I find it irksome that Canadian lawyers often resort to the law courts without any regard – at most very little regard – for a legislature’s ancient role as a court of grievances. This phenomenon is especially important in a time when Canada’s Charter of Rights is often pled to establish a new frame of reference for social issues of the day.

Most people trained in law will rebel at the suggestion that Parliament could ever be a court. Conflating the legislature with judicial office undermines the division of powers that defines our Americanized view of government.1

An historically accurate assessment of our parliamentary democracy ignores such divisions. One compelling example is the early Northwest territories. The Act to amend and consolidate the Laws respecting the North-West Territories stipulated that stipendiary magistrates sit ex-officio on the Lieutenant-Governor’s council, which was charged with the creation of laws and administration of government.2

This reality has, of course, shifted over time: we no longer speak of assemblies as courts with judicial functions. Casting back, however, to our feudal roots in England shows that Parliament was conceived as a court for grievances that could be put up against common law courts’ powers. The critical feudal division of power lies in the spheres of advise that individuals or groups are privileged to offer the Sovereign, for which concomitant privileges are attached. I will describe this phenomenon and then apply it to Charter litigation in Canada.


The Origin of Parliament

Frederic W. Maitland ascribes the origin of Parliament, albeit indirectly, to Magna Carta. King John’s 1215 charter submits the Crown to the ‘common counsel of our realm’ when raising most classes of funds.3 Even before this time, in 1213, Maitland has John summoning a council at Oxford composed of ‘four lawful men of every shire, ad loquendum nobiscum de negotiis regni nostri‘.4 These discussions allowed the Crown legitimacy, and John’s failure to adequately consult eventually contributed to the eruption of conflict with his barons.

The institution of Parliament comes later, in the reign of Edward I.5 This king summons an assembly on November 13, 1295, to levy funds for national defense against France and Scotland, along with a revolt from Wales. He does so via personal writs addressed to his barons and spiritual lords. Commoners are summoned via writs addressed to the royal sheriffs of each county. These estates are asked to execute the levies proclaimed by the Crown. The estates of the realm are asked to consent to the royal levy.6 Parliament would require the Crown submit to fresh laws in exchange for funds.

The form created by these exchanges became something of a court as negotiations between Crown and other estates ebbed and flowed. Parliaments served as a check upon feudal power, yet they remained a feudal council advising the Crown and executing the Crown’s decisions. This formality is apparent in the parliamentary roll for 1376, when the Good Parliament exercised itself against perceived corruption in Edward III’s household by citing the poor administration of the King’s revenue:

the said commons came into parliament, publicly making protestation that they were of as good will and firm purpose to aid their noble liege lord with men and goods, and whatever they have, as ever were any others in any time past, and always would be with all their power. But they said that it seemed to them a true thing that if their said liege lord had always had loyal counsellors around him, and good officers, our same lord king would have been well enriched with treasure, and therefore would not have much need to charge his commonalty by means of a subsidy or tallage or otherwise.

PROME, April 13767

The petitions from this Parliament are also indicative of the bargain between Crown and Commons. Information is requested and given; redress requested for specific wrongs; general societal problems resolved through royal grace. These forms are always attached to the Crown’s supply as bargains between the fountain of justice and its people. The King looks to supply the greatest good to his subjects.

The Social Contract

This bargain made by petition and answer in the early centuries of Parliament sets the stage for further revolutionary arguments at the dawn of social contract theory. Edward Coke is one seventeenth-century proponent of parliamentary bargains. His contribution in this regard is, however, relatively light. Thomas Hobbes’s and John Locke’s theories of social contract point to the massive changes in relationships between the Crown, Parliament, and subjects.

Coke advocated for parliamentary independence in explicitly judicial terms:

Note, the House of Commons is to many purposes a distinct Court, and therefore is not prorogued, or adjourned by the prorogation or adjournment of the Lords House: but the Speaker upon signification of the Kings pleasure by the assent of the House of Commons, doth say: This Court doth prorogue or adjourne it self; and then it is prorogued or adjourned, and not before.

Institutes of the Laws of England, 4.28 [sig. D4r]8

Coke’s focus on prorogation and adjournment evokes the larger issue: the Commons’ House is master of its proceedings, a privilege accorded to each English court. John Glanville makes a similar statement regarding the Commons’ privilege with respect to elections: the House is its own court for matters within its jurisdiction.9

These statements are usually read in limited terms to mean that Parliament’s privileges allow it to control its internal proceedings. The doctrine of parliamentary sovereignty (which draws from the logic of Parliament as a court advising the Crown) extends these proceedings over any question that a house of Parliament wishes to study.

