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UNIVERSITY OF MICHIGAN
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SI QUAERIS.PENINSULAMAMOENAME
1837
VERITAS
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SCIENTIA
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PRECEDENTS
OF
PROCEEDINGS
IN THE
HOUSE OF COMMONS;
WITH OBSERVATIONS.
IN FOUR VOLUMES:
VOL. I. PRIVILEGE OF PARLIAMENT.
VOL. II.MEMBERS, SPEAKER, &c.
VOL. III.-LORDS, AND SUPPLY.
VOL. IV._CONFERENCE, AND IMPEACHMENT.
A NEW EDITION, WITH ADDITIONS.
LONDON:
PRINTED BY LUKE HANSARD AND SONS, NEAR LINCOLN'S-INN FIELDS,
AND SOLD BY PAYNE AND FOSS, PALL-MALI; CADELL AND DAVIES, IN THE STRAND;
AND CLARKE AND SONS, PORTUGAL-STREET, LINCOLN'S-INN.
6
1818.
TO
THE RIGHT HONOURABLE
CHARLES
BARON COLCHESTER,
ONE OF HIS MAJESTY'S MOST HONOURABLE PRIVY COUNCIL,
&c.
&c. &c.
THIS NEW EDITION
OF
PARLIAMENTARY PRECEDENTS,
TS,
WITH THE GREATEST RESPECT,
INSCRIBED,
BY HIS MOST FAITHFUL FRIEND,
AND OBEDIENT HUMBLE SERVANT,
JOHN HATSELL.
P R E F A C E
TO
A NEW EDITION OF
Precedents of Parliamentary Proceedings.
II
T is now above Forty Years since the publi-
cation of the First Volume of this Work; and
more than Twenty Years have elapsed, since the
whole, in Four Volumes, has been submitted to
the Public.—Within that time, many Cases have
occurred, and several Acts of Parliament have been
passed, which, in some instances have explained
and illustrated, in others have made an alteration
in the Law of Parliament, as it was then to be
collected from the Precedents referred to under
the several Titles. This consideration alone would
be a sufficient reason for publishing a New Edition
of this Work; but whoever has leisure lo compare
these Volumes with the former, will immediately
perceive the advantages, which they derive from
the
1
vi
PREFACE.
the Notes and Observations, that have been com-
municated to the Editor by the Right Honourable
CHARLES Abbot, late Speaker of The House of
Commons, now Lord COLCHESTER, who presided
in that Assembly for more than Fifteen Years,
with so much honour to himself, and with such
satisfaction to the Public.
Mr. Abbot's constant and uniform attention to
the Rules and Orders of the House, and to the
Public and Private Business, His intimate know-
ledge of the Antient Records and Journals of
Parliament, His acute and accurate investigation
of all the circumstances which have any reference
to the History and Constitution of this Country,
cannot fail to stamp the highest value on these
communications.
In contemplating the merits and services of
Mr. ABBOT, in the eminent situation in which he
was placed, the Editor of this Work cannot refrain
from adverting particularly to the dignified and
impressive manner in which he delivered the
Thanks of The House of Commons, to the dis-
tinguished
PREFACE.
vii
tinguished Officers to whom they were voted in the
late War! The Speeches of Mr. ABBOT, on those
occasions, may justly be considered as perfect
models in that species of eloquence.
It is a source of great comfort to the Editor of
these Volumes, to think that, though at a very
advanced age, he has been blessed with health
and spirits sufficient to permit him to attend to
this Republication. And he has the satisfaction
to reflect, and to express his hopes, that, when
he shall be removed from this World, he shall
be thought not to have lived in vain; but tº
have employed his studies and leisure hours, in
putting together a Work, which he trusts
may
be of public utility; and which may, in however
inferior a degree, contribute to the support and
preservation of our justly admired, and most
excellent Constitution.
J. H.
COTTON GARDEN,
January 1818.
P R E C E D ENTS
OF
PROCEEDINGS
IN THE
HOUSE OF COMMONS:
WITH OBSERVATIONS.
VOL. I:
.
RELATING TO PRIVILEGE OF PARLIAMENT;
FROM THE EARLIEST RECORDS, TO THE YEAR 1628 :
WITH OBSERVATIONS UPON THE REIGN OF CAR. I.
FROM 1628 TO 4 JANUARY 1641.
A NEW EDITION, WITH ADDITIONS.
L O N D ON:
PRINTED BY LUKE HANSARD AND SONS, NEAR LINCOLN'S-INN FIELDS;
AND SOLD BY PAYNE AND FOSS, PALL-MALL; CADELL AND DAVIES, IN THE STRAND ;
AND CLARKE AND SONS, PORTUGAL-STREET, LINCOLN'S-INN.
1818.
ΤΟ
THE RIGHT HONOURABLE
JEREMIAH DYSON,
COFFERER TO HIS MAJESTY'S HOUSEHOLD,
AND
ONE OF HIS MAJESTY'S
MOST HONOURABLE PRIVY COUNCIL,
THE FOLLOWING
COLLECTION OF CASES OF
PRIVILEGE OF PARLIAMENT,
IS,
WITH THE MOST SINCERE RESPECT
AND GRATITUDE,
INSCRIBE D,
BY HIS FAITHFUL
FRIEND AND SERVANT,
JOHN HATSELL.
Ꮲ Ꭱ E F A C Ꭼ
TO THE
FIRST EDITIO N.
THE following Cases are part of a larger Collection,
extracted from the Journals of the House of Commons,
and other Parliamentary Records.
The Compiler of this work has always been of opinion,
that the easiest method of conveying to the Public the very
useful information contained in those voluminous Collections,
is, to select particular Heads or Titles; and, having brought
together every thing that has any reference to any of these
heads, to digest the whole in a chronological order, and
to publish it in a separate volume. He has, upon
He has, upon this prin-
ciple, ventured to send forth this Work, relating to the
Privilege of Members of the House of Commons, only by way
of specimen, and as an example for those who may adopt this
idea, and who may have more leisure to pursue so laborious
an undertaking
The Reader will not suppose, that the OBSERVATIONS
upon the several Cases, are made with a view of declaring
what the Law of Privilege is, in the instances to which those
Observations refer : they are designed merely to draw the
attention
viii
P R E F A C E.
attention of the Reader to particular points, and, in some
degree, to assist him in forming his own opinion upon that
question.
This Work ought therefore to be considered only in the light
of an Index, or a Chronological Abridgment of the Cases
to be found upon this subject. The Publisher cannot but
suppose, that, notwithstanding his most accurate search, many
instances must have escaped his observation; he has however
endeavoured, with great diligence, to examine every Work, ,
which he thought might contain any thing relating to this
matter; and pretends to no other merit, than the having
faithfully extracted, and published, what appeared to him
essential for the information of the Reader.
Perhaps some apology is necessary, for having presumed,
without leave or any previous notice, to inscribe this Collection
to a Person, whose universal knowledge upon all subjects,
which relate to the History of Parliament, will render this,
and every work of this sort, to him unnecessary: But the
Publisher could not prevail upon himself to omit such an
opportunity of expressing to that Gentleman, and to the
World, the very grateful sense he entertains of that kindness
and generosity, which first placed him, even without any
applicalion on his part, in a situation, that has made it his
duty to apply himself more particularly to the examination
of the Journals of the House of Commons, and to studies of
a similar nature.
