Front Page Titles (by Subject) CHAPTER 10: PARLIAMENT AND THE PRIVY COUNCIL - A Concise History of the Common Law
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CHAPTER 10: PARLIAMENT AND THE PRIVY COUNCIL - Theodore Frank Thomas Plucknett, A Concise History of the Common Law 
A Concise History of the Common Law (Indianapolis: Liberty Fund, 2010).
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PARLIAMENT AND THE PRIVY COUNCIL
The seventeenth and eighteenth centuries saw little change in the judicial system after the Restoration. The year 1660 was reckoned the twelfth year of the reign of Charles II, which theoretically began with the execution of Charles I. The stormy period of the Interregnum was erased as far as possible from legal memory. Its clumsy efforts at reform, the institutions which it created and the legislation it passed were swept away, and the strand of legal history was joined up again at the place where it had been broken. The authentic line of statutes came to an end even earlier, for after 16 Charles I, c. 37 (1642) no further acts were passed in the legitimate fashion by King, Lords and Commons. All editions of the statutes contain a gap between that date and the Restoration, and the legislation of the Interregnum must be sought in many scattered places. Not until 1911 were these relics collected into one single work.1 So too with reports; the meagre pages of Style, Hardres and Siderfin are only just enough to show that the common law courts struggled on under the able leadership of Chief Justice Rolle and Sir Matthew Hale.
FROM THE RESTORATION TO THE REFORM ACT
The century and three-quarters which followed 1660 are a period of rising prosperity, at least for the governing class, ending in a serious decline after the Napoleonic wars. Only the pinch of adversity was needed to destroy the contentment of the eighteenth century with its institutions. Its legislation is voluminous, but largely devoted to matters of detail which only acquire significance as precursors of the more sweeping reforms of the nineteenth century. Their importance is, however, none the less for that. There was in fact a slow, steady trend towards amelioration where practicable, but the limits of practicability were unhappily narrow, and the inertia of vested interests was immense. The fate of Lord Mansfield’s efforts admirably illustrates the difficulty of reform when all the forces of traditional learning were arrayed against it.
Some progress was made, however, by the efforts of those country gentry who bore the burden of local adjudication and administration as justices of the peace. Their labours have been well described in words which deserve quotation:1
“Parliament lacked the guidance of a central authority with broad and bold vision. On the other hand it was composed of those who were wrestling with the immediate problems and who could suggest workable expedients for tackling present difficulties. The result was a flood of statutes carrying out minor amendments in the old law and, in the second half of our period, establishing new ad hoc bodies to deal with special problems in particular areas. These policies of piecemeal amendment and sectional reconstruction went some way towards meeting the more pressing needs of the moment by adapting the law to changing circumstances and grafting modern devices on to the main stock of mediaeval institutions. In the process, however, confusion became more confounded. . . .”
These words are as true of general legal history during this period as they are of local government. They are significant for their confirmation of the view that the eighteenth century ought not to be dismissed (as too often it is) as a period of complete stagnation, and also for their indication of the class from which the larger reforms were to come in the fullness of time—from the middle class which required sound institutions in tune with its moderate liberalism, and satisfying its sense of the practical. A small and very powerful legal profession guarded the central courts against any such meddling, and so these efforts were confined to local jurisdictions and minor criminal and administrative matters.
THE JURISDICTION OF PARLIAMENT
At the other end of the scale, however, slow changes were taking place whose effects are still with us.
The earliest description of the judicial powers of Parliament which has come down to us in the famous passage in Fleta, where we are told that—2
“the king has his court in his council in his parliaments, in the presence of prelates, earls, barons, nobles and other experienced men, where doubts concerning judgments are resolved, new remedies are provided for newly arisen wrongs, and justice is done to everyone according to his deserts.”
In the light of other evidence this passage must be interpreted as meaning that the jurisdiction of Parliament was essentially extraordinary, that it was both original and appellate, and that it was both civil and criminal. How often these powers were used during the middle ages it is difficult to determine. The earliest parliamentary rolls describe themselves as “plea rolls” and do in fact contain a large proportion of judicial business; on the other hand it is well known that these rolls are by no means exhaustive, and that Parliament actually transacted an unascertainably large quantity of business of all sorts which has left no trace on the rolls—even where rolls are extant, and in many cases they have disappeared.
