legality to the Custom: 
where there is no Supreme Power over many Nations, 
their Customs cannot be made legal." 1 "There never 
was, nor ever can be any People governed without a 
Power of making Laws, and every Power of making 
Laws must be arbitrary." 2 Such is the doctrine of the 
modern English constitution. Now and then, since the 
days of Filmer and Hobbes, the old doctrine has 
cropped out, especially in times of stress, but such 
times have been comparatively few and far between. 3 
From the foregoing account of the doctrine of fun- 
damental law in England, it will be seen that the law 
declared by Parliament in the middle ages was a cus- 

1 Observations upon H. Grotius De Jure Belli <$ Pacis. 

2 The Anarchy of a Limited or Mixed Monarchy, preface ; see also pp. 241, 242, 
266-8 (edition of 1680); Patriarcha, ch. iii. sections 8, 9. 

3 For example, in 1688-9, State Tracts, vol. i. pp. 282, 423. Another such time was 
when the repeal of the American Stamp Act was under consideration in Par- 
liament in 1766. Lord Camden, speaking of the Stamp Act, said: "In my 
opinion, my lords, the legislature had no right to make this law. The sovereign 
authority, the omnipotence of the legislature, my lords, is a favourite doctrine, 
but there are some things they cannot do," etc. Parl. Hist., vol. xvi. p. 168. 
Lord Chancellor Northington answered : "My lords, I seek for the liberty and 
constitution of this Kingdom no farther back than the Revolution : there I 
make my stand." Ibid., p. 171. Camden declared also that the Declaratory Act 
was "absolutely illegal," contrary to the laws of nature, "contrary to the 
fundamental laws of this constitution." Ibid., p. 178. Again in 1775 Lord Cam- 
den returned to the same point in the debate on Lord Chatham's motion to 
withdraw the troops from Boston. Parl. Hist., vol. xviii. pp. 164, 165. 

[96 ] 


ternary one. In no western country has precedent had 
such complete and unbroken sway as in England. The 
first fragmentary dooms we find, Ethelbert does not 
make, but, "a sette." 1 From then till now, "the life 
and soul of English law has ever been precedent." 2 Ab- 
solutism has never been unchecked in England, and of 
a purely speculative basis of law there is no trace till 
times that are almost modern. The law of nature, or 
whatever that speculative basis may be called, appears 
remarkably late, and when it first appears it comes 
largely as an attempt, born of the curiosity of the 
Renaissance, to account for a body of customary law 
which has long been in existence, and whose binding 
character is unquestioned, though its beginnings are 
lost in antiquity. Indeed, one of the striking facts to 
be noted even as late as the seventeenth century is that 
political speculation in England cannot rid itself of this 
basis of a traditional, customary, fundamental law. Even 
Milton and Locke were not free from it, notwithstand- 
ing their contempt for the narrowness of the law; and 
it is a commonplace of the history of political thought, 
how Englishmen in their actions and their thinking 
on political matters have been bound by precedent 
rather than by abstract theories. " Of legalism there is 
much; of political science, none." 3 Rights are "asserted 
and maintained on the basis of ancient law and cus- 

1 Liebermann, Oesetze der Angelsachsen, vol. i. p. 3. 

2 Freeman, Growth of the English Constitution, p. 58. See also Dicey, Law of 
the Constitution, pp. 18, 19. 

3 Dunning, Political Theories from Luther to Montesquieu, p. 194. 



torn," 1 and for these rights, "a broader basis" than this 
one of customary law "enters into the consciousness 
of the English only very gradually. " 2 " In all our great 
constitutional struggles," says Professor Hearn, "the 
question has been invariably argued on either side as 
a question of dry law." 3 

How preponderant in the idea of fundamental law 
custom was over a priori reasoning may easily be 
seen from the whole course of English legal history. 
The author of the Doctor and Student divides the law 
of reason into the "law of reason primary" and the 
"law of reason secondary." The distinction between 
them is in the fact that "reason secondary" "is 
grounded and derived of the general law." "And the 
law," he goes on to say, "is so full of such secondary 
reasons derived out of general customs and maxims 
of the realm, that some men have affirmed that all 
the law of the realm is the law of reason. But that 
cannot be proved, as me seemeth. . . . And it is not 
much used in the laws of England, to reason what 
law is grounded upon the law of the first reason pri- 
mary, or on the law of reason secondary, for they be 
most commonly openly known of themselves ; but for 
the knowledge of the law of reason secondary is greater 
difficulty, and therefore therein dependeth much the 
manner and form of arguments in the laws of Eng- 

1 Dunning, Political Theories from Luther to Montesquieu, p. 197. 

3 The Government of England, 1st ed., p. 6; Lowell, The Government of Eng- 
land, vol. ii. p. 487. 



land." This "law of reason secondary" seems to have 
much in common with that "artificial reason" which 
Coke set up in such exasperating fashion against the 
pretensions of James I as a judge. 1 "Tis from the 
Statute-Book, not the Bible, that we must judg of 
the Power our Kings are invested withal, and also of 
our own Obligations, and the measures of our Sub- 
jection," said a pamphleteer of the Revolution; 2 and 
writers of that school could just as readily have sub- 
stituted the "law of nature" for the Bible in this state- 

It is to be expected, of course, that this "artificial 
reason " would receive scant courtesy from writers like 
Hobbes, who had accepted the new theory of legisla- 
tive sovereignty. 3 

Thus it appears that the law which we find enrolled 
among the records of the English mediaeval Parlia- 
ment is in the main a body of custom of which the 
Parliament's enactments are only declaratory ; 

That certain great principles of this law were be- 
lieved to be beyond the power of Parliament or of any 
other body of men to change; 

That though this law was often identified with the 
law of nature, its inviolability was due in the first place 
to its universality as a custom. 

If this be true, the Parliament where these customs 

1 See Note C at the end of the chapter (p. 105). 

2 Reflections upon the Great Revolution : State Tracts, vol. i. p. 253. 

3 For example, see Hobbes, Dialogue of the Common Laws : English Works 
(Molesworth), vol. vi. pp. 5, 6, 14, 15, 22. 



were declared, affirmed, defined, and applied must have 
been a body with far different functions from those of 
our modern assemblies where laws are made. 




(Page 66) 

AN attempt to keep the King within the bounds of the law seems 
to be indicated by the fact noted by Matthew Paris that at the 
coronation ceremony of Henry III the Earl of Chester carried the 
sword of St. Edward "in signum quod comes est palatii et regent si 
oberret habeat de jure potestatem cohibendi." Quoted in Pollock and 
Maitland, H. E. L., vol. i. p. 182, note 5. Outside the Great Charter 
itself, no words have been cited so often in English constitutional 
crises as the famous words occurring in the text of Bracton: "Rex 
autem habet superiorem, deum, s. Item legem, per quam factus est rex. Item 
curiam suam, videlicet Comites, Barones, quia Comites dicuntur quasi socii 
regis, et qui habet socium, habet magistrum, et ideo si rexfuerit sinefraeno, 
i. sine lege, debent ei fraenum ponere" (folio 34). This wonderful passage, 
however, stands in glaring contradiction to several other passages in 
Bracton (e.g. folios 52 and 107), which state that the King has no 
peer upon earth, and no one who can coerce him. In folio 171 B 
Bracton says that the King cannot be punished by anyone save God 
himself, "nisi sit qui dicat quod universitas regni et baronagium suum 
hocfacere debeat et possit in curia ipsius Regis" Under this nisi sit qui 
dicat Maitland thinks " Bracton may well be stating his own opinion. 
Most undoubtedly he held that the King was bound by law, that God 
would exact of him a very strict account." The conclusion that Pro- 
fessor Maitland comes to after an exhaustive examination of the va- 
rious MSS. of Bracton is that the famous sentence printed in folio 34 
is not a part of the original text. Nevertheless, the sentence is of 
very ancient date. Professor Maitland thinks Bracton himself "may 
have written it in the margin of his manuscript, having learned and 
unlearned things since he wrote the body of the treatise." The 
statement is found in Fleta, which was written before the beginning 
of the fourteenth century, so it may be taken as a fair, if a strong, 
statement of the doctrine accepted in the latter part of the thirteenth 
century. The whole question of the authenticity of the passage is 
treated in a masterly manner by Professor Maitland, in Bracton s Note 
Book, vol i. pp. 29-33. See also G. B. Adams in Am. Hist. Rev., vol. xiii. 
p. 730, note 31. Though the text of Bracton thus shows that the King 
has no superior and no peer on earth, the doctrine is not found 

[101 ] 


there that the King is princeps legibus sohdus(Dig. i. 3. 31). Bracton 
states very definitely a contrary doctrine (folio 107): "Nihil enim 
aliud potest rex in terris, cum sit dei minister et vicarius, nisi id solum quod 
de jure potest, nee obstat quod dicitur, quod principi placet legis habet vi- 
gorem, quia sequitur injine legis, cum lege regia quae de imperio eius lata 
est, i. non quicquid de voluntate regis temere praesumptum est sed animo 
condendi jura, sed quod consilio magistratuum suorum, rege autoritatem 
praestante, et habita super hoc deliberatione, fy tractatu, recte fuerit defini- 
tum." The original of this is the famous statement of Ulpian {Dig. i. 
4, 1 ; Inst. i. 2, 6) : " Quod principi placuit, legis habet vigorem : utpote cum 
lege regia quae de imperio ejus lata est, populus ei et in eum omne suum 
imperium etpotestatem conferat." The importance of the principle enun- 
ciated here, its influence on later constitutional struggles in Eng- 
land, and the glaring discrepancy between Ulpian's statement and 
Bracton's version of it make it necessary to look more closely at this 

This discrepancy was noticed "non sine stupore" and commented 
on at length by Selden (Dissertatio ad Fletam, cap. iii. 2). Bracton, 
it will be noted, omits entirely the last part of the original, begin- 
ning with the word populus, thus giving the sentence a wholly new 
meaning. The cum, which in the original introduces a clause that may 
be translated "since by the lex regia, which has been passed concern- 
ing his imperium, the people entrust to him all their imperium and 
power," is here made to do duty as a preposition instead of a causal 
conjunction, and the sentence ends with lata est; thus transforming 
the meaning into something like this: "For the King has no other 
power in the land, since he is the minister and vicar of God, except 
that alone which he derives from the law, and that is not to the con- 
trary which says 'what pleases the prince has the force of law,' for 
there follows at the end of the law ' with the lex regia which has been 
passed concerning his imperium/" etc. Such a garbling of the text 
might well excite the wonder of Selden, and the curious fact is that 
the changed form is given almost word for word by Fleta (lib. i. 
cap. I7,fol. 16, 17) ; and, according to Selden, also by the manuscript of 
Thornton, and in at least one manuscript of Britton (see Selden, loc. 
cit., and Nichols's note to Britton, fol. 1). No explanation of this could 
keep us from surprise that these authors, who no doubt had the 

[ 102] 



whole text of this well-known sentence, should deliberately suppress 
a part of it and give it a sense entirely at variance with the inter- 
pretation of all other commentators and with its own plain meaning. 
But the correct explanation, nevertheless, obviously is that in Eng- 
land, in Bracton's day and Thornton's, there was a law fundamental, 
not alterable by the King, under which he ruled, by which his action 
was circumscribed, and if Justinian's law-books were to be cited they 
must conform with the law of the land. In this connection see Holds- 
worth, H. E. L., vol. ii. pp. 197-200. 


(Page 85) 

IT is not easy to fix with any exactness the date of the beginnings 
of the legislative activity which has become one of the main char- 
acteristics of modern Parliaments, nor to assign the causes of its 
growth. Jenks apparently regards the activity of Parliament in the 
separation of the Church of England from the Church of Rome as 
the culmination of the process. Law and Politics, pp. 44, 45. 

Seeley thinks that the immediate cause of the "exceptional and 
strange" prominence of legislation in our own time "was the vast 
convulsions that followed the French Revolution." He believes that 
the " extreme and unprecedented prominence of legislation," due to 
these upheavals, was in turn the cause of the development of cabi- 
net government in England in the nineteenth century. Introduction 
to Political Science, p. 288. 

Maitland points out the fact that notwithstanding the bulk of the 
statute-book in the eighteenth century, comparatively few acts of 
real legislation were passed before the first reform act, which pro- 
duced radical and sweeping changes in the laws, such, for example, 
as the Poor Law Reform Act of 1 834. Constitutional History of Eng- 
land, pp. 382-4. 

In tracing this development we must not overlook the importance 
of the activity of the Long Parliament and the Parliaments of the 
Protectorate, an activity, notwithstanding the Major-Generals,that 
had become so much of a habit by 1660 that never again after the 
Restoration was it possible for a king to get along for years at a time 

. [ 103 ] 


without a parliament, as had been done so often before. The Resto- 
ration, Seeley thinks, marks the time when "the permanent Par- 
liament takes its place . . . among English institutions." Political 
Science, p. 258. It may be true, as Gneist says, that "legislation" 
really begins with the reign of Edward II. The only point insisted 
on here is that its growth was very gradual, and above all that the 
men of the day did not distinguish it with clearness from parliamen- 
tary action, now called judicial. A point has sometimes been made 
of the refusal of a petition in 18 Edward II, on the ground that 
the remedy asked for required a new law to which the " comminaltie" 
must assent. It must be remembered, however, that at the time com- 
minaltie did not mean Commons. Comminaltie de la terre, in fact, meant 
the whole community in the time of Edward II, a community that 
was not always "represented" as yet in the central assembly. There 
is difficulty, therefore, in connecting this statement with "legis- 
lation." In all probability a reply in this form was merely a mode 
of getting rid of the petition and little more. As Palgrave says, "It 
was a gracious way of giving a refusal." Report on Public Petitions: 
Parliamentary Papers, Session of 1833, vol. xii. p. 21. 

Whatever dates we may set as the crises in this development, and 
to whatever causes we may ascribe these crises, it is clear that this 
legislative activity of Parliament has been a development, and a slow 
development. By the "logic of events" the new idea was slowly but 
surely borne in upon the minds of Englishmen that Parliament was 
a real lawmaking organ. Times of crisis, of course, hastened this 
process. Emergencies arose that required prompt action; existing 
laws were inadequate ; no rule was in existence to be "determined;" 
there was no time for a fiction ; a rule must be made. Such a crisis 
confronted the Long Parliament. It was met by an assumption of 
power wholly unusual. The acts of the Long Parliament, legal and 
illegal, justifiable and unjustifiable, did much to habituate the minds 
of Englishmen to a legislative assembly. Further back, the same 
could be said in a measure though I think a much smaller mea- 
sure of the Reformation Parliament. After the Restoration the de- 
velopment was accelerated. It was, however, all one great movement, 
and the point chiefly to be emphasized here is the fact that the 
movement is essentially a modern one. Its result has been to transform 

[ 104] 


our practice in lawmaking and our conception of the lawmaking 
power, to alter our whole attitude toward changes in the existing 
frame of government. It is a far cry from the Doctor and Student to 
the Principles of Morals and Legislation. A long process of evolution 
was required to produce a Jeremy Bentham. 


(Page 99) 

THIS dialogue is probably the most valuable source of our knowledge 
concerning the relation of the law of nature to the law of England 
in the late mediaeval or early modern times. The first part was pub- 
lished in Latin in 1523. The author makes an elaborate division 
of laws into the Law Eternal, or the divine source from which are de- 
rived all laws known to men. These derivative laws, in turn, he di- 
vides into "the Law of God," i.e. revelation; "the Law of Man," 
i.e. positive law; and "the Law of Reason," "the which by the doctors 
is called the law of nature of reasonable creatures," "the which, as 
I have heard say, is called by them that be learned in the law of 
England, the law of reason." As to the term "law of nature," he says, 
" it is not used among them that be learned in the laws of Eng- 
land to reason what thing is commanded or prohibited by the law of 
nature, and what not, but all the reasoning in that behalf is under 
this manner. As when anything is grounded upon the law of nature, 
they say, that reason will that such a thing be done; and if it be pro- 
hibited by the law of nature, they say it is against reason, or that 
reason will not suffer that to be done." It seems a rather interesting 
fact that the common lawyers rejected the term "law of nature," 
which was so familiar to the doctors of the civil law. If their "law 
of reason" were not in some respects different in its basis or its sanc- 
tion or its substance from the law of nature, why should they go out 
of their way thus systematically to avoid the expression "law of na- 
ture"? The English "law of reason" seems to have had the same 
close relation to custom that the old law of nature had formerly borne 
to the jus gentium; "to discern the law of God and the law of reason 
from the law positive is very hard," says our author. 

When the Student in the dialogue begins to enumerate the six 



grounds of the law of England, he subdivides the law of reason, as 
we have seen, into the law of reason primary and the lam of reason sec- 
ondary. The first of these seems to mean the rules by which a man 
is protected in what a modern jurist would call his personal rights; 
while the second deals with his property rights. The reason for this 
distinction appears in Dialogue II. (ch. iii.), where the author says 
"that the property of goods is not given to the owners directly by 
the law of reason, nor by the law of God, but by the law of man, 
and is suffered by the law of reason, and by the law of God so to be. 
For at the beginning all goods were in common. . . . But the law of 
reason secondary is again subdivided into the law of reason secondary 
general and the law of reason secondary particular. The first of these is 
the "law of property . . . generally kept in all countries;" the second, 
our author says, " is derived of divers customs general and particu- 
lar, and of divers maxims and statutes ordained in this realm." 

One or two points are here interesting. In the first place, no purely 
personal rights depend upon the law of reason secondary particular, 
it is only property which may come under any other rules than the 
universal rules of nature ; secondly, municipal laws relating to pro- 
perty, though laws of reason, are "derived of" customs, maxims, and 
statutes. It is in these laws of reason "derived of" customs, etc., that 
we can see that close relation between the positive law and the law 
of nature which has been such a marked characteristic of English 
legal speculation from the Renaissance to the present day. Thus the 
Student asks the Doctor who should be liable for beasts lawfully dis- 
trained and dying of hunger in pound overt. This question the Doc- 
tor answers correctly on the basis of the law of reason, but the Stu- 
dent asks, " Who hath taught thee to do so but reason derived of the 
said general custom ?" (the custom "general" in England of impound- 
ing legally distrained cattle). This secondary particular reason is, 
then, clearly derived from customs, maxims, and statutes. Maxims 
are in turn derived from customs. These maxims are not a part of 
the law of reason; Saint Germain considers them an independent 
"ground" of the law of England. The law of reason is "derived of" 
them, but they are derived only of custom. "And they be of the 
same strength and effect in the law as statutes be. And though the 
general customs of the realm be the strength and warrant of the 



said maxims, as they be of the general customs of the realm ; yet be- 
cause the said general customs be in a manner known through the 
realm, as well to them that be unlearned as learned, and may lightly 
be had and known, and that with little study, and the maxims be 
only known in the king's courts, or among them that take great 
study in the law of the realm, and among few other persons ; there- 
fore they be set in this writing, for several grounds, and he that list- 
eth may so account them, or if he will, he may take them for no 
ground, after his pleasure." (Dialogue I., ch. viii.) Thus it is evident 
that the maxims are generalizations handed down by the oracles of 
the law and based upon the customary law. They consist of reason- 
ing upon the customs, but they are not a part of the "law of reason." 
The law of reason may be based upon them, though they themselves 
are based only upon custom. This same particular reason may also be 
"derived of" a statute. Statutes and customs and maxims are in fact 
coordinate in authority, and a law of reason may be derived of all or 
any of the three, but when so derived it is of a higher authority than 
they. Thus a custom or maxim or statute against reason is void, even 
though the reason itself be derived from custom, maxim, or statute. 
A statute may change a custom, and apparently may even abrogate 
a maxim, but any custom or maxim or statute against reason is ipso 
facto void. In fact, the general test which Saint Germain usually em- 
ploys to try whether anything in the law of England is based upon 
the law of reason or not, is whether it may be altered by statute or 
not (e.g. Dialogue I., ch. viii.). 

As a piece of dialectics this division seemed to satisfy the Student 
and the Doctor, but when applied to the actual rules of law in Eng- 
land it is easy to see how hard it would be to decide whether a spe- 
cific rule was in fact a law pf reason " derived of" custom and un- 
alterable by statute, or only the result of the judges' "reasoning" 
upon a custom, a mere maxim which a statute might alter or en- 
tirely abrogate. The author confesses: "Moreover there be divers 
cases whereof I am in doubt whether they be only maxims of the 
law, or that they be grounded upon the law of reason," and he gives 
a long list of such maxims. In the end he gives up the attempt and 
leaves the question to the reader to decide: "And it is many times 
very hard and of great difficulty to know what cases of the law of 



England be grounded upon the law of reason, and what upon custom 
of the realm ; and though it be hard to discuss it, it is very necessary 
to be known, for the knowledge of the perfect reason of the law. 
And if any man think that these cases before rehearsed be grounded 
upon the law of reason, then he may refer them to the first ground 
of the law of England, which is the law of reason, whereof is made 
mention in the fifth chapter. And if any man think that they be 
grounded upon the law of custom, then he may refer them to the 
maxims of the law, which be assigned for the fourth ground of the 
law of England, whereof mention is made in the eighth chapter, as 
before appeareth." Thus though it is only the law of reason which 
can overcome a statute, it is easy to see how, in the hands of the 
common lawyers, this reason could become identified with the fun- 
damentals of the common law, the "artificial reason" which might 
neither be known nor tampered with by the unlearned, even by a 

Thus for Coke the greater principles of the common law, whether 
they were in origin customary or intuitive, could be looked upon in 
their entirety as sacred and unchangeable. That law was "the per- 
fection of reason." However, it seems less probable that the practice 
of the common lawyers in subordinating enactment to custom was the 
result of such reasoning as Saint Germain's, than that his dialogue 
was an attempt to explain and justify, through the medium of the 
scholastic philosophy and the Civil Law, what had long been the actual 
practice of the judges of the common law. This subject is closely 
connected with the distinction made by lawyers between malum in 
se and malum prohibitum. See Doctor and Student, Dialogue I., espe- 
cially ch. v. See also ch. vii.; Dialogue II., ch. xv. ; Reason and Conscience 
in Sixteenth Century Jurisprudence , by Professor VinogradofF, L. Q. R., 
vol. xxiv. p. 373 et seq., especially pp. 376, 377; Finch's Law (1627), 
pp. 74, 75 ; The History of the Law of Nature, by Sir F. Pollock, Journal 
of the Society of Comparative Legislation , N. S., vol. ii. p. 418 et seq., and 
ch. iv. of his Expansion of the Common Law; Holdsworth, H. E. L., 
vol.ii., appendix ii., The Law of Nature and the Common Law. On malum 
prokibitum, see 4 Inst., 63; Blackstone, Com., vol. i. pp. 54, 57; Amos's 
edition of Fortescue's De Laudibus Legum Angliae, p. 49, and refer- 
ences there cited. 

[ 108] 



Parliament as a Court 


O those who believed in a fundamental law im- 
mutable, the present-day doctrine of legislative 
sovereignty seemed new and contrary to the spirit of 
English institutions. In the constitutional struggle of 
Charles I's reign the doctrine of parliamentary sover- 
eignty came to men, as Mr. Figgis truly says, " with all 
the force of a discovery." 1 It lent itself to the views of 
the more extreme on both the parliamentary and the 
royalist side, and its influence over men's minds since 
the days of Milton and Hobbes has become so com- 
plete that historians have well-nigh forgotten that any 
other theory ever existed. 

The word Parliament has come to carry with it the 
idea of a lawmaking assembly of the type described 
by Blackstone. Men in time became so familiar with 
that idea that they were not conscious of the great 
and unwarranted assumption they were making when 
speaking of Tudor and pre-Tudor times; for Parlia- 
ment, up to the time of the Tudors, was hardly thought 
of primarily or principally as a legislature: it was still 
in reality "The High Court of Parliament." That court 
then retained the varied functions of the old Curia, as 
Parliament now does ; but the judicial functions bulked 

1 Divine Right of Kings, p. 232. 

[ 109 ] 


larger in men's minds than the legislative. Parliament 
still seemed primarily a law-declaring machine. So 
long as the law was a thing fundamental and immu- 
table, "a subject of science, capable of being learnt by 
special study, but not capable of being altered by the 
mere will of government," Parliament's functions must 
have been conceived to be in large part merely the 
enforcing and applying of this law : Parliament must 
have been thought of first as a court rather than as 
a legislature. This I believe to have been the view pre- 
vailing, among lawyers at least, as late as the assembling 
of the Long Parliament. The statement of James I and 
Bacon, that a judge's functions were rather jus dicer e 
than jus dare, would have seemed as properly applica- 
ble to the High Court of Parliament, if not so fully, 
as to the courts at Westminster Hall. The prominence 
of the judicial character of Parliament in the minds of 
men of the mediaeval period is the normal and natural 
consequence of the prevailing view that law was fixed; 
but it is at times surprising to find how late that idea 
has survived, how many of the characteristics even of 
the modern sovereign Parliament are due to it, and 
how many of the great parliamentary struggles of 
comparatively recent times have been influenced by 
the old conception of Parliament as a court. 

"The function of a court of law," says Gneist, "was 
and remained the very kernel of every Germanic form 
of Constitution; judicial proceedings formed the cur- 


rent business of every national assembly." 1 Such a 
"national assembly "as England could be said to have 
had in the period of the Norman kings was "rather 
a court than an organized council. " 2 The fact, already 
noted, of the frequent use of the word curia for such 
assemblies is a strong proof of this. Hoveden uses that 
word for the assembly in which the Constitutions of 
Clarendon were drawn up in 1164. 3 

Another proof, and a striking one, of the judicial 
character of the Council is afforded by the dispute be- 
tween the kings of Castile and Navarre, which they 
agreed should be settled by a "judicium," "in curia . . . 
regis Angliae," in 1177. 4 

1 Constitutional History, vol. i. pp. 255, 256. 

2 Stubbs, Constitutional History, vol. i. p. 385; Lords' Report, vol. i. p. 21. 
3 Vol. i. (Rolls Series), pp. 222, 224, 225, cited by Pike, Constitutional History 
of the House ofLords,p. 29. "Et sic recessit archiepiscopusacuria." Hoveden, 
vol. i. p. 222. Hoveden, speaking of Becket's case in the Council of North- 
ampton (which he calls a magnum concilium, vol. i. p. 224), says : " Et barones 
curiae regis judicaverunt eum esse in misericordia regis " (p. 225). See also 
Madox, Exchequer, ch. i. sec. iii. 

The Lords' Commissioners in the Report on the Dignity of a Peer (vol. i. p. 46) 
noticed this and were much perplexed, concluding finally "that the Words 
'Curia Regis,'" in the Constitutions of Clarendon, " were intended to include 
the ' Curia ' when assembled for Legislative as well as when assembled for Ju- 
dicial Purposes ; and that the Words applicable to their Judicial Functions 
were inserted, because the Clergy declined attending any Lay Court of Justice 
in any Criminal Case in which Judgement was to be pronounced of Loss of 
Limb or Death." 

* In this case, the "curia" to which it was referred consisted of the Archbishop 
of Canterbury, the bishops, counts, and barons, "and many others of the realm 
of England, clerics as well as laymen." Benedictus Abbas (Rolls Series, vol. i. 
p. 154). Benedict repeatedly uses the word curia (ibid., p. 139), and so do the 
kings who were the parties in the suit (p. 140). Nothing brings out more clearly 
the judicial nature of the business of the Council on this occasion than the fact 
that each of the kings had sent a champion "ad suscipiendum duellum in curia 



The Statute of Merton in 1235 is said in the pre- 
amble to be made "in Curia Domini Regis." 1 Under 
Edward I the same conditions remain : Parliament is 
still "pre-eminently intended to be a judicial assembly, 
to which the other functions are annexed." 2 An in- 
stance in this reign similar in some respects to that of 
the kings of Navarre and Castile under Henry II was 
the famous award in the case of the disputed Scotch 
succession in 1292. 3 

In 1322 the famous "Colloquium" met at York which 
revoked the ordinances made by the barons in 1310,and 
declared that in future such matters "shall be treated 
accorded and established in Parliaments by our Lord 
the King, and by the assent of the Prelates, Earls and 
Barons, and the Commonalty of the Realm." This has 
often been considered " the first express recognition of 
Parliament as a legislative assembly." 4 

Whether this be true or not, generations had yet to 
pass before the old "judicial" functions of Parliament 

regis Angliae, si adjudicatum fuerit." Ibid., p. 139. Another account of this 
case is to be found in Hoveden (Rolls Series, vol. ii. pp. 121-31). References to 
these passages are to be found in Pike, Const. Hist, of the House of Lords, 
p. 39, where a brief account of the case is also given. See also Madox, Exchequer, 
ch. i. sec. iii. 

1 Statutes of the Realm, vol. i. p. 1 (20 Henry III). See also Parry, Parliaments, 
p. 14, note. 

2 Gneist, Const. Hist., vol. i. p. 415. See also Pike, op. cit., pp. 43, 44 ; Lords' Re- 
port, vol. i. pp. 171, 174, 180, 182; Parry, pp. 49, 52, 53, 61, 69, and notes. 

3 Ryraer (Hague ed.), vol. i. pt. iii. p. 93 et seq. ; Lords' Report, vol. i. p. 206 
et seq. 

4 Gneist, Const. Hist., vol. ii. p. 21, note; Stubbs, Const. Hist., vol. ii. p. 369; 
Lords' Report, vol. i. p. 282 ; Parry, pp. 85, 86 ; Statutes of the Realm, vol. i. 
p. 189. 

[112 ] 


gave way to the legislative. In fact, in the ordinances 
made in 1311 it is expressly stated that Parliament 
must be held once a year, or twice if necessary, for 
hearing pleas, including those "whereon the Justices 
are of divers Opinions." 1 

The oaths that were taken by the members of the 
Council show how much emphasis was placed upon 
matters j udicial. 2 This judicial character of Parliament 

Ordinances 5th Edward II. (1311), article xxix., Statutes of the Realm, vol. i. 
p. 165. We find a case soon afterward of the enforcement of the ordinance ; in it 
Judge Hereford declared : "And because the new Ordinances direct that when 
Justices are in doubt about their Judgment the cause shall be sent into Par- 
liament, to Parliament you must sue." Year Books (Selden Society), vol. ii. 
p. 52. The Year Book of 13 and 14. Edward III reports a case which illus- 
trates the close relations which still subsisted between Parliament and the 
other law courts under Edward III. See Y. B. 13 and 14 Edward III. (Rolls 
Series), p. 26 et seq. See also Mr. Pike's introduction to the same volume, 
p. xxxvi et seq., and also his Constitutional History of the House of Lords, 
p. 50 et seq. In the case in question there is a bewildering succession of hear- 
ings, but the significant fact is that apparently an appeal was taken to the 
King's Bench, though the case had already been in Parliament. Mr. Pike re- 
marks in commenting on cases of this nature: "It was, indeed, a strange 
anomaly that although the aid of the King and Council might have been asked 
and obtained again and again before judgment was given, in the Court below, 
yet if error was after judgment alleged in proceedings before Justices of As- 
size or in the Court of Common Pleas, the Jurisdiction in Error was, in the 
reign of Edward III, as in later times, in the Court of King's Bench." Preface 
to Y. B. 12 and 13 E. III., p. c. 

2 This is evident from the following part of the oath as it appears among the 
Statutes of Uncertain Date, printed in the Statutes of the Realm, vol. i. p. 248. 
"E qe vous ne lerrez pur nully, pur amur, ne haour, pur bon gre, ne pur mau- 
veis gre, qe vous ne facez faire a chescun de quel estat ou condicion qil soit, 
droiture et reison, solunc votre poair et a votre escient, et qe de nully rien ne 
prendrez pur tort faire ne droit delaier. 

"E qe en Jugement, ou droiture faire, la ou vous serrez assignez, vous nes- 
parnierez nully, pur hautesce, ne pur poverte, ne pur richesce, qe droit ne soit 

See also Eng. Hist. Rev., vol. xxi. pp. 2-4, where Professor Baldwin quotes 
from the Annals of Burton the Latin text of the oath taken in 1257, and com- 
pares it with the form given above. 

[ 113] 


also appears in many other ways. It appears in the 
practice of holding the Parliament on legal term days, 
which went back to the Saxon times. 1 To it may be 
attributed, in some degree at least, the exemption of 
peers from jury service. 2 There was, in fact, in feudal 
times no sharp line drawn between public and private 
rights. 3 Indeed, from one point of view, the very es- 
sence of feudalism was this fusion of public and private 
rights. And as with rights, so with their infringement 
and the manner of remedy. Wrongs against individuals 
were not clearly divided from crimes. This is probably 
the most characteristic feature common to the differ- 
ent Leges Barbarorum, and it survived to be a central 
fact of feudalism. Punishment of a private wrong in 
like manner is often indistinguishable from the punish- 
ment of an offence which we consider to be mainly 
against the state. Thus, as will be shown in greater 
detail later, there is no definite line that can be drawn 
between statute and ordinance, on the one hand, or 
even between an act and an "a ward "of Parliament. 
The determining of a suit between parties and the 
granting of a petition, whether the petition came from 
an individual, or a class, or the Commons, are alike 
"acts" of Parliament, and of equal force and dignity. 
A study of the controversial writings of the seven- 
teenth century shows that even then, when an act of 

1 Stubbs, C. H., vol. iii. pp. 390-3 ; Spelman, The Original of the Four Terms of 
the Year in Reliquiae Spelmannianae, p. 69 et seq. 

2 Lords' Report, vol. i. p. 69. 

3 Lowell, Essays on Government, pp. 184, 185. 



Parliament was passed overriding a judicial decision 
of the Lords, the whole Parliament was considered to 
be above the Lords, an idea that does not occur to us 
to-day because we distinguish the judicial supremacy 
of the Lords from the legislative supremacy of Parlia- 
ment. In the middle ages the boundary is indistin- 
guishable between "acts" of Parliament that are par- 
ticular and acts that are general, between acts that 
are private and acts that are public, between acts ad- 
ministrative, acts legislative, and acts judicial. Only 
gradually do these distinctions appear; and for a long 
period after they do, it is the judicial functions of 
the Assembly that dwarf the others. The Statute of 
Bigamy of 4 Edward I was in the character of a judi- 
cial interpretation of the words of a general council of 
the Church. 1 

A celebrated clause in the Statute of Westminster 
Second is significant: "And whensoever from hence- 
forth it shall fortune in the Chancery, that in one Case 
a Writ is found, and in like Case falling under like Law, 
and requiring like Remedy, is found none, the Clerks 
of the Chancery shall agree in making the Writ; or 
the Plaintiffs may adjourn it until the next Parliament, 
and let the Cases be written in which they cannot agree, 
and let them refer themselves until the next Parlia- 
ment, and let a writ be made by the advice of the 
learned in the law lest it should happen in future that 
the court should long time fail to minister Justice unto 

., 274. 

[ "5] 


complainants." 1 Evidently, in this case, as Mr. Holds- 
worth says, "it is not clear whether the clause refers 
to the judicial or to the legislative powers of Parlia- 
ment, because at that time the line was not clearly 
drawn between these distinct powers." 2 A regular 
means of carrying this enactment into effect seems the 
object of the provision made at the Parliament of 
Lincoln in 1315, where the Chancellor, the Treasurer, 
and the judges of both benches are commanded to 
draw up a record of all cases pending before them 
"which cannot be determined outside of Parliament," 
and to refer the same to Parliament for adjudication. 3 
Edward Ill's Statute of Treasons contains the follow- 
ing striking provision : " And because that many other 
like Cases of Treason may happen in Time to come, 
which a Man cannot think nor declare at this present 

113 Edward I., Stat. 1, cap. xxiv. (1285). 

2 H. E. L., vol. i. p. 188. A case in 3 Edward II brought out a remarkable state- 
ment from the Chief Justice that illustrates not merely the general judicial 
character of Parliament under the Angevins, as indicated in this and in other 
statutes, but also more specifically shows the lack of definition in the func- 
tions of the Council and the Chancellor. In that case Bereford, the Chief Jus- 
tice, says that in the reign of Edward I a writ had issued from the Chancery 
to the Sheriff of Northumberland for the summons of Isabel, Countess of Albe- 
marle, to the next Parliament to answer to the King touching what should 
be objected against her. "The lady came to the parliament and the King him- 
self took his seat in the parliament." The lady's Serjeant prayed judgement of 
the writ because it mentioned no certain article and she was arraigned of 
divers articles. Two of the justices were ready to uphold the writ, but Sir 
Ralph Hengham declared that "the law wills that no one be taken by sur- 
prise in the King's Court," and insisted that she should have notice. "Then 
arose the King, who was very wise, and said : ' I have nothing to do with your 
disputations, but, God's blood ! you shall give me a good writ before you arise 
hence.'" Year Books (Selden Society), vol. iii. pp. 196-7. 
3 Rot. ParL, vol. i. p. 350. 


Time; it is accorded, That if any other Case, Supposed 
treason, which is not above specified, doth happen be- 
fore any Justices, the Justices shall tarry without any 
going to Judgement of the Treason, till the Cause be 
shewed and declared before the King and his Parlia- 
ment whether it ought to be judged Treason or other 
Felony." 1 

In 1 Richard II, the Commons petitioned the King to 
hold a Parliament at least once a year for the hearing 
of cases where injustice had been done on account of 
delays in the King's Courts or where the judges could 
not agree. 2 

This fusion of functions, as may be expected, can 
be traced through abundant instances in legal records 
from Bracton's time on. 3 Such a view of Parliament, 
however, was not confined to lawyers in the later medi- 
aeval period, as is indicated by the passage in the Vision 
of Piers the Plowman, where Peace is represented as 
coming into Parliament to "putte up a by lie" against 
Wrong, charging seduction and rape. 4 Parliament was 
called together in those times, as Palgrave says, "not 
only for the purposes of legislation or taxation, but to 
the intent that the complaints either of the common- 
wealth, or of individuals, might be discussed and heard. 
It was the King's great and extraordinary court of 

1 25 Edward III., Stat. 5, cap. ii. See Note A at the end of this chapter (p. 247). 

*Rot.Parl, 1 Ric. II. (vol. iii. p. 23). 

3 See Note B at the end of this chapter (p. 248). 

* Skeat's edition, Text C, passus v., line 45 and following. 

[ in ] 


justice, in which he was to grant redress when the 
ordinary tribunals were unable or unwilling to grant 
relief. Frequent Parliaments were required, because 
justice could not be administered without these assem- 
blies. It was only in Parliament that the doubts of the 
learned in the law could be solved, and the obstacles 
impeding the due course of the law be removed. 

"When the common-law became inefficient, the 
supreme remedial jurisdiction was vested in the High 
Court of Parliament. Here the people were invited to 
resort for the redress of all injuries and oppressions not 
cognizable elsewhere; and the inability of the petitioner 
to sue at common law, or to obtain a fair trial by jury, 
according to the ordinary process, is the most common 
allegation in the petitions." 1 

1 King's Council, pp. 21, 22. 

** Im Anfange, d. i. durch den grosseren Teil des Mittelalters hindurch, war 
das Gesetz nur ein Urteilsspruch (judgement), das sich vor andern Urteils- 
spriichen nur durch seine formelle Beweiskraft, well es eben in die Statuten- 
rolleeingetragen wurde, auszeichnete." Hatschek, Englisches Staatsrecht, vol. i. 
p. 97. "Bis zum 17. Jahrhundert war das englische Gesetz nur eine Art Urteils- 
spruch, judicium, und selbst heute haften noch Ueberreste dieser Vorstellung dem 
englischen Gesetzbegriffe an" Ibid., vol. i. p. 113. 

"Unter den Normannenkonigen und den ersten Plantagenets diirfen wir 
uns die Gesetzgebung nur als Ausnahme, hingegen die Regelung der Lebens- 
verhaltnisse durch Common law als Norm vorstellen. Die ganze Masse des 
Rechts war einheitlich, denn selbst das Gesetz war von dem gewohnlichen 
Urteilsspruch nicht verschieden, war Rechtssatz und zugleich Rechtsprech- 
ung, die im High court of parliament vor sich ging. Der mittelalterliche 
Richter kennt keine Rechts oder Gesetzesliicken. Er findet entweder das 
angewandte Recht in dem ungeschriebenen Common law oder beschafft es 
vermoge seines richterlichen Arbitrium, wie Bracton nach unserer vorher- 
gehenden Ausfiihrung dies festgestellt hat." Ibid. 

"Schon den Juristen der Tudors und Stuarts beginnt es einzuleuchten, dass 
ein Gesetz von eiriein Urteilsspruche wohl in seinem inneren Wesen ver- 


When we thus speak of Parliament as a "court of 
justice" and designate its actions as "judicial," it will 
be remembered that "court" and "judicial" are not to 
be used in their modern definite sense. We can never 
understand the institutions of mediaeval England if 
we consider Parliament as a "court of justice" which in 
addition exercised other distinct powers, or as a legis- 
lature with an addendum of other duties. It is the fu- 
sion of indefinite powers which is the most fundamen- 
tal fact in English central institutions in the middle 
ages. It will be seen that this applies not to Parliament 
merely, but to all the other courts of the King as well, 
and it thus furnishes the key to the great problem 
which claims our main attention in this essay, the 
relations existing between the King's High Court of 
Parliament and his other courts. 

It must have been noticed that the instances cited 
above, many of them, refer to a period after the law 
courts and the Privy Council were definitely estab- 
lished as separate judicial tribunals. These bodies when 
they came into existence only shared with the Parlia- 
ment in the "judicial" business; they did not supersede 

scheiden sei. Das romische Recht, mit dem die Juristen der Tudors, wie wir 
oben gehort haben sich besonders anfreundeten, hat sie inzwischen gelehrt, 
einen Unterschied zwischen Gesetz unt Urteilsspruch (judicium) zu machen. 
Daher finden wir denn auch in den Parlamentrollen des 31. Reg.-Jahres Hein- 
richs VIII. zuerst die Nomenklatur von 'Actes Publicke' ira Gegensatz zu 
'Actes Private,' was offenbar aus dem Bediirfnis entsprang, das wirkliche 
Gesetz, die allgemeine Normensetzung, von dem Urteilsspruch zu scheiden." 
Ibid., vol. i. p. 119; see also p. 234. The beginning of a formal distinction be- 
tween public and private acts in 31 Henry VIII as here pointed out is certainly 
of a great significance. See also Maitland, Const. Hist, of England, p. 105. 

[ "9 ] 


it. In fact, as we have seen, the line between the "ju- 
risdiction" of Parliament and that of the other courts 
cannot be laid down, and that because it was not 
clearly perceived nor any necessity for it appreciated. 
Using "court" in the sense above noted, we may say, 
then, that the High Court of Parliament, though the 
greatest of the courts, was still a court; and if its 
higher dignity and representative character gave it the 
power to lay down a new rule when no old one could 
be found that was applicable, this power, though great 
and unique, was really only incidental, and neither 
new nor startling. It required time, a long time, and 
great changes in the state the decline of class feel- 
ing, a wider distribution of wealth and culture and a 
widening political self-consciousness in consequence, a 
change in the conception of kingship, along with sharp 
controversies ecclesiastical and civil to alter all this 
and subordinate the old idea of a court to the newer one 
of a legislature. It is the persistence of this old idea, not- 
withstanding the great changes, which is the important 
thing. Parliament has retained somewhat the character 
of a court while it has taken on the new duties of a 
legislature. Hardly anyone will deny the eminently ju- 
dicial cast of Parliament in the middle ages; few have 
considered the importance of Parliament's retention of 
those judicial characteristics, after the other law courts 
grew into a separate existence, and fewer have reck- 
oned with their influence upon the modern develop- 
ment and present form of parliamentary institutions, 

[ 120 ] 


English and American. It is therefore this more mod- 
ern phase of the history of the High Court which es- 
pecially needs proof and illustration. It is believed that 
sufficient proofs do exist, and it is hoped that they can 
be here shown, to warrant the conviction expressed by 
Palgrave, that "the character of the English parlia- 
ment as a supreme court of remedial jurisdiction has 
never altered, though many changes have taken place 
in its form." 1 

In Trewynard's Case, which involved the question of 
the privilege of a member of the Commons' House, it 
was declared that the "court of parliament is the most 
high court, and hath more privileges than any other 
court in the Kingdom." 2 

Cartwright in his first Admonition in 1572 offered to 
defend himself "in this High Court of Parliament." 3 
"The Parliament," says Hooker, "is a Court, not so 
merely temporal as if it might meddle with nothing 
but only leather and wool." 4 "Of such courts as exer- 
cise the Queenes immediate autoritie," wrote Richard 
Cosin, one of Elizabeth's High Commission, "some 
haue no letters Patents of Commission to direct them ; 
as, the Parlement, which is called, and sitteth by the 

1 King's Council, p. 125. 

2 36-37 Henry VIll.,Dyer, fol. 60 a. See also the case of the Earl of Leicester 
v. Heydon in 13 Elizabeth, Plowden, 384 et seq., where Parliament is spoken 
of as " a Court of the greatest Honour and Justice, of which none can imagine 
a dishonourable Thing" (p. 398). 

3 Extract in Prothero, Documents, p. 199. 

*Eccl. Pol, vol. viii., Of the Authority of Making Laws. 

[121 ] 


Queenes onely writ: the Chauncerie" etc. 1 Speaking of 
Parliament in the same reign, Judge Doddridge said : 
" So by looking back, it is easie to see the great antiquity 
of this high court, delivered, as you see, from before the 
Romans, but never so dignified, as since Queen Eliza- 
beth's time. Now for the nature of a parliament, it is 
consilium, and it is curia; the power of it in matters 
hereditary and personal ; the proceedings of it in causes 
criminal and civil." 2 "The tribunals or courts of justice 
in England," according to Camden, "are of three sorts : 
spiritual, temporal, and mixed, which last is the great- 
est and most honourable, called Parliament"* In 1 589 
the Speaker quieted a commotion in the Commons by 
putting them in remembrance "that every Member of 
this House is a Judge of this Court, being the highest 
Court of all other Courts, and the great Council also of 
this Realm, and so moveth them in regard thereof, that 
as in all other Courts, being each of them inferiour to 
this high Court, such confused courses either of con- 
tention, acclamations, or reciprocal bitter and sharp 

l An Apologie for Sundrie Proceedings by Jurisdiction Ecclesiasticall (1593), 
part ii. p. 8. 

2 Hearne's Curious Discourses, vol. i. p. 289. Another anonymous writer of the 
same time has the same idea, though he is much impressed with the importance 
of the public business of Parliament. "The court of parliament," he says, 
"hath a double power ; the one to consult by way of deliberation for the good 
government of the commonwealth, and so is Consilium, non Curia; another 
power it hath as a court, in administration of justice. 

"The principal purpose of that assembly seemeth to be for consultation; 
for the writs are ad Consultandum $ deliberandum : but being assembled, they 
may hold plea of causes." Hearne, op. cit., vol. i. p. 294. This author seems 
to have a view more modern than most of his contemporaries. 

3 Britannia (Cough's edition), vol. i. p. cci. 



Speeches, terms or words are not any way either used 
or permitted amongst the Judges of the said Inferiour 
Courts, or the Chancellors admitted in the same Courts, 
so they would hereafter forbear to attempt the like dis- 
orders, as the honour and gravity of this House justly 
requireth." 1 

William Lambard in 1591 used the following words 
with reference to Parliament : " Hitherto of the continu- 
ance and consent of this our chief e and highest Court; 
whereunto, after I shall have added a word or twaine 
of the lurisdiction thereof, I will make an end. 

" If all the ludgements, as Cicero said, be conversant, 
either in punishment of offences, or in the decision of 
Controversies; then is the judgement of our Parliament 
of as ample Authoritie, as the Sentence of any, or all 
other Courts whatsoever : for it delivereth Lawes, that 
doe binde all persons, in all causes, as well Ecclesiasti- 
call, as Temporall, whereof you may see a great many 
of examples in the volume of the old Saxons Parlia- 
ments; how strange a thing soever our Popish Clergie 
of latter times have thought that to be. 

" It hath a\so jurisdiction in such cases which have 
need of helpe, and for which there is no helpe by any 
Law, already inforce; And whereas the erronious ludge- 
ments of any other Courts must be reversed by a higher 
authority; this Court doth not onely reverse the errors 
of the Kings Bench, which is superiourto all the other; 
but it may also amend the errors committed in the Par- 

1 D'Ewes, Journals, p. 434; see also pp. 514-16. 

[ 123 ] 


liament itselfe, if any such shall at any time appeare." 1 
This remarkable passage from the great antiquary 
and legal writer makes it evident not only that he re- 
garded Parliament mainly as a court, but that he did 
not separate its legislative from its judicial functions. 
The making of new law is looked at as the decision of 
a new case, or as the reversal of an error of a preceding 

The testimony of a man like Lambard is of especial 
value. Among all the writers of Elizabeth's time, it is 
in importance second to none unless it be Sir Thomas 
Smith's. The long public career of Sir Thomas Smith, 
his ample training, the point of view adopted in his trea- 
tise, and its great popularity, all made the Discourse 
on the Commonwealth of England a book of the ut- 
most importance. And no part of the book is of greater 
interest than the parts where he describes that "highest 
and most authenticall court of Englande, by vertue 
whereof all those things be established whereof I spake 
before, and no other meanes accounted vailable to make 
any new forfaiture of life, member, or landes of any 
English man, where there was no lawe ordayned for it 
before." 2 

"By order and usage of Englande," he says further, 
"there is three wayes and maners, whereby absolute 
and definite judgement is given, by parliament which 

l Archeion (edition of 1635), pp. 272, 273. See also Crompton, V Authoritie et 
Jurisdiction des Courts, ch. i.,De Treshault Court de Parliament. 
z De Republica Anglorum* book ii. ch. ii. 

[ 124] 


is the highest and most absolute, by battle and by the 
great assise. 

"The matter of giving judgement by parliament be- 
tweene private and private man, or betweene the prince 
and any private man, be it in matters criminall or civill, 
for land or for heritage doth not differ from thorder 
which I have prescribed, but it proceedeth by bill thrise 
read in ech house and assented to as I have saide before, 
and at the last day confirmed and allowed by the prince. 
Howbeit such bils be seeldome receaved, because that 
great counsell being enough occupyed with the pub- 
lique affaires of the realme, will not gladly intermeddle 
it selfe with private quarels and questions. . . . 

" The two first judgementes be absolute supreme and 
without appeale, and so is also the judgement by the 
great assise." 1 Here the prominence of the idea of a 
court is evident. The purely judicial functions of Par- 
liament are the ones that should come in for a detailed 
description in a book on the English Commonwealth. 
Private bill "legislation" he also considers a judicial 
proceeding. The activity of the Parliament in public af- 
fairs which had been so great since Henry VII I's time, 
so acute an observer could not pass over, but he thinks 
of it as an instance of the old consultative power of 
the Council rather than as "legislation." 

In the introduction to the latest edition of Smith's 
Commonwealth an introduction which should be read 
by every one who wishes to understand the book itself 

l De Republica Anglorum, book ii. chs. v.-viii. 

[ 125] 


the editor, Mr. L. Alston, explains the object and 
point of view of the treatise. I shall quote him at some 

"To Smith . . . the constitution of the common- 
wealth consists primarily of its courts and its various 
forms of law, martial, ecclesiastical, and general. Nor 
is his book, though the treatment is intended to be 
comparative, greatly concerned with the contrast be- 
tween 'constitutional' England and 'absolute' France, 
as we should expect if he were mainly interested in 
such questions as that of royal and parliamentary sov- 
ereignty. The regularly recurring contrast is that be- 
tween England on the one hand and, on the other, 
those countries which 'doe followe the civill Law of 
the Romanes compiled by Justinian into his pandects 
and code.' . . . 

"Why, then, does he devote those three lengthy 
chapters to the Prince and the Parliament? He does 
so because no account of the judicial system would be 
complete without them. . . . 

"That word 'court' comes to our modern ears as 
a mere archaism when it is applied to Parliament. But 
to Smith the application seems a natural usage, expres- 
sive of a still living fact. He does not cut apart the 
legislative, judicial, and executive functions, and en- 
deavour to assign each to a particular element in the 
constitution. Rather he tends to blur together the first 
two, and while of course clearly understanding the 
great practical difference between statutes and the sen- 



tences of lower courts, to treat them as being, for theo- 
retical purposes, members of the same group. Both are 
the offspring of * courts ;' and though Parliament is the 
greatest among these, and has many functions which 
the others have not, it is not therefore an element in 
the constitution which is sui generis. 1 . . . 

"We, splitting across our institutions with the sharp 
hatchet of a theory, which declares one body to be 
properly legislative, and another properly judicial, find 
afterwards . . . that we have still to deal with legisla- 
ture-made judicial sentences (such as bills of pains and 
penalties) and with judge-made law. Smith, not having 
so broken up his subject-matter, is not under any obli- 
gation to spend pains on reuniting the broken pieces." 2 

It may seem strange that such an observer as Sir 
Thomas Smith should fail to grasp the meaning of the 
growing legislative activity of Parliament, and should 
class it with trial by battle among the institutions of 
his country. This is no more surprising, however, than 
that Blackstone in 1758 should describe the English 
parliamentary system and leave out the Cabinet. The 
cases are an interesting parallel. In both, distance alone 
could give the perspective required. Smith was too near 
the events that were leading to legislative sovereignty 
to perceive their trend. For him Parliament was still 
primarily a court. It is easy enough for us to see the 
tendency, but the storm and stress of the Stuart period 

introduction to the edition of 1906, pp. xxvii, xxviii. 
2 Ibid., pp. xxxiii, xxxiv. 

[ 127 ] 


had to come before men could reach a realization of 
it. In like manner, it required the agitation over the 
Reform Bill before a Bagehot was likely to appear. 
Nevertheless, it must be admitted that some of Smith's 
statements go much further toward legislative sover- 
eignty than those of any contemporary. In the begin- 
ning of his second book he says: "The most high and 
absolute power of the realme of Englande, consisteth 
in the Parliament." Then follows a long statement of 
the various powers of Parliament. He sums it up by 
saying: "And to be short, all that ever the people of 
Rome might do either in Centuriatis comitijs or tribu- 
tis 9 the same may be doone by the parliament of Eng- 
lande, which representeth and hath the power of the 
whole realme both the heade and the body." 1 Hallam 
seems to think this declaration too weak. He thinks 
Smith was shuffling because he did not want to abridge 
the latitude of royal proclamations. 2 Mr. Bryce believes 
that Smith here "set forth the legal supremacy of 
Parliament in words to whose clearness and amplitude 
nothing can be added to-day." 3 So do Professor M ait- 
land 4 and Sir Frederick Pollock, 5 though the last- 
named writer admits that the lawyers of that day would 
not have concurred in such a view. 6 

1 Book ii. ch. i. 

2 Const. Hist., ch. v. 

3 Studies in History and Jurisprudence, p. 553. 

4 Constitutional History of England, pp. 254, 255 (written in 1888 or before). 

5 History of the Science of Politics, p. 54 ; First Book of Jurisprudence, p. 247 
et seq. 

6 First Book of Jurisprudence, p. 250. 



On the other hand, Sir Thomas Smith's editor, Mr. 
Alston, is of the opinion that Smith "in declaring Par- 
liament to be the most high and absolute power of the 
realm (in time of peace) is by no means bringing up for 
consideration the question of sovereignty in the modern 
sense, or making statements which have any direct bear- 
ing on the great controversy of the next century. . . . 
The contrast upon which Smith's attention is focused 
is not the contrast between the powers of the Prince 
and of the Parliament, but between the powers of Par- 
liament and of those other courts which he describes 
in later chapters, and describes without any feeling 
of essential difference between them and this highest 
court. He is still, in this respect, under the influence 
of traditional theory." 1 Though Smith says Parliament 
is the "most absolute power" in England, the word 
"absolute" is here taken to mean "not subject to ap- 
peal." 2 There is good reason for this interpretation of 
the word. Smith himself elsewhere uses it thus, as is 
seen above. 3 Lambard also uses it in the same way. 4 

1 Introduction, p. xxxiii. 

2 Ibid., pp. xxxi, xxxii, and references there cited. 
3 E.g. ante, pp. 124, 125. 

*Archeion, pp. 62, 63. "Then, I say, the King did commit to his Chancellor 
(together with the charge of the great Seale) his owne Regall, absolute, and 
extraordinarie preheminence of Jurisdiction in Civill Causes, as well for amend- 
ment as for supply of the Common Law." See also Nathaniel Bacon, Discourse 
on the Government of England, pt. ii. p. 162 (edition of 1682, first published 
in 1651); New Oxford Dictionary, s.v. Absolute. Lord Ellesmere, or the au- 
thor of the tract attributed to him, while admitting that the Court of Chancery 
is below the Parliament, speaks of it as having two powers, potentiam ordina- 
tam and potentiam absolutam; and potentia absoluta, he says, "is lex naturae, 

[ 129] 


The word was sometimes used in a somewhat different 
sense, namely, to indicate independence of any foreign 
power. So Milton says, "Whereas you cite out of Sir 
Edward Coke and others, 'that the kingdom of Eng- 
land is an absolute kingdom;' that is said with respect 
to any foreign prince, or the emperor." 1 But even in 
this sense the judicial idea of freedom from appeal is 
the central one. The authority is complete on the nega- 
tive side, but not necessarily on the positive. It is this 
negative side of supremacy which is present in Locke's 
mind when he speaks of "even absolute power," as 
"not arbitrary by being absolute," 2 and even Hobbes 
sometimes uses absolute in this sense. 3 No doubt Sir 
Thomas Smith, as a keen observer, was influenced by 
the altering political surroundings. It is not improper 
to say that Smith's was "the earliest definite state- 
ment" of the theory of parliamentary omnipotence; 
but it would be unwarrantable to conclude, therefore, 
that he made that statement, conscious of all its mod- 
ern implications. That was reserved for a later genera- 
tion. It was true of Smith, as it was of Coke, that he 
looked on Parliament primarily as the highest and 

quae non habet certain ordinem, but useth all meanes to know the verity." 06- 
servations on the Office of the Lord Chancellor, p. 44. 

144 Quod autem ex Edvardo Coco et aliis citas, 4 Angliae regnum absolutum 
est imperium,' id est si ad ullum regem externum, aut Caesarem, respicias." 
Pro Populo Anglicano Defensio (1651), cap. ix. 

2 Two Treatises of Government, book ii. sec. 139. 

3 Leviathan, part ii. ch. xxii. See also Lowell, Essays on Govt., pp. 202-5. For 
some uses of the word absolute in the other sense, see Prynne, Soveraigne 
Power, part iv. p. 15; Bacon, Advice to Sir George Villiers; Speech on the 
Union of Laws. 



most honourable court, "absolute" and supreme, "the 
most authenticall" in the realm. The whole plan of his 
treatise shows this, and his frequent comparison of 
Parliament with the other courts, as well as his con- 
crete statements. 

To the same effect as Smith's Commonwealth is 
Harrison's Description of England, published with 
Holinshed's Chronicle: "The regiment that we haue 
therefore, after our owne ordinances, dependeth upon 
three lawes, to wit, Statute law, Common law, Cus- 
tomarie law, and Prescription, according to the triple 
maner of our trials and judgments, which is by par- 
lement, verdict of twelve men at an assise, or wager 
of battell 

"The first is deliuered unto us by parlement, which 
court, being for the most part holden at Westminster 
neere London, is the highest of all other, & consisteth 
of three seuerall sorts of people, that is to saie, the 
nobilitie, cleargie, and commons of this realme." 1 

Parliament under the Tudors was a legislature; its 
acts were many of them acts of real legislation, and 
these acts were not few in number. But it was not the 
unlimited legislature of more modern times. In Tudor 
times, it must also be admitted, the judicial functions 
of Parliament were to a great extent in abeyance. We 
have noticed one cause of it. The nobility were reduced 
to a powerlessness unknown before the Wars of the 

1 Edition of 1587, p. 179. For a discussion of Harrison's indebtedness to Smith 
for these views, see Mr. Alston's introduction to Smith's Commonwealth, p. xvi 
et seq. 

[ 131 ] 


Roses. The Parliament in which they had an hereditary 
right to sit could be dispensed with by the King for 
longer periods than would have been possible in earlier 
times. Much of the necessary business could be dis- 
patched with much greater expedition and less friction 
by a smaller body which should include the King's 
judges. The business, of course, had to be done, and it 
was ever increasing in amount ; but now the shortness of 
Parliament's sessions, and the long and varying inter- 
vals that might intervene between those sessions, made 
Parliament a very imperfect judicial instrument. The 
preamble of the Act of 1585 concerning appeals to 
the Court of Exchequer Chamber well illustrates this : 
"Forasmuch as erroneous Judgments given in the 
Court called the King's Bench, are only to be re- 
formed by the High Court of Parliament: which Court 
of Parliament is not in these Days so often holden as 
in Ancient Time it hath been, neither yet (in respect 
of greater Affairs of this Realm) such erroneous Judg- 
ments can be well considered of and determined dur- 
ing the Time of the Parliament, whereby the Subjects 
of this Realm are greatly hindred and delayed of Jus- 
tice in such Cases, Be it therefore enacted," 1 etc. 

Here we see the workings of the forces that were 
turning the Parliament into a legislature, and also the 
reasons for its decline as a court. 

The Chancellor, the Council, and the Star Chamber 

1 27 Eliz., ch. viii. See also The Olde and Auncient Order of Keeping of the 
Parliament in England, by John Vowell, alias Hooker, 1572, Somers Tracts, 
vol. i. p. 175 et seq., especially p. 179. 

[ 132 ] 


had in fact long been "encroaching" on these judicial 
functions of Parliament. Parliament's loss of this kind 
of business is pretty accurately indicated by the growth 
of new courts. Palgrave has noted of the courts of 
equity that "in proportion as this channel enlarged, 
the number of Parliamentary Petitions decreased. 
Equity continued to gain rapidly upon Parliament, and 
about the time of Edward IV, when equity was fully 
established, the remedial jurisdiction of Parliament 
wholly ceased ; and it does not appear to have been re- 
vived to any extent until the time of James I." 1 It 
may be doubted whether the cessation was entire as 
Palgrave thinks, there is some evidence that it was 
not, but judicial activity must have been vastly les- 
sened. Hargrave, who is a strong upholder of the ju- 
risdiction of Parliament, especially of the House of 
Commons, admits that "from the third of Henry the 
Fifth to the accession of James the First, there ap- 
pears to have been little exercise of judicature in par- 
liament civilly or indeed criminally; unless the cruel 
precedents of acts of attainder without hearing the ac- 
cused, and the indulgent precedents of acts of restitu- 
tion without assignment of errors, of both of which the 
number is great, are fit to be considered as judicial 
records." 2 

The extensive powers of the Council and the activity 

1 Report on Public Petitions: Parl Papers, Session of 1833, vol. xii. p. 19. See 
Note C at the end of this chapter (p. 250). 