The
P R E F A C E.
ix
The public character of that Gentleman, his comprehen-
sive knowledge, his acuteness of understanding, and inflexible
integrity, are sufficiently known and acknowledged by all the
world: but it is only within the circle of a small acquaintance,
that he is admired as a man of polite learning and erudition,
a most excellent Father, and a most valuable Friend ; they
only, who have the pleasure and advantage to know him inti-
mately, know, that the warmth and benevolence of his heart,
are equal to the clearness and sagacity of his head.
A very ill state of health has, at present, unfortunately
withdrawn this Gentleman from the service of the Public;
but all who remember his abilities in Parliament, will lament
the loss of that information, which his knowledge of the
History, and of the Laws and Constitution of this Country,
enabled him to give, and which he was at all times so ready,
in private as well as in public, to communicate.
Cotton-Garden,
April 5, 1776.
Vol. I.
b
CONTENTS OF THIS VOLUME.
CHAP. I.
CASE S from the earliest Records to the end of the Reign of
HENRY VIII.
C
p. 1.
CH A P. II.
CAS ES from the Reign of HENRY VIII. to the end of the Reign
of Queen ELIZABETH
p. 70
CHAP. III.
CASES from the Accession of JAMES I. to the end of the
Parliament of 1628
p. 131
1
CHAP. IV.
ADDITIONAL CASEs between the Year 1549, and the Year 1628 p. 198
CHAP. V.
CONCLUSION; being a Parliamentary View of the Reign Car. I.
from 1628 to 4 January 1641
p. 205
APPENDIX.
N°
1.-Apology of the Commons on 20 June 1604
p. 227
2.-Report of the Conference in 1667 touching Freedom of Speech p. 250
3.-Report of 24 April 1640, touching Grievances
p. 259
4.-- Rushreorth’s Account of CHARLES I. coming to the House of Commons
to seize the Five Impeached Members, 4 January 1641
p. 265
5.–Arrest of Lord Cochrane in the House, 21 March 1815
p. 278
6.-Proceedings relative to Sir Francis Burdett, 1810
p. 281
INDEX
1
. p. 323
>
PRECEDENTS
OF
PROCEEDINGS
IN THE
HOUSE OF COMMONS,
RELATING TO
Privilege of Parliament.
C H A P. I.
FROM THE EARLIEST RECORDS TO THE END OF THE
REIGN OF HENRY VIII.
A
S it is an essential part of the constitution of every
court of judicature, and absolutely necessary for the
due execution of its powers, that persons resorting
to such courts, whether as judges or as parties, should
be entitled to certain Privileges to secure them from molestation
during their attendance; it is more peculiarly essential to the
Court of Parliament, the first and highest court in this kingdom,
that the Members, who compose it, should not be prevented by
Vol. I.
B
trifling
2
From the earliest Records to the [CHAP. 1.
trifling interruptions from their attendance on this important
duty, but should, for a certain time, be excused from obeying
any other call, not so immediately necessary for the
great ser-
vices of the nation: it has been therefore, upon these principles,
always claimed and allowed, that the Members of both Houses
should be, during their attendance in Parliament, exempted
from several duties, and not considered as liable to some legal
processes, to which other citizens, not intrusted with this most
valuable franchise, are by law obliged to pay obedience* .
What is the extent of these Privileges, and how long their
duration, has been always uncertain, and frequently matter
of dispute; nor are these points settled even at present, except
in those particular instances where Acts of Parliament, or the
Resolutions of either House of Parliament have ascertained and
defined them. The only method therefore, of knowing what
are the Privileges of Members of the House of Commons, is to
consult the Records of that House, and to search into the his-
tory of Parliament for those Cases, in which a Claim of Privi-
lege has been made, and to examine whether it has been admit-
ted or refused. For this purpose, as the Journals of the House
of Commons are preserved no further back than from the first
year of the reign of Edward VI. and even then are but concise
and imperfect till the time of James I. I have found it ne-
cessary to look into the Rolls of Parliament, and into other
Records; and having extracted every Case that has occurred
to me in this search, I have here stated them at length, with such
* Sir Henry Spelman in his Glossary, King Canute, ch. 107. “Omnis Homo
under Title Gemotum, which he explains pacem habeat, eundo ad Gemotum,
to be Conventus Publicus, cites a Law of " et redeundo a Gemoto." L. L.
observations
CHAP. 1.] End of the Reign of Henry VIII. 3
observations as have suggested themselves to me on the cir-
cumstances of the particular Case.
+
1. The First is that cited by Sir Edward Coke in the Fourth
Institute, page 24, under the title “ Privilege of Parliament;"
The Case of the Master of the Temple in the eighteenth year
of Edward I. and is entered in the Roll of Petitions in Parlia-
ment, 18 Edward I*.
6
Magʻr Militie Templi petit quod dare possit Episcopo
- Menevens' Xxx §. redditus annui, & arrerag' x annorum,
pro quadam domo in Lond' in qua non potest distringere
' nisi tempore Parliamenti ; petit quod habeat licentiam dis-
'tringendi tempore Parliamenti.
Resp. Non videtur onestum qđ Rex concedat quod illi de
· Consilio suo distringantur tempore Parliamenti, Sed alio
tempore distringat per ostia et fenestras, prout moris est.'
" Whereby,” says Sir Edward Coke, “ it appeareth that a
66 Member of the Parliament shall have Privilege of Parlia-
ment, not only for his servants, as is aforesaid, but for his
“ horses, &c. or other goods distrainable."
2. The next Case is also cited in the Fourth Institute
from 18 Edward I. fol. 1. It is quoted at length in Prynn's
* Rotul. Parl, 18 Edw. I. page 61. he has found it in the Treasury of the
Nº 192. It is remarkable that Prynn, King's Receipt in the Exchequer.-
in the Fourth Part of his Register of Wherever in this work, reference is
Writs, p. 817, and 1188, twice asserts, made to the Rolls of Parliament, the
that after the most accurate search no Cases will be found in the Six Volumes
such petition is to be found; however, of the Rotuli Parliamentorum, printed
in his Animadversions on the Fourth by direction of the House of Lords.
Institute, p. 18, he admits, that at last
B 2
Fourth
4 From the earliest Records to the [CHAP. 1.
Fourth Register, p. 820, and in Ryley's Placita Parliamen-
taria, p. 6. and is as follows*,
C
pace
· Prior Ecclesie sancte Trinitatis London' & Bogo de Clare
' attach' fuerunt ad respondend' Domino Regi, Petro de
· Chaſet Senescallo Domini Regis, Waltero de Fanecurt Ma-
rescallo Domini Regis, Edmundo Comiti Cornub' & Abbati
· Westm’ de hoc, quod cum idem Comes, ad mandatum Do-
· mini Regis ad istud Parliamentum suum London’ venisset,
' & per medium Majoris Aule Westm' versus Consilium Do-
mini Regis transisset. 66 ubi quilibet de
regno &
“6 Domini Regis licite & pacifice venire, & negotia sua prose-
qui debet, absque hoc qd aliquas citationes vel summoni-
“ tiones ibidem admittat,” predictus Prior, ad procurationem
' ipsius Bogonis, die Veneris proxima ante festum Purifica-
tionis beate Marie, hoc anno, predictum Comitem in pre-
· dicta Aula citavit qd compareret ad certos diem & locum
coram Archiepiscopo Cantuar' super sibi objiciend' respons'
' in contemptum Domini Regis manifestum, & dedecus suum
• decem mille libr' & in lesionem libertatis Ecclesie predicti
Abbatis, concesse per Curiam Romanam, cum predictus
· Locus omnino sit exemptus a jurisdictione Archiepiscopo-
rum, seu Episcoporum quorumcumque, per Libertates sibi
• & Ecclesie sue Westm' concessas, et ad dampnum ipsius Ab-
batis mille librarum, et in prejudicium officii predictorum
Senescalli & Marescalli manifestum, & dampnum non mo-
dicum, cum ad ipsorum officium, & non ad alium, summoni-
- tiones & attachiamenta infra Palacium Domini Regis per-
• tineat faciend'; et etiam ad dampnum predicti Comitis
quinque Mille libr’; et inde producunt sectam, &c.
