Parliamentary Supremacy

Developed in response to the colonies?

Coke subscribed to the proposition that the Magna Carta embodied fundamental law; that its provision did limit sovereign authority, including Parliament. As a member of Parliament in his battle against Charles I, he would declare:

I know that prerogative is part of the law, but sovereign power is no Parliamentary word; in my opinion, it weakens Magna Carta and all our statutes; for they are absolute without any saving of sovereign power. And shall we now add to it, we shall weaken the foundation of the Law, and then the building must need fall; take we heed what we yield unto—Magna Carta is such a Fellow he will have no Sovereign.37

In this connection, his opinion in Bonham’s case, nullifying an act of Parliament, is usually cited. In this instance, however, Coke made no reference to the Magna Carta, relying instead on “common right and reason” which he closely associates with the common law.38

It would be wrong, however, to believe that Coke’s notions about fundamental law (in the sense he meant) and “common right and reason” as a limitation on Parliament were widely shared either in Great Britain or the colonies. To be sure, in Lechmere’s case (1761), James Otis cites and employs Coke’s reasoning to [157] argue that the Parliamentary act authorizing the use of Writs of Assistance was null and void, contrary to the fundamental principles of the Magna Carta and English constitutional practice.39 Yet Otis’s position is remembered precisely because it was relatively novel in this era.

What is more, within the confines of the British constitutional framework as it was generally understood after the Glorious Revolution of 1688, Parliament was considered supreme. Blackstone, whose Commentaries (1765-69) in the later part of the founding era had supplanted Coke’s Second Institute, declared that “The Power and jurisdiction of Parliament” was “transcendent and paramount.” “It hath sovereign and uncontrollable authority,” he wrote, “in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military maritime, or criminal; this being the place where that absolute despotic power, which must in all government reside somewhere, is entrusted by the constitution of these kingdoms.” “True it is,” he observed, “that what the parliament doth, no authority upon earth can undo.” 40