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The constitutional history of England in its origin and development, Volume 3 online

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XX.] Arrest of Speakers. 491

the breach of privilege. Three prominent instances stand out Instances
at three important epochs, in which the speaker himself, or the of the
person who fulfilled the duties that afterwards devolved on the
speaker^ was made the scapegoat of the house of commons. In
1 30 1, after the parliament of Lincoln, at which he had been
outrageously worried by the opposition of the estates, Edward I
sent to the tower Henry Keighley, the knight who had pre-Hemy
sented to him the bill of articles drawn up in the name of the
whole community^. "We learn from his own letter on the subject
that the measure was dictated by policy rather than by vindic-
tive feeling ; the prisoner was to be kindly treated and made
to believe that mercy was shown him at the instance of the
minister whom he had attacked. There is no record of any
action taken either in or out of parliament for his release, but
he is soon after found in public employment as a commissioner
of array and justice of assize* The second case is that of Peter peter de la
de la Mare, the prolocutor of the good parliament of 1376, who
was thrown into prison by John of Gaunt for his conduct in
that assembly ^ The arrest, although prompted by a faction,
must have been executed in the form of law. The vindication
of Peter de la Mare was undertaken, not by the parliament,
which was indeed defunct, but by the citizens of London, who
rose in tumult and demanded for him a fair trial > in the suc-
ceeding parliament, which was elected under the influence of
John of Oaunt, a minority of the knights made an attempt to
obtain his release and a legal triaL fie remained in prison
until the death of Edward III, was released by Bichard 11, and
almost immediately elected speaker in the first parliament of that
king. The third case is that of Thomas Thorpe, the speaker of Thomas
the parliament of 1453; who in consequence of his opposition
to the duke of York was prosecuted on a private pretext, cast
for damages on the verdict of a jury, and sent to the Fleet
daring a prorogation of parliament. The imprisonment of
Thorpe, like that of Peter de la Mare, was the act of a faction.

^ See vol. iL p. 151, and above, p. 453.
» See vol. ii. pp. 435. 440.

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49^ Constitutional ffistoiy. [chap.

Arrest of lesrally carried into execution, but primarily intended to silence

Thorpe the , "^ t :..«. j i. xi. ^

speaker. a dangerous enemy. It differed from the former case as occur-
ring during the actual existence of parliament and not after its
close. Thorpe was a member, and speaker at the time of his
imprisonment, and the privilege of members was directly touched
in two points, freedom of speech and freedom from arrest
When the parliament met after prorogation the commons
demanded their speaker ; they sent to the king and the lords
requesting that they might have and enjoy their ancient and
accustomed privilege, and in accordance therewith that Thomas
Thorpe and "Walter Rayle, who were then in prison, might be set
free for the dispatch of the business of parliament. The counsel
of the duke appeared before the lords to oppose the application ;
he gave his account of the circumstances of Uie arrest, and
urged moreover that the arrest had been made in vacation. The
lords, not intending to * impeach or hurt the liberties and privi-

iHscusMon leges of the commons/ asked the opinion of the justices, who
said ' that they ought not to answer to that question, for it hath
not been used aforetime that the justices should in anywise de-
termine the privilege of this high court of parliament ; for it is
so high and so mighty in its nature that it may make law, and
that that is law it may make no law, and the determination and
knowledge of that privilege belongeth to the lords of Uie parlia-
ment and not to the justices.' They proceeded however to state
that there was no form of * supersedeas* that could stop all pro-
cesses against privileged members, but that the custom was,
if a member were arrested for any less cause than treason, felony,
breach of the peace, and sentence of parliament, he should make

"^©^i^stionhis attorney and be released to attend in parliament. The lords
declined to suggest this course; they determined that Thorpe
should remain in prison ; and the commons were ordered in the
king's name to elect a new speaker. l%e case was treated as a
simple case of arrest, political reasons were kept out of sight,
and the commons found that they had no remedy *.

Besides these instances of arrest of the speaker, two other

' See above, pp. 164-166; Rot. Pari. v. 227, 240, 295, &o.; HataeU's
Precedents, i. 31-34.