· Et Prior Bogo ven' & Prior bene cognoscit, quod ipse
6
6
* See Rotul. Parl. 18. Ed. I. p. 17. N° 4.
citavit,
CHAP. 1.] End of the Reign of Henry VIII. 5
6
• citavit, predictis die & loco, predictum Comitem, ut predic-
'tum est; et similiter predictus Bogo bene cognoscit, quod
ipse fecit citare predictum Comitem, ut predictum est; set
· dicit quod ipse omnino ignoravit quod predictus Locus
' fuit exemptus, et quod non intellexit aliquem contemptum
· Domino Regi, seu aliquod Prejudicium ejus Ministris, per
"citationem illam fecisse ; et omnino ponit se in gratiam,
misericordiam, & voluntatem Domini Regis alto & basso.
· Et quia predicti Prior & Bogo cognoscunt predictam cita-
* tionem predictis die & loco per ipsos fuisse factam; et que
manifeste facta fuit in contemptum Domini Regis; Conside-
ratum est, quod predicti Prior & Bogo mandentur Turri
“ London' & ibidem custodiantur ad voluntatem Domini Regis
' &c. Et quoad predictos Com' & Abbatem, datus est dies
- eis die Veneris in crastino Purificationis beate Marie, &c.
· Postea predictus Bogo invenit pleg' subscriptos, ad satis-
- faciend' Domino Regi de predicta Transgressione ante re-
cessum suum de Westm’de instanti Parliamento, alioquin
quod ipsi restituent Corpus ejus Turri London' in recessu
· Domini Regis ; scilicet, Johannem de Eyuille, Henricum
• Hose &c. &c. qui ipsum plegiaverunt in forma predicta.
· Et predictus Prior invenit pleg' subscriptos, scilicet, Ro-
- bertum de Melkele &c. &c. qui ipsum Priorem pleg' sub
eadem forma qua predicti Johannes de Eyuille, et alii su-
perius, predictumn Bogonem pleg'. Postea venit predictus
Bogo, & finem fecit Domino Regi pro predicta Transgres-
mille marcas, et recipitur per pleg', &c.
· Et quoad predictum Com’ postea venit predictus Bogo, &
“ vad' eidem Comiti mille libr' pro Transgr' sibi facta; et idem
• Comes ad instantiam Episcopi Dunelm’, Episcopi Eliens', &
6
6
o sione per
*
* (Duas) in Ryley's Placita Parliamentaria.
aliorum,
6
From the earliest Records to the [CHAP. 1.
• aliorum de Consilio ipsius Domini Regis, remifit eidem
Bogoni pred’ mille libr' usque ad centum libr', &c.
· Et Sciend' quod Plegii de predicto Fine admittuntur
coram Thes' ad Scaccarium, per preceptum Domini Regis ;
et predictus Prior mittitur ibidem ad faciend' secundum
quod Thes' ei dicet ex parte Domini Regis,' &c.
6
C
This Record does not appear to warrant the conclusion
Sir Edward Coke draws from it, viz. “ That the same Pri-
vilege holdeth in case of Subpænæ, or other process out
of
any Court of Equity." The contempt in this Case seems
to have been not so much in breach of the Privilege of Parlia-
ment, as that the citation was served in the King's palace, and
in a privileged place belonging to the Abbot of Westminster,
contrary to the rights of the King's servants, the Lord Steward
and Lord Marshal, and of the said Abbot. And Prynn's
observations upon it in the Fourth Register, p. 822, are in my
opinion sensible and well founded *.
3. The third precedent cited by Sir Edward Coke, is that of
Writs of Supersedeas issued to the Justices of Assize in favour
of Members of Parliainent. The Writs are at length in the
Fourth Register, p. 834, and in the Appendix to Ryley's
Placita Parliamentaria, p. 551; and are as follows :
* It has been very properly suggest- the Fourth Register, p. 1189, of a Cita-
ed, that in differing from so great an tion served in the 8th year of Edward
authority as Sir Edward Coke, one II. on Joan de Barro, Countess of
should speak with diffidence; especially Warren, at that Time resident in the
in matters in themselves obscure, on King's palace. The Record at large,
account of their remoteness from the and Prynn's observations upon it, are
present times.- I have always endea- worth consulting.
youred to do so.
+ See Appendix ad Rotulos Parlia-
There is a very similar case quoted in menti, temp. Ed. II. p. 449.
Claus.
CHAP. 1.] End of the Reign of Henry VIII. 7
6
6
6
6
• Claus. 8 Ed. II. Memb. 22, dorso.
* Rex dilectis & fidelibus suis Henrico Spigurnel, &c. Justi-
' ciariis ad Assisas, Juratas, et Certificaciones, in Comita-
- tibus Kancie, Surr', & Sussex, Salutem.—Cum nuper Parlia-
mentum nostrum, ob certa & ardua negocia Nos et statum
· Regni nostri contingencia, apud Westm' die Lune in octabis
· Sancti Hillarii proximo futuri, tenendum fecerimus sum-
' moneri; ac Prelatis, Comitibus, Baronibus, “ & aliis quam-
pluribus fidelibus nostris” per Brevia nostra specialiter man-
daverimus, quod, omnibus aliis pretermissis, dictis die & loco
' in Parliamento predicto personaliter intersint, Nobiscum &
aliis de Consilio nostro tunc ibidem existentibus super
dictis
negociis tractaturi, et suum Consilium impensuri: Nos in-
dempnitati Prelatorum, Comitum, Baronum, & aliorum fide-
- lium nostrorum, qui ad dictum Parliamentum taliter ad
• mandatum nostrum sunt venturi, volentes prospicere, ut tene-
mur, ne per eorum absenciam, dum sic in dicto Parliamento
steterint, exheredacionem aliquam sustineant, aliqualiter vel
incurrant, vobis mandamus, quod captionibus Assisarum,
Juratarum, & Certificationum aliquem Prelatorum, Comitum,
- Baronum, “ & aliorum fidelium nostrorum, quem vobis
constiterit de mandato nostro predicto ad dictum Parliamen-
tum venire, tangentium supersedeatis, durante Parliamento
· supradicto. Teste Rege, apud Langele, xv° die Januarii.
« Eodem modo mandatum est Justiciariis ad Assisas, Ju-
ratas, et Certificaciones, in singulis Comitatibus Anglie
capiendas, assignatis.
6
6
6
. Ibidem, m. 33. dorso.
· Rex dilectis & fidelibus suis Willielmo de Ormesby,
' & Roberto de Maddingle, Justiciariis ad Assisas in Co-
mitatibus Norff' & Suff' capiendas assignatis, Salutem.