2 Preface to Hale's Jurisdiction of the Lords House, p. viii. 



of bodies new and old, such as the Chancery, the Star 
Chamber, the Council of the North, the Council in the 
Marches of Wales, the courts of Requests, of Wards 
and Liveries, of Augmentations, of Exchequer Cham- 
ber, and of High Commission, to mention no others, 
show where this ever increasing business was handled. 
A consideration of these undoubted facts has too often 
led to the assumption that the Tudor Parliament was 
looked upon by contemporaries as the sovereign legis- 
lature of the kingdom in the same sense as to-day. 
This step would inevitably follow the altered condi- 
tions just so soon as men distinguished with sharpness 
and accuracy the spheres of legislation and judicature. 
It is the central thesis of this essay that the utterances 
of contemporaries show that in the Tudor and even 
in a large part of the Stuart period, men had not yet 
reached this clear distinction. It is admitted that most 
judicial business had by the end of the Tudor regime 
been transferred from Parliament to other bodies. It 
is not admitted that men perceived that Parliament 
had become a pure legislature, and nothing more. In 
addition to the testimony of contemporaries, one fact 
stands out to disprove it : if there is a clear distinction 
between legislation and judicature, if Parliament is 
a mere "legislature" and nothing more, then the courts 
will be mere courts and nothing more. Nothing is 
clearer from contemporary records, however, than the 
fact that some of these " courts" were, under the Tudors, 
almost as "legislative" in character as Parliament it- 

[ 134] 


self. "It is impossible," Professor Dicey says, "to draw 
any precise line between those offences which the 
Council punished, acting as a government, and those 
which it noticed in the character of a law court; and 
such a distinction, could it be made, would only mis- 
lead, for it would hide what is the characteristic feature 
of the period under review, the inseparable combina- 
tion in the Council of political and judicial authority." 1 
Professor Dicey had here in mind the administrative 
powers of the Council rather than its legislative ca- 
pacity, but the latter cannot be excluded by anyone 
who will consider the things that were done by Henry 
and Elizabeth by mere proclamations issuing from the 
King in Council. A study of the records of the Court 
of Star Chamber discloses a similar fusion of powers, 
as might be expected from an offshoot of the Council, 
and justifies Hudson's description of the "Court," 
"it being composed ... of all conditions of men, like 
another parliament, spiritual and temporal, nobles, and 
lawyers common and civil, and so fit to discern, order, 
and dispose of all things in the universal government." 2 
"Through the medium of that Court," says Miss Sco- 
field, "the Crown exercised legislative as well as judi- 
cial powers. The Star Chamber, although primarily a 
judicial tribunal, participated in the legislative powers 
usurped by the King and his Council. The Star Cham- 
ber not only expounded the laws, but even made laws. 

1 Privy Council, p. 106. 

2 Collectanea Juridica, vol. ii. p. 52. 

[ 135 ] 


It issued orders and decrees, often very comprehensive, 
and which in some cases are so closely analogous to 
orders in Council that they may not very incorrectly 
be regarded as such." 1 

Thus it appears that the loss by Parliament of its 
judicial functions under the Tudors was not accom- 
panied, as we might expect on any theory of legisla- 
tive sovereignty, by a corresponding gain in "legisla- 
tive" business. We find, on the contrary, that the other 
"courts "were almost as serious rivals of Parliament in 
this sphere as in the sphere of judicature. Speaking of 
the period between 1485 and 1640, Dicey says: "To 
any one who reviews the history of the Council, these 
hundred and fifty years present a certain semblance of 
unity. They might be described as the age of * govern- 
ment by Councils; 'and exhibit, in the strongest col- 
ours, the merits and defects of a system nearly as dif- 
ferent from the rule of Henry V as from the ministerial 
government of Victoria." 2 

It will be perceived that for the Tudor period at 
least I have been speaking of men's opinions rather 
than of Parliament's actions. Parliament had for a time 
failed to exercise most of its former judicial powers, 
and for a considerable time, no doubt, the greater bulk 
of its business had been what we should call legislative. 
That legislative action, however, does not imply a clear 
perception in Parliament, in the other courts, or out- 

1 The Court of Star Chamber, p. 49. 

2 Privy Council, p. 80. 



side of both, that Parliament's " acts" were different in 
nature from the "acts" of the other courts. And yet 
that clear perception was absolutely prerequisite to an 
understanding of the dogma of legislative sovereignty. 
It required the shock of civil war to teach men that the 
High Court of Parliament had become the Sovereign 
Legislature of the Kingdom. 

When we pass from the Tudors to the reign of 
James I, a striking instance of the force of the idea of 
Parliament as a court is to be found in Lord Chancel- 
lor Ellesmere's speech in the Exchequer Chamber in 
the Case of the Postnati. During the course of the de- 
bate previously held in Parliament upon the Union, 
the judges had been asked their opinion on the status 
of the postnati, and had given an opinion, one only 
dissenting, in their favour. Parliament, however, had 
taken no formal action upon the question. Lord Elles- 
mere calls this opinion thus given by the judges in 
Parliament "the graue resolution of the judges in parlia- 
ment, which (although some may tearme and accompt 
as bare opinions) I must alwayes valew, and esteeme as 
a reall and absolute judgement J>1 In other words, this 
bare opinion of the judges in Parliament, though not 
given upon an appeal, though there had been no hear- 
ing of the case in the House of Lords, though there 
was no formal parliamentary action of any kind based 
on the opinion, he apparently considers, nevertheless, 
as a statement of the law which should be treated by 

1 2 State Trials, 667. 



a judge as a binding precedent. This he could do only 
by assuming that Parliament was a court, and that the 
judges in stating their opinion there were doing ex- 
actly what they would do in handing down an opinion 
in the Court of King's Bench or Common Pleas. That 
this was actually his view he makes clear when he says : 
"Touching the opinion of the judges, some haue ob- 
jected (yet modestly, and I suppose, according to their 
conscience and understanding) that there is not like 
regarde to be had of judges opinions giuen in parlia- 
ment, as ought to bee of their judgements in their 
proper courts and seates of justice: for, in those places 
their oath bindeth them ; but not so in the other. . . . 
2. Their oath doth bind them as much in the court of 
parliament, as in their proper courts: for, that is the 
supreme court of all : and they are called thither by the 
king's writ, not to sit as tell-clockes, or idle hearers; but, 
'quod personaliter intersitis nobiscum, ac cum cseteris 
de consilio nostro super dictis negotiis tractaturi, ves- 
trumque consilium impensuri:' and those 'negotia' be 
'ardua et vrgentia negotia regni, &c.' And their oath, 
amongest other thinges, is, that they shall counsell the 
king truely in his businesse. 3. This exception may 
serue against the judges, as well in cases when they sit 
and giue judgement, as justices of Assises, Nisi Prius, 
Oyer and Terminer, and Gaole Deliuerie, as in this 
case of parliament : for, there they haue none other oath 
but their generall oath." 1 

J 2 St. Tr., 665. In the course of his argument he cites many interesting in- 

[ 138 ] 


This view of Parliament also affected Coke's whole 
treatment of the Courts. In fact in his Fourth Institute, 
" Concerning the Jurisdiction of Courts," the first court 
treated of is "The High and most Honourable Court 
of Parliament." He speaks of the Parliament Rolls or 
"Records" of Parliament as valuable because "therein 
is set down in cases of difficulty, not only the judgment, 
or resolution, but the reason, and causes of the same 
by so great advice," and compares these "records" with 
the records of the King's other courts. 1 In like manner, 
he deals with the lex parliamenti and parliamentary 
privilege. The King cannot require the testimony of 
members of the House of Commons upon things done 
in the house itself, because "every Member of the Par- 
liament hath a judicial place, and can be no witness." 
So cases of privilege should not be discussed in the other 
courts, for "every offence committed in any Court pun- 
ishable by that Court, must be punished (proceeding 
criminally) in the same Court, or in some higher, and 
not in any inferiour Court and the Court of Parliament 
hath no higher." 2 " It is to be known, that the Lords in 
their House have power of Judicature, and the Com- 
mons in their House have power of Judicature, and 
both Houses together have power of Judicature." 3 He 

stances of judges consulting the Council in difficult cases. Some of these occur 
among the cases already cited in this essay ; many others, however, lack of 
space makes it impossible to mention here. 
H/fM*., 3, 4. 
*Ibid., 15. 
3 Ibid., 23. 

[ 139] 


notes also that when a Parliament is dissolved without 
an act passed " or judgment given" it is no session of 
Parliament, but a Convention, and cites the Parliament 
of 18 Richard II, in which the petitions of the Com- 
mons were answered and judgement given in a case, but 
no act passed; "but it is no question but it was a Ses- 
sion of Parliament, for otherwise the Judgment should 
not be of force : and many times Judgments given in 
Parliament have been executed, the Parliament con- 
tinuing before any Bill passed." 1 One of the most fre- 
quently cited passages from Coke is his statement : " Of 
the power tmd jurisdiction of the Parliament, for mak- 
ing of Laws in proceeding by Bill, it is so transcendent 
and absolute, as it cannot be confined either for causes or 
persons within any bounds. Of this Court it is truly said : 
Si antiquitatem spectes, est vetustissima, si dignitatem, 
est honoratissirna, si jurisdictionem, est capacissima. 

" Huic ego nee metas rerum, nee tempora pono. 

"Yet some examples are desired, Daughters and 
Heirs apparent of a man or woman, may by Act of Par- 
liament inherit during the life of the Ancestor. 

"It may adjudge an Infant, or Minor of full age. 

" To attaint a man of Treason after his death. 

"To naturalize a meer Alien and make him a Subject 
born. It may bastard a child that by Law is legitimate, 
viz. begotten by an Adulterer, the husband being within 
the four Seas. 

"To legitimate one that is illegitimate, and born be- 

H /**., 28. 

[ 140] 


fore marriage absolutely. And to legitimate secundum 
quid, but not simpliciter." 1 

This is the passage cited to prove the legislative su- 
premacy of Parliament. Blackstone quotes it in proof 
of that theory. 2 Professor Dicey remarks on the judi- 
cious choice of instances Coke has made in order to 
prove Parliament's omnipotence. Interference with pub- 
lic rights would be, Professor Dicey thinks, " a less strik- 
ing exhibition of absolute power" than the interference 
with the rights of individuals shown in these instances. 3 
To the same effect are the views of Sir Erskine May : 
"Many laws may be unjust, and contrary to sound 
principles of government : but Parliament is not con- 
trolled in its discretion, and when it errs, its errors can 
only be corrected by itself. To adopt the words of Sir 
Edward Coke, the power of Parliament 'is so transcen- 
dent and absolute, that it cannot be confined, either for 
causes or persons, within any bounds.'" 4 It is unneces- 
sary to add any more of these, though there are many 
more such, for this is the prevailing interpretation of 
Coke's words. He is assumed to be speaking of the 
"Unlimited legislative authority of Parliament." 5 

And yet there are some striking differences between 
Coke's own statement and the glosses upon it. In the 

1 4 Inst., p. 36. The italics are not in the original. 

2 Commentaries, vol. i. pp. 160, 161. 

3 Law of the Constitution, p. 46. 

* Parliamentary Practice, 9th ed., pp. 43, 44. 

5 Dicey, op. cit., p. 39. See also, generally, Professor Maitland in Social Eng- 
land, vol. ii. (p. 476 et seq. in ed. of 1894). 

[141 ] 


first place, Coke's statement occurs in a treatise de- 
voted exclusively to "the Judicature of Courts." This 
might naturally lead one to think that he might be 
speaking of the judicial side of Parliament. All these 
more modern writers, however, quote this passage in 
support of Parliament's legislative sovereignty. The 
words "for causes or persons" would hardly be used of 
legislative business, not even of private bill legisla- 
tion, if that were considered real "legislation." Coke is 
here certainly speaking of procedure by bill and he 
is also speaking of private bills. Does it follow that he 
considers such private bills as legislative in character? 
His statements about the "Court," its "jurisdiction," 
and the "causes " before it would render this highly im- 
probable, even if the context and the character of the 
contents of the whole book were left out of account. 

But, it may be asked, what practical difference does 
it make, whether Coke considered procedure by pri- 
vate bill legislative or judicial? In either case does he 
not speak of the power and jurisdiction as transcendent 
and absolute? Of the meaning of the word "absolute" 
we have seen something already. "Transcendent" is 
not unlike it. It surely will not be denied that when we 
speak to-day of the supreme legislature, supreme means 
something entirely different from the idea conveyed 
by the expression "supreme court." Take the latter 
expression as it is actually applied in the United States. 
We cannot properly speak here of our federal legisla- 
ture as supreme, for in legislative matters that word 


has become practically synonymous with unlimited: 
a supreme legislature is now one that "is complete 
both on its positive and on its negative side. Parlia- 
ment can legally legislate on any topic which, in the 
Judgment of Parliament, is a fit subject for legislation. 
There is no power which, under the English constitu- 
tion, can come into rivalry with the legislative sover- 
eignty of Parliament." 1 No such a legislature is known 
to our federal constitution. We do, however, use the 
term "supreme court." It occurs in the written consti- 
tution and is in everyday use, and we have no sense 
of impropriety in so using it. Is it true, therefore, that 
our highest court is unlimited, "complete," on its posi- 
tive side as well as its negative? These very words, 
when applied to it, strike us at once as incongruous. 
Our highest federal court is supreme, but it cannot 
be said to be unlimited. Its limits are very definitely 
marked out, by the Constitution, by statute, and by 
usage, and yet it is "supreme." "Supreme" in the judi- 
cial sense, then, means without a superior, without an 
appeal, the dernier resort: it does not and never did 
imply the unfettered discretion which the modern idea 
of legislative supremacy unquestionably does convey. 
A supreme court may be complete on its negative 
side; it is not necessarily so on its positive side. The 
United States Supreme Court is not supreme in that 
sense ; neither was the Court of Parliament of Coke's 
Fourth Institute. 

1 Dicey, Law of the Constitution, pp. 66-8. 



The only ones who might object on theoretical 
grounds to this double use of the word supreme are the 
more extreme Austinians. They might indeed argue 
that the only limitation upon supremacy, be it the 
supremacy of the King, or of the courts, or of the 
legislature, is the limitation of law; and that, there- 
fore, the body of men who ultimately lay down the 
law, be they King, or judges in a court, or the repre- 
sentatives in a sovereign Parliament, are, after all, un- 
limited in power, in short, that "supremacy" must 
mean limitlessness. To such an argument I can only 
answer, first of all, that the distinction used above be- 
tween positive completeness and negative complete- 
ness is used by so stanch an upholder of Parliament's 
legislative sovereignty as Professor Dicey. Secondly, I 
may point to the actual and well-nigh universal prac- 
tice of to-day: "supreme" is, for example, actually ap- 
plied generally throughout the United States to the 
courts ; it is not used of the legislature. Lastly, I am 
unable to accept the dictum that the existence of a 
law always necessarily implies obedience to a political 
superior so "definite" as a rigid Austinian theory de- 
mands, so definite as to require the invention of a 
distinction between "legal" and "practical" sovereignty 
to support it. 1 

1 In using "supreme" in this limited sense to-day we are only following the ac- 
cepted usage of the sixteenth and seventeenth centuries. "Supreme" as used 
in England then never meant unlimited, whether applied to a court or to a 
king. It implied rather the absence of a superior, and when, for example, it 
was used of the King of England, as it often was, this was done to emphasize his 



The events of the sixteenth and seventeenth centu- 
ries in England eventually did produce a theory of 
legislative sovereignty complete on both its negative 
and its positive side. Englishmen, after they had ac- 
cepted the new theory, in their traditional manner 

independence of Pope or Emperor or of any other power within the state, but 
never to imply that his power was without limits. See, for example, Lambard, 
Archeion, pp. 274, 275. So Hooker : " If the action which we have to perform 
be conversant about matters of mere religion, the power of performing of it 
is then spiritual ; and if that power be such as hath not any other to overrule 
it, we term it dominion, or power supreme, so far as the bounds thereof ex- 
tend. When therefore Christian Kings are said to have spiritual dominion or 
supreme power in ecclesiastical affairs and causes, the meaning is, that within 
their own precincts and territories they have an authority and power to com- 
mand, even in matters of Christian Religion, and that there is no higher nor 
greater that can in those cases over-command them, where they are placed to 
reign as kings. But withal we must likewise note that their power is termed 
supremacy, as being the highest, not simply without exception of anything. 
. . . Supremacy is not otherwise intended or meant [than] to exclude, partly 
foreign powers, and partly the power which belongeth in several unto others, 
contained as parts in that politic body over which those kings have supre- 
macy: Where the King hath power of dominion, or supreme power, there no 
foreign state or potentate, no state or potentate domestical, whether it consisteth 
of one or many, can possibly have in the same affairs and causes authority higher 
than the king" Ecclesiastical Polity, book viii., " What the power of Dominion 
is" Prynne habitually uses the word supreme in this sense, e.g., Soveraigne 
Power, part i. pp. 34, 93 ; Twysden uses it in the same sense, Government of 
England (Camden Society), p. 18; also Algernon Sidney speaking of "the 
name of supreme given to their magistrates " by nations, Sidney says : " It sig- 
nifies no more, than that they do act sovereignly in the matters committed to 
their charge" (Discourses concerning Government: Works, p. 176). Hoadly 
argued in the same way against non-resistance : " Now to argue from any 
Person's being, by Title, Supreme, against Equality in any respect, is to abuse 
the Reader with Words, and to take the very thing for granted which is in 
dispute ; and to lead him to think that Supreme and Superior are absolute 
Terms, and signify an absolute and unlimited Supremacy in all Cases : whereas 
he may find by daily Experience and Common Sense that the words in ordinary 
use never signify more than a limited Superiority, extending to some Cases 
only." An Examination of the Patriarchal Scheme of Government (2d ed., 
London, 1710), pp. 31, 32. See also the use of the word in Elizabeth's Act of 
Supremacy, 1 Eliz., cap. i., quoted below, p. 172. 

[ 145 ] 


began to search the records of their past to justify it. 
It was easy to fasten on such words as "absolute," "su- 
preme," "transcendent," and interpret them in the new 
sense, and this was done with entire ingenuousness. In 
fact, it may be observed generally that this method of 
relying on precedents has been one of the mightiest 
factors in the development of the English constitution. 
Men cited as precedents for their actions or their views 
words and expressions that had grown up under differ- 
ent surroundings. The institutions had changed, the 
words had not. All unconscious of the change men still 
cited the old words, but to justify the new order. But 
br this, England would not have furnished the world 
the greatest example of the evolution of political in- 
stitutions, coupled with a conservative temper in the 
people and a reliance upon precedent which is unex- 
ampled in European history. In the seventeenth century 
especially, the effect of this process upon England's de- 
velopment was very great. But what is admissible, it may 
be, in a judge, is not equally so in a critical historian. 
The stream of political thought in one sense is the con- 
verse of what we find in nature. As we follow it back 
toward its sources we find that instead of narrowing, it 
becomes ever wider. Institutions that are now narrow 
and definite become as we trace them back indistin- 
guishable from others that we have always considered 
equally definite. To ignore this fact is fatal. To read the 
same definiteness into the earlier institutions is not 
necessarily to put words into men's mouths which they 



never uttered, but it is to put ideas into their heads 
that they never dreamed of. It is hardly going too far 
to say that the measure of our comprehension of the 
development of the institutions of central government 
in England in the seventeenth century is our ability to 
remake the historical "mistakes" of Sir Edward Coke. 
It is hardly necessary to add, however, that our attain- 
ments should not stop there. 1 Coke's words became in 
time of great service, when royal pretensions had to 
be met by parliamentary claims, and vice versa; but 
notwithstanding it all, Coke himself "had not really 
grasped the conception of sovereignty." 2 For him the 
High Court of Parliament was simply "absolute" and 
transcendent; it was nothing more. 3 

On any other interpretation it is impossible to re- 
concile Coke's words with his own statements made at 
other times. How, according to the prevailing interpre- 
tation, can Coke say that Parliament's power is abso- 
lute and transcendent, and at the same time hold, as he 
did in Dr. Bonham's Case, "that in many cases the com- 
mon law will controul acts of Parliament and some- 

1(4 Die englische Verfassungsgeschichte ist die Geschichte eines vom mittel- 
alterlichen zurn modernen umbildenden Staatswesens. Diese Umbildung ist 
natiirlich begleitet von einer scharferen Auspragung der Competenzgrenzen, 
die im Zwielicht des Mittelalters ineinanderflossen. Es geht aber nicht an, das 
heutige raittaghelle Recht kiinstlich wieder in die Beleuchtung der Morgen- 
dammerung zu stellen." Jellinek, Gesetz und Verordnung, p. 26. 

2 Figgis, Divine Right of Kings, p. 230. 

3 Speaking of Coke, Dr. Hatschek says : "Der Gedanke, dass das Parlament 
Gerichtshof sei, wird von ihm der ganzen Interpretation der parlamentarischen 
Geschaftsordnung und der sog. Parlamentsprivilegien zugrunde gelegt." Eng. 
Staatsrecht, vol. i. p. 240. 



times adjudge them to be utterly void"? 1 The truth is 
that these two statements are not really contradictory : 
for the one is not an assertion of the legislative su- 
premacy of Parliament ; the other is not a denial of it. 
Coke's actions may often have been capricious, as has 
been charged, but his legal and political theory was not 
so. Statements like the one in Bonham's Case were not, 
as has often been intimated, vagaries, due to caprice or 
temporary excitement, out of relation with his gen- 
eral teachings, isolated statements of a theory contrary 
to and incompatible with the generally accepted be- 
liefs of the time. In reality, his statements were all of 
a piece and all easily reconcilable under the then pre- 
valent theory of parliamentary "supremacy." 

Evidence is found all through Coke's writings that 
the foregoing statements contain his true view of par- 
liamentary institutions in England. 2 He never recog- 
nized the antithesis between legislation and adjudica- 
tion by which the moderns have interpreted him. 

As the conflict between King and Parliament grew 
closer, statements of Parliament's supremacy became 
more frequent, but on the very eve of Parliament's 
great practical demonstration of its legislative sover- 
eignty, and in fact long after that, men kept on cit- 
ing the old precedents for judicial supremacy, and it is 
often clear that they themselves did not notice that 

18 Reports, 118. 

2 For example, see in addition to the references already given, 4 Inst., 37-41, 
43 (where he speaks of "Acts of Parliament enrolled in other Courts"), and 
4 Reports, Introduction, p. v. 



the legislative power they were actually advocating 
was anything different from the old powers of the 
High Court of Parliament. 1 The ship-money case is 
especially noteworthy in this respect. "I agree," said 
Sir Robert Berkley in that case, "the parliament to 
be a most ancient and supreme court, where the king 
and peers, as judges, are in person, and the whole body 
of the commons representatively." 2 Again: "I confess, 
that by the fundamental law of England, the parlia- 
ment is * commune concilium regis et regni,' that it is 
the greatest, the most honourable and supreme court 
in the kingdom ; that no man ought to think any dis- 
honourable thing of it : yet give me leave to say, that 
it is but a Concilium." 3 So also Sir William Jones, in 
an elaborate argument to justify the ship-money writs, 
urged that in the defence of the realm the King should 
be the judge of the means, even though his judge- 
ment might be expressed through his other judges : 
"We are judges cumulative, not primitive; so he is 
the supreme judge. In the parliament the king is the 
sole judge, the rest are but advisers. . . . So, as I have 
said before, he is the only supreme judge of the danger 
himself, and of the way of prevention, whether by his 
council or by his parliament." 4 

1 See, for example, Rushworth, vol. i. p. 690 ; Sir J. Eliot's Apology for Soc- 
rates, in Old South Leaflets, p. 13. See also the trial of Sir J. Eliot and others 
for seditious speeches in Parliament, 3 St. Tr., 296, 300, 309, 310 (1629). 

2 3 State Trials, 1098. 

3 Ibid., 1101. 
*lbid., 1184. 

[ 149] 


The last of these instances is particularly interesting 
because it shows a characteristic lack of definition of 
judicial and legislative parliamentary acts. The King is 
the fountain of justice, and Parliament men are only 
his assistants in judicature; and for that reason he is to 
be the supreme "judge" of public measures for defence 
of the realm. It would be hard to find in the middle 
ages a better example of the fusion of the legislative 
and judicial; for it is to be noted that Sir William 
Jones is not talking about trial of peers, or parliamen- 
tary privilege, or hearings on appeal, or even private 
bill procedure. He is talking about something that 
would be to-day purely legislative. 

These instances have come from the King's judges, 
who might be expected to have some leanings toward 
any doctrine that was opposed to parliamentary legis- 
lative sovereignty, but like opinions may be found on 
the other side as well. For example, St. John said : " If 
an erroneous Judgment was given before the statute 
of 27 Eliz. in the King's-bench, the King could not 
relieve his grieved subject any way but by Writ of 
Error in parliament : neither can he out of parliament 
alter the old laws, or make new, or make any Naturali- 
zations or Legitimations, nor do some other things: 
and yet is the parliament his Majesty's Court too, as 
well as other his Courts of Justice," 1 etc. In 1641 St. 
John, who was chosen by the Commons to present to 
the Lords their reasons for passing the Bill of Attain- 

1 3 Se. Tr., 862. 

[ 150] 


der against the Earl of Strafford, made a statement 
which seems to mark the transition from the old idea 
to the new. After pointing out that there are two 
grounds for every judgement, either the law in being 
"or else the use of the same Power for making new 
Laws, whereby the old at first received life," and dis- 
cussing briefly the first of these, he says, in regard to 
the second: "My Lords, in the other Consideration of 
using the Supream Power, the same Law gives Power 
to the Parliament to make New Lawes, that enables 
the Inferiour Court to Judge according to the Old. 
The Rules that guides the Conscience of the Inferiour 
Court is from without, the Prescripts of the Parlia- 
ment, and of the Common Law; in the other, the Rule 
is from within, that Salus populi be concerned, that 
there be no wilful oppression of any of the Fellow- 
Members, that no more Blood be taken then what is 
necessary for the Cure, the Lawes and Customs of 
the Realm as well enable the Exercise of this, as of 
the Ordinary and Judicial Power. 

"My Lords, What hath been said, is because that 
this proceeding of the Commons by way of Bill, im- 
plies the use of the meer Legislative Power, in respect 
new Laws are for the most part past by Bill. 

"This, my Lords, though just and legal, and there- 
fore not wholly excluded; yet it was not the only 
ground that put the Commons upon the Bill, they 
did not intend to make a new Treason, and to Con- 
demn my Lord of Strafford for it; they had in it 

[151 ] 


other considerations likewise, which were to this effect. 

"First, The Commons knew, that in all former 
Ages, if doubts of Law arose of great and general 
Concernments, the Parliament was usually consulted 
withal for resolution, which is the reason that many 
Acts of Parliament are only Declarative of the Old 
Law, not Introductive of a New, as the Great Charter 
of our Liberties; the Statute of Five and twentieth 
year of Edward the Third of Treasons ; The Statute 
of the Prerogative, and of late the Petition of Right; 
if the Law were doubtful in this Case, they perceived 
the Parliament (where the old way is altered, and new 
Laws made) the fittest Judge to clear this Doubt." 1 

We seem to see in this the old judicial idea jostled 
by the new conception of "meer Legislative Power." 
St. John evidently considers a bill of attainder essen- 
tially judicial in character, for he hastens to justify it 
by precedents that are judicial, and to explain that the 
Commons do not intend to make a new treason, nor to 
"decline your Lordships Justice in the Judicial way." 
He sees, however, a sharp contrast between judicial and 
legislative power, which he is under the necessity of 
trying to explain. Such a necessity would not have 
occurred to a lawyer half a century earlier. His expla- 
nation is vague, of course, but who can say with cer- 
tainty, even to-day, whether a bill of attainder was 
really judicial or legislative ? The new idea had, in fact, 
now to be reckoned with. It was expressed in the 

i Rushworth, Stra/orcTs Trial, p. 676. 



course of the same trial by Lord Digby with reference 
to bills of attainder, in words that can hardly be im- 
proved upon: "I know, Mr. Speaker, there is in Par- 
liament a double Power of Life and Death by Bill, a 
Judicial Power, and a Legislative ; the measure of the 
one, is what's legally just; of the other, what is Pru- 
dentially and Politickly fit for the good and preser- 
vation of the whole. But these two, under favour, are 
not to be confounded in Judgment: We must not 
piece up want of legality with matter of convenience, 
nor the defailance of prudential fitness with a pretence 
of Legal Justice." 1 

This is one of the earliest clear statements as to 
the nature of that "positive completeness" which the 
"supreme" legislature has, but the "supreme" court has 
not, as to the difference between jus dare &ndjus dicer e. 
It expressed the difference between judicial and legis- 
lative power in a way that has hardly even yet been 
entirely realized in England, in theory at least. From 
such a statement it is but a step to the declaration that 
"no Bill of Attainder or ex post facto Law shall be 
passed." 2 

But the old idea did not lose its effect at once. It 
was asserted by Twysden, 3 James Howell, 4 Hakewell, 5 

1 Rushworth, StrafforcCs Trial, p. 53. 

2 Constitution of the United States, art i. sec. 9. 

3 On the Government of England (Camden Society), pp. 129, 131. 
*Somers Tracts, vol. v. pp. 48, 51. 

5 Modus Tenendi Parliamentum, pp. 32, 33. 



Judge Jenkins, 1 Nathaniel Bacon, 2 Petyt, 3 and others. 

Prynne's Soveraigne Power of Parliaments and 
Kingdomes is particularly important. It was printed by 
order of the House of Commons in 1643, and probably 
sums up, better than any other writing we have, the 
constitutional views of the men who dominated the 
earlier sessions of the Long Parliament, and exhibits 
the theoretical basis of the revolution of the seven- 
teenth century in England in its earlier stages. 

If some of the leaders of the Parliament saw that the 
real question at issue was supremacy and not law, not 
so all. And even those who were keen enough to see 
so far could not miss the more obvious fact that in the 
England of 1641 the only justification for Parliament's 
actions which could win popular support was the justi- 
fication of precedent. Prynne, then, voiced views that 
Pym and the other leaders wished to express, whether 
these were due to real conviction or only to motives of 

In the book, Prynne cites the King's promise in 
Magna Charta not to deny nor defer justice and right, 
as an argument for frequent sessions of Parliament; 
and also tries to justify the act depriving the King of 
the power to adjourn or prorogue Parliament, on the 
precedent of previous statutory provisions "that the 
King neither by his great nor privy scale, nor by Writ 

1 Works, pp. 48, 50. 

2 Discourse on the Laws and Government of England, part ii. p. 14. 
zjusParliamentarium, pp. 29, 41-3, 55, 57, 74. 

[ 154 ] 


or Letter could without just or lawfull cause assigned, 
prorogue or adjourne the Terme or sitting of any 
Courts of Justice, much lesse prorogue or dissolve his 
highest Court, and grand Councell of the Realme, the 
Parliament, or disable them to sit to redresse the king- 
domes and Subjects severall grievances, or secure the 
Realm from danger; Which if he might lawfully doe at 
his pleasure, without the Houses joynt assents, there 
would necessarily follow, not onely a deferring and de- 
niall, but likewise a fayler of Justice in the highest 
Court of Justice ; which these Acts disable the King 
(who is so farre inferior to the Law, that he cannot 
so much as delay the smallest proceedings of it in 
any Court or Session, by his supreame power, by any 
meanes whatsoever) to effect in his meanest Courts, 
much lesse then in the greatest; from w r hence the 
subversion of Lawes, Liberty, Justice, and the whole 
Realme would ensue." 1 

In like manner, he argues, Parliament must have the 
power to annul any commission or proclamation of 
the King, because "the like power have all other 
Courts of Justice within the kingdome in some degree, 
when such Charters and Writs of the King are brought 
judicially before them, because they are Courts of the 
Law, to which the King and all his Actions are and 
must be subject. Now that which can thus question, 
cancell, disannull, revoke the Kings owne Royall Char- 
ters, Writs, Commissions, Patents, &c. though ratified 

1 Soveraigne Power, pt. i. p. 33. 



with the Great scale and regall power, even against his 
will, must certainely be a Soveraigne power and Au- 
thority, which in point of Law and Justice is superiour 
to the King." 1 The apparent speciousness of this reason- 
ing should not blind us to its importance. It exhibits 
the modern doctrine in process of development from 
the older theory. The old judicial interpretation is here 
made the precedent for the new parliamentary legis- 
lation. The flaw in this argument appears only when 
we see that the only ground on which a court could de- 
clare a grant or a patent invalid was a ground external 
to the court itself and beyond its discretion, namely, 
the law. This power is totally different from the right 
to reject such a grant for reasons known only to the 
Parliament. In short there is here the difference be- 
tween the " negative completeness " of a court and the 
power of a sovereign lawmaking body which is "com- 
plete on its positive side" as well. But this was a dis- 
tinction which undoubtedly most of Prynne's readers 
were not yet ready to make in 1643, and the argument 
must have been an effective one. 

There were some who questioned the power of Par- 
liament legally to do business in the absence of the 
King. This objection Prynne answers on the same gen- 
eral assumption by saying : " Though he be personally 
absent as a man, yet he is still Legally present in Par- 
liament, (called the kings presence) as he is a King; as 
he is in all other his Courts of Justice, where all pro- 

1 Soveraigne Power, p. 34; see also p. 46. 

[ 156 ] 


ceedings are entred, Coram Rege, though the King 
never yet sate personally in either of them." 1 

Prynne uses the same kind of an argument against 
those who deny the legality of a Parliament from 
which the bishops are excluded. "One puny Judge in 
the Courts of Westminster may and doth usually give 
judgement, and make binding Orders, though the 
Chiefe Justice and his Fellowes be negligently or wil- 
fully absent: Much more then may the Lords and 
Commons now present, doe the like, in case of the 
Kings and other Members wilfull absence, of purpose 
to ruine both Parliament and Kingdome." 2 So he 
argues also that laws made in the reign of an usurper 
are nevertheless good laws, "because these Lawes, 
and all other Judiciall Acts in Courts of Justice, are 
the Acts of the Parliament and Courts themselves, 
which are lawfull: not of the usurping King, who is 
unlawfull." 3 "There is one cleare Demonstration yet 
remaining," he says, "to prove the supreme power of 
Parliaments above Kings themselves, which is this," 
that Parliament is the highest court of appeal. "Now 
this is an infallible Maxime, both in the Common, 
Civill, and Canon Law, that The Court or person to 
whom the last appeale is to be made is the Supreamest 

Again, the Resolutions against the King's Commis- 

l Soveraigne Power, pt. i. p. 42. 
z lbid., pt. i. p. 44. 
3 Ibid., p. 49. The italics are mine. 
id., pp.92, 93. 



sions of Array, made by "the supremest Court" of Par- 
liament, he declares to be lawful and binding on the 
King and every private subject; while the King's "extra- 
judiciall and illegal Declarations out of Parliament" in 
opposition are not to be obeyed, but are in "contempt" 
of Parliament's authority, and if not punished "will 
bring this highest, greatest, and most honourable Court 
. . . into greater contempt and lesse estimation with all 
men . . . then the basest Court of Pipouders is." 1 

In the same way he insists that if it is by statute 
treason to kill the Chancellor or any of the judges, 
"then much more must it be high Treason against the 
King and Kingdom, to warre against the highest Court 
of Parliament, or slay any Member of it, for doing their 
Offices and executing the Houses just Commands." 2 

The hazy views of the real character of parliamentary 
supremacy that still existed so late as 1653 are illus- 
trated by the case of Captain John Streater, who had 

1 Soveraigne Power, pt. i. pp. 106, 107. 

2 Ibid. , pp. 108, 109. That the views expressed here were not entirely the result of 
the struggle with the King, but were an essential part of Prynne's political 
theory, appears in nearly all his works. For example, in his Good old Funda- 
mental Liberties, he designates Parliament as first a council, second a court, 
and third a representative body to alter and repeal laws. The order is not 
accidental (Introduction to the Christian Reader). In his Brief Register, when 
stating the chief purpose of summoning Parliaments, the "promotion of pub- 
lick Justice" comes before "the enacting of wholesome Laws"(pt. i. p. 434). 
See his Plea for the Lords (1658), p. 163, where he gives many valuable refer- 
ences, pp. 311, 312; also his Abridgment of the Records (1656), Preface, passim, 
where we find him using the judicial conception of Parliament to a diiferent 
purpose Parliaments which are the " best of all Courts, Councils, . . . when 
kept within their legal Bounds : so they become the greatest Mischiefs, Griev- 
ances to the Kingdom, when like the Ocean they overflow their banks." 

[ 158] 


been committed to the Gate House by an order of the 
Parliament, and obtained a writ of Habeas Corpus re- 
turnable in the King's Bench. In the course of the hear- 
ing on the writ, there was much discussion of the char- 
acter and efficacy of an "order of Parliament." It was 
insisted by the Commonwealth's counsel that "an Order 
hath force as well as an Act." 1 The case is the more 
interesting from the fact that there was no "Other 
House" in existence at this time. The result of the first 
hearing, held before the end of the short-lived Bare- 
bones Parliament, which had issued the order, was the 
remanding of Streater to the Gate House, the judges 
asserting the inability of any lower court to question 
what Parliament had done. " If the parliament should 
do one thing," said Chief Justice Rolle, "and we do the 
contrary here, things would run round." 2 To the ob- 
jection of Streater 's counsel that "the parliament hath 
not power to alter the laws," the Chief Justice answered: 
"Why, they have the legislative power, and may alter 
and order in such sort as they please ; they may daily. 
If they find any thing that is fit to be reformed, they 
may alter and reform them, and make laws new. It is 
strange a counsellor should say this." To the objection 
that there was no cause of commitment in the Parlia- 
ment's order, the Chief Justice answered : " It is true, 
here there is not. We are judges of the law, and may 
call inferior courts to an account. ... In this case, 

1 5 St. TV., 386. 
2 Ibid. 



if the cause should come before us, we cannot examine 
it, whether it be true or unjust: they have the legisla- 
tive power." As to the objection that this was but an 
order and not three times read in Parliament, he asks : 
" How can you tell but that it has been three times 
read?. .. But if it were but once read, we cannot call it 
into question, but must conceive itwas on just grounds." 1 
On the same point Judge Nichols also answered : "Why, 
their power is a law, and we cannot dispute any such 
thing. And whereas you affirm it was once pleaded here 
'that the King was above the law, and might do what 
he pleased against the law,' that it was so here, I do not 
remember: but the parliament does not so." 2 Streater 
then demanded that notice should be taken of the con- 
demnation of the King's arbitrary imprisonments in the 
debates in Parliament in 1628 over the Judges' decision 
in Darnel's case. The Chief Justice's answer is remarka- 
ble : "The King was plaintiff against them, and he was 
but a feoffee in trust : The Parliament is plaintiff against 
you, and they are a legislative power." The prisoner 
was accordingly remanded. 3 After the Parliament had 
come to an end, Streater's counsel moved for a new 
writ, and obtained it. The question now turned on 
whether a man could be detained on Parliament's order 
after the dissolution of the Parliament. The Attorney- 
General argued that "when kings die, it is true, that 

15 St. TV., 386, 387. 
2 Ibid., 387. 



Commissions do cease; but when Parliaments do dis- 
solve, their acts do not cease. Besides, a parliament is the 
Supreme Court, and they do constitute other courts; 
and therefore it is not for other courts to question the 
proceedings of a parliament." 1 It was answered that 
"an Act or Order of parliament is not a Judgment of 
parliament. We are here cor am Protector -e." 2 The court 
took the latter view, and Streater was admitted to bail. 
In 1642, when Charles had replied to Parliament's 
passage of the ordinance concerning the militia, and 
had commanded his subjects to pay no attention to 
the ordinance, the Lords had in turn protested "that 
when parliament, which is the supreme court of this 
kingdom, shall declare what the law of the land is, to 
have that not only questioned and controverted, but 
contradicted, and a command that it should not be 
obeyed, is a breach of the privilege of parliament." 3 In 
Hobbes's Behemoth this statement is commented on as 
follows : " I thought that he that makes the law, ought 
to declare what the law is. For what is it else to make 
a law, but to declare what it is. So that they have taken 
from the King not only the militia, but also the 
legislative power." 4 An even more interesting example 
of the transition from the old to the new is found 
in Filmer's Freeholder's Grand Inquest: "Every Su- 

*5 St. Tr., 392. 

2 Ibid., 393. 

3 Par?. Hist., vol. ii. p. 1134. 

4 English Works (Molesworth), vol. vi. p. 290. See also 13 St. Tr., 1428, for a 

similar statement. 

[161 ] 


preme Court must have the Supreme Power, and the 
Supreme Power is alwayes Arbitrary ; for that is Arbi- 
trary which hath no Superiour on Earth to controll it. 
The last Appeal in all Government, must still be to an 
Arbitrary Power, or else Appeals will be in Infinitum, 
never at an end. The Legislative Power is an Arbitrary 
Power, for they are termini convertibles. 

"The main Question in these our dayes is, Where 
this Power Legislative remains?" 1 Filmer's answer, of 
course, is that it remains in the King. 

"The high court of parliament," wrote Sir Matthew 
Hale, "consisting of the king and both houses, is the 
supreme and only supreme court of this kingdom, from 
which there is no appeal. Wherever the dernier resort 
is, there must needs be the sovereignty ; and so this 
word is constantly used and joined with it." 2 This 
might almost pass for sixteenth century doctrine, but 
he adds, a few lines later: "Again, if this should be, 
that the supreme jurisdiction without appeal, the der- 
nier resort, were to the house of lords, then is the legis- 
lative power virtually and consequentially there also ; 
or at least that power lodged in the king and both 
houses were insignificant. For what if the lords will 
give judgment against an act of parliament, or declare 
it null and void ? If they have the dernier resort, this 
declaration or judgment must be observed and obeyed 
and submitted unto irremediably; for no appeal lies 

1 Page 40. 

2 Jurisdiction of the Lords Hotise, p. 205. 

[ 162] 


from their judgment, if they be the supreme court. And 
if it be said, this shall not be presumed they will do: 
I say, if this position were true, they may if they 
will." 1 

He argues that "the high court of parliament con- 
sisting of the king and both the houses of parliament 
are certainly the only supreme court of this kingdom, 
to whom the divolution of the last appeal or dernier 
resort doth belong," for, he says, "it is utterly incon- 
sistent with the very frame of a government, that the 
supreme power of making laws should be in the king 
with the advice of both his houses of parliament, and 
judgment should be in one of the houses without the 
king and the other. A supreme power of making laws 
should be thus in the king, and monarchical; and the 
supreme decisive power or jurisdiction and dernier re- 
sort should be radically in the lords, and so aristocra- 
tical. Therefore it is not only de facto true in our gov- 
ernment, but it is most necessary, that the supreme 
decisive power or jurisdiction and the dernier resort 
must be where the legislative power is." 2 This con- 
junction of the supreme court and the legislature 
Harrington also asserted: "Wherever the power of 
making Law is, there only is the power of interpreting 
the Law so made." 3 

Lord Hale has been charged with confounding the 

1 Jurisdiction of the Lords House, p. 206. 

2 Ibid., p. 207. 

3 A System of Politics: Works, p. 509. 

[ 163 ] 


legislative with the judicial power in parliamentary 
proceedings. 1 In a sense it is true, but it is easy to for- 
get that he was in the midst of a controversy. The 
exclusive jurisdiction of the Lords on appeal was not 
as undisputed as to-day, and certainly there were some 
precedents against it. After all, his reasoning was not 
so much at fault. He was correct in saying the Lords 
might declare an act of Parliament invalid if they 
would. At the time when he wrote it was not entirely 
unreasonable to imagine their willingness to do so. 2 
The extent of the jurisdiction of the Lords was still a 
matter of controversy, and the distinction betweenjws 
dare and Jus dicer e was by no means yet clear to all. 
Only since this distinction has become perfectly clear 
and well understood has the danger that Hale dreaded 
disappeared, and it is difficult to say that there were 
no grounds whatever for his fears, when we consider 
that it was well along in the nineteenth century be- 
fore the question was settled definitely when the judi- 
cial business of the House of Lords should be partici- 
pated in by the whole house and when by the Law 
Lords alone. Moreover, the line between legislative 
and judicial power is a very fine one. Where the two 
powers are exercised by the same body, they cannot 
always be distinguished ; where they are exercised by 
separate bodies, there are sometimes conflicts. Even in 

1 Parl. Hist., vol. xxviii. p. 1095. 

2 This view is strengthened by reading the proceedings of both houses through 
the various phases of the long struggle between them in the reign of Charles II. 
See the Journals of both houses, passim. 



the United States, where the distinction between the 
two kinds of power is felt more keenly than almost 
anywhere else, it is not inconceivable that the Supreme 
Court might at some time disregard the distinction. 
Some of its recent decisions seem to indicate an un- 
conscious tendency in that direction. It was probably 
a fear of this "arbitrary" action, and the influence of 
views derived from English legal and political writers 
like Harrington, that led to the varying views of the 
early American courts on the question of the power 
of a court to review the acts of a legislature. 1 

In England at the present day there seems little 
danger of encroachment by the courts upon the legis- 
lature, or vice versa. Their respective spheres have be- 
come pretty definitely marked. In a fairly recent de- 
cision it was said, "What is said or done within the 
walls of Parliament cannot be enquired into in a court 
of law" 2 The antithesis here is sharp. There is nothing 
of Parliament and "other" courts, or Parliament and 
"any inferior court." Except in the well-defined cases 
of the Lords' judicature in cases of appeal or in the trial 

J On this point see Thayer, Legal Essays, p. 1 et seq., The Origin and Scope 
of the American Doctrine of Constitutional Law; Brinton Coxe, An Essay on 
Judicial Power and Unconstitutional Legislation; Bryce, American Common- 
wealth, ch. xxxiii. ; W. M. Meigs, The Relation of the Judiciary to the Consti- 
tution, American Law Review, vol. xix. ; E. S. Corwin, The Supreme Court and 
Unconstitutional Acts of Congress, Michigan Law Review, vol. iv., with refer- 
ences there cited ; The Conflict over Judicial Powers in the United States to 
1870, by Charles Grove Haines, Ph.D. (Columbia University Studies in His- 
tory, Economics, and Public Law), On this question the debates over the Code 
Civil in France during the Consulate are most instructive. 
2 Lord Coleridge, C. J., in Bradlaugh v. Gossett. 

[ 165 ] 


of peers, Parliament is now thought of and spoken of 
purely as a legislature, and even questions of privilege 
so far as they properly belong to the houses are hardly 
considered any longer as judicial. In a country where 
so much depends upon precedent as in England, it is 
impossible to say that new circumstances may not arise 
leading to a furbishing of the old weapons, but it is safe 
to say that to-day the general idea of Parliament as 
a court is well-nigh forgotten. 

"The separation of legislative and judicial functions 
is a refinement in the principles of political government 
and jurisprudence, which can only be the result of an 
advanced civilization." 1 


"WHEN states are departed from their original Con- 
stitution, and that original by tract of time worn out 
of Memory ; the succeeding Ages viewing what is past 
by the present, conceive the former to have been like 
to that they live in ; and framing thereupon erroneous 
Propositions, do likewise make thereon erroneous In- 
ferences and Conclusions." Thus appropriately does 
Sir Henry Spelman begin his account "Of Parlia- 
ments." 2 

In no nation's history has this been more true than 

1 May, Parliamentary Practice, 9th ed., p. 754. For an excellent modern argu- 
ment for the old view see Anstey, On Blackstone's Theory of the Omnipo- 
tence of Parliament : Juridical Society Papers, vol. Hi. p. 305 et seq., especially 
p. 322 et seq. See also Hatschek, Englisches Staatsrecht, vol. i. p. 546, note 1. 
2 Reliquiae Spelmannianae, p. 57. 

[ 166.] 


in English history, and in no part of English history 
more than in the history of Parliament. The hardest 
thing for a historian of institutions to do, and the thing 
he oftenest fails to do, is "to think away distinctions 
which seem to us as clear as sunshine;" and yet, as 
Professor Maitland says, "this we must do, not in a 
haphazard fashion, but of set purpose, knowing what 
we are doing." 1 One thing above all others has made 
this "thinking away" so difficult for us, and that is 
the slow and almost unperceived changes that have 
occurred in the meanings of words. To no other single 
factor can be attributed so many misconceptions re- 
garding the development of our institutions. As Sel- 
den says: "We have more words than notions, half a 
dozen words for the same thing. Sometimes we put 
a new signification to an old word, as when we call a 
piece, a gun. The word gun was in use in England for 
an engine to cast a thing from a man, long before 
there was any gunpowder found out." 2 This has again 
and again been noted as a special characteristic of Eng- 
lish constitutional growth. Bagehot remarked it, and 
had to look behind the words to see that real working 
constitution which he described so brilliantly. "Lan- 
guage," he says, "is the tradition of nations; each gen- 
eration describes what it sees, but it uses words trans- 
mitted from the past. When a great entity like the 
British Constitution has continued in connected out- 
ward sameness, but hidden inner changes, for many 

1 Township and Borough, p. 11. 2 Table Talk, s. v. Language. 

[167 ] 


ages, every generation inherits a series of inapt words 
of maxims once true, but of which the truth is 
ceasing or has ceased. As a man's family go on mut- 
tering in his maturity incorrect phrases derived from 
a just observation of his early youth, so, in the full ac- 
tivity of an historical constitution, its subjects repeat 
phrases true in the time of their fathers, and inculcated 
by those fathers, but now true no longer. Or, if I may 
say so, an ancient and ever-altering constitution is like 
an old man who still wears with attached fondness 
clothes in the fashion of his youth : what you see of him 
is the same; what you do not see is wholly altered." 1 
"In England," Seeley says, "it is our custom to alter 
things, but to leave their names unaltered." 2 

This change in the meaning of words, or, as often, the 
indiscriminate use of one word for more than one in- 
stitution, frequently gives a valuable clue to the true 
nature of the institutions involved. For example, we 
often find a word used of one institution at one period, 
and later apparently transferred to another institution 
which may now be widely different from the first. In 
many cases this transfer is only apparent, for a closer 
inspection shows that the later institution is one of a 
number of branches into which the earlier institution 
has divided, the old name adhering to only one of the 
branches to the exclusion of all the others, and some- 

1 The English Constitution (American edition), pp. 69, 70. 

2 Science of Politics, p. 298. See Hobbes, Leviathan, part ii. ch. xxv. ; also the 
judicious remarks of Professor Dicey, Law of the Constitution, p. 17. 

[ 168] 


times to the exclusion of the original parent institution 
itself. Whatever the character of the change, it is usually 
not unreasonable, in cases where the same word is used 
for several institutions now different, to conclude that 
they have not always been thus different. 1 

Instances of this process have already been noted, 
but there are many others, some of them comparatively 
modern, which throw light on the judicial side of Par- 
liament's development. One or two of the most impor- 
tant of these it may be profitable to note. The early 
lack of separation of powers is shown in the various 
meanings of the word" assize ;" 2 the fixity of early law by 
the word etablissement (stabilimentum), which was long 
used in France; to say nothing of our own "statute." 
For more recent times a more important instance occurs 
in the different meanings formerly and to a certain ex- 
tent still attaching to the word "jurisdiction." Prynne 
says that court which can question and banish or exe- 
cute the King's greatest officers "must questionlesse be 
the highest power and jurisdiction in the realme." 3 He 
speaks also of Parliament's "power and jurisdiction" 
in reforming the abuses of the King's menial servants 
and the expenses of his court, 4 and again of Parliament's 
"Sovereigne Power and Jurisdiction in making and 

1 On this point see Hearn, Government of England, 1st ed., pp. 260, 261. 

2 See Spelman, Glossary, and Du Cange, s. v. Assisa ; Oxford Dictionary, s. v. 
Assize; Gneist,Com. Hist. (Ashworth's English translation), vol. i. p. 287, note ; 
Stubbs, Constitutional History, vol. i. pp. 614-18, and p. 614, note 1. 

3 Soveraigne Power of Parliaments and Kingdoms, pt. i. p. 88. 
*Ibid., p. 89. 



proclaiming Warre or Peace." 1 In like manner, he says 
the English Parliament has discussed and settled ques- 
tions connected with "the Title and jurisdiction of the 
Crowne of Scotland." 2 In his Fundamental Liberties 
he speaks of "the Legislative Tax-imposing Power " as 
"the inseparable incommunicable Jurisdiction of our 
Parliaments alone." 3 

Clarendon speaks of "the temper of the people, the 
extent of the courts of law, and the jurisdiction of Par- 
liaments, which at that time had never committed any 
excess of jurisdiction." 4 

It is clear that making general law, so far as it was 
conceived that law was "made," as well as the de- 
cision of particular cases, could then have been included 
under "jurisdiction," even when that word was used 
technically. Hale says so directly: "Jurisdiction," he 
says, "may be taken two ways. I. Less properly for acts 
of voluntary jurisdiction, which also takes in making 
constitutions and orders and ordinances. II. Properly 
for that judicial and coercive power inforocontentioso" 5 

Closely allied to "jurisdiction" is "judgement. "There 
is abundant evidence that in Tudor times, and later, 
"judgement" was used of things we call legislative, as 

1 Soveraigne Power, pt. i. p. 90. 

2 Ibid., pt. i. p. 98. 

3 Parti, p. 92. 

4 History of the Rebellion, book i. 

5 Jurisdiction of the Lords House, p. 30. See also 4 Inst., Proemiura. So a writer 
in 1684 speaks of Parliament as "the highest Judicature in this Kingdom," 
when he is evidently thinking of it in a "legislative" capacity. Harleian Mis- 
cellany, vol. v. p. 551 (ed. of 1745). 


well as of things judicial. So John Knox says in 1558: 
"It is evident, that her [Deborah's] judgement or 
gouernement in Israel was no such usurped power." 1 
Earlier, in Coverdale's version of the Psalms, we find, 
"I haue chosen the way of treuth thy judgments haue 
I layed before me." 2 In King James's version we find, 
"Now these are the Judgements which thou shalt set 
before them," where Coverdale, the Geneva and the 
Bishops' Bible have "lawes." 3 So also Lord Ellesmere 
in his speech in the Case of the Postnati, referred to 
above, speaks of the statute authorizing commission- 
ers to treat with the Scots concerning the Union as 
"the judgement of the parliament." 4 

The words of Sir John Eliot are very explicit : " In 
this first & strickter signification [ofjudicium] it intends 
a power of Judicature ; y e decision & determination of 
all home causes & controversies iudiciall, w ch sence & 
acceptation is soe vulgar, as it needs noe authoritie to 
confirme it. ... Yet there it does not terminat, as if 
merely it were design'd an Art of Judicature, & Justice, 
which haue proprietie w to in it. but it goes further, 
likewise to the larger sence & meaning which intends 
a power of gouerment, & soe it is the same w ih potestas 
& Imperium; summa potestas, summum imperium, & in- 
dicium summum, being paranomasia & Identities, hav- 

1 First Blast of the Trumpet (Arber's ed.), p. 41, quoted in the Oxford Diction- 
ary, s. v. Judgment. 

2 Psalm cxix., quoted in Oxford Dictionary as above. 

3 Exodus xxi. 1, Oxford Dictionary as above. 
*2 St. Tr., 662. 

[171 ] 


ing the selfe same sense and signification in the same 
latitude & extent." 1 

The oath imposed by Elizabeth's Act of Supremacy 
upon all holding office ecclesiastical or secular under 
the Crown brings out strongly the meaning of several 
important words. They had to swear that the Queen 
was "the only Supream Governor" of the realm and 
all her dominions in things both temporal and eccle- 
siastical, "and that no foreign Prince, Person, Prelate, 
State or Potentate, hath or ought to have any Ju- 
risdiction, Power, Superiority, Preheminence, or Au- 
thority" in the realm, and to renounce and forsake "all 
foreign Jurisdictions, Powers, Superiorities and Au- 
thorities," 2 etc. Commenting upon it Nathaniel Bacon 
says: "Now in regard Offences and Enormities are pro- 
perly against Laws, the power to visit and correct , 
must also be regulated according to Laws, either of 
War, or Peace: Nor do these five words Jurisdiction, 
Power, Superiority, Pre-eminence, and Authority, con- 
tain any more Supremacy, or other sence ; for two of 
them speak onely the Rank or Degree of the Queen 
in Government, viz. Superiority and Pre-eminence be- 
longeth onely to her, and not to any other Foreign 
Power. And two other words do note her Right and 
Title thereto, by Power and Authority committed to 
her. And the other word denotes the thing wherein 
she hath Superiority and Power, viz. in Jurisdiction: 

1 The Monarchie of Man (ed, by Grosart), vol. ii. pp. 35, 37. 
2 lEliz., cap. 1. 

[ 172 ] 


the nature of which word Ulpian (speaking of the na- 
ture of a mixt Government) explaineth thus: Quando 
servata dictione juris judiciorum fit animadversio. So 
as this Supreme Authority in Jurisdiction, is no other 
than Supreme Power to visit correct, redress Offences, 
or determine matters of doubt, hy deputing fit persons 
to that end and purpose according to the Law; and 
this is all the Supremacy that appeareth to me, belong- 
eth to the Crown in these times." l 



THE early English jury has always been to English- 
men and to others an object of admiration and investi- 
gation and a source of despair. Few things are more 
interesting or more important, and few more obscure. 
There is now no danger of confounding it, as was 
formerly done, 2 with the ancient suitors who pro- 
nounced the "judgement" under the old Germanic pro- 
cedure. It is distinguished also from the secta, or suit 
witnesses, which a complainant might in early times 
be required to produce to strengthen his allegations, 
surviving to modern times in the conclusion of the de- 
claration, " and therefore he brings his suit," etc. The 
ultimate acceptance of the inquisition, it is now believed, 

1 Discourse of the Laws and Government of England, part ii. p. 162. The sec- 
ond part of this book, from which this passage is taken, was first published 
in 1651. (J>. N. B., Nathaniel Bacon.) 

2 Cf. the statements made by Erskine in his argument for a new trial in the 
great case of the Dean of St. Asaph's in 1784. 21 St. Tr., 974 et seq., Erskine's 



was due more to royal than to popular pressure. 1 Un- 
like the sectatores or the compurgators, the members 
of the inquest were chosen by the King. Unlike the 
old suitors in the County Court, they pronounced no 
"judgement," but merely a statement of fact, a vere die- 
turn, a verdict, while the King's judge now pronounced 
the judgement. It is clear that the inquisitio must be 
distinguished in origin and in character from these in- 
stitutions that seem in some points so closely to re- 
semble it. Unlike them, the recognition was "a body 
of impartial men, summoned by an officer of the law, 
to speak the truth" 2 concerning some matter. But, on 
the other hand, it is extremely improbable that these 
other forms of procedure were totally without influence 
upon the development of their new rival. "Things indi- 
cate," Professor Thayer says, "the breaking up and con- 
fusing of older forms ; anomalies and mixed methods 
present themselves. The separate notions of the com- 
plaint secta, the fellow-swearers, the business witnesses, 
the community witnesses, and the jurors of the inquisi- 
tion and the assize run together." 3 

Originally, in the King's courts, as in other courts, 
the King or his officer merely presided. He regulated 
the procedure ; he did not pronounce the judgement. 
That was the work of the suitors. In the period im- 
mediately following the Conquest this appears to have 

1 There is probably less emphasis put upon the royal element than was the case 
a few years ago. 

2 Bigelow, History of Procedure, p. 334. 

3 Preliminary Treatise on Evidence, p. 18. 



been true of all the King's courts from the highest to 
the lowest. Nothing is more obscure, and hardly any- 
thing more important, than the process by which this 
procedure was changed into one where the King's officer 
is no longer a mere moderator, but a real judge; where 
he no longer asks for a "judgement" from the qualified 
suitors, but instead demands a verdict from a definite 
number of selected and impartial men. " The gradual 
intrusion of the sworn inquest, of the nascent trial by 
jury, soon begins to transfigure those courts in which the 
king presides by himself or his commissioners; justices 
and jurors begin to take the place of president and 
doomsmen, and this process is so rapid that we have 
nowadays some difficulty in describing the ancient 
courts without using foreign or archaic terms." 1 

Probably the most important consequence of this 
change was the growth of a distinction between law 
and fact. In all the older courts, where the suitors pro- 
nounced the judgement, in the enquete par tourbe, 
where the men of the fief declared what the custom was, 
no distinction was made, because it was unnecessary to 
make any, between law and fact. Traces of this remained 
in England in the rule that the existence of special cus- 
toms should be declared not by the judges, but by 
twelve men. 2 But the juries that we find developed in 
England under Henry II, and apparently in Normandy 

1 Pollock and Maitland, 2d ed., vol. i. pp. 548, 549. 

2 Blackstone, Comm., vol. i. p. 76 ; Doctor and Student, Dialogue I., ch. x. ; Noy, 
Maxims, p. 18. 



in the time of his father, 1 seem in practice to have con- 
fined themselves mainly to what we should call "matters 
of fact." This does not, however, imply the modern nice 
discrimination between law and fact. The line between 
the two may have been recognized, some such dis- 
tinction was prerequisite to the new powers and duties 
of the King's justices, but as yet it was a very indefi- 
nite line. 2 The Grand Assize, for example, decided the 
fact of seisin, but there was law in that decision just 
as there is law in a jury's verdict in a case of criminal 
libel since Fox's Libel Act. The distinctive nature of 
the early inquest lay in the character of its members 
and in the method of choosing them, rather than in the 
subject-matter of their findings. 

It is not strange, then, that the indefiniteness of law 
and fact in the older courts should leave its traces on 
the new inquisitio which grew up in those courts ; and 
the mistake, so fundamental in English history, of con- 

1 Charles H. Haskins, The Early Norman Jury: American Historical Review, 
vol. viii. p. 616 et seq. 

2 The indefiniteness of the whole matter in the middle ages is not very surpris- 
ing in the light of Lord Mansfield's great embarrassment in 1770, when Lord 
Camden propounded to him in the House of Lords his six questions on the 
duties of the jury in cases of criminal libel, the most searching of which was 
probably this : " Does the opinion [Lord Mansfield's recent opinion in granting 
a new trial in Woodfall's Case, although the jury had brought in a verdict of 
* Guilty of printing and publishing only '] mean to declare, that in the case 
above mentioned, where the jury have delivered in their verdict guilty, that 
this verdict has found the fact only, and not the law?" 16 Parl. Hist., 1321, 
1322. See also Annual Register for 1771, pp. 34-6. "The dismay and confusion 
of Lord Mansfield was obvious to the whole audience" (Walpole, Memoirs, 
vol. ii. ch. xviii.), and he refused to make any answer or to agree upon any de- 
finite time to do so. Campbell's Chief Justices, ch. xxxvi.; May, Constitutional 
History, ch. ix. ; Stephen, History of the Criminal Laic, vol. ii. p. 324 et seq. 

[ "6 ] 


founding this inquisitio with feudal trial by peers was, 
after all, a very natural one. 1 For, in addition to what 
has been stated, there is an element and a most im- 
portant element that is common to enquetepartourbe 
and jury, namely, their communal character. It is the 
essence of the decision given by the enquetepar tourbe 
that it is at once a single and a collective decision. So 
also the continuity of the jury as an institution has de- 
pended on the fact that the verdict of the jurors was 
both single and collective. If the jurors had ever been 
questioned as single witnesses, their answers would have 
become mere separate bits of testimony instead of a 
verdict, and the jury would have disappeared in Eng- 
land as it did on the Continent. The jurors were, on 
the contrary, never mere witnesses. They were, from 
the very beginning, "representatives." The vere dictum 
to which they swore was not their individual opinion ; it 
was the common belief of the countryside, and so this 
mode of trial was spoken of as "perpais." 

This communal or representative element is no ad- 
ventitious thing : it is an essential part of the institution 
itself, and was so from the beginning. Furthermore, 
the inquisitio was not a mere judicial instrument, in 
our modern technical meaning of judicial. We have 
been so influenced by the long subsequent history of 
the jury in matters now called judicial, that we are in 
danger of losing the fact that it was used originally for 

!This mistake began very early. See Pollock and Maitland, History of English 
Law, 2d ed., vol. ii. p. 625, note 2, with references. 