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XX.] Freedom of debate. 495

famous cases are founcL in which a similar summary method Arrest of

^ , •' particular

was adopted for the punishment of other offenders : the case offenden.
of Haxey in 1397 and that of Yonge in 1455. The former has
been frequently adverted to already. He had brought into the Hai^s
house of commons a bill which reflected censure on the king and
court ; that bill had come to the king's knowledge ; he demanded,
and the commons with a humble apology gave up, the name
of the proposer ; how the bill got into the house we doi not
know, for Haxey was a clergyman, not a member of the house,
and although, if he were a clerical proctor, he might have de-
manded the same privilege as a member, no such claim was
raised for him. He was imprisoned, condemned, claimed by
the archbishop as a clerk, and pardoned. In this case there is
a direct interference of the king with freedom of debate in the
commons apart from the question of right of freedom from
arrest. The commons did not show, and probably did not see
that they ought to have shown, an independent spirit on the

The case of Thomas Yonge or Young, the member for Bristol, Case of
who proposed in the parliament of 145 1 that the duke of YorkTonge.
should be declared heir to the crown, is not free from obscuri-
ties of its own ^. In the records of parliament it appears only
in a petition presented by him to the commons in 1455, in which
he reminds them of their right that all members ' ought to have
their freedom to speak and say in the house of their assembly
as to them is thought convenient or reasonable without any
manner challenge, charge, or punition therefore to be laid to
them in anywise.' Notwithstanding his privilege he had, in
consequence of untrue reports to the king, been imprisoned in
the Tower, and endamaged to the amount of a thousand marks.
He asks the commons to pray the king and lords to procure
him compensation. The commons sent up the bill to the lords,
and the king ordered that the lords of the council should provide
a remedy. Here we have only the complainant's account of the
matter; it is no doubt substantially true, but the exact grouads

* See above, i^. 159, 174 ; Rot. Pail. v. 537.

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494 Constitutional Khtory. [chap.

on which the arrest was made are not stated. Matter of priTi-
lege as it was^ the prayer is for personal and private indeninitj:
the commons seem to have no remedy bat petition, and no
atonement is offered to their injured dignity. So the caae stands
in the last years of the Lancastrian rule.
Immunity 452. These instances all really &11 on common ground be-
from per- tween two great points of privilege — ^fireedom of speech and fi-ee-
lestation dom'from arrest. The latter is the guarantee of the former, but
it has inevitably a much wider operation, is practically more de-
fensible, and accordingly is technically more definite. What
must be said about it here must be confined to the cases of the
members of the house of commons: the peers had a similar
immunity on other gprounds. From the very earliest times the
persons of those who were on their way to the king's court and
council had a sort of sanctity such as is recognised in an ambas-
sador. By the law of Ethelbert, *if the king call his "leod"
to him, and any one there do them evil,' the offender must
make double satisfaction to the injured person and pay a fine
to the kingK Canute wills, in a law which must have had a
still wider application, ' that every man be entitled to grith to
the gemot and from the gemot except he be a notorious thief'.*
The laws ascribed to Edward the Confessor recognise a particular
immunity for persons going to and from the synods ^ After the
institution of writs there was no occasion for such enactments
to be repeated. All members going to or returning from parlia-
ment were under the prescriptive protection of the king who
summoned them. So long as the parliaments were annual and
short the protection secured by this rule was, however import-
ant, of no very wide or protracted extent. The early cases of
the breach are therefore less important than the later: when
a parliament subsisted for great part of a year, or was pro-
rogued at short intervals and for formal sessions, the immunity
became personally more valuable. The principle as just stated

^ Ethelbert, § i ; Select Charters, p. 60.
» Canute, § 83 ; cf. Edw. Conf.. § a ; Select Charters, p. 73.
' LL Edw. Coii£ art. a, cL 8 : this privilege is recognised whether tht
person in question has been summoned or goes on his own busineas.