The separation of the Court of King’s Bench1 relieved Parliament of a good deal of its judicial business, with the result that it became more and more a legislature and a political organ of national government. Its judicial powers were therefore less frequently invoked, and its civil jurisdiction was principally concerned with proceedings in error from the King’s Bench. Still further discouragement to litigants proposing to appeal to Parliament was due to the growing infrequency of its sessions, already marked in the fifteenth century and still more conspicuous in the sixteenth. Error in Parliament was never a very frequent proceeding, and in form it remained for centuries a matter of grace rather than of course, for a petition to the King was a necessary preliminary.2 The assent to the petition was held to be the authority upon which the errors were heard.
SCOTLAND AND IRELAND
The territorial extension of this jurisdiction has fluctuated from time to time. During the middle ages there are precedents showing that error lay from the Irish courts to the Parliament at Westminster, but doubts were raised early in the eighteenth century with the result that a statute3 declared that error lay from Irish courts to the English, and not to the Irish, Parliament. This has remained the position (with the exception of the period 1783-1800) until the present century. Error from Scottish courts lay to the Parliament of Great Britain since the Act of Union.4
APPEALS FROM THE COURTS OF EQUITY
Parliament was a common law court, and it was some time before it concerned itself with equity.5 Hence it was said in 1459 that Parliament could hear error from the common law side of Chancery but not from the equity side.1 In the early seventeenth century several attempts were made to persuade the Lords to assume this jurisdiction, but they declined to do so. After the Restoration the Lords began to hear appeals, and very slowly the controversy over their right to do so died away.
THE POSITION OF THE COMMONS
It is a common practice to refer to this jurisdiction as being in the House of Lords. It is they in fact who exercise it, but the historical character of the jurisdiction shows that we are dealing with Parliament in its mediaeval sense rather than with one of the houses—which is a post-mediaeval notion. There is very slight authority to show that the Commons ever joined in the exercise of the civil jurisdiction of Parliament, and in 1400 they actually petitioned for a declaration2 that they were relieved of this business “except in cases when it pleases the King of his special grace to show them the said judgments”. This last phrase is a sufficient explanation of the few instances where the Commons are associated with appellate proceedings.
ERROR IN THE COUNCIL
It is an interesting illustration of the close connection between Parliament and Council to note that we do occasionally find the Council engaged in proceedings in error.3 The point is neatly put in a case in 1366 where we find that one party sued to Parliament, with the result, however, that the proceedings in error thus initiated were heard in the Council, which reversed the Common Pleas; “but the justices took no notice of the reversal before the council, because that is not the place where judgments can be reversed”.4 In other words, proceedings in error are common law proceedings, and must take place in the common law court of Parliament, since no common law jurisdiction in error remains in the Council after the separation of Parliament.
THE AUTHORITY OF HOUSE OF LORDS DECISIONS
The House of Lords was singularly slow in acquiring the present authority for its decisions. The principle of precedent should logically have taken account of the Lords as the final civil court as soon as that position was in fact attained, but historically it did not. The fundamental reason, no doubt, is that the Lords were not fitted for the great place they had assumed, and in the seventeenth and eighteenth centuries their decisions received little respect. All peers were entitled to vote, and there is evidence to show that votes were cast on considerations of family alliance and personal friendship rather than of legal doctrine—which can hardly have interested unprofessional laymen.1 It is significant that no serious attempt was made to report the house’s decisions until comparatively recent times. Shower’s reports (1698), although designed to be helpful to the nobility, were actually voted a breach of the privilege which both houses claimed to prevent the reporting of their proceedings. In 1762 a text writer who introduced some House of Lords cases was threatened with similar action. Consequently, lawyers were not only unwilling, but also unable, to pay any serious attention to decisions of the Lords until authorised reporting was begun just about a hundred years ago, and it required the Judicature Act to establish the place of the Lords at the head of the hierarchy of courts and to reform its personnel so as to give its decisions the great authority which they now enjoy.