[ 177 ] 


other purposes too. Henry II and his successors got 
their information from representatives. They were the 
representatives of the countryside, the "pais" sum- 
moned before the King's councillors, the itinerant jus- 
tices, in the full county court. The "presentment" 
made by these representatives was a statement of what 
was generally believed by the "country" concerning 
the matters on which the King desired information. 
These matters were whatever the King considered 
sufficiently important to him to instruct his itinerant 
justices to investigate. They might include such ap- 
parently particular facts as the case of a man appealed 
of murder, or a quarrel concerning property ; or they 
might be general, such as a tax assessment or a pre- 
sentment of all offences generally believed to have oc- 
curred since the last visitation. In the instructions to the 
itinerant justices in 1194 we find that the King or his 
ministers desire information on oath concerning such 
things as pleas of the crown, escheats, churches in the 
gift of the King, guardianship of minors where the King 
was interested, murderers of the Jews, and, what was 
more important to Richard, the pledges that had been 
in the possession of these Jewish money-lenders, 1 etc. If 
we wish to include activities so diverse as these under 
the one word "judicial," its meaning must be far wider 
and more comprehensive than the one we now give it. 2 

l Form of Proceeding in the Judicial Visitation in 1194, Stubbs, 8. C., p. 258. 
2 The promiscuous use of the inquest in the Angevin period shows that it was 
used indifferently to discover facts that we should label fiscal or judicial, and 
many that can hardly be properly put in either class. The men of that day made 



Historically, these different classes of cases may 
not all have come under the inquisitio at once. As we 
have seen, the jury may have been first applied to some 
with consent of parties, to others under pretence of a 
failure of justice in other courts, or even by a mere 
act of power. However that may have been, the inqui- 
sitio when once applied is applied to all, whether they 
be particular or general, "judicial," fiscal, or what not. 
Investigation shows that even our obvious distinction 
between the grand and the petty jury arose only when 

no such distinctions. The subsequent history of the inquest in judicial matters 
in England, and the great place it occupied in the minds of men like Fortescue or 
Sir Thomas Smith as a national institution, are likely to obscure the undoubted 
fact that originally it was used for many purposes which we should call non- 
judicial. We no longer employ it, in the original form at least, in the assess- 
ment of taxes. We do use it in the presentment of crimes ; but it is a mistake 
to think that originally the judicial use was any more characteristic than the 
fiscal. In fact, Brunner has shown that its origin is probably to be sought in 
the fiscal machinery of Charles the Great. 

The attempt is sometimes made to push back into the earliest Angevin 
times a clear distinction such as existed later between the ordinary "judicial" 
business of the itinerant justices and that of the " General Eyre " which oc- 
curred at longer intervals and was concerned with " business of all sorts, not 
merely judicial." See, for example, A. T. Carter, History of English Legal In- 
stitutions, pp. 67, 68 (3d ed.). This distinction is one which arose only after 
Parliament had begun to take from the itinerant justices the "non-judicial" 
business which at an earlier date had constituted such a large part of their 
duties. See, generally, Holdsworth, H. E. L., vol. i. pp. 115, 116; Assize of 
Northampton, chs. vi., viii., ix., xi. (Stubbs, S. C., p. 152), Stubbs, Historical 
Introductions to the Rolls Series, p. 124 et seq. ; Select Charters, p. 142 ; Madox, 
Exchequer, ch. iii. sec. x. (pp. 140-3 in ed. of 1769). 

The provision in chapter eighteen of John's charter that the three possessory 
assizes should be held in the various counties before justiciarii sent out for 
that especial purpose does not imply the existence in 1215 of a general dis- 
tinction between "judicial" and other administrative business. Cf. ch. viii. of 
the Articles of the Barons (Stubbs, 8. C., p. 291), and chs. xiii., xv., of Henry 
Ill's second reissue (Stubbs, S. C., p. 345). See Mr. McKechnie's commen- 
tary on this provision, Magna Carta, p. 317 et seq. 



men began to see that a presentment of common be- 
lief might be incorrect in fact. But even when the pre- 
sentment had thus become traversable, it was not felt 
at once that the same jury which had sworn to com- 
mon rumour should not also swear again to their opin- 
ion of the truth of the rumour. It was some time before 
a second jury was thought necessary. 

The questions put by the judges to the people un- 
der oath must at times have been terribly searching. 
Rather than face them, we are told that the men of 
Cornwall in the year 1233 took to the woods. 1 The rea- 
son for this terror on the part of the subjects is also, 
in part at least, the explanation of the eagerness of 
the King to extend the operation of the inquisitio over 
so many different things. A few far-seeing men like 
Henry II might appreciate the value of the concen- 
tration of judicial administration which resulted from 
it, but all could see the financial advantage. Trial of 
causes meant profits. Justice and the profits of justice 
were synonymous to most feudal lords. Fees and fines 
were among the most important of their possessions. 2 
The English court and the English realm were not dif- 
ferent from their neighbours in this. Under the Norman 
kings "it was mainly for the sake of the profits that 
justice was administered at all." 3 

1 Ann. Dunst. (Annales Monastic^ Rolls Series, vol. Hi. p. 135), quoted by 
Pollock and Maitland, vol. i. p. 202. 
2 Esmein, Histoire de Droit Fran$ais, p. 261. 

3 Stubbs, C. H., vol. i. p. 418 ; Madox, Exchequer, chs. xii., xiv. The famous forti- 
eth chapter of Magna Charta Nulli vendemus, nulli negabimus^ aut differemus, 

[ 180 ] 


The significant points in the character of the early 
jury, therefore, are, first, that it was a royal means of 
ascertaining the general belief of a district on any 
subject desirable to know; and secondly, that it was a 
means involving the choosing of certain representative 
persons to "present" that general belief to the King's 
officers. But the difficulty was to find men who knew 
the things generally talked about, but who were at 
the same time "representative men." In questions con- 
cerning title this was simple enough. The substantial 
landed proprietors would be the best judges of ques- 
tions of that kind; and so the Grand Assize, which 
was used in those cases, was composed exclusively of 
knights. But in many other matters, especially cases 
of alleged wrong-doing, there was greater difficulty. 
Those in the district who were most likely to know 
the kind of gossip which would form the basis of a pre- 
sentment would in many cases not be the most trust- 
worthy element of the population. It was necessary, 

rectum autjustitiam shows that the barons considered this one of their 
grievances. They were determined to stop the encroachments of the King's 
court on their own jurisdictions. The main aim was probably not, as was for- 
merly assumed, to protect the poor from the oppression of exorbitant fees ; 
it was rather to make it unprofitable for the King to draw cases into his 
courts. The chapter is closely related to chapter thirty-four, Breve quod vocatur 
PRAECIPE de cetero nonfiat alicuide aliquo tenemento unde liber homo amittere 
possit curiam suam. They were both in the interest of the barons. Hence it is 
that Professor Jenks thinks this chapter thirty-four as really a hindrance to 
the advance of English liberty. The Myth of Mag no. Carta: Independent Re- 
view, 1904. There can be no doubt that it shut men out from the advantages 
of the King's courts and forced them back upon the inferior and often biased 
courts of the great nobles, from which they only escaped in time by a series 
of fictions invented by the King's judges themselves. See McKechnie, Magna 
Carta, p. 405 et seq. 

[181 ] 


however, that the justices' time be not wasted in in- 
vestigating idle tales, or worse. The representatives 
must be credible as well as informed. We find, there- 
fore, in the plea rolls instances where the jury is made 
up of two classes of persons, those who furnish the 
facts, and those whose standing gives these facts suf- 
ficient credibility to furnish the basis of further pro- 
ceedings. For example, in 1202, we find the plaintiff 
in a case conceding "that a jury may be made ... by 
lawful knights and men who know the truth of the 
matter" 1 Notwithstanding this, the verdict is a single 
one. The facts may be directly known by only part of 
the jurors, but they are sworn to by all alike. This of 
course implies, within the jury itself, a process of ex- 
amination and sifting of evidence by the knights be- 
fore the final collective verdict is reached. There is thus 
in the very essence of the early jury, besides the mere 
duty of presenting facts, a representative function, and 
also a third function, which Maitland calls the "quasi- 
judicial element." 2 

These proceedings thus held before the justices 

1 Select Civil Pleas (Selden Society), No. 132. See also Bracton, lib. iii. cap. 22 
(folio 143), where juratores and villatae are mentioned. The juratores and 
villatae are also referred to in chapter i. of the Assize of Clarendon (Stubbs, 
8. C., p. 143). For discussions of the difference between juratores and villatae, 
see Starkie, On Trial by Jury, p. 25; Pollock and Maitland, H. E. L., 2d 
ed., vol. II. p. 644 et seq. ; Y. B. 12 and IS Edward 111 (Rolls Series), 
Mr. Pike's Preface, pp. Ixxi, Ixxii; Maitland, Pleas of the Crown for the County 
of Gloucester, Introduction, pp. xlii-xliv ; and especially the remarks and cita- 
tions of Professor Gross in his preface to the Select Cases from the Coroners' 
Rolls (Selden Society), pp. xxx-xxxiv. 

2 Pollock and Maitland, History of English Law, 2d ed., vol. ii. p. 624. 

[ 182 ] 


inerant were distinctly anti -feudal in character, and 
were strenuously objected to by the barons; 1 but the 
inquisitions of knights that reported periodically in this 
way to the King's officers have been generally recog- 
nized as an important stage in the history of English 
representative institutions. The character of the busi- 
ness dealt with on the circuits of these officers, or jus- 
tices, is known mainly from the directions issued by 
the King to the justices mentioning the things to be 
investigated, and from the records of cases that have 
survived to our day. We have, so far as I know, no 
record of any petitions of a general nature presented by 
the knights to the King through these justices in eyre, 
but this is no evidence that the knights might not com- 
plain in their representative capacity of jurymen as well 
as swear to a presentment of criminals. Such things 
would not be so likely to be preserved as, for example, 
the records of concrete cases on which property rights 
depended. 2 

It is worthy of note, in passing, that after the Com- 

1 E. g. Magna Charta, cap. 34. Sir Robert Cotton believed that the Commons 
were first summoned to the Parliaments to weaken the power of the barons. 
It was a blow at their power, just as was the encroachment of the royal jus- 
tice upon the manorial courts, which was accomplished largely through the 
agency of the jury. See Sir Robert Cotton's Brief Discourse concerning the 
Power of the Peers and Commons of Parliament in Point of Judicature : Cottoni 
Posthuma, p. 345 et seq., especially p. 349. Prynne combats this view in the 
preface of his Abridgment of the Records. 

2 Sir Erskine May says in reference to the period before Edward I, when the 
first parliamentary petitions appear: "It is conjectured that the parties ag- 
grieved came personally before the council, or preferred their complaints in 
the country before the inquests composed of officers of the Crown." Par/. 
Practice, 9th ed., p. 606. 

[ 183 ] 


mons had become a regular part of Parliament, the 
petitions in the Rolls are directed to the King or the 
Council, just as would undoubtedly have been the case 
in the county court; for the itinerant justices were 
judges cor am rege, and as such were, as we have seen, 
members of the King's Council. 

It must surely be considered no great innovation if 
a King should at some time ask these "representative" 
knights to bring their information and possibly their 
complaints collectively before the assembled Council 
instead of before its members when scattered on circuit. 1 

!The first instance recorded is in 1213. "Before his [Edward Fs] reign I have 
reason to believe that parties came up from the shires before the Council, and 
sometimes in great numbers, or their complaints were communicated to Par- 
liament by inquests, which were brought down by various Officers of the Coun- 
cil ; these inquests we may call examinations of witnesses." Testimony of Sir 
Francis Palgrave, in Report on Public Petitions: Parl. Papers, Session of 1833, 
vol. xii. p. 20. For a case of a jury ordered to appear before the Council in the 
reign of Edward I, see Note D (pp. 251, 252). An interesting case occurred 
in 1330. Sir Thomas Berkely was charged with the murder of King Edward II, 
who had been in his custody. The case was tried before the King in Parliament. 
Berkely placed himself on the country. A jury of knights was summoned, 
who appeared "coram Doming Rege in Parliamento suo apud Westmonaste- 
rium," and gave verdict of acquittal. Rot. Parl., vol. ii. p. 57, No. 16. Sir Mat- 
thew Hale seems justified in saying that Sir Thomas Berkely was "unques- 
tionably a peer of the realm." Jurisdiction of the Lords House, p. 91 ; Lords'" 
Report, vol. i. p. 301; Dugdale, Summonses; D. N. B., Berkeley, Family of. 
But Hatsell thought he was a knight merely (Precedents, 2d ed., vol. iv.p. 73, 
note), and it is hard to explain why the man who is generally believed to have 
furnished the "singular and unfruitful precedent" (Harcourt, His Grace the 
Steward and Trial of Peers, pp. 337, 338) of the trial of a peer in Parliament 
by a jury of knights, should himself be designated in the record upon the Rolls 
of Parliament as "Thomas de Berkele, Mil'." "I marvel," says Selden, "the 
lords permitted the lord Berkley to wave his peerage, and put himself super 
patriam." Judicature in Parliament: Works, vol. iii. col. 1603. The author of 
The Case Stated concerning the Judicature of the House of Peers in the Point of 
Appeals (1675) [Lord Holies (?) ], considered Sir Thomas Berkley a commoner 
(p. 20). 

[ 18* ] 


This must have been a far more expeditious way for 
the Council to dispose of much of the fiscal and other 
business that would ordinarily have come to it even- 
tually from the shires; and the very frequent occur- 
rence of ordinary litigation in the earlier rolls, to say 
nothing of criminal cases brought before Parliament 
through the process of private appeals, shows that much 
of this business must have been "judicial" in nature. 

There can be little question that the King's main 
motive in thus summoning knights to his Parliaments 
was a desire for revenue ; but this we have found equally 
true of his use of the itinerant justices. The revenues 
from "justice" were a very important part of the King's 
income, but there is no reason to believe that the as- 
sessment of taxes was any less prominent among the 
duties of the justices when they were on circuit than 
when they were in Parliament. The blending of judi- 
cial, fiscal, and other business is characteristic of their 
work in itinere, as it is of their duties in "The King's 
Council in his Parliaments." 

The summoning of representatives from the towns 
must at first also have been for fiscal reasons largely. 
But in the towns that had obtained exemption from 
the visits of the King's officials, there was doubtless the 
same fusion of functions that we find in those towns 
which were not differentiated from the country around 
them. In the favoured towns the point of contact 
with central institutions may have been to a greater 
extent than elsewhere the exchequer side of the Coun- 

[ 185 ] 


cil, but this was a difference, for the early and formative 
years at least, in all probability relatively unimportant 
in practice, and in theory no difference at all. 

Thus we have in time the King's Council in his 
Parliaments composed of persons from two estates of 
the realm, joined by representatives chosen from the 
knights of the shires and the citizens of the towns. 
Probably for a good while the relations of these new 
members of the Parliament toward the old were not 
very different from the relations existing when the 
Council went to meet the knights instead of their go- 
ing to meet the Council. Now, as before, justice was 
administered in the King's name, and all other acts de- 
rived their legal validity from the will of the King, to 
which the petitions of the Commons, like the petitions 
of any other men or community of men in the king- 
dom, were an inducement, but nothing more. Only in 
certain specific matters, especially certain forms of tax- 
ation, had the King promised not to act without the 
assent of the estates vitally interested. These relations 
of Council and community subsisting before and after 
the summoning of the knights and burgesses left a 
lasting mark on English central institutions. To this 
day the King's judges continue to attend the House of 
Lords, summoned as of old by a different form of sum- 
mons from that of the peers, but summoned still as 
a constituent part of " The King's Council in his Par- 

Through all their history, too, the Commons have 
[186 ] 


remained the "Grand Inquest of the Nation." Judges 
and inquest the two houses were before they were 
joined ; Council and Grand Inquest they remained ; and 
this conception of their origin, their character, their 
duties, and their privileges serves in large measure to 
explain throughout the history of Parliament, not only 
the claims of one house against the other, but also 
their common claims as the "High Court of Parlia- 

An instance of the influence of these ideas in a very 
practical way is furnished by the uncertainty concern- 
ing the effect of a prorogation or a dissolution upon an 
impeachment, which gave rise to almost interminable 
debate so late as 1790, during the trial of Warren 
Hastings. The points which came up for discussion 
there show that even at that late day the judicial and 
legislative functions of Parliament were by no means 
clearly distinguished. It was argued on the one hand 
that a dissolution must put an end to an impeachment, 
as it would to any bill. On the other hand it was said 
the Court of Parliament is as permanent as any of the 
other courts. "It is a court perpetually existing. . . . 
Considering it as a court, which though, like all other 
courts, it has certain times of acting; yet, like all other 
courts, it has a constant existence, and cannot be anni- 
hilated." 1 But granting that Parliament's action in such 
cases was judicial, did not this put it within the power 
of the Lords alone, by their single resolution, to put an 

l Parl. Hist., vol. xxviii. p. 1112. 

[ 187 ] 


end to the case and thus defeat the wishes of the Com- 
mons? The idea was indignantly repudiated in the 
Commons: "If it gave up this, it gave up all, and, like 
salt that had lost its savour, was good for nothing." 1 
This looks decidedly like the same old "confusion" of 
legislation and adjudication. To one of the members, 
" Gentlemen seemed to have law in their words and will 
in their meaning; to talk of parliamentary law, and 
reason about parliamentary power;" 2 and Pitt declared : 
"Parliament exercised two powers, legislative, and 
judicial, which had their separate and distinct limits 
and duration. The confusion of these powers was the 
principal source of all the doubts upon the present 
question." 3 

It is true that with the extension of wealth and cul- 
ture among the non-noble, and the birth of self-con- 
sciousness in the electorate, the Commons increased in 
power and importance until in time they deprived the 
King of his newly found legislative sovereignty. This 
at first they shared with the Lords, but in the end, 
through the control of the King's ministers maintained 
by the "Conventions of the Constitution," they have 
in modern times added to their former strength the 

l Parl. Hist., vol. xxviii. pp. 1033, 1034. 
2 Ibid., p. 1143. 

z lbid., p. 1093. Seethe whole debate in volume xxviii. of the Parliamentary His- 
tory, p. 1018 et seq. An excellent summary of it is given by Sergeant Running- 
ton in his edition of Hale's History of the Common Law (p. 55, edition of 1820). 
On the indefiniteness of the character of impeachment in earlier times, see 
Pike, Const. Hist, of the House of Lords, p. 228 et seq. The cases of impeach- 
ment from the earliest times are given in Hatsell, Precedents (2d ed., vol. iv. ). 

[ 188 ] 


King's legal prerogative, an addition which has made 
their power preponderant. 

And yet, through all this long and wonderful pro- 
cess, the Commons, like Parliament as a whole, have 
retained much of their judicial character. For part of 
these judicial powers they entered into a long and bitter 
fight with the Lords, which resulted in some losses. 
Some other parts, however, as bills of attainder and 
impeachment, they retained until these fell into disuse 
or disfavour. Of all these powers, impeachment illus- 
trates best that oldest characteristic of the Commons' 
House, the function of presentment. They were there 
obviously the "Grand Inquest of the Nation." In the 
seventeenth century Filmer used this as an argument 
against their power. If the Commons were summoned 
only adfaciendum et consentiendum, they had no power 
to dissent. 1 In Fitzharris's Case it was said : "The Com- 
mons of England in Parliament are supposed to be a 
greater and a wiser body than a Grand-jury of any one 
county. . . . Will the law of England now suffer an ex- 
amination, impeachment and prosecution for treason, 
to be taken out of the hands of the greatest and wisest 
inquest in England?" 2 So late as 1839 Lord Denman 
declared: "The Commons of England are not invested 
with more of power and dignity by their legislative 
character than by that which they bear as the grand 
inquest of the nation." 3 

i The Freeholders' Grand Inquest, p. 5. The title is significant. 
28 St. TV., 286. 3 9 Adolphus $ Ellis, 114. 

[189 ] 


Hardly anyone has doubted the judicial character of 
the Commons so far as this presentment of crimes is 
concerned. When, however, we come to the question of 
actual judgement, to the function originally exercised 
by the Curia Regis, the problem becomes more difficult. 
The Commons fought long and hard for a participa- 
tion with the Lords in this important part of judicature. 
Precedents exist in the middle ages which could be 
cited for that participation ; others exist that may be 
and have been cited against it. It is outside the purpose 
of this essay to enter the long controversy over this 
question, except to try to indicate how far the contro- 
versy arose out of the indefiniteness of the line between 
"legislation" and "litigation." 

The best modern authorities seem to agree that the 
solution of the problem which has actually been made is 
on the whole the one most nearly in accord with ancient 
practice, namely, that jurisdiction in error should be in 
the Lords exclusively, butthat neither house should have 
any original jurisdiction except in extraordinary cases 
when their privileges or their members are involved. 1 

1 See especially on this subject : Pike, Const. Hist, of the House of Lords, pp. 281, 
287-91, with references there cited; Holds worth, History of English Law, 
vol. i. p. 175 and note, p. 176 and note, p. 180, and elsewhere; Hale, Jurisdic- 
tion of the Lords House, especially chs. xxi., xxii., and xxxiv., and Hargrave's 
valuable preface ; Selden, Judicature in Parliament ; Stubbs, Const. Hist., vol. 
ii. (4th ed.), pp. 261, 636 ; Filmer, Freeholders' Grand Inquest ; Coke, Fourth In- 
stitute, Parliament ; Sir Robert Cotton, A Brief Discourse concerning the Power 
of Peers and Commons of Parliament, in Point of Judicature : Cottoni Posthuma, 
p. 343 et seq. ; Prynne, Plea for the Lords ; Prothero, Documents, Introduc- 
tion, pp. Ixxxiv, Ixxxv; Gardiner, History of England, vol. iv. p. 122 et seq.; 
The Works of Judge Jenkins, pp. 107-13, 145-50; The Case Stated concerning 
the Judicature of the House of Peers in the Point of Appeals (1675). 




The arguments of the seventeenth century, when this 
great question was under debate, throw light upon the 
ideas then existing as to Parliament's judicial powers 
in general. But for the indefmiteness at that time still 
remaining in men's minds concerning the difference be- 
tween law-making and law-declaring, the great contro- 
versy between the houses over judicature could hardly 
have occurred ; but for the growth of a new idea of 
legislative sovereignty, the controversy could not have 
been settled so easily as it was. The complete victory 
of legislative sovereignty in England, and the entire 
disappearance of competition between the houses for 
judicature, were contemporaneous, but it was a long 
time before the one was complete or the other entire. 

It is impossible here to do more than indicate briefly 
the lines of argument adopted by the two houses. They 
are best set forth in their historical and constitutional 
bearing, on the one side, by Prynne in his Plea for the 
Lords, and on the other, by Sir Matthew Hale in The 
Jurisdiction of the Lords House. 

Thus Prynne argues : " It is a rule both of Law and 
justice, that no man can be an informer, prosecutor, 
and judge too of the persons prosecuted, & informed 
against it being contrary to all grounds of justice: there- 
fore he ought to complain and petition to others for 
Justice. But the Commons in all ancient Parliaments, 
and in this present, have been informers and prose- 
cutors (in nature of a Grand Inquest, to which some 
compare them, being summoned from all parts of the 

[191 ] 


kingdom to present publike Grievances and Delin- 
quents to the King and Peers for their redress) and 
thereupon have alwayes petitioned, complained to the 
King and Lords for Justice against all other Delin- 
quents and offenders in Parliament, not judged them 
themselves. . . . Therefore the House of Lords hath the 
proper right of judicatory vested in them, even in Cases 
of Commoners, not the Commons ; who are rather In- 
formers, Prosecutors, and Grand Jury men, to inform, 
impeach, than Judges to hear, censure, determine and 
give judgement." 1 Therefore, he concludes, the judicial 
power "resides wholly and solely in the King and 
House of Lords, not in the House of Commons ; which 
hath no part nor share therein singly considered in it 
self, nor yet joyntly with the King and Lords, but only 
in some special cases and proceedings, as when and 
where the King and Lords voluntarily require their 
concurrence, or where the judgement and proceedings 
in Parliament are by way of Bill or Act of Parliament ; 
or when a judgement passed or confirmed by Bill or 
Act to which the Commons consent was requisite, is 
to be altered or reversed, but in no other cases else, 
that I can find. To make this out beyond contradiction ; 
it must be necessarily granted by all, and cannot be 
gainsaid or disproved by any, that this Supreme power 
of Judicature hath been vested in our Great Councils 
and Parliaments even from their beginning and original 

iPlea for the Lords, pp. 309, 310. The italics of the original are not reproduced, 
as they have no significance. 

[ 192 ] 


institution, it being the antientest, as well as highest 
and honourablest of all other Courts : That it had this 
Soveraign Jurisdiction vested in it and exercised by it, 
both under our British, Saxon, Danish and Norman 
Kings, I have elsewhere evidenced, and shall anon make 
good by undeniable presidents." 1 

These must be taken to be Prynne's real views on 
this question. It is true, they contrast strangely with 
his argument, cited above (page 157), that Parliament 
can legally do business without the bishops, because 
the presence of the whole bench of judges is not 
necessary to the validity of legal decisions. But in 
1643 Prynne had been trying to justify by precedent 
acts that were unprecedented, to cover under a veil of 
legality a contest that had passed into a struggle for 

In agreement with Prynne were such men as Lord 
Bacon, 2 Selden, 3 Filmer, 4 Judge Jenkins, 5 and Nathan- 
iel Bacon. 6 On the other hand, Sir Matthew Hale 
insisted that "the supreme court of the kingdom is 

1 Plea for the Lords, p. 164. The same idea he expressed elsewhere : "The Com- 
mons have no more authority, right, reason, Jurisdiction to limit, or restrain 
this their [i. e. the King and Lords'] ancient right, Judicature, Priviledge (much 
lesse to abrogate) then the Grand or Petty Jury have to limit, regulate the 
Judges or Justices Commissions, Authority on the Bench ; or the Tenants the 
Jurisdiction of their Lords Courts, or every Committee of the Commons House, 
the Excesses of the House it self." Brief Register, pt. i. p. 441. 

2 Advice to Sir George Villiers. 

3 Judicature in Parliament: Works, vol. iii. col. 1637. 

4 Freeholders' Grand Inquest, pp. 2-6. 

5 Works, pp. 107-13, 145-50. 

6 Discourse on Government, pt. ii. p. 14. 

[ 193] 


neither the house of lords alone, nor the house of com- 
mons alone; no, nor both houses without the king. 
The high court of parliament, consisting of the king 
and both houses, is the supreme and only supreme 
court of this kingdom, from which there is no appeal." 1 
With him Coke seems to agree, 2 and Sir Robert Cot- 
ton's statements anticipate Prynne's argument of 1643 : 
" To infer, that because the Lords pronounced the sen- 
tence, the point of Judgment should be only theirs, 
were as absurd, as to conclude that no authority was 
left in any other Commissioner of Oyer and Terminer, 
than in the person of that man solely that speaketh the 
Sentence." 3 

All this is interesting here mainly from the fact that 
the arguments on both sides start from the ancient in- 
quisitorial functions of the Commons. 

The obvious explanation of the whole struggle lies 
in the fact that in the seventeenth century the Com- 
mons and the Lords were contending for a supremacy 
that was purely judicial, but the precedents on which 
both had to rely belonged to a time when the sharp 
distinction was not made between judicial and legisla- 
tive. The number of lawyers in 1695 who would or 
could use the words "judgement" and "law" as prac- 
tically synonymous terms was very limited indeed. 

1 Jurisdiction of the Lords House, p. 205. See also pp. 123-7, 205-8, passim. 
24 Inst., 23. 

3 Cottoni Posthuma, p. 352. See also some statements of Sir Robert Atkyns in 
Sir W. Williams' 's Case, 13 St. Tr., 1413-15. 

[ 194 ] 

A J 


And yet that has to be done if we would understand 
the meaning of the older precedents. 

It is amazing to note the comments that are made 
even in modern books upon the judicial activity of the 
early Commons. Such activity is usually dismissed with 
a statement that apparently there was a "confusion" 
of legislative and judicial power. This seems usually 
to dispose of the matter. Such explanations recur again 
and again, without so much as causing any anxiety or 
any desire to explain why these "confusions" are so fre- 
quent. Thus we still go on trying to decide the old ques- 
tion impossible of solution only because it is not a 
proper question to ask whether the judicial power in 
mediaeval times rested exclusively in the House of 
Commons or in the House of Lords. The only answer 
that can be given is that there was no separate "judi- 
cial" power in existence, if we mean judicial in the 
modern restricted sense. "Jurisdiction" was shared by 
the houses, but it was a jurisdiction that extended to 
the making of general rules as well as to the decision 
of particular cases. When the new, refined, and re- 
stricted meaning of the word had come to be the only 
one understood, it is evident at a glance what confu- 
sion must arise in trying to squeeze the old words in- 
to it ; and also what contention must result if men of 
varying views were unconscious of the wrenching and 
twisting those old words had undergone in the process. 

A very striking example of this unconscious desire 
to mould ancient institutions to fit modern concep- 

[ 195] 


tions occurs even in such a book as Pike's Constitu- 
tional History of the House of Lords 9 one of the most 
accurate and suggestive works on English parliamen- 
tary institutions. The case was one arising out of a 
petition to Parliament in 1414 by the son of the Earl 
of Salisbury, praying that his father's case might be 
reviewed and the errors redressed. The father had been 
put to death without a trial, but the temporal lords, 
with the assent of the King, had afterwards adjudged 
that his lands should be forfeited for treason. Of this 
case Mr. Pike speaks as follows: 

"The petition and the subsequent assignments of 
'error are hardly comprehensible according to any ac- 
knowledged legal principles. It was asked that errors 
alleged to have occurred, not in a Court below, but 
in Parliament itself, should be corrected in Parliament. 
Among the assignments of error were two which had 
relation to the Commons. In one the original 'declara- 
tion and judgement' were regarded as judicial acts; in 
the other they were regarded as legislative acts. In the 
one it was complained that they had been pronounced 
only by the Lords Temporal with the King's assent, 
whereas the judgement ought to have been given by 
the King, as sovereign judge, and by the Lords Spirit- 
ual and Temporal, with the assent of the Commons, or 
on their petition. In the other it was again maintained 
that the declaration and judgement were bad, as having 
been passed without petition or assent from the Com- 
mons, because the Commons ' are of right petitioners 

[ 196] 


or assenters in respect of that which is ordained for law 
in Parliament.' 

"A petition of error alternating between an attempt 
to redress in Parliament an error supposed to have 
been committed judicially in the High Court of Par- 
liament itself, and an attempt to reverse an Act or 
Ordinance of Attainder, is a political curiosity, but 
seems very like a legal absurdity. It shows only the 
lengths to which men might be carried by political 
partisanship. In any case it has no bearing upon the 
authority to redress error arising in Courts below." 1 

I think even the small number of cases and state- 
ments that have been cited above from the great num- 
ber in existence will show conclusively that in medi- 
aeval England such proceedings would undoubtedly 
not have been looked upon either as "political curiosi- 
ties" or "legal absurdities." 

We all know that in France the "Parliament" ac- 
tually remained a "court;" we are aware that Massa- 
chusetts had her legislative "General Court ; " 2 and that 
in England itself, up to modern times, the Parliament 
was habitually called a court; but we have never taken 
this seriously. We have not accepted the fact that in the 

^Constitutional History of the House of Lords, p. 291. I have mentioned this 
book in this way because it is one of the best books on the subject. No one 
whose work lies in English constitutional history can fail to acknowledge 
the help obtained from Mr. Pike's book. My footnotes show how much I have 
relied on it. Mr. Holdsworth's statement concerning such cases is guarded. 
"But some of these cases later lawyers would perhaps deem rather legislative 
than judicial." H. E. L., vol. i. p. 175. 

2 1 owe the reference to the General Court of Massachusetts to the suggestion 
of Professor W. M. Daniels. 

[ 197 ] 


middle ages Parliament really was primarily a court, 
and only incidentally a "legislature." If all the con- 
sequences of this fact were understood, men would 
hardly ask whether in ancient times the "judicature" 
properly rested exclusively with the Lords or with the 
Commons. Possibly the present judicial arrangements 
in England may be as near to the ancient practice as 
changed conditions and modern ideas will permit, but 
the difference between the two is very great notwith- 
standing. It is indeed hard to see how it can be seri- 
ously contended that after all no important changes 
have occurred. 

This is not equivalent to saying that the Commons 
after they became a part of Parliament became at once, 
or in fact ever became, the equals of the Lords in "judi- 
cature." However vague or large the meaning of that 
term may have been, one would be rash indeed to say, 
for example, that the Commons ever shared it with the 
Lords in the measure that they came to share the power, 
or rather the duty, of assenting to grants of taxes to 
the King. A study of the lists of auditor -es, or triers of 
petitions in Parliament, from the reign of Edward III 
on, fails to disclose the names of any commoners ex- 
cept the judges who were summoned to the House of 
Lords as a part of "The King's Council in his Parlia- 
ments," and though these judges seem to have been 
regular members of these " committees," and may have 
voted on equal terms with the peers when present, 
their presence was not necessary to the validity of the 

f 198 1 


committees' action, as was that of the peers. Fleta 
clearly indicates that in his day the auditores were a 
different court from "The King's Court in His Coun- 
cil in His Parliaments," 1 but what the relation between 
the two was under the successors of Edward I it is 
impossible to say, though it is a point that must be 
cleared up before there can be any real understanding 
of the English central judicial system in the middle 
ages. 2 But the difficulty with the "Triers" does not end 
even there. Stubbs says: "By them was determined 
the court to which the particular petitions ought to 
be referred, and, if any required parliamentary hearing, 
the triers reported them to parliament." 3 In the Rolls, 
these triers are often officially delegated oier, trier, 
et terminer* But what does terminer mean? Does it 
mean that such cases as were not allotted to the in- 
ferior courts, but reserved for hearing in Parliament, 
were actually determined by the auditores, unless these 
cases were of exceptional difficulty; or, on the other 
hand, were all the parliamentary cases passed along at 
once by the auditores for trial by the full Parliament? 
In the latter case, were the Commons ever to be in- 
cluded? Unfortunately, it is impossible to give cate- 
gorical answers to these important questions. Practice 

1 Lib. 2, cap. 2. It cannot be said with certainty that the author had in mind 

the triers when he used the term auditores speciales in this passage : it seems to 

me probable. 

2Maitland says the question is 4t still open." Parl. Roll, Introd., pp. xxxiii, 

xxxiv. See Note D at the end of this chapter (p. 251). 

3 Const. Hist., vol. iii. p. 469. 

* E.g. 5 Rich. II. (Rot. Parl, vol. iii. p. 98) ; post, Note D to this chapter (p. 251). 

[ 199 ] 


may have varied, and our information is very limited. 
It seems fairly clear, however, that in all ordinary 
cases, the triers really "determined" the case before 
them. To deliver the petition was in most cases to 
answer it. To transmit it to a lower court implied a 
command to the lower court. This is what connects 
the parliamentary procedure so closely with the ac- 
tivity of the Chancery in issuing original writs. With- 
out such a remission as this, or in the absence of an 
original writ, the inferior courts of the King could not 
entertain any case. "Nothing in the age that we are 
studying," Professor Maitland says, "is more remark- 
able than the narrowly limited powers of the courts of 
law, of the exchequer, of the chancery, more especially 
in all such matters as concern the king." 1 In all or- 
dinary cases, then, the response of the triers was in the 
nature of a preliminary order, for, roughly , speaking, it 
seems proper to say that the petition on which it was 
based need only make out what we should call aprima 
facie case. As most of the petitions were for redress of 
grievances which the petitioner believed could not be 
remedied in the ordinary courts, the frequent response 
by the triers that the existing law was sufficient, or 
a remission of the case to the ordinary courts, was 
in many cases a virtual refusal of the petition. Other 
cases, however, were apparently beyond the compe- 

1 Part. Roll, Introduction, p. Ixix. See also Madox, Exchequer, ch. iii. sec. vi. 
"Non potest quis sine brevi agere." Fleta, lib. ii. cap. 13, sec. 4. See also 
ibid., lib. ii. cap. 34, sec. 1. 

[ 200 ] 


tence of the courts below, and such cases would be 
reserved by the triers. Numerous cases are to be found 
among the records endorsed by them coram rege or 
coram consilio. In most instances where the cases were 
not remitted to the ordinary courts, it is probable 
that the triers themselves, "if . . . on the face of the 
Petition they saw there was reason to entertain the 
prayer, . . . then gave . . . such remedy as the case 
required." 1 

For the more difficult cases probably the rest of the 
Council would be called in, as was done also in diffi- 
cult cases before the judges of the Bench, as we have 
seen, 2 those which had "the most of 'grace' in them" 
being reserved for the King's own ear. 3 

In trying to reconstruct these obscure institutions, 
one consideration must be kept steadily in mind, that 
the triers for England, or for other parts of the King's 
dominions, were merely a part of the Council. It seems 
more correct to say this than to call them a committee 
of the Council, for their action seems to have been final 
in all cases which they did not transmit to the whole 
Council or to the King. We should be glad to know 
by what rules they were bound in determining or trans- 
mitting a case, whether their discretion was large or 
small. If it was large, if they had powers nearly plenary, 
then they could hardly be a mere committee. If, on the 

1 Palgrave, Parl. Papers, Session of 1833, vol. xii. p. 19. 

2 Ante, p. 18 et seq. 

3 Maitland, Parl. Roll, Introd., p. Ixx. 

[ 201 ] 


other hand, it was small, they might be more properly 
styled a committee of the Council. It would help us 
in deciding this question if we knew certainly the way 
they were appointed ; but we do not. However far the 
discretion of the triers extended, when they called in 
their fellow councillors in difficult cases, the important 
thing to remember is that they were not invoking an 
external tribunal, a higher court of appeal. The pro- 
cedure must have been analogous to the relations of 
the Councillors sitting as judges cor am rege with the 
rest of the Council, where the distinction, as we have 
seen, between the larger and the smaller body was one 
more of convenience than of legal theory. 

With reference to the relations of the triers to the 
courts below, the same caution is in point. The body of 
triers in all cases included the judges of those courts. 
The triers were thus no body entirely "external" to 
the ordinary courts, and the relations between them in 
cases of petitions were doubtless more free and informal, 
and their cooperation much closer and more sympa- 
thetic, than could have existed otherwise. The English 
judicial system has retained this general principle of 
cooperation in much greater measure than that of the 
United States, as appears in the personnel of their 
courts of appeal. 

When the Commons' House becomes an indispensa- 
ble part of Parliament, the question grows more intri- 
cate, and it is practically impossible to say how far the 
Commons participated in the settlement of petitions. 

[ 202 ] 


After Henry IV's time we do find petitions addressed 
to the Commons, 1 but how far their powers extended 
in determining cases, it is hard to say. Most of the peti- 
tions received by them were undoubtedly transmitted 
at once to the Lords, and the well-known renuncia- 
tion by the Commons of any share in judicial power in 
Henry IV's reign is often cited. 2 The renunciation in 
question came, however, at a time when the Commons 
looked upon parliamentary functions of all kinds as 
a duty rather than a privilege, and afterward, when 
opinions on such things had undergone a change, they 
may not have felt bound by this precedent in the way 
that Brady and Prynne try to make it appear. 3 

These questions are certainly obscure enough, and 
in view of these obscurities it would be unwarrantable 
to make definite assertions with assurance concerning 
the participation of the Commons in "judicature," or 
concerning the relations between the triers and the 
Council. It is not contended here that no line was drawn 
between business judicial and business non-judicial in 

1 " I can only trace one dubious and singular case before that period. " Palgrave, 
in Report on Public Petitions: Part. Papers, Session of 1833, vol. xii. p. 20. 
*Rot. Parl, vol. iii. p. 427 B (1399). See, for example, The Case Stated concern- 
ing the Judicature of the House of Peers in the Point of Appeals (1675), p. 29 
et seq. 

3 Lest anyone should think that this desire on the part of the Commons to 
escape their duties was confined to matters judicial alone, reference may be 
made to the declaration of the Commons in the twenty-first year of Edward III, 
that they are not able to counsel the King in matters of war, and praying that 
they may therefore be excused. They also ask that these matters be decided 
on the advice of the Council, and promise that they will confirm any determina- 
tion thus made. Rot. ParL, vol. ii. p. 165 (1347). 

[ 203 ] 


Edward I's Parliament and afterward. Thus much, how- 
ever, is contended, namely, that in the middle ages the 
line between judicial and non-judicial was far from 
distinct ; that in the English Parliament of that age 
all business other than granting money to the King, 
and possibly also advising him on matters of national 
policy, was of a kind not susceptible of exact division 
into "judicial," or "legislative," or "administrative." 
Such lines of division eventually appeared, but to the 
end of the middle ages they were so vague that it is 
dangerous and misleading to accept them as the same 
lines that are drawn to-day with such exactness be- 
tween the different activities of government. 

The existence of some such lines of division may be 
indicated in the fact that the triers above mentioned 
consisted entirely of prelates, nobles, and judges ; but 
even here it is to be noted that though "at least nine- 
tenths of the petitions have reference to the adminis- 
tration of law," l as we might expect in the days before 
Parliament was a real lawmaking body, such petitions 
are in no way to be distinguished from others of a 
"non-judicial "character. They were, as Elsynge says, 
"for the most part petitions of private persons for re- 

iGneist, Const. Hist., vol. ii. pp. 12, 13. "I should state that ninety-nine out 
of every hundred [petitions] presented by individuals related to individual 
grievances; that there are a few rare cases in which a complaint is made 
against a general law, but then it was a case where the general law was so 
mixed up with the particular case of the petitioner, that the Petition must not 
be considered as a Petition against the abstract principle of the law, but only 
against the particular application of it in his own case. Communities, such as 
the inhabitants of a forest or a shire, petitioned more frequently against gen- 
eral laws." Palgrave, in Parl. Papers: Session of 1833, vol. xii. pp. 20, 21. 

[ 204 ] 


lief of any wrong done them, or for the king's grace." 1 
If the triers considered the relief or favour a proper one, 
the petitioner might be sent to another court of law, 
or sometimes to Parliament, to obtain it; or he might 
be directed to the Council or the Chancellor. 

The "relief" was as varied as were the petitions 
themselves. These were mainly "judicial," but not all. 
Sometimes, Maitland says, the petition is for some- 
thing the King is bound to give in right; sometimes 
for a mere favour, e. g. the petitioner asks to be 
allowed to pay in instalments money he owes the 
King. 2 "Generally the boon that is asked for is one 
which the king without transcending his legal powers 
might either grant or deny." 3 Nothing could better 
illustrate the essentially judicial character of Parlia- 
ment, or the lack of definition of its powers, than this 
whole procedure by petition. For it appears that the 
initiation of the "acts" of Parliament is by petitions, 
which ordinarily "do not ask for legislation," and the 
resulting responses therefore "are not 'private acts of 
parliament'" of the modern kind, 4 they are awards. 
The thing asked for in the petition may be the redress 
of a general grievance. Such petitions the triers would 
naturally send to the High Court of Parliament rather 
than to any inferior court, and Parliament's favourable 
action might result in the establishment of a general 

1 The Manner of Holding Parliaments in England, p. 273. 

2 Parliament Roll, Introd., p. Ixviii. 

3 Ibid., pp. Ixvii, Ixviii. 

4 Ibid. 



rule "legislation," we should say. But the triers them- 
selves had no separate classification for cases of this 
kind. They also sent plenty of cases to the Court of 
Parliament, where the relief prayed was purely "judi- 
cial;" cases that in no way involved the necessity of 
laying down any general rule, that required no action 
of any kind not within the power of the ordinary courts. 
There is no assignable line of division between these 
two classes of cases. Both kinds are found in numbers 
on the rolls, promiscuously and indiscriminately. Most 
of the petitions that initiate the action on these cases 
come from individuals, and they ask for all manner of 
things, as restitution to lands and charters taken away 
by violence, reversal of outlawry, payment of a debt 
due by the King, a delivery of deeds, restoration to an 
office, etc. Often they are presented by a county or a 
city, as, for example, a request from the Cinque Ports 
for an explanation of their charter, a strikingly "ju- 
dicial" act. Or the petitioners may be a guild, as in the 
case of a petition from the London dyers, against false 
fulling of cloth. 1 Upon these may be based "acts" of 
Parliament which will satisfy the respective petitioners. 
These acts may be "judgements," or they may be "laws." 
Men of the day would probably have applied both 
words to them indiscriminately. When asked whether 
such petitions as these, when presented to the House 
of Lords, were not presented to them in their judicial 
rather than their legislative capacity, Sir Francis Pal- 

1 Elsynge, op. cit., pp. 273-5. 

[ 206 ] 


grave replied: "The two capacities were so closely con- 
joined at that period, that it is almost a distinction 
without a difference. Every order which the Parlia- 
ment made upon a Petition was a special law for that 
time and turn. They went on the broad and general 
principle, * Parliament is to redress every grievance; we 
will redress it by a general law if we think it expedi- 
ent so to do; we will cut the knot by a particular law, 
or an order applicable to your own case, if that be not 
sufficient.'" 1 

But in addition to these petitions of individuals, 
classes, or corporations, we have seen other petitions 
originating in the Commons themselves. Here, it might 
naturally be assumed, we must have matters of a dif- 
ferent character. These petitions must be the ground 
of parliamentary action that we may call legislation. 
On examining the early rolls, however, we find no dis- 
tinction made between these petitions from the Com- 
mons and the ones presented by individuals, and no 
difference between remedies given upon these different 
kinds of petitions. We find, as Maitland says, peti- 
tions of communities and even of the Commons, but 
they are mixed with individual ones, and seem not to 
have been treated differently, the distinction came 
later. 2 Private petitions were of a decidedly "judicial" 
character. A petitioner might have to appear to make 

1 Report on Public Petitions: Parl. Papers, Session of 1833, vol. xii. pp. 20, 21. 

2 Parliament Roll, Introd., pp. Ixxiv, Ixxv. He is speaking of the Parliament of 

[ 207 ] 


good his petition if he did not wish to have it rejected. 1 
This was no less true when the petition came from 
a community instead of an individual. "There is one 
class of Petitions," says Sir Francis Palgrave, "that are 
puzzling; those are Petitions presented by the commu- 
nity of a shire, and sometimes brought before a Par- 
liament, and apparently not by the representative mem- 
bers. There is one case of a county appointing an at- 
torney to appear for them in Parliament for which they 
had regular Representatives!' 92 

This "judicial" character of the parliamentary peti- 
tions is further illustrated by the manner in which they 
were received. Among the first acts of a Parliament 
was the appointment of " receivers of petitions." Elsynge 
points out that as the triers were always prelates, no- 
bles, and judges, who had been summoned to Parlia- 
ment, so the receivers were never men who had been 
summoned to Parliament. They were, in fact, at first 
clerks of the Chancery who were required to sit in 

l Parl Roll, No. 267, and Introduction, p. Ixxiii. 

2 Report on Public Petitions: Parl Papers, Session of 1833, vol. xii. p. 21. The 
instance referred to is in Parl. Writs, vol. i.p. 186, No. 11. The italics are mine. 
The communal organization of mediaeval England and the communal feeling 
accompanying must be premised if we are even faintly to understand the early 
representation in Parliament or the affairs of the shires that lie beyond and 
behind it. Without such a feeling the presenting jury could never have arisen 
and the iters of justices would have been utterly futile. The earlier examples 
of communal action and responsibility in Saxon or Norman times have often 
been commented on. Mr. Holdsworth gives some interesting examples from a 
later period. (H. E. L., vol. ii. pp. 314, 315, and references cited.) The change 
from feudalism to nationalism was accompanied by a development from com- 
munities of the realm which might corporately appeal to the King for redress 
of grievances, to the solidarity of "The Commons in Parliament Assembled." 

[ 208 ] 


some public and easily accessible place outside Parlia- 
ment, to receive the complaints and requests of the 
petitioners. 1 It is unnecessary to point out at any 
greater length the "judicial" character of these pro- 
ceedings from beginning to end. It is enough to note 
that they were the ordinary stages through which nearly 
all "legislation" passed, up to the time about the end 
of the reign of Henry VI when the Commons were 
able to impose upon the Parliament a "bill" instead of 
a petition. This, when it came, was undoubtedly a long 
step toward real "legislation;" but it is not difficult to 
show that the characteristics of this new procedure, as 
well as its name, are at first only slightly less "judicial" 
than the petitions out of which it grew. 2 Piers the 
Plowman could speak of "putting up a bill" in Par- 
liament to institute an action for rape or seduction, 3 

1 Elsynge, op. cit., p. 271. But see Palgrave in Parl. Papers, Session of 1833, 
vol. xii. p. 21. See also Note D at the end of this chapter (p. 251). 

2 One of the best modern accounts of the procedure by petition is by Stubbs, 
Const. Hist., vol. ii. (4th ed.), pp. 275-7, 604-10; vol. iii. (5th ed.), pp. 469, 478, 
500, 501. Most of the above statements have been drawn from it and from the 
excellent account given by Elsynge, p. 262 et seq. See also May, Parliamen- 
tary Practice (p. 606 et seq. in 9th ed.); Hale, Jurisdiction of the Lords J louse, 
p. 25 et seq.; Holdsworth, H. E. L., vol. i. pp. 173-5; Clifford, History of 
Private Bill Legislation, vol. i. p. 300 et seq. ; Maitland, Parliament Roll of 
1305, Rolls Series, Introduction, p. Ivi et seq. ; and the testimony of Sir F. 
Palgrave before the Select Committee on Public Petitions, Parliamentary Pa- 
pers, Session of 1833, vol. xii. (MS. paging 153 et seq.) See also post, Note D at 
the end of this chapter (p. 251). 

It may not be amiss here to call attention to the fact that it is to these 
petitions, so "judicial" in character, that we must trace back the "right of 
petition" which played so important a part in the Revolution of 1688, and 
passed in consequence into the Constitution of the United States, where it 
has had an important influence, especially upon legislative history. 

3 Ante, p. 117. 

[ 209 ] 


and the ordinances of 5 Edward II contain a require- 
ment that Parliament shall be held at least once a year 
to decide cases "where the judges cannot agree." "And 
in like manner the Bills shall be finished which are de- 
livered in Parliament, in such sort as Law and Reason 
demand." 1 

It is interesting to note that the receivers of the pe- 
titions who sent the petitioner to the proper court for 
his redress were probably the same clerks of chancery 
who also issued the original writs under which cases 
were instituted in the ordinary courts of the King, 
"clerici honesti et circumspecti, sworn to the King, 
learned in the laws and customs of England, whose 
duty it is to hear and examine petitions and com- 
plaints of complainants and to exhibit to these by the 
kings writ the remedy suited to the character of the 
injuries set forth." 2 It is here that we must look for 

1 Statutes of the Realm, vol. i. p. 165, art. xxix. 

*Fleta, lib. ii. ch. 13. The following passage occurs in A Treatise of the 
Maisters of the Ckauncerie, written between 1596 and 1603: "Another part of 
ther service is in attendinge in the higher howse of parliament, whither they 
comme withowt writt as beinge a part of the same court. For both the parlia- 
ment is somoned by writts owt of the chauncerie ; the acts made are inrolled 
and kept in chauncerie; all commandements of that court are expedited, 
either by writs out of the chauncery, or by the chauncellors serjants at armes ; 
the lord chauncellon is ever speaker of that howse, withowt further choice or 
appointment as is used about the speaker of the lower howse, and ought with- 
owt any writt to attend there, (although the contrayrie have bene of late used 
by some of the pettie bag not well instructed of the auntient manner; for what 
neede hath the kinge to sende notice under his scale of the attendance to 
those whoe have the keping of the sayed scale ?) and the clark of the parlia- 
ment hath his fee owt of the hanaper as an officer of the chauncery. The rea- 
son of ther attendance there I take to bee, not onely for the receyving of 
petitions ; but as the judges are there, that, by observinge the minds and rea- 
sons of the lords that make the lawes, they maie the more agreeable to ther 

[ 210] 


one of the most important links between the "judicial" 
activity of Parliament and that of the Chancellor and 
the judges of the King's other courts. The cases that 
would be sent for remedy to the Parliament would 
probably be those of greater importance or dignity, 
but there is nothing in the rolls of Parliament to indi- 
cate that these were less "judicial" in character than 
the ones sent to the Chancellor or the inferior courts. 
Furthermore, a comparison of the proceedings in both 
the Chancery and the Parliament shows that the initial 
procedure was practically the same in both. This was 
by a petition or bill. The words "petition" and "bill" 
are used interchangeably in the Chancery down to the 
Tudor times, 1 and the same is true in Parliament 2 as 
well as in the ordinary speech of the people. 3 

meaninge expound and interpreate the sayed lawes ; soe the masters of the 
chauncery are there also, that they may likewise frame the writts that are to 
bee made upon those lawes in like correspondencie ; and as the judges further- 
more maye informe the lords, howe former lawes of this realme presentlie 
stand touchinge any matter there debated ; soe may they bee alsoe informed 
by the masters of the chauncery (of which the greattest number have alwaies 
bene chosen men skillfull in the civill and canon lawes) in lawes that they shall 
make touchinge forraine matters, whowe the same shall accord with equitie, 
jus gentium, and the lawes of other nations. And therefore the auntient use 
hath bene, that not onelie the four appointed for resevours of petitions, but any 
of the masters of the chauncery, may take ther place amonge the rest in the 
higher howse, as I learn by the auntient masters of the court nowe livinge." 
Hargraves Tracts, pp. 308, 309. 

See also Observations concerning the Office of the Lord Chancellor, attributed 
to Lord Ellesmere, pp. 39-41. 

1 Kerly, Historical Sketch of the Equitable Jurisdiction of the Court of Chancery, 
p. 47, note 2. 

2 Clifford, History of Private Bill Legislation, vol. i. p. 300. 

3 "O verrey light of eyen that ben blinde, 
O verrey lust of labour and distresse, 

[211 ] 


We find also, even as late as Henry VII, that par- 
liamentary bills of a private character still end some- 
times with a prayer, usually concluding with the fami- 
liar formula, "And your petitioner will ever pray," etc. 
The prayer has retained its place to the present time 
in bills in equity, and in Parliament to-day no peti- 
tion will be treated as a true petition if the prayer is 
omitted. 1 

The growing power of the Commons, and the sepa- 
ration of the Council and the Chancery from Parlia- 
ment, led in time to the growth of a jealousy between 
the Parliament and these two bodies. 

The Council had become a body distinct from Par- 
liament by the time of Richard II, or probably some- 
what before ; the Chancery also became definitely sepa- 
rate from the Council. Already the common law courts 
had a separate existence, while Parliament was an ad- 

O tresorere of bountee to mankinde, 

Thee whom God chees to moder for humblesse ! 

From his ancille he made thee maistresse 

Of hevene and erthe, our bille up for to bede." 

Chaucer, An A. B. C. 

" A compleynt hadde I, writen, in myn hond, 
For to have put to Pite as a bille." 

The Compleynte unto Pite. 

1 Clifford, History of Private Bill Legislation, vol. i. p. 300 ; May, Parl Practice, 
p. 609. A comparison of the petitions given in volumes one and two of the Calen- 
dars of the Proceedings in Chancery issued by the Record Commission, and also 
those in the Selden Society volumes on the Star Chamber and the Court of 
Chancery, with the ones in the Rolls of Parliament, discloses no essential dif- 
ference between those addressed to Parliament and others. The most common 
ending of the prayer in the earliest extant petitions to the Chancellor was, " for 
God and in work of charity." Mr. Baildon says that the expression "Your 
petitioner will ever pray " appears about the middle of the fifteenth century. 
Select Pleas in Chancery (Selden Society), Introd., p. xxv. 



ditional competing tribunal ; and besides, from about 
the time of Henry IV, we begin to find a considerable 
number of petitions of the usual kind directed to the 
House of Commons alone. 1 It is little wonder that we 
find under such circumstances somewhat of a scramble 
for business and for the fees coincident with it. This 
results in several contests, prohibitions, and evasions 
of the prohibitions by fictions such as "quominus" or 
"Bill of Middlesex." 2 There is evidence that the High 
Court of Parliament was not removed entirely above 
these jealousies. 

It has been said that Parliament's jealousy of the 
Chancery, which appears in so many acts, was due to 
the fact that the Chancery was really exercising legis- 
lative powers. This is given as the reason for the cele- 
brated provision of the Statute of Westminster II, 
providing that new cases shall in future be brought 
into Parliament and not tried under writs issuing out 
of Chancery except in consimili casu with an existing 
writ. 3 It may be true that this was due partly to the 
fact that these new writs were really "legislation," but 
a much more effective motive for the provision was 
the general jealousy between the conflicting "jurisdic- 
tions." From the reign of Richard II we find continual 
complaints in Parliament of the encroachments of the 
Chancellor, and "the fact that these complaints all 

1 May, Parl. Practice, pp. 607, 608. 
2 Kerly, History of Chancery, p. 12. 
3 Holdsworth, H. E. L., vol. i. p. 196. 



come from the Commons suggests that they may have 
been prompted rather by the professional jealousy of 
the Common Law lawyers, who, though often forbid- 
den to sit, were found in the Lower House in large 
numbers, than by any real abuse of the Chancellor's 
powers." 1 It was natural that these lawyers should 
look askance at the power of the clerks of Chancery, 
now that it extended to the granting of new equitable 
remedies, as well as to the allotment of old cases in 
the granting of original writs or in their capacity as 
receivers of petitions. 

The acts of Parliament against the Chancery, the 
multiplication of petitions to the House of Commons, 
and the great increase in the number of lawyers in that 
house, all tend to explain or to illustrate this jealousy. 
The evidence is very full for the increase in the num- 
ber of lawyers, for their obnoxious activity, and for 
the attempts to exclude them. As early as 1330 objec- 
tions were made to their presence in the Commons. 2 In 
46 Edward III they were excluded by statute, along 
with the sheriffs, because "men of the law who follow 
divers businesses in the King's courts on behalf of pri- 
vate persons ... do procure and cause to be brought 
into Parliament many petitions in the name of the 
Commons which in no wise relate to them." 3 This pro- 

1 Kerly, History of Equity, p. 37 et seq., where are to be found references to the 
principal statutes passed to check the Chancellor's power. See also Am. Hist. 
Rev., vol. xii. p. 1 et seq., for an account of these acts. 

2 Porritt, Unreformed House of Commons, vol. i. pp. 512, 513. 

3 Ibid. ; Statutes of the Realm, vol. i. p. 394. 

[214 ] 


vision greatly excited the wrath of Coke, who denied 
that this was a real statute. 1 Prynne, however, believed 
that it was, and considered it " most fit to be put in 
actual execution against such practising Lawyers, who 
make sute to be elected Parliament Members, only, or 
principally to get Clyents, Practice, and Pre-audience 
of others at the Barr, and to promote their Clients or 
Friends causes in the House, rather than diligently to 
discharge their publike Duties faithfully in Parliament, 
according to their trusts; as too many have done of 
later ages, as well as when this Ordinance was first en- 
acted." 2 There is nothing new under the sun! Barring- 
ton says the opposition to the lawyers in Parliament 
was due to their being at this time "auditors to, and 
dependents upon men of property, receiving an annual 
stipend pro consilio impenso $ impendendo, and were 
treated as retainers"* Professor Hearn comments on 
this statute with his usual insight: "Parliament was 
not then what it had become in the time of Lord Coke. 
A great part of its business was judicial, or at least 
semi-judicial. It was in contemplation of this business 
that maintainers were excluded." 4 

This jealousy of the common lawyers in Parliament 
was not directed at the Chancery alone; the juris- 
diction of the Council was equally dangerous to their 


2 Abridgment of Records, Preface. See also his Observations on Coke's Fourth 
Institute, p. 13. 

3 Observations on the Statutes, 2d ed., p. 302. 
* Government of England, 1st ed., p. 489. 

[ 215 ] 


monopoly, and many acts of Parliament were levelled 
at it, which, as Professor Dicey says, "bear witness to 
the influence of the Common Law lawyers; since they 
are manifestly intended to do away with all legal pro- 
ceedings except those in the Common Law Courts." 1 
To make this statement perfectly accurate, we must 
remember that Parliament must be included among 
these "Common Law Courts." 


THE final outcome of the parliamentary business ini- 
tiated by petition was the "act" or "award" (agard) of 
Parliament. Petyt defines an award of Parliament as "A 
final Resolution of particular original Cases, brought 
and given in full Parliament, upon publick Conference 
and solemn Debate ; and not upon a Writ of Error 
before the Lords." 2 This definition may be accepted 
if it is borne in mind that in early times a "full" Par- 
liament does not necessarily include the Commons, 
a qualification that Petyt himself would have been the 
last to allow. 3 As the facts hitherto presented might 
lead us to expect, these awards, though generally "judi- 
cial," as we should say, and marked off from other activi- 

1 Privy Council, pp. 21, 22, where the principal statutes are mentioned ; see also 
ibid., pp. 69, 70, 72, 73; Maitland, English Constitutional History, pp. 216-18; 
Palgrave, King's Council. For the general subject of lawyers in Parliament and 
its bearing on Parliament's character as a court, see in addition to the refer- 
ences noted above, Whitelocke, Notes upon the King's Writt, vol. ii. chs. 99, 

2 Jus Parliamentarium, p. 32. 

3 See his Antient Right of the Commons of England Asserted. 



ties of Parliament, were distinguished so imperfectly 
from other "acts" that the line is difficult to locate. An 
instance is afforded by a case in 6 Edward III. A writ 
of quo warranto was brought in the Court of Common 
Pleas against a franchise held by the Archbishop of 
York. For the Archbishop it was argued that the Com- 
mon Pleas had no jurisdiction, because of the statute 
of Edward I directing that pleas of quo warranto 
should be held before justices in eyre, in the county. 
It chanced, however, that this particular franchise had 
been in litigation in Parliament a few years before this, 
but after the enactment of the Statute of Quo War- 
ranto; and that the award there, which had been in 
the Archbishop's favour, had nevertheless contained a 
proviso allowing the King in future to have his writ 
against the franchise, when and where he wished. There- 
fore, when it was now contended that the proviso in 
the award was void against the statute, Schardelow re- 
plied : " When you sued by Petition to be restored to 
your possession, it was delivered to you in this Man- 
ner, i.e. that it was awarded in Parliament that the 
King might take his writ against you, when and where 
he pleased ; and an award in Parliament is the highest 
Law that is : And since you make no Answer, we pray 
the Franchise may be seized into the King's Hands." 
And Herle, the Chief Justice, said: "You were restored 
to your Possession by an award of Parliament, and by 
the same Award it was adjudged, That you ought to 
answer the King when and where he pleased, and you 



would have the Benefit of this Award yourselves, and 
would oust the King of the Benefit of it, which cannot 
be done." 1 "From this case," says Petyt, "we may ob- 
serve, that the Judges esteemed an Award in Parlia- 
ment equal to an Act of Parliament, as to the inferior 
Courts, and able to exempt a particular Case awarded 
out of a general Act of Parliament." 2 

The "award" on which this case was based was an 
ordinary judgement, 3 but it is singularly like the mod- 

1 Y. B., Hilary Term, 6 Edw. III., plea 15; Petyt, Jus. Parl, p. 41. 

2 Op. cit., p. 42. 

3 Petyt, op. cit., p. 35. On the award generally, see also Gneist, Const. Hist., 
vol. i. p. 418, note; Reeves, H. E. L. (Finlason's ed.), vol. ii. p. 654. This ab- 
sence of distinction between acts and awards could be illustrated at considera- 
ble length from legal writings of the sixteenth and seventeenth centuries. I 
shall give three extracts, two of which are from writers opposed to the pre- 
tensions of the common lawyers. In the book entitled The Privileges and Pre- 
rogatives of the High Court of Chancery, sometimes, though perhaps wrongly, 
attributed to Lord Ellesmere, the following statements occur in criticism of 
the statute of 4 Henry IV., cap. 23, forbidding appeals from the King's courts : 
"One Court ought not to take upon them to ludge and deside their own lu- 
risdiction, and the lurisdiction of another of the King's Courts : But then 
Bracton's rule is to be holden : (that is) that the King's interpretation is to be 
expected, Who is to declare and expound all doubtfull or obscure words in 
Chartis Regiis fy factis regum : For all Statutes are/acta regis, made at the 
request and by the consent of the Lords Spiritual! and Temporall and the 

In the first edition in English of Finch's Law, published in 1627, at p. 233, 
we read: "The Parliament is a Court of the King, Nobility and Commons 
assembled, Hauing an absolute power in all causes. As to make Lawes, to ad- 
iudge matters in Law, to trie causes of life and death ; to reuerse errors in the 
Kings Bench, especially where any common mischiefe is, that by the ordinarie 
course of Law there is no meanes to remedie : this is the proper Court for it. 
And all their Decrees are as Judgements. And if the Parliament it selfe doe 
erre (as it may) it can no where be reuersed but in Parliament." 