Thomas Hobbes’s theory of sovereignty departed from the feudal terms of service and moral government that characterized parliamentary discourse. He instead frames the relationship between sovereign and people as a matter of common consent:

The Greatest of humane Powers, is that which is compounded of the Powers of most men, united by consent, in one person, Naturall, or Civill, that has the use of all their Powers depending on his will; such as is the Power of a Common-wealth: Or depending on the wills of each particular; such as is the Power of a Faction, or of divers factions leagued. Therefore to have servants, is Power; To have friends, is Power: for they are strengths united.

Leviathan10

Unified action creates power, and each human is empowered to join forces. This formulation describes social status as a matter of recognition rather than any inherent quality. Society is formed because individuals ‘love Liberty, and Dominion over others’.11 Society is a defensive measure that appoints ‘the terrour of some Power’ to enforce peace.12 This view is a marked departure from feudalism’s moral and religious frame of reference.13 Individuals are empowered, but Hobbes (true to his experience) continues to laud the monarchy. His theory of government apologizes for Charles I’s obstinacy while degrading Parliament’s revolutionary spirit.14

John Locke’s response to Hobbes’s monarchical view instead frames the social contract in the light of the Glorious Revolution. James II was deposed in 1688 to make way for the protestant William of Orange. Where Hobbes’s theory continued to rely on the Crown’s honour, Locke’s 1689 theory imposed limited government as something of an apology for the Revolution:

Civil society being a state of peace, amongst those who are of it from whom the state of war is excluded by the umpirage, which they have provided in their legislative, for the ending all differences that may arise amongst any of them; it is in their legislative, that the members of a commonwealth are united, and combined together into one coherent living body. This is the soul that gives form, life, and unity to the commonwealth: from hence the several members have their mutual influence, sympathy, and connexion: and therefore, when the legislative is broken or dissolved, dissolution and death follows.

“Of Civil Government”, s. 21215

The legislative branch is the root of all power: Parliament’s call for William to ascend the throne projects the people’s will. England’s social and governmental power is preserved because Parliament separate from the Crown is sovereign.

This new contract departs from feudal norms. Individuals are now empowered to break allegiance and faith in their sovereign via the legislative branch. The Crown’s ability to bargain with its subjects is further constrained by Parliament’s assumption of legislative jurisdiction. Society is preserved whenever Parliament judges the Crown’s exercise of power; executive government can be dissolved so long as legislative power remains.

Privilege and Parliament’s Jurisdiction

The feudal courts used the concept of privilege to justify their jurisdiction in the face of other tribunals. Hence the writs of privilege and prohibition, which were used by English superior courts to assert themselves. These courts originated in the King’s council,16 much like Parliament, which extended the Crown’s duty to hear advice to a large formal assembly.

The 1790 Exchequer case of Cawthorne v Campbell defines judicial privilege in feudal terms:

the Courts of Common Law do ordinarily assert their jurisdiction, in respect of the privilege, either of the Court, or of their ministers and officers, in a different manner, by suing out a writ of privilege, and pleading the privilege of one Court, to the jurisdiction of the other, and so submitting the ground of the privilege claimed to the judgment of that other Court. And indeed, the common and received practice and established course of proceedings in those Courts, has made it the law of those Courts and the law of the land.

in theory, every Court is properly the judge of its own privilege, and no other Court ought to interfere with it.

Chief Baron Eyre17

The Chief Baron states that courts in equity assert privilege by injunction issued to another court. These forms of proceeding resemble Parliament’s privilege. Each council advising the Crown has a collection of feudal privileges to protect its operations from other councils.

The Chief Baron’s summary of the law of inter-court privilege means that each superior court judges the limits of other superior courts powers. Dialogue – perhaps even responsible dialogue – between courts is the true privilege insulating jurisdiction between tribunals.

Parliament’s privileges are on equal footing with judicial privilege. Each category accomplishes the same goal of protecting part of the royal council from interference. To be sure, Parliament cannot be characterized as a superior court. It is instead a legislative court hearing representatives’ pleas for policy changes.


Canadian Application in the Charter Era

Our legislatures simply don’t assert privilege or jurisdiction against judicial interference, which allows the courts’ ministers – lawyers – to run amok. Lawyers can now use the courts in efforts to accomplish social reform by pleading the Charter. These cases have led to great advances in our society and have forced legislative responses. They are laudable efforts, but such pleas are in the form of legislative petitions to amend the Crown’s conduct.

Such petitions were at one time reserved to Parliament because they were pleas to alter the Crown’s actions.

The evolution of Parliament has since then resulted in petitions becoming a dead letter. Our legislatures hear subjects, but no one expects a petition to result in meaningful change. They receive an answer from government, but there is no effective mechanism attached to each prayer.18

We therefore rely on our representatives in Parliament (House and Senate) to advance legislative goals. The government, unfortunately, too often controls the pace of legislation. Political parties also maintain a stranglehold on meaningful legislative intervention. Our Parliaments are political first, legislative second.

