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Published online by Cambridge University Press: 02 September 2013
It is almost as difficult to read the thoughts of the past from the scattered dicta of the sixteenth century law books as to reconstruct a dinosaur from the fragments of a skeleton; yet many of these early cases illuminate important changes in legal and political affairs. The case of Wimbish v. Taillebois is one of particular interest because of Chief Justice Montague's opinion, which casts some light upon a little known phase of the constitutional development by which the property rights of the individual were brought under the control of the state. In the early Middle Ages, the power of the king over private rights was weak; the notion that the subject's rights were inviolate was strong. During the Middle Ages, royal authority and parliamentary authority grew extensively, and by the sixteenth century king in parliament was able to seize church lands and transfer property rights by statute. Montague justified such transfers of property from one individual to another by applying the mediaeval theory of taxation by consent to out-and-out transfers of property by Parliament. Such a doctrine increased the power of Parliament greatly by placing property rights directly under its legislative authority. It therefore marks an important step in the growth of the theory of parliamentary sovereignty.
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2 The case of the Rector of Edington, quoted by Plucknett, T. F. T., “The Lancastrian Constitution,” in Tudor Studies, edited by Seton-Watson, R. W. (London, 1924), p. 165.Google Scholar Newton C. J. disputed an argument of Fray C. J. that a subsidy was one of the revenues of the high court of parliament and made him agree that it was a grant by the people.
3 Plucknett described Markham's discussion of Parliament in these words; ibid., p. 179.
4 For a summary of the important statutes in this period, see Holdsworth, W. S., A History of English Law (London, 1923), II, pp. 447–484.Google Scholar See also Chrimes, S. B., English Constitutional Ideas in the Fifteenth Century (Cambridge, 1935), pp. 192–214.Google Scholar Certain mediaeval continental lawyers had a clear conception of eminent domain and expropriation. Maitland quotes Decius as follows: “Decius, Cons. 250: a law may take away rights ‘generaliter' even ‘sine compensatone privatorum’; on the other hand, if this law does this ‘particulariter alicui subdito,’ then it must be ‘cum recompensatione.’” See Gierke, Otto von, Political Theories of the Middle Age, translated by Maitland, P. W. (Cambridge, 1913), p. 179.Google Scholar
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18 Plowden, op. cit., pp. 38–60.
19 11 H. 7, cap. 20.
20 The French text of Plowden's Commentaries (1648, p. 59), reads “per tiel general graunt per parliament.” ‘General grant’ fits the sense of the passage.
21 Plowden, op. cit., edition of 1816, Vol. I, pp. 58–9.
22 Sir Edward Coke, Reports (1777), Vol. I, p. 41b.
23 Plucknett, op. cit., pp. 162–8. Two points of constitutional law are involved in this case: (1) Did an act of a representative body defeat the act of the king? (2) Did the Rector, being in law a member of convocation through his proxy, surrender his exemption when the later grant was made in convocation? The lawyers and the judges alike dealt with these questions as though they were questions of private law. The attorneys for the king, desiring to annul the exemption, argued that, having received an exemption from the king, the Rector as a member of convocation granted it back to the king, Furthermore, they said that the Rector was estopped by the act of convocation from pleading the charter of exemption. Chief Justice Hody agreed with these arguments. Markham, Serjeant for the Rector, reversed the estoppal argument by saying that the king was estopped from pleading the act of convocation. Furthermore, he compared Parliament to the commonalty of London. “Let us suppose,” he said, “that a member of the commonalty of London is desseised of his free tenement by a stranger and that then the Mayor and the commonalty release the disseisor, then the release made by all the commonalty will not bar him from his particular inheritance, for as much as he does not claim it as one of the commonalty but as a private person … So here, although the Rector was party to the general grant of the fifteenth yet the special grant made to him alone is not defeated thereby unless there are words to that effect.” Thus Markham seems to admit that Parliament could annul the Rector's exemption by special words. Plucknett, p. 166.
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