persons who responded to the writs under which the parliaments were convened still retained without any fresh enactment the protection guaranteed by the earlier laws, the sovereign who issued the writs placing under his protection, while going to and fro, the persons who obeyed them. This protection extended not only over the period occupied by the parliament, but, as was generally claimed, over a period of forty days before and after each session. And it was held that this immunity extended not only to the members themImmunity selves, but to their servants. Such the privilege was deservants. clared to be by statute in the 5th Henry IV. c. 6, in the special case of Chedder, a member's servant beaten by one Savage, who was required to surrender in the king's bench, and in default to pay twofold damages to the party injured, besides the fine to the king.2 By a general law passed in 11th Henry 11th Henry VI. c. 11, a penalty identical with that imposed by the law of Æthelred was fixed in all cases of affray or assault upon any member of either house coming to council or parliament under the king's command.3 extended to Stat. of VI. Exemption from legal arrest and distress. Cases of St. David's and Prior of Malton. Thorpe's case. The immunity from personal molestation thus enjoyed by the members and their servants was also held to exempt both, together with their property, from legal arrest, and distress in civil suits, during the period over which the privilege extended. When Edward I. was petitioned by the Master of the Temple for leave to distrain for rent of a house held of him by the Bishop of St. David's, he replied that "it does not seem fit that the king should grant that they who are of his council should be distrained in time of parliament." And Edward II. in 1315 recognized the privilege by resenting the arrest of the Prior of Malton while on his way from parliament, not only as an offence to the prior, but as a breach of the king's peace and dignity. But in spite of frequent prior recognitions, this privilege was openly violated in the famous. case of Thomas Thorpe, speaker of the commons, who, during a prorogation of parliament, was in 1453 imprisoned on 1 For the authorities touching the duration of the privilege, see May, Parl. Practice, p. 139. 2 Statutes, ii. p. 144; Rot. Parl., iii. P. 542. 8 Statutes, ii. p. 286; Rot. Parl., iv. p. 453. 4 Rot. Parl., i. p. 61. See, also, Coke, 4th Inst., 24 E; Hatsell, Prece dents, i. p. 3. 6 Hatsell, Precedents, i. p. 12. an execution issued out of the exchequer for the non-payment of a fine due the king for a trespass committed in the seizure of certain property belonging to the Duke of York. When the commons complained to the king and lords, and demanded the release of their speaker, the judges were consulted, and they, after protesting that "the determination and knowlegge of that Privelegge belongeth to the Lordes of the Parlement, and not to the Justices," nevertheless took occasion to assert that "if any persone that is a membre of this high Court of Parlement be arested in suche cases as be not for treason or felony, or suerte of the peas, or for a condempnation hadde before the Parlement, it is used that all such persones shuld be relessed of such arrestes, and make. an Attourney, so that they may have theire fredom and libertee frely to entende upon the Parlement." In spite, however, of the opinion of the judges, the lords-influenced no doubt by the fact that Thorpe was an enemy of the Duke of York, who was then dominant — held that notwithstanding his privilege he should remain in prison; and the commons were directed in the king's name to proceed to the election of a new speaker, which they did the next day.1 of the mace. The practical difficulty under which the commons labored, Authority and which the case of Thorpe disclosed, was that, although the right to freedom from arrest had been established by the highest legal authority, the house itself possessed no independent means for its enforcement. Not until the middle of the sixteenth century did the commons ever attempt to deliver a member out of custody by virtue of their own unaided authority. Prior to that time, when "members were in execution, in order to save the rights of the plaintiff, they obtained special statutes to authorize the lord chancellor to issue writs for their release; and when confined on mesne Writs of privilege process only, they were delivered by a writ of privilege issued at first isby the lord chancellor." In 1543 the commons first asserted their right to release a member by their own authority in the case of Ferrers, a member held in custody in a civil suit 1 Rot. Parl., v. pp. 239, 240. It was afterwards said in parliament that this case was "begotten by the iniquity of the times."- Commons Journal, i. p. 546. 2 May, Parl. Practice, p. 130, citing cases of Larke, Clerk, Hyde, and Atwyll; Rot. Parl., iv. p. 357; Ibid., v. p. 374; Ibid., vi. pp. 160, 191; Sadcliff's case, Hatsell, Precedents, i. p. 51. sued by the lord chan cellor. Ferrers' ase. under a writ issued from the king's bench. When the house, hearing of the arrest, sent their sergeant to demand the release of the member, he was at first resisted by the jailers and sheriffs of London, but when the sergeant was sent a second time the prisoner was promptly surrendered. As a vindication of its dignity, the house committed for contempt not only the jailers and sheriffs, but even the plaintiff in the When these energetic measures were reported to the king, he earnestly commended the action of the commons in the presence of the judges, the speaker, and other leading members of the house; and, when he had finished, his views were confirmed by the lord chief justice.1 Although after that time members were released by writs of privilege when obtained by the permission or warrant of the speaker, the case of Ferrers may be regarded as establishing the right of the commons to release a member from custody by the warThe privi- rant of the mace alone. The privilege in its widest form, fined by giving rise to many abuses, was restricted from time to time statute in by statute,2 until at last, in 1770, an act3 was passed by which it was reduced to its ancient limits; that is to say, freedom from arrest was guaranteed to the persons of members only, their servants and their property being left subject to ordinary legal procedure. At no time was the privilege ever allowed to interfere with the administration of criminal justice, -imprisonment for treason, felony, or for security of the peace at all times being excepted from its operation.