CRIMINAL JURISDICTION OVER PEERS
Like all mediaeval courts, Parliament had a special, and in some matters an exclusive, jurisdiction over its members. The Commons specially valued their famous “privileges” which belong to constitutional history; the Lords concentrated on the idea that they were members of a superior court and ought not to be tried for serious crimes in courts which they regarded as inferior. This notion was much reinforced by the growth of the conception of peerage, and so the trial of peers by their peers—a principle conveniently embodied in the Great Charter—became the distinctive badge of their order. Into the details of this curious history there is no need to enter, for it is singularly obscure, and in any case only concerns a very small class of persons. In one respect it presents a unique problem, for it is the only topic in English legal history where a Year Book has been charged with being a forgery.2
The most significant element in the trial of peers by the House of Lords is one to which we shall refer later3 —namely, the fact that the Lords sit in their ancient character as a seignorial court of vassals or suitors, each one of whom is a judge, the presiding officer being the lord’s steward—in this case, the Lord High Steward of England. If Parliament is not in session, the trial takes place before the Lord High Steward, who will then hold the entirely different position of a true judge, and the Lords will be merely a jury from whom a unanimous verdict must be given. The use of either procedure was naturally rare,1 although by no means obsolete; it was abolished in 1948.2
THE LORDS AND IMPEACHMENT
Impeachment is another aspect of mediaeval courts which has become part of the constitution of Parliament.3 Once again the Lords sit as the suitors of a seignorial court under the presidency of the Lord High Steward (or the Chancellor if the charges are only of misdemeanours); the decision therefore will rest with the Lords and will be given by a majority. The Commons, however, initiate the proceedings by making their accusation, much as if they were the presenting jury in a court leet, save only that they take a more active part and through their “managers” conduct an elaborate prosecution. The procedure is not so very old, for it first appears as late as 1376, and throughout its history has been confined to political prosecutions, frequently of royal ministers. It was, however, quite independent of the Crown, which had no part in the proceedings. No instances appear under the Yorkists or the Tudors, but many examples occur under the Stuarts and in the eighteenth century; the last was in 1805. In America impeachment still exists, where it is a formal exception to the principle of the separation of powers, inherited from English practice, and preserved in the Federal and State constitutions.
APPEALS OF TREASON
Still another aspect of seignorial courts was introduced for a short while into Parliament, and that was the “appeal” or private accusation of treason or felony determinable by combat between the appellant and the appellee. Appeals were common in seignorial and county courts, and were sometimes brought in the King’s Bench, but the only examples in Parliament come from the reign of Richard II when they seemed to afford a welcome opportunity for baronial factions to fight spectacular judicial combats under the presidency of the King himself. As things turned out, no battles were fought, and the novelty of such proceedings in Parliament is shown by the doubts as to the proper procedure. At first it was thought that civil law might govern,4 and it was popularly believed that such proceedings were actually carried out under civil law rules.1 At the beginning of the next reign a statute2 was passed saying that appeals were henceforth to be governed by the ancient law of the land and were not to be brought in Parliament. A curious exception in the statute allows appeals of crimes done outside the realm to be brought in the Court of the Constable and Marshal, which later on was certainly governed by the civil law.
BILLS OF ATTAINDER
These bills are examples of King, Lords and Commons concurring in a criminal sentence whose sole justification, at least under the Stuarts, lay in reasons of state and political expediency. They began during the Wars of the Roses and were employed both under the Tudors and Stuarts, but more rarely in the eighteenth century, the last being in 1798. In some cases counsel were allowed to conduct the defence, but it has always been clear that a bill of attainder may be lawfully passed without any opportunity for defence being given. The procedure has therefore been very unpopular with Whig historians.
There was originally some reason other than mere vindictiveness for bills of attainder, since there was no common law means of trying a criminal in his absence. Attainders were therefore often used against persons who had taken refuge abroad. The effect of the attainder was much the same as that of the outlawry of the accused by the old common law process (which had become highly technical and uncertain). Even at common law one who had fled for felony would lose his chattels to the King and his lands would escheat to the lord, and his blood would be “corrupted”. The effect of an attainder was almost the same, save that the lands would go to the Crown instead of to the lord. The real abuse of attainders was their use against prisoners who were within the jurisdiction of the common law courts, and who therefore could have been lawfully tried.3
THE JURISDICTION OF THE PRIVY COUNCIL
So far this chapter has been concerned with the ultimate and extraordinary jurisdiction which passed from the mediaeval council to Parliament, and we have seen that such jurisdiction was, in principle, common law jurisdiction. The common law, however, during the middle ages was limited, and there was a fair amount of business outside its scope. Clergy and foreign merchants, for example, in practice looked to canon law and to the powers of the council to uphold their treaty privileges, while there was also the important territorial limitation which confined the common law to the body of an English county.