Again in 1677, in a little anonymous book entitled A Discourse of the Rise $ 
Power of Parliaments, it is said : "There was Law before Lawyers; there was 
a time when the Common Customs of the land were sufficient to secure Meum 
and Tuum; What has made it since so difficult? Nothing but the Comments 

[ 218 ] 


ern private bill, whose early development in Parliament 
Sir Erskine May describes as follows : " In the reign of 
Henry IV, petitions began to be addressed in considera- 
able numbers, to the House of Commons. The courts 
of equity had, in the meantime, relieved Parliament of 
much of its remedial jurisdiction ; and the petitions were 
now more in the nature of petitions for private bills, 
than for equitable remedies for private wrongs. Of this 
character were many of the earliest petitions; and the 
orders of Parliament upon them can only be regarded 
as special statutes, of private or local application. As 
the limits of judicature and legislation became defined, 
the petitions applied more distinctly for legislative 
remedies, and were preferred to Parliament through the 
Commons: but the functions of Parliament, in passing 
private bills, have always retained the mixed judicial 
and legislative character of ancient times." 1 

Through all their history, private bills have furnished 
one of the best examples of the fusion of legislation 
and adjudication, and through all that history down to 

of Lawyers, confounding the Text, and writhing the Laws like a Nose of Wax, 
to what Figure best serves their purpose. Thus the great Cook, bribed perhaps 
by Interest, or Ambition, pronounced that in the Interpretation of Laws, the 
Judges are to be believed before the Parliament: But others, and with better Rea- 
son, affirm, That 't is one of the great Ends of the Parliaments Assembling, 
To determine such causes, as ordinary Courts of Justice could not decide." 
The views of the last writer are the same as those expressed by William Petyt 
in his Jus Parliamentarium. Whatever other differences exist among these 
writers, it is clear that they have one thing in common, the absence of a clear 
distinction between an "act" of Parliament and a judgement of Parliament. 
1 Parliamentary Practice, pp. 607, 608 ; see also Clifford, History of Private Bill 
Legislation, vol. i. p. 270 ; Report on Public Petitions, H. C. Papers, 1833, vol. xii. 

[ 219 ] 


the present, the line between these and public bills has 
been " very narrow, and has fluctuated from time to 
time." 1 

At first, of course, "special laws for the benefit of 
private parties, and judicial decrees for the redress of 
private wrongs, were not distinguished in principle or 
in form," 2 i. e. there was no distinction between the 
"award" and the private bill. In like manner, "between 
public and private Acts no clear distinction was drawn." 3 
In fact, this distinction has never become clear, and 
even to-day "It seems . . . impossible to lay down a 
hard and fast rule as to the subjects which should and 
which should not be dealt with by private Bills." 4 

An interesting instance of the uncertainty as to the 
character of a statute is the well-known Statute of 
Waste of the twentieth year of Edward I. The first 
part is the record of an ordinary judgement or award. 
The second part has all the appearance of a regular 
"public" act. 5 There is another similar instance much 
later in the famous case of Richard Strode, a burgess 
of Parliament who had been convicted in the Stannary 
Courts of agreeing with the rest of the Commons upon 
a bill against certain abuses of the tinners. He was 
imprisoned and petitioned Parliament for a remedy, 

1 Ilbert, Legislative Methods and Forms, p. 30. 

2 May, op. cit., p. 754. 
'Clifford, op. cit. t vol. i. p. 343. 

4 Ilbert, op. tit., p. 32. 

5 20 Edw. I., stat. 2. The question whether it is a statute or not is discussed in 
Y, B. 7 Edw. II. , p. 231. 

[ 220 ] 


whereupon the following "act "was passed in the fourth 
year of Henry VIII: "All Suits, Condemnations, Exe- 
cutions, Charges, Impositions, put or hereafter to be put 
upon Richard Strode, and every of his Complices, that 
be of this Parliament, or any other hereafter, for any 
Bill, speaking, or reasoning of any Thing concerning 
the Parliament to be communed and treated of, shall 
be void." 1 As might be expected, opinions varied as to 
whether this was a private or a public act. In 1629 the 
judges resolved that the act " was a particular act of par- 
liament and extended only to Richard Strode, and to 
those persons that had joined with him to prefer a Bill 
to the house of commons concerning Tinners," though 
they agreed that all other Parliament men " ought to 
have" immunity from prosecution for things said "in 
parliament by a parliamentary course." 2 In the same 
year Sir John Eliot's counsel asserted that Strode's 
case "hath always been conceived to be a general act, 
because the prayers, time, words, and persons are gen- 
eral, and the answer to it is general," also because it was 
on the statute roll. 3 Sir Robert Heath, for the King, 
denied that it was anything but "a particular act, al- 
though it be in print ; for Rastal entitles it by the name 
of Strode: so the title, body, and proviso of this act are 
particular." 4 Sir Robert Atkyns, in his argument in the 

1 4 Henry VIII., ch. viii. An account of this case is found in Prynne's Plea for 
the Lords, pp. 401, 402. 
2 35. 7V., 237. 

., 305. 

[221 ] 


case of Bernardiston v. Soame in 1674, declares that 
"tho' all in that act that concerns one Richard Strode 
is a private act, yet there is one clause which is a general 
act, and is declaratory of the ancient law and custom 
of parliament." 1 In his argument in Sir William Wil- 
liams's Case he states the same view at greater length, 
and dismisses the resolution of the judges in 1629 as an 
extra-judicial opinion. 2 

This case has been given somewhat at length be- 
cause it shows the importance of the distinction be- 
tween private and public bills. So important a thing as 
freedom of speech in Parliament was involved in it. It 
is, however, unnecessary to give further examples from 
the past of the indefiniteness of the line between pub- 
lic and private bills, for even to-day the indefiniteness 
is almost as great as it ever was. 3 

The procedure on private bills likewise still retains 
many features that are judicial in character. For ex- 
ample, the private persons interested in the bill appear 
as suitors for or against it. If the parties interested 
do not take the necessary steps in advancing it, the 
bill is lost. Such parties must also pay the fees inciden- 
tal to the procedure, as in other judicial cases, and the 
promoters of private bills in Parliament have even 
been restrained by injunction from proceeding with a 
bill, so far have they been identified with ordinary liti- 

!6 St. Tr., 1083. 

2 13 St. Tr., 1429, 1430. 

3 Many recent illustrations are given by Ilbert, Legislative Methods and Forms, 
pp. 30-2. 

[ 222 ] 


gants. 1 The bill is still formally styled a " humble peti- 
tion," and ends with a prayer containing the formal 
words, "and your Petitioner will ever pray, &c.," and 
counsel are regularly heard by Parliament as in any 
other court, while every private bill is solicited by an 
agent whose duties are carefully prescribed. 2 But, as 
May says, while these private bills are "examined and 
contested before committees and officers of the house, 
like private suits, and are subject to notices, forms, and 
intervals, unusual in other bills ; yet in every separate 
stage, when they come before either house, they are 
treated precisely as if they were public bills. They are 
read as many times, and similar questions are put, ex- 
cept when any proceeding is specially directed by the 
Standing Orders; and the same rules of debate and pro- 
cedure are maintained throughout." 3 In short, private 
bills are still what they were in the middle ages, "a 
proceeding half legislative and half judicial." 4 

1 May, Parl. Practice, pp. 756, 757, citing recent cases. 
2 Ibid., p. 780. 
*Ibid., p. 758. 

4 Stubbs, Const. Hist., vol. iii. (5th ed.), p. 478. On the general subject, in addi- 
tion to the above references, see Maitland, Constitutional History of England, 
pp. 386, 387. On this subject Palgrave says : "Our Private Acts of Parliament 
have arisen out of the old course; all the Private Acts are only the ancient 
petitions for redress in a new shape. When a tenant for life petitions for a 
power of leasing, for instance, the Act is a special law made in form, but vir- 
tually a decree for the occasion, to redress a particular grievance arising per- 
haps from the acts of the parties. Still take it as you choose, it has the essence 
of a law. 

"<2. Is that the ' Privilegium ' ? 

"Yes, exactly so; and in consequence of the criminal jurisdiction having 
been entirely cut down by law, the practice of our modern Parliament in pass- 
ing Private Bills, and granting powers of the before-mentioned description, 

[ 223 ] 


One important variety of these private bills is the 
Bill of Attainder. It is unnecessary to do more than 
mention these conspicuous examples of the union of 
legislative and judicial functions in Parliament. A few 
of the debates upon them may, however, profitably be 
noticed for the indications they give of the gradual 
growth of the idea of legislative sovereignty. From the 
beginning to the end of the history of these bills we 
find uncertainty in men's minds as to their character. 
This uncertainty took different forms at different times. 
Are they trials per legem terrae or per legem parlia- 
menti? After the emergence of the idea of legislative 
sovereignty it is asked, Is the Parliament in a Bill of 
Attainder proceeding legislatively or judicially? Even 
after legislative sovereignty had become a generally 
accepted fact, the essential injustice of these acts caused 
men to revolt. They admitted, but admitted with a 
sigh, that " when supremacy and impunity go together, 
there is no remedy," 1 and Atterbury remarked in his 
speech defending himself in 1723, "As to the justice of 
the legislature, in some respects it hath a greater power 

are exactly the last remnants of the old Petitions for redress, where the ordi- 
nary court could not grant relief. 

" Q. Are there many instances of Private Bills of that description? 

"They grew up imperceptibly. From the time of Henry IV you find those 
applications gradually growing up into the regular shape of a Private Bill." 
Testimony before the Select Committee of the House of Commons: Parl. Papers, 
Session of 1833, vol. xii. p. 22. See also Hatschek, Englisches Staatsrecht, vol. i. 
pp. 121, 503. 

1 This very apt statement was made in the Commons in the course of the de- 
bate on the great case of Shirley v. Fagg in 1675. Grey's Debates, vol. iii. p. 195. 


than the sovereign legislature of the universe: for he 
can do nothing unjust." 1 

Henry VIII, when he revived this oppressive pro- 
cedure, was in doubt as to the legality of condemning a 
man unheard, and called upon the judges for an opinion ; 
who answered, "that it was a dangerous question, and 
that the High Court of Parliament ought to give ex- 
amples to inferiour Courts for proceeding according to 
Justice, and no inferiour Court could do the like ; and 
they thought that the High Court of Parliament would 
never do it." But when "pressed to give a direct answer," 
they reluctantly admitted "that if he be attainted by 
Parliament, it could not come in question afterwards, 
whether he were called or not called to answer," and 
the Act of Parliament which was passed accordingly, 
Coke admits, "did bind, as they resolved." "Yet," he 
says, "might they have made a better answer," for "no 
man ought to be condemned without answer," as Magna 
Charta and other statutes provide. 2 

When Bills of Attainder were again revived in the 
time of the Stuarts, the same uncertainty remained, 
and was even accentuated by the growth of the idea of 
Parliament's legislative sovereignty. The remarkable 
speech of Lord Digby against them has been noted 
above, 3 a statement that caused his former friends to 
attack him "with an implacable rage and uncharitable- 

iSParl. Hist., 287. 

2 4 Inst., 37, 38. See also the account of Henry's use of attainder in Reeves, 
H. E. L., vol. iii. pp. 423-5, 506, 507. 

3 Ante, p. 153. 



ness upon all occasions," Clarendon says. 1 But even St. 
John, who believed, if Clarendon reports him correctly, 
that Parliament could kill Strafford as easily and as 
legally as they could "knock foxes and wolves on the 
head," 2 felt the necessity of explaining to the Lords at 
great length the reasons, legal and practical, for sub- 
stituting the bill of attainder for impeachment, 3 and 
"the bill had not that warm reception in the house 
of peers, that was expected." 4 Much was made of the 
fact that the bill was supplemental in character. Facts 
enough had been submitted to prove everything but 
a technical breach of the law. The substitution was 
merely "to husband time;" 5 "to obviate those Scruples 
and Delays, which through disuse of proceedings of this 
nature, might have risen in the manner and way of pro- 
ceedings." 6 

In 1667, when the Lords had sent the bill against 
Clarendon down to the Commons, complaint was made 
in the latter house that "The lords will neither secure 

1 Rebellion, book iii. 

2 "He averred, 'That, in that way of bill, private satisfaction to each man's 
conscience was sufficient, although no evidence had been given in at all : ' and 
as to the pressing the law, he said, ' It was true, we give law to hares and deer, 
because they be beasts of the chase ; but it was never accounted either cruelty, 
or foul play, to knock foxes and wolves on the head as they can be found, be- 
cause they be beasts of prey.' In a word, the law and the humanity were alike ; 
the one being more fallacious, and the other more barbarous, than in any age 
had been vented in such an auditory." Clarendon, Rebellion, book iii. 

3 See the whole remarkable speech, Rushworth, Stafford's Trial, p. 675 et 
seq.; some extracts are given ante, pp. 151, 152. 

4 Clarendon, Rebellion, book iii. 

5 Rushworth, op. cit., p. 677. 
*lbid., p. 676. 

[ 226 ] 


nor summon him, but will condemn him unheard; and 
this they put you upon, which is against honour and 
justice;" but it was admitted at the same time, "That 
the power of parliaments is indeed great ; it hath no 
bounds but the integrity and justice of parliaments." 1 
In the House of Peers Lord Strafford protested that 
"The commitment upon a general Impeachment hath 
been heretofore, and may be again, of most evil and 
dangerous consequence," 2 as he of all men living had 
best reason to know. 

Fen wick's attainder in 1696 brought out the strong- 
est expressions against the procedure by bill in such 
cases, even though the guilt of the accused could hardly 
be doubted, and notwithstanding the fact that one of 
the two witnesses requisite by statute had been induced 
by Fenwick's wife to leave the kingdom. Practically 
the whole of that long case bears upon the question 
under discussion ; only a few statements are here given. 
For one thing, it was alleged on Fenwick's side that the 
bill must set forth the acts committed, in the nature of 
an indictment, "For in all courts of judicature this is 
a certain rule, You must proceed secundum allegata et 
probata; and you shall not go about to prove a thing 
unless it be alledged." 3 In answer to these statements it 
was said, "If they were in Westminster-Hall they would 
be in the right: but this house is not bound to those 

HParZ. Hist., 399. 
z lbid., 403. 
35Parl. Hist., 1008. 

[227 ] 


forms: for I believe the enacting clause would do the 
business of Sir J. F. well enough, if all the rest were 
laid aside." 1 

The argument was made in Fenwick's favour that it 
was "an untrodden path" to bring such a bill before 
proof was offered, and it was insisted that "what is jus- 
tice in Westminster-Hall is so here, and every where." 2 
One speaker declared: "It is said, we are not tied up 
to the rules of Westminster-hall; and that parliaments 
may denominate crimes after they are committed ; but I 
never did hear that the parliament did take upon them 
to determine that to be evidence which is not evidence 
in any court in the world. . . . Why, by parity of rea- 
son may not two affidavits do by help of the legislative 
power?" 3 Another said: "The birth-right that we have 
is in our laws ; and I did ever think till now, that the 
laws were not only made for Westminster-hall, but for 
the subjects of England ; . . . Here have been great mis- 
takes between the power of parliament and the juris- 
diction of it ; the power of parliament is to make any 
law, but the jurisdiction of parliament is to govern itself 
by the law. ... It hath passed here for current, That 
the parliament hath a power to declare what they will 
treason, though so by no other law ; It is the greatest 
mistake in the world." 4 

On the other hand, it was said, "There is lodged in 

15 Parl. Hist., 1015. 

2/fcid., 1019; see also 1016, 1017, 1020, 1030, 1047, 1087. 

SIbid., 1037. 

*2bid., 1093, 1094. 

[ 228 ] 

4-1^ 1 


the legislative a power to judge those crimes that are 
sheltered behind the law." 1 "The inferior courts are 
to go by the letter of the law ; and whoever can avoid 
that, is to escape punishment there; but the legislative 
is not to be dallied with;" 2 and the legislative power 
was defined as "a power that can make laws, and abolish 
them ; a power that is superiour to all other powers what- 
soever." 3 It is little wonder that one member of the 
Commons wearily declared, " I can't tell under what 
character to consider ourselves, whether we are judges or 
jurymen," 4 and another, " We sit in so many capacities, 
it is hard to distinguish in what capacity we are here." 5 
The bill passed and Fenwick was executed, but the 
majorities were small in both houses. 6 

In later cases of pains and penalties we find the same 
doubts recurring, 7 but enough has been said to show the 
uncertainty and indefiniteness that have always marked 
these proceedings. 8 


IF the whole length of parliamentary history be had 
in view, it will appear how late in that history parlia- 
mentary privilege became an important question. The 

*5Parl. Hist., 1039. ^Ibid.,U06. *lbid.,I070. * Ibid., 1068. *Ibid.,U08. 

6 Ibid., 1154-56. For other interesting statements occurring in the course of the 
debate, see ibid., 1031, 1032, 1038, 1085, 1096, 1098, 1113. 

7 For example, in the case of Bishop Atterbury, Par/. Hist., vol. viii. pp. 210, 
211, 237, 238, 295, 298, 349, 350. 

8 See also on the general subject of bill of attainder, Hatschek, Englisches 
Staatsrecht, vol. i. pp. 121, 240. A convenient resume of Bills of Attainder since 
1329 is to be found in Hatsell, Precedents, 2d ed., vol. iv. 

[ 229 ] 


earliest recorded case of great importance is Thorpe's, 
in 31 Henry VI. The High Court of Parliament, the 
"supreamest," the "most honourable," the "most au- 
thenticall " court, was of such dignity that its privileges 
in the early time were not questioned. Prohibitions and 
other process might issue against other courts, but the 
dignity of Parliament saved it generally from interfer- 
ence. It will be noted how few important cases of privi- 
lege arose before 1640, and how many are found in the 
later years of the Stuarts. This is by no means an acci- 
dent. The exercise of legislative powers on an unheard 
of scale, the uncertainty regarding the respective juris- 
dictions of the two houses, the struggle between the 
King and the Parliament, all tended to bring out bold 
assertions of privilege, and on the other hand deter- 
mined attempts to limit it. Thus, much of the strife 
over privilege, though by no means all, arose from the 
legislative activity of Parliament. The privilege that was 
asserted in all these cases of whatever kind was, however, 
in its origin the result of Parliament's "judicial" char- 
acter, if that word maybe used at all in speaking of those 
times; and the marks of this origin have remained upon 
it to the present day. Privilege, in fact, furnishes the 
most striking; though one of the latest to appear, cer- 
tainly one of the most lasting; and on the whole, one of 
the most convincing of all the instances of the eminently 
judicial character of Parliament that can be pointed to. 1 

1 Professor Redlich will not admit that there is any other. He says : "The con- 
ception of the House of Commons as a court of law is rather to be looked upon 

[ 230 ] 


When, in the thirty-fourth year of Henry VIII, the 
Commons set up their privilege against the Court of 

as a claim which arose under the pressure of political needs ; as such it had 
an extraordinarily strong and productive influence on the development of one 
branch of the lex et consuetudo parliament^ namely, Privilege. Consequently, 
as will be more exactly explained below, the notion had a certain influence 
upon internal parliamentary law. But in their essential features the procedure 
and order of business have from the first grown out of the political exigen- 
cies of a supreme representative assembly with legislative and administrative 
functions." The Procedure of the House of Commons, by Josef Redlich, English 
translation by A. Ernest Steinthal, vol. i. p. 25. In a note to this passage Pro- 
fessor Redlich mentions Coke as the representative of the view that Parlia- 
ment was a court, and comments as follows : " But anyone who closely follows 
the party strife of the sixteenth and seventeenth centuries under the leader- 
ship of the learned jurists of those times will have little difficulty in seeing that 
their constitutional arguments, at times bordering on the fantastic, were mere 
cloaks for the political claims to power made by the majority of the House 
of Commons, and by sections of the nation which it represented." To anyone 
who has read this essay up to this point, I hardly need say that this view seems 
to me to be based upon a misreading of the sources from which our knowledge 
of the history of England before, during, and after the sixteenth and sev- 
enteenth centuries is derived. In so saying, I do not wish to underrate the 
importance of the actual legislative work of Parliament in the sixteenth and 
seventeenth centuries or in centuries before. For the sixteenth and seventeenth 
centuries at least, I have been investigating what men thought about the work 
of Parliament rather than that work itself. And men's theories and explana- 
tions usually lag far behind the changes in their actual practice. Parliament 
was a nationally representative body in the sixteenth and seventeenth cen- 
turies. No other court was. It was also a large body, composed of two houses. 
These are facts which go far toward accounting for its unique procedure, so 
unlike that of all other courts in most ways. It also possessed at that time, 
and had long possessed, powers that we rightly call legislative. 

To say, however, that the procedure and order of business in Parliament in 
all their "essential features" have "from the first grown out of the political 
exigencies of a supreme representative assembly," seems to me to convey an 
idea that is contrary to the weight of evidence and utterly foreign to the habit 
of mind prevailing among Englishmen of the period under discussion. And 
even if we could believe that the great leaders on both sides in the constitu- 
tional struggle of the seventeenth century did not sincerely hold a constitutional 
theory that colours all their utterances, must we assume that they were not only 
insincere but stupid as well, in thinkingit necessary to use such "mere cloaks" 
for their real opinions and designs? The words of Professor Goldwin Smith, 
though used in another connection, are applicable here: "If some of the pro- 


King's Bench in the case of Ferrers, the King declared : 
" We be informed by our Judges, that we at no time 
stand so highly in our estate Royal as in the time of 
Parliament ; wherein we as Head, and you as Members, 
are conjoyned and knit together into one body politick, 
so as whatsoever offense or injury (during that time) 
is offered to the meanest Member of the House, is to 
be judged, as done against our person, and the whole 
Court of Parliament : which prerogative of the Court 
is so great (as our learned counsel informeth us) as all 
Acts and Processes comming out of any other inferiour 
Courts, must for the time cease, and give place to the 
highest." 1 

As was said in the Commons in 1593, "This Court 
for its Dignity and highness hath priviledge, as all other 
Courts have ; And as it is above all other Courts, so it 
hath priviledge above all other Courts; and as it hath 
priviledge and Jurisdiction too, so hath it also Coercion 
and Compulsion ; otherwise the Jurisdiction is nothing 
in a Court, if it hath no Coercion." 2 

This is no doubt the proper explanation of the origin 
of Parliamentary privilege ; and the speaker was cor- 
rect also when he said that privilege must carry with 
it "coercion and compulsion." But when the Parlia- 

fessions were hollow, that only proves the strength of the general feeling which 
demanded the tribute." All this can be said without taking sides on the question 
of the relative merits of the historical claims of the Commons and the Lords in 
their great struggle with each other for jurisdiction in the seventeenth century. 
iParl. Hist., vol. i. p. 555; Prynne, Brief Register, part iv. pp. 855, 856, 862 
et seq. 
2 D'Ewes, Journals, p. 145. 

[ 232 ] 


ment, and more especially the Commons, had assumed 
the control of the machinery of government, it is easy 
to see what an extension must almost of necessity be 
made to this doctrine. 

Coke, in an oft-quoted passage, sets forth, but with 
no thought of legislative sovereignty, the doctrine of 
a lex parliament!. "And," he says, "as every Court of 
Justice hath Laws and Customs for its direction, some 
by the Common Law, some by the Civil and Cannon 
Law, some by peculiar Laws and Customs, &c. So 
the High Court of Parliament Suis propriis legibus $5 
consuetudinibus subsistit. It is Lex $ Consuetude Par- 
liament^ that all weighty matters in any Parliament 
moved concerning the Peers of the Realm, or Commons 
in Parliament assembled, ought to be determined, ad- 
judged and discussed by the course of the Parliament, 
and not by the Civil Law, nor yet by the Common 
Laws of this Realm used in more inferiour Courts; 
which was so declared to be secundum legem <$ con- 
suetudinem Parliament!, concerning the Peers of the 
Realm, by the King and all the Lords Spiritual and 
Temporal ; and the like pari ratione is for the Com- 
mons for anything moved or done in the House of 
Commons: and the rather, for that by another Law and 
Custom of Parliament, the King cannot take notice of 
any thing said or done in the House of Commons, but 
by the report of the House of Commons : and every 
Member of the Parliament hath a judicial place, and 
can be no witness. And this is the reason that Judges 

[ 233 ] 


ought not to give any opinion of a matter of Parlia- 
ment, because it is not to be decided by the Common 
Laws, but secundum legem &, consuetudinem Parlia- 
ment!: and so the Judges in divers Parliaments have 
confessed. And some hold, that every offence com- 
mitted in any Court punishable by that Court, must be 
punished (proceeding criminally) in the same Court, or 
in some higher, and not in any inferiour Court, and 
the Court of Parliament hath no higher." 1 

When we try to define this lex et consuetudo Par- 
liamenti our trouble begins, and many questions arise 
in the attempt. Is the House of Lords a court of re- 
cord or not? It has been said to be so in its judicial 
capacity, but not in its legislative. 2 It certainly has ex- 
ercised the power of imprisonment for a term extend- 
ing beyond its own session, but there has been much 
hesitation on this point. 3 

Even more argument has been expended on whether 
the Commons are a court of record or not, a question 
which, even to-day, as Sir Erskine May says, "would be 
difficult to determine; for this claim, once firmly main- 
tained, has latterly been virtually abandoned although 
never distinctly renounced." 4 There is little doubt that 
under the Tudors the Commons did occasionally ex- 
ercise powers usually belonging to none but courts 
of record. In 1531 King Henry VIII wrote to Lady 


2 May, Parl. Practice, 9th ed., p. 110, citing Lord Kenyon. 

3 Ibid., p. 111. 

[ 234 ] 


Worsley commanding her to desist from troubling Sir 
Thomas Bradshaw concerning a matter long at variance 
between them, as the House of Commons had decided 
that he was not culpable. 1 In Fitzherbert's Case in 1592, 
the House of Commons declared itself to be a court 
of record. 2 Coke also insisted that the Journal of the 
Commons was a record, and attempted to justify it 
by an act of Henry VIII's reign. 3 Sir Erskine May has 
collected from the Journals of the House numerous 
instances where the Commons during Elizabeth's reign 
fined offenders and committed them to the Tower for 
definite periods. 4 The House itself plainly felt that it 
had gone too far in Floyde's Case in 1621, when it im- 
posed a fine and other punishment upon a man for 
words that in no way concerned the dignity or privi- 
lege of Parliament ; but though the Commons receded 
from the case, they disavowed any intention of giving 
up any of their claims, and in the course of the case 
Sir Edward Coke reasserted their claim to be a court 
of record. So late as 1666 the House of Commons 
imposed a fine of 1000. 5 

This contention of the Commons was denied as stren- 
uously as it was asserted. For example, by Prynne in 
his Plea for the Lords, and by Filmer, who went so 

1 Letters and Papers of Henry F/77., vol. v. No. 117; A. F. Pollard, Henry VIII., 

p. 259, note. 

2 D'Ewes, Journals, p. 502. 

3 4 Inst., 23; 6 Henry VIII., cap. 16. This statute merely mentions a license 

which must be " entered of Record in the Book of the Clerk of Parliament." 

* May, Parl. Practice, p. 113. 

5 May, op. cit., pp. 111-14 and references there cited. 



far as to say that "The House of Commons, which 
doth not minister an Oath, nor fine, nor imprison any, 
but their own Members (and that but of late in some 
Cases) cannot properly be said to be a Court at all; 
much less to be a part of the Supream Court, or high- 
est Judicature of the Kingdom." 1 

This confusion "one of the most difficult questions 
of constitutional law that has ever arisen" 2 arose out 
of the mixed and uncertain functions of Parliament. 
Members of Parliament, on account of the dignity of 
the High Court in which they "had judicial place," 
were protected from insult or from process of inferior 
courts by the ordinary judicial methods of punishing 
contempt. From the fact that other courts could not 
question these acts of the "most authenticall court," 
its methods of procedure within its own walls, and even 
the extension of that procedure beyond its walls, as in 
cases of contempt, were looked upon as coming under 
a special law different from the law of the land. This 
was a natural conclusion in the days when the mem- 
ory of a separate ecclesiastical jurisdiction was still fresh 
in England, and when even the law merchant was not 
yet reduced by the advancing dogma of legislative 
sovereignty to a place too low to be comparable with 
the common law. 

As was said in the Queen's Bench by one of the 
judges so late as 1704, in the case of Ashby v. White, 

1 Freeholder's Grand Inquest, p. 5. 

2 May, op. cit., p. 169. 

[ 236 ] 


concerning a commitment by the Commons, "to be 
committed by one law, and to judge of the commit- 
ment here by another law, would be a strange thing: 
for the House do not commit by the authority of the 
common law, but by another law, 'Legem et Consue- 
tudinem Parliament!;' for there are in England several 
other laws, besides the common law, viz. the ecclesi- 
astical law, the admiralty law, &c. and there is the law 
and customs of parliament, where they have particular 
laws and customs for their directions." 1 

So long as Parliament kept out of conflict with 
other organs of the commonwealth the indefiniteness 
that exists in the lex parliament! might cause little dis- 
turbance. But Parliament had long been a lawmak- 
ing body as well as a court, and by the sixteenth and 
seventeenth centuries was beginning to find it out. The 
problem was serious enough before. It had often been 
impossible to decide when Parliament or one house 
of Parliament was bound by the lex terrae and when 
only by the lex parliamenti ; to distinguish between 
what it must do as a court administering the common 
law of the land, and what it might do by virtue of its 
own peculiar laws of procedure. 

But now, when Parliament men were coming gradu- 
ally to see more clearly the distinction between the judi- 
cial and the legislative part of their work, the problem 
of the lex parliamenti began to be more complicated 
than ever. If before it had been hard to distinguish 

1 14 St. TV., 854. 

[ 237 ] 


privilege from ordinary adjudication, it now became 
doubly hard to distinguish adjudication from legisla- 
tion ; and this at a time when the great accession of par- 
liamentary business in the seventeenth century made 
a solution more necessary. In legislation was Parlia- 
ment (or either house alone) bound by the lex terrae, 
by the lex parliament!, or by no law at all? Under the 
influence of the modern view of Parliament's discre- 
tion incident to its omnipotence, we easily answer these 
questions ; but the great influence of the idea of fun- 
damental law still obtaining over the minds of men 
of the seventeenth century is shown by the fact that 
though they were accustomed to the actual discretion 
of Parliament, and hence were unable to say that in 
legislation it was bound by the lex terrae, we do find 
them saying that even in legislative matters, Parlia- 
ment is bound by the lex parliamenti. Thus the Attor- 
ney-General said in Fitzharris's Case : " I would observe 
there are three things to be considered of the parlia- 
ment ; the legislative part, the matters of privilege, and 
the judicial part proper to this case. For the legislative 
part, and matters of privilege, both Houses do proceed 
only 'secundum legem etconsuetudinem parliamenti.'" 1 
And in Streater's Case in 1653, where the objection, as 
we have seen, was to commitment by a mere order of 
Parliament, the court answered: "We must submit to 
the legislative power." 2 

J 8 St. TV., 315. 

2 Ante, p. 159 ; 5 St. TV., 386. 

[ 238 ] 


This double indefiniteness in the meaning tfleocpar- 
liamenti comes directly from the haziness of the line 
between legislation and adjudication; and from that 
indefiniteness, in turn, arose the almost hopeless con- 
tradiction in the decisions of English courts on these 
matters, which remained for a hundred years and more 
to make the subject of privilege one of the most diffi- 
cult in the whole range of English constitutional law. 

The apparent dilemma that resulted arose from rea- 
soning somewhat as follows : The Commons (for it was 
usually in that house that these questions arose) are a 
court, and a court higher and more honourable than 
the King's other courts of law : it is not fitting that 
any inferior court call in question the higher: the in- 
ferior courts must therefore accept without question 
as lex parliamenti and inviolable every decision of the 
Commons upon their own privileges. Besides, the whole 
doctrine of the binding character of judicial precedents 
requires that a decision of a higher court must be ac- 
cepted without question by a lower. Even though the 
House of Commons may have no power to legislate 
by itself, its decisions must in regular judicial course 
bind any inferior court. 

The Commons themselves clung to this view with 
the greatest tenacity, because to relinquish it would 
subject the decision of their privileges in the last in- 
stance to their rivals, the House of Lords. 

But, on the other hand, privilege is an exception to 
the ordinary law ; an enlargement of existing privileges 

[ 239 ] 


would be an encroachment on the law of the land ; if 
the Commons should do that, it would really be leg- 
islation, which can be legally enacted only by King, 
Lords, and Commons together. 

If the former contention should prevail, it is clear 
that in questions of privilege the duties of the infe- 
rior courts would be restricted to the mere ministerial 
enforcement of the judgement pronounced by the 
house whose privileges were involved. This dilemma 
needed only an actual extension of privilege on the part 
of the Commons to become the basis of a great con- 
stitutional struggle. Clarendon at the beginning of the 
struggle laid down the principle generally accepted 
to-day as the proper solution. "We are," he represents 
the Commons as saying, "and have been always con- 
fessed, the only judges of our own privileges; and there- 
fore whatsoever we declare to be our privilege, is such : 
otherwise whosoever determines that it is not so, makes 
himself judge of that, whereof the cognizance only 
belongs to us." "And this sophistical riddle hath per- 
plexed many, who, notwithstanding the desperate con- 
sequence they saw must result from such logic, tak- 
ing the first proposition for true, which, being rightly 
understood, is so, have not been able to wind them- 
selves out of the labyrinth of the conclusion: I say 
the proposition rightly understood: they are the only 
judges of their own privileges, that is, upon the breach 
of those privileges, which the law hath declared to be 
their own, and what punishment is to be inflicted upon 

[240 ] 


such breach. But there can be no privilege, of which 
the law doth not take notice, and which is not plead- 
able by, and at law." 1 

In striking contrast to this statement, the House 
of Commons declared so late as 1837, "That for any 
court or tribunal to assume to decide upon matters of 
privilege inconsistent with the determination of either 
house of Parliament thereon, is contrary to the law of 
Parliament, and is a breach and contempt of the privi- 
leges of Parliament." 2 The present view of the law was 
well stated in the case of Stockdale v. Hansard when 
it was said: "The proposition contended for goes no 
further than to say that each house is a court of ex- 
clusive jurisdiction, as the ecclesiastical courts, the 
admiralty court, and the court of exchequer, are with 
respect to particular branches of the law. They have 
not power to make the law, but only an exclusive au- 
thority to declare it on particular subjects. It does not 
follow that they can extend their jurisdiction." 3 

Between the statement of this view by Lord Claren- 
don in the seventeenth century and its iteration in 
the nineteenth, there is a period of struggle, confusion, 
and hesitation, relieved, however, by the luminous 
opinions of Lord Holt in the case of the Aylesbury 
men, when he decided against an extension of the 
privileges of the Commons, 4 and in Rex & Regina v. 

1 History of the Rebellion, book iv. 

2 92 Commons Journals, 418, quoted in May, Parl Practice, p. 183. 

3 9 Adolphus $ Ellis, 32, 33. 

4 2 Ld. Raymond, 1105. 


Knollys, where he decided on like grounds against the 
Lords. 1 

In this long period one case deserves especial men- 
tion here. The great case of Sir William Williams has 
hardly received the notice it deserves in our histories 
of the English Constitution. Along with the cases of 
the Seven Bishops and Godden v. Hales, it must be 
considered one of the immediate causes of the Revo- 
lution. It was the occasion of one of the most impor- 
tant clauses in the Bill of Rights, and probably there- 
fore of the like provision in the Constitution of the 
United States. Sir William Williams, Speaker of the 
Commons, for signing ex officio the order of the house 
authorizing the publication of Dangerfield's narrative, 
was found guilty in the King's Bench and fined ten 
thousand pounds, circumstances of considerable con- 
stitutional importance, surely. The case is important 
on account of its nature and its influence upon the 
Revolution, but its chief interest for this discussion is 
the fact that it turned so largely on the judicial con- 
ception of Parliament. This appears all through the 
argument of Sir Robert Atkyns in Williams's defence, 
which was published in 1689. His whole contention is 
based upon the idea that Parliament is a court. Thus 
he argues that no indictment lies for what is done in 
a course of justice or in a way of legal proceeding: 
"But what has been done by the defendant, and by the 
House of Commons in this case, hath been done in a 

1 1 Ld. Raymond, 10. 


course of justice, and in a way of legal proceedings, 
and that in the highest court of the nation." 1 

One of the most striking things about Atkyns's 
argument is his use of the Lex et Consuetudo Parlia- 
menti. This had always been of indefinite extent, but 
in general it applied to procedure and privilege mainly. 
Atkyns now apparently makes it so general that if 
a case comes before Parliament on appeal, it is decided 
by the lex parliamenti instead of the lex terrae; which 
looks very much like a fusion of legislative and judi- 
cial functions that merits the term confusion when 
used so late as 1688. 2 He apparently also includes 
within the lex parliamenti the discretion of Parliament 
in the passage of laws, 3 and this had been done before. 4 
He cannot be rid of the old idea that in all its actions 
Parliament is bound by some law: if not the lex terrae, 
then the lex parliamenti. Even in the exercise of its 
discretion (acting ex arbitrio, as Spelman would say) 5 
it is bound by a law, the lex parliamenti. In other 
words, he has made the transition to the idea of legis- 
lative sovereignty, but he has done it under the old 
forms and with the old terms. Parliament is still a 
court and its functions are in the main judicial, but 
under its lex parliamenti it may do any act it pleases 
and shall never be questioned for it beyond its walls. 

He is resting his contention ultimately on the old ju- 

l IS St. TV., 1384. 2 MM., 1425. s/6id., 1 427, 1428. 

* Fitzharris's Case (1681). See ante, p. 238. 

5 Spelman mentions certain (judicial) functions of Parliament as "meerly Le- 

gal and not Parliamentary or ex arbitrio." Reliquiae, p. 82. 

[ 243 ] 


dicial idea of Parliament. This, however, involved one 
great difficulty. He is trying to extend judicial privileges 
and immunities to all forms of parliamentary action. 

But did not "Parliament" in the judicial sense mean 
the Lords alone ? Appeals from the courts of law had 
been heard there exclusively for a long time, and 
though the Lords had abandoned their claim to try 
original cases where peers were not involved, they had 
lately vindicated their doubtful right in the case of 
appeals from the Court of Chancery. This difficulty 
Atkyns avoids in characteristic style: It must be re- 
membered, he says, "that the parliament ... is one 
entire body, and that their power in the right of it is 
entire, though as to the exercise of it, it is distributed 
into parts, and is divided : nor can the House of Lords 
exercise any power as an House of Parliament, or as 
a court for errors, without the House of Commons be 
in being at the same time. Both Houses must be pro- 
rogued together, and dissolved together; like the twins 
of Hippocrates, they live and die together, and the 
one cannot be in being, without the other also, at the 
same time be in being too." 1 

Statements of the judicial character of Parliament 
keep on recurring up to the nineteenth century, in 
cases of privilege. 2 

1 13 St. Tr., 1424. For other parts of this interesting argument bearing on this 
point, see columns 1410, 1411, 1422, 1423, 1429, 1433, 1437, and the valuable 
references there cited. 

2 For example, in Ashby v. White (14 St. Tr., 728, 853, 855); in the Case of 
Brass Crosby in 1771, 19 St. Tr., 1147; Burdett v. Abbott, 14 East, 159, 160. 

[244 ] 


In fact, the whole question of the privileges of the 
House of Commons remained uncertain just so long 
as the judicial character of the house remained unde- 
fined, and that in turn remained undefined so long as 
there was uncertainty concerning the boundary be- 
tween legislation and adjudication. The particular phase 
of the question concerning privilege was settled with 
a prospect of finality by the case of Stockdale v. Han- 
sard. In that case Lord Chief Justice Denman said : 
"It can hardly be necessary to guard myself against 
being supposed to discuss the expediency of keeping 
the law in its present state, or introducing any and 
what alterations. It is no doubt susceptible of improve- 
ment; but the improvement must be a legislative act. 
If we held that any improvement, however desirable, 
could be effected under the name of privilege, we should 
be confounding truth, and departing from our duty; 
and if, on such considerations, either house should 
claim, as matter of privilege, what was neither neces- 
sary for the discharge of their proper functions, nor 
ever had been treated as a privilege before, this would 
be an enactment, not a declaration, or, if the latter 
name were more appropriate, it would be a declaration 
of a general law, to be disregarded by the courts, though 
never, I hope, treated with contempt. It would also be 
a declaration of a new law; and the word * adjudge' 
can make no difference in the nature of the thing." 1 

19 Adolphm $ Ellis, 151-3. See also Howard v. Gossett, 10 Q. B., 359; 
Bradlauyh v. Gossett, 12 Q. B. Z>., 271. 

[245 ] 


For this period of some two hundred years there is 
a masterly summary of the cases on parliamentary pri- 
vilege in Chapter VI of Sir Erskine May's Parliamen- 
tary Practice, and another equally good in Part III 
of Broom's Constitutional Law. To these the reader is 
referred for further proof of the point which it has 
been the object of this chapter to illustrate; namely, 
that the great doubt and uncertainty that so long 
clouded the decisions upon the important question of 
parliamentary privilege arose almost entirely from 
Parliament's character as a court; from the inability 
to see clearly the lines between its varied powers in 
that "judicial" capacity; and from the confusion of 
those judicial powers with the discretionary power 
which the theory of parliamentary legislative sover- 
eignty necessarily implies. 1 

1 On the general subject of Privilege in this connection, see the parts of 
Broom's Constitutional Law (2d ed. ) and May's Parliamentary Practice, re- 
ferred to above; also Hale, Jurisdiction of the Lords House, Hargrave's 
Preface, pp. ciii-cxxvi (for the case of Skinner v. The East India Co.) ; ibid., 
pp. cxxxiv-clxi (Shirley v. Fagg); ibid., pp. clxxxii-iv (Case of Charles Knollys); 
Dyer s Reports, 60 A; 13 Cobbetfs State Trials, 1369-1442, passim (Sir William 
Williams 's Case); 14 St. Tr., 695 et seq., passim (Ashby v. White); 8 St. Tr., 223 
et seq., passim (Fltzharris^s Case). Exhaustive references to other cases will be 
found in May and Broom, and in the great case of Stockdale v. Hansard, 9 Adol- 
phus $ Ellis, 1 et seq., especially in Lord Denman's opinion, p. 106 et seq. 
The most important source of all, of course, is to be found in the Journals of 
the houses themselves. See in index volumes under "Privilege," and especially 
the cases of Shirley v. Fagg, C. J., vol. ix. p. 329 et seq., passim; Fitzharris's 
Case, C. J., vol. ix. p. 711 et seq. ; FenwicTcs Case, C. J., vol. xi. p. 577 et seq., 
passim. See also Hatsell, Precedents (2d ed., vol. i.); 4 Inst., 1 et seq. ; and the 
minute exhaustive chapter in Prynne's Brief Register (vol. iv. pp. 622-869); 

Lex Parliamentaria, by G P , Esq. (1698); Miscellania Parliamen- 

taria, by William Petyt (1680). 





(Page 117) 

IN the third year of Richard II, John Imperial, ambassador from 
Genoa, was murdered by two citizens of London. The case was de- 
bated in both houses and declared to be treason. " This declaration," 
Hale says, "being by the king and both houses of parliament was 
a good declaration pursuant to the act of 25 E. 3." History of the 
Pleas of the Crown (1736), vol. i. p. 263. "Note it well," says Coke, 
"this case was not referred to the Judges, but declared in and by 
Parliament." (12 Reports, 16.) Hale clearly implies that this decla- 
ration in Imperial's case was an "act" which would not be valid 
unless made by both houses. This elastic clause in the Statute of Ed- 
ward III came up for discussion in Strafford's Trial. (State Trials, 
vol. iii. p. 1475; Rushworth, Strafford's Trial, pp. 676, 677, 699, 700.) 
Again, in the Earl of Clarendon's Case, it was asked: "Hath the 
Parliament declaratory Power now? Yes, but it must be by King 
and Parliament, so it was in the case of the Genoua Ambassador. The 
Judges would not conclude the Articles Treason, nor would the 
Lords alone ; and if you come to an equal declarative Power with 
them, you must examine witnesses, or go by a Bill." (2 St. Tr., 565, 
Hargrave's ed.) 

Hale, and Clarendon's judges, Mr. Holdsworth thinks, here mean 
to assert that a judgement of Parliament in pursuance of this clause 
of the statute of 25 Edward III is a legislative act. (H. E. L., vol. i. p. 
188, note 3.) I can hardly think so, at least in Hale's case, for Hale 
goes on to say that the declaration is not in force in his own day. " Be- 
cause it was but a particular case, and extended not to any other case, 
as a binding law but only as a great authority." (Pleas of the Crown, 
vol. i. p. 263.) It is true, Hale does, as Mr. Justice Stephen points 
out (History of the Criminal Law of England, vol. ii. p. 252), declare 
that the case of Tresilian and others in 11 Richard II was not within 
this statute of 25 E. Ill, "because the king and commons did not 
consent per modum legis declarative, for the judgment was only the 
lords." (P. C., vol. i. p. 264.) But this is by no means to declare that 
a proper declaration under the statute must be a "legislative" act. 
Hale only asserted that certain declarations were warranted by the 

[ 247 ] 


statute because made by both houses, and that other declarations 
and judgements were unwarranted by it because made by the Lords 
alone. He says nothing about "legislative" acts, and his argument in 
his Jurisdiction of the Lords House would indicate that he did not mean 
"legislative" acts. For him a valid judgement as well as a valid statute 
required the action of both houses. In the passage in question he is 
thinking of the judicial functions of Parliament rather than the leg- 
islative, though in fact it is apparent that he makes no clear distinc- 
tion between them, as will be noted later. Mr. Justice Stephen him- 
self believes the clause of the statute in question referred to judicial 
acts (H. C. L., vol. ii. p. 252), and Mr. Holdsworth seems to agree 
with him (H. E. L., vol. i. p. 188, n. 3). For the Case of John Impe- 
rial, see also Rot. Parl., vol. iii. p. 75 B., and 3 Inst., 8. These vary- 
ing interpretations, if they serve no other purpose, show how hazy 
and indefinite the line of division between acts judicial and acts leg- 
islative remained even to the time of Lord Hale. 


(Page 117) 

BRACTON says : " Si autem aliqua nova et inconsueta emerserint, et 
quae prius usitata non fuerint in regno, si tamen similia evenerint, 
per simile judicentur, cum bona sit occasio a similibus procedere ad 
similia. Si autem talia nunquam prius evenerint, et obscurum et dif- 
ficile sit eorum judicium, tune ponantur judicia in respectum usq; 
ad magnam curiam, ut ibi per consilium curiae terminentur: licet 
sint nonnulli qui de propria scientia praesumentes, quasi nihil juris 
ignorent, nolunt alicuius consilium expetere: in quo casu honestius 
et consultius eis foret consilium habere quam aliquid temere definire, 
cum de singulis dubitare non sit inutile. Sedem quidem judicandi, 
quae est quasi thronus dei, non praesumat quis ascendere insipiens 
et indoctus, ne lucem ponat in tenebras, et tenebras in lucem, et ne 
in manu indocta, modo furientis, gladio feriat innocentem, et liberet 
nocentem, et ex alto corruat quasi a throno dei, qui volare inceperit 
antequam pennas assumat." Lib. i. cap. ii. sees. 7, 8. 

There are many cases in the Year Books and Rolls of Parliament 
that show the practice. See, for example, Rot. Parl., 18 Edward I. 
(vol. i. p. 44); also vol. i. pp. 301, 307. 

[248 ] 


In the time of Edward III such cases are especially numerous : 
e. g. Hil. 1 E. III., fol. 7 B; Mich. 39 E. III., fol. 21 A.' In the second 
of these cases, which arose from the omission of a proper name from 
a writ, Judge Thorp declared that in a previous similar case, the writ 
had been taken into Parliament, where " the Lords who made the 
writ stated what their intention was," namely, that in all such cases 
the process should be amended. Here we find the Parliament inter- 
preting a statute, in litigation, a proceeding that we think of 
as strictly judicial. 

In the next year Thorp is apparently referring to the same case. 
He says he and a fellow judge went to the Council and demanded 
of those who made the statute, to know if the record could be 
amended. They were told that it could. Trin. 40 E. III., fol. 34 B. 
See also Mich. 13 Henry IV., fol. 4. 

In another case, involving the title to land, occurring in the thirty- 
ninth year of Edward III, Judge Thorp speaks of a previous case 
similar to the one then before him, which had been tried in Parlia- 
ment ("in autiel cas de Giles Blaket il fuit parle in Parliament"), in 
which the judges had been commanded that when any such case came 
before them, they were not to proceed to judgement without good 
advice. " Wherefore," he says, " sue to the Council, and as they wish 
us to do, we will do, arid otherwise not in this case." Mich. 39 E. III., 
fol. 35 A. In the eighteenth year of Edward III we find another case 
where the judgement of the court is par avise de Counsel le Roy. 
Lib. Ass., fol. 60 B. See also Lib. Ass., fol. 256 B. 

In a case in 9 Henry V (1421) (Rot. Par/., vol. iv. p. 153), we find 
the following statement: "Et pur tant, que sur grantes altercations et 
disputations, queux par long temps feurent en la dite Chancellerie, 
par entre les Conseils des ditz parties, sur les materes suisdites euz 
et moevez, et des queux mon dit Seigneur le Chanceller,et les Clercs 
du Roi de sa Chancellerie, pur difficulte ne purrient brievement et 
droitement estre avisez a faire ceo que la Leie y vorroit cell partie, 
mon dit Seigneur le Chanceller adjurna la matere a ceo mesme Parle- 
ment, et attermina et referra les ditz parties illoeqes d'oier ceo, que 
purroit estre terminez par advis de mesme le Parlement, selonc 
1'efFect de 1'auncien Estatuit de Westm' secounde." On the general 
subject, see also 2 Inst., 408; Petyt, Jus Parliamentarium, p. 15 et 

[ 249 ] 


seq. ; Reeves, H. E. L., vol. ii. p. 290 et seq. ; Prynne's Abridgment of 
the Records, Preface. 


(Page 133) 

" NOR are there found any Bills, and Decrees in Chancery, before the 
20th. of H. 6. Such causes as since that time were heard in that 
Court, having formerly been determined in the Lords House of Par- 
liament, as may seem from the number of Petitions in Parliament, 
of that nature, which are yet extant." Dugdale, Origines Juridiciales 
(1680), p. 37. "Note that in ancient time, where the matter was 
against reason, and the party had no remedy by the Common Law, 
it was used, to sue for remedy in Parliament, and the Parliaments 
were holden of course, twice every year, but now most of those sutes 
are in the Chancery, and the Parliaments are not so often holden." 
Certaine Observations concerning the Office of the Lord Chancellor, " Com- 
posed by the Right Honorable, and most Learned, Thomas Lord 
Ellesmere,]ate Lord Chancellor of England " (1651), p. 47. 

In this "ancient time" there is observable the same concurrent 
activity of the Parliament and the Chancellor, in his granting of new 
writs. There has been some difference of opinion upon the question 
whether the Chancellor's jurisdiction in early times was mainly sup- 
plendi gratia or corrigendi gratia. The granting of new remedies would 
naturally be connected more closely with the Chancellor's oversight 
of his subordinates in their capacity of receivers of petitions and his 
own functions as a member of the Council ; his part in the admin- 
istration of the common law would be mainly due to his power of 
issuing original writs. Both of these great powers, however, were 
originally exercised by the Chancellor, not as an individual official, 
but as a member of the Council ; it may almost be said by virtue of 
the power delegated by the Council. The main fact to be noticed in 
this early and formative period, in the relations between the Chan- 
cellor and the Council, is the same one we have already noticed in 
the relations of the Council and the King's other courts, an absence 
of legal distinction. Important stages in this early development are 
marked by the Provisions of Oxford of 1258, where the barons com- 
pelled the Chancellor to promise "That he will seal no writ, except- 

[ 250 1 


ing writs of course, without the commandment of the king and of 
his council who shall be present" (Stubbs, S. C., p. 389); and by the 
twenty-fourth chapter of the Statute of Westminster II, which re- 
quired new cases to be brought into Parliament, but also allowed 
the Chancellor in future to issue new writs "in consimili casu cadente 
sub eodem jure" with the old. In the Provisions of Oxford we see not 
so much a fear of the Chancellor's power as a determination on the 
part of the barons to prevent his being answerable to the King alone 
for its exercise. The nature of the provisions of the Statute of West- 
minster II is discussed in the text (pp. 1 1 5, 1 1,6). See also ante, p. 1 16, 
note. On this subject generally, see Holdsworth, H. E. L., vol. i. 
pp. 196, 197; Jenks, Law and Politics, pp. 143, 144, 145; Stat. 27 
Eliz., ch. viii., quoted above (p. 132); Kerly, History of Equity, ch. i.; 
Hardy, Introduction to the Close Rolls; Spence, Equitable Jurisdiction 
of the Chancellor, vol. i. p. 322 et seq. 


(Page 209) 

THE name auditor seems originally to have been applied to one whose 
duties were judicial rather than fiscal (Du Cange, s. v. Auditor, Au- 
ditores), and for a long time in England it was used of judicial officers 
as well as fiscal. The author of Fleta, in his chapter on the Courts in 
England, speaks of Auditors specially appointed who can hear but 
not finally determine cases ("Habet etiam curiam suam coram Au- 
ditoribus specialiter a latere Regfis] destinatis, quorum officium non 
extenditiir nisi ad Justiciarfem] et ministros Regis, et quibus non 
conceditur potestas audita terminare, sed Regi deferre, ut per ipsum 
adhibeantur poenae secundum meritorum qualitates." Lib. ii. cap. ii. 
sec. 4). There is an interesting case on the Rolls of Parliament of 
1 290 bearing out this statement, in part at least. (Rot. Parl, vol. i. 
pp. 20, 21.) It arose from the interference by the King's bailiffs with 
rights exempt by charter. As a result, the abbot whose rights had 
been invaded sued the bailiffs "coram Episcopo Wyntori & Sociis suis 
Auditoribus" at Westminster. The parties placed themselves on the 
country, and a jury of twenty- four from Southampton, where the 
alleged wrong was committed, was brought before the auditores. 
However, on the appearance of the parties and the jury, the auditors 

[ 251 ] 


decided that they had no power to proceed further in the case, be- 
cause it really concerned the King, the bailiffs having no interest in 
it save in their capacity of tax collectors. They therefore set a day 
for the parties "and the jury likewise" to appear before the King 
and his Council. 

In the same year, on account of complaints of undue influence 
upon ministers and clerics in London, " Preceptum est per Consilium 
Auditorum querelarum in Civitate Lond." that the said ministers be 
removed until the cases in which they were interested were disposed 
of. (Rot. ParL, vol. i. p. 48.) We find on the Rolls another case in the 
same year, where the men of Appleby " petunt auditores" for relief 
for injuries sustained. (Rot. Part., vol. i. p. 51.) And still another, again 
from the year 1290, where Richard, a clerk of Southwark, " petit Au- 
ditores quod inde audiatur," because the King had treated as es- 
cheated a house he had bought of Isaac, a Jew of Southwark, which 
house the King had allowed the Jew per cartam to sell. (Rot. Par I., 
vol. i. p. 58.) 

Section 40 of the Ordinances of the Barons in 1312 provided 
that a bishop, two counts, and two barons should be appointed in 
each Parliament, " de oier & terminer " all the complaints against 
the King's ministers for breach of the ordinances. (Rot ParL, vol. i. 
p. 286.) 

In the Parliament Roll for 1314-1315 we find the heading, "Re- 
sponsiones Petitionum Angl' per Auditores earundem facte in Par- 
liamento Regis apud Westm' post octab' S'cY Hillarii, anno regni 
sui octavo." (Rot. ParL, vol. i. p. 314.) 

In 1330 complaint was made because the Chancellor had altered 
the endorsement of a petition after it had been received, which was 
illegal and against his oath "desicome Peticion endosse en Parle- 
ment, et livre par 1'Auditour d'ycelle a la place des Roules en la 
Chauncellerie, doit de reson estre de Record, et nient estre change en 
avantage ou prejudice de nully." (Rot. ParL, vol. ii. p. 45.) 

In 1332 directions were given for the receiving and trying of pe- 
titions by the "Triours et Terminours," who are also spoken of as 
"Auditours." (Rot. ParL, vol. ii. p. 68.) Soon after this it becomes 
usual to find at the opening of Parliament, as, for example, in 1381, 
that "certeins Clercs de la Chancellerie sont assignez de les resceivre, 

[ 252 ] 


et certeins Prelatz, Seigneurs, et Justices de les veer, oier, trier et 
terminer." (Rot. ParL, vol. iii. p. 98.) 

In 1390 the record of the appointment of receivers and triers re- 
stricts the petitions to things "which cannot be redressed by the 
Common Law of the Land." (Rot. Par/., vol. iii. p. 277.) But the 
present-day use of the term " common law " is probably much more 
exclusive and definite than the meaning of the term in 1390, "the 
term ' Common Law ' not being used in the confined sense that we 
give to it in the present day, but as indicating the ordinary mode of 
proceeding in the ordinary courts of justice." (Testimony of Sir F. 
Palgrave, ParL Papers, Session of 1833, vol. xii. p. 19.) 

In 1340 the Barons' ordinance of 1312 was made permanent by 
statute and applied to cases of all sorts, where delays or other griev- 
ances in the ordinary courts are complained of. 

Unlike the auditores of Edward I's day, the "committee" under 
this ordinance might determine as well as hear, unless in their judge- 
ment the case should be too difficult to be determined without fur- 
ther assistance, when they might resort to Parliament for a decision. 
If they wished, they might consult the great officers, members of the 
Council or the judges, but if this was done, it would seem probable 
from the wording and general tenor of the act, that those so con- 
sulted were to have no power beyond that of advising. (14 Edward 
III., Stat. 1, cap. v.) Lord Hale, however, thought they had "a co- 
ordinate voice as well as the lords" (Jurisdiction of the Lords House, 
p. 156); and it is probably true, as he contends, though the actual 
words of this statute seem hardly to support it, that the judges 
who were regularly appointed along with the lay and spiritual peers 
among the triers, both before this statute of Edward III and after 
it, had a "voice of suffrage" equal with the rest, instead of a mere 
" voice of advice," "as .- . . appears by the composure and power of 
the auditores querelarum appointed by the King in parliament ; which 
consisted as well of the chancellor treasurer and justices, as of lords, 
and their power not only preparative to the house of lords but de- 
cisive." He continues: "But yet further it is most evident beyond 
all dispute, that though the record either by writ or petition were 
removed into the lords house, and virtually and interpretatively the 
judgment of affirmation or reversal was theirs; yet the actual deci- 



sion and determination (in antient times even after the decay of the 
power of the consilium regis) was given by a select number of lords 
and judges, nominated by the king in parliament, or at least by the 
king with the advice of the lords." (Jurisdiction of the Lords House, 
p. 156.) 

So far as I know, there is nothing in the later rolls to show that 
any distinction was made between the peers and the judges who 
were always appointed to serve with them as triers. Lord Hale's con- 
tention is supported by the studies of Professor Baldwin upon the 
oath taken by the Councillors, as noted above in the text, pp. 34, 35. 

The above instances indicate the close relation between the courts 
and Parliament. 

With clerks of chancery acting as receivers, and judges of the law 
courts serving among the auditores, along with the Chancellor, it 
could hardly be otherwise. 

There are several questions of great importance on which we know 
very little, some of which have been referred to in the text. For ex- 
ample : Did the receivers of petitions ever have any such discretion 
in parliamentary petitions as that which at one time they seem to 
have exercised in their capacity of clerks of chancery when they is- 
sued original writs? 

What was the criterion by which the triers adjudged some peti- 
tions fit for hearing in Parliament and others suitable for the infe- 
rior courts ? How far is the body of triers or auditors, including both 
peers and judges, to be identified with " The King's Council in his 
Parliaments," and was there any distinction between the powers and 
duties of the peers and those of the judges? 

These questions in our present state of knowledge cannot be cer- 
tainly answered, but it seems clear, as we study these institutions more 
closely, that the "judicial" functions of Parliament grow very close 
to, and are indifferently distinguished from, the activity of the other 
courts of the King. The ancient writ of audita querela granted by the 
chancery clerks bears a name singularly suggestive of the auditores 
querelarum in Parliament. Was there any great or essential difference 
between querelae which the clerks directed to the judges and other 
auditores querelarum in Parliament, and the ones they sent to the 
same judges in the inferior courts? In the book published in 1641 as 

[ 254 ] 


Lord Ellesmere's, with the title The Privilege and Prerogatives of the 
High Court of Chancery, reasons are given for the passage of the Stat- 
ute 4 Henry IV., cap. 23, concerning appeals upon cases decided in 
the King's courts. The author says, "But before the making of this 
Statute ; there bee many precedents and records to prove, that the 
King and his Councell, and the King's Commissioners appointed to 
be auditors querelarum & Court of Rome, & some pretending to have 
power" assumed to examine and reverse judgements, wherefore the 

Accounts of the receivers and triers are given in Coke, 4 Inst. t 
10, 1 1 ; Prynne, Observations on Coke's Fourth Institute, p. 14; Elsynge, 
ch. viii.; Clifford, History of Private Bill Legislation, vol. i. p. 271 et 
seq. Prynne believed that the Masters of Requests had their origin 
in the Receivers of Petitions (Obs. on the Jfih Inst., pp. 14, 52). Accord- 
ing to the view now seemingly held by the best authorities, this can 
hardly be true except in the most general sense. 

The duties of the Receivers and those of the Masters of Requests 
were similar in general character, and in that sense a general con- 
tinuity of function might probably be shown between the Receiv- 
ers in the days of their activity and the later Masters of Requests. 
That the one office is a direct offshoot of the other, however, would 
seem to be impossible, if the Court of Requests as a definite organiza- 
tion had an origin as late as the date now generally accepted for it. 
See Mr. Leadam's introduction to Select Cases in the Court of Re- 
quests (Selden Society); Holdsworth, H. E. L., vol. i. p. 207 et seq. 
But see Spence, The Equitable Jurisdiction of the Court of Chancery t 
vol. i. p. 351. 

Though Prynne's supposition may be unfounded, I cannot help 
thinking that there is a very close connection between the general 
development of equity jurisdiction and the double functions of these 
clerks of chancery who acted as receivers of parliamentary petitions 
as well as drafters of original writs ; between the activity of the judges 
in the King's ordinary courts and their duties as auditor -es querelarum 
in the High Court of Parliament. And it can hardly be accidental 
that the ancient writ of audita querela when we consider its char- 
acter should bear a name so like the name of the auditors. Still less 
can it be an accident that the regular choosing of receivers in Par- 

[ 255 ] 


liament begins to be noted on the Rolls in the earlier years of Ed- 
ward III (see ante, pp. 208, 209; Elsynge, p. 263 et seq.), while there 
is good evidence that the first use of the writ of audita querela corre- 
sponds almost exactly in time. In 1343 Stonore, Chief Justice, said 
of the writ, "Quite recently there was no such suit." Y. B. 17 E. 
III., Rolls Series, pp. 370, 371. See also Mr. Pike's introduction to 
that volume, pp. xl, xli. In the next year it was said in the course 
of a case, "Audita Querela was given quite recently, that is to say 
in the tenth year of the reign, in Parliament, on account of the mis- 
chief, and it was never given before." Y. B. 18 E. 111., Rolls Series, 
p. 308. The italics are mine. See Holdsworth, H. E. L., vol. ii. p. 503, 
and note 3. On the writ of audita querela generally, see Jacob's Law 
Dictionary; Fitzherbert's New Natura Brevium, p. 102 et seq. The writ 
itself is to be found in the Register of Writs, vol. i. pp. 149, 150 (1687). 