* lege as de 1770. Right of with the lords. In the parliament of 1402 the commons made a fresh and conference formal demand for the exercise of a privilege which had no doubt existed in some form from the very organization of the parliamentary system, the privilege of conferring with the lords upon all pending questions of importance which called for concurrent action. Although the lords claimed that it sued. See Colonel Pitt's case, Strange, vol. ii. p. 985. 1 This case rests upon the authority of Holinshed (i. p. 824), and not upon parliamentary records. As to the accuracy of the account, see May, Parl. Practice, p. 132. 2 12 & 13 Will. III. c. 3; 2 & 3 Anne, c. 18; 11 Geo. II. c. 24. 8 10 Geo. III. c. 50. It has been held that the arrest of a member is irregular ab initio, and that he may be discharged immediately upon motion in the court from which the process is 4 As to the limits of privilege in case of open contempt of a court of justice, see May, Parl. Practice, p. 160. In the case referred to, Cockburn, C. J., after fining two members for contempt in connection with the "Tichborne Case," said if he had seen fit to commit them, he would not have been restrained by privilege. was the duty of the commons to debate among themselves and then to report their views to them, and although the commons often claimed the right when a conference was to be had of selecting the lords with whom they were to confer, the usual course seems to have been for each body to appoint a committee to confer with a similar committee from the other, and then after consultation each committee reported the result to its own house. In 1373 the first instance occurs of the commons requesting the lords to appoint a select body to confer with them.1 In 1383 the commons renew the request for a committee of conference from the lords, and couple with it the request that they be allowed to elect the lords of whom the committee should be composed. Richard II., in yielding to the request as a matter of grace, was careful to assert that the right of selection claimed belonged, not to the commons, but to the king himself.2 When, in the parliament of 1402, the commons demanded of Henry IV. the right to confer with a select committee from the lords touching certain important matters he had given them in charge, he yielded to the request, but with the express statement that he did so as a matter of favor and not as a matter of right.3 of Lancas 3. The effort made in the preceding chapter to outline The house the history of parliament during the fourteenth century con- ter. cluded with the statement that its authority reached the limit of its growth when, after a struggle of scarcely two months' duration, it deposed the ruling sovereign in the person of Richard II., and then, after ignoring the claimant who really represented the hereditary title, awarded the crown to another member of the royal house whom it deemed more competent to govern. After Henry of Lancaster had stood forth in the assembly of estates at Westminster Hall, and had challenged and claimed the kingdom of England and the crown thereof, by reason of conquest, inheritance, and Richard's resignation,5 the estates there assembled were con 1 Rot. Parl., ii. p. 317. 2 Ibid., iii. p. 145; Hallam, M. A., vol. iii. p. 66. 8 Rot. Parl., iii. p. 486. Cf. Stubbs, Const. Hist., vol. ii. pp. 426, 465, 593; vol. iii. pp. 37, 457. As to the modern practice when conferences occur be tween the houses, see May, Parl. Prac- 4 See above, p. 514. These are the three grounds as stated by Froissart, iv. c. 116. Henry rose in the assembly and stated his own claim in English, as follows: "In sulted, singly and collectively, as to what they thought of such claim; "and thereupon the lords spiritual and temporal, and all the states, with the people, consented that the duke should reign over them."1 And so while Henry as the leader of the counter-revolution through which the change of dynasty was brought about, was careful to put forward every claim but the true one, the estates, by whose united action the revolution was made effective, were equally careful to make it the occasion for the assertion of a constitutional principle which became the corner-stone upon which the throne of the new dynasty was erected. Although Henry challenged the crown by a threefold claim of title, which carefully excluded the theory of election, his confused assertion of right could not conceal the fact that he was the mere creature of a parliamentary revolution, that he was destined to reign by Its right to virtue of a parliamentary title. In spite of all disguises the rule based fact stood out that from his election by the assembly of liamentary estates Henry derived the right to reign, and in his first. upon a par title. parliament the new sovereign was careful to admit his real constitutional status by declaring through the mouth of Archbishop Arundel that he did not desire to be governed by his own will and purpose, but by the common advice, counsel, and consent of the wise and ancient of the kingdom.2 The victory which the assembly of estates thus won over the The succes- monarchy was emphasized upon four different occasions dursion four ing Henry's reign when the parliament saw fit to regulate times regulated by and limit the succession to the crown which their election parliament during the had bestowed. In the first parliament, which met on the 6th Henry IV. of October, 1399,3 the Prince of Wales, with the assent of reign of the name of Father, Son, and Holy 1 Lord's Report, vol. i. p. 349. The Report goes on to say: "It is to be collected from the language of the roll, that this general acclamation was considered as having made the Duke of Lancaster king." 2 Rot. Parl., iii. p. 415. 8 This parliament, which had deposed Richard II. on the 30th of September, and which was supposed to be dissolved by his deposition, was reassembled under the new king's writs on the 6th of October. As to the short notice, see Rot. Parl., iii. p. 423; as to the writs, see Lords' Report, vol. iv. p. 768. |