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XX.] Freedom from Arrest. 495

involves two issues : the protection of the member from illegal Memben
molestation and the protection of the member from legal arrest, from per-
As to the first of these, the speciid privilege could be asserted lestatkm.
only by making the injury done to the individual an injury
done to the house of which he is a member, and so visiting the
offender with additional punishment. On this point it is not
necessary to enlarge ; it has been since the reign of Heury IV
a matter of law ; and that law singularly in concordance with
the law of Ethelbert. The Statute of 5 Henry lY, c. 6, lays Chedder's
down the rule in tiie special case of Richard Chedder, a member's
servant, who was beaten and wounded by one John Savage :
Savage is to surrender in the King's Bench, and in default to
pay double damages besides fine and ransom to the king'. By Legislation
a general enactment, 11 Henry VI, c. 11, the same penalty,
which is identical with that of Ethelbert, is inflicted in
case of any affitty or assault on any member of either house
coming to parliament or council by the king's command^.
Several such cases of violence are reported*. The modem
importance of this point lies, as a point of privilege, rather in
the threat of violence than in the actual infliction.

The other point, the protection of the members of parliament Protection
and their servants from arrest and distress, from being im-arreat.
pleaded in civil suits, from being summoned by subpoena or to
serve on juries, and their privil^^ in regard to commitments
by legal tribunals, rests in each particular here enumerated on
the supreme necessity of attending to the business of parlia-
ment, the king's highest court The several particulars concern
matters of legal detail with which we are not called on to
meddle. But some of the leading and most illustrative instances
of the prescription are found in medieval records. Some of
these have been noticed already in relation to freedom of speech
and debate. In 1 290 Edward I laid down the rule that it was
not becoming for a member of the king^s council to be distrained

^ Stat. 5 Hen. IV. c. 6 ; Statntes, ii. 144; Hot Pari, ill 54a.
' Stat II Hen. YI, c. 11 ; Statutes, ii. 386 ; Rot. Pari. iv. 453.
' See for instance, Swynerton's case, Bot. ParL ill. 317; cf. Hatsell,
Precedents, i. 16, 36, 75, ^.

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49^ Constitutional History, [chap.

Writs of in time of parliament \ In 13 14 Edward II issued two general
writs superseding during the session all writs of taking

juries, and certificates touching any member of either hoiue ' ;
and in 13 15 he marked the arrest of the prior of Malton on his
way from parliament as an act done in contempt of the king,
in prejudice of the crown, in damage of the prior and against
the king's peace.
Security of The immunity was held to extend- to the servants of mem-
senrantf. bers^ and a petition of the commons in 1404 declares that the
custom of the realm protects them as well as their masters from
arrest and imprisonment, although they pray that such custom
may be established by statute. The king's answer is, that there
is sufficient remedy in such cases, which seems to amount to a
refusal of the petition '.
Means of The recognition of the right, however ancient and full Uie
the right, admission may have been, was a very different thing from the
power of enforcing it ; and the house of commons seems to have
had no means of doing this but by petition, or by obtaining a
writ of supersedeas. Besides the case of Thorpe, already mai-
tioned, the most prominent cases are those of William Lark in
1429*, and Walter Clerk, burgess for Chippenham, in 1460*.
lATk's caae. Lark was the servant of William Milrede, member for London,
and had been arrested at the suit of Margery Janyns, com-
mitted to the Fleet prison by the Court of King's Bench, and
there detained for damages. The commons petitioned that in
consideration of the privilege of members securing them against
arrest except for treason, felony, or breach of peace, Lark might
be liberated during the session of parliament; and that the
custom claimed for the conmions might be established by statute.
The king rejected the last petition, but ordered the release of
Lark, securing to Margery her rights after the close of the
session*. In the case of Clerk, who had been arrested for a

^ See Hatsell, Precedents, i. 3 ; Coke, 4th Inst. p. 24 ; Piynne, Beg.
iv. 820, &c.
' See Bot. Pari i. 449, 450 ; Hatsell, Preoedents, L 6, 7.
' Bot. Pari. iii. 541 ; Hatsell, Precedents, I 13.

* Bot. Pari. ir. 357. » Ihid. v. 374.

• Hatseli, Precedents, i. 17-33.

