Some New Light on the Growth of Parliamentary Sovereignty: Wimbish versus Taillebois

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.