• Indempnitali
6
8 From the earliest Records to the
[CHAP. 1.
6
6
6.
6
· Indempnitati illorum, qui ad presens Parliamentum nostrum
usque Eborum ad summonicionem nostram personaliter
venerunt, & similiter aliorum qui ibidem per preceptum
nostrum moram faciunt, prospicere volentes, presertim cum
· absentes jura sua defendere nequeant ut presentes ; vobis
• mandamus, quod ad aliquas Assisas illos, qui ad Parlia-
mentum nostrum predictuin ad summonicionem nostram
venerunt, ac alios qui ibidem per preceptum nostrum ut
premittitur moram trahunt, vel eorum aliquem tangentes
capiendas, eodem Parliamento durante, minime procedatis.
· Teste Rege, apud Eborum, xiiº die Septembris.
- Eodem modo mandatum est Lamberto de Trykyngham,
* & Johanni Chaynel, Justiciariis ad Assisas in Comitatu
· Lincolnei capiendas assignatis, de verbo ad verbum. Teste
ut supra.
· Per ipsum Regem & Consilium.'
6
6
G
It is very remarkable, as Prynn observes, that these two
precedents of “ General" Writs of Supersedeas are singular,
there being none of this kind extant on record before or
since this 8th year of Edward II.-And they are the more
extraordinary, as 150 years elapse, before the House of
Commons appear to have claimed the Privilege, 66 that their
“ Members should not be impleaded during the sitting of
“ Parliament*."
These writs were certainly issued upon those very rational
principles, to which I have before alluded, “ That the
* How far the distinction made in any other real and personal action, is
the Fourth Register, p. 836, (quod vide) just, I leave to abler lawyers to de
between Captions, sworn Assizes, and termine.
66 attendance
CHAP. 1.] End of the Reign of Henry VIII. 9
« attendance on Parliament ought not to be interrupted by
56 the process of any inferior Court in matters of Civil
“ Jurisdiction;" a maxim that must have been coeval with
the existence of Parliaments, and which must, by some
method or other, have been always adhered to and enforced.
4. The next and last Case produced by Sir Edward Coke,
is thus cited from the Patent Rolls in the Tower, of 10
Edward III. Mem. 23, in the Fourth Register, p. 829.
G
6
6
6
· Rex omnibus Ballivis et Fidelibus suis ad quos
&c.
· Salutem. Sciatis, quod cum Curiæ nostræ, in quibus
· negotia Regni nostri deducuntur ubiq; adeo liberæ sint et
exemptæ, et a tempore quo non extat memoria libera et
exemptæ fuerint, quod nec aliqua Forum Ecclesiasticum
concernentia in eisdem Curiis nostris fieri seu exequi, nec
aliqui easdem Curias nostras ad aliqua Forum Ecclesias-
ticum contingentia faciendum vel exequendum ingredi de-
• beant vel consueverint aliquibus temporibus retroactis : ac
Magister Henricus de Harewedon, Clericus, Edmundus de
Lewkenore; et Johannes de Wedlingburgh, de eo quod
ipsi nuper in Cancellaria nostra in præsentia venerabilis
· Patris J. Cantuariensis Archiepiscopi Cancellarii nostri
quasdam citationes sive monitiones dilecto Clerico nostro
Magistro Johanni de Thoresby, nec non, provocationes,
appellationes et instrumenta publica super citationibus
seu monitionibus prædictis, in nostri contemptum et co-
ronæ nostræ, ac Regiæ dignitatis nostræ præjudicium, et
contra libertatem et exemptionem prædictas fecerunt, per
inquisitionem in quam se inde in Curia nostra coram dicto
· Cancellario nostro et aliis de Concilio nostro posuerunt,
• convicti fuissent, et ea occasione ‘prisonæ nostræ manci-
VOL. I.
С
pati,
6
6
6
6
10 From the earliest Records to the [CHAP. 1.
.6
· pati in eadem ad voluntatem nostram moraturi : Nos
* de gratia nostra speciali, ad requisitionem Philippa
Reginæ Angliæ Consortis nostræ charissimæ, perdonavimus
• eisdem Henrico, Edmundo, et Johanni imprisonamentum
prædictum, ita tamen quod nobis satisfaciant de redemp-
tione sua occasione præmissorum, et quod super citationi-
'bus, monitionibus, provocationibus, appellationibus, seu
* instrumentis prædictis in dicta Cancellaria nostro sic factis
processum aliquem non faciant, nec quicquam, quod in
nostrî vel juris coronæ nostræ præjudicium cedere possit,
attemptent vel attemptari faciant de cætero quovis-modo.
In cujus &c. Teste Rege apud Turrim London. 15 die
Aprilis.
• Per ipsum Regem.'
1
6
To which there is this additional memorandum subjoined
in the Patent Roll :
6
· Et Memdum quod Radulphus de Upton &c. &c. vene-
• runt in Cancellariam Regis apud Novum Templum Lon-
don. 21 die Aprilis anno prædicto, et manuceperunt, viz."
quilibet eorum corpus pro corpore pro prædicto Magistro
· Henrico, de satisfaciendo Regi de redemptione prædicta,
quandocunque Regi placuerit. Et quod idem Henricus
processum aliquem non faciat super citationibus, provoca-
• tionibus, appellationibus, seu instrumentis, prædictis, nec
quicquam, quod in juris coronæ Regis præjudicium cedere
poterit, attemptabit, vel attemptari faciet sub periculo quod
• incumbit.'
6
6
6
It will certainly be very difficult for the most attentive reader
of this Case to guess in what manner it is in the least applicable
to
CHAP. 1.]
End of the Reign of Henry VIII.
11
to the Privileges of either House of Parliament: The only
crime of Henry de Harewedon, and the others, seems to have
been, serving Ecclesiastical Process in the Court of Chancery,
in breach of the known liberties and exemptions of the King's
Courts. Sir Edward Coke however, in order to bring it within
the subject of which he is treating, subjoins a note in the
margin *, “ That this Thoresby was then Clerk of the Parlia-
6 ment," but does not refer to any history or record to prove
the truth of this anecdote. Prynn, in the Fourth Register,
p. 830, posilively denies it ; but even admitting that he was so,
the punishment inflicted upon the offenders does not seem to
have been for any breach of the Privilege of Parliament, which
is not so much as hinted at, but for their open contempt and
violation of the franchises of the Court of Chancery.
These are all the Cases which Sir Edward Coke produces
under the title of “ Privilege of Parliament.” What authority
they will have, or how far they are applicable, to prove the
existence of any Privilege now claimed by Members of the
House of Commons, must be left to the judgment of the reader.
It would be very unbecoming in me to pretend to offer my
opinion against that of this great Oracle of the Law; I can
therefore only refer to Prynn's Animadversions on the Fourth
Institute, and to the Fourth Part of the Register of Writs,
where there will be found a very laboured collection of
arguments on the other side of the question.
* Qu. Whether this Marginal Note “ of this House had a subpoena served
is Sir Edward Coke's or some subse- upon him and had Privilege."-See
quent Editor's ?-See, in the Journal in this Volume the case, Chap.3. N°13,
of the 14th May 1621, a precedent, under the head of “Summoning Mem-
cited by Sir Edward Coke, of the 10th 66 bers or their Servants."
year of Edward III. « where the Clerk
C 2
5. There
12
From the earliest Records to the [chap. 1.