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XX.] Freedom from Arrest. 497

fine to the king and damages to two private suitors, and after- Case af
wards imprisoned and outlawed, the commons petitioned that Clerk,
the chancellor might order his release by a writ to the warden
of the Fleet, saving the rights of the parties after the dissolu-
tion. This the king granted ^. These however are only two
put of a large number of like precedents. Another famous case AtwyU's
occurred in 1477; that of John Atwyll, member for Exeter,
against whom several writs of arrest had been obtained at the
instance of a private litigant. The commons petitioned that
writs of supersedeas should be issued in each case, saving the
rights of the suitor after the close of the session. In this case
it is observed that, although the commons claim a right to the
suspension of the writ of execution, they do not insist on redress
for the impleading of a member during the session as a breach
of privilege '. The condition of affairs at the end of the reign statement

*_ , of the point

of Edward IV is thus stated : — ' When a member or his servant at the close
has been imprisoned, the house of commons have never pro-
ceeded to deliver such person out of custody by virtue of their
own authority ; but, if the member has been in execution, have
applied for an act of parliament to enable the chancellor to
issue his writ for his release, or if the party was confined only
on mesne process, he has been delivered by his writ of privilege
to which he was entitled at common law '.' The privilege was
in no case extended to imprisonment for treason, felony, or for
security of the peace : it was loosely allowed to the servants in
attendance on members, and it was claimed for a period of time
preceding and following as well as during the session. The
length of this period was variously stated, and has not been
legally decided. The general belief or tradition has established
the rule of forty days before and after each session.

453. The special privileges of peers of the realm were Wviieges^
sufficiently numerous, but only those need be noticed here
which are connected or contrasted with those of the house of
commons. The peers have immunity from arrest, not merely

' Hfttsell, Preoedenti, i. 34-36.

* Hot. ParL vi. 191 ; Hatsell, Precedents, i. 48-50.

' Hatsell, Preoedentt, i. 53.


of the peers.

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498 Constitutional History. [chap.

Immunities as members of the house, but as barons of the realm; their
wives have the same privilege, and; under the statute of 1442*
the right to be tried like their husbands by their peers. The
duration of the immunity is not limited by the session of par-
liament, but the person of a peer is * for ever sacred and invio-
lable.' Yet this protection is only against the processes of com-
mon law, and, notwithstanding the dignity of peerage, instances
of imprisonment for political causes and on royal warrants are
far more numerous in the case of peers than of members of the
house of commons. This then is not a privil^e of parliament,
and has no relation to any immunity resting on the BommoBS
or writ of the king, although, as the peers are hereditary and
Minute and perpetual counsellors, it has a corresponding validity. The
pri^e^. right of killing venison in the royal forests, allowed by the
Charter of the Forests, the right of obtaining heavier damages
for slander than an ordinary subject ^ and all the rest of the
invidious privileges which time has done its best to make obso-

Bight of lete, may be left out of sishi. The only other important riirfat
acoesstothe , . ,, ^ , ,. . ,, .

loyereign. of peerage is that of demandmg access to the sovereign ; a

privilege which every peer has, which the ordinary subject has
not, and which the member of the house of commons can demand
only in the company of his fellow-members witli the speaker
at their head. There have been times when this right or the
suspension of it were important political points : it was by
estranging Edward 11 from the society of his barons that the
Despensers brought about his downfall and their own*; and
Richard II, in the same way, held himself aloof from the men
who hated and despised him '. This was the right the refusal
of which provoked Warwick to fight at S. Alban's and at
Northampton *. But history in this, as in all the previous in-
stances of privilege, has to dwell on the breach rather than on
the observance.

In another chapter we shall have to attempt to trace the
social as distinct from the legal and technical working of

* 2 Rich, n, c. 5. • See above, vol. ii. p. .^447.

• See above, vol ii. p. 473. * See above, pp. 170, 183.

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XX.] Conclusion. 499

the influences here exemplified in matters of ceremony, form,
and privil^e ; influences which have constantly tended to
place the house of commons and its memhers on a footing of
firm and equal solidity with the house of lords, to extinguish
invidious and vexatious immunities, and to produce for all poli-
tical and national purposes something like a self-forgetting and
sympathetic harmony of action.