Now, as we have seen, the mediaeval council at the close of the fifteenth century became almost entirely judicial under its new style of the Star Chamber. Its advisory and executive functions passed to the newer and smaller body which Henry VIII organised as the “Privy Council”, and it is to this institution that much of the jurisdiction outside the common law eventually passed.1
In the seventeenth century the acts of the Privy Council show it engaged in a large mass of legal and judicial work in which it was constantly helped by the law officers of the Crown. In the reign of James I it almost seems as if the Council had come to occupy the position of its mediaeval forerunner, but after the Restoration this business would seem to have declined, and for the future it was particularly concerned with complaints—one may also say appeals—concerning the decisions of courts in the Channel Islands, the American colonies, and courts in India. The right of the Council to enjoy this jurisdiction may have been sound in constitutional theory and practice, but its remoteness in distance and in spirit from many of the disputes brought before it made its task difficult, while it was constantly reduced to impotence by the sturdy provincialism of courts which declined to recognise its authority. Like the House of Lords, the Privy Council in its judicial aspect is virtually a creation of the nineteenth century.
Acts and Ordinances of the Interregnum, 1642-1660 (ed. Firth and Rait, 3 vols., 1911).
Dowdell, Hundred Years of Quarter Sessions, 1660-1760 (Cambridge, 1932), 191.
Fleta, ii. 2, § 1.
See above, pp. 149-151.
The lords resolved “that a writ of error is not a writ of grace, but of right, and ought not to be denied to the subject”—Lords’ Journals, 17 February 1704-1705; Sir Matthew Hale, Jurisdiction of the Lords’ House, 145 (writing between 1674 and 1676) was not in a position to be so positive. See Francis Hargrave’s preface to Hale, pp. cxcix-ccii, and below, p. 213.
6 Geo. I, c. 5 (1719).
6 Anne, c. 11 (1707). For Scotland and Ireland, see Holdsworth, xi. 4-35.
For occasional examples of original equitable jurisdiction exercised in Parliament, see above, p. 179 n. 2.
Y.B. 37 Henry VI, Hil. 3.
Rot. Parl., iii. 427.
Baldwin, The King’s Council, 57, 232-235, 334-338; Rot. Parl., ii. 154 no. 40 (1344).
Y.B. 39 Edward III, f. 14 (bastardy).
See generally, A. S. Turberville, House of Lords in the Eighteenth Century, and The House of Lords as a Court of Law, 1784-1837, in Law Quarterly Review, lii. 189-219.
Y.B. 1 Henry IV, 1. These matters are discussed in L. W. Vernon Harcourt, His Grace the Steward and Trial of Peers (1907), and L. O. Pike, Constitutional History of the House of Lords (1894). Suspicion has also attached to Y.B. 1 Henry VII, Michs. no. 3 (as to which see A. F. Pollard, Henry VII, ii. 10 and M. Hemmant, Cases in Exchequer Chamber (Selden Society 51), 185). For a case which has been tampered with, see Y.BB. Edward II (Selden Society), xxiv. 83 and the intro. lxxv ff.
Below, pp. 232-233.
R. v. Russell,  A.C. 446 and Proceedings on the Trial of Lord De Clifford, 12 Dec., 1935 (Stationery Office, 1936) are the last examples.
Criminal Justice Act (1948).
See Plucknett, Origin of Impeachment, Transactions of the Royal Historical Society (1942), 47, and Impeachment of 1376, Transactions (1951), 153; cf. ibid. (1952), 159, (1953), 145.
Rot. Parl., iii. 236. The notion that civil law might be helpful in State trials long persisted: as late as 1710, when Dr Sacheverel was impeached, he was assigned as counsel by the House of Lords civilians as well as common lawyers.
English Chronicle (ed. J. S. Davies, Camden Soc., vol. 64), 131.
1 Hen. IV, c. 19 (1399).
It began under Henry VIII; Coke, Fourth Institute, 37; J. R. Tanner, Tudor Documents, 423. Thomas Cromwell invented this abuse, and very properly was the first to suffer by it. For the origins and early history, see Plucknett, in Transactions of the Royal Historical Society (1953), 145.
Already under Henry VII the crown had a “council learned in the law” for advice on legal matters, feudal and others: R. Somerville, The King’s Council Learned in the Law, English Historical Review, liv. 427; H. E. Bell, Court of Wards and Liveries, 4-5, 10, 12; C. G. Bayne, Cases in Council (Selden Society), xxv ff.