5. There is a Record cited in Prynn's Animadversions,
p. 20, relative to this subject, and prior in point of time to the
last Case of Sir Edward Coke; it is an original Writ of the
ninth Year of Edward II. found in the White Tower chapel ;
and is as follows:
6
· Edwardus Dei gratia Rex Angliæ &c. Vice Comiti Ebo-
rum, Salutem. Pone per vadium & salvos pleg. Walterum
' le Flemmyng, &c. &c. quod sint coram nobis a die Paschæ
' in tres septimanas ubicunque tunc fuerimus in Anglia, ostens.
quare, cum ad Parliamenta, in quibus tam nostri quam regni
' nostri negotia debent pertractari,Prælatos, Comites, Barones,
• & alias tam Clericos quam Laicos, per quorum industriam
super negotio hujusmodi consilium salubrius poterit adhiberi,
• ad mandata nostra vocatos et comparentes, “in veniendo ad
“ eadem Parliamenta, ibidem morando, et exinde redeundo,"
• ab omnimodis injuriis, oppressionibus et gravaminibus nos
oportet protegere et tueri; præfati Walterus &c. &c. dilectum
• nobis in Christo Priorem de Malton, nuper de Parliamento
· nostro quod apud Lincoln in quindena S. Hillarii prox.
. præterita summoneri fec. ad propria redeuntem, in civitate
“ nostra Eborum per equos et hernesia sua, quo minus idem
Prior quasdam cartas et quædam munimenta, hæreditatem
“ Willielmi de Vesci jam defuncti contingentia, et in custodia
ejusdem Prioris apud Malton residentia, prout sibi
in Parliamento prædicto plenius fuerat injunctum, deferre
potuisset, arrestarunt et sub arresto diu detinuerent, in nostri
contemptum, et coronæ nostræ prejudicium, ac dampnum
· ipsius Prioris ducentas libr. et contra pacem nostram. Et
• habeas ibi nomina pleg. et hoc breve. Teste Meipso apud
· Lincoln 22 die Feb. anno reg. nosl. glo.
Per Consilium.
Prynn
G
per nos
CHAP. 1.] End of the Reign of Henry VIII. 13
Prynn adds, that he never was able to find what Judg-
ment was given for the King or Prior upon this Writ.
6. In the Parliament of the fifth year of Henry IV. there
was a petition from the Commons to the King, translated
by Elsynge*, but thus entered at large on the Parliament
Roll * ;
6
ve-
6
6
Item priont les Communes, q come
66 solone la cus-
“ tume de Roialme," Seigneurs, Chivalers, Citezeins &
Burgeises, a voz Parlementz de õre commandement "
“ nantz, illeoqes demurrantz, & a lour propres retour-
- nantz,” & “ lour hommes & servantz ove eux en le dit
“ Parlement” desoutz õre especiale protection & defense, ne
· devoient per ascun dette, accompt, trespas, ou autre con-
• tract aconque, estre arestuz, ou en ascun manere empri-
sonez en le mesne temps ; & ja soit ensy q sovent foitz
plusours de autiels hommes venantz a voz Parlementz, &
autres lour hommes & servantz durant le dit Parlement,
ont este arestuz par ceux q' ont eu plein conisance ì ceux
ensy arestuz furent de Parlement, ou des hommes & ser-
- vantz d'iceux de Parlement, come est dit; en contempt de
vous, grande damage de partie, " & retardacion des be-
soignes de vos Parlementz:" Pleise establier, i si ascun
- desore en avaunt face arester ascun tiel homme venant al
. Parlement, come est dit, ou ascun de lour hommes & ser-
- vantz en le dit Parlement, ove eux demurantz durant le
• dit Parlement, ou ascun chose attempte enconter la custume,
· face fyn et ranceon a vous, & rende al partie greve ses da-
6
6
6
66
6
mages a treble.
6
Responsio. Y ad sufficient remede en le cas. '
* Elsynge's “ Manner of holding Parliaments," p. 186.
+ Vol. III. Page 541 N° 71.
What
14 From the earliest Records to the [chap. 1.
What this sufficient remedy was does not appear; Elsynge,
arguing from the Case of the Earl of Cornwall mentioned
before, Nº 2, supposes that as the law then stood, “ the
party contemning the Privilege of Parliament was to be
6 committed to prison, to make fine and ransom to the King,
“ to render to the party grieved such damages as the Lords
66 of the Parliament shall award ; and to answer the King's
“ Steward and Marshal, if the contempt be within the Verge,
“ for the wrong done to them: which (says he) is a greater
punishment than the Commons required ; and haply they
“ knew it not ; but this being an antient custom, and due by
prescription, the Lords thought it more honourable to retain
66 it than to enact a new law *.”
66
66
56
This interpretation of the answer appears to me extraor-
dinary, and not so probable as what Prynn supposes in the
Fourth Register, p. 725. “ That the King refused to grant
<< this their petition or pass it into a future standing law,
“ because he reputed the penalties in it against such as ar-
6 rested any Members or their Servants by legal process,
though knowing them to be such - by fine and ransom to
himself, and treble damages to the party,' to be overharsh
“ and penal, against such who had just case of action against
" them, and a means to obstruct the free course of the com-
“s mon law and justice; their prevention of arrests or en-
largement by a Writ of Privilege or Habeas Corpus, which
- the law allowed them in such cases, (if not in execution)
being a sufficient remedy, whereby the prosecutor lost the
“ benefit of his arrest, and was put to the charge of new
process without any arrest, during the session.'
66
܀
* Elsynge, p. 187.
I do
CHAP. 1.] End of the Reign of Henry VIII. 15
I do not however agree with Prynn in supposing that this pe-
tition was grounded on a violent assault which was made, during
the sitting of this Parliament, on one Richard Chedder, a me-
nial servant attending upon Sir Thomas Brooke, one of the
Knights for the county of Somerset ; the subject-matter of it is
totally different, and complains only of Arrests or Imprison-
ment by virtue of legal process in Actions of Debt, Account,
Trespass, or other Contract; besides in Chedder's Case there
was a particular petition of the Commons in his behalf,
which states a very different offence, and prays a very different
remedy.
7. It is as follows:
.6
6
Rot. Parl. 5 Hen. IV. N. 78*.
· Item priont les communes, ĝ come toutz les Seigneurs,
Chivalers, Citezeins, & Burgeis, ove lour servantz venantz a
· Parlement, brief le Roy,“ en venant, demurant, & retour-
“nant” ils sont soutz vostre protection Roiall, & plusours mes-
· chiefs & diseases sovent aveignont as ditz Seigneurs, Chiva-
lers, Citeins, Burgeys, & lour servantz meynales, en temps
avan dit, come ſ murdre, mayhemes, & bateries p gentz
gisantz en agaite, ou autrement, dount due remedie n'est un-
qore purveu; & noment en espal en c'est present Parlement
de le orrible batterie & malfait q'est fait a Richard Cheddre,
Esquier, ğ fuist venuz a y cest present Parlement ovesố Sire
“ Thomas Brook, Chivaler, un des Chivalers pur le Counte de
· Somers' & meynallove luy, par Johan. Salage, autrement
appelle Savage, dount l'avant dit Richard Cheddre est
“ emblemiz et mahemiz, & tout sur le peril de mort: qe pleise
• ordeiner remedie sur ceste matire, suffisant remedie, “ & pur
autres tieux cases semblables ensi,” ſ le punissement de luy
6
s
66
Vol. III. page 542.
purra
16 From the earliest Records to the [CHA P.1.
6
purra doner ensample & terrour a autres d’ensi malefaire en
temps avenir; C'est · assaver, q si ascune tue ou murdre
ascun q est venuz ency soutz õre protection al Parlement,
q'il soit ajugge Treson, & si ascun maheyme ou disfigure
ascun tiel ensi venuz south protection, q'il pde sa mayn.