The result of this inversion weakens the commonwealth and its social contract to the point where lawyers and litigants feel it necessary to accomplish meaningful social reform through the courts. Any veneer of sovereign authority is shattered in this process. Individuals are able to propel social change in a forum never designed for these sweeping questions.

These individuals are, however, not to blame. We are collectively responsible for electing restive and tactful representatives who can assert Parliament’s legislative jurisdiction against the courts. In this sense, a legislature is a court because its weight in our social lives is as meaningful as a court’s. Each exercises some royal power to do right. Parliaments take a wide view of societal ills; courts resolve disputes between individuals. Lawyers in particular should preach this difference, to put pressure on legislators. At the last, however, legislators should have the gumption to assert jurisdiction in relation to Charter questions. Debate new ideas to find ways forward.


Notes

[1] Of early extraction: see John Bourinot’s Manual of the Constitutional History of Canada, Toronto: Copp, Clark Co., 1901, p. 149, n. 2.

[2] SC 1875, c 49, ss. 3, 7. Vide. An Act respecting the Administration of Justice, and the the establishment of a Police Force in the North West Territories, SC 1873, c 35.

[3] The constitutional history of England : a course of lectures (Cambridge: Cambridge University Press, 1913), pp. 64-5.

[4] Ibidem, p. 68: [to discuss the business of Our kingdom].

[5] For the historical importance of the 1295 parliament, see Michael L Nash, “Crown, woolsack, and mace: the model parliament of 1295” (1995) 267 Contemporary Review 237.

[6] Maitland, 69-70; Helen Maud Cam, Law-finders and Law-makers in Medieval England: collected studies in legal and constitutional history (London: Merlin Press, 1962), supplies a general view of Edward I’s parliaments and their cultural importance, 106-7; for full context, see John Robert Maddicott, The origins of the English parliament, 924-1327 (Oxford: Oxford University Press, 2010), 299, 301, 316.

[7] Chris Given-Wilson et al, eds, “Edward III: April 1376” in Parliament Rolls of Medieval England British History Online (Suffolk: Boydell, Woodbridge, 2005). The original text reads: ‘puis apres les ditz communes vindrent en parlement, y faisantz protestacion overtement q’ils furent de auxi bone volente et ferme purpos d’aider a lour noble seignur lige ove corps et biens, et quanqe q’ils aveient, come unqes y furent nulles autres en aucun temps passe, et toutdys serroient a tout lour poair. Mais ils y distrent qe leur semblait pur chose veritable qe si lour dit seignur lige eust euz toutdys entour luy des loialx conseillers, et bons officers, meisme nostre seignur roy eust este bien rychez de tresor, et partant n’eust mye grantment bosoigne de charger sa commune par voie de subside ou de talliage n’autrement‘.

[8] EEBO Wing / C 4929 (London: M Flesher, 1644).

[9] Reports of Certain Cases Determined and Adjudged by the Commons in Parliament (London: S. Baker and G. Leigh, 1775), 4, 27, 118-119.

[10] Thomas Hobbes, Leviathan: The English and Latin Texts (i), Noel Malcolm, ed. (Oxford: Clarendon Press, 2012), 132.

[11] Ibidem, 254.

[12] Ibidem, 254, vide. 264.

[13] See Brian Tierney, “Medieval Canon Law and Western Constitutionalism” (1966) 52 The Catholic Historical Review 1–17, and Religion, law, and the growth of constitutional thought, 1150-1650, Wiles lectures 1979 (Cambridge: Cambridge University Press, 1982), for the broad strokes of medieval sacral government. Tierney’s views are, however, contested: they are only a starting point.

[14] Supra, note 10, 288: ‘Now in Monarchy, the private interest is the same with the publique. The riches, power, and honour of a Monarch arise onely from the riches, strength and reputation of his Subjects. […] Whereas in a Democracy, or Aristocracy, the publique prosperity conferres not so much to the private fortune of one that is corrupt, or ambitious, as doth many times a perfidious advice, a treacherous action, or a Civill warre’ et seq.

[15] In Ian Shapiro, ed, Two Treatises of Government and A Letter Concerning Toleration (Princeton, NJ: Yale University Press, 2003) 100.

[16] George Burton Adams, “Origin of the English Courts of Common Law” (1920) 30 Yale Law Journal 798–813.

[17] 1 Anstr 205, 208.

[18] Note that the old process of petitioning for legislation continues for private bills: Standing Orders of the House of Commons, S.O. 131. This old process is also still reflected in the form of petitions, S.O. 36.

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