[ 256 


The Relations of 
"Judiciary" and "Legislature" 

NOT least important among the results of the 
growth in modern times of the doctrine of leg- 
islative sovereignty is the change it has wrought in the 
relations between the judges and Parliament. The most 
striking characteristic of the growth of law in recent 
times is the prominence of legislation. Legislation de- 
rives its authority from an " external body or person." 
" Its obligatory force is independent of its principles." 
The motives of the makers of a law are absolutely im- 
material if they have clearly and unequivocally ex- 
pressed their intention. After that intention has been 
expressed, only two things remain : in the first place, to 
explain that expression of intention and adapt it to cases 
not specifically foreseen ; in the second place, to enforce 
it. The former of these may be done by the legislature 
itself by supplementary or "expository " acts, or it may 
be left by the legislature to the courts. In the perfor- 
mance of this function the courts in England have, 
in modern times, to use Sir Frederick Pollock's expres- 
sion, " treated Acts of Parliament as proceeding from 
a wholly external and unjudicial authority." 1 The clear 
ipse dixit of Parliament, covering a particular case, is 
all they want, all they dare seek for. Neither the mo- 

1 First Book of Jurisprudence, p. 331. 



tives nor the righteousness of Parliament's action is 
open to question or investigation. The only argument 
in a court of law, upon a case clearly covered by par- 
liamentary legislation, is the argument from authority. 
Parliament is looked upon in a purely objective way. 
"They have the legislative power." 1 Such is the theory 
and such is the consciously attempted practice. 

But in the past it was far otherwise, and the traces 
of the past are still to be found. This is more notably 
true in the United States, where the doctrine of legis- 
lative sovereignty has had less influence than in Eng- 
land, in the great powers exercised by our courts, by 
virtue of their inherent character, or under the inter- 
pretation of the constitutional phrase "due process of 
law." We have seen that formerly the legislature in 
England was in reality a court, that legislation was not 
sharply differentiated from adjudication. Conversely, 
this is but to say, as Mr. Justice Holmes does, that "in 
substance the growth of the law is legislative" and 
he is here referring to judge-made law. "And this in 
a deeper sense than that what the courts declare to have 
always been the law is in fact new. It is legislative in 
its grounds. The very considerations which judges most 
rarely mention, and always with an apology, are the 
secret root from which the law draws all the juices of 
life. I mean, of course, considerations of what is expe- 
dient for the community concerned. Every important 
principle which is developed by litigation is in fact and 

i Ante, p. 159. 

[ 258] 


at bottom the result of more or less definitely under- 
stood views of public policy; most generally, to be sure, 
under our practice and traditions, the unconscious re- 
sult of instinctive preferences and inarticulate convic- 
tions, but none the less traceable to views of public 
policy in the last analysis." 1 

At a time when this tendency was far more marked 
than it is now even in the United States, when the 
courts shared largely in this "legislative" growth, be- 
cause legislation was not a separate function, nor the 
work of one body exclusively, the relation of the "other 
courts" to Parliament was far different from what it is 
to-day. Parliament to them was not foreign, not ex- 
ternal, not exclusively legislative or nearly so ; it was 
another body more like themselves than unlike, more 
honourable, and of greater dignity, but still a court. 
A like difference from present-day conditions is ob- 
servable in the treatment of Parliament's acts by the 
other courts. These acts were not the solemn invi- 
olable declarations of a foreign "legislative" body, the 
sovereign power in the state, to whom absolute and 
unquestioning obedience is due. On the other hand, 
the treatment of statutes by the courts was free and 

1 The Common Law, pp. 35, 36. Cf. the resolution of the judges of the Court 
of King's Bench, below, p. 292. Cf. Austin: "I cannot understand how any 
person who has considered the subject can suppose that society could possibly 
have gone on if the judges had not legislated, or that there is any danger 
whatever in allowing them that power which they have in fact exercised, to 
make up for the negligence or the incapacity of the avowed legislator. That 
part of the law of every country which was made by judges has been far better 
made than that part which consists of statutes enacted by the legislature." 
Note to Lecture V. 



familiar. They were to be scrutinized, were often con- 
demned, and the motives of their makers freely com- 
mented on. They, like the High Court in which they 
originated, were not "external" nor "unjudicial." 

"There has been a natural tendency on the part 
of the judges," says Sir Courtenay Ilbert, "to place 
a narrow construction on enactments which appeared 
to them to conflict with what they have regarded as 
fundamental principles of common law, to round off 
their angles, to adapt them to their environment by 
means of ingenious and sometimes far-fetched glosses; 
and the process has occasionally been carried to such 
an unwarrantable extent as to justify the expression of 
driving a coach and four through Acts of Parliament." 
"But," he adds, "the action of the courts is to be 
judged in the light, not of a few petulant or captious 
criticisms by individual judges, but of their general 
course of conduct ; and they have as a rule loyally ad- 
hered to their functions of being, not critics of the 
legislature, but interpreters of the law." 1 As a descrip- 
tion of present-day conditions in judicial England the 
last of these sentences is entirely accurate. When the 
attempt is made to make this applicable to the six- 
teenth century it becomes misleading, and, in fact, is 
contradicted by abundant evidence. " If you ask me, 
then," said Sir Henry Hobart, in the case of Sheffield v. 
RatclifFe, "by what rule the judges guided themselves 
in this diverse exposition of the self same word and 

1 Legislative Methods and Forms, pp. 6, 7. 

[ 260 ] 



sentence? I answer, it was by that liberty and authority 
that judges have over laws, especially over Statute laws, 
according to reason and best convenience, to mould 
them to the truest and best use." 1 So, also, Lord Elles- 
mere quoted with approval from Justice Croke : " Vpon 
this reason it is, that some lawes, as well statute lawe 
as common law, are obsolete and worne out of use: for, 
all humane lawes are but leges temporis : and the wise- 
dome of the judges found them to bee vnmeete for the 
time they liued in, although very good and necessarie 
for the time wherein they were made. And therefore it 
is saide * leges humanae nascuntur vigent, et moriuntur, 
et habent ortum, statum, et occasum.'" 

"By this rule also," he says, "and vpon this reason 
it is, that oftentimes auncient lawes are changed by in- 
terpretation of the judges, as well in cases criminal as 
ciuile." Then follow numerous instances. " By this rule 
it is also," he continues, " that words are taken and con- 
strued, sometimes by extension ; sometimes by restric- 
tion; sometimes by implication ; sometimes a disjunc- 
tiue for a copulatiue; a copulatiue for a disjunctiue; 
the present tense for the future ; the future for the pre- 
sent ; sometimes by equity out of the reach of the 
wordes; sometime words taken in a contrary sence; 
sometime figuratiuely, as continens pro contento, and 
many other like: and all of these, examples be in- 
finite, as well in the ciuile lawe as common lawe." 2 

1 Hobarfs Reports, p. 346. 

2 2 St. Tr., 674, 675. This is an extract from the argument published in 1609 as 
the Speech of the Lord Chancellor in the Exchequer Chamber in the Case of the 

\ 261 1 


A few only of these "infinite" examples of this " liberty 
and authority" will be given here. In one case it was 
said naively that the judges would "strain hard" rather 
than declare a statute void. 1 Their straining was at times 
almost equally hard the other way. 2 The expressed doc- 
trine was, that if the words were obscure, they were to 
"be expounded most strongly for the public Good. 
For Words, which are no other than the Verberation 
of the Air, do not constitute the Statute, but are only 
the Image of it, and the Life of the Statute rests in 
the Minds of the Expositors of the Words, that is, the 
Makers of the Statutes. And if they are dispersed, so 
that their Minds cannot be known, then those who 
may approach nearest to their Minds shall construe 
the Words, and these are the Sages of the Law, whose 
Talents are exercised in the Study of such Matters." 3 
But in determining what was in the minds of the 
makers of the statutes great latitude was exercised. 
For example, the Statute of Gloucester 4 provided that 
the disseisee should recover damages in a writ of entry 
upon Novel Disseisin against him that was found ten- 
ant after the disseisor, but Littleton declared that if 
the disseisor had made a deed of feoffment to B, C, 

Postnati. The words here quoted were quoted in part by Hakewel in his Mo- 
dus Tenendi Parliamentum, written probably shortly before the outbreak of 
the Civil War and published in 1671, pages 93-95. 
UO Mod., 115. 

2 2 Brooke's Abridgment, folio 120 B (Parlement $ Statutes}; Comyn's Digest, 
s. v. Parliament (R. 10). 

3 Plowden, p. 82. 
*6E. I., ch. i. 

[ 262 ] 




and D, but livery of seisin had been made to B and C 
only ; after the death of B and C, the disseisee could 
not recover damages from D, if D had not been at the 
, and had not consented to it, nor taken the 
profits of the land. 1 

This "interpretation," then, simply dispensed with 
the statute in a particular case, an "Exposition" which 
was declared in a case in the second year of Elizabeth 
to be "founded upon the Intent of the Makers of the 
Act, and upon good Reason. And yet it seems con- 
trary to the Text, which says generally that the Dis- 
seizee shall recover Damages against him that is found 
Tenant after the Disseizor. And Littleton says that in 
the said Case he is found Tenant after the Disseizor, 
and yet the Disseizee shall not recover Damages against 
him, but it was the Intent of the Legislature that made 
him say so. And that their Intent was so, he gathered 
from Reason, for Reason would never suffer him to pay 
damages to the Disseizee, where he never assented to 
the Wrong done to the Disseizee, and never received 
nor intended to receive any Profits of his Land." 2 

After a review of other similar judgements, the case 
continues : " From which Cases it appears that the Sages 
of the Law heretofore have construed Statutes quite 
contrary to the Letter in some Appearance, and those 
Statutes which comprehend all things in the Letter 
they have expounded to extend but to some Things, 

1 Tenures, sec. G85. 

2 Plowden, pp. 204, 205. 

[ 263 ] 


and those which generally prohibit all People from 
doing such an Act they have interpreted to permit 
some People to do it, and those which include every 
Person in the Letter they have adjudged to reach to 
some Persons only, which Expositions have always 
been founded upon the Intent of the Legislature, which 
they have collected sometimes by considering the Cause 
and Necessity of making the Act, sometimes by com- 
paring one Part of the Act with another, and some- 
times by foreign Circumstances. So that they have 
ever been guided by the Intent of the Legislature, 
which they have always taken according to the Ne- 
cessity of the Matter, and according to that which is 
consonant to Reason and good Discretion." 1 In another 
similar case the Chief Justice said, "that, which Law 
and Reason allows, shall be taken to be in Force against 
the Words of the Statutes." 2 

Cases such as these are numerous. It is unnecessary 
to cite more, but it must be clearly evident from these 
that judicial "interpretation" in the sixteenth century 
was widely different from that of the twentieth cen- 
tury. Enactments based on a misconception of fact were 
also in some cases denied binding effect in the courts. 3 

* Plowden, p. 205. 

2 Ibid., p. 88 (6 and 7 Edward VI). See also, for example, ibid., pp. 109, 110, 304, 
364 ; Wingate, Maxims, Maxim 35, No. 23 ; Maxim 70, No. 70 ; 2 Brooke's Abr., 
fol. 122 A; 1 Rep., 24; A Treatise concerning Statutes or Acts of Parliament, 
"written by Sir Christopher Hatton, Late Lord Chancellor of England," pub- 
lished in 1677; Holdsworth, H. E. L., vol. ii. pp. 366-70. 

3 The Earl of Leicester's Case, Plowden, pp. 398-400, and cases there cited ; 
Wingate, Maxims, Maxim 28, No. 31, and references. 

[264 ] 


An interesting example of interpreting statutes is to 
be found in the history of the Statutes of Jeofail. One 
of these statutes (18 Elizabeth, cap. 14) enacted "that 
all defaults in form in any writ original or judicial, 
count, declaration, plaint, bill, or demand, are remedied, 
and judgment for them shall not be stayed." On an 
action for trespass, where the defendant had caught fish 
in waters belonging to the plaintiff, it was contended 
for the defendant that the omission in the declaration 
" of what nature the fish were, pikes, tenches, breams, 
carps, roaches, &c.," and the absence of any statement 
of the number of the fish taken, were fatal ; and to 
this objection "it was agreed by the whole court, that 
the omitting of the nature and number of the fish, was 
a matter of substance, and not of form to be remedied 
by the said Statute of 18 Eliz." 1 

The clearest proof of Mr. Justice Holmes's belief, 
quoted above, that the work of courts is really legis- 
lative, is furnished by the persistence of fictions. One 
example will be enough. Coke says: "An obligation 
made beyond the seas may be sued here in England, 
in what place the plaintife will. What then if it beare 
date at Bourdeaux in France, where shall it be sued ? 
And answer is made, that it may be alleaged to be 
made in quodam loco vocaf Burdeaux in France, in 
Islington in the county of Middlesex, and there it shall 
be tried, for whether there be such a place in Islington 

T-Playter's Case, 5 Rep., 35. See also Bishop's Cose, 5 Rep., 37 ; Reeves, H. E. L., 
vol. ii. p. 676, note a (by Finlason); Jacob's Law Dictionary, s. v. Jeofail. 
A list of the statutes is given in Blackstone, Cow., vol. iii. p. 408, note a. 

[ 265 ] 


or no, is not traversable in that case"! 1 Comment is 
hardly necessary. 

The main objection always brought against fictions 
is that they encroach upon the powers of the legisla- 
ture. This is the burden of Bentham's complaints, for 
in the transparent fiction, instanced above, there could, 
of course, be no question of deception. " Can it be con- 
ceited for a moment," asks Austin, " by any reasonable 
person, that fines and recoveries (for example) ever de- 
ceived anybody, or were intended to deceive ? that the 
authors of these absurdities hoped to impose upon the 
nobility whose great estates they were trying to break 
down ? or that heirs in tail, or remaindermen and re- 
versioners,were trepanned out of their interests by that 

1 Co. Lift., p. 261 B. "The object sought to be attained by such fictions," 
says Professor Salmond, "is of course the indirect alteration of the law, and 
their efficiency for this end is obvious. For the practical effect of any rule of 
law depends on two things the nature of the rule itself, and the nature of 
the facts to which it is applied. To alter the practical effect, therefore, it is 
necessary to alter either the law or the facts. And the only method of altering 
the facts is the establishment of conclusive presumptions contrary to them. 
Thus the rule of law that an English court could take no cognisance of a bond 
executed beyond the seas, would, if applied to the fact that Bordeaux is be- 
yond the seas, have prevented any action being brought on a bond executed 
at Bordeaux. The rule of law being unchangeable, the only way to avoid this 
result was to alter the fact of Bordeaux being beyond the seas, and this was 
effected by a nontraversable allegation that the bond was executed at a cer- 
tain place called Bordeaux in France in Islington in the County of Middlesex. 
. . . This is the famous fiction whereby English courts obtained jurisdiction in 
transitory actions in which the cause of action arose abroad. We find it in use 
as early as the reign of Edward III." Essays in Jurisprudence and Legal His- 
tory, pp. 9, 10. See also Lord Mansfield's opinion in Mostyn v. Fabrigas, in 
1775, Cowper's Reports, p. 170 et seq., especially his reference to the allega- 
tion in a declaration that a vessel was seized " on the high seas, videlicet in 

[ 266 ] 




ridiculous juggling ? Such a conceit is really more ab- 
surd than the foolery to which it relates." 1 

The very transparency of these fictions underlying 
fines and common recoveries brings out in stronger re- 
lief the great power, and what would seem in our day 
the amazing audacity, of the judges. By a mere ruling 
that the truth of certain statements universally known 
to be untrue might not be questioned, they effectually 
and permanently defeated the designs of the nobility 
and rendered absolutely ineffectual the clearly ex- 
pressed will of Parliament. Speaking of the celebrated 
Taltarum's Case, John Hill Burton says : " It may . . . 
without much exaggeration be affirmed, that, in the 
reign of Edward the Fourth, the principal enactment 
of the Statute De Donis was repealed by a judicial 
sentence"* Judges who could as a matter of course do 

* Lectures on Jurisprudence, 4th ed., vol. ii. p. 629. 

2 Compendium of the Law of Real Property, p. 231, quoted by W. D. Lewis, 
Esq., in Juridical Society Papers, vol. i. p. 374. Nothing in the history of Eng- 
lish Law better illustrates the actual legislation by the courts than their treat- 
ment of the Statute De Donis. They rather than the Parliament represented 
the will of the nation, and the nation as such was beginning to have a will, 
and their action was sanctioned by King and people. Nothing in English 
law is better known than these facts, but it is amazing that their true signifi- 
cance should be so little recognized. Mr. Scrutton is not going too far when 
he says, "The class legislation of Parliament was defeated by the national 
legislation of the judges." Land in Fetters, p. 76. For the opposition of the 
judges here is direct, conscious, successful, and generally approved. It is di- 
rected against an odious piece of " class legislation " which the Parliament has 
formally enacted in words too clear to be misunderstood, and has refused again 
and again to repeal. And there can be no question of the intention of the mak- 
ers of the act. The judges are trying to defeat that intention, not to give effect 
to it. They are guided by " considerations of what is expedient for the commu- 
nity." All this is clearly brought out in Coke's account of the matter. Speaking 
of the evil state of affairs caused by the statute, he says : " And the same was 

[ 267 ] 


such things as these had a conception of their office, 
and of their relation to the law and the lawmaking 
body, far different from that existing to-day ; and their 
actual doing with impunity year after year these things 
so vitally important to many is the best proof that 
that conception was not materially repugnant to the 
feelings and beliefs of that part of the English nation 
which held the balance of power. 

Another illustration of this freedom of interpreta- 
tion is found in the case of statutes declaratory of the 
common law. 

Coke says in his Fourth Institute, "Of acts of Par- 
liament some be introductory of a new Law, and some 
be declaratory of the Ancient Law, and some be of 
both kinds by addition of greater penalties or the like." 1 

Again he says: "To know what the Common Law 

attempted and endeavoured to be remedied at divers Parliaments and divers 
bills were exhibited accordingly (which I have seen) but they were always on 
one pretence or other rejected. But the truth was, that the Lords and Com- 
mons knowing that their estates-tail were not to be forfeited for felony or 
treason ; as their estates of inheritance were before the said act, (and chiefly 
in the time of H. 3. in the Barons war) and finding that they were not answer- 
able for the debts or incumbrances of their ancestors, nor did the sales, 
alienations, or leases of their ancestors bind them for the lands which were 
entailed to their ancestors, they always rejected such bills : and the same con- 
tinued in the residue of the reign of E. 1. and of the reigns of E. 2. E. 3. R. 2. 
H. 4. H. 5. H. 6. and till about the 12th year of E. 4. When the Judges on 
consultation had amongst themselves, resolved, that an estate tail might be 
docked and barred by a common recovery ; and that by reason of the intended 
recompence, the common recovery was not within the restraint of the said 
perpetuity made by the said act of 13 E. 1." Sir Anthony Mildmay's Case, 6 
Hep., 40, 41. Note the perplexity into which these fines and recoveries threw 
the Student and the Doctor in Saint Germain's Dialogue. Doct. and Stud., 
Dialogue I., ch. xxvi. 
1 Page 25. 

[ 268 ] 


was before the making of any Statute, (whereby it 
may be known whether the Act be introductory of 
a new Law, or affirmatory of the old) is the very lock 
and key to set open the windows of the Statute." 1 

The application by the judges of a different rule 
of interpretation to such acts or such parts of acts as 
they considered declaratory for that is just what was 
done indicates at once the commanding position of 
the Common Law and the power of the judges. For 
it is to be noted that the declaratory nature of an en- 
actment was determined by the judges nine times out 
of ten, not from any expression of intention on the 
part of the lawmakers, but by the mere fact that the 
subject matter of the act in question, in the opinion of 
the judges, came within some rule of the existing law, 
that mystery to which they alone were initiated. Im- 
portant results might follow from the exercise of this 
great power. The commonest was the rule "that a 
Statute made in the affirmative, without any negative 
expressed or implyed, doth not take away the Common 
Law." 2 So it was seriously urged in the trial of the 
Earl of Strafford that the act of Edward III defining 
treason was merely in affirmance, and therefore any 
words or actions that could be proved to be treasona- 
ble according to the law existing previous to that act, 
might properly constitute treason in 1640, though they 
were not within the terms of the statute. 3 

I 21nst., 308. 2 Ibid., 200. 

3 Rushworth, Stafford's Trial, p. 699 et seq. 

[ 269 ] 


The language used by Coke, in reference to the Act 
of 3 Henry VII which organized the Court of Star 
Chamber, seems strange to our ears, but was not so 
when uttered : " The second conclusion is, that the Act 
of 3 H. 7. being in the affirmative is not in some things 
pursued. For where the Act directeth that the Bill or 
Information should be put to the Lord Chancellor, 
&c., all Bills and Informations in that Court are con- 
stantly and continually directed to the King's Majesty, 
as they were before the said Act ; and it is a good rule, 
that where the Act of 3 H. 7. is not pursued, there (if 
there be many judicial presidents in another sort) they 
must have warrant from the ancient Court; and yet it 
is good (as much as may be) to pursue this Act, there 
being no greater assurance of jurisdiction than an Act 
of Parliament. And where there be no such presidents, 
then the Statute as to the Judges must be pursued. . . . 

"Fifthly, where it is said in this Act, 'And to 
punish them after their demerits after the form and 
effect of Statutes made,' &c. The Plaintiff may choose 
whether he will inform upon such Statutes as this Act 
directeth, or for the offence at the Common Law, as he 
might have done before this Act: which proveth that 
this Act taketh not away the former jurisdiction." 1 

In addition to these cases where the judges openly 

H Inst., 62, 63. See also ibid., p. 40, marginal note; Co. Litt., lib. 2, cap. 10, 
with Hargrave and Butler's notes (Nos. 153-9); Plowden, 111, 112; Hawkins, 
History of the Pleas of the Crown, vol. ii. p. 56. For a more modern instance, see 
the arguments against Dowdeswell's proposed libel Act in 1771, Parl. Hist., 
vol. xvii. pp. 54, 58. 

[270 ] 


deprived a law or a statute of practical effect by a 
false assumption of fact, or altered its application on 
the ground of its declaratory nature, there are asser- 
tions some of them mere dicta, it is true, but not 
all ; and too numerous to be entirely accidental that 
statutes are void entirely, because against reason or 
the fundamental law. Some of these have been noticed 
already under the head of "The Fundamental Law." 
"We find," says Sir Frederick Pollock, "a series of 
dicta, extending to the early part of the eighteenth 
century, to the effect that statutes contrary to * natural 
justice' or * common right' may be treated as void. This 
opinion is most strongly expressed by Coke, but, like 
many of his confident opinions, is extra-judicial. Al- 
though Coke was no canonist, we may be pretty sure 
that it was ultimately derived from the canonist doc- 
trine prevailing on the Continent of Europe. In Eng- 
land it was never a practical doctrine." 1 

One who holds the prevailing view that a developed 
legislative sovereignty was in existence in Coke's time 
must consider these frequent statements as "confident," 
"petulant," or "captious," but their frequency, and the 
reputation of those who made them, render this easy 
explanation rather hard to accept. 

Instead of being occasional, captious, or inexplica- 
ble, these cases represent the continuance of ideas pre- 
valent and common in mediaeval times, not only in 
England, but in all Christendom. Gierke says : " The 

1 The Expansion of the Common Law, pp. 121, 122. 

[ 271 ] 


properly Medieval and never completely obsolete 
theory declared that every act of the Sovereign which 
broke the bounds drawn by Natural Law was formally 
null and void. As null and void therefore every judge 
and every other magistrate who had to apply the law 
was to treat, not only every unlawful executive act, 
but every unlawful statute, even though it were pub- 
lished by Pope or Emperor." 1 

It may be admitted that one great source of such 
opinions was the canonists; not the sole source, how- 
ever, for such canonist doctrines could have had but 
little effect where such a theory existed as the present- 
day one of the omnipotence of Parliament. It cannot 
be denied, probably it might easily be shown, that the 
division of allegiance between Pope and King had been 
one great source of the attempts in mediaeval Eng- 
land to set limits to the powers of the organs of the state. 
It does seem somewhat superficial, however, to explain 
those resulting attempts as mere accidents, nothing 
more than chance explosions of ill-temper or arrogance. 

This influence of the Church upon the attitude even 
of the common lawyers is shown by the nature and 
occasion of the earliest appearance of statements deny- 
ing the validity of unrepealed statutes. 

The Church was no more willing to allow the law 
of the state to override its canons in England than else- 
where. If the two came into conflict, the secular law 

i Political Theories of the Middle Age, translated by F. W. Maitland, p. 84. 
See also the references given by Gierke in support of this statement. 

[ 272 ] 


must yield. This principle was undoubtedly accepted 
by the churchmen in England. It was set forth in the 
provincial canons. 1 In defence of it Becket lost his life, 
and his death gave it new vitality. 

The first known recognition of the principle that an 
unrepealed statute might be void, occurring in a secular 
court, seems to have been in the twenty-seventh year 
of Henry VI, and it is connected more or less directly 
with the old quarrel of Church and State. The Stat- 
ute De Asportatis Religiosorum, of 35 Edward I, pro- 
vided that abbeys should have a common seal, which 
was to remain in the custody of the Prior and four 
others of the House and be left for safe keeping under 
the private seal of the Abbot, "so that the Abbot or 
Prior, which doth govern the House, shall be able of 
himself to establish nothing." If any writings or con- 
tracts were entered into or "sealed with any other Seal 
than such a common Seal, kept as aforesaid," they were 
to be adjudged "void and of no force in law." In the 
year 27 Henry VI one brought suit against an abbot 
upon a grant of an annuity made by the abbot's pre- 
decessor, and sealed with the convent seal. It was al- 
leged that the seal had not been in the keeping of the 
prior and the four as the statute required, and that 
therefore the grant was void. The decision, however, 
was that the grant was good notwithstanding the stat- 

i Lyndwood, Provincial (1679), p. 263. " I have looked in vain for any sugges- 
tion that an English judge or advocate ever called in question the statutory 
power of a text that was contained in any of the three papal law-books. "Mait- 
land, Canon Law in the Church of England, p. 9. 

[ 273 1 


lite, " et loppinion del court que cest statut est voide, 
quar est inpartinent destre observe," 1 the reason being 
that if the seal were in the keeping of the four, the abbot 
could seal nothing with it ; for if it were in his hands, 
then it must be out of their keeping, and therefore 
every sealed document would be necessarily void. 

This seems reasonably clear. Apparently a grave in- 
justice would have been done here if the grantee of 
the annuity in question, or his successor, had been de- 
prived of the benefit of the grant. It seems equally ap- 
parent that the statute made the grant void. To prevent 
the injustice, the common law judges here simply 
say the statute meaning the portion of it concerning 
seals is void and of no effect, the reason being a piece 
of verbal jugglery, which surely could deceive no one. 
Therewas here no "impossibility of performance," other 
than a dialectical impossibility such as might be cre- 
ated to avoid almost any statutory requirement, no 
matter how plain. Coke, however, gravely repeats the 
reasoning in Fitzherbert : " This branch (as it hath been 
resolved) is impossible, and inconvenient to be observed : 
impossible, because it is hereby enacted, [then follows 
a summary of the provision of the statute] for, if it 
be kept in custody under the seal of the Abbot, then 
no writing can be sealed by the Abbot, and if the 
Abbot taketh it out, and seal, &c. then is it not kept 
in custody under his private seal ; and therefore it was 
resolved by the whole Court of the Common Pleas, 

1 Fitzherberfs Abridgment, Annuitie No. 41. 



that this branch being impossible to be observed, is 
void; the Court also resolved, that it was inconvenient: 
for they said, that if the statute should be observed, 
every deed that passed under the common seal might 
be undone by a simple surmise, &C." 1 

Out of this Blackstone, in his turn, evolves the mild 
doctrine that "acts of parliament that are impossible 
to be performed are of no validity," 2 which is not un- 
like a truism; and this rather lame conclusion seems to 
be the construction put by most modern commenta- 
tors upon the words of Henry VI's judges. 

But can the words "cest statut est voide, quar est 
inpartinent destre observe" be dismissed so easily? The 
statute in this case was not declared to be void be- 
cause it was physically impossible to carry it out. The 
impossibility was one of the judges' own making, and 
it was made because there were other reasons rea- 
sons of "public policy," it may be why the statute 
should not be obeyed. The judges were here openly 
refusing to give force to the obvious intention of the 
makers of the statute. It is true they veiled this re- 
fusal under the thinnest of pretences, but who in that 
day could have been deceived by it? Can Sir Frederick 
Pollock to-day be wholly right when he says the judges 
declared the act inoperative, "not because it was con- 
trary to natural justice, but because they could make 
no sense of it at all"? 3 

., 587. See also Dr. Bonham's Case, 8 Rep., 118. 
2 Commentaries, vol. i. p. 91. 3 Expansion of the Common Law, p. 122. 



Furthermore, it is to be observed that the declara- 
tion that the statute is void is here probably no obiter 
dictum. It seems likely from the existing summary 
of the case in Fitzherbert that the decision in favour 
of the validity of the grant turned directly upon the 
invalidity of the statute. If this be a correct analysis 
of this case, it must seem a little hazardous to say that 
"No case is known ... in which an English court of 
justice has openly taken on itself to overrule or disre- 
gard the plain meaning of an Act of Parliament." 1 The 
case may be an exceptional one, but it must be reck- 
oned with. No doubt one great reason for the mis- 
conception as to this case is Coke's unfortunate render- 
ing of "inpartinent" as "impossible," as noted above. 
On a review of the case it becomes evident that the 
real reason for the declaration concerning the statute is 
to be found in the statement noted by Coke as above, 
that "the Court also resolved, that if the statute should 
be observed, every deed that passes under the Com- 
mon Seal might be undone by a simple surmise," no 
doubt a great hardship and injustice in most cases. 
Nevertheless, no court of to-day would dream of avoid- 
ing such inconveniences, however great, by a remedy 
so heroic as an open or even a covert disavowal of the 
authority and validity of the act itself. 2 

1 Pollock, First Book of Jurisprudence, p. 252. 

2 The fullest treatment of this remarkable case is to be found in the late Brinton 
Coxe's Judicial Power and Unconstitutional Legislation, p. 153 et seq., to 
which I am indebted for many of the above references. For the relation of 
this decision to the provisions of the canon law on the subject, see especially 
Coxe, pp. 157-60. 



Another case, somewhat later, which brought out 
strong expressions from the judges against the validity 
of an act, was one reported in the Year Book of 21 
Henry VII. This case arose directly out of a collision 
of the rules of the canon and the common law. The 
only point of the case which in any way touched the 
question here at issue was the question whether the 
King could be made a Parson by Act of Parliament. 
It was argued : " It seems that the King cannot be 
called parson by act of Parliament, for no temporal act 
can cause a temporal act to make a temporal man have 
spiritual jurisdiction." 1 "For," the Serjeant continues, 
"if it was ordained by act, etc., that such a one should 
not tender tithes to his curate, the act would be void, 
for concerning such a thing as touches merely the spir- 
itualty, such temporal act cannot make any ordinance : 
the same law, if it was enacted that one parson should 
have the tithes of another. Thus by this act which is 
merely one of a temporal court, the king cannot be 
made to have any spiritual jurisdiction." This point was 
argued back and forth, and was concluded by Frowike, 
the Chief Justice, in these words: "As to the other 
matter, whether the King can be parson by act of par- 
liament; as I understand, it is not a great matter to 
argue : for I have never seen that any temporal man 
could be parson without the agreement of the Supreme 
Head. And in all the cases which have been put, 

1 Y. B. 21 II. VII., pi. 1 (p. 2). The clumsy repetition may be due to the careless 
copyist, but the meaning is clear enough. 



namely of the benefices in Wales, and the benefices 
which laymen have in their own use, I have seen the 
matter: the king had them by assent and agreement of 
the Supreme Head. Thus a temporal act, without the 
assent of the Supreme Head, cannot make the King 
a Parson." 1 

The above case, turning as it does directly upon the 
validity of temporal legislation in a field admitted to 
be ecclesiastical, is not so instructive as the case that 
preceded, but the language used is significant enough 
when coming from a common law judge. 

The same view of the limitation of Parliament's 
power over spiritual matters was partly the cause of 
the death of Sir Thomas More, once Chancellor of 
England. Roper tells us that Sir Richard Rich, the So- 
licitor General, who was trying to draw some incrim- 
inating admission from Sir Thomas More, put this 
question to him: "'Admitt there were, Sir,' quoth he, 
' an Acte of Parliament, that all the Realme should 
take me for the King, would not you (Mr. Moore) take 
me for the King?' 'Yes, Sir,' quoth Sir Thomas Moore, 
'that would I.' ' I put the case further' (quoth Mr 
Rich) 'that there weare an Acte of Parliament that all 
the Realme should take me for the Pope; would then 
not you, Mr. Moore, take me for the Pope?' 'For an- 
sweare,' quoth Sir Thomas Moore, 'to your first case, 
the Parliament may well (Mr Rich) meddle with the 

1 Y. B. 21 H. VII. , p. 4 ; Brinton Coxe, op. cit., 147-53; Brooke's Abridgment, 
Parlement $ Statutes, No. 28 (vol. ii. fol. 120 B, ed. of 1573). 



stat of temporall Princes ; but to make aunsweare to 
your [second] case, I will put you this case, Suppose 
the Parliament would make a Law, that God should 
not be God, would you then, Mr Rich, saye God weare 
not God?' * Noe, Sir,' quoth he, 'that would I not, sithe 
noe Parliament may make any such Law.' ' Noe more' 
(sayd Sir Thomas Moore, as Mr Rich reported of him) 
'could the Parliament make the Kinge suppreame 
head of the Church.'" 1 When asked on his trial why 
judgement should not be given against him, he replied, 
as Roper reports, "'Forasmuch as, my Lord,' (quoth 
he) 'this Indictment is grounded upon an Act of Par- 
liament, directly oppugnaunt to the Lawes of God and 
his holye Church, the supreame goverment of which, 
or of any part thereof, maye no temporall Prince pre- 
sume by any lawe to take uppon him as rightfully be- 
longinge to the See of Rome.'" 2 After this the Chan- 
cellor demanded the opinion of the Chief Justice of the 
King's Bench on the sufficiency of the indictment, who 
gave this significantly evasive answer:"! mustneedes 
confesse, that if the Acte of Parliament be not un- 
lawfull, then is not the Indictment in my conscience 
insufficient." 3 

The author of the dialogue of the Doctor and Stu- 
dent, though an opponent of ecclesiastical power, evi- 
dently had in mind the same limitation of Parliament's 

1 Roper's Life of Sir Thomas More (edited by J. R. Lumby), p. xlvi. 

2 Ibid., p. 1. 

3 Ibid., p. li. 



authority, for in discussing the validity of a statute 
which should forbid the use of torches, tapers, etc., at 
burials, he concludes : " It were a good statute, and 
ought to be observed, as well by spiritual men as by 
temporal ; and this I take to be the reason why, for all 
goods, though they be in the hands of spiritual men, 
be temporal concerning the body, and nourishing the 
body, as they do to temporal men. . . . And all tem- 
poral things the King and his progenitors, as in the 
right of the crown, have in this realm alway ordered 
and judged by his laws: and therefore I suppose that 
the parliament may enact, that there shall not be laid 
upon a deceased person but such a cloth, or thus many 
tapers or candles set up about him." 1 

Further on he says : " Verily there is a writ in the 
Register (which is a book of the law of England) that 
no sheriff shall impanel any priest upon any inquest, 
and that writ may every priest have, that will sue for 
it. And I think right well, that that writ is grounded 
upon the law of the realm : taking in that point his 
effect upon the law of God. And therefore I think, 
that the parliament may not enact, that priests should 
go universally upon inquests ; but to enact, that in this 
special case [i. e., as to whether a man were sufficiently 
learned to be a priest], which is not mere temporal, but 
to enquire of the sufficiency of learning, and that to a 
good and necessary purpose, I suppose the parliament 

1 Additions to Dialogue II., ch. i. 

[ 280 ] 


may assign them to it without breaking the liberty of 
the church." 1 

It is not hard to imagine why such statements be- 
come rarer after 1534, but the persistence of this old 
idea in England, notwithstanding the modern doctrine 
of the omnipotence of Parliament, is shown when a 
bishop of the Church of England, in the middle of the 
nineteenth century, could renounce communion with 
the Archbishop of Canterbury because he thought the 
archbishop had endangered the rights and liberties of 
the Church, in obeying the Queen's monition based 
upon the provisions of an act of Parliament. 2 

If anyone doubts whether this view still survives 
or not, let him read the communications sent to the 
Royal Commission on Ecclesiastical Discipline in 
1904 by priests of the Church of England whose con- 
duct of the service of the Church had been under criti- 
cism. Many of these close with a statement which 
had evidently been adopted by agreement: "Possibly 
I may be acting contrary to some decisions of the Ju- 
dicial Committee of the Privy Council; but I deny the 
competence of that tribunal as a final Court of Appeal 
in matters relating to the doctrine, discipline, and cere- 
monial of the Church." 3 

1 Additions to Dialogue II., ch. xi. See, on this subject, Roscoe Pound, in 
Harvard Law Review, vol. xxi. p. 393 et seq. 

2 This arose out of the celebrated Gorham Case in 1850. On it see, for ex- 
ample, Hore's History of the Church in England, vol. ii. p. 351. 

3 House of Commons Sessional Papers, 1906, vol. xxxiii. (Minutes of Evidence, 
vol. i. pp. 8, 15, 16, 18, 27, 36, 44, 46, 48, 53, 100, 103, etc.). 

[ 281 ] 


Among the appendices to the Report of the Com- 
mission is a Memorial addressed to the Archbishop of 
Canterbury, signed by 2519 clergymen, in which they 
declare, " that loyalty to the Church of England com- 
pels them to repudiate the competence of any such 
tribunal as the Judicial Committee of the Privy Coun- 
cil to over-rule the plain meaning of the Rubrics of 
the Book of Common Prayer or to interpret and de- 
termine the doctrine and discipline of the Church of 
England." 1 

1 Appendix B (vol. xxxiv.). An interesting parallel to these modern views, as 
to the competency of a lay court to review the judgements of a spiritual 
one, is found in the Articles exhibited by the Clergy to the Privy Council 
in the reign of James I, with the answer of the common-law judges. Among 
other things, the clergy pray (sec. 16, 2 CokJs Inst. y 611) that where the stat- 
utes concerning tithes are in dispute, "then the said three Statutes may be 
thoroughly debated before your Lordships, lest under pretence of a right, 
which they challenge, to expound these kind of Statutes, the truth may be 
over-born, and poor Ministers still left unto Country trials, there to justifie 
the right of their tithes before unconscionable Jurors in these cases." In reply, 
the judges declared: "We never heard it excepted unto heretofore, that any 
Statute should be expounded by any other then the Judges of the land ; neither 
was there ever any so much over-seen, as to oppose himself against the prac- 
tice of all ages to make that question, or to lay any such unjust imputation 
upon the Judges of the Realm." 

Again (in sec. 20, 2 Inst., 614), the clergy challenge the claim of the tem- 
poral judges to determine "causes of Faith and Religion," and to prevent by 
Prohibitions their trial in ecclesiastical courts "which conceit, how absurd 
it is, needeth no proof, and teacheth us, that when matters meerly Ecclesi- 
astical are comprised in any Statute, it doth not therefore follow, that the 
interpretation of the said matters doth belong to the Temporal Judges, who 
by their profession, and as they are Judges, are not acquainted with that 
kind of learning." To which the judges answered, "And for the Judges ex- 
pounding of Statutes that concern the Ecclesiastical government or proceed- 
ings, it belongeth unto the Temporal Judges ; and we think they have been 
expounded as much to their advantage, as either the letter or intention of Laws 
would or could allow of. And when they have been expounded to their liking, 
then they could approve of it; but if the exposition be not for their purpose, 

[ 282 ] 


The jurisdiction of the Judicial Committee of the 
Privy Council as a court of final appeal in ecclesiastical 
cases, it need hardly be said, is based on parliamentary 
enactment. 1 

All the above cases deal more or less with ecclesi- 
astical matters, and in most of them, therefore, the 
declarations against the validity of statutes are based 
on a want of jurisdiction in the secular courts (includ- 
ing the court of Parliament 2 ) over matters belonging 
to the courts of the Church, rather than on the char- 
acter of the enactments themselves. 

Turning now to the cases of a more distinctly secu- 
lar nature, we find there also many free criticisms of 
statutes on the part of the judges, extending at times 
to a declaration that statutes may be void. 

For a long time, practically the only kind of "en- ) 
actment " found in mediaeval England was the Assizes. 
The term "assize" may have been used, as Stubbs sug- 
gests, because of the special sanctity of the term "law," 
as used in Scripture and in the Roman jurisprudence. 

then they will say, as now they do, that it appertaineth not unto us to de- 
termine of them." The judges close their answer to the whole petition by 
saying, "For the Judges doing but what they ought, and by their oaths are 
bound to do ; it is not to be called in question : and if it fall out, that they err 
in judgment, it cannot otherwise be reformed, but judicially in a superiour 
Court; or by Parliament." (2 Inst., 618.) 

1 3 and 4 Wm. IV., ch. xli. See especially Finlason, The Judicial Committee of 
the Privy Council. 

2 Note that in the argument quoted above (on page 277) the statute in dispute 
is spoken of as "this act which is merely one of a temporal court," and cf. 
what is said above, at page 119, concerning the meaning of "jurisdiction" in 
earlier times. 

[ 283 ] 


Another reason for the use of some other term than 
"law" is the fact that in theory "law" then practi- 
cally meant ancient and unchangeable custom, while 
these assizes dealt largely, or could be made to seem 
to deal almost entirely, with administrative machinery 
in which changes might occur. Surely some changes 
of great importance were thus brought about, as the 
Assizes of Clarendon and Northampton, for instance, 
will show. If, then, these assizes were "tentative" and 
"temporary," as Stubbs says, they were, nevertheless, 
the most authoritative form of enactment that existed 
at that time. But we find, notwithstanding its impor- 
tance, that such an assize "is liable to be set aside by 
the judges where they find it impossible to adminis- 
ter it fairly;" 1 which is not surprising when it is remem- 
bered that the assizes had been made with the advice 
of the Curia, where sat the same judges who were now 
to enforce them. At a time, for example, such as the 
reign of the absentee Richard I, when the men of 
the Council were practically the rulers of England, it 
is not at all strange that these men should by their 
own authority discontinue an assize they found in- 
convenient or unsuitable. 2 When enactments began to 

1 Stubbs, Const. Hist., vol. i. pp. 615, 616. 

2 An interesting case in the next reign is reported by Hoveden under the year 
1201, with the heading, "De relaxatione Statuti regis Ricardi "( referring to 
his Assize of Measures) as follows : " Eodera anno Hugo Bardulfi, etalii quidam 
justitiarii regis, venerunt ad nundinas Sancti Botulfi, volentes capere in rnanu 
regis pannos laneos qui non habebant duas ulnas de latitudine infra lisuras, 
secundum assisam Ricardi regis. Quo audito, mercatores effecerunt adversus 
praedictos justitiarios, quod panni eorum non capiebantur, et quod diutius 

[ 284 ] 


be placed upon the Statute Roll, these conditions were 
not sharply changed. 

Henry Ill's reissue of Magna Charta in 1225 is one 
of the first and, without doubt, the best known of the 
enactments among the early statutes. 1 The first in- 
stance I shall give of the judges declaring a statute void 
concerns Magna Charta itself, and arises out of the de- 
termination of the judges that no man must be a judge 
in his own case, one of the principles of justice which 
the common law judges strove hardest to uphold in all 

In chapter twelve of the reissue it is ordained that 
the assizes of novel disseisin and mort d ancestor should 
not be taken unless in the proper counties. It was 
nevertheless decided in 18 Edward II that an assize 
of novel disseisin to regain a lordship in the Marches 
of Wales was rightly held in the English county of 
Gloucester, though this was a violation of a negative 
command of Magna Charta itself, "and the reason is 
notable, for the Lord Marcher though he had jura 
Regalia, yet could he not do Justice in his own case," 

non teneret assissa ilia Ricardi regis, neque de latitudine pannorum, neque de 
mensuris bladi ; et ut liceat eis de caetero facere pannos suos latos vel strictos 
sicut eis placuerit. Unde praedicti justitiarii magnam adepti sunt pecuniam 
ad opus regis, in damnum multorum. Vitanda est turpis lucri causa." Vol. iv. 
p. 172 (Rolls Series). 

1 The Statute Roll begins in the latter part of the thirteenth century. Parlia- 
mentary enactments made before that time are found on rolls that are made 
up in the main of records which to-day would be considered more judicial 
than legislative. The Record Commissioners denied that Henry's reissue was 
a statute (S. R., vol. i. p. xxxiv, note). The section concerning the assizes, 
however, was repeated in Edward I's reissue, which is on the Statute Roll. 

[285 ] 


"and therefore," says Coke, "this case of necessity is by 
construction excepted out of the Statute"* 

In the famous case of Dr. Bonham, in the sixth and 
seventh years of James I, Lord Coke cited a number 
of cases in support of his theory that " in many cases 
the common law will controul acts of Parliament, and 
sometimes adjudge them to be utterly void." 2 One of 
the most important of these has been noticed already. 3 
Of the others, the earliest and probably the one most 
questioned from Lord Ellesmere's days onward, is 
Thomas Tregor's Case, of the eighth year of Edward 
III. 4 In that case, Herle, Chief Justice, used these 
words : Us sont ascun statutes faitz que celuy mesme 
qui lesfist ne les voleit pas mettre en fait. This seems to 
mean : "There are some Statutes made which he him- 
self who made them does not will to put into effect. " 
Coke, in quoting this, made an important addition. The 
whole passage should be given: "And it appears in our 
books, that in many cases, the common law will con- 

1 2 Inst., 25. The italics are mine. This case is reported in Fitzherberfs Abridg- 
ment, Assise, No. 382. See also a case in 21 Henry III (Fitzherbert, Briefe, 
No. 881), where, notwithstanding the well-known provision that the common 
pleas should be held in some fixed place, it was said, "Et quamvis prohibeatur 
quod communia placita non sequantur Curiam &c. non sequitur propter hoc 
quin aliqua placita sigularia sequantur dominum regem." See also Coke, as 
above. Mr. Holds worth (H. E. L., vol. ii. p. 366, and note 4) cites a case from 
Rot. Parl, vol. ii. p. 41 (4 Edward III., No. 52), in which certain petitioners 
declare to be contrary to law the statute by which the lands of the Templars 
were transferred to the Hospitallers : " Et disoient que ce sunt contrarie a Ley, 
issi que eel Estatut se fist centre Ley et centre reson." See also Holdsworth, 
op. cit., vol. ii. p. 369, and note 1. 
z SRep., 118. 

3 Ante, p. 273 et seq. 

4 Y. B. 8 E. 111., Pasch. pi. 26. 

[ 286 ] 


troul acts of Parliament, and sometimes adjudge them 
to be utterly void : for when an act of Parliament is 
against common right and reason, or repugnant, or im- 
possible to be performed, the common law will con- 
troul it, and adjudge such acts to be void; and there- 
fore in 8 E. 3. 30. a. b. Thomas Tregor's case on the 
Statute of W. 2. c. 38. <% artic. super chartas, c. O.Herle 
saith, some statutes are made against law and right, 
which those who made them perceiving, would not put 
them into execution." [Then follow some other pre- 
cedents.] Now here, apparently, Coke is assuming that 
at least one reason for not enforcing the statute was 
its being against reason or law. Sir Frederick Pollock, 
on the other hand, in commenting on it remarks that 
" Plenty of modern statutes have been inoperative in 
practice, not because the common law controlled them, 
but because they were in fact unworkable ;" l thus evi- 
dently implying that we have here nothing more than 
a law which has been allowed to become a dead letter 
through inadvertence or absence of any wish to enforce 
it o/i the part of the legislator; or, at most, a law physi- 
cally impossible of enforcement. 

There is here a radical difference of interpretation 
between Coke and Sir Frederick Pollock. Herle may 
have meant the one thing, or he may have meant the 
other. Certainly, his bare statement, as reported in the 
Year Book, is not sufficient alone to bear Coke's infer- 
ence. Coke was in this instance probably quoting from 

1 First Book of Jurisprudence, p. 251, note. 

[ 287 ] 


memory, as he seems to have done frequently, and 
sometimes with serious results ; but the quotation as 
he made it, we must consider, was not a chance utter- 
ance carelessly made. It undoubtedly represents Coke's 
settled conviction. An explanation of this very passage 
was later demanded of him, and in an answer directed 
to the King himself he repeated the statement word for 
word, prefacing it with the declaration, " The words of 
my report do not import any new opinion, but only a 
relation of such authorities of law, as had been adjudged 
and resolved in ancient and former times." 1 It is hardly 
possible that his attention had not been called to the 
addition he had made to Herle's words, and yet he con- 
sidered that he himself had brought forward no new 
opinion. He clearly considered that Herle's words could 
mean only one thing, and that the addition of the 
words "against law and right" in no way changed their 
original sense. 

It is, then, quite true to say that Herle's bare words 
are not sufficient, taken by themselves, to bear out 
Coke's conclusions, but it is a different matter entirely 
to say positively that those conclusions were wrong. 
He cited other cases which certainly do go far to show 
that his interpretation may have been the right one. 
One or two of these have been noted, and others re- 
main to be discussed. 

At all events, Coke's interpretation, whether deduced 
rightly or wrongly from earlier precedents, must be 

1 Bacons Works (edited by Montagu), vol. ii. p. 506 (American ed.). 

[ 288 ] 


looked upon by a student of English constitutional law 
and history as most important evidence of what the 
common lawyers of the early seventeenth century ac- 
cepted as the only legally and historically sound posi- 
tion to be taken upon this important question. This, 
after all, is for our discussion a more important matter, 
perhaps, than the determination of the real meaning 
of Heiie's words. And yet, it seems to me, those words 
are so significant that some explanation should be 
sought. That they refer merely to the disuse of the 
statute, or to the physical impossibility of enforcing 
it, I cannot believe. 

One very striking thing about the whole case is the 
fact that Coke is apparently citing these words of Herle 
"There are some Statutes made which he himself who 
made them does not will to put into effect" as proof 
of the power of the judges to disregard the statute 
concerning the college of physicians which was under 
discussion in Bonham's Case. What possible relation 
can there be between the opinions of the judges and the 
opinions and desires that the makers of the law begin 
to entertain subsequent to the passage of the act ? Under 
modern conditions, no relation whatever; for to-day, 
the will of the legislature is assumed to be expressed 
in the act itself. Even if the lawmaking body wholly 
changes its mind subsequent to the passing of an act, 
this in no way alters the attitude of the courts to the 
act. They must be guided according to the clear intent 
expressed in the act itself, and would not think of 

[ 289 ] 


regarding any change in the minds of the legislators, 
unless that change had been put in the official form of 
an amending or repealing statute. In other words, we 
to-day keep our legislation and adjudication in entirely 
separate compartments. 

In Herle's time this was not so. We have seen that 
judges were continually appealing to Parliament for 
help and advice in difficult cases, and we shall presently 
find them asking the meaning of statutes. Sometimes 
these appeals were made to a different Parliament from 
the one which had made the enactment. Moreover, we 
shall see that the judges who decided the cases in the 
courts were also entrusted with a large part of the busi- 
ness of the Court of Parliament, both "judicial" and 
"legislative." We shall also find that the wording, and, 
in fact, all but the bare main principles of the acts, were 
for long the exclusive work of the same judges. There- 
fore, when Herle says that the makers of the statutes 
often will not to enforce them, is it certain, as is usually 
assumed, that he means the "legislature" exclusively? 
Is it not possible that Coke was as nearly right when 
he cited the statement to prove the right of the courts 
to review "legislation"? But would it not be still nearer 
to the truth to say, in view of the close relations of 
judges and Parliament, of the fusion of functions ju- 
dicial and legislative which we have found in both the 
High Court of Parliament and the inferior courts, and 
above all in view of the manifest absence of any clear 
distinction between a judgement and a law, between 

[ 290 ] 


judicature and legislation, in the time of Edward III, 
in view of all this, would it not be better to say that 
Herle would probably have considered an alteration of 
a statute by a subsequent statute, and a modification 
of it, or even a refusal to enforce it, by the courts; as 
actions not essentially different in character? 1 

It is absolutely necessary to rid ourselves of the 
modern idea of the law-making and law-interpreting 
bodies as mutually exclusive, and external to each 
other, if we wish to understand the meaning of Herle's 
words. So understood, they would seem to bear Coke's 
interpretation as readily, or possibly more readily, than 
the interpretation suggested by the more modern doc- 
trine of legislative sovereignty. 

But we must not forget that Coke himself lived un- 
der influences different from those of the middle ages. 
For over a century Parliament had, to a great extent, 
ceased the judicial activity that so marked it in the 
time of Edward III. It was natural, then, that Coke 
should argue that this power of review should in his 
time be in the ordinary courts, since the Parliament, 
though entitled to exercise it, was not doing so to any 
great extent. 

If the High Court of Parliament was not actually 
exercising to the full all the indefinite powers properly 
belonging to it, what more natural than that the other 
courts of the common law should be the proper place 

J But see the article by Professor Roscoe Pound, in Harvard Law Rev., 
vol. xxi., at p. 391. 

[291 ] 


for the exercise of them? It is to be expected under 
these circumstances, when the lines between adjudica- 
tion, legislation, and administration were not keenly 
felt, that Coke should insist that most of these indefi- 
nite powers should remain in the end with those of his 
own craft. The resolution of the judges in Bagg's Case 
would seem to show that this feeling was shared by his 
fellows of the common law: "And in this case, first, it 
was resolved, that to this court of King's Bench be- 
longs authority, not only to correct errors in judicial 
proceedings, but other errors and misdemeanors extra- 
judicial, tending to the breach of peace, or oppres- 
sion of the subjects, or to the raising of faction, con- 
troversy, debate, or any manner of misgovernment ; so 
that no wrong or injury, either public or private can 
be done, but that it shall be (here) reformed or punished 
by due course of law." 1 

It is not strange that Coke was called upon to ex- 
plain this case to the King. 2 It claimed "jurisdiction" 
for the common law courts over the very matters 
which, as the King and Bacon and Ellesmere con- 
tended, belonged to the King or to his Council, many 
of them matters that we do not ordinarily think of as 
belonging to the courts at all. 3 

1 11 Rep., 98. The italics are mine. 

2 The letter of explanation entitled The Humble and Direct Answer to the Last 
Question arising upon Bagg's Case is printed in Montagu's edition of Bacon's 
Works, vol. ii. p. 507 (American ed.). 

3 But cf. the non-judicial powers often exercised by our courts in the United 
States ; for example, the power of granting licenses for the sale of intoxicating 



But the King and Bacon and Ellesmere in opposing 
the exercise of these great powers by the common law- 
yers were very far from denying the legitimacy of the 
powers themselves. They never object to judicial criti- 
cism of statutes unless that criticism comes from the 
common law judges. On the contrary, while repudiat- 
ing the exclusive claim of the common lawyers to ex- 
ercise such extensive and indefinite powers, they them- 
selves were striving with all their might to have those 
same powers exercised by the Council and the Court 
of Star Chamber, bodies that we think of as judicial 
rather than legislative, or even by the Court of Chan- 
cery. Notwithstanding some utterances provoked by 
the claims of the common lawyers, these men were 
really basing their legal and political theories on the 
prevailing idea of a fusion of powers: they were no 
advocates of legislative sovereignty, and they would 
hardly have understood the explanation now usually 
accepted of the relations which existed in the middle 
ages between the courts and "those who made the law." 
This is put beyond doubt by the words of Lord Elles- 
mere himself. It was probably Bagg's Case that he had 
in mind in his speech to Sir Henry Montagu when 
the latter was sworn Chief Justice of the King's Bench 
in place of Coke. In that speech the Chancellor re- 
minded Sir Henry of his grandfather, Edward Mon- 
tagu, formerly Chief Justice of the Common Pleas, 

liquors in the State of Pennsylvania. Of course no one looks upon these as 

[ 293 ] 


how "He challenged not power for the Judges of this 
Court to correct all misdemeanors as well extrajudicial 
as judicial, nor to have power to judge Statutes and 
acts of Parliament to be void, if they conceived them 
to be against common right and reason; but left the 
King and the Parliament to judge what was common 
right and reason. I speak not of impossibilities or direct 
repugnances." 1 Such language in the eighteenth or 
twentieth century would clearly be an assertion of leg- 
islative sovereignty over judicial power: in the early 
seventeenth, it was merely a denial of the competency 
of the common law judges in this respect. It was far 
from implying that such matters were wholly beyond 
"judicial " cognizance. 

It is probably true that in all England the common 
law had no opponent so bitter as Lord Ellesmere. There 
is no doubt that he was thus regarded by the common 
lawyers. 2 But notwithstanding this opposition to the 
pretensions of the common lawyers, Ellesmere himself 
could declare, after citing Coke's own words in Bon- 
ham's Case: "And the Judges themselves do play the 
Chancellors parts upon statutes, making construction of 
them according to equity, varying from the rules and 
grounds of law, and enlarging them, pro bono publico, 
against the letter and intent of the makers, whereof our 

1 Moore's Reports, p. 828. 

2 He was, Sir James Whitelocke says, " the greatest enemye to the common 
law that ever did bear office of state in this kingdome ; he was therupon termed 
viscount Breaklaw for viscount Brackley." Liber Famelicus (Camden Society), 
p. 53. 

[ 294 ] 


books have many hundreds of cases." 1 Such statements 
cannot be reconciled on any theory of parliamentary 

A struggle was inevitable. When it came, it arose 
from the determination of the "prerogative courts "to 
exercise unchecked those large and indefinite powers 
which they claimed as the heirs of the old Council. 
The Court of Parliament and the courts of the com- 
mon law had equal right to claim descent from the 
ancient Curia. It would be a cause of surprise if dis- 
sension and even war should not result from a situa- 
tion so serious. For the claims of both parties in the 
great contest had an historical foundation. These differ- 
ent bodies, all tracing their legitimate descent from the 
ancient Curia, had formerly worked in greater harmony, 
but now changed conditions had set them in opposi- 
tion to each other, and a new line of kings was on the 
throne, that knew not the full importance of prevent- 
ing a rupture, who w r ere short-sighted enough to iden- 
tify themselves and their prerogatives with one party 
exclusively. By this, new elements were brought into 
the quarrel, and it eventually required the sacrifice of 
the King and thousands of his subjects before a solu- 
tion of the great question was reached. When reached, 
it was not the solution sought by either of the origi- 
nal parties. Bacon and Strafford, who embody the high- 
est and best aims of the prerogative party, were seek- 

i The Earl of Oxford's Case, 13 Jac. I., White and Tudor's Leading Cases in 
Equity, 6th ed., vol. ii. pp. 648, 649. The italics are mine. 

[ 295 ] 


ing a balance of powers in the state, but with an ad- 
ministrative system removed to a large extent from the 
ordinary course of the law, as is found in a measure 
over much of the Continent to-day. Parliament took up 
the quarrel of the common lawyers, as we have already 
seen. The victory of the Parliament led to a system in 
which both the King's ministers and the courts of law 
had to take a subordinate place ; the modern theory of 
legislative sovereignty will brook no equal for the sov- 
ereign lawmaking body. 

If, then, the above was really Coke's view of this 
important matter, it was in full accord with his gen- 
eral theory and with that of his contemporaries : Coke's 
statement, however, can hardly be truly said to be an 
accurate description of the practice on this important 
matter prevailing in the time of Edward III, though it 
would seem to be as near to that practice as the more 
modern view, which is, that Herle had in mind merely 
the subsequent attitude of the "legislature." If the lat- 
ter was Herle's meaning; if they "who made the act" 
exercised afterwards no power beyond that of a modern 
legislature ; no power of a judicial character, no control 
and supervision over the actual operation of the act, 
then Herle's famous remark was of no practical signi- 
ficance whatever, and no importance must be attached 
to it at all. In view of all the circumstances, I cannot 
think that this was his real meaning. 

The next case cited by Coke in Bonham's Case was 
another occurring in the reign of Edward III and re- 

[ 296 ] 


ported by Fitzherbert. Briefly stated, the case was as 
follows : The Statute of Westminster Second, chapter 
21, enacts that in case a tenant fail for a period of two 
years to perform the services due from his land, then 
the lord may have a writ of cessavit to recover the 
tenement. This writ the statute expressly extends to 
the heirs of the lord. Nevertheless, in 33 Edward III, 
Willoughby, Justice, denied this remedy to the heirs 
of a deceased lord, notwithstanding the statute. 1 The 
reason was, Coke says, "because in a Cessavit the ten- 
ant before judgment may render the arrearages and 
damages, &c. and retain the land, and that he cannot 
do when the heir brings a Cessavit for the cesser in 
the time of his ancestor, for the arrearages incurred in 
the life of the ancestor do not belong to the heir : and 
because it would be against common right and reason, 
the common law adjudges the said act of Parliament 
as to that point void." 2 

Coke in Bonham's Case cites in support of his theory 
several other cases, which may be seen in the report, 
including the case of the abbey seals mentioned above. 3 

1 Fitzherbert' 's Abr., Cessavit, 42; F. N. B., p. 209 F. 

2 8 Rep., 118. These reasons are not given in Fitzherbert's report of the case, 
which is very brief, but they may be correct ones, nevertheless. See also 

2 Inst., 460. 

3 In addition to the ones already given may be mentioned one or two cases 
of Elizabeth's reign in which, if the judges did not always say that statutes 
were void, they acted as though they could be. One such is Lord Cromwell's 
Case in the King's Bench in 20 Elizabeth. Henry Lord Cromwell brought an 
action de scandalis magnatum against Ed. Denny, Vicar of Northlinham in 
Norfolk, for certain words uttered against him contrary to the Statute of 
2 Richard II., cap. 5. But the plaintiff in his declaration misrecited the act 



That statutes were not held in great reverence in 
mediaeval times is shown not merely by the decisions 

in question. The act says, "whosoever shall" do so and so "shall incur," etc. 
This was changed so as to read, who "shall not" do it "shall incur," etc. It 
was moved by the defendant's counsel that the declaration was therefore in- 
sufficient, but in return it was urged that the act in question was a private act ; 
that the courts could therefore take no notice of it ex officio, but must take 
the act as the party had alleged it, which, of course, would, if true, dispose 
of the charge of insufficiency in the declaration. 

It was decided by the whole court that the act was a public and not a private 
act. But "it was likewise resolved, that if the act was private, and that the 
court ought to take it to be such as is alledged ; then the said act was against 
law, and reason, and therefore void : for as it is alledged, those who do not offend 
shall be punished, and that was condemnare insontem fy demittere reum; where- 
fore judgment was given against the plaintiff quod nihil capiat per billam." 
4 Reports, 12, 13. 

A case where the Court's action was very significant occurred in the 
Exchequer in 31 Elizabeth. Sir Thomas Gresham had levied a fine of some 
manors in Norfolk to the use of himself, his wife, and their heirs, but with the 
power of revocation on payment of a certain sum. Later, Sir Thomas revoked 
the uses, complying, as he thought, with the necessary conditions, and after- 
wards raised several new uses and estates of some of the manors, which he 
held in capite. After Sir Thomas's death, in the twenty-third year of Elizabeth, 
it was decided by the justices that the revocation was void, and that there- 
fore all the manors accrued to his widow as survivor. Following this decision, 
the revocation was declared by private act of Parliament to be good and bind- 
ing in law, and soon after Lady Gresham was summoned into the Exchequer 
to answer a fine to the Queen, because the new uses which Sir Thomas had 
raised before his death constituted an alienation of lands held in capite, and 
the alienation had been accomplished without royal license. The contention of 
the Crown, of course, was valid only if the new uses were good, and these, in 
turn, could stand only if the revocation were upheld. But the revocation had 
been by act of Parliament declared to be valid and binding. Nevertheless, it 
was held by the Court, that as Sir Thomas had died before the passage of the 
act validating the revocation, Lady Gresham was discharged by survivorship ; 
and as every alienation without license implies a wrong and a trespass, Lady 
Gresham must be discharged of the fines for the alienations, because "an act 
of Parliament, to which the Queen, and all her subjects are parties, and give 
consent, cannot do a wrong." 9 Reports, 106, 107. The reason the act could not 
do a wrong was, of course, merely because the judges, when they decided it 
was wrong, refused to enforce it. See also cases in Brooke's Abr., Parlement <$ 
Statutes (vol. ii. fol. 120 B, ed. of 1573). 