« Et si aucun naufre ou bate ascun de tieux ensy venuz, q'il
eit la prisone d'un an, & fyn & raunson a Roy: Et q vous
· pleise de õre grace especial desore en avant de vous abstiner
des cħres de pardon en tiel cas, saunz ceo ſ les parties soient
pleinement accordez.
Responsio. Pur ceo
Pur ceo q le fait feust fait deinz le temps de
cest Parlement, soit fait proclamation la ou le dit fait se fist,
ſ Johan. Sallage deinz escript appierge & soi rende en Bank
le Roy deinz un quarter d'un an apres la proclamation faite.
Et s'il ne le face, soit le dit Johan. atteint de le fait suisdit,
' & paie au partie endamagee ses damages, au double, a taxer
discretion des Juges du dit Bank pur le temps esteantz, ou
ſ Enquest. s'il embosoigne, & face fyn & raunceon a volunte
56 Et semblablement soit fait en temps a vener en
cas semblable."
The conclusion of this answer with respect to “ similar Cases
6 in time to come," certainly made this a general law, and so it
is considered by all the writers who have mentioned this Case,
and is accordingly entered on the Statute Roll, 5th Hen. IV
ch.6, and continues a subsisting law at this day. No notice is
taken in the answer, of the very rigorous punishments prayed
for by the Commons against such as make the assault, or maim,
&c. it being thought perhaps, as in the former Case, that the
present remedy was sufficient, and therefore no new punish-
ment is created by this law for these offences; it only gives a
remedy to compel the person complained of to appear, then to
be dealt with according to the law as it then stood. The title
therefore
6
Ho
G
• du Roy.
CHAP. 1.] End of the Reign of Henry VIII.
17
06
therefore of this act, as it is in the Statute Book, “ The Pe-
“ nalty of making an Assault upon any Servant of any Knight
66 in Parliament,” is by no means just; as the statute is only
in the nature of a proclamation to compel the offender to ap-
pear, and declares what shall be the penalty in case of non-
appearance. This construction of the statute is confirmed not
only by the opinion of Elsynge, p. 191, who says,
66 this law
was made to provide for him that could not be apprehended
“after the fact done,” but also by its being found necessary,
within a very few years after, to make another Act of Par-
liament “ for the punishment of those that make assault upon
any that come to the Parliament," 11th Henry VI. chap. 11;
an Act, which comprehends both these points ; and which
after reciting, word for word, the penalties inflicted by the
statule of 5th Henry IV.chap. 6, upon such offenders as should
not appear, goes on and declares, “ That if he do come and
66 be found guilty by Inquest, by Examination, or otherwise,
6 of such Affray or Assault, then lie shall pay to the party so
grieved his double damages found by the Inquest, or to be
6 taxed by the discretion of the said Justices, and make fine
“ and ransom at the King's will.” Elsynge says, “Constat,
“ that the said John Sallage did yield himself according to the
“ proclamation;" but I don't find that it is any where re-
corded what punishment he underwent; and indeed by the
act of 11th Henry VI. following so soon after, it looks very
much as if, at this period, no particular penalties were ascer-
tained by the law for this and similar offences.
8. The next Case in point of time is that of Larke, in the
eighth year of Henry VI. which is thus entered on the Roll:
VOL. I.
D
6 .
Rot.
18 From the earliest Records to the [CH AP. 1.
6
6
6
• Rot. Parl. 8 Hen. VI. Nº. 57*.
· Priount les Communes ĝ la ou un William Larke, Servaunt
a William Milrede, “ venant al vre Court de icest Parle-
“ment” pur la Citee de Londrez, en le service le dit William
· Milrede alors esteant, p sotiell ymagination & conjecture
' de un Margerie Janyns, fuist arrestez en le Courte l'Abbe de
· Westm’de pipoudrez, p sez Officers illoeğs, & d'illoeğs re-
moeve en vre commune Bank, p Br’ de corpus cum causa, al
suyte de dit Margerie, & p voz Justicez de ĝre dit Bank
commaundez a õre prisone de Flete; & la en prison detenez
a present, p force d'un juggement donez envers le dit William
· Larke, en õre dit Bank, p voz ditz Justicez, “ sibn au cause
“ĝ le dit William Larke fuist condempne al suyte de dit Mar-
gerie, en õre dit Bank, en un action de trespas, au cez
damagez de ccvini. Vis. virid. devaunt le jour de sum-
“monez de icest õre Parlement, come pur fyne a Vous a faire,
purceo q le trespas fuist trovez ove force & armes.” Please
a õre Roial Majeste de considerer, coment “ le dit William
“ Larke, al temps de dit areste, fuist en la service le dit Wil-
“ liam Milrede, supposant verraiment, p la privilege de ĝre
- Court de Parlement, d'estre quietez de toutz arestez, durant
"õre dit Courte, forprise pur treson, felonie, ou suerte de
d'ordeigner p auctorite de mesme õre Parlement, ğ le dit
- William Larke purra estre deliverez hors de ñre dit prison de
Flete, le dit condempnation, juggement & execution, ou ascun
dependantz sur icell envers & sur luy nient obstant. Salvant
toutz foitz au dit Margerie, & a cez Executours, lour exe-
cution hors de dit juggement envers le dit William Larke,
apres le fyne de dit Parlement; “ & auxi de grauntier p
“ auctorite suisdite, q null de voz ditz Lieges, c'est assavoir,
“
66
6
pees;"
6
6
6
* Vol. IV. page 357.
06
Seigñrs,
CHAP. 1.] End of the Reign of Henry VIII. 19
66
6
6
6
Seigñrs, Chivalers pur voz Countees, Citezeins, Burgeys, au
“ voz Parlementz desore a venirs, lours servauntz & familiers,
“ ne soient ascunement arestez, ne en prison deteynez, durant
“« le temps de voz Parlementz, sil ne soit pur treson, felonie, ou
“ suerte de pees, come desuis est dit.”.