Kk 2

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454. Plan of the chapter. — 455. Variations of the politioal bal&noe
throughout Eoglish History. — 456. The Kings: — ^popular regard for the
Plantagenets. — 457. Growth of loyalty. — 458. Doctrine of legitimism.
459. Material and legal securities. — 460. Extent of the royal estates. —
461. Beligious duty of obedience.^-462. Fealty, homage, and allegianoe. —
468. Law of Treason. — 464. The Clebgt.— 465. Weakness of their
spiritual position. — 466. Weakness of their temporal position. — 467. The
Babonaoe : — ^their wealth and extent of property. — 468. Their territorial
distribution. — 469. Glass distinctions. — 470. Liveiy and maintenance. —
471. Heraldic distinctions. — 472. Fortified houses and parks. — 473. Great
households. — 474. Service by indenture. — 475. Good and evil results of
baronial leadership. — 476. Baronial position of the bishops. 477. The
Kkights and Squibes. — 478. Their reUtion to the barons. — 479. Inde-
pendent attitude of the knights in parliament. — 480. The Teoicanbt. —
481. Expenditure of the squire and tenant fiumer. — 482. The valetH in
parliament. — 483. The yeomen electors. — 484. The Bobouohs. — 485. The
merchant guild and its developments. — 486. Constitution of London. — 487*
Importance and growth of companies. — 488. Other municipalities. — 489.
Politics in the boroughs, and of their representatives. — 490. Political
capabilities of country and town, merchant, tradesman, and artificer. — 49L
The life of the burgher. — 492. Connexion with the country and with other
classes. — 493. Artisans and labourers. — 494. The poor. — 495. The villeins.
— 496. The chance of rising in the world. Education. — 497. Class an-
tagonisms.^498. Concluding reflexions. National character. — 499. Tran-
sition. — 500. Some lessons of history.

Pttoton of 454. The great changes which diversify the internal history

hirtory. of a nation are mainly due to the variations in the condition

and relations of the several political factors which contribute to

that history : their weight, their force and vitality, their mutual

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Men and Principles, 501

attraction and repulsion, their powers of expansion and con- Thee
traction. The great ship of the state has its centre of gravity the X^eT
as well as its apparatus for steering and sailing, its machinery histor^
of defence, and its lading. And it is upon the working of these
factors that every great crisis of national life must ultimately
turn. Qreat men may forestall or delay such critical changes; the
greatest men aspire to guide nations through them; sometimes
great men seem to be created by or for such conjunctures ; and
without a careful examination of the lives of such men, history
cannot be written. But they do not create the conjunctures : and
the history which searches no deeper is manifestly incomplete.
In the reading of constitutional history this is a primary con-
dition : we have to deal with principles and institutions first, and
with men, great or small, mainly as working the institutions
and exemplifying the development of the principles. As in- Method of
stitutions and principles, however much they may in the abstract adopted,
be amenable to critical analysis, can be traced in their operation
and development only in the concrete, it is necessary to divide
and rule out the design of historical writing by the epochs of
reigns of kings and the lives of other great men. A perpetual
straining after the abstract idea or law of change, the constant
' accentuation,' as it is called, of principles in historical writing,
invariably marks a narrow view of truth, a want of mastery over
details, and a bias towards foregone conclusions. In adopting
the method which has been used, however imperfectly, in this
work, of proceeding historically rather than philosophically, this
has been kept in view. "We have attempted to look at the
national institutions as they grew, and to trace the less perma-
nent and essential influences only so long as they have a bearing
on that growth. The necessity of finding one string, by which
to give a unity to the course of so varied an inquiry, has in-
volved the further necessity of long narrative chapters and of
much unavoidable repetition. The object of the present chapter Object of
will be to examine into the condition and relation of the factors chapter,
which produced the criticfd changes indicated in the preceding
narrative, in those points in which they come less prominently
forward, and to take up, as we proceed, some of the most

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50Z Constitutional History. [chap.

Object of significant aspects of the social history which underlies the poli-
cha^^^ tical history. The variation of the balance, maintained between
the several agencies at work in the national growth, will be
regarded as the point of sight in our sketch, but the main object
of the chapter will be the examination of the factors them-
selves ; the strength, weight and influence of royalty ; the com-
position, personal and territorial, of the baronage and gentry ;
their political ideas and education ; the growth of the middle
class and its relation to those above and below it; and the
condition of the lowest class of the nation. It is obvious that

Online LibraryWilliam StubbsThe constitutional history of England in its origin and development, Volume 3 → online text (page 51 of 68)