[ 298 ] 


and dicta of the judges, but by the words of the stat- 
utes themselves. Thus, a statute of Edward III speaks 
of a previous statute as "certain Articles expressly con- 
trary to the Laws and Customs of our Realm of Eng- 
land and to our Prerogatives and Rights Royal . . . 
pretended to be granted by Us by the Manner of 
a Statute." 1 Coke's definition of mala in se as breaches 
of the common law and mala prohibita as breaches of 
statute, referred to above, shows how far he ranks the 
perfection of the customary law above the statutory 
law. 2 In fact, it is clear that he and his contemporaries 
retained the old distinction between law and enact- 
ment. Statutes were not ordinarily to be disregarded, 
"there being no greater assurance of jurisdiction than 
an Act of Parliament, where there be no ... presi- 
dents " to the contrary ; but statutes, made by the High 
Court of Parliament, and orders of other courts correct- 
ing errors in judicial proceedings and "other errors 
and misdemeanors extra-judicial," which might make 
changes in the working or the administration of the 
law, could never affect the sacred principles of the com- 
mon law created by immemorial tradition and founded 
upon the unalterable principles of reason and revela- 
tion. As for the judges of Henry II, the assizes were not 
" law," neither was a statute "law" to Coke. The idea 

*15 Edw. III. (1341), 1 S. R., 297. Similarly, in 15 E. II. (1 S. K, 185), a stat- 
ute was declared to be "sinfully and wrongly made and granted, against Rea- 
son and common Right, and against the Oath of our Lord the King which he 
made at his Coronation." 



that law can be " made " is very modern. The opinion 
of one of Coke's contemporaries and enemies has al- 
ready been quoted. In whatever points Lord Ellesmere 
differed from Coke, and there were many, he agreed 
and his testimony as Chancellor is of great value 
that "the wisdome of the judges" had in times past 
found some of the laws " unmeete for the times they 
liued in." 1 

If we turn now from cases and statutes to the works 
of systematic writers on law, we find some evidence 
that they believed statutes might be void in some cases. 
So the author of the Doctor and Student says, " Of the 
Law of Reason, the which by doctors is called the law 
of nature of reasonable creatures," "Against this law, 
prescription, statute nor custom may not prevail : and 
if any be brought in against it, they be not prescrip- 
tions, statutes nor customs, but things void and against 
justice." 2 Again, he says, "If any general custom were 
against the law of God, or if any statute were made 
directly against it: as if it were ordained that no alms 
should be given for no necessity, the custom and stat- 
ute were void." 3 

Coke's writings, of course, are the place where we 
find most frequent expression of this attitude of the 

1 See also ante, p. 294, where Lord Ellesmere, in commending Chief Justice 

Montagu for not declaring statutes void, makes this significant exception : / 

tpeak not of impossibilities or direct repugnances. 

2 Dialogue I., ch. ii. 

*Ibid., ch. vi. ; see also ibid., chs. iv., xix., xxvi. ; Dialogue II., ch. xv. ; Noy, 

Maxims, p. 1. 

[ 300 ] 


judges toward statutes. We have noted some instances 
above. Another is his comment on the statute of 11 
Henry VII, empowering justices of assize and justices 
of the peace to hear and determine cases on mere in- 
formation. This statute was the especial object of Coke's 
wrath, a statute "which had a fair flattering pream- 
ble," but "tended in the execution ... to the high dis- 
pleasure of Almighty God, the great let, nay the utter 
subversion of the Common Law, and the great let of 
the Wealth of this Land." 1 Likewise in his account of 
the conference concerning Proclamations in 8 James I, 
Coke says, "But 9 H. 4 an Act of Parliament was made, 
that all the Irish people should depart the realm, and 
go into Ireland before the feast of the Nativity of the 
Blessed Lady, upon pain of death, which was absolutely 
in terror em, and was utterly against the law." 2 

When we come to that great series of constitutional 
questions which came up for settlement before the 
King'sjudges in the years preceding the civil wars, there 
is one important problem in the solution of which we 
get great assistance from a knowledge of this traditional 
attitude of the judges to ward the statute law. In assess- 
ing the relative legal merits of the claims of the Crown 
lawyers and of those on the side of Parliament, this 
point, it seems to me, has been somewhat neglected. 
We too readily assume the sacred and inviolable char- 
acter of the enactments of Parliament. When the King's 

H Inst., 39-41. See also ante, p. 64, n. 
2 12 Rep., 76. 

[301 ] 


judges, therefore, "excepted certain cases out of the 
Statute" where the King was concerned; where they 
declared to be legal some royal act which he had done 
without statutory warrant, or sometimes in the face of 
a statute ; we accept without qualification the outcries 
of the parliamentarians. We assume that as the judges 
are the King's creatures, they are always simply doing 
his bidding, regardless of the law ; or, at least, are less 
considerate of it than of royal favour. But, I submit 
that this is unfair to the judges in some cases. Judges 
were accustomed to "except cases out of the Statute" 
in cases of necessity, when injustice would result, or 
when the public good demanded it. 1 They also declared 
acts void if contrary to "law." There was, therefore, 
nothing unusual, nothing unprecedented, when the 
King's judges made exceptions out of the law where 
the King's prerogatives were concerned. This does not 
necessarily imply in all cases that they put the King 
"above the law." They were acting as judges had done 
for centuries. This must be said in explanation, not in 
entire justification, of the views and actions of men who 
in many cases honestly took a narrow legal view of the 
situation. To men who could see, the law offered but 
an incomplete solution. The King must be checked in 
the performance of acts that could reasonably be in- 
terpreted as strictly legal, or the substance of English- 
men's liberties would soon be gone. The bare law was 
not sufficient protection against the King, when the 

1 Ante, p. 263 ; Plowden, pp. 204, 205; 2 Inst., 25. 

[ 302 ] 


King was arrayed against the people. That law had 
grown up, its precedents had been formed, in times 
when the King and the other organs of the common- 
wealth were still working in harmony, before the King 
had come to look upon himself as above and separate 
from his people, before the people themselves were 
enough conscious of their political existence apart from 
the Crown to realize an antagonism between Sover- 
eign and subject. Now, under the new and altered con- 
ditions, the old law was breaking down. It offered no 
sufficient protection to the subject, when the King 
without a breach of it could oppress him and discover 
legal means of taking, without his consent and even 
against his will, so much of his property that the gov- 
ernment was thus rendered independent of him en- 
tirely, deaf to his complaints, and able to ignore them 
with impunity. 

These things a statesman should have seen; many of 
them did see. And hence we find even many loyal sup- 
porters of prerogative joining with the more radical 
to keep the King within bounds. The business of the 
judges, however, was in the main different, and properly 
different. They were to give effect to the existing law. 
Their training led them to look backward, not forward. 
It is a mistake, then, to be surprised at their action ; 
it is unjust to cover them with indiscriminate censure. 
In arguing for the legality of ship-money , Weston was 
probably not so far beyond the law when he so perti- 
nently replied to his opponents, "If you say, the acts of 


parliament should give way to necessity, then you have 
answered all you have objected: This is not the only 
case of necessity. . . . And shall not the acts of parlia- 
ment give way to necessity for defence of the kingdom? 
What though there have been petitions in parliament 
to have it decreed, that this kind of charge should not 
be laid upon the subject? Admit it had been so de- 
creed in parliament, yet by the law of equity they 
ought to be charged; and in all reason they ought to 
be charged towards the defence of the kingdom." 1 

Even more explicit in his statement of the old doc- 
trine was Sir Edward Crawley, one of the justices of 
the Common Pleas: "Admit, I say, there were an 
express act, That the king, were the realm in never so 
much danger, should not have aid from his subjects, 
but in parliament, it is a void act ; will any man say 
such an act shall bind ? This power is inseparable from 
the crown, as the pronouncing of war and peace is : 
such an act is manifestly unreasonable, and not to be 
suffered; . . . You cannot have a king without these 
royal rights, no, not by act of parliament." 2 

*3 St. TV., 1075. Weston was one of the Barons of the Court of Exchequer. 
z lbid., 1085. See his statement more at length; also Justice Croke's similar 
opinion, ibid., 1160. 

So Sir William Jones, a justice of the King's Bench, declared: "I will tell 
what I have heard adjudged in this case. In the parliament held 1 Jac. there 
were two things expressly moved : One, That there might be no wardship or 
tenure of the King : The other, that the king might not allow surveyors. To 
these questions, after long disputes, it was answered by the whole parliament, 
that such an act of parliament to top the prerogative of tenures would be void, 
because it is inherent in the crown, for every man holds immediately or me- 
diately of the king. "76id., 1190. St. John in replying to these arguments clearly 

f 304 ] 


Under the Commonwealth we have noted the grad- 
ual change from the old view of the supremacy of law 
to the new one of the supremacy of Parliament. This 
comes out in the treatment of the statutes. For exam- 
ple, in Streater's Case, in 1653, we find this interesting 
dialogue : 

Freeman (counsel for Streater), arguing against the 
form of the return in a habeas corpus, "My lord, every 
Return ought to have these two things in it; the Cause 
and how long he shall be a prisoner: and so you have 
it in Magna Charta, p. 54. My lord, all acts of parlia- 
ments against the laws of the land, are in themselves 
void. The law is above the parliament. 

"Judge. Good Sir, do not stand to repeat these things 
before us. 

"Freeman. My lord, I do know it; they may pass 
their acts according to law, but not against law. The 
lord Dyer hath it so in his Reports. 

"Judge. When we are in examination of a prisoner, 
will you come and overthrow the acts of parliament? 

had in mind the difference between a law and an enactment, though he natu- 
rally magnified the importance of the latter to the utmost. Speaking of the 
decision of the judges in the ship-money case and comparing it with the deci- 
sion of Richard II's judges upon a statute, he said : * In that of Rich. 2, it was 
for overthrowing but one act of parliament, which was likewise introductive of 
a new law ; for the commission had no rise from the common law ; for in truth 
it was derogatory to the crown : It had only the strength of the parliament to 
support it, which was sufficient ; it was for the common good. But here the 
endeavour was at once, not to blow up one act of parliament, but all ; and 
these not introductive, but declaratory of the common law. . . . That of Rich. 2, 
was but the blowing up of the upper deck ; this of the common law, and the 
statutes too, and the old foundations, and all the structures built upon them, 
all together." 3 St. Tr., 1280. 

[ 305 ] 


"Freeman. My lord, I refer it to your lordship's 
judgment, whether this gentleman ought to be kept in 
prison without cause shown." 1 

So it was said further on in argument for Streater, 
"Parliaments ever made laws, but the judges of the 
law judged by those laws. Who will question but that 
the warrant of a justice of Peace, shewing lawful cause 
of imprisonment, is of greater force in law, than an Or- 
der of Parliament shewing no cause of imprisonment?" 2 

The case of Day v. Savadge is one of the best known 
cases in which this principle is set forth. There it was 
stated obiter that "even an act of parliament, made 
against natural equity, as to make a man judge in his 
own case, is void in itself; for jura naturae sunt immu- 
tabilia, and they are leges legum." 3 

During the parliamentary proceedings against Cla- 
rendon in 1667, Sir Heneage Finch, afterwards famous 
as Lord Chancellor, said: " And tho' I know not what 
the Legislative Power of a Parliament cannot do, yet 
it is not in the Power of the Parliament, King, Lords 
nor Commons, to declare anything to be Treason, which 
is not in the Common-Law Felony before." 4 His great 
uncle had expressed views very similar. 5 

The new temper of the judges is seen in the quo- 
tation above from Streater 's Case. The judge must 

^5 St. 2V., 372, 373. 

2 Ibid., 381. 

* Hobarfs Rep., p. 87. 

2 St. Tr. (Hargrave's edition), 560. 

5 Finch's Law (1627), book i. ch. vi. 

[ 306 ] 


1 1 T n /~1 ri 


uphold the power of Parliament. In that case Chief 
Justice Rolle certainly did not do it in a very impres- 
sive manner against the precedents cited by counsel. 
With the Restoration, we find some indications of a 
return to the old theory, especially when the preroga- 
tive was in question ; but this very matter formed so 
important a part of the ground of struggle in 1688, and 
was so prominent in the Revolution settlement, that 
few echoes of the older doctrine are to be heard after 
the Revolution. Lawyers and judges, of course, for a 
while, remembered the old theory. Some twelve years 
after the Revolution the great Chief Justice Holt made 
his well-known comment on Dr. Bonham's Case : " What 
my Lord Coke says in Dr. Bonhams Case, in his 8 Co., 
is far from any extravagancy, for it is a very reasonable 
and true saying, That if an act of parliament should 
ordain that the same person should be party and judge, 
or, which is the same thing, judge in his own cause, it 
would be a void act of parliament ; for it is impossible 
that one should be judge and party, for the judge is 
to determine between party and party, or between the 
government and the party ; and an act of parliament 
can do no wrong, though it may do several things that 
look pretty odd; for it may discharge one from his 
allegiance to the government he lives under, and re- 
store him to the state of nature ; but it cannot make 
one that lives under a government judge and party." 1 

J 12 Mod. Rep., 687. See, generally, Roscoe Pound in Harvard Law Rev., 
vol. xxi. p. 390 et seq. 

[ 307 ] 


Since then, we meet now and then with a vague 
statement of the older view, especially in relation to 
international law, 1 but it is safe to say that the whole 
attitude of the courts had changed. What had before 
been customary and accepted as we believe has been 
sufficiently shown at length above now becomes un- 
usual and no longer representative of the generally 
accepted theory. Blackstone was no doubt expressing 
current belief when he said: "Where some collateral 
matter arises out of the general words, and happens to 
be unreasonable; there the judges are in decency to 
conclude that this consequence was not foreseen by the 
parliament, and therefore they are at liberty to expound 
the statute by equity, and only quoad hoc disregard it. 
Thus if an act of parliament gives a man power to try 
all causes, that arise within his manor of Dale; yet, if 
a cause should arise in which he himself is a party, the 
act is construed not to extend to that, because it would 
be unreasonable that any man should determine his own 
quarrel. But, if we could conceive it possible for the 
parliament to enact, that he should try as well his own 
causes as those of other persons, there is no court that 
has power to defeat the intent of the legislature, when 
couched in such evident and express words, as leave 
no doubt whether it was the intent of the legislature 
or no." 2 

I shall simply ask the reader to look back at the 

1 See Note A at the end of this chapter (p. 329). 

2 Commentaries, vol. i. p. 91. 

[ 308 ] 


cases that have been given, in proof of the statement 
that the courts in the sixteenth and seventeenth cen- 
turies did not agree in theory and did not carry out in 
practice the doctrine contained in the last of these sen- 
tences of Blackstone. His studies had made him fa- 
miliar with the cases denying Parliament's omnipotence 
and the reasoning therein contained. He repeats these 
in what Sir Frederick Pollock aptly calls the "orna- 
mental part" of his introduction, but he repeats them 
as a lesson he has learned. It was no part of his scheme, 
and his later statements concerning Parliament con- 
tradicted it utterly. The fact is, he misunderstood the 
meaning of these older statements. He interpreted 
them in the light of a theory which would have been 
repudiated if it had been known to the men who origi- 
nally gave these decisions and made these statements, 
and thus he gave them a different meaning. 

It is true, about Blackstone's time there was one 
last whisper of the old theory brought out by the stress 
of colonial government, but it soon died away, 1 and 
the doctrine of the legislative supremacy of Parliament 
has since been practically unquestioned in English 
courts of law. In America James Otis had used the old 
argument against writs of assistance "No Acts of Par- 
liament can establish such a writ; . . . An act against 
the constitution is void." 2 And there it was destined 

1 Lord Camden and Pitt on the repeal of the Stamp Act, Part. Hist., vol. xvi. 
pp. 168, 169, 171, 179, 195. Compare the " Declaratory Act " of the same year 
and the statements of Lord Chancellor Northington and others. 

2 John Adams's Works, vol. ii., appendix, p. 525. 

[ 309 ] 


to continue and influence the course of government 
and the decisions of courts for generations ; but in Eng- 
land, the life had gone out of the theory, and parlia- 
mentary omnipotence occupied the whole field. 1 

It may be important to point out in a little more 
detail one phase of the decline of the doctrine that 
courts may declare an act of Parliament void. I mean 
the upholding by the courts in the time of James II of 
the King's dispensing power. It is unnecessary here to 
go generally into the history of the dispensing power 
or cases illustrating it. 2 It will be enough to try to show 
its relation to the general attitude of the judges toward 
the statutes. It is pretty well established that a dis- 
pensing power of somewhat indefinite boundaries was 
acknowledged up to the Revolution to belong to the 
King. It arose partly from the sacredness of the King's 
prerogatives and partly from the prevailing view of the 
authority of statutes. The distinction we have noticed 

1 See, generally, Dicey, Law of the Constitution ; Lowell, The Government of Eng- 
land, vol. ii. chs. Ixi., Ixii. ; Hatschek, Englisches Staatsrecht, vol. i. pp. 137, 138 ; 
Juridical Society Papers, vol. iii. p. 305 et seq. ; Dwarris, On the Statutes 
(1848), part ii. ch. xi. p. 694 et seq. 

2 See on that subject, Broom, Const. Law, 2d ed., p. 492 et seq. ; Anson, Law 
and Custom of the Constitution, vol. i. (4th ed.), p. 326 et seq. ; Maitland, Con- 
stitutional History of England, pp. 302-6; Hearn, Government of England, 1st 
ed., pp. 46-9; Brinton Coxe, Legislative Power, pp. 165-71; Hallam, Const. 
Hist., ch. xiv. ; Thomas v. Sorrell, Vaughan'sRep., p. 330; Godden v. Hales, 11 
St. 3V., 1 165 ; and several important pamphlets discussing the dispensing power 
appended by the editor to the report of Hales's Case in 11 St. Tr., 1200 et seq. 
Several of these are by Sir Robert Atkyns, and were also published in a vol- 
ume entitled, Parliamentary and Political Tracts, written by Sir Robert At- 
kins (2d ed., 1741). See also W. Petyt, Jus Parliamentarium ; Finch's Law 
(1627), pp. 234, 235 ; The Birth and Parentage, Rise and Fall of Non Obstante, 
Luders 1 Tracts (1810), Tract V. 

[ 310] 


the judges making between "law" and statute is here 
important. This is seen in the distinction between mala 
in se and mala prohibit a. This distinction Coke consid- 
ers the same as that between "law" and statute. 1 So the 
King might dispense with a statute forbidding mala 
prohibita. Such things were illegal merely because made 
so by the statute, and having nothing better to support 
them, the King might except individual cases out of 
the statute; bat his power did not extend to the com- 
mon law, nor to acts declaratory of the common law. 
This dispensing by the King is very similar to the 
practice of the judges already noticed, when, on ac- 
count of some injustice or hardship, they "excepted out 
of the Statute" some particular case. 2 In the case of 
a "law," generally speaking, the judges could not de- 
clare it void, nor could the King dispense with it; but 
in the case of a statute, cases of hardship or injustice 
might be "excepted out of it" by the judges, and in- 
dividuals might, in like manner, be excepted from its 
operation by the King, as their offence was merely 
malum prohibitum. Clearly, these exceptions were in 
both cases due, in great part, to the lower estimation 
in which statutes were held as compared with the prin- 
ciples of the common law. They were also partly due 
to the fact, noted above, that in the absence of a clear 

J On this point see 4 Inst., 63; 12 Rep., 76, and 11 St. Tr., 1253, 1285, 1286, 
where Coke's explanation of these terms is disputed. For Blackstone's view 
see Commentaries, vol. i. pp. 54, 57. Vaughan refused to accept Coke's defini- 
tion ; see Thomas v. Sorrell. 

2 Ante, pp. 263, 302; 2 Inst., 23, 25; Plowden, pp. 204, 205; Dwarris, On the 
Statutes, vol. ii. p. 622 et seq. (1848). 

[311 1 


definition of legislation, that power was by no means 
the exclusive possession of the Parliament. The dis- 
pensing power, like the issuing of proclamations, was 
a part of those undefined rights which the King ex- 
ercised by himself or through his Council. In the case 
of the dispensing power, this was apparently recognized 
by the judges as legitimate, provided it did not extend 
to the principles of the "law," which, according to the 
orthodox theory, neither the King, nor the Parliament, 
nor themselves, could alter in any material matter. 

It is interesting to note how the power of the ju- 
diciary, which, in the beginning of the long consti- 
tutional struggle under the Stuarts, had been pitted 
against prerogative and had at first been looked upon 
by the parliamentarians as an aid, is now invoked by 
prerogative as a protection against legislative aggres- 
sion. Here, as usual, we see the conservatism of the law. 
Through the changes of the civil war it had remained 
practically unaltered, while the nation had moved rap- 
idly. It was invoked by Coke against James I because 
James's pretensions were an innovation; it was em- 
ployed by James II against the novel doctrine of legis- 
lative supremacy. 1 

1 It is no less interesting to find in 1688 many of the arguments against the 
dispensing power still based on Parliament's old "judicial" supremacy. Sir 
Robert Atkyns said, "The King and both Houses were of opinion, that they 
could make a Non Obstante in such case void. The judges are of a contrary 
opinion, that a Non Obstante shall make void the statute. Here is an inferior 
court over-ruling and controuling the judgment of a superior court." 11 St. Tr., 
1232. This is also the basis of Petyt's whole argument in his Jus Parliamenta- 
rium, a book which was written in opposition to the theory that judges could 
uphold the King's power of dispensing with a statute. 

[ 312 ] 


The great subject of Prerogative is not within the 
scope of this essay, which is taken up with the nature 
of Parliament's supremacy rather than with its extent. 
Incidentally, however, this has entailed a brief consid- 
eration of such a branch of prerogative as the dispens- 
ing power. One other branch is connected with our 
subject almost as closely as the dispensing power; 
namely, the question of ordinances and royal procla- 
mations, their nature and enforcement. 

It is clear that by Edward Ill's time some distinction 
existed between statutes and ordinances. The former 
were more permanent than the latter, and more diffi- 
cult to change. Attempts have frequently been made 
to distinguish them with much greater definiteness than 
this. It has been said that an act of the King and Coun- 
cil without the Commons was an ordinance, while all 
three must agree on a "statute;" that enactments of 
new law were statutes, declarations of the old law only 
ordinances ; that all enactments placed on the Statute 
Roll were statutes, all others mere ordinances, etc. The 
effort has also been made to push the distinction be- 
tween the two kinds of enactment back beyond the 
reign of Edward I. Apparently, these attempts have 
been unsuccessful, signally so for the earlier period. 
For example, the great assizes of Henry II antedate 
the Statute Roll ; they appear in many cases to be noth- 
ing more than directions to the King's judges. We have 
seen how they might be set aside by the judges, and 
this is not surprising in a time when laws were not made 

[ 313] 


but declared. Nevertheless, if these were not "statutes," 
no statutes then existed. Filmer long ago pointed out 
that even Magna Charta and the Charter of Forests 
had only the form of letters patent, and also many 
enactments hardly less important. 1 Maitland shows 
that if the consent of the Commons were requisite, it is 
doubtful whether "those two pillars of real property 
law," Quia Emptores and De Donis Conditionalibus, 
may be included among the statutes. 2 

Prynne in almost all his constitutional works denies 
the difference between ordinance and statute, though 
Coke as strenuously asserts it. The modern view is much 
in favour of Prynne rather than Coke. Gneist, for ex- 
ample, says, "Under the system of personal govern- 
ment, single decisions, temporary administrative mea- 
sures, and permanent ordinances were all confused to- 
gether. Frequently petitions that had been granted lay 
inoperative for years before the enactments affecting 
the same were carried out or published. As a rule, at the 
close of the parliamentary sittings, the council sorted 
the confused mass of resolutions, and provided for their 
being duly carried out. It was specially the business 
of the justices to select such enactments as, being of 
a permanent nature, should be entered upon the 'roll 
of the statutes' for the cognizance of the courts." 3 

l Patriarcha, ch. iii. sec. 16. 

2 Const. Hist, of England, p. 187. 

3 Const. Hist. (Eng. trans.), vol. ii. p. 23; see also ibid., pp. 24, 25; Stubbs, 
C. H., vol. ii. p. 426 et seq. ; Maitland, C. H., pp. 186-8. On the general sub- 
ject, see, in addition, Gneist, C. H., vol. ii. p. 149, note; Pike, Const. Hist, oj 



"Legislation," such as we could say existed in those 
times, did not belong exclusively to Parliament, even 
after the Council had separated from it. The King had 
formerly considered himself the real source of all "leg- 
islative" power, and a certain, or, as Maitland says, an 
uncertain, part of this power was still recognized as his. 
So late as 1390 the Commons petitioned that the Chan- 
cellor and Council would not, after Parliament ended, 
make an ordinance contrary to the common law, or to 
statutes already in existence or to be enacted by that 
Parliament. They could get no better answer than that 
what had been done before should continue, saving the 
King's prerogative. 1 

The conciseness and generality of the statutes that 
we meet with on the earlier rolls we shall find to be 
due to the fact that they were to be interpreted by 
judges able at need to amplify and correct them; and 
even in circumstances of hardship, or injustice, to ex- 
cept cases out of them. But the common law judges 
were not the only ones able to do this. The King and 
his Council were also sharers in these powers. By the 
dispensing power they could "except cases out of the 

the House of Lords ; pp. 321, 322; Amos's edition of Fortescue's De Laudibus, 
pp. 59-61 ; Clifford, History of Private Bill Legislation, vol. i. p. 332; Hargrave 
and Butler's Notes to Coke on Littleton, p. 159 B, note 292; 2 Inst., 643, 644; 
4 Inst., 25; Ruff head's preface to his edition of the statutes, vol. i. p. xiii; 
Maitland, C. H., pp. 256-8, 302 ; Harrington, Observations on the Statutes, 2d ed., 
p. 36; Anson, Law and Custom of the Constitution, vol. i. (4th ed.) pp. 243-9; 
Hale, Jurisdiction of the Lords House, p. 32 ; Parry, Parliaments and Councils 
of England, p. 124 and note; Hatschek, Englisches Staatsrecht, vol. i. p. 114; 
Prynne, Observations on Coke's Fourth Institute, p. 13. 
*Rot. ParL, vol. Hi. p. 266; Stubbs, Const. Hist., vol. ii. p. 618. 

[315 ] 


statute" as well as the judges. So, by the power of 
making ordinances, the King could supplement the 
law. This latter power we naturally think of as "legis- 
lative" or as "administrative," and far from "judicial." 
But it is necessary to remember that the common law 
judges claimed a share in it in Bagg's Case, noted above, 
and it is not without significance that even Locke does 
not separate judicial administration from the rest. Thus 
it is that the older statutes leave so much to be done 
by interpretation which really includes dispensation, 
be it the dispensation of judge or Council and by 

For the Tudor period at least, then, there is justifi- 
cation for saying that "legislation" was still vaguely con- 
sidered as the act of the King. It is true, many things 
could be done only with consent of Parliament. This 
had been true for centuries of most forms of taxation. 
But, after all, the residuum of legislative power was 
still felt in a general way to be in the King. Even 
in questions of taxation this was the case, and where 
the King's right of taxing without Parliament could 
not be shown by precedent or enactment to have been 
taken away from him, the judges of the seventeenth 
century usually decided that the right was still in the 
King. Loud as were the complaints of the parliamen- 
tary lawyers, it is not so clear that James I was act- 
ing beyond his rights in Bate's Case, or that his son 
was violating the fundamental law in collecting ton- 
nage and poundage without a parliamentary grant. It 

[316 ] 


is assuming too much to say that the judges who up- 
held such actions were in all cases the mere tools of 
the King. 1 The sharp distinction now made between 
the King in Council and the King in Parliament was 
then not so sharp. Parliament was not exclusively leg- 
islative, nor was its legislation exclusive. It did much 
business that was judicial, and many of its "acts" which 
we style "legislative" were still conceived of as done 
under the precept ad consentiendum rather than ad 
faciendum. 2 On the other hand, much "legislative" 
business never got into Parliament at all. The exten- 
sive use of these royal proclamations is an indica- 
tion of it, as well as the great executive and legislative 
powers exercised by the Privy Council under Henry 
and Elizabeth. 3 

These facts and the indefiniteness of "jurisdiction" 
out of which they arise suggest a comparison between 
the "secondary legislation" up to the seventeenth cen- 
tury and that of the period subsequent. There is no 
modern constitutional state but must have a power 

1 On Bate's Case see Gardiner, History of England, vol ii. pp. 1-1 1 ; Hall, 
Custom-Revenue in England, vol. i. p. 145 et seq. For the question of ton- 
nage and poundage, see especially, Gardiner, op. cit., vol. vi. p. 322 et seq. 

2 See Note B at the end of this chapter (p. 330). 

3 Speaking of the Tudor proclamations, and the legal characterizations of them 
as quoad terrorem populi only, Dicey says the Tudors themselves looked upon 
them otherwise: "Their constant aim was to give proclamations the force of 
laws, and thus to render the King's Council a legislative body. Had that en- 
deavour succeeded, the Council would have occupied the position of a French 
Parliament ; a body to which, both in origin and history, it bore a close resem- 
blance." Privy Council, p. 92. He gives instances of the proclamations on p. 93. 
See also on this subject, Hallam, Const. Hint., ch. v. 

[317 ] 


lodged somewhere, which can meet emergencies not 
foreseen or covered by the existing law, and one that 
is not hindered by the delay of the courts or by the 
necessity of waiting for the assembling of the legisla- 
ture. As Bishop Stubbs says, "The executive power in 
the state must have certain powers to act in cases for 
which legislation has not provided, and modern legis- 
lation has not got beyond the expedient of investing 
the executive with authority to meet such critical oc- 
casions. The crown is able on several matters to legis- 
late by orders in council at the present day, but by 
a deputed not a prerogative power; but there are con- 
ceivable occasions on which, during an interval of par- 
liament, the ministers of the crown might be called 
upon to act provisionally with such authority as would 
require an act of indemnity to justify it." 1 

The Continental countries have met this need by a 
vesting of legislative power in the hands of adminis- 
trative officials. In England this has hitherto not been 
adopted except in a very small way. The outcry over 
the "forty days' tyranny" in 1766, when Chatham by 
an Order in Council laid an embargo on grain, showed 
the feeling of Parliament on such matters. 2 The present 
agitation in the United States over "Government by 
Commission" is due in part to a similar feeling. 3 

And yet in the England of the sixteenth, and part 

1 Const. Hist., vol. ii. p. 619. 

2 Parl. Hist., vol. xvi. p. 245 et seq. ; Annual Register for 1767, pp. 45-8. 

3 See Note C at the end of this chapter (p. 331). 

[ 318 J 


of the seventeenth century, powers were exercised with- 
out statutory warrant, which extended even further 
than those exercised to-day on the Continent under the 
protection of the droit administratif. The proclamations 
of Henry VIII, of Elizabeth, of James I, and Charles ; 
the enforcement of these by the Council and the Court 
of Star Chamber, to say nothing of the activity of those 
"courts" in matters non-" judicial," all these point to 
a "legislative" activity outside the "legislature," which 
we, the heirs of the Long and the Revolution Parlia- 
ments, can hardly understand. Though inEngland there 
is no separation des pouvoirs, as on the Continent, the 
judicial power has been separated from the rest of ad- 
ministration. On the Continent, curiously enough, the 
very theory of separation has prevented this, to a cer- 
tain extent. For example, in France the Conseil dEtat 
has had to take on judicial functions in addition to ad- 
ministrative, because as an executive body its acts must 
not, according to the theory of the separation of powers, 
be reviewable by the judiciary. So in a roundabout way 
they have returned to conditions somewhat resembling 
those in England when the proclamations of the Coun- 
cil were enforced by the Council itself or by the Star 
Chamber. In Tudor England, however, these conditions 
were due to no separation of Powers, but to & fusion 
of powers. To-day, "Government by Commission" is 
resisted because it is an encroachment upon the judi- 
ciary, as well as upon the legislature, for we divide ju- 
dicial administration from the rest of administration, 



and all administration from legislation. The contest be- 
tween Council and common law courts in the time of 
Coke, we are too ready to think, must, therefore, have 
been a struggle of the "judiciary" against the "execu- 
tive," an attempt to prevent "executive aggression." 
The contest should be looked at rather as a competition 
for "jurisdiction." 

But, notwithstanding this great difference, due to 
the indefmiteness of governmental powers in the earlier 
time, the Council of the Tudors and a French Conseil 
d'Etat have many common characteristics, and the 
Council has usually attracted the attention of Conti- 
nental observers. 1 

It is necessary now to look back over these instances 
where the King's judges excepted cases out of statutes 
as against reason, law, or the prerogative; or where 
others of the King's officials did the like under the dis- 
pensing power, or made and enforced proclamations 
without statutory warrant. Some explanation of this 
free and familiar treatment thus accorded to statutes 
is necessary if we are to have any clear understanding 
of these great constitutional questions. Such an expla- 
nation, to be in any sense adequate, can, I believe, be 
reached only through a consideration of the relations 
formerly subsisting between the ordinary courts and the 
High Court of Parliament ; of the activity of the judges 

J See, generally, Gneist, Englische Verwaltungsrecht, vol. i. sees. 11, 12, 44; 
Jellinek, Gesetz und Verordnung, p. 20 et seq. ; Hatschek, Englisches Staats- 
recht, vol. ii. p. 102. See also Note D at the end of this chapter (p. 334). 

F 320 1 


of the ordinary courts in parliamentary business; of the 
uncertainty of the line that divided what we call the 
"judicial "part of the business from "legislation;" and, 
finally, of the character of the "acts" in which that 
"legislation" was embodied. 

The peculiarly commanding position of the courts 
in countries whose institutions are English must not be 
considered an accident On the Continent, where repre- 
sentative legislative assemblies are, to a greater extent 
than in England, a modern and a conscious creation, 
the courts of law have a lower place. It has been the 
peculiar fortune of England that her mediaeval High 
Court of Parliament survived the disintegration of 
feudal ranks, to have infused into it the new vigour of 
nationality. Thus it retained in unbroken continuity 
its ancient powers and functions, which were large and 
indefinite. Without losing them it became also in time 
the mouthpiece of the nation, and the supreme law- 
making body. On the Continent, for the most part, 
the feudal assemblies went down with the wreck of 
feudalism, or became so feeble or occasional, for one 
reason or another, that their feudal traditions were 
well-nigh lost. There the connexion between the tra- 
ditions of the feudal council and the modern legisla- 
ture was broken. The latter did not acquire strength 
till the former had disappeared. In England, on the 
contrary, the feudal Curia broadened out into the 
modern Parliament, without break of continuity, by 
a process so imperceptible and natural that we can 

[321 ] 


point specifically to but few of the changes that trans- 
formed it. 

It inherited from feudal times the general and un- 
defined powers which we have seen to be a leading 
characteristic of feudal assemblies. But the very indefi- 
niteness of those powers made it impossible for the High 
Court completely to monopolize them ; they were shared 
by the Council and the other law courts, which, in fact, 
had a common ancestry with the High Court itself. 
Thus, these separate bodies, each having an unbroken 
history from the time when it separated from the Curia, 
the common parent of all, had "jurisdictions" that 
were by no means mutually exclusive, but were in 
many things concurrent. It was not until this sharing 
of "jurisdiction" had turned into competition, and 
competition into an antagonism which resulted in the 
ultimate supremacy of the High Court and the sub- 
jection of its competitors, that foreigners began to 
be actively interested in English institutions. There- 
fore, when the shock of the French Revolution had 
cleared the way for a conscious reconstruction on the 
Continent, it was to the English constitution that 
men turned, but it was to the English constitution as 
seen by a Montesquieu, the post-revolutionary consti- 
tution. 1 So Montesquieu had written, "There is no lib- 
erty, if the judiciary power be not separated from the 
legislative and executive. Were it joined with the leg- 

1 Esmein, fiUments de Droit Constitutionnel (5th ed., 1909), p. 399. See, on 
the separation of powers generally, ibid., pp. 392-475. 


islative, the life and liberty of the subject would be 
exposed to arbitrary control ; for the judge would be 
then the legislator. Were it joined to the executive 
power, the judge might behave with violence and op- 
pression." Again he says, "The national judges are no 
more than the mouth that pronounces the words of 
the law, mere passive beings, incapable of moderating 
either its force or rigour." 1 Thus we find the "separa- 
tion des pou voirs " which occupies so important a place 
in Continental constitutions. There, the legislature is 
non-judicial and its acts are external to the courts, 
which tend to be, even more than in modern England, 
"mere passive beings." Even where a written constitu- 
tion has been adopted, in many cases the power has 
not been given to the courts to decide whether legis- 
lative acts conform to its provisions or not. 

In the United States, on the other hand, where, not- 
withstanding a thoroughgoing separation of powers, 
the earlier spirit of English judicial institutions has 
been least influenced by the doctrine of legislative sov- 
ereignty, we find a much larger measure of that old 
indefinite "jurisdiction" still remaining in the courts of 
law. In England before the civil wars, it has been shown 
that this indefiniteness was greater still. To it we must 
ascribe in greatest measure that activity of the courts 
which to-day would be considered an unwarranted in- 
terference with the "law-making body." 

That activity was evidenced in many ways. We have 

1 Spirit of Laws, bk. xi. ch. vi. 


noticed to what an extent the judges of the King's 
ordinary courts shared in the work of Parliament that 
may be classed as judicial; how they were always among 
the triers of petitions, and how they were summoned 
to the King's Council in his Parliaments. We have also 
noticed how difficult cases were referred to this court; 
and how indefinite was the line between an "award" 
in which the judges must often have had practically 
the deciding power, and an "act." 

In the case of a "legislative act" itself, from almost 
the first, their influence was very great. For even of 
such "acts" as we may imagine being made without 
their participation, we know that for a long period the 
wording, and, in fact, everything but the main princi- 
ple, was the work of the judges exclusively. The barons, 
it may be, decided upon the main lines, but the whole 
reduction of these bare principles to the form and na- 
ture of a "statute" was the work of the judges, often 
after the barons had dispersed. This meant not merely 
the penning of the statutes: it extended to the form, 
and probably, to some extent, to the subject matter it- 
self. 1 The brevity of the statutes when completed shows 
how much these judges who framed them were inten- 
tionally leaving to be interpreted by themselves or their 
colleagues in the light of the individual circumstances 
through which the statutes would be brought before 
them in the courts. This brevity is in strong contrast 
with the minute provisions by which the average 

1 May, Parl. Practice, 9th ed., p. 519. 

[ 324 ] 


modern legislature seeks to render impossible any free- 
dom of interpretation by the judicial branch of the 

There is nothing strange, then, in the fact that these 
same judgeswho drewthe statutes practised and handed 
on to their successors a free-and-easy way of interpret- 
ing their own work. 1 Why should a judge have any 
great awe of a statute which perhaps he himself, or, at 
most, his predecessors in office, had helped to make; of 
which possibly the whole form and expression had been 
the work of himself and his colleagues of the Bench ? 
So, when counsel in a case in 1305 argued for a certain 
construction of the Statute of Westminster Second 
of 1285, he was cut short by the Chief Justice with 
the remark: "Z)o not gloss the Statute; we understand 
it better than you do, for we made itf" 2 

The relations of ordinary court and High Court of 
Parliament were undeniably very close. We cannot, 
we should not, think that judges kept their "judicial" 
and their "legislative" and their "administrative" busi- 
ness totally separate and distinct from one another. On 
the contrary, we find a judge in 1338 in a case argued 

1 " In the last place we may consider how much hath been attributed to the 
opinions of the king's judges by parliaments, and so find that the king's coun- 
cil hath guided and ruled the judges, and the judges guided the parliament." 
Filmer, Patriarchy ch. iii. sec. xviii. 

2 Y. B. 33-35 E. I. (Rolls Series), pp. 82, 83; Pollock, First Book of Juris- 
prudence, pp.330, 331. In 1341, in a case where the interpretation of the Stat- 
ute De Donis was in dispute, Sharshulle mentioned a previous case probably 
the one above where Herle said that the strongest argument for one side of 
the case was the construction given by Hengham, "who drew the Statute." 
F. B. 15 E. 111. (Rolls Series), pp. 392, 393. 

[ 325 1 


before him judicially insisting that certain words of 
a franchise under litigation had been inserted by the 
Council, and must, therefore, have one particular mean- 
ing. 1 We have numerous cases of the judges consulting 
Parliament when they were uncertain of the meaning 
of an act, not formally in the way of appeal, but merely 
for advice on the construction of the statute ; and this 
was sometimes the same Parliament that actually made 
the statute : sometimes it was one totally different. 2 The 
persons in Parliament who, in these cases, gave the de- 
sired advice, there can be little doubt, were for a long 
time the ones who had actually drawn the statute, 
namely, the judges. There seems, in short, to have been 
an informal give and take between the judges in and 
out of Parliament. Parliament was not "external " to 
the courts below it. The case of the Stauntons, referred 
to above from the Year Book of Edward III, is inex- 
plicable under any other supposition. 3 

We cannot, under such conditions, imagine the judges 
treating statutes with the deference due to the solemn 
formal act of an external and sovereign legislative as- 
sembly. We should be surprised to find anything but 
the free, informal handling of statutes which we do 
find, and this is still easier to understand when we keep 
in mind the vagueness of the line between acts and 
awards. Sir Frederick Pollock says: "In the Middle 

1 Y. B. 12 and 13 E. 111. (Rolls Series), pp. 14-17. 

2 See Petyt, Jus. Part., ch. ii. ; 2 St. TV., 675, 676; ante, p. 115 et seq. 

3 Ante, p. 113, note. 

[ 326 ] 


Ages legislation was not the primary business of Par- 
liament, and the rule that the king cannot legislate 
without Parliament was established only by degrees. 
Early statutes, therefore, are of a mixed character, con- 
taining both legislative and administrative provisions. 
We can hardly separate the declaration of new law from 
the enforcement of old, the establishment of novel 
remedies for novel mischiefs or newly detected short- 
comings from the king's executive instructions to his 
officers. The King in his Council is alike ready to make 
fresh rules, to provide fresh machinery for the better 
working of existing rules, and to dispense justice in 
extraordinary cases. Law-making is not yet regarded 
as a distinct branch of sovereign power, external to 
the judicial authority, requiring strict and literal 
obedience, but entitled to nothing more. ... In later 
times the judges have treated Acts of Parliament as 
proceeding from a wholly external and unjudicial 
authority." 1 

It is in this, then, that we are to look for the ex- 
planation of those decisions which have caused such 
embarrassment to modern constitutional lawyers. It is 
not enough to dismiss them as "captious" or "petu- 
lant;" they are too numerous and important for that. 
We want an explanation of them rather than a criti- 
cism. The explanation here offered is to be found in 
these characteristics of the mediaeval Parliaments and 
courts below which we have been describing; and the 

1 First Book of Jurisprudence, pp. 329-31. 



continued existence of these traditions among lawyers 
and judges long after the change had set in which was 
to transform the ancient Court of Parliament into the 
sovereign legislative body we know to-day. 1 

1 See T. C. Anstey, On Blackstone's Theory of the Omnipotence of Parliament, 
Juridical Society Papers, vol. iii. p. 305 et seq., especially p. 323. 

[ 328 ] 



(Page 308) 

THE most interesting case on this subject is probably Regina v. Keyn, 
L. R. 2 Ex. Div., p. 63 et seq. The principle really at issue in that 
case does not directly affect parliamentary sovereignty, but some of 
the comments upon it do. The validity of the three-mile rule in in- 
ternational law and the discussion as to its acceptance as a part of 
the law of England have in reality little to do with the question of 
Parliament's omnipotence. The issue in Regina v. Keyn was merely 
whether this three-mile rule had been incorporated in the law of 
England or not. It is difficult to see how this involved Parliament 
much more directly than a similar discussion regarding any part of 
the customary law not mentioned in any act. In 1876, when the case 
was decided, no court would have recognized the validity of a rule 
of international law in flat violation of an act of Parliament. It seems 
rather unnecessary to say, as Sir J. F. Stephen does in commenting 
on this case, " The English courts no doubt administer in such cases 
what they conceive to be the principles accepted by all nations, but 
they do so because they are part of the law of England, and if Par- 
liament were to pass an act expressly and avowedly opposed to the 
law of nations, the English courts would administer it in preference 
to the law of nations, whatever that may be." (History of the Crimi- 
nal Latv, vol. ii. p. 36.) No one will question the truth of this, but it 
is not to the point. The question whether international law is a part 
of the law of England is a very interesting one, but it affects the the- 
ory of parliamentary omnipotence only in the same general way that 
the whole question of the basis of "judge-made" law affects it. It has 
little more to do with the omnipotence of Parliament than the ques- 
tion whether the Law Merchant or even the rule of primogeniture 
is a part of the law of England. They are all illustrations of the in- 
definite powers still exercised by the courts of England, powers 
which, according to the Austinian theory, may be reconciled with 
the supremacy of the " definite superior" through the dictum that 
what the sovereign permits, he prescribes. (Austin, Lecture xxxvin.) 

The words of Lord Mansfield in Heathfield\. Chilton(4> Burrow, 201 6), 
"the act of parliament of 7 Ann. c. 12. did not intend to alter, nor 
can alter the law of nations," if taken with the context and with 

[ 329 ] 


the statute itself, are not directly or indirectly a denial of the validity 
of the statute, and cannot be compared with the utterances of the 
sixteenth and seventeenth century judges. See also his opinion in the 
case of Triquet v. Bath, 3 Burrow, 1480, 1481. In general, also, see 
Stephen, History of the Criminal Law of England, vol. ii. p. 29 et seq.; 
Roscoe Pound in Harvard Law Rev., vol. xxi. p. 394 et seq. 


(Page 317) 

THIS feature of Parliament's activity is well brought out in Raleigh's 
dialogue on the Prerogative of Parliaments in England. The Justice 
and the Councillor are discussing impositions, and the Justice asks, 
"Now, my lord, What prejudice hath his Majesty, his Revenue being 
kept up, if the Impositions, that were laid by the Advice of a few, 
be in Parliament laid by the general Council of the Kingdom, which 
takes off all Grudging and Complaint? Couns. Yea, Sir; but that, 
which is done by the King, with the Advice of his private or Privy- 
council, is done by the King's absolute Power. Just. And by whose 
Power is it done in Parliament, but by the King's absolute Power? 
Mistake it not, my Lord ; The three Estates do but advise, as the prime 
Council doth ; which Advice, if the King embrace it, becomes the 
King's own Act in the one, and the King's Law in the other; for with- 
out the King's Acceptation, both the publick and private Advices 
are but as empty Egg-shells." (Harleian Miscellany (edition of 1745), 
vol. v. p. 206.) 

Somewhat the same idea was expressed later by Hobbes : " Neither 
a Counsellor (nor a Councell of State, if we consider it with no Au- 
thority of Judicature or Command, but only of giving Advice to 
the Soveraign when it is required, or of offering it when it is not 
required, [)] is a Publique Person. For the Advice is addressed to 
the Soveraign only, whose person cannot in his own presence, be re- 
presented to him by, another. But a Body of Counsellors, are never 
without some other Authority, either of Judicature, or of immediate 
Administration: As in a Monarchy, they represent the Monarch, in 
delivering his Commands to the Publique Ministers : In a Democracy, 
the Councell, or Senate propounds the Result of their deliberations 
to the people, as a Councell; but when they appoint Judges, or heare 

[ 330 ] 


Causes, or give Audience to Ambassadors, it is in the quality of a 
Minister of the People: And in an Aristocracy the Councell of State 
is the Soveraign Assembly it self; and gives counsell to none but 
themselves." Leviathan, part ii. ch. xxiii. See also ibid., ch. xxv. 

As we go back from the Tudor times this can be seen in the Pro- 
nunciationes Parliamenti, made at the opening of new Parliaments, 
usually by the Chancellor. It was then as now the custom to open 
Parliament by an address or sermon in which the purposes of the 
calling of the Parliament were impressed on the members. As may 
be seen from the examples below, much stress was put on business 
that we call judicial ; and what is not judicial is consultative, advisory 
rather than legislative. It is business natural to the King's old ad- 
visory council : only by looking toward the future can we properly 
call it legislative. For example, at the opening of the Parliament in 
1 5 Henry VI, the Chancellor, the Bishop of Bath and Wells, declared 
the three objects of the Parliament to be: (1) The Justice and Peace 
of the King's subjects, (2) a ready sale for English commodities, (3) 
Protection of the realm and seas against enemies and rebels. (Rot. 
Parly vol. iv. p. 495.) In 2 Henry IV Sir William Thyrning, chief jus- 
tice of the King's Bench, by the King's command opened Parlia- 
ment with the declaration that they were called in order that the 
Church and other persons and corporations should enjoy their liber- 
ties, that all good laws should be executed and justice truly admin- 
istered, and that nothing should be done in derogation of the com- 
mon law. (Rot. ParL, vol. iii. p. 454.) Such examples might be added 
almost indefinitely. See Elsynge, ch. vi. 


(Page 318) 

THE feeling in the United States against "Government by Commis- 
sion" extends not merely to commissioners appointed without statu- 
tory warrant, but also to those based upon an act of Congress. This in- 
volves the constitutional question as to the ability of Congress to dele- 
gate its legislative power, a subject recently much discussed. In the 
Parliaments of the Norman period this question could hardly arise. 
Even so late as the reign of Edward I, we have found the Council 
making laws after the rest of the Parliament had gone home. This, 

[ 331 1 


however, was no delegation of power, for theoretically the Council 
seems to have been the Parliament. In 1337, however, it was enacted 
by statute that wool was not to be exported until the King and Coun- 
cil provided otherwise. (S. R., vol. i. p. 280; Stubbs, C. H., vol. ii. 
p. 619, note 2.) In 1385 Parliament ordained that a staple should be 
held in England, but the place, time, and manner, it was said, " ordi- 
nabitur postmodum, per Consilium Domini Regis, auctoritate Parlia- 
menti. Et quod id quod per dictum Consilium in hac parte fuerit or- 
dinatum,virtutem Parliamenti habeat pariter et vigorem."(.Ro. ParL, 
vol. iii. p. 204, quoted by Stubbs, C. //., vol. ii. p. 619, note 2.) In these 
cases, it ought to be borne in mind that we are not able to say with 
absolute certainty that the consilium was considered a different body 
from Parliament; and if it was not, of course there was no delega- 
tion. But it is generally admitted that by 1 385, at least, the Council 
was separate from Parliament. 

In the twenty-first year of Richard II, a statute was passed nam- 
ing commissioners who were empowered to hear and determine peti- 
tions "come leur meulx semblera par lour bone advys et discrecion." 
(21 Rich. II., cap. xvi.) 

The wrongful acts of the commission so created were the ground 
for the repeal of all the acts of Parliament of 21 Richard II, after 
the deposition of the King (1 Henry IV., cap. 3); and in the Articles 
drawn up against Richard, one of the charges against him is that he 
"subtlely procured and caused to be granted" the provision for the 
appointment of the commission "et hoc de voluntate Regis: in dero- 
gationem Status Parliamenti, et in magnum incomodum totius Regni, 
et perniciosum exemplum. And that they might seem to have some 
colour and authority for such their doings, the King caused the 
Parliament Rolls to be altered and blotted at his pleasure, against 
the effect of the said grant." Rot. ParL, 1 Henry IV. (1399), No. 25 
(vol. iii. p. 418); Parliamentary History, vol. i. p. 257. See also Rot. 
ParL, vol. iii. p. 426, No. 70. In his will Richard bequeathed the 
royal treasure to his successor only on the condition that the statutes 
of the twenty-first year of his reign were observed and also the ordi- 
nances of the commission. This is complained of in the charges against 
him, as a defence of "statutes and ordinances which are erroneous and 
unjust,and repugnant to all law and reason." (ParL Hist.,vol. i. p. 263.) 

[ 332 ] 



In the heat of the struggle with Rome, the Parliament, in 1533, 
in the long preamble of the act concerning Peter's Pence and Dis- 
pensations, declared that all laws of religion observed in England up 
to that time had existed only by sufferance of the King and people, 
the truth or falsity of which is of no importance here. Then they 
continue: "It standeth therefore with natural Equity and good 
Reason, that in all and every such Laws human made within this 
Realm, or induced into this Realm by the said Sufferance, Consents 
and Custom, your Royal Majesty, and your Lords Spiritual and Tem- 
poral, and Commons, representing the whole State of your Realm, 
in this your most high Court of Parliament, have full Power and 
Authority, not only to dispense, but also to authorize some elect Person 
or Persons to dispense with those, and all other human Laws of this 
your Realm, and with every one of them, as the Quality of the Per- 
sons and Matter shall require." (25 Henry VIII., cap. 21.) 

Six years later Parliament passed the celebrated Statute of Pro- 
clamations (31 Henry VIII., cap. 8, 1539), which Maitland calls "the 
most extraordinary act in the Statute Book." (C. H., p. 253.) This 
statute enabled the King with advice of his Council to issue Procla- 
mations "under such Penalties and Pains as to him and them shall 
seem necessary, which shall be observed as though they were made 
by Act of Parliament." It is declared that this is not to prejudice 
any Person's "Inheritance, Offices, Liberties, Goods, Chattels, or 
Life;" but anyone willingly disobeying " shall pay such Forfeitures, 
or be so long imprisoned, as shall be expressed in the said Proclama- 
tions," and anyone leaving the realm to escape such punishment is 
to be adjudged a traitor. In the Parliament of 1542-3 it was enacted 
that nine of the King's Council might give judgement against viola- 
tors of these proclamations (34-35 Henry VIII., cap. 23). The Statute 
of Proclamations, Stubbs says, "is one of the most curious pheno- 
mena of our constitutional life: for it employs the legislative machin- 
ery which by centuries of careful and cautious policy the parliament 
had perfected in its own hands, to authorize a proceeding which was 
a virtual resignation of the essential character of parliament as a 
legislative body ; the legislative power won for the parliament from 
the king was used to authorize the king to legislate without a par- 
liament." (Const. Hist., vol. ii. pp. 619, 620.) 

[ 333 ] 


The act, with its supplement, was repealed in the first year of 
Edward VI. (1 Edward VI., cap. 12, sec. v.) The view of the matter 
held by the lawyers is contained in the well-known resolution of the 
judges as given in Cokes Reports, vol. xii. pp. 74-6. 

Sir William Anson sums up these resolutions in convenient form. 
(Law and Custom of the Constitution, vol. i. p. 323.) In briefest wise 
these resolutions declare that the King may not by proclamation 
create an offence where none existed by the law before, and that he 
has no prerogative but what the law of the land allows him. " But 
the King for the prevention of offences may by proclamation ad- 
monish his subjects that they keep the laws, and do not offend them ; 
upon punishment to be inflicted by law." It will be noticed that these 
resolutions say nothing directly upon the question of the delegation 
of legislative power, neither do they pronounce upon the validity 
or extent of the jurisdiction of the Court of Star Chamber beyond 
saying that an offence not punishable there could not be made so by 
the King's proclamation. 

Notwithstanding these resolutions, the King's proclamations went 
on without interruption and were given force by the Star Chamber. 
This continued until that tribunal was abolished by the Long Parlia- 
ment, and it was no doubt a main cause of the abolition. 

After the establishment of parliamentary sovereignty in England, 
it is needless to say, this question of delegated authority practically 
disappears. The legality of proclamations does not cease to be a burn- 
ing question, but its importance is henceforth confined to Proclama- 
tions based on prerogative alone. In the United States, however, 
this is a living constitutional issue. For some remarks of Prynne on 
this subject, provoked by the ordinances under the Commonwealth, 
see his Good Old Fundamental Liberties, vol. i. pp. 92,93 ; Brief Register, 
vol. iv. pp. 602-5. For a modern account of the whole subject gen- 
erally, see Anson, Law and Custom of the Constitution, vol. i. pp. 321-5. 


(Page 320) 

THE similarity of conditions in Tudor England and on the Continent 
to-day under the Droit Administratif has never been more clearly 
stated than by Professor Dicey in the following extract from the sev- 

[ 334 ] 


enth edition of his Law of the Constitution: " From the accession of the 
Tudors till the final expulsion of the Stuarts the Crown and its servants 
maintained and put into practice, with more or less success and with 
varying degrees of popular approval, views of government essentially 
similar to the theories which under different forms have been accepted 
by the French people. The personal failings of the Stuarts and the 
confusion caused by the combination of a religious with a political 
movement have tended to mask the true character of the legal and 
constitutional issues raised by the political contests of the seventeenth 
century. A lawyer, who regards the matter from an exclusively legal 
point of view, is tempted to assert that the real subject in dispute 
between statesmen such as Bacon and Wentworth on the one hand, 
and Coke or Eliot on the other, was whether a strong administration 
of the continental type should, or should not, be permanently estab- 
lished in England. Bacon and men like him no doubt underrated the 
risk that an increase in the power of the Crown should lead to the 
establishment of despotism. But advocates of the prerogative did not 
(it may be supposed) intend to sacrifice the liberties or invade the 
ordinary private rights of citizens ; they were struck with the evils 
flowing from the conservative legalism of Coke, and with the neces- 
sity for enabling the Crown as head of the nation to cope with the 
selfishness of powerful individuals and classes. They wished, in short, 
to give the government the sort of rights conferred on a foreign 
executive by the principles of administrative law. . . . 

"The doctrine, propounded under various metaphors by Bacon, 
that the prerogative was something beyond and above the ordinary 
law is like the foreign doctrine that in matters of high policy (acte 
degouvernemenfythe administration has a discretionary authority which 
cannot be controlled by any Court. The celebrated dictum that the 
judges, though they be ' lions/ yet should be 'lions under the throne, 
being circumspect that they do not check or oppose any points of 
sovereignty,' is a curious anticipation of the maxim formulated by 
French revolutionary statesmanship that the judges are under no 
circumstances to disturb the action of the administration, and would, 
if logically worked out, have led to the exemption of every adminis- 
trative act, or, to use English terms, of every act alleged to be done in 
virtue of the prerogative, from judicial cognizance." (Law of the Con- 
stitution, pp. 365,366 (7th ed., 1908) ; see also Privy Council, pp. 92, 93.) 

[ 835 ] 


The Political History 
of Parliamentary Supremacy 

THE England of the Tudors was an "organic state" 
to a degree unknown before Tudor times, and for- 
gotten almost immediately afterward. Professor Seeley 
says: "In our system 'republic' or 'commonwealth' 
are terms very suitable to describe what we have called 
the organic state. An organic state . . . springs up by 
the effort of the social organism to resist a hateful pres- 
sure, that is, by a striving towards the common good 
or commonweal. Opposed to this are all states which 
we have called inorganic, because they rest upon the 
violent effort of some group or section to coerce the 
community for its own advantage." 1 

In this sense Tudor England was an "organic state," 
taking "organic" here to indicate that the various parts 
of the state are in such relation the one to the other 
that no "group or section" or individual is raised above 
and beyond the state, imposing laws upon it from with- 
out, but not subject to those laws. It could not be better 
stated than in the phrase of Henry VIII himself quoted 
below, a "body politic, knit together," in which all 
members, both ruler and ruled, are working in harmony 
for the interests of the commonwealth. It is unneces- 
sary to our purpose to go further into the question of 

1 Introduction to Political Science, p. 183. 

[ 336 ] 


what "organic" really implies, or to discuss the validity 
of Seeley's general theory on that point. 

That the theory briefly described above was the view 
concerning the nature of the State in general accept- 
ance in Tudor England by both King and people, would 
not be difficult to show. Feudalism had given way to 
nationality, and of the "commonwealth" that resulted 
the King was a real component part. Account for it 
as we may : by the decay of feudalism, by the disap- 
pearance of so many of the old nobility in the previous 
civil wars, by the influence of the Reformation or of 
the New Learning, by the increase and wider diffusion 
of wealth ; the fact remains that the King was recog- 
nized by the people as the proper centre of the state, 
but that they also regarded King and people as depen- 
dent on each other, both parts of the one whole the 
' ' commonwealth. " 

This feeling was expressed by a writer of the time of 
Henry VIII, when he said, "A kyng is annoynted, to 
be a defence vnto the people, that thei be not oppressyd 
nor oueryocked; but by all godly and polytick meanys 
to seke the comon welth of hys people." 1 

Staunford defined Prerogative as " apriuiledge or pre- 
heminence that any person hath before an other, which 
as it is tollerable in some, so is it most to be permitted 
& allowed in a prince or soueraigne gouernor of a realme. 
For besides that, that he is the most excellent & worthi- 
est part or member of the body of the commonwealth, 

1 Complaynt of Roderyk Mors (Early English Text Society), p. 10. 

[ 337 ] 


so is he also (through his good gouernance) the pre- 
seruer, nourisher, and defender of al the people being 
the rest of the same body. And by his great trauels, 
study and labors, they inioy not only their Hues, lands 
& goodes but al that euer theyhaue besids,in rest, peace, 
and quietnes." 1 

And Hooker said : " In Kingdoms therefore of this 
quality the highest governor hath indeed universal do- 
minion, but with dependency upon that whole entire 
body, over the several parts whereof he hath dominion ; 
so that it standeth for an axiom in this case, The king 
is major singulis, universis minor." 2 

This view was not confined to the people, for 
Henry VIII himself declared to Parliament in Ferrer's 
Case, "We at no time stand so high in our estate royal 
as in the time of parliament ; when we as head and you 
as members, are conjoined and knit together into one 
body politic." 3 

In the body politic thus "knit together," the nobility 
occupied a relatively unimportant place. Things were 
changed since the time when the barons could compel 
a king to dismiss a hated minister and be ruled by a 
committee of themselves. This decline in the fortunes 
of the nobility Sir Walter Raleigh graphically presents 
in the words of the Justice in his dialogue on the Pre- 
rogative of Parliaments : "Your Lordship may remem- 

1 An Exposition of the Kinges Praerogatiue, fol. 5 (1st edition, 1567). 

2 Book viii, What the power of dominion is. 

Hist., vol. i. p. 555. 

[ 338 ] 


her," he says to the Counsellor of State, " in your Read- 
ing, that there were many Earls could bring into the 
Field a thousand barbed Horses, and many a Baron 
five or six hundred barbed Horses; whereas, now, very 
few of them can furnish twenty fit to serve the King. 
. . . The Force, therefore, by which our Kings in former 
Times were troubled, is vanished away: But the Ne- 
cessities remain. The People, therefore, in these latter 
Ages, are no less to be pleased than the Peers; for, as 
the latter are become less, so, by reason of the Training 
through England, the Commons have all the Weapons 
in their Hands. . . . 

"My good Lord, the Wisdom of our own Age is the 
Foolishness of another: the Time present ought not 
to be preferred to the Policy that was, but the Policy 
that was, to the Time present. So that, the Power of 
the nobility being now withered, and the Power of the 
People in the Flower, the Care to content them should 
not be neglected, the Way to win them often practised, 
or, at least, to defend them from Oppression." 1 

This was shrewd advice, and it well describes the 
general course adopted by the Tudor sovereigns. Of the 
reign of Elizabeth, Harrington, in his Art of Law Giv- 
ing, wrote : " The growth of the people of England since 
the ruines mentioned of the Nobility and the Clergy, 
came in the Reign of Queen Elizabeth to more then 
stood with the interest, or indeed the nature or possi- 
bility of well-founded or durable Monarchy; as was 

iHarleian Mtsc., vol. v. pp. 192, 193 (edition of 1745). 

[ 339 ] 


prudently perceived, but withall temporized, by her 
Council, who (if the truth of her Government be rightly 
weighed) seem rather to have put her upon the exer- 
cise of Principality in a Commonwealth, then of sov- 
eraign power in a Monarchy. Certain it is, that she 
courted not her Nobility, nor gave her mind, as Mon- 
archs seated upon the like order, to Balance her great 
men, or reflect upon their power now inconsiderable ; 
but ruled wholly (with an art she had unto high per- 
fection) by humoring and blessing the people." 1 "The 
Tudormonarchy was essentially a national monarchy." 2 
This did not escape the keen and practical eye of 
Raleigh. He makes his Justice in the Dialogue say, " If 
it be a Maxim in Policy to please the People in all 
Things indifferent, and never suffer them to be beaten, 
but for the King's Benefit (for there are no Blows for- 
gotten with the Smart, but those) then I say, to make 
them Vassals to Vassals, is but to batter down those 

1 Pages 17, 18. Also in Harrington's Works (1737), p. 390. 

2 Prothero, Documents, Introduction, p. xviii. Professor Burgess sums this up as 
follows : " By the middle of the fifteenth century the actual power of the state 
had passed from the aristocracy to the people. It remained now for the people 
to organize themselves and seize the sovereignty. . . . The people were not 
yet far enough advanced in the development of their political consciousness 
to create an entirely independent organization. An existing institution must 
furnish them the nucleus. They were deeply conscious of their hostility to the 
aristocracy. There remained, then, only the King. He, too, was hostile to 
the aristocracy. Through their common enemy, the King and the people were 
referred to each other. In the organization which followed, called in political 
history the absolute monarchy of the Tudors, the people were, in reality, the 
sovereign, the state, but, apparently, the King was the state. England under 
the Tudors was a democratic political society under monarchic government." 
Political Science and Comparative Constitutional Laic, vol. i. p. 93. 

[ 340 ] 


mastering Buildings, erected by King Henry the Sev- 
enth, and fortified by his Son, by which the People and 
Gentry of England were brought to depend upon the 
King alone. Yea, my good Lord, our late dear Sover- 
eign kept them up, and to their Advantage, as well 
repaired as ever Prince did. Defend me, and spend me, 
saith the Irish Churl." 1 Such a system as this is based 
on mutual concession. At first, when the people were 
less conscious of their power, the King could go further 
in the appearance of absolutism. Later, when "the na- 
tion had outgrown the tutelary stage/' 2 greater caution 
was necessary. 

If ever there should appear a king devoid of such 
caution, and the Stuarts were such kings, or if a 
spirit of opposition should arise in the people or in the 
body now representing them, this "body politic" must 
be split. People and King, or better, possibly, the people 
through the King, were exercising vast and indefinite 
powers. There was no questioning of the legality of this 
so long as neither party was dissatisfied. Let either, 
however, press too far his rights against the other, and 
there must follow a struggle for supremacy. The Tudor 
system could not be permanent. It was based on the 
common antagonism of King and people toward the 
nobility ; upon the incompleteness of the development 
of political self-consciousness among the people and 
the consequent retarded development of their repre- 

iHarleian Misc., vol. v. pp. 207, 208. 

2 Prothero, Documents, Introduction, p. xxix. 



sentative organ; and, lastly, upon the wisdom, adroit- 
ness, and consequent popularity of the Prince himself. 
These were temporary causes. The first two were grad- 
ually losing their force. The loss was made up under 
Elizabeth by greater adroitness and greater concessions. 
The catastrophe was brought on by the absence of these 
in the time of her successors. The final result was prob- 
ably inevitable; it might, however, have been post- 
poned and made more gradual, and the deplorable ac- 
companiments might have been avoided, by a continu- 
ance of the caution so characteristic of the Tudors. In 
justice to the Stuart kings it must be said, however, that 
people and King had been exercising jointly powers 
which could never be suddenly assumed in severalty 
by either without a struggle to the death. In so far, the 
constitutional struggle of the seventeenth century was 
inevitable. The English constitution under the Tudors 
was not unlike an unstable chemical compound. Any 
violent concussion was likely to break it up into its 
elements. 1 

Raleigh, in the dialogue above mentioned, clearly 
sees these conditions and is prophetic of their proba- 
ble results: "If," says the Justice, "the House press the 
King to grant unto them all that is theirs by the Law, 
they cannot, in Justice, refuse the King all that is his 
by the Law. And where will be the Issue of such a 

1 " The distribution of the functions of government is made necessary by the 
growth of the community in magnitude and complexity. It is not an effect of 
the advance of popular principles, and it would take place none the less if 
there were no advance of popular principles." Seeley, Political Science, p. 300. 

r 342 1 


Contention? I dare not divine, but sure I am, that it 
will tend to the Prejudice both of the King and Sub- 
ject." 1 He clearly saw how dangerous Tudor prece- 
dents would be in a divided state. Where law and 
precedent can be properly and honestly cited by two 
powerful and uncompromising antagonists, the strug- 
gle between them cannot by any possibility be kept 
within constitutional bounds a revolution is inevita- 
ble. The men of the Tudor period had had in mind 
a commonwealth of which the King was a member. 
"King in Council" had not yet been arrayed against 
"King in Parliament." They had not anticipated "the 
case of a divergence between the elements of which 
Parliament was composed." 2 But that divergence at 
length came, and the very closeness of the tie between 
King and people under the Tudors served to make the 
rent between them the wider under the Stuarts. Under 
the latter kings, as Sir William Anson says, "Both 
parties appealed to the letter of old statutes, and 
neither seemed to see that with the change of times, 
and after the long lapse of political interest under the 
Tudors, the mediaeval constitution needed to be re- 
stated, or even recast." 3 

It is necessary to look briefly at the causes of this 
great divergence and of the revolution of the seven- 
teenth century which substituted for the "organic" 

*Harleian Misc., vol. v. p. 208 (edition of 1745). 

2 Prothero, op. cit., Introduction, p. cxxiv. 

*Law and Custom of the Constitution, vol. i. (4th ed.), p. 35. 

[ 343 ] 


state of the Tudors new conditions and a new theory 
of government. 

One of the most potent of those causes was, doubt- 
less, the breach with Rome. We have already noticed 
the meaning of the words "supreme" and "supremacy" 
before the Reformation. The idea was dimly felt when 
the claims of the Emperor had to be met, but the Em- 
peror's claims were never a very practical danger in 
England. With the breach with Rome, however, and 
the rival claims that followed, "supremacy" gained a 
more vivid meaning. A consideration of the oaths re- 
quired of Englishmen from the Act of Supremacy of 
Elizabeth's first year until the eighteenth century will 
reveal the great influence of the idea of the King's 
independence of any foreign ruler upon the whole 
question of the King's position in the state. 1 A strength- 
ening of the King's supremacy over foreign potentates, 
however, could not but carry with it the heightening 
of his dignity and power at home, and a widening of 
the distance between him and his subjects. And so it 
actually happened. 

Opposition to the papal power had, up to the six- 
teenth century, centred mainly in the head of the 
state. First it was the claims of the Emperor, as set 
forth, for example, by Ockham and Lewis of Bavaria. 
As national monarchies developed, new claims were 
asserted against papal supremacy. But, as in the case 

1 See Prynne, The Soveraigne Power of Parliaments and Kingdoms, vol. i. 
pp. 104, 105 ; Bacon on Government, pt. ii. p. 162. 


nf HIP 


of the Empire, the)'' were always asserted in favour of 
the personal head of the state, the monarch. It was 
natural, under such circumstances, that a school of 
writers should eventually spring up to defend the papal 
supremacy by a denial of the monarchical theory, and 
we find that this was the case, both on the Continent 
and in England. 1 The memory of Elizabeth's excom- 
munication, of the Armada, and of the Gunpowder 
Plot; the fear excited by the wonderful recuperation 
of the Catholic Church with its attendant dangers for 
England, joined with this attack on the theory of mon- 
archy in the interest of the Papacy, all these things 
contributed to heighten the pretensions of the King, 
not only in his own mind, but in the minds of his sub- 
jects as well. A Divine Right of Kings arose against the 
Divine Right of the Pope. We may not go so far in 
agreement with Mr. Figgis as to say : " That complete 
sovereignty is to be found in some person or body of 
persons in the State is a necessity of effective anti-papal 
argument," 2 or: "A doctrine of sovereignty vested by 
Divine Right in the King was the indispensable hand- 
maid of a national Reformation;" 3 but it is hard to 
escape his conclusions when he says: "It is to the con- 
ception of a single supreme authority in the State, that 
men are inevitably driven in seeking to formulate an 
anti-papal theory." 4 "If phrases slip in which grant to 

1 Figgis, From Gerson to Grotlus, Lecture V. 

2 Divine Right of Kings, p. 91. 

3 Ibid., p. 92. 
*Ibid., p. 90. 



kings an unconditioned omnipotence, which few of 
them ever dreamed of exercising, that is rather because 
no one as yet is concerned to deny them, than because 
they are construed strictly or regarded as of much im- 
portance." 1 "Thus it is obedience, rather than a theory 
of government, that writers in the sixteenth century 
insist upon." 2 "Obedience must be absolute and immu- 
table, or the Pope will find it possible to make good 
some part of his claim. This can only be if the power 
of the Crown be regarded as God's appointment and 
non-resistance as a Divine ordinance." 3 "English con- 
troversialists, in answering the theory of the Papal su- 
premacy, were driven to propound a doctrine of the 
Divine Right of secular governments, which is in its 
essential meaning no other than the Imperialist theory 
of two centuries and a half before." 4 

Inevitable as this process may have been, it had, and 
could not fail to have, the result of breaking up that 
"body politic" in which the King and his subjects 
were "knit together." It was impossible to raise the 
King's pretensions against the Pope without also raising 
them against the people. Here is where it becomes 
harder to follow the lead of Mr. Figgis. With the con- 
tract theory in mind, he says : "The believers in Divine 
Right teach that the State is a living organism and 
has a characteristic habit of growth, which must be 

1 Divine Right of Kings, p. 92. 
2 Ibid., p. 93. 

3 Ibid., p. 95. 

4 Ibid., p. 105. 

[ 346 ] 


investigated and observed. Their opponents believe the 
State to be a mechanical contrivance, which may be 
taken to pieces and manufactured afresh by every 
Abbe Sieyes who arises." 1 

It may be that most anti-royalists seized on Locke's 
contract theory as a weapon against the King, but royal- 
ists also used that weapon, of whom Hobbes is the best 
known. This did undoubtedly augment and strengthen 
a tendency toward a mechanical, artificial conception 
of the state. But that tendency was already in exist- 
ence, and with all its defects it may, nevertheless, be 
traced in great part back to a source no other than 
Divine Right itself. It may have been inevitable, it 
certainly is easily explicable, that competition with 
Rome should raise the King to a height never claimed 
before; how can it be denied that it also raised him 
farther above and away from his subjects than he had 
ever been before ? By it the King was erected above 
his subjects and beyond his laws. The "organic" com- 
monwealth of Sir Thomas Smith or Harrison becomes 
a thing forever past. The King is no longer an inte- 
gral part of his state; James I could never say, as 
Henry VIII had done, that he and his subjects were 
knit together in one body politic. Instead, he says: 
** Kings are justly called Gods, for they exercise a man- 
ner of resemblance of Diuine power upon earth : For 
if you wil consider the Attributes to God, you shall see 
how they agree in the person of a King. God hath power 

1 Divine Right of Kings, p. 259. See also pp. 249-51. 

[347 ] 


to create, or destroy, make, or vnmake at his pleasure, 
to giue life, or send death, to judge all, and to bee 
judged nor accomptable to none: to raise low things, 
and to make high things low at his pleasure, and to 
God are both soule and body due. And the like power 
haue Kings: they make and vnmake their subjects: 
they haue power of raising, and casting downe : of life, 
and of death : Judges ouer all their subjects, and in all 
causes, and yet accomptable to none but God onely. 
They haue power to exalt low things, and abase high 
things, and make of their subjects like men at the 
Chesse: A pawne to take a Bishop or a Knight, and 
to cry vp, or downe any of their subjects, as they do 
their money. And to the King is due both the affection 
of the soule, and the seruice of the body of his sub- 
jects: . . . For to Emperors, or Kings that are Mon- 
arches, their Subjects bodies & goods are due for their 
defence and maintenance." 1 This does not impress one 
as a very "natural" or a very admirable theory of 
government. Even when stripped of the absurdities 
of James's foolish and bombastic rhetoric, the theory 
here laid down is plain absolutism. And James was not 
alone in holding it ; witness Filmer and the devotees of 
passive resistance. Fortunately, there were steadying 
hands. Bacon, though tainted with obsequiousness, was 
a statesman. Devotion to prerogative with him meant 
no preposterous claim such as these, and the same may 

1 A. Speach to the Lords and Commons of the Parliament at White-Hall, March 
21, 1609, Works of James 1., p. 529; see also Works, pp. 537, 557, for similar 



be said of Strafford and Clarendon after him. It is hard 
to be enthusiastic over such a theory as that of James 
when compared with the solidarity of a "body politic" 
such as Tudor England. Henry VIII, with all his op- 
pression and cruelty, never went so far as to violate 
that feeling that he and his people were joined as mem- 
bers in one commonwealth, and even his most atrocious 
acts he was careful to clothe in the form of law. James, 
on the contrary, notwithstanding the great unifying 
force of a common national fear of foreign attack, and 
the rallying of the nation to protect its religion from 
destruction, and though by nature far more humane 
than Henry VIII, placed himself almost at the outset 
of his reign directly against those conservative feelings 
of Englishmen which were held in their most extreme 
form by the common lawyers. Thus it was that the 
great contest started. As Divine Right had arisen in 
protest against papal theories and claims, now the su- 
premacy of the law was invoked, in turn, against Divine 
Right. The state which fundamental law presented 
was one with balanced powers, or rather of undefined, 
but never unlimited, powers. Thus the opponents of Di- 
vine Right fell back upon conservatism, as was natural. 
We have already noticed the reliance put by them 
upon the fundamental law. That law, however, had been 
affected by the influences of the Tudor regime. Powers 
had then been conceded to the King as a member of 
the "body politic" which could not safely be left in 
the hands of a king who believed he could " cry up or 

[ 349 ] 


downe" his subjects "like men at the Chesse." The 
opponents of the prerogative were therefore in time 
forced by the exigencies of the struggle to go far be- 
yond the conservatism of the lawyers. The conservatives 
on both sides, to use the contemptuous but penetrat- 
ing words of Hobbes, " dreamt of a mixed power. . . . 
That it was a divided power, in which there could be 
no peace, was above their understanding," 1 whereas, 
as he himself pointed out truly enough, this implied 
"two powers, which, when they chance to differ, cannot 
both be obeyed." 2 The whole trouble was that at the 
time when the powers had been conceded, when the 
precedents had been created, no such division or dif- 
ference existed or was anticipated. Thus it was that 
parliamentarians, in opposing the Divine Right of 
Kings, found but blunted weapons in the precedents 
of the law, and perforce had to oppose to that nov- 
elty another theory, more novel still, the theory of 
the Divine Right of Legislatures, Parliamentary Om- 
nipotence. Different as these two theories are, they 
are alike in finding no precedent in the common law. 
Legislative sovereignty, by either King or Assembly, is 
not warranted by the earlier precedents. The changes 
by which the principle was finally grafted upon the 
English constitution are rightly called "The Revolu- 

And yet both parties were alike under the necessity 

1 Behemoth: English Works (edited by MolesTVorth), vol. vi. p. 319. 
*lbid., p. 246. 

[ 350 ] 


of justifying their position by an appeal to precedent, 
and the precedents to which both appealed were often 
identical, the result of the growth of two divergent 
interpretations of the same facts and institutions. 
These varying interpretations, arising out of the more 
or less unconscious and usually ingenuous acceptance 
by both parties of the new principle of legislative sover- 
eignty, led one party to ascribe a limitless power to the 
King, the other, to Parliament; while both relied for 
precedents upon a King and a Parliament neither of 
whose powers had ever been, nor had ever before been 
thought to be, without limit. They were now setting 
up in opposition to each other the claims of a Parlia- 
ment and of a King, which before had been left in- 
definite, because their powers had been exercised in 
common and without collision. It is little wonder that 
when thus wrenched out of their environment and 
thrust into the turmoil of 1641, these peaceful prece- 
dents should furnish apparently legitimate grounds for 
constitutional views as diverse as those of Pym and 
of Strafford. On these precedents, interpreted in the 
new light of legislative sovereignty, at least a plau- 
sible constitutional argument can be made for both 
an omnipotent Parliament and a King of unlimited 

In thus describing the Tudor period and compar- 
ing its political theory with that of later times to the 
disparagement of the latter, it will be understood 
that I am referring to theory only. The England of 

[351 ] 


Henry VIII or Elizabeth was no Elysium, nor was that 
of the Stuarts so bad as it is often represented. Further- 
more, when the beauties of the Tudor commonwealth 
are here mentioned, it must not be assumed that these 
conditions could necessarily be reproduced to-day, or 
that they would be an improvement if they were. As 
a theory of government, the Tudor "body politic" was 
a finer and truer ideal of government than the divided 
state of the Stuarts and their successors. This is all that 
is meant. 

It is a problem of some interest and importance to 
try to discover as nearly as possible the exact time when 
the new theory of parliamentary sovereignty was first 
acted on practically. That time may be designated with 
as much particularity as is usually possible in such 
matters. Probably no better date could be given than 
May 27, 1642, when the Lords and Commons drew up 
their declaration in answer to the King's proclamation 
forbidding his subjects to obey the Parliament's order 
for mustering the militia. This remarkable declaration, 
an extract from which is given at the end of this chap- 
ter, 1 well illustrates many of the points I have been 
trying to make. In it we see an illustration of the fusion 
of powers in the only precedents Parliament could cite. 
Because, they argued, the King's judges could not be 
coerced or restrained in their duties, therefore the Lords 
and Commoners in Parliament, the King's Highest 
Court, had power not only to adjudge and determine 

i See Note A (p. 389). 

[ 352 ] 


individual cases against the King's grants, but to do 
anything necessary for the peace and safety of the king- 
dom, though the King in person should oppose. Here 
is parliamentary sovereignty in the making. The un- 
controlled exercise of such new powers as we see dis- 
played in this great declaration, when once assumed, 
could never again be wholly lost. And so, after the an- 
archy of the Interregnum was over, we find Parliament 
on a firmer basis than ever before. It is true, that as the 
Revolution draws near, there is a temporary disturb- 
ance, but if we survey the period following 1660 and 
compare the regularity of the Parliaments with the long 
and uncertain intervals that occurred in the sessions 
up to 1640, the force of Seeley's dictum becomes mani- 
fest, when he says, "At the Restoration, as I under- 
stand the matter, and not at the Revolution, the Eng- 
lish monarchy and the system of government took the 
form which they retained throughout the eighteenth 
century." 1 From the Restoration, "the permanent Par- 
liament takes its place . . . among English institu- 
tions, and with a certain interval in the closing years of 
Charles II and in the reign of James II, an exceptional, 
revolutionary period, we have had it ever since." 2 "The 
great idea of that generation," the generation of the 
Civil Wars and the Commonwealth, "which is to be 
clearly distinguished from the dreams, idle or prema- 
ture, in which it occasionally indulged, was to give Par- 

1 Political Science, p. 253. 
2 /Md., p. 258. 

[ 353 ] 


liament permanence and solidity." 1 This permanence 
also had its effect upon the ordinary administration of 
the law in the courts. It should not be forgotten that it 
was the Long Parliament of the Restoration that gave 
the death-blow to the Oath Ex Officio, and it was its 
successor that passed the Habeas Corpus Act. There 
were periods of startling exception, but it may be said 
generally that the courts were fast acquiring that ex- 
clusively judicial cast which marks them to-day to such 
an extent that we can with difficulty imagine anything 
different. The temptation to use the courts for social 
or political objects was, as Professor Lowell points out, 
greatly lessened by the frequency and regularity of the 
sessions of Parliament. " If a grievance was felt, if a 
change was wanted, if an obstacle blocked the way, the 
result desired could easily be brought about by a stat- 
ute which was immediately enforced by the courts as 
a part of the law of the land. " 2 "Parliament is hence- 
forth really an organ" of the state. 3 The Revolution se- 
cured and established guarantees for the permanance 
of this new order. From that time and up to the pres- 
ent the practice as well as the theory of parliamentary 
sovereignty may be said to have been definitely settled. 
Such being the process by which practical parlia- 
mentary sovereignty arose, let us turn to a brief con- 
sideration of the modern theory. Political theory has 

1 Seeley, op. cit., pp. 258, 259. See the whole interesting passage, pp. 253-9. 

2 Government of England, vol. ii. p. 476. 

3 Seeley, op. tit., p. 257. 



usually grown from actual conditions. The modern Ger- 
man theories of sovereignty, for example, are deeply 
coloured by the peculiarities of German federalism. The 
modern doctrine of parliamentary sovereignty is no ex- 
ception. As held in England, it is a reflection of actual 
conditions, and the conditions antedate the theory. As 
a theoretical explanation of those conditions, it is of the 
utmost importance. When, however, it is set up as a 
principle of universal validity and application, or when 
the assumption is made that its permanence is abso- 
lutely assured in the British Empire at least, it is well 
to recall its recent origin, the circumstances attending 
its gradual growth, and the present geographical limi- 
tations upon its claims to universality. Sir Frederick 
Pollock truly says, the English doctrine of absolute 
sovereignty is not capable of being usefully applied 
to constitutions of the type of the Constitution of the 
United States. "In fact it is a generalization from the 
* omnipotence ' of the British Parliament, an attribute 
which has been the offspring of our peculiar history, 
and may quite possibly suffer some considerable change 
within times not far distant." 1 

Parliamentary sovereignty is comparatively recent 
in origin; nothing, for example, can be plainer than 
that the idea is contrary to all mediaeval notions. " It 
is very necessary for us to remember," says Professor 
Maitland, "that the men of the thirteenth century . . . 
had not clearly marked off legal as distinct from moral 

1 First Book of Jurisprudence, p. 261. 

[ 355 ] 


and religious duties, had not therefore conceived that 
in every state there must be some man or some body 
of men above all law. . . . No, we have to remember 
that when in the middle of the seventeenth century 
Hobbes put forward a theory of sovereignty which was 
substantially that of Bentham and of Austin, this was 
a new thing, and it shocked mankind. Law had been 
conceived as existing independently of the will of any 
ruler, independently even of the will of God; God him- 
self was obedient to law : the most glorious feat of his 
Omnipotence was to obey law." 1 

Legislative sovereignty, then, can hardly be safely 
pushed back much beyond the Reformation. In fact, 
many of the causes which produced the Reformation 
underlay the doctrine of legislative sovereignty as well. 
But even after the forces were actively at work which 
produced the new conditions, it required considerable 
time for a theory to arise from them. As is usual in 
such cases, the beginnings of the new order were not 
perceived by contemporaries. Sir Thomas Smith has 
been hailed as their discoverer. We have given the 
reasons why we prefer the conclusions of Sir Thomas 
Smith's editor on this point. 2 During and after the civil 
wars, the new theory made rapid progress, 3 and its 
general acceptance to-day can hardly be denied by any- 
one. It must also be admitted that the doctrine as held 

1 Const. Hist., p. 101. See also Gierke, Political Theories of the Middle Age 
(tr. by Maitland), p. 93. 

2 Ante, p. 128 et seq. 

3 Ante, p. 150 et seq. 



in England furnishes a fairly satisfactory explanation 
of the working and also of the accepted theory of the 
English constitution following the Revolution. 1 It could 
hardly be otherwise, for it was in reality a deduction 
from that constitution itself. But herein is its very weak- 
ness. "Theories of sovereignty," Mr. Brown says, "have 
been more often apologies for a cause than the expres- 
sion of a disinterested love for truth." 2 This theory, in- 
deed, became in time much more than a mere "apol- 
ogy for a cause;" it was based upon actual conditions. 
But in erecting it into a universal principle of politics, 
are we not making the mistake to which Mr. Figgis 
objects in the upholders of contract, the mistake of try- 
ing "to transform a temporary instrument in a par- 
ticular struggle into an eternal truth"? 3 May we go so 
far as rightly to say that the doctrine is a permanent 
one even in England ? The theory is a proper generali- 

1 From the strictly legal point of view it is open to the same criticism which 
may be made of the new distinction between legal and practical sovereignty. 
See post, p. 379 et seq. 

Professor Dicey has shown, in what is probably the most brilliant part of his 
Law of the Constitution, how the great and extensive powers which remained 
a part of the King's legal prerogative, even after 1688, have since been gradu- 
ally transferred, by means of the "Conventions of the Constitution," from the 
King to his ministers, and have thus, owing to the fact that the House of Com- 
mons really controls the ministers, become the legal basis for the preponder- 
ance of the Commons over the Lords, a fundamental characteristic of the latter- 
day English constitution. "The prerogatives of the Crown have become the 
privileges of the people. ... If government by Parliament is ever transformed 
into government by the House of Commons, the transformation will, it may 
be conjectured, be effected by use of the prerogatives of the Crown." See The 
Law of the Constitution, 7th ed., p. 461 et seq. 
z The Austinian Theory of Law, p. 272. 
3 Divine Right of Kings, p. 265. 



zation of the governmental conditions in post-revolu- 
tionary England. It bears the marks of the time and 
place of its growth, for it is English, not universal, not 
even British. Growing up at a time when the problem 
of imperial control of "self-governing colonies" was 
unknown, it contained within it no solution for that 

If any doubt exists on that score, the history of the 
events leading up to the American Revolution should 
be enough to answer them. On its theoretical side, that 
conflict was the result of the failure of the constitution 
to meet new conditions. Nothing strikes us more forci- 
bly than the poverty of new political ideas displayed 
in history. On the whole, probably it is better so, but 
there have been bad results as well as good. In America 
a few separate trading factories, with charters suitable 
for the corporate government of mere trading facto- 
ries, charters made, in fact, in imitation of the char- 
ters to the great trading companies, of which the East 
India Company had been the latest, had grown in 
reality to be separate commonwealths of Englishmen 
three thousand miles beyond the sea. Here was a prob- 
lem of government absolutely new. 

The wonderful growth of the English constitution 
has largely been silent, steady, and without sudden 
breaks. This has given it a continuity and a solidity un- 
known in the rest of Europe. Paroxysms are generally 
no better for the body politic than for the natural body. 
But it should not be forgotten that the success of this 

[ 358 ] 



process of "broadening down from precedent to pre- 
cedent" has been due to the other fact that in England 
political conditions, as well as the constitution which 
accompanied them, were changing slowly and very 

When, however, the natural and inevitable instincts 
of nationalism in the Englishmen of North America 
began to be importunate in the eighteenth century, it 
came as a rude shock. These commonwealths beyond 
the sea, it is true, had not grown up overnight. Their 
development also had "broadened down" only a little 
less slowly than England's. But to the English states- 
men of the eighteenth century, with few exceptions, 
this process had been unnoticed or meaningless. 

The well-known stories of ministerial ignorance of 
American geographical conditions have created a no- 
tion of that ignorance probably exaggerated; 1 never- 
theless, the failure of the ministers to grasp the mean- 
ing or understand the spirit of colonial institutions is 
only too well proved. It is not surprising that the true 
conception of the British Empire should be hidden 
from them. There is no gift more rare than the power to 
interpret contemporary events, except, possibly, the 
ability to understand past ones. Parliamentary sov- 
ereignty and ministerial responsibility, for example, 
were both on the ground a long time before they were 
discovered. When even present-day statesmen and 
historians make the mistake of "confounding the his- 

1 See the valuable study of Mr. G. L. Beer, British Colonial Policy, 1754-1765. 



tory of England with the history of Parliament," 1 it 
should hardly occasion surprise that the English bor- 
ough-mongers of the eighteenth century, the actors 
in the "petty struggles" of an oligarchic Parliament, 
should have been oblivious to those "other and vaster 
enterprises" which were moulding the history of the 
British Empire for all future time. On a comprehensive 
consideration of the career of Chatham, even, it seems 
probable that the key of it is to be found in his de- 
termination to check the power of France in the world 
rather than to create a great colonial empire. 

The significance of these facts for us is this : Colo- 
nial development had proceeded in another environ- 
ment and, therefore, along different lines from that 
of the mother country. The forces that were shaping 
that peculiar development in America had little or no 
influence upon the institutions of old England, and 
for long were almost unperceived there. When, there- 
fore, in the course of their development, these colo- 
nial institutions approached maturity and demanded 
recognition, that demand came as a surprise. It was 
unexpected and unprovided for. Englishmen suddenly 
awoke to find on their hands a commonwealth, or, 
rather, a series of commonwealths, to be governed, in- 
stead of a trans-oceanic "plantation" to be farmed. 
They were unprepared. The conditions were strange 
to them and there was no machinery ready. 

Tried statesmen are suspicious of untried machinery, 

, Expansion of England, p. 122 (American ed.). 

[ 360 ] 


and generally rightly so ; but it is no more short-sighted 
to adopt expedients hitherto untried than to assume 
that methods which have been in successful operation 
in one country must, therefore, be equally successful 
under all conditions and under any sky. That is just 
what English statesmen of the eighteenth century did 
in the emergency. Criticism of such methods does not 
necessarily imply the adoption of utility as the sole 
principle of political action. The mistake of these 
English statesmen was not so much in failing to devise 
new remedies, as in totally ignoring colonial precedents 
in their choice of old ones. 

Instances of this may easily be found. The charters 
mentioned above are one. To the end, English states- 
men insisted on interpreting them by the same narrow 
legal rules as would have been applied to three acres 
of ground in the Manor of Dale. Some of the colo- 
nial charters had been granted to trading corporations. 
Under them the company had such power over the 
adventurers who became virtually its employes as such 
companies usually had by charter. These charters to 
trading companies again are probably connected with 
the early charters to municipalities, through the activity 
of guild life. Thus, old institutions were progressively 
adapted to new and strange uses. 

It may be cause for surprise that the Virginia Char- 
ter of 1609 should give to the governing body of a 
trading corporation a body organized primarily for 
gain, be it remembered "full and absolute Power 


and Authority to correct, punish, pardon, govern and 
rule" all English subjects who should "from Time to 
Time adventure themselves in any Voyage thither" or 
ever afterward inhabit there. For this purpose the Com- 
pany had authority in defect of any instructions from 
the Privy Council to make ordinances or constitutions 
"according to the good Discretion of the said Governor 
and Officers respectively, as well in Cases capital and 
criminal, as civil." 1 These were, however, to be "as 
near as conveniently may be" agreeable to the Laws 
and Statutes of England. It certainly seems to us a 
strange proceeding to grant to the directors of a com- 
mercial company such powers as these, which amount 
to the power of life and death over its employes. To 
men of that day it was not strange; it had been done 
in India and elsewhere. Furthermore, there were in 
existence at the time in England municipal corpora- 
tions with powers fully as extensive. As late as 1650 
we find felons beheaded in Halifax by virtue of no 
royal warrant whatever, but merely "by the ancient 
custom and liberty of Halifax, whereof the memory of 
man is not to the contrary." 2 And it is said that powers 
equally great are to be found in some municipal char- 
ters still in existence. 3 

1 Poore, Charters and Constitutions, vol. ii. p. 1901. 

2 Stephen, History of the Criminal Law of England, vol. i. p. 269. For earlier 
instances, see Miss Bateson's Borough Customs (Selden Society), vol. i., espe- 
cially pp. 74, 76, 77. 

3 "Several small villages in Kent have charters by which they might, ap- 
parently, still try people for their lives, but as the county justices and the 

[ 362 ] 


Fortunately, the last of the Virginia charters was 
annulled in 1624, but before that there must have been 
a good deal of irritation in a colony which has been 
described as little better than "a profitable slave-gang 
administered for the benefit of the Company in Eng- 
land." 1 

It is easy to blame the statesmen of the time for con- 
ditions like these. The fault, however, was with the 
machinery more than with the men. The institutions 
which had grown up and around the feudal conditions 
of mediaeval England had been wrenched away from 
their surroundings and applied to colonies planted three 
thousand miles away in a practically uninhabited land. 
It is little wonder that these primitive charters broke 
down under the strain when thus made to do duty as 
constitutions for rapidly growing commonwealths of 
Englishmen at the ends of the earth. Nothing better 
illustrates the paucity of political ideas. It was a fun- 
damental, a fatal confusion of corporation charter and 
instrument of government. 

In like manner, the proprietary charters were in form 
and substance modelled upon English feudal grants of 
an earlier age. And lest anyone should think this a mat- 
ter of form merely, let it be remembered, for example, 
that in the case of the "three lower counties" consti- 

assizes had always concurrent jurisdiction, the power has been forgotten and 
has become, practically, obsolete." Stephen, History of the Criminal Law, 
vol. i. p. 119. 

1 Doyle, English Colonies in America (Virginia, Maryland, and the Carolinas), 
p. 140. 

[ 363 ] 


tuting the modern state of Delaware, the government 
of William Penn rested upon no better legal basis than 
the bare deeds for the soil by which it passed from the 
Duke of York to Penn. This is a recrudescence of feu- 
dalism, to be sure; and a more striking example of the 
confusion of ownership and jurisdiction, of a deed with 
an instrument of government, it would be hard to find. 
As has been said, the charters under which this "trans- 
Atlantic Empire" was governed were interpreted in 
complete disregard of the fact that they were really the 
"constitutions" of extensive commonwealths. Like any 
other corporation charter they could be dissolved in the 
regular way, and a constitution regulating the political 
affairs of thousands abolished for some act ultra vires 
committed by the grantees. Even Lord Holt advised 
that the Charter of Maryland might be practically 
withdrawn without any legal process and without 
cause shown, provided the revenues of the proprietor 
were secured to him. 1 

I am not citing these as examples of oppression pe- 
culiarly colonial. They were not. Exactly the same treat- 
ment was accorded, for example, to the great city of 
London, and it was probably strictly legal. But legal 
or illegal, it was impossible that such things should con- 
tinue. The English Revolution would not have occurred 
if these things had been illegal : and the same is true 
of the American Revolution. The worst feature of things 
like these was their strict legality. Had they been ille- 

1 Chalmers's Colonial Opinions (1858), pp. 65, 66. 



gal, they might have been thrown off without a revo- 
lution. Though not contrary to law, they are examples 
of the dire results that may follow from the employ- 
ment of worn-out and obsolete institutions to meet 
new and unusual conditions. When brought to this new 
test they had collapsed. All this furnishes a remarkable 
parallel to the break-down of the Roman constitution 
under the Republic, caused by the fiction that the local 
laws of a city could be spread thin enough to do duty 
as a constitution for the greater part of the civilized 

In this case great and growing commonwealths in- 
habited by Englishmen and Englishmen, it will be 
shown, who inherited the traditions of the Tudor "body 
politic" were regarded, and in strict law rightly re- 
garded, in the same light as any English municipal cor- 
poration. It certainly is a prime cause of the American 
Revolution that the colonial assemblies in America 
could never rise to a higher legal status than that of the 
select body of some little piddling incorporated village 
in mediaeval England. For it must not be forgotten 
that that revolution was no revolution if the colonists 
were merely seeking redress for illegal wrongs. No such 
claim can safely be made for them. Their contention 
may have been justified in political theory, or in ab- 
stract right, or even upon a proper interpretation of 
the English constitution under the Tudors and earlier ; 
but under the post-revolutionary constitution their 
claims must be ruled out of court. Lord Chancellor 

[365 ] 


Northington's answer in 1766 is based on a sound in- 
terpretation of the existing law: "My lords, I seek for 
the liberty and constitution of this kingdom no farther 
back than the Revolution: there I make my stand. And 
in the reign of King William an act passed avowing 
the power of this legislature over the colonies." 1 

As in 1688 England itself destroyed what might, 
with show of truth, be argued to be the legitimate 
powers of the King, so in 1776 the Americans, by an- 
other Revolution, threw off an authority which was 
unquestionable on its merely legal side. 

It is reasonably clear, then, that, on its theoretical side, 
the American Revolution was primarily a struggle to 
repudiate the legal claims of an imperial Parliament. 
Those claims, as the Lord Chancellor so clearly brought 
out, arose from the legally accepted theory of parlia- 
mentary sovereignty. Strict adhesion to that theory in 
its first really great test had led to the division of the 
British Empire; it had "rent asunder the English race." 

No large changes in the law followed the loss of the 
American colonies, but a great difference in the ad- 
ministration of it. Thus have grown up the great self- 

1 Parl. Hist., vol. xvi. p. 171. "The provisions in the Bill of Rights, also," says 
Professor Lowell, "and the famous clause in Magna Charta [concerning "taxa- 
tion"), were not intended to restrain in any way the legislative power of Par- 
liament. These great bulwarks of English liberty as they were quite properly 
called, were very effective in shielding the people against attacks on the part 
of the king. . . . But they have put no check upon legislation. To so great an 
extent is this true, that private property in England is, on the whole, less se- 
cure from attack on the part of the government to-day than it was at the time 
of the Stuarts." Essays on Government, pp. 81, 82. 

f 266 1 


governing colonies. But what an anomalous condition 
has resulted ! Great empires of Britons in all quarters 
of the globe theoretically subject to the commands of 
an English assembly which dares not coerce them. 
Who believes that Parliament would dare exercise 
the power that is legally hers? Only by her forbearance 
is the tenuous bond retained between her and her 
great and powerful self-governing colonies. These re- 
lations must be altered or they will be severed. From 
the point of view of mere law, the relation of Great 
Britain and her own colonists beyond the seas is almost 
as far from settlement to-day as it was in 1775. For, in 
fact, notwithstanding many changes in detail, the fun- 
damental relations of Imperial Parliament and subor- 
dinate colonial legislature are the same to-day as they 
were in the eighteenth century. Forbearance to exer- 
cise legally existing powers is now the only cement 
that holds the empire together. 1 Such forbearance, it 
is true, can now be exercised as was impossible in the 
eighteenth century, under the vicious economic doc- 
trines then universally held ; but a federal empire com- 
posed of powerful states cannot long be held together 
by mere forbearance. It is unreasonable to expect 
fair weather all the time, and such a federation is 
likely to be shattered by the first severe storm. 

Maitland significantly says : " Some friendly critics 

^'The legislative supremacy of Parliament over the whole of the British 
dominions is complete and undoubted in law, though for constitutional or prac- 
tical reasons, Parliament abstains from exercising that supreme legislative 
power." Sir H. Jenkyns, British Rule and Jurisdiction beyond the Seas, p. 10. 

[367 ] 


would say that in the past we could afford to accept 
speciously logical but brittle theories because we knew 
that they would never be subjected to serious strains. 
Some would warn us that in the future the less we say 
about a supralegal, suprajural plenitude of power con- 
centrated in a single point at Westminster concen- 
trated in one single organ of an increasingly complex 
commonwealth the better for that commonwealth 
may be the days that are coming." 1 Again, in another 
place, he says: "Standing at the beginning of a century 
and in the first year of Edward VII, thinking of the 
wide lands which call him king, thinking of our com- 
plex and loosely-knit British Commonwealth, we can- 
not look into the future without serious misgivings. 
If unity of law such unity as there has been dis- 
appears, much else that we treasure will disappear also, 
and (to speak frankly) unity of law is precarious. The 
power of the parliament of the United Kingdom to 
legislate for the colonies is fast receding into the ghostly 
company of legal fictions." 2 

1 Maitland, Introduction to Gierke's Political Theories of the Middle Age, p. xliii. 

2 English Law and the Renaissance, p. 33. In another place he says : "The mod- 
ern and raulticellular British State often and perhaps harmlessly called an 
Empire may prosper without a theory, but does not suggest and, were we 
serious in our talk of sovereignty, would hardly tolerate, a theory that is sim- 
ple enough and insular enough, and yet withal imperially Roman enough, to 
deny an essentially state-like character to those ' self-governing colonies,' com- 
munities, commonwealths, which are knit and welded into a larger sovereign 
whole." Introduction to Gierke, p. x. Again, still speaking of the colonies : 
"Even the right or power to impose taxes has never been abandoned, though 
it is not exercised. Students of Austin's Jurisprudence may find some inter- 
est in noticing this case : the sovereign body habitually refrains from making 

[ 368 ] 


When we read in the preamble of the federal con- 
stitution of Australia, "Whereas the people of New 
South Wales, Victoria, South Australia, Queensland, 
and Tasmania, humbly relying on the blessing of Al- 
mighty God, have agreed to unite in one indissolu- 
ble Federal Commonwealth under the Crown of the 
United Kingdom of Great Britain and Ireland, and 
under the Constitution hereby established," the ques- 
tion naturally arises : What would the Australians actu- 
ally do, if the Imperial Parliament, in the due exercise 
of its legal prerogatives, were to give the "Common- 
wealth" serious cause for dissatisfaction? 

Apparently, the existing theory of parliamentary 
sovereignty, which has undoubtedly served a valuable 
purpose in England, is not comprehensive enough for 
the British Empire. With new conditions, changes in 
machinery must be made to meet them and the theory 
must follow. 1 

Objections have also frequently been made to the 
English theory of parliamentary omnipotence from 
a less practical point of view. German theorists, for ex- 
ample, have had few kind words for it. 

I shall not willingly plunge into the abyss at the 
bottom of which, it may be hoped, some solution of 
the problem of sovereignty lies. I shall merely indicate 
briefly one or two objections that have been urged, or, 

laws of a certain class and must suspect that if it made such laws they would 
not be obeyed." Constitutional History, p. 339. 
!See Note B at the end of this chapter (p. 390). 

[ 369 ] 


as it seems to me, may be urged, against the theory of 
legislative sovereignty as held in England, and these 
objections will be of an historical rather than a purely 
logical kind. They may, in fact, be compressed into one. 
The theory now embodied in the doctrine of parlia- 
mentary sovereignty is mechanical, artificial, inconsis- 
tent with natural growth, in a word, unhistorical. This 
is the charge brought and rightly brought against 
the contract theory. But its opponent, the theory of 
Divine Right, and the theory of parliamentary sover- 
eignty, which in a sense that is historically true is the 
legitimate successor of Divine Right, are little less arti- 
ficial. Alike, they break up the body politic into frag- 
ments. They create an unnatural separation between 
governor and governed. Bacon warned James I against 
bargaining with his people at the time of the "Great 
Contract." That transaction, however, was the natural 
corollary of a theory which set the people and the King 
off against each other. A recent writer says: "One may 
say, then, that a strongly characteristic feature of the 
development of the theory of sovereignty during this 
period was the individualistic-contractualistic tendency. 
The emphasis on the individual came from the Re- 
formation, the form of contract from the Roman law." 1 
As Gierke expresses it, ... "In so far as the Com- 
munity was a * Subject' of rights, and stood apart from 
and either above or below the Ruler, this 'Subject' 
could not be identified with the Whole organized and 

1 Merriara, History of the Theory of Sovereignty since Rousseau, pp. 36, 37. 

F 370 1 


unified Body, since the Head was being left out of ac- 
count. Rather a separate * Subject 'was made of 'the 
People :' a * Subject' that could be contrasted with 'the 
Government.' " l 

The process which resulted in this division had started 
with the King. The underlying individualism may have 
been the creature of the Reformation, or more prop- 
erly of the Renaissance, but the fact remains that the 
people were "knit together" with the King into one 
body politic until the claims of Divine Right placed 
the King practically outside the commonwealth. By 
that act the body politic was split up; its members be- 
came mere "subjects, "mere individuals, disjecta mem- 
bra. "Our Trimmer" says Halifax, "thinks that the 
King and Kingdom ought to be one Creature, not to be 
separated in their Political Capacity; and when either 
of them undertake to act apart, it is like the crawling 
of Worms after they are cut in pieces, which cannot 
be a lasting motion, the whole Creature not stirring at 
a time." 2 But now the King and his people have ceased 
to be "one creature." Instead, we have the inspiring 
picture of James I haggling with his people over the 
terms of the "Great Contract;" of his son, in the in- 
terval of civil war, weighing the relative advantages of 
the Propositions of New Castle and the Heads of the 
Proposals; of Charles II coolly balancing the amount 
the people will grant him in Parliament for carrying out 

1 Political Theories of the Middle Age, translated by Maitland, p. 7 1 . 

2 The Character of a Trimmer (1699), pp. 12, 13. 

[ 371 ] 


the will of the majority of the nation, against the sum 
he can get from England's greatest enemy in return 
for thwarting the desires of his people and betraying 
their interests and their religion. We see the Parlia- 
ment choosing treasurers and auditors to prevent royal 
misuse of supplies ; we become familiar with transac- 
tions like that of Tonnage and Poundage in 1629; we 
are not surprised when the Minister of George II and 
the Opposition are found bidding against each other 
in Parliament with the people's money for the distinc- 
tion of pandering to the luxurious or lascivious tastes 
of the heir apparent; nor when the real leader of the 
Opposition buys his way back from a traitor's exile by 
gifts of money to the King's mistress, and the King 
carries out his part of the sordid bargain by forcing the 
Minister's reluctant assent to the introduction of the 
bill effecting it, even by threats of dismissal from office. 
In some of these examples we begin to see the growth 
of the modern idea of " checks and balances," of set- 
ting off against each other rival organs of the state, 
each one with a defined sphere of action, and therefore 
each determined to prevent by jealous watchfulness 
the encroachment of the others upon that sphere. The 
success of this system in the United States, where 
it has had a consistent development, is hardly yet so 
conspicuous as to warrant us in setting it up as the 
"last word" in political theory. In all the examples, it is 
evident that the sovereign's interest and the subjects' 
interest have really become antagonistic. 

[ 372 ] 

ie beginning, Parliament represents the claims 
^ 'subjects," and therefore denies the validity of 
the King's pretensions, including the claim of sover- 
eignty. In the death struggle which ensues "Parlia- 
ment is forced to make new claims and by degrees to 
grasp at supremacy, lest it should lose old rights or 
even forfeit equality." 1 With the successful issue of the 
struggle, Parliament assumes as of right those very 
powers it formerly denounced. Practically all the 
English political theories of the later seventeenth cen- 
tury, whether contractual or patriarchal, presuppose 
a sovereign and subjects in antithesis if not in an- 
tagonism. Divine Right truly "has stamped upon the 
English mind the conception of sovereignty," and, Mr. 
Figgis continues, "thereby rendered a service which 
can hardly be overestimated by all who value clear- 
ness of political vision." 2 This seems undeniably true. 
Historically, all modern political philosophy is based 
on the discovery of sovereignty made in the sixteenth 
and seventeenth centuries. This would probably be 
admitted even by those who in recent years have held 
that the very idea of sovereignty is incompatible with 
conditions existing in a modern composite state. For 
most theorists who take a position less extreme than 
this, the conception of sovereignty set forth in sub- 
stance by Bodin and Hobbes underlies the whole 
theory of the state and is postulated by it. Whatever 

1 Figgis, Divine Right, p. 231. 

2 Ibid., p. 144. 

[373 ] 


our view may be, it is hard to overrate the debt we 
owe to Bodin and to Hobbes. 

But, if we look at England alone, our sense of grati- 
tude is vastly lessened when we remember that the 
bearer of this sovereignty is out of all organic connec- 
tion with the state or with his subjects. Mr. Figgis 
himself sees the unreality and artificiality of this pro- 
duct. He says, "What is needed now-a-days is that 
as against an abstract and unreal theory of State 
omnipotence on the one hand, and an atomistic and 
artificial view of individual independence on the other, 
the facts of the world with its innumerable bonds of 
association and the naturalness of social authority 
should be generally recognized and become the basis 
of our laws, as it is of our life." 1 

This want will never be supplied by Austin's "defi- 
nite political superior." His theory is based on the dis- 
membered state of the seventeenth century. It is as 
unhistorical as the despised original compact. "It is 
a mistake," says T. H. Green, "to think of the state as 
an aggregation of individuals under a sovereign." 2 

The English doctrine of parliamentary sovereignty 
grew up in the seventeenth century. It bears the marks 
of that period. It is the result of strife, not of growth. 3 

1 From Gerson to Grotius, p. 206 (1907). 

2 Political Obligation, p. 139. 

3 It will be understood that by "parliamentary sovereignty" I mean the 
theory as it is actually held in England. In criticising this theory I do not wish 
to be understood as objecting to the general theory of political sovereignty. 
The objection here insisted on is directed entirely at the location of the bearer 
of the sovereignty, not at the theory in general. I have used the term 

[ 374 ] 


No creation of that period of stress could be anything 
but artificial. The theory of sovereignty is artificial 
because the whole theory of the state had become so. 1 
In saying this, however, due credit must not be de- 
nied to the English theory of parliamentary omnipo- 
tence. Whatever defects may be seen hi it, it accom- 
plished its purpose. It disposed forever of the King 
legibus solutus, even if it did bring into being a Par- 
liament legibus solutum. The protection of the rights 
of individuals in the seventeenth century demanded 
a power able to cope on equal terms with the King. 

"legislative sovereignty " to describe the English theory, because I could not 
find any substitute, but I wish to disclaim any intention of criticizing a gen- 
eral theory of legislative sovereignty. Whether that be a sine qua non of cor- 
rect political speculation or not, the sovereignty certainly need not be located 
in a "definite political superior" which is out of all natural relation to the 
state itself. 

1 This is admirably stated by Mr. Merriam : "Again, it is to be observed that 
an adequate conception of the unity and personality of the State was want- 
ing throughout the period under consideration. As already seen, the move- 
ment in the earlier phases of the development was toward the organization of 
two public persons in the same State, the people on the one hand, and the 
Government on the other, with reciprocal rights and duties. Neither the people 
nor the Government constituted the whole State. Later, the State was ab- 
sorbed either in people or in Government. With Hobbes, the Government 
swallowed up the State, and became the sole representative of its personality, 
so that the Government could truly say ' L' Etat c'est moi.' Or, with Rousseau, 
the people became the Government, and the Government was lost in the 
State. Hobbes saw a particular organ, the special bearer of power, but not 
the organism. Rousseau saw the organism as a whole, the general bearer, 
without organs capable of exercising sovereign power. And lastly the idea of 
personality, whether of the people or a part of the people, was at best of a 
wholly unreal and artificial character. Except where an individual was sover- 
eign, the ruling body was a person only by the grace of fiction, persona repre- 
sentata, persona ficta one in the place of many. Person was an abbreviation 
for a sum of individuals, and the bearer of the sovereignty not a real entity. 
The only real persons were individuals, all others were fictions." History of the 
Theory of Sovereignty, pp. 37, 38. 

[375 ] 


The result was the omnipotent Parliament. It is not 
unnatural, then, that men looked back to 1689 as the 
"glorious" Revolution. We must admit the probable 
necessity of a doctrine of parliamentary sovereignty 
in the seventeenth century. To say, however, that it 
was inevitable, even to say that in its age it was a ne- 
cessity and a benefit, is not to justify the conditions 
which made it necessary, or the circumstances from 
which it arose. Above all, a recognition of the services 
it performed in its day should not lead us to think 
that this theory is fit to become a political formula of 
universal validity. 

Abuses usually get themselves tolerated because 
they are sheltered under institutions whose past ser- 
vices render them immune from attack. 

The body of irresponsible nominees, who in the 
eighteenth century called themselves the House of 
Commons, were trading on the credit of the Revolu- 
tion Parliament. When parliamentary omnipotence has 
become a means of punishing "subjects" for breach of 
privilege in fishing in Mr. J oliffe's pond, 1 or killing Lord 
Galway's rabbits; 2 when election petitions are made 
mere tests of party strength, settled by a strict party 
vote in the House of Commons itself, with absolute in- 
difference to the expressed will of the electors, and in 
supreme disregard of their legal rights, but "All the arts, 

1 Commons Journals, vol. xxvi. p. 698. 

2 Ibid., vol. xxiii. p. 505. A list of such "breaches," containing many other in- 
stances equally trivial, is given in the report of the case of Stockdale v. Han- 
sard, 9 Adolphus $ Ellis, 10-13. 



money, promises and threats . . . are applied, and self- 
interest operates;" 1 when even Edmund Burke can 
plume himself on his consistency in "uniformly and 
steadily" opposing "for many years together" "the re- 
forms in representation and the bills for shortening the 
duration of parliaments;" 2 and when the Chancellor of 
England refuses to look beyond the Revolution for the 
"liberty and constitution" of England, even to save an 
empire ; 3 we may begin to suspect that the doctrine of 
parliamentary omnipotence has about outlived its use- 
fulness. The first of the great evils resulting from it, the 
corruption and irresponsible character of Parliament, 
has since been obviated by a series of most important 
rules, the majority of which, however, the disciples of 
parliamentary omnipotence would not permit us to 
designate as laws, but only as "conventions," though 
a breach of them would inevitably result in revolu- 
tion : the other evil, the colonial problem, remains. 

It becomes evident, then, that in the eighteenth cen- 
tury, men on both sides of the sea were looking in vain 
to Parliament for the protection of individual rights. 
The American Revolution was the logical sequel to 
the Revolution of 1689. It applied to Parliament as 
well as to the King Locke's doctrine of the responsi- 
bility of the governor to the governed. Thus it was not 
wholly without excuse that the Opposition could speak 

1 Horace Walpole, quoted by Sir W. Anson, Law and Custom of the Constitu- 
tion, 4th ed., vol. i. p. 170. 

2 Appeal from the New to the Old Whigs. 

3 Ante, pp. 365, 366. 

[ 377 ] 


of the American forces as "our army," 1 or Charles James 
Fox refer to the report of an American defeat as "the 
terrible news from Long Island." 2 

The fault, if fault there was, on the part of the Eng- 
lish statesmen, lay not in the adoption of the doctrine 
of parliamentary sovereignty, but rather in retaining 
it, to the detriment of the subject and of the Empire, 
after its day of usefulness was over. 

The rooted conservatism of the English mind has 
many things to its credit. It is hardly possible to over- 
estimate its beneficent results, but our just praise should 
be tempered with discrimination: it has occasionally 
done some harm as well as good. 

Divine Right may have been inevitable. Once in ex- 
istence the struggle between it and Parliament certainly 
was so. To the theory and the struggle we owe the 
doctrine of the omnipotence of Parliament. In exchange, 
however, was given the grand conception of the Eng- 
lish Commonwealth. This conception men are now 
painfully trying to regain. "Even where legal absolu- 
tism can be attributed to some definite legislative in- 

1 Quoted from Lady Minto's Life of Sir Gilbert Elliot, in Lecky's History of 
England, vol. iv. p. 76 (American edition). 

2 Letter of Fox to the Marquis of Rockingham, dated October 13, 1776, Rus- 
sell's Memorials of Fox, vol. i. p. 130 (American edition). . . . "Above all, my 
dear Lord, I hope that it will be a point of honor among us all to support the 
American pretensions in adversity as much as we did in their prosperity, and 
that we shall never desert those who have acted unsuccessfully upon Whig prin- 
ciples, while we continue to profess our admiration of those who succeeded in 
the same principles in the year 1688." Ibid. Our opinion of the truth of the his- 
torical facts implied in this advice is not affected by any doubts we may have 
of the entire propriety of attributing them exclusively to "Whig principles." 




stitution, sooner or later the question is certain to arise 
whether, after all, formal supremacy can be attributed 
to that institution save as an organ of the State. . . . 

" Although the location of the sovereign varies in 
the different legal theories of different nationalities, it 
seems probable that the Jurisprudence of a near future 
will recognize that the State itself is the true sovereign, 
and that such a body as the Parliament of Great Britain 
should be described, not as the sovereign, but as the 
sovereign-organ. " l 

Upon our attitude toward the English theory of par- 
liamentary omnipotence will also depend our view of 
the distinction made by Mr. Bryce and Professor Dicey 
between legal and political sovereignty. The legal sov- 
ereign, according to Mr. Bryce, is "the person (or body) 
to whose directions the law attributes legal force, the 
person in whom resides as of right the ultimate power 
either of laying down general rules or of issuing isolated 
rules or commands, whose authority is that of the law 
itself." 2 The practical sovereign is "simply the strong- 
est force in the State, whether that force has or has not 
any recognized legal supremacy." 3 

It is hard to see what advantage this new distinction 

1 Brown, The Austinian Theory of Law, pp. 284-7. See also T. H. Green, Lec- 
tures on Political Obligation, pp. 96, 98, 104, 113. For probably the best general 
account of the various theories, see Jellinek, Allgemeine Staatslehre (2d ed.), 
pp. 123 et seq., 421 et seq., 526 et seq. See also, in addition to the references 
already noted, Gierke, Johannes Althusius (2d ed., 1902). 

2 Studies in History and Jurisprudence, p. 505. 

3 Ibid., p. 511. See also Dicey, Law of the Const., 7th ed., pp. 68 et seq., 424, 

[ 379 ] 


has to offer to political science. After all, it does little 
but postpone the difficulty, for the distinction is strictly 
subsidiary to the doctrine of parliamentary sovereignty. 
It stands or falls with that. 

There is, however, another difficulty incident to it 
somewhat more definite. In distinguishing between 
sovereignty legal and sovereignty practical, Mr. Bryce 
uses the following illustration : 

"The fact that the House of Commons, a part of the 
Legal Sovereign of England, is chosen by the people, 
and that many members of the House of Lords, another 
part of the Legal Sovereign, have been appointed by 
the Crown, does not affect the Sovereignty of Parlia- 
ment, because neither the people nor the Crown have 
the right of issuing directions, legally binding, to the 
persons they have selected." 1 Presumably Mr. Bryce 
here has reference exclusively to legal matters, and not 
mere custom, for he speaks of " directions, legally bind- 
ing." He is not speaking of the "conventions of the 
Constitution," he means the "law of the Constitution." 
But when he says that the Crown cannot issue legally 
binding directions to Parliament, does he mean to say 
that the Crown cannot legally issue a "direction" to the 
Parliament ordering its dissolution? If non-legal con- 
vention is put aside, and it must be if we are consid- 
ering a strictly legal sovereign, what is to prevent the 
Crown from proroguing or dissolving an existing Par- 
liament whenever so inclined? And what direct legal 

1 Studies, p. 510. 

[ 380 ] 


pressure can be brought to bear on the Crown to sum- 
mon another one until ready to do so ? If we adhere to 
the strictness of this legality, we find a rather peculiar 
sovereign resulting. One, in fact, whose very precarious 
existence is dependent upon the whim of a power out- 
side itself. It is no answer to this to say that it is the 
"King in Parliament" who does these things. Where is 
the "King in Parliament "during the interval between 
the dissolution of one Parliament and his issuing writs 
for a new one ? If parliamentary supremacy is thus to 
be defended by arguments from mere law, it seems that 
the question asked by Judge Jenkins in 1647 is still 
pertinent, "The King assembles the Parliament by 
his Writ, adjournes, prorogues, and dissolves the Par- 
liament by the Law at his pleasure, as is evident by con- 
stant practise, the House of Commons never sate after 
an adjournment of the Parliament by the King's Com- 
mand: where is the supreame power?" 1 

1 The Works of Judge Jenkins, p. 57. Compare the words of Hobbes : "Seeing 
then all Lawes, written and unwritten, have their Authority, and force, from 
the Will of the Common-wealth ; that is to say, from the Will of the Represen- 
tative ; which in a Monarchy is the Monarch, and in other Common-wealths 
the Soveraign Assembly ; a man may wonder from whence proceed such opin- 
ions, as are found in the Books of Lawyers of eminence in severall Common- 
wealths, directly, or by consequence making the Legislative Power depend on 
private men, or subordinate Judges [these italics are mine]. As, for example, 
That the Common Law, hath no Controuler but the Parliament; which is true 
onely where a Parliament has the Soveraign Power, and cannot be assembled, 
nor dissolved, but by their own discretion. For if there be a right in any else to 
dissolve them, there is a right also to controule them, and consequently to con- 
troule their controulings." (Leviathan, pt. ii. ch. xxvi.) 

It is interesting in this connexion to note Mr. Bagehot's enumeration of 
powers which the Crown could still exercise in the year 1872, by virtue of the 
prerogative alone. He says, in the introduction to the second edition of his Eng- 

[ 381 ] 


For all practical purposes, Parliament has been the 
unquestioned lawmaking organ since the Revolution, 
but such legalistic distinctions as these are somewhat 

The more general objection to this distinction be- 
tween legal and practical sovereignty tells against the 
whole theory of parliamentary sovereignty as held in 
England : it is unhistorical. Mr. Bryce himself says of 
it: "It has nothing to do with the actual forces that 
exist in a state, nor with the question to whom obedi- 
ence is in fact rendered by the citizens in the last resort. 
It represents merely the theory of the law, which may 
or may not coincide with the actual facts of the case, 
just as the validity of the demonstration of the fifth 

lish Constitution: " I said in this book that it would very much surprise people 
if they were only told how many things the Queen could do without consult- 
ing Parliament, and it certainly has so proved, for when the Queen abolished 
Purchase in the Army by an act of prerogative (after the Lords had rejected 
the bill for doing so), there was a great and general astonishment. 

"But this is nothing to what the Queen can by law do without consulting 
Parliament. Not to mention other things, she could disband the army (by law 
she cannot engage more than a certain number of men, but she is not obliged 
to engage any men); she could dismiss all the officers, from the General Com- 
manding-in-Chief downwards, she could dismiss all the sailors too ; she could 
sell off all our ships of war and all our naval stores ; she could make a peace 
by the sacrifice of Cornwall, and begin a war for the conquest of Brittany. 
She could make every citizen in the United Kingdom, male or female, a peer ; 
she could make every parish in the United Kingdom a ' university ; ' she could 
dismiss most of the civil servants ; she could pardon all offenders. In a word, 
the Queen could by prerogative upset all the action of civil government within 
the government, could disgrace the nation by a bad war or peace, and could, 
by disbanding our forces, whether land or sea, leave us defenceless against 
foreign nations." (American edition, pp. 31, 32.) Cf. Dicey, Law of the Con- 
stitution, 7th ed., pp. 22-4 and elsewhere; the comments of Professor Lowell, 
Government of England, vol. ii. pp. 473, 474, and note ; and Dr. Hatschek, Eng- 
lisches Staatsrecht, vol. i. p. 546, note. 

[ 382 ] 


proposition in the first book of Euclid has nothing to 
do with the accuracy with which the lines of any actual 
figure of that proposition are drawn." 1 

The analytical school has always prided itself on 
keeping close to the ground, on avoiding the meta- 
physical speculations of which others have been guilty. 
"Not what law ought to be, but what law is" has been 
its cry. What could be more divorced from actual fact 
than a theory such as this, which avowedly "has no- 
thing to do" with actual conditions? "The concep- 
tion of legal sovereignty as inhering in a portion of the 
community needs then to be revised by reference to 
the fact that such portion is but an organ of the com- 
munity as a whole. When we have escaped from the 
tyranny of mere forms, and have overcome the super- 
stition that we must not regard things in their totality, 
when we have learnt that, on the contrary, it is only 
when we so regard them we can hope to comprehend 
them, we shall find some place in legal theory for ideas 
which have already profoundly affected less conserva- 
tive branches of learning. We shall not fear to think 
of the State as a unity, a personality, a sovereign a 
sovereign in whose presence the visible ruler can aspire 
to no higher title than that of sovereign-organ." 2 

The analogy suggested between political science and 
geometry is, on the whole, unfortunate. In geometry, 
we knowingly agree upon premises which in some cases 

1 Studies, p. 509. 

2 Jethro Brown, The Austinian Theory of Law, pp. 286, 287. 

[ 383 ] 


we are aware will not square exactly with actual fact. 
To do this in political science is a very questionable 
proceeding. We may not play fast and loose with our 
facts. The methods of the Schoolmen are no more in 
place in political science than in geology. Modern 
natural science has made all its advances by rejecting 
the exclusive use of the mediaeval deductive method. 
It has been the one great contribution of the analytical 
school in England to emphasize the practical advantage 
of separating jurisprudence from ethics, of restricting 
the science to the data furnished by law actually existing 
now or in the past. Consciously to desert this point of 
view and ignore utterly "the actual forces that exist in 
a state," to adopt the deductive methods of geometry, 
is to return to the unreality and a priori dogmatism 
that to-day rightly condemns the political philosophy 
of Rousseau. We cannot be satisfied in the twentieth 
century with a theory which confesses that it "has 
nothing to do with actual conditions." "While we talk 
logic, we are unanswerable; but then, on the other 
hand, this universal living scene of things is after all as 
little a logical world as it is a poetical ; and, as it cannot 
without violence be exalted into poetical perfection, 
neither can it be attenuated into a logical formula. 
Abstract can only conduct to abstract; but we have 
need to attain by our reasonings to what is concrete." 1 
Happily, England has long ago broken free from the 
conditions which created the doctrine of parliamentary 

1 Newman, Grammar of Assent, p. 268. 



omnipotence. Some day the tardy theory may catch 
up with the facts. 