Responsio. Le Roi, p advis des Seigūrs Espirituelx&Tem-
porelx, & a les especiales requestes des Communes, esteantz
' en cest present Parlement, “ & auxint de l'assent du Coun-
“ seill du Margerie Janyns nomez en cest Petition,” voet &
graunte p auctorite du dit Parlement, ĝ William Larke no-
mez en la dite Petition, soit deliverez au present hors de la
prison de Flete. Et ſ la dit Margerie, apres le fyne de cest
Parlement, ait sa execution del juggement, q'ele aveit envers
" le dit William, en le commune Bank, sicome il est continuz
en mesme la Petition, en mesme la forme come ele deust
• avoir eu, si son dit juggement unộs ne feust execut. Et q les
· Juges del dit Bank facent au dite Margerie, apres la fyn de
' cest Parlement, execution du dit juggement, p Capias ad sa-
• tisfaciend', & p Exigent; & auxint facent processe pur
ñre
• Sf le Roi, pur son fyne envers le dit William, p Cap' &
Exigent, sicome eux ferroient, si le dit William unğs n’ust este
· pris ne emprisone, cause du juggement suisdit.--Et outre le
· Roi voet, p autorite de mesme Parlement, ſ le Chaunceller
d'Engleterre pur le temps esteant, depuis le fyn du dit Parle-
ment, face Commissions as divers persones p sa discretion
' assignes, de prendre le dit William, & luy deliverer au Gardein
• de Flete, qi soit tenuz de luy receiver & garder, tan ở gree
soit fait a l'avauntdite Margerie, de la somme p luy recovere
'p le juggement desuisdit, & au Roi, de ceo ĝ a luy appartient
' celle partie. Et q icell deliverance au dit Gardein, soit de
mesme l'effect
pur la dite Margerie, come serroit execution
pur luy fait per Capias ad satisfaciend', ascune variance p la
dict
C
6
D 2
20
From the earliest Records to the [CHAP. 1.
6
• dicte Petition, ou l'endorsement d'icell' & le recorde du dit
recoverer, ou ascun autre chose nient contresteant.
qant a la remanent de la Petition, Le Roi s'advisera.”
66 Et
66
:
66
This is the Case to which Sir Edward Coke refers, when
he
says,
in the Fourth Institute, p. 25, Privilege of Parlia-
ment in Informations for the King.--Generally the Privi-
lege of Parliament does hold, unless it be in three Cases, viz.
“ Treason, Felony, and the Peace.” The Commons certainly
declare it to be their opinion, that they had clearly the Privi-
lege “ of being free from all arrests, during the Parliament,
“ except for Treason, Felony, or Surety of the Peace:” But
when at the close of the petition they pray, “ that for the
“ future it may be enacted into a law, that no Knights,
“ Citizens, or Burgesses, or their Servants, may be arrested or
" detained in prison during the Time of Parliament, except
“ for Treason, Felony, or Surety of the Peace;" the King re-
fuses their request, and gives a Parliamentary Negative; and
therefore, the more natural conclusion to be drawn, as well
from the petition itself as from the King's answer, appears to
be, That, at that time, this proposition was not acknowledged
to be law in the extent in which the Commons laid it down*.
The House of Lords in their answer to this case, when cited
by the Attorney General in the Case of Lord Arundel +, sup-
pose the ground upon which the King gave this negative to
have been, “ that the latter part of the Bill did comprehend
“ more than it was fit the royal assent should be given unto,
* It seems difficult to ascertain pre- provided for, the King would consent to
cisely what the meaning of the King's no general law on the subject.
Negativeis.---Perhaps it meant nothing
more than that, the particularCase being
+ Elsynge, p. 217.
66
or
Chap. 1.] End of the Reign of Henry VIII. 21
66
66
CG
66
!
or more than was, or at this day is, the Law of Parliament;
66 for it is, that no Member of either House be arrested or
“s detained in prison during the Parliament, saving in these
“ three Cases. To be arrested, is to be taken by the officers,
by process, or otherwise: To be detained in prison, is either
to be detained after an arrest, or after a commitment from
66 the bar of some court, which is never called an arrest,
though in truth it be one. So that the Bill desired, not only
66 that none should be arrested or detained upon any arrest,
during the Parliament (which is the only Privilege supposed
" in the body of the Bill) but also, that none should be de-
“ tained in prison during the Parliament; whereas there is
no doubt, but that any of the House of Commons or their
servants, or the servants of Lords, being detained in prison
upon an execution, served upon them before the Time of
Privilege of Parliament, or being in execution, in any other
ordinary course of justice, before that time, ought to be de-
“ tained still, as it is practised at this day. And accordingly,
56 also a fourth limitation is added to those three, in the 31st
Henry VI. in Thorpe's Case, where Treason, Felony, Surety
“ of the Peace, and Condempnation before the Parliament
are the cases excepted ; so that there being more asked by
“ the Bill than the Privilege of Parliament allowed, there was
reason enough why the King assented not to it.” It is cer-
tainly impossible at present to determine precisely on what
ground the King refused to grant this part of the petition :
supposing the explanation given by the House of Lords to be
the true one, it was by no means necessary to give a general
negative to the whole of the prayer; the King's answer might
in this, as it had done in many other cases, have qualified the
general words of the petition, and have enacted, “ That persons
“ intitled to Privilege should not be arrested, or detained in
prison
22 From the earliest Records to the [CHAP. 1.
“s prison on any arrest made during the time of Parliament,
except for Treason, Felony, or Surety of the Peace,” which
would not have included persons in execution on condemna-
tion before the Parliament, and yet would have satisfied the
Commons, by declaring the law in as large a sense as they
themselves explained it in the former part of the petition.
Such however are the doubts, and so different are the opinions
which may be formed from this Record, as to the question of
“ What the Law of Privilege really was at that time,” that the
conclusion drawn by Sir Robert Cotton in his Abridgement,
p. 596, “ that herein it is to be noted, that there is no cause
“ to arrest any such man, but for Treason, Felony, or the
“ Peace,” though the remark of so learned an antiquarian,
ought not to be hastily and rashly adopted.
9. In the tenth year of Henry VI. the following Record is
entered on the Roll, Nº. 39*.
66
06
· Priont les Communes, pla ou “ Chivalers, Citizeins, &
“ Burgeiz, venauntz a īre Parlement põre commaundement,
“ de droit & p le ley devoient au dit Parlement franchement &
pesiblement venir, la repairere & demurer, & salvement p
temps covenable retourner;" que please a vous, tres soveraigne
- Sr, d'ordiner p auctorite de cest present Parlement, ĝ si ascun
trespas, offence ou damage ad est, ou serra fait, as persons des
· Chivalers, Citizens ou Burgeis, ou a lour servauntes, ou a
• ascun d'eux venuz a cest present Parlement, põrecommaunde-
' ment; ou as Chivalers, Citizens ou Burgez, a eslers a venir a
· õre Parlement en apres, ou de vous heires ; q le partie q soy,
sente ou sentera issint greve, ait breve de trespas sur son cas,
* Vol. IV. page 404
r vers
CHI AP. 1.]
End of the Reign of Henry VIII. 23
6
6
G
6
• vers cesty ou ceuz õ luy ad fait, ou ferra tielx trespas, offence
ou damage, directe all Vic', ou les trespas, offence ou damage
est, ou serra fait, au tiel partie greve, retournable devaunt
vous en õre Bank; issint ſ p entre la date du dit bře, & le
jour de retourne d'ycell, soit contenuz l'espace de deux mois;
• deinz quele temps, a le Countee a tenur' proschein apres le
"livere du dit bře, mesme le Viscount fra Proclamation, ģ
cesty ſ fait ou ferra tielx trespas, offence au damage, soit
· devaunt vous ñre Seignur, en õre Bank suisdit, pur res-
· poundre all partie ſ soy sente ou sentera issint greve, a le
jour contenuz deinz mesme le breve; issint â p entre le dit
• Countee, & le jour de retourne du dit bře, soit l'espace de
xv jours; a quele jour cesty ſ ad fait ou ferra tielx trespas,
• offence ou damage, & le Proclamation ple Viscount tes-
moigne, ne veigne, soit il atteint del fait suisdit, & maundent
adongs les ditz Justices un breve directe al dit Viscount,
d'enquerer des Damages q le partie greve ad suffiert, e
l’encheson del trespas & offence suisdit, & l'enquisition p luy
apprendre, de retourner devaunt eux a certeine jour ; issint
ſ le partie greve ait execution p agard des ditz Justices de
ces damages, au double de ceo q serra trove devaunt le dit
• Viscount; & si a jour de retourne du dit bře, cesty ſ ad fait
ferra tielx trespas, offence ou damage, veigne devaunt les
• ditz Justic', & soit trove culpables, paie adongs all partie q soy
sente ou sentera issint greve ses damages au double auxi &c.