Whatever may be its defects in nature and form, 
parliamentary sovereignty is the substitute which in 
England has taken the place of the organic theory of 
the sixteenth century. In America the problem was met 
in another way. In the Tudor state, as we have seen, 
the departments of government Were not clearly sepa- 
rated. Its main characteristic was a fusion of powers. 
While this has by no means entirely disappeared in 
England, the legislative supremacy of Parliament has 
utterly changed it. In America the old fusion of powers 
was replaced not by the elevation of one of the organs 
of government above the rest, as in England, but by 
a series of elaborate checks to prevent that very thing. 
A "separation of powers" certainly took place in both 
England and North America; it was, however, by no 
means so far reaching, in England at least, as Montes- 
quieu imagined he saw it to be, and far less complete 
than the modern Continental theory. 

For, notwithstanding the great changes made, the 
old foundations remained. In England, as we have 
seen, the old indefiniteness in the powers of courts 
long influenced their action, notwithstanding the newer 
doctrine of parliamentary sovereignty, and has never 
wholly disappeared ; while in America the doctrine of 
checks and balances has been far less effective than the 
English doctrine of parliamentary supremacy, in nar- 
rowing the scope of judicial action. American courts 

[ 385 ] 


still retain much of their Tudor indefiniteness, notwith- 
standing our separation of departments. They are guided 
to an extent unknown now in England by questions 
of policy and expediency. The Supreme Court has acted , 
again and again on the principle that it may reverse its 
decisions, a principle which the House of Lords has 
definitely accepted as inadmissible. 1 In short, in America 
many of those traditional powers and functions have 
remained in the courts which in England have to a 
greater extent been excluded by the rigour of the doc- 
trine of parliamentary sovereignty. These differences 
are now very marked, but they are also to be seen in 
the English colonies in North America long before in- 
dependence. The colonists retained to a marked and 
unusual degree the traditions of Tudor England. In all 
our study of American institutions, colonial and con- 
temporary, institutions both of public law and pri- 
vate law, this fact must be reckoned with. The breach 
between colonies and mother country was largely a 
mutual misunderstanding based, in great part, on the 
fact of this retention of older ideas in the colonies after 
parliamentary sovereignty had driven them out in the 
mother country. These facts have often been noticed. 
Thus Professor Dicey says, " American institutions are 
the direct outgrowth of English ideas, and in the main 
of the English ideas which prevailed in England during 
the democratic movement of the seventeenth century. " 2 

1 London Tramways Co. v. London County Council. App. C., 375 (1898). 

2 Law of the Constitution, p. 527. "Curiously enough," says Professor Lowell, 
"the political evolution of America branched off from that of England early 

[ 386 ] 

aking of the practice of courts in declaring stat- 
.oid, Professor Lowell says: "With the growth, 

however, of the doctrine of the omnipotence of Par- 
liament, it vanished from the courts early in the eigh- 
teenth century ; but this was the point where the stream 
of political thought in the American colonies separated 
from that of the mother country, and the doctrine not 
only contributed indirectly to the evolution of consti- 
tutional law in the United States, but has been occa- 
sionally repeated in express terms by American j udges." 1 
It is not within the scope of this essay to compare 

in the eighteenth century, nearly a couple of generations before the revolt of 
the colonies, and while the legal tone of thought was at its height. American 
institutions are still in some respects singularly like those of England at the 
death of Queen Anne, and not least in the power of legal tradition, which was 
rather intensified than weakened by its transfer to the new world. Thereafter 
the changes in the British Constitution found no echo on the other side of 
the Atlantic, largely no doubt because taking the form of custom, not of stat- 
ute, they were not readily observed." Government of England, vol. ii. p. 472. 
1 Government of England, vol. ii. pp. 480, 481. See also Coxe, Legislative Power, 
pp. 214, 215. On this subject Hatscheksays : "Von der siegreichen Revolutions- 
partei wird aber 1688 in dem Rechtsfalle L. Mayor and Commonalty of Lon- 
don v. Wood, und zwar durch den Mund des Richters Holt behauptet, dass 
ein Gesetz, das z. B. jemanden gerade zum Richter in eigener Sache bestellte, 
gegen das Common law und gegen die Vernunft, daher ungiiltig ware. So wurde 
selbst nach der glorreichen Revolution den Richtem ein materielles Prufungs- 
recht der Gesetze zugestanden, eine Doktrin, die damals nach Nord-Amerika kam 
und hier, fruchtbaren Boden fassend, sich bis auf den heutigen Tag erhalten hat. 
In England aber nahm nach der glorreichen Revolution die Doktrin einen 
anderen Weg. Die zur Herrschaft kommende liberate Whigdoktrin lasst sich 
die Steigerung der parlamentarischen Allmacht deshalb gefallen, weil sie in 
ihr das Mittel zur Einschrankung der Koniglichen Prerogative sieht. Die All- 
macht des Parlaments habe die englische Freiheit gerettet. Daher die Willens- 
ausserungen dieses allmachtigen Parlaments keiner Macht auf Erden unter- 
geordnet seien. Die Suprematie des Parlaments bedinge die Koordination des 
Gesetzesrechts (Statute law) und des Common law" Englisches Staatsrecht, vol. i. 
p. 138. See also a letter of Thomas Jefferson to Judge Tyler dated 1812, Jef- 
ferson's Works (Washington, 1854), vol. vi. pp. 65, 66. 

[ 387 ] 


the present English and American systems, or to trace 
the effect of the older English ideas upon the growth 
of our constitutional system. That system, however, 
can be properly understood, in its origin, development, 
workings, and spirit, only in the light of precedents and 
traditions which run back to the England of the civil 
wars and the period before the civil wars. 1 

1 The further development of these principles in the American constitution is 
to be treated in a forthcoming volume, by Professor Edward S. Corwin, to be 
entitled, The Growth of Judicial Review. 

[ 388 ] 



(Page 352) 

"HE following is an extract from the act : " The Question is not whether 
it belong to King or no, to restrain such Force, but if the King shall 
refuse to discharge that Duty and Trust, whether there is not a Power 
in the two Houses, to provide for the Safety of the Parliament and 
Peace of the Kingdom, which is the end for which the Ordinance 
concerning the Militia was made, and being agreeable to the Scope 
and Purpose of the Law, cannot in reason be adjudged to be con- 
trary to it, for although it do affirm it to be in the King, yet it doth 
not exclude those in whom the Law hath placed a Power for that 
purpose, as in the Courts of Justice, that Sheriffs and other Officers 
and Ministers of those Courts, and as their Power is derived from the 
King by his Patents, yet cannot it be restrained by his Majesty's 
command, by his great Seal or otherwise, much less can the Power 
of Parliament be concluded by his Majesty's command, because the 
Authority thereof is of a higher and more eminent nature then any 
of those Courts. 

" It is acknowledged that the King is the Fountain of Justice and 
Protection, but the Acts of Justice and Protection are not exercised 
in his own Person, nor depend upon his pleasure but by his Courts, 
and by his Ministers who must do their duty therein, though the 
King in his own Person should forbid them : and therefore if Judg- 
ments should be given by them against the King's Will and Personal 
command, yet are they the King's Judgments. 

"The High Court of Parliament is not only a Court of Judicature, 
enabled by the Laws to adjudge and determine the Rights and Liber- 
ties of the Kingdom, against such Patents and Grants of His Majesty 
as are prejudicial thereunto, although strengthned by his Personal 
Commands, and by his Proclamation under the Great Seal, but it is 
likewise a Council to provide for the necessity, to prevent the immi- 
nent Dangers, and preserve the publick Peace and Safety of the 
Kingdom, and to declare the King's pleasure in those things that 
are requisite thereunto, and what they do herein hath the stamp of Royal 
Authority, although His Majesty seduced by evil Council, do in his own 
Person oppose or interrupt the same, for the King's Supream and Royal 

[ 389 ] 


pleasure is exercised and declared in this High Court of Law and 
Council after a more eminent and obligatory manner, then it can be 
by any personal Act or Resolution of his own." (Rush worth, Collec- 
tions, vol. iv. pp. 551, 552.) 

"By this memorable declaration," says John Allen, "which was 
the groundwork of all the subsequent proceedings of the parliament 
in the civil wars that ensued, it is obvious that the two houses not 
only separated the politic from the natural capacity of the King, bat 
transferred to themselves the sovereign authority attributed to him 
by lawyers in his ideal character. They assumed to themselves the 
supreme power of the state, retaining nothing of monarchy but the 
name." (Royal Prerogative, 1849, pp. 83, 84.) 


(Page 369) 

SINCE the above was written my friend, Mr. F. R. Carpenter, has 
called to my attention the similar conclusions which Mr. Frederick 
Scott Oliver has reached from a comparative study of the conditions 
of the American colonies after independence and those existing 
to-day in the British Empire, in his recent book on Alexander Ham- 
ilton, from which the following is an extract: 

"When, however, we come to inquire closely into this matter of 
sovereignty, we are amazed to find how strong a likeness there is 
between the States of America before the Union and the British 
Empire at the present day. The difference lies in the dispositions of 
the two people, not in their political circumstances. In spite of our 
aspiration towards sovereignty (so strong and universal as almost to 
amount to a belief that somewhere in the empire a clear sovereignty 
does actually exist), in spite also of the fact that we are haunted by 
no fixed idea which confounds strong government with tyranny, we 
are victims of the same disease. There is no sovereignty. Everything 
hangs on sentiment, influence, and management. In the Three King- 
doms sovereignty so far has not been impaired ; but outside these 
islands it is a very different matter. The theory of the empire seems 
hardly to have moved a step forward since the War of Indepen- 
dence. . . . 

"The theory, indeed, of sovereignty is complete and without a 

[ 390 ] 


law, but it is also startling if we view it from a democratic standpoint. 
The imperial sovereignty which is exercised in the name of the 
King actually resides in the British Prime Minister, a gentleman 
who holds his office at the pleasure of the majority of the British 
House of Commons. Therefore, in the ultimate appeal, a majority of 
British voters is the supreme power in the empire. One democracy 
for the time being the most numerous holds a sovereignty, not 
merely over those portions of the King's dominions where, as in the 
case of India, the form of government is frankly autocratic, but over 
other democracies whom we think of, and who think of themselves, 
as self-governing. . . . But what has never been questioned since the 
War of Independence is that a democracy pretending to a sovereignty 
over other democracies is either a phantom or the most intolerable 
of all oppressions. 

"In regard to the foreign affairs of the empire, sovereignty ap- 
pears to best advantage. But even here, when carefully examined, 
its tenure is precarious, its warrant, in reason if not in law, is dubi- 
ous. The true meaning of the situation is no less painful than it is 
plain. The most powerful member of a loose confederacy is content 
to defend her fellow-members from foreign attack for so long as they 
are willing to acquiesce in her policy. . . . But what is clear equally 
to the optimist and the cynic is that the other states will cease to 
acquiesce at the moment when our foreign policy has the appearance 
of being in serious conflict with their interests or their honour. The 
equilibrium is so unstable that no argument upon tradition can per- 
suade us it has any of the elements of safety. Even with fine weather 
it is only a miracle that maintains it, and under rain or storm there 
must be a shifting of the balance that can have no issue but disinte- 

" Leaving foreign affairs upon one side, we are equally dismayed 
by the lack of any efficient check, not merely upon colonial legisla- 
tion, but also upon purely British legislation. This want may imperil 
the very existence of the union if there is no power equal to the 
task of restraint or co-ordination, no courage equal to the exercise 
of such power, no judgment capable of directing the courage. And 
such is unfortunately the case. On British legislation there is not even 
a formal veto, while the veto upon colonial legislation is scrupulously 

[391 ] 


preserved only because it is hardly ever exercised. Even if a colony 
desired to institute polygamy or slavery, or to practise repudiation, 
it would be a matter of the utmost delicacy to defeat its intention. 
For the exercise of the only veto which exists is, in plain words, the 
tyranny of one parliament over another of one democracy over 

"The theory of the British constitution is, as it stands, clearly in- 
tolerable, except in disuse. The powers which are imagined to exist 
in it would never stand the strain of being put in force. . . . The con- 
sequences being so obvious, we have declined upon a timid make- 
believe, and for the sake of peace and goodwill have laid sovereignty 
upon the shelf, regardless of the fact that sovereignty is the very 
essence of union. 

"If the government of Great Britain and Ireland, which we term 
somewhat grandiosely the Imperial Parliament, desires anything to 
be done which requires colonial co-operation, it must go like the old 
Continental Congress, hat in hand, arguing, persuading, cajoling, and 
entreating. By a fine tradition it has the full dignity of sovereignty; 
but in reality it is as impotent as the Continental Congress, and only 
less ridiculous because it has learned from experience the timid wis- 
dom not to court rebuffs. 

"Our real reliance is upon the sentimental quality of each great 
emergency to produce a dramatic co-operation. But it is wise to re- 
member that in a dramatic impulse, though there is elan, there is 
not, and cannot be, much staying power. The tie of affection or kin- 
ship is the raw material of union, not union itself. 'Influence,' said 
Washington, 'is not government.' A power which we refuse to influ- 
ence we can hardly grant to sentiment. The union we complacently 
acknowledge is a mere shadow not a political fact, but a poetical 
fancy. It has the health of an invalid who is free from pain so long 
as he will lie still in one position. Such is its present frailty, that in 
a protracted struggle of varying fortune it must almost inevitably 
fall asunder. 

"The hope and strength of our great empire are in popular gov- 
ernment, but the hope will be disappointed and the strength will 
fail if the need of a true sovereignty be overlooked. Sovereignty can 
never be secure while it rests upon a confusion of legal formulas 



and brittle sympathies; but only when it has been founded boldly 
upon the free and deliberate choice of the citizens of the empire" 
(pp. 475-9). 

A more accurate, penetrating, or vigorous statement could hardly 
be desired. 

[ 393 ] 


LUTE, meaning of the word, 129 
sqq., and notes, 142. 

Act of settlement, 77. 

Aid, 59. 

Analytical school of English jurispru- 
dentes, 383, 384. 

Army, their view of the fundamental 
law, 91. 

Articles exhibited by the Clergy to 
the Privy Council temp. James I, 
282 n. 

Arundel, Archbishop, 69, 70. 

Ashby v. White, 236 sq. 

Assemblies, on the Continent, lost 
their feudal traditions, 321 ; colonial, 
had no higher legal status than an 
incorporated village, 365. 

Assize, 44, 131; possessory assizes, 
178 n. 2; of Darrein Presentment, 
44; of Novel Disseisin, 44, 262 sq. ; 
the word, 169, 283 sq. ; distinguish- 
ed from "laws," 284 ; its temporary 
character, 284 ; may be set aside by 
the judges, 284 and note ; of Meas- 
ures, 284 n. ; ofMort d' 'Ancestor, 285. 

Atkyns, Sir Robert, his argument in 
defence of Sir William Williams, 
242 sqq. ; on the dispensing power, 
312 n. 

Attainder, Bill of, 224 sqq. ; St. John 
on, in the Earl of Strafford's Case, 
151 sqq. ; opinion of Henry VIII's 
judges on, 225. 

Atterbury, Bishop, 224, 229 n. 

Audita Querela, Writ of, 254, 255 sq. 

Auditor. See Petitions, Triers of. 

Aula, 30 n. 

Austin, John, 259 n., 329 ; his concep- 
tion of law, 144 ; on fictions, 266 ; 
his theory based on the dismem- 
bered state of the seventeenth cen- 
tury, 374. 

Australia, federal constitution of, 369. 
Award of Parliament, 114, 205, 216 

Aylesbury Men, Case of (Regina v. 

Paty et al), 241 sq. 

BACON, Francis, Lord Chancellor, 193, 
335 ; on Magna Charta, 64 sq. ; on 
new laws, 73; on the jurisdiction of 
the courts of common law, 292 sqq. ; 
on prerogative, 295 sq., 348 sq. ; 
warns James I against the "Great 
Contract," 370. [193. 

Bacon, Nathaniel, 154, 172, 173 n., 

Bagehot, Walter, 128, 167 ; on prero- 
gative, 381 n. 

Bagg's Case, 292 sq., 316. 

Barons, relations of the King with, in 
England, 9 sq., 15; loyalty to their 
order rather than to their country 
their main motive, 15 sq. 

Barrington, Daines, on the obnoxious 
activity of lawyers in Parliament, 

Bate's Case, 316. 

Battle, wager of, 131. 

Becket, Thomas, Archbishop of Can- 
terbury, 13 ; and the Constitutions 
of Clarendon, 45 n. 

Bentham, Jeremy, 105, 266. 

Berkely, Sir Thomas, Case of, 184 n. 

Berkley, Sir Robert, his opinion in 
the Case of Ship-Money, 149. 

Bernardiston v. Soame, 222. 

Bible, occurrence in the various Eng- 
lish versions of the word "judge- 
ment," 171. 

Bigamy, statute of, 115. 

Bill of Middlesex, 213. 

Bills, substituted for petition, 209; 
their "judicial " character, 209 sq. ; 
conclude with a prayer, 212. 

[ 395 


Bills, private, 142, 218 sqq. ; proce- 
dure on, 222 sq. 

Blackstone, Sir William, 311 n. ; and 
the Cabinet, 127; on legislative 
sovereignty, 141 ; on statutes im- 
possible of performance, 275; on 
void statutes, 308 sq. 

Bodin, Jean, 373 sq. 

Bonharis Case, 147, 286. 

Bracton, his enumeration of the 
courts, 19, 20 n. ; on fundamental 
law, 66, 101 sqq. ; on the jurisdic- 
tion of Parliament, 248. 

Brady, Robert, on the Norman mon- 
archy in England, 7, 11; on the 
composition of the early Parlia- 
ments, 28. 

Brenchley, William, 39. 

British Empire, legal theory of, con- 
trasted with actual conditions, 367 
sqq. ; too extensive for the existing 
theory of parliamentary sovereign- 
ty, 369 ; sovereignty in, 390 sqq. 

Bryce, James, his distinction between 
legal and political or practical sov- 
ereignty, 379 sqq. 

Burgesses, summoned to Parliament, 
21 ; their relations with the King's 
Council in his Parliament, 25; 
their part in Parliament's "judi- 
cial" business, 25 sq. 

Burials, the use of torches, tapers, 
etc., at, 280. 

Burke, Edmund, on parliamentary 
reform, 377. 

CAMDEK, Charles Pratt, Lord, 176 
n., 309 n. [a court, 122. 

Camden, William, on Parliament as 

Canon Law, and common law, 272, 
277 ; Sir T. More on, 278 sq. 

Canterbury, Archbishop of, 281. 

Cartwright, Thomas, on Parliament 
as a court, 121. 

Castile, King of, his suit against the 
King of Navarre in the Court of the 
King of England, 111 and note. 

Cessavit, Writ of, 297. 

Chancellor, 252. See Chancery. 

Chancery, Court of, 38, 200, 250 sq., 
293; its relation to the Council in 
early times, 18 n. ; its relation to 
Parliament, 115 sq., 132 sqq., 250 
sq. ; jealousy of, in Parliament, 213 
sq. ; clerks of, 210 n., 252, 254; 
Masters in, 210 n. See Chancellor. 

Charlemagne, 10. 

Charles I, 371. 

Charles II, his secret dealings with 
Louis XIV, 371 sq. 

Charters, 46 ; of Henry I, 46 n. ; of 
Stephen, 46 n. 

Of the Forests, 65 ; not on the 
Statute Roll, 314. 

Colonial (royal), made to do duty 
as constitutions, 358 sqq. ; rigid in- 
terpretation of, 361 ; (proprietary) 
363 sq. ; made an instrument of 
government, 364. 

Municipal, 362 and note. 
See Magna Charta. 

Chatham, William Pitt, Earl of, 318. 

Checks and balances, 372 ; in Amer- 
ica, 385. 

Church, the, 272; law of, to prevail 
over statutes in ecclesiastical mat- 
ters, Sir T. More's view, 278 sq. ; 
view of some churchmen of the pre- 
sent day, 281 sq. 

Church of England, 73 ; not separate 
in organization in the middle ages, 
13 and note. 

Clarendon, Assize of, 284. 

Clarendon, Constitutions of, 45 and 
note, 48, 111 and note. 

Clarendon, Edward Hyde, Earl of, 
on the meaning of "jurisdiction," 
170; on Strafford's trial, 225 (and 

[ 396 


note)sq., 306 ; his trial, 226 sq., 247 ; 
on parliamentary privilege, 240 sq. ; 
on prerogative, 349. 

Clopton, Walter, Chief Justice of the 
King's Bench, 40. 

Coke, Sir Edward, 147 sqq., 194, 247, 
265 sq., 271, 274 sq., 286 sqq., 300, 
312, 335; on Statute of Gloucester, 
48; as the "discoverer" of Magna 
Charta, 58 n. ; on Magna Charta, 
64 and note ; on statutes and the old 
law, 73 sq., 74 n. ; his quarrel with 
James I, 75 sq. ; on the common 
law, 80; on the fundamental law, 
82, 83 sq. ; on Parliament as a court, 
139 sqq. ; on the Commons as a 
court of record, 235; on the ex- 
clusion of lawyers from Parliament, 
214 sq. ; on lex parliament^ 233 sq. ; 
his account of the evasion of the 
Statute De Donis by the judges, 
267 n. ; on declaratory statutes, 268, 
270 ; on the statute of 3 H. VII or- 
ganizing the Court of Star Cham- 
ber, 270 sq. ; on declaring statutes 
void, 276, 286 sqq.; on Sir T. Tre- 
gor's Case, 286 sqq., 296; on Cessa- 
vit, 297; on statute 11 H. VII for 
determining cases on mere informa- 
tion, 301 ; on ordinance and statute, 

Colloquium, 28, 112. 

Colonies, American, their growth to 
maturity in the eighteenth century, 
359; ministerial ignorance of, 359 
sq. ; their growth divergent from 
England's, 360; their demand for 
recognition, 360 ; their retention of 
the ideas prevalent under the Tu- 
dors, 386 sq., 386 n. 

Self-governing, their relations 
with Parliament, 366 sqq., 390 sqq. 

Comminaltie de la terre, 104. See Com- 
munities of the Land. 

Commissioners, Lords', on the Dig- 
nity of a Peer, 48 sqq. 

Common recoveries, 267 (and note) sq. 

Commons, House of, 21 sqq., 38. 

Its functions as a part of Parlia- 
ment, 26, 190 sqq. ; Prynne on, 191 

As a court of record, 139, 234 sq. ; 
as the Grand Inquest of the Nation, 
187 sqq.; its judicial character in 
impeachment, 187 sqq.; its dealings 
with petitions, 202 sqq., 219 ; its re- 
nunciation of judicial power, 203 ; 
not necessary for a "full" Parlia- 
ment, 216 ; privileges of, 230 sqq. ; 
fines and imprisonment for a defi- 
nite term imposed by, 235 ; its share 
in Parliament's jurisdiction, 244; its 
corruption and irresponsible char- 
acter in the eighteenth century, 

Commonwealth, the Tudor, 336 sqq., 
340 n.,378. 

Communities of the Land, their re- 
lation to Parliament, 208 n. 

Concilium, 17 and note. 

Confirmatio Cartarum of 1297, 49. 

Conseil d'fitat, 319, 320 and note. 

Conservatism, of the English people, 
its merits and defects, 378. 

Consimili Casu, Writs in. See Writs in 
Consimili Casu. 

Constitution, English, unbroken his- 
tory of, 8 ; its framework complete 
by the fourteenth century, 38; ef- 
fect of precedent in the development 
of, 146 ; its character under the Tu- 
dors, 342 ; its silent steady growth, 
358 sq. 

Roman, its break-down under the 
Republic, 365. 

Written, effect of, on power of ju- 
dicial review, 5 sq., 323 ; reasons for 
absence of, in England, 61 sqq. ; in 

397 ] 


England during the Interregnum, 
92 and note. 

Contract theory of government, 347. 

Convention, 140. 

Conventions of the Constitution, 188. 

Cosin, Richard, on Parliament as a 
court, 121. 

Cotton, Sir Robert, 194; his view of 
the reasons for first summoning the 
Commons to Parliament, 183 n. 

Council, 15, 27 n. 2, 32, 35, 38 and note, 
48 and note, 201, 293; its varied 
functions, 16, 30, 134 sq. ; its rela- 
tion to Parliament and the other 
courts of the King, 17 sqq., 23 sqq., 
28, 132 sqq., 320, 332; its composi- 
tion in early times, 22 sqq. ; its part 
in the "judicial" business of the 
Parliament, 25 sq. 

Judges in, 31 sqq., 39 sqq. ; 
Prynne's views, 33 ; their oath, 34 
sq. ; their importance, 35 sqq. 

Its jurisdiction and that of the 
House of Lords, 32 sq., 33 n. ; esti- 
mate of, by Queen Elizabeth, 37; its 
importance in the Tudor and Stuart 
period, 37 and note ; laws declared 
in, 45 ; its activity in the Tudor pe- 
riod, 136, 319 ; its relation to trial by 
jury, 183 sqq., 251 sq. ; its relation 
to the Triers of Petitions, 201 sqq., 
254 ; jealousy of it in Parliament, 
212 sq., 216 sq. 

Courts, their commanding position in 
England, as compared with the 
Continent, 321. 

In the United States, have re- 
tained much of their ancient indefi- 
nite power, 323, 385 sqq. 

In England, before the civil wars 
of the seventeenth century the 
courts still had much of their me- 
diaeval "jurisdiction," 323, 385 sq. 
The King's Courts, encroachment 

of, on the manorial and communal 
courts, 43 sq.; relations to Parlia- 
ment, 113 n., 119 sq. ; jury trial in, 
174 sqq. ; their limited power of in- 
itiative, 200; relation to the Triers 
of Petitions in Parliament, 202. 

Courts of common law, their 
"legislative" functions, in Tudor 
and early Stuart times, 134 sq., 258 
sqq., 267 n., 292 (Bagg's Case); de- 
scended from the ancient Curia, 
295, 322; their jealousy of the 
Council, 320. 

"Prerogative Courts," their 
struggle with Parliament in the 
seventeenth century, 295. 

Court of Common Pleas, 286 n. ; 
its relation to the Council in early 
times, 18 (and note) sq. 

Court of King's Bench, its rela- 
tion to the Council in early times, 
18 (and note) sqq., 23 sqq. 

Court of Exchequer Chamber, 
act of 1585 concerning, 132. 
The word, 119, 126. See Curia. 
See Chancery, Court of; Star 
Chamber, Court of; Council; Par- 

Crawley, Sir Edward, his opinion in 
the Ship-Money Case, 304. 

Croke, Sir James, 261. 

Cromwell, Oliver, on the fundamental 
law, 86 sq., 91 ; on Lilburne's Trial 
in 1649, 89. 

Cromwell's Case, 297 n. 

Curia (the word), 29 sq., 30 n., Ill 
and note. 

Curia Regis, 26; under the Norman 
kings in England, 7, 8 sq. ; the pa- 
rent of all the courts in England, 
including Parliament and the Privy 
Council, 295, 321. 

Customs, 96 sqq., 131; declared in 
feudal courts, 44 ; declared in the 

398 ] 


King's Council, 45; the basis of 
mediaeval law, 46 sqq., 51 sq. ; 
Filmer on, 96 ; in relation to the law 
of reason, 106 sq. ; special, method 
of proving, 175. 
Customs revenue, 316. 

\Jarrein Presentment^ Assize of, 44. 

Day v. Savadge, 306. [273. 

De Asportatis Religiosorum, Statute, 

De Donis Conditionalibus, Statute, 
74 n., 267 and note ; doubt as to 
its being a statute, 314. 

De la Pole, Michael, Chancellor, im- 
peachment of, 39 ; Selden's opinion 
concerning, 40. 

De Tocqueville, on the Supreme Court 
of the United States, 3 sq. 

Declaration of May 27, 1642, by 
Parliament, assuming sovereignty, 
389 sq. 

Delaware, basis of William Penn's 
government in, 364. 

Delegation of power by Parliament, 
331 sqq. 

Denman, Chief Justice, on the nature 
of parliamentary privilege, 245. 

Dicey, Professor, on federalism and 
litigation, 3 sqq.; on the relations 
between kings and their assemblies 
in feudal times, 9 sq. ; on "secon- 
dary " legislation in England and on 
the Continent, 334 sq. 

Digby, George, Lord Digby, Earl of 
Bristol, his speech on Strafford's 
Attainder, 153, 225 sq. 

Dispensing power, 310 sqq. 

Divine Right of Kings, 75 sq., 370; 
origin and growth of the theory in 
England, 345 ; necessity for the the- 
ory, 345 sq. ; results of the theory, 

346 sqq. ; statement of, by James I, 

347 sq. ; placed the King outside the 
common wealth and split up the body 

politic, 371 ; its contribution to po- 
litical theory, 373; the forerunner 
of parliamentary sovereignty, 378. 

Doctor and Student, 105 sqq. ; on the 
relation of statutes to the customary 
law, 72 ; on common recoveries, 268 
n. ; on void statutes, 279 sqq., 300. 

Doddridge, Sir John, on Parliament 
as a court, 122. 

Droit Administratift 317 sqq., 334 sq. 

Dugdale, Sir William, 250. 

ECCLESIASTICAL Discipline, Royal 
Commission on, communications 
addressed to, on the authority of 
the Judicial Committee of the Privy 
Council, 281 sq. 

Edward the Confessor, Laws of, 45 
n., 46 n., 53. 

Edward I, 16, 49 sq., 51, 116 n. ; 
summons knights and burgesses to 
Parliament, 21 ; legislative activity 
of his reign, 48. 

Edward II, his deposition announced 
by one of the judges in the Coun- 
cil, 36. 

Election petitions, settled by a party 
vote in the House of Commons, 
376 sq. 

Eliot, Sir John, 335 ; on the meaning 
of "judgement," 171 sq. ; Case of, 

Elizabeth, Queen, her opinion of privy 
councillors, 37 ; indulged the com- 
mon people, not the nobility, 339 
sq., 342. 

Ellesmere, Thomas, Lord, 171, 218 n., 
250, 254 sq., 261, 300; his views of 
the judges' functions in Parliament, 
137 sq. ; on the jurisdiction of the 
courts of common law, 292 sqq. ; an 
opponent of the common lawyers, 
294 ; on the construction of statutes, 
261, 294 sq. 

[ 399 ] 


Elsynge, Henry, on petitions, 204 sq., 
206 ; on receivers of petitions, 208 
sq. ; on the Pronunciationes Parlia- 
menti, 331. 

Emperor, his claim of authority over 
England, 344; his claims against 
the Papacy, 344. 

Enquetepar Tourbe, 43, 175, 177. 

Entails, Statute of, 74 n. 

Equity, its growth proportionate to 
the decline of Parliament's judicial 
activity, 133. 

Jfitablissement, 169. 

Ethelbert, King, his dooms, 97. 

Exchequer, its relation to the Coun- 
cil in early times, 18 n. 

FEDERALISM, substitutes litigation 
for legislation, 3 sqq. 

Fenwick, Sir John, Attainder of, 227 

Ferrers' Case, 232, 338. 

Feudal immunities, the basis of na- 
tional liberties, 16, 52 sq., 54 sqq. 

Feudalism, its importance in medi- 
aeval English history, 6 sq., 9; in- 
volves a fusion of public and pri- 
vate rights, wrongs, and remedies, 

Fiction, 47, 63, 213, 265 sqq. 

Filmer, Sir Robert, 189, 193, 348; on 
the Norman monarchy in England, 
7, 11; on the powers of the judges 
in the early Council, 34 n. ; on leg- 
islative sovereignty, 96, 161 sq. ; 
on the Commons as a court of re- 
cord, 235 sq. 

Finch, Sir Heneage, on Parliament's 
inability to declare treason, 306. 

Finch, Sir Henry, on an award of 
Parliament, 218 n. 

Fitzharris, Edward, Case of, 189, 238. 

Fitzherberfs Case, 235. 

Flambard, Ranulf, 8, 12. 

Fleta, its author's remarks on the re- 
lation of Council and Parliament, 20 
and note; fundamental law in, 68 
and note ; on prerogative, 101 ; on 
triers of petitions, 251. 

Floyde's Case, 235. 

Foreigners, opposition to, by English 
barons, 15. 

Fortescue, Sir John, 53; his distinc- 
tion between Dominium Regale and 
Dominium Politicwm et Regale, 72. 

"Forty days' tyranny," 318. 

Fox, Charles James, his attitude 
toward the revolutionists in Amer- 
ica, 378. 

Fox's Libel Act, 176. 

Franchises, 53 and note. 

Freeman, 11, 12; on the continuity 
of the English central assembly, 

Frowik, or Frowick, Chief Justice, 

Fundamental Law, 42 sqq., 46, 51 sq., 
53, 55 sq., 57, 61 sqq., 84 n. ; Prynne 
on, 65 sq., 84 sq., 85 n. ; in Bracton, 
66; in the reign of Henry III, 66 
and note ; in Fleta, 68 and note ; in 
the reign of Richard II, 68 sqq. ; 
Mr. Figgis on, 70 sq. ; Manwood on, 
72 sq. ; James I's idea of, 79 (and 
note) sq., 82 and note ; origin of the 
expression, 81 sqq.; Pym on, 83; 
Wentworth on, 83 ; Coke on, 82, 83 
sq. ; Selden on, 85; Judge Jenkins 
on, 85 sq. ; Cromwell on, 86 sq. ; dif- 
ferent interpretations of, by royal- 
ists and parliamentarians, 88; as 
used by the republicans, 88 sqq., 
90 sqq. ; as viewed by the army, 
91 ; vs. Divine Right, 349 sq. 

Fusion of powers, the, explains rela- 
tions of Parliament to other courts, 
119, 126 sq., 150, 164 sqq., 188, 204, 
219 sq., 245, 246, 293, 319. 

[ 400 ] 


GEORGE II, 372. 

Gloucester, Statute of, 48, 262 sq. 
Godden v. Hales, 242, 310 n. 
"Government by Commission" in 

the United States, 318, 319, 331, 


Grand Assize, 43, 44, 176. 
Grand Inquest, the Commons as, 

187 sqq., 191 sq. 
"Great Contract," between James I 

and his subjects, 370, 371. 
Oreshams Case, 298 n. 

Corpus Act, 354. 

Hakewell, William, 153. 

Hale, Sir Matthew, his views con- 
cerning the powers of the judges in 
the Council, 33 and note, 36, 37 ; on 
the supremacy of Parliament, 162 
sq. ; on the meaning of "jurisdic- 
tion," 170; on the jurisdiction of 
the Commons, 193 sqq. ; on the de- 
claration of treason pursuant to the 
act of 25 E. Ill, 247 sq. ; on triers 
of petitions in Parliament, 253 sq. 

Hah' fax, George Savile, Marquis of, 
his "Trimmer" on the relation of 
King and State, 371. 

Halifax Gibbet Law, 362. 

Holla, 31 n. 

Hankeford, Sir William, 39. 

Harrington, James, 87 and notes, 
165; on Elizabeth's government, 
339 sq. 

Harrison, William, 347; his descrip- 
tion of Parliament, 131. 

Hastings, Warren, Case of, 187 sq. 

Heads of the Proposals, 371. 

Heathfield v. Chilian, 329 sq. 

Henry I, his charter, 46 n., 53. 

Henry II, 23; and the Constitutions 
of Clarendon, 45 and note. 

Henry III, 16; his reissue of Magna 
Charta in 1225, 285. 

Henry VIII, 347 ; on the privileges 
of Parliament, 232; his letter to 
Lady Worsley, 234 sq.; his char- 
acterization of the "organic" state, 
336, 338 ; his relations with his sub- 
jects, 349. 

Herle, William, Chief Justice of the 
Common Pleas, his statement in 
Tregor's Case, 286 sqq., 296. 

Hobart, Sir Henry, 260 sq. 

Hobbes, Thomas, 130, 347, 350, 373; 
on legislative sovereignty, 95 and 
note, 161 ; on Parliament as a body 
merely advisory to the King, 330 sq. ; 
on the Crown's power to dissolve 
Parliament, 381 n. 

Holmes, Justice, his views of the 
legislative activity of the courts, 
258 sq. 

Holt, Sir John, 241 sq. ; his comment 
on Bonham's Case, 307 ; his advice 
concerning the Maryland Charter, 

Hooker, Richard, on Parliament's 
power to alter the law by statute, 
73 ; his Erastianism, 73 n. ; on the 
King in the commonwealth, 338. 

Howell, James, 153. 

ILBERT, Sir Courtenay, his view of 
the proper attitude of judges toward 
acts of Parliament, 260. 

Impeachment, 187 sq. 

Imperial, John, Case of, 247 sq. 

Inquest, a statute requiring priests to 
go generally upon, would be void, 
280 sq. See Jury, Trial by. 

Institutions, the nature of their de- 
velopment, 167, 168 sq. 

Instrument of Government, 86. 

Interpretation, judicial, 257 sqq. 

Irish people, statute of 9 H. IV re- 
quiring them to depart the realm, 

[ 401 ] 


JAMES I, on old and new laws, 74; 
his struggle with Coke, 75 sq. ; his 
theory of the kingship, 78 sqq., 
347 sqq. ; his idea of fundamental 
law, 79 sq. ; his idea of his relation 
to his subjects and theirs to him, 
347 sq. 

Jenkins, David, Judge, 154, 193; on 
fundamental law, 85 sq. ; on the 
power of the Crown to dissolve Par- 
liament, 381. 

Jeofail, Statutes of, 265. 

Jones, Sir William, his opinion in the 
Ship-Money Case, 149. 

Judgement (the word), 170 sqq. 

Judges: their powers and functions 
in the Council, 31 sqq., 39 sqq., 
323 sq. ; Prynne's views, 33. 

Their importance in the Council, 
35 sqq. ; form of summons to Parlia- 
ment, 33 (and note) sq. ; their part in 
the drafting of statutes, 36, 324, 325 
and note ; independence of, 76 sq. 

In Parliament, Lord Ellesmere 
on, 137 sq., 186, 198 sq., 352 sq. ; 
their relation to the King, 149, 317; 
their attitude toward acts of Parlia- 
ment, 257 sqq., 289 sqq. (Tregor's 
Case), 294, 325 sqq. 

Their attitude toward the royal 

. prerogative in the seventeenth 
century, 301 sqq. ; Bacon on, 335. 

Judicature and legislation, relation 
between, 257 sqq. 

Judicial Committee of the Privy 
Council, its authority in ecclesias- 
tical causes, 281 sq. 

Juratores, 182 n. 

Jurisdiction (the word), 169 sq. 

Jury, trial by, 57, 63, 173 sqq. ; law 
and fact in, 175 sq. ; the verdict in, 
177 ; not narrowly judicial in char- 
acter, 177 sqq., 178 n. 2; the pre- 
sentment, 178; grand and petty 

jury, 179 sq. ; importance of, in fis- 
cal matters, 180 ; case of a jury or- 
dered to appear before the Council, 
184 n., 251 sq. ; a jury of knights in 
Parliament, 184 n. See Inquest. 

Justices Itinerant, 178 n. 2, 183 sq., 
185, 186. 

Jitsticiarius, 31 n. 

KING, his powers and duties in feudal 

times, 9 sq. 

King of England : his power in the 
Norman period, 9 sq. ; his relations 
with his barons, 9 sq., 15 sq. ; his 
right to refuse assent to bills, 65 sq. 

The King and the law, in Brae- 
ton, 66 ; in Fleta, 68 and note ; in 
Fortescue, 72 ; in Man wood, 72 sq. ; 
in the theory of James I, 78 sqq. 

The King and the common- 
wealth, 75 sqq. 

His relations with Parliament and 
the other courts, 149; Prynne's 
view, 154 sqq. ; the proper judge 
of the necessity for levying ship- 
money, 304; his supremacy, 344. 

Relations with the Church, 272 ; 
cannot be made a parson, 277 sq. 

As Supreme Head of the Church, 
Sir T. More's view, 279 ; his relation 
to the commonwealth, 336 sqq. ; his 
legal demands and Parliament's, 
342 sq. ; his changed relatioa to 
his subjects after the Reformation, 
344 sqq. See Monarchy. 
Knights, summoned to Parliament, 
21 ; their relations with the King's 
Council in his Parliament, 25 ; their 
part in Parliament's "judicial" 
business, 25 sq. 
Knox, John, 171. 

LAMBARD, William, on Parliament as 
a court, 123 sq. 

[ 402] 


Law, to be distinguished from enact- 
ment, 284, 299, 311 sq. ; conserva- 
tism of the, 312. 
Feudal, 42 sq. 

Common, 43 sq., 131, 253 ; Mr. 
Figgis on, 70 sq. ; and the kingship, 
75 sqq. ; and statute, St. John on, 
84; Milton on, 94; and Canon 
Law, 272, 277. 

International, its relation to par- 
liamentary sovereignty, 308, 329 sq. 
Judge-made, 258, 329. 
Of nature, 97 sqq., 105 sqq., 272. 
Of reason, 264 ; in the Doctor and 
Student, 98 sq., 105 sqq., 300. 
Of God, 278 sq., 300. 
Constituent, its relation to ordi- 
nary legislation, in the United 
States, 4 ; in the German Empire, 
5 ; in Switzerland, 5 ; reasons for 
absence of, in England, 61 sqq. 

Law and fact in the early jury, 175 

Law Merchant, 329. 

Laws, in feudal times "not enact- 
ments but records," 42 sq.; of Ed- 
ward the Confessor, 45, 46 n., 53 ; 
Anglo-Saxon, 42 ; of William the 
Conqueror, 46 n. 

Lawyers, 81, 217 n., 219 n., 293 ; feel- 
ing of James I toward, 76, 80, 8 1 ; ex- 
cluded from Parliament, 214 sqq. ; 
their attitude toward Divine Right, 

Leges Barbarorum, lack of distinction 
between crime and tort in, 114. 

Legislation, 42, 46 sqq., 257 ; paucity 
of, in mediaeval England, 42 sqq., 
51, 327 ; in Parliament of 1305, 48 ; 
in reign of Edward I, 48 ; the as- 
sizes the only form of, in early 
England, 284 ; not exclusively Par- 
liament's, 315, 317, 319; the act 
of the King, 316 ; " secondary," in 

England and on the Continent, 317 

Legislative sovereignty, 94, 103 sqq., 
137, 140 sqq., 148, 156, 161, 162, 
224 sqq., 243, 293, 294, 296, 306, 
350, 373, 375 n. ; in Smith's Com- 
monwealth, 128 sqq. ; in Strafford's 
Trial, 151 sqq. ; in Streater's Case 
(1653), 159 sq., 305 sq. ; leads to the 
attributing of unlimited power to 
both King and Parliament in the 
seventeenth century, 351 ; first defi- 
nitely assumed by Parliament, 352 ; 
a new thing in the seventeenth 
century, 355 sq. ; the theory as held 
in England, mechanical and unhis- 
torical, 370 ; makes a sharp distinc- 
tion between sovereign and subject, 
370 sq. ; the service of the theory 
to political science, 373 sq. 

Defects of the theory in England, 
374; the result of strife, not of 
growth, 374 sq. 

Service of the theory to Eng- 
land, 375. 

Levellers, on fundamental law, 87. 

Lewes, the Song of, 66 n. 

Lex parliamenti, 139, 224, 233 sqq., 
243 sq. 

Liberties, of classes become those of 
the nation, 52 sq. 

Lilburne, John, his trial in 1649, 89 ; 
on fundamental law and Parlia- 
ment's power, 89 sq.; on Magna 
Charta, 91. 

Locke, John, 377; did not separate 
judicial from other administration, 
316, 347. 

Logic, insufficiency of, 384. 

Long Parliament, 85, 104, 154. 

"Lords Appellant," 39. 

Lords, House of, 38, 139, 163 sq. ; be- 
ginning of a separate jurisdiction of, 
32 sq., 33 n. ; as a court of record, 

[ 403 ] 


234 ; exclusiveness of its jurisdiction, 
244; will not reverse its decisions, 

MAGNA CHARTA, 46, 49 and note, 54 
sqq., 83, 95, 154, 178 n. 2, 183 n. ; 
punishment for contemptuous re- 
marks concerning, 13 ; a feudal not 
a national document, 14, 54 sqq. ; 
its importance due to its embodying 
the idea of a fundamental law, 55 
sq. ; the later interpretation of, 57 
sq. ; not on the Statute Roll, 314; 
its reissues, 58 sq., 285; omissions 
in the reissues, 58 sq. ; an unalter- 
able law, 59 sqq. ; Francis Bacon 
on, 64 sq. ; Coke on, 64 and note ; 
Prynne on, 65 sq. ; Lilburne on, 91. 

Magnum Concilium, 17. 

Malum prohibitum, 108, 299, 311 n. 

Mansfield, William Murray, Lord, 
176 n. 

Manwood, John, on the fundamental 
law, 72 sq. 

Maryland, Lord Holt advises that its 
charter may be taken away, 364. 

Massachusetts Convention of 1780, 
87 n. 

Masters of Requests, 255 sq. 

Maxims, as a ground of the law of 
England, 106 sqq. 

Measures, Richard Fs Assize of, 284 

Merton, statute of, 48 n., 74 n., 112. 

Mildmay's Case, 267 n. 

Milton, John, 130; on the common 
law, 94; on parliamentary sover- 
eignty, 94. 

Monarchomachs, the, 345. 

Monarchy, the English: under the 
Norman kings, theories concern- 
ing, 7 sq., 11 sq., 14; feudal theory 
of, 9 sqq. 

Under the Tudors, 336 sqq., 340 

n.; theories in its support against 
the Papacy, 345 sqq. 

See King, King of England. 

Montagu, Edward, Chief Justice of 
the Common Pleas, 293. 

Montagu, Sir Henry, 293. 

Montesquieu, the English constitution 
described by, was the post-Revo- 
lutionary constitution, 322 ; on the 
separation of powers, 322 sq. 

Montfort, Simon de, 12, 15 sq. 

More, Sir Thomas, on statutes con- 
trary to the laws of the land, 72 and 
note; his dialogue with Sir R. Rich 
concerning statutes void because 
against the Law of God and the 
Church, 278 sq.; sufficiency of his 
indictment, 279. 

Mort d 1 Ancestor, Assize of, 285. 

Mostyn v. Fabrigas, 266 n. 

".NATIONAL" theory of the Norman 

conquest and regime in England, 

8 sq., 11 sq., 14 sq. 
Nationality, growth of the feeling of, 

in England, 52 sq., 56 sq.; under 

the Tudors, 336 sqq. 
Nature, law of, 97 sqq., 105 sqq., 

Navarre, King of, his quarrel with the 

King of Castile, settled in the court 

of the King of England, 111 and 

Nobility, effect of the Wars of the 

Roses upon, 131, 338 sqq.; decline 

of, under the Tudors, 338 sqq. 
Nonclaim, statute of, 74 n. 
Northampton, Assize of, 284. 
Northington, Lord Chancellor, 96, 

309 n., 366, 377. 
Novel Disseisin, Assize of, 44, 



Noy, William, on old and new laws, 

[ 404 ] 


OATH, councillors', 34 sq., 113 and 
note; of judges in Parliament, 138; 
of supremacy, 344 ; ex qfficio, abol- 
ished, 354. 

O'Connell, Daniel, Case of, in 1844, 

Ordinance, 114, 313 sqq. ; difference 
between statute and, 313 sqq. 

Ordinances, of the Barons in 1310, 
112; of 1311, 113 and note; of 1312, 
252, 253 ; concerning wool in 1337, 
332; concerning the staple in 1385, 

Organic state, the, under the Tudors, 
336 sqq. 

Otis, James, on void acts of Parlia- 
ment, 309. 

PAPACY, mediaeval theories against 
the power of, 344 ; national opposi- 
tion to, 345. 

Parliament, 6, 7, 8, 15 sq., 17 sqq., 
62, 109 sq. ; awards of, 114, 205, 
216 sqq. ; its relation to the Coun- 
cil in early times, 17 sqq. 

The King's power over, 380 sq. ; 
according to Prynne, 155 sqq. 

Knights summoned to, 21 ; bur- 
gesses summoned to, 21 ; its com- 
ponent parts under Edward I, 21 

Its "judicial" functions, 25, 109 
sqq., 197 sq., 317; in abeyance 
under the Tudors, 131 sq., 136, 291 ; 
judges in, 31 sqq., 137 sq. ; opened 
by one of the judges in 1401, 36 ; of 
1305, 48; a law-declaring body, 51. 
Bound by acts of a preceding 
Parliament, 60 ; and by the funda- 
mental law, 62 sqq. ; definitely be- 
comes a law-making organ, 93, 109 
sq., 112, 120; as a court, 109 sqq., 
137 sqq., 156 sqq., 248 sqq., 259; 
frequency of sessions, 113; its re- 

lation to the King's other courts, 
113 n., 119 sq., 165 sq., 254, 290, 
322 ; its relation to the Chancellor, 
115 sq., 116 n., 250 sq., 254; held 
on legal term days, 114. 

Its "acts," 114, 136 sq., 216 sqq. ; 
their relation to the judges, 257 
sqq. ; "expository" acts, 257. 

As a court of record, 139 ; order 
of, 159 sq. 

Effect of dissolution of, on pris- 
oners detained by order of, 160 sq. ; 
on an impeachment, 187 sq. ; its 
jealousy of the Council, 212 sq., 
215 sq. ; its jealousy of the Court 
of Chancery, 213 sq. ; lawyers ex- 
cluded from, 214 sqq. ; Reformation 
Parliament, 104; Long Parliament, 
85, 104, 154. 

Privileges of, 139, 161, 230 sqq. ; 
freedom of speech, 220 sqq., 229 
sqq., 242 sqq. ; abuses of privilege 
in the eighteenth century, 376 ; de- 
scended from the ancient Curia, 
295; its struggle with the "prero- 
gative courts" in the seventeenth 
century, 295; its inability to de- 
clare a new treason, 306; not ex- 
clusively legislative, 317; retained 
many of its feudal characteristics, 
321 sq. ; its relation to international 
law, 329; as an advisory council, 
330 sq. ; its legal demands and 
the King's, 342 sq. ; its first definite 
assumption of sovereignty, 352 ; be- 
comes permanent and regular, 353 
sq. ; effect of its permanency and 
regularity on the administration 
of law in the courts, 354. 

Its sovereignty, 350, 353, 355 
sqq., 378; a deduction from actual 
conditions in England after the 
Revolution, 357; the theory not 
suited for a universal political prin- 

[ 405] 


ciple, 357 sq., 376; in the empire, 
369 ; Lilburne on, 89 sq. ; effect of 
civil wars of the seventeenth cen- 
tury upon, 93 sqq. ; Milton on, 94 ; 
evil effects of, 377; assumed in 
1642, 389 sq. 

Its relations with the self-govern- 
ing colonies, 366 sqq. ; chooses au- 
ditors and treasurers, 372 ; election 
petitions in, 376 sq. ; the Crown's 
power to dissolve, 380 sq. 

See Legislative sovereignty, Sov- 
ereignty, Sovereign. 

Parliament (the word), 27 (and note) 
sqq., 29 n., 197. 

Parson, the King cannot be made a 
parson by act of Parliament, 277 sq. 

Peers, excused from jury service, 
114; trial of, 177. 

Penn, William, the basis of his gov- 
ernment of Delaware, 364. 

Peter's Pence, the Act concerning, 
in 1533, 333. 

Petition of Right, 82 sqq. 

Petitions, 199 sqq., 219, 252; ad- 
dressed to King or Council in early 
times, 184 and note; addressed to 
the Commons, 202 sq., 207, 213 ; re- 
lief asked for in, 205 sq. ; character 
of those presenting, 206 sqq. ; to the 
Lords, 206 sq. ; from the Commons, 
207; preferred in Parliament by 
attorneys, 208. 

Receivers of, 208 sqq. ; their re- 
lation to the Chancery, 210 and 
note ; their relation to the Masters 
of Requests, 255 sq. 

Conclude with a prayer, 212, 
223; a commission created in 21 
Ric. II empowered to hear and 
determine petitions, 332. 

Triers of, in Parliament, 198 sqq., 
251 sqq. ; their relation to the 
Council, 201 sqq., 205 sqq.; their 

relation to the King's ordinary 
courts, 202. 

Petyt, William, 154, 312 n. ; on an 
award of Parliament, 216, 218 and 

Piers the Plowman, 117, 209. 

Pitt, William, Earl of Chatham, 360. 

Playter's Case, 265 and note. 

Political theories, the result of polit- 
ical conditions, 355. 

Pollock, Sir Frederick, on the prac- 
tice of judges in declaring statutes 
void, 271, 275, 276; on Tregor's 
Case, 287 sq. ; on the character of 
early statutes, 326 sq. 

Pope, the, 272, 278 sq. 

Postnati, Case of the, 137, 171. 

Praerogativa Regis, so called Statute 
of, 64 n. 

Precedent, its effect on the English 
Constitution, 146, 154. 

Precedents of the Tudor period va- 
riously interpreted in the seven- 
teenth century, 351. 

Prerogative, 299, 302, 304 n., 310, 
313, 316 sq., 380, 381 and note; 
James I's statement of, 78 sqq., 
347 sq. ; Bracton's statement of, 
101 sqq. ; Fleta's statement of, 101 ; 
Prynne on, 154 sqq. ; Bacon on, 335 ; 
Staunford on, 337 sq. ; Bagehot on, 
381 n. 

Prescription, 131. 

Primogeniture, 329. 

Privy Council, 119, 317. 

Proclamations, 312, 313 sqq., 317 
and note, 333 sq. ; Henry VIII's 
statute of, 333 sq. 

Pronunciationes Parliamenti. See 
Speeches from the Throne. 

Propositions of New Castle, 371. 

Prorogation of Parliament, Prynne's 
interpretation of MagnaCharta on, 
154 sq. 



Provisions of Oxford, 250 sq. 

Prynne, William, 158 n., 183 n., 235; 
his views concerning the powers of 
the judges in the early Council, 33 ; 
on Magna Charta, 65 sq. ; on the 
fundamental law, 65 sq., 84 sq., 
85 n. ; his Soveraigne Power of Par- 
liaments and Kingdomes, 154 sqq. ; 
on the meaning of "jurisdiction," 
169 sq. ; on the jurisdiction of the 
Commons, 191 sqq. ; on the exclu- 
sion of lawyers from Parliament, 
215 ; on the relation of the receivers 
of petitions and the Masters of Re- 
quests, 255 sq. ; on ordinances and 
statutes, 314, 334. [83. 

Pym, John, on the fundamental law, 

Qwia Emptores, Statute of, doubt of 

its being a real statute, 314. 
Quominus, 213. 
Quo Warranto, 217. 

RALEIGH, Sir Walter, his views of 
Parliament as merely a council ad- 
visory to the King, 330 ; on the de- 
cline of the power of the nobility, 
338 sqq. ; on the relation of the King 
and Parliament, 342 sq. 

Reason, "artificial," 108; Coke's doc- 
trine of, 80, 99 ; Hobbes on, 95 n. 

Law of, 264; in the Doctor and 
Student, 98 sq., 105 sqq., 300. 

Redlich, Joseph, views of, concern- 
ing the judicial functions of Parlia- 
ment and the Commons, 230 n. 

Reformation, the, its influence in 
creating the theory of the Divine 
Right of Kings, 344 sqq. 

Reformation Parliament, 104. 

Regina v. Keyn, 329. 

Republicans, their use of fundamen- 
tal law, 88 sq., 90 sqq. 

Revolution, English, 350; inevitable 

character of, 342, 343 ; not the re- 
sult of illegal oppression, 364 sq., 

American, 358 sqq. ; the result of 
the break-down of the constitution, 
358 ; not a struggle for legal rights, 
364 sqq. ; the sequel to the English 
Revolution, 377; attitude of the 
Opposition in Parliament toward, 
377 sq. 

Rex et Regina v. Knollys, 241 sq. 

Rich, Sir Richard, his dialogue with 
Sir T. More on Church and State, 
278 sq. 

Richard II, his defiance of the funda- 
mental laws, 68 sqq. ; charged with 
creating an unlawful commission to 
determine petitions, 332. 

Rikehyl, or Rickhill, Sir William, 
justice of the Court of Common 
Pleas, 40. 

Rolle, Henry, Chief Justice, 307 ; on 
parliamentary sovereignty, 159 sq. 

ST. JOHN, Henry, Viscount Boling- 
broke, buys his way back from 
exile, 372. 

St. John, Oliver, on common law and 
statute, 84; on the judicial char- 
acter of Parliament, in the Ship- 
Money Case, 150 sqq., 305 n. ; on 
Stafford's Attainder, 226 and note. 

Scotland, disputed succession to the 
crown of, 112. 

Seals, Abbey, Case of, in 27 H. VI, 
273 sqq. 

Selden, John, 193; his opinion con- 
cerning the Case of Michael de la 
Pole, 40 ; his comment on Bracton's 
garbling of the Digest, 102 ; on the 
changes in the meaning of words, 

Separation of powers, 319, 385 ; Mon- 
tesquieu on, 322 sq. 

[407 ] 


Septennial Act, 60. 

Seven Bishops, Case of, 242. 

Sheffield v. Ratcliffe, 260 sq. 

Ship-Money, Case of, 149 sqq., 303 sq. 

Skelton, Sir Thomas, 39. 

Smith, Sir Thomas, 53, 347 ; his Dis- 
course on the Commonwealth of 
England, 124 sqq. ; on Parliament 
as a court, 124 sqq., 356. 

Sovereign, location of, in a state, 379. 
See Parliament, Legislative sover- 
eignty, Sovereignty. 

Sovereignty, legal and political, as 
distinguished by Mr. Bryce and 
Professor Dicey, 144, 379 sqq., 382 

As existing in the state rather 
than in its governor, 383. 

Of Parliament, 109 ; Lilburne on, 
89 sq. ; effect of civil wars of seven- 
teenth century upon, 93 sqq. 

See Parliament ; Legislative sov- 
ereignty, Sovereign. 

Speeches from the Throne (Pronun- 
ciationes Parliamenti), 331. 

Spelman, Sir Henry, 166, 243 and 

Stamp Act, 309 n. 

Staple, ordinance concerning, in 1385, 

Star Chamber, Court of, 293, 334 ; its 
abolition by the Long Parliament, 
37 ; its relation to Parliament, 132, 
134; its "legislative" powers, 135 
sq., 319; Hudson's description of, 
135; Coke on the statute of 3 H. 
VII organizing, 270 sq. 

Statute of 11 H. VII for determina- 
tion of cases on mere information, 

Statutes, 131, 169, 299 ; character of, 
under Edward I, 48 ; power of Par- 
liament to alter, 60, 63 sq., 69 sqq. 
Their relation to customary law, 

as stated in the Doctor and Student, 
72 ; as stated by Sir Thomas More, 
72 and note; Coke on, 73 sq., 74 n. 
James I, on the authority of, 79 ; 
Milton on, 94 ; as a ground of the 
law of England, 106 sqq. ; and ordi- 
nances, 114. 

Interpretation of, 257 sqq, ; Elles- 
mere on, 261, 294. 

Declaratory of the common law, 
268 sqq. ; interpretation of, 269 sqq., 
327 ; in the affirmative, 269 sq. 

Declared by the judges to be void, 
270 sqq., 283 sqq., 297, 298 sqq., 
326, 387. 

Against the Law of God and the 
Church, Sir T. More's view of, 278 
sq. ; view of some modern church- 
men, 281 sq. ; cases "excepted out 
of,"285sq., 302,311, 315 sq. ; Herle's 
statement as to the makers of stat- 
utes not willing to put them into 
effect, 286 sqq., 296; drawn by the 
judges, 290, 324; brevity of, in early 
times, 315, 324; and international 
law, 329. 

Staundeforde, Staunford, or Stan- 
ford, William, 73 n. ; on prerogative, 
337 sq. 

Stauntons, Case of the, 326. 

Stephen, King, his charters, 46 n., 53. 

Stockdale v. Hansard, 241, 245. 

Strafford, Thomas Wentworth, Earl 
of, on fundamental law, 83 ; attain- 
der of, 151 sqq., 225 sq., 247, 269; 
on prerogative, 295 sq., 349; on 
"secondary" legislation, 335. 

Streater, Captain John, Case of, 158 
sqq., 238, 305 sq. 

Strode, Richard, Case of, 220 sqq. 

Stuart kings, their lack of caution, 
341 ; the revolution not due entirely 
to their incapacity, 342. 

Supremacy, Act of, in 1 Eliz., 172. 



Supreme, meaning of the word, 142 
sqq., 144 n, 148, 161 sq., 344. 

Supreme Court of the United States, 
143, 165; De Tocqueville on, 3 sq. ; 
its power to review legislation due 
only to the "rigid" constitution, 
4 sq. ; has reversed itself, 386. 

Suspending power, as stated by 
James I, 79. 

J. altarums Case, 267. 

Taxation, the power of the King con- 
cerning, 316 sq. 

Term days, Parliament held on, 114. 

Thirning, William, Chief Justice of 
the Common Pleas, 40, 331. 

Thomas v. Sorrell, 310 n., 311 n. 

Thorp, Sir William, Chief Justice, 
249 ; his case, 230. 

Tonnage and poundage, 84, 316, 372. 

Torts, not clearly distinguished from 
crimes in feudal times, 1 14. 

Towns, representatives of, in Parlia- 
ment, 185 sq. 

Tractatus, 30 n. 

Treason, 306; Edward Ill's Statute 
of, 116 sq., 247 sq.; in Stafford's 
trial, 151 sqq., 269. 

Treaor's Case, 286 sqq. 

Tresilian, Judge, Case of, 39 sq. 

Trewynard's Case, 121. 

Triennial Act, 60. 

Tudors, England in their time as com- 
pared with the Stuart period, 351 

Twysden, Roger, 153. 

ULPIAN, 102. 

Union with Scotland, Act of, intended 
to be permanent, 60. 

United States, 355; citizens of the, 
a "litigious people," 3, 5, 6. 

Villatae, 182 n. 

Virginia, colonial charter of, granted 

in 1609, 361 sq. ; conditions under, 


WASTE, Statute of, 220. 

Wentworth, Thomas. See Strafford. 

Westminster First, Statute of, 115 sq. 

Westminster Second, Statute of, 213, 
251, 297. 

Weston, Justice, his opinion in the 
Ship-Money Case, 303 sq. 

Whyte, Francis, on the power to 
amend the old law by statute, 74 n. 

Wildman, Sir John, his views on fun- 
damental law, 91. 

William the Conqueror, 8, 53; laws 
of, 46 n. 

Williams, Sir William, Case of, 242 

Wills, Statute of, 74 n. 

Witenagemot, 7, 10 ; its continuance, 
8, 9. 

WoodfalVs Case, 176 n. 

Wool, ordinance for the exportation 
of, in 1337, 332. 

Words, indefiniteness of the extent 
of the meaning of, in early times, 
26 sqq. ; evidence of, in the judicial 
history of Parliament, 166 sqq. ; in- 
terpretation of, in statutes, 262. 

Writs in Consimili Casu, 115 sq., 213, 

Writs, original, 200. 

Writs of Summons, sent to knights 
and burgesses by Edward 1, 21 sq. ; 
form used for judges, 33 sq. 






The high court of Parliament and 
its supremacy.