Responsio. Le Roy s'advisera.'
G
6
ou
6
Sir Robert Cotton in his Abridgement of this Record, p. 605,
calls it “ A Motion for speedy redress of and in the actions
66 of all such as were or should be of the Commons House."
With respect to the former part of the petition, which desires
a remedy to compel the offender to appear; I apprehend
there
24
From the earliest Records to the [CHAP. 1.
there was already an act of Parliament to this effect, made
but a few years before in Chedder's Case, 5th Henry IV. the
purport of which is almost the same with that prayed for in
the present petition, and therefore a new law upon this sub-
ject was unnecessary: with regard to the punishment of the
offender, when he should deliver himself up to justice, it is
remarkable how much more moderate the Commons are in
their present demand than they had been in the former case,
as they desire nothing more than “ that the party so commit-
ting the trespass, offence, or damage to the persons of the
“ Members or their servants, and being found guilty, should
pay to the party aggrieved his double damages.” And yet
even to this the King refuses his assent, leaving them to obtain
redress according to the law as it then stood.
10. However, the next year, the same mischief continuing,
and it being found necessary, from the frequent assaults made
on Members altending their duty in Parliament, to apply
some more speedy and effectual remedy than what the com-
mon law allowed, the House of Commons again are obliged
to petition the King for redress, which they do in the fol-
lowing manner :
6
• Rot. Parl. 11 Hen. VI. N° 60*.
· Item, priount les Communes, ĝ come au Parliament tenuz
Westm' lendemayn de Seint Hillarie, l'an du reigne le
' noble Roy vre aiel quint, entre autres soit contenuz en la
· fourme q'ensuyt:
“ Item, pur ceo [ Richard Chedder, Esquier, quy fuist venuz
a cest present Parliament ovesſ Thomas Brooke, Chivaler,
* Vol. IV. page 453.
60
un
CHAP. 1.) End of the Reign of Henry VIII. . 25
66
66
66
6 un des Chivalers esluz en mesme le Parliament pur le Counte
“ de Somers', & mayneall ove le dit Thomas, fuist horrible-
“ment naufrez, emblemez & maheymez, John Salege, autre-
ment appelle John Savage ; ordeine est & establie, ő p tant
ſ le dit horrible fait fuist fait deinz le temps du dit Parle-
ment, ğ Proclamation soit fait la ou mesme l'orrible fait se
“ fist, ſ le dit John appierge, & soy rende en Bank le Roy,
“ deinz un quarter d'an apres la Proclamation fait ; & s'il ne
“ face, soit mesme celuy atteint de la fait suisdit, & paie al
partie greve ses damages a double, a taxer p discretion des
“ Justices du dit Bank pur le temps esteantz, ou p enquest
s'il
“ bosoigne, & face fyn & raunceon a la voluntee du Roy : Et
“ outre ceo, accordez est en Parlement, a semblablement soit
“ fait en temps a venir en cas semblable,” sicome “ en le dit
“ Estatuit,” pluis au pleine est contenuz.
Et ore est ensy,
q'en mesme cest present Parliament, un graund assaut &
affraie encountre la peas ñre tres sovereigne Si le Roy, est
* fait a Richard Quatremains, un des Chivallers pur le
• Countee d'Oxenford en cest present Parliament.
· Sur quoy please a ñre Sf le Roy, p auctorite de cest present
· Parlement d'ordeigner, ĝ si ascun affraie ou assaut soit fait,
ascun persone, a ascun Chivaler, Citezin ou Burgeys, venuz
a cest present Parlement, ou a ascun Chivaler, Citezyn ou
Burgeys, eslier au Parliament en temps a venir ; ĝ Procla-
• mation soit fait la ou mesme l'assaut est fait, ou temps a venir
serra fait, ſ celuy ſ face tiel assaut ou affraie, soy rende en
· Bank le Roy, deinz un quarter d'un an apres la Proclama-
• tion fait ; & s'il ne face, q'il soit atteint de le fait suisdit, &
· paie al partie greve ses damages au double, a taxer p le dis-
· cretion des Justices du dit Bank pur le temps esteantx, ou p
enquest s'il bosoigne, & face fyn & raunceon a la voluntee
• du Roy'. Et s'il veigne & trove soit coupable p enquest, p
examination, ou en autre manier, de tiel affraie ou assaut, il
VOL. I.
E
donſes
6
6
6
6
6
6
6
26
From the earliest Records to the [CHAP. 1.
6
• donſes paie al partie ensy grevee ses damages a double, tro-
vez p le enquest, ou a taxer p le discretion des ditz Justices,
' & face fyn & raunseon a la volunte le Roy, come desuis
6 est dit.
Responsio. Le Roy voet, ğ si ascun assaut ou affraye soit
· fait a ascun Seigñr Espirituel ou Temporell, Chivaler de
• Countee, Citezein ou Burgeis, venuz au Parlement « ou au
so Counseil du Roy” p son commandement, & la esteant &
entendant au Parlement, “ ou au Counseil ;” q'adonąs soit
· Proclamation fait p trois jours severalx, en la pluis overt lieu
- de la Ville ou l'assaut ou affraye fuist ensy fait, ſ la partie
qi face tiel l'assaut ou affraie, soy rende devaunt le Roy en
• son Bank, deinz un quarter d'un an apres la Proclamation
fait, s'il soit el temps du terme, ou autrement all prochein
jour en temps de terme, ensuant le dit quarter, a faire & re-
ceivere en manere come il este desire p la Petition.'
6
6
6
66
And from this petition and answer the Act of 11th Henry VI.
ch. 11, “ For the punishment of those that make assault upon
any that come to the Parliament,” is drawn up and entered
on the Statute Roll; and, as I observed before under
Chedder's Case, not only enforces the provisions of the 5th
Henry IV. ch. 6, to compel the appearance of the offender;
but, on his conviction, gives double damages to the party
grieved, with fine and ransom to the King*.
11. Not-
66
* The ingenious Author of “ Ob- cellent learning, I am almost ashamed
servations on the Statutes, chiefly to take notice of; he says, “ that it de-
“ the more antient,” has, in a note in serves notice that Richard Chedder of
his Commentaries on the 5th Henry “ on surrendering himſelf is to make sa-
IV. ch. 6, page 301, made a slight “ tisfaction, either by the award of the
mistake, which, in a work abounding Judges of the King's Bench, or by a
with such a variety of useful and ex- “ Jury: and I do not recollect an in-
stance
(6
6s
+ This should be John Salage; the names are right in the text.
CHAP. 1.] End
End of the Reign of Henry VIII. 27
1
at any tyme hereafter by the Kynge's commaundement
11. Notwithstanding these repeated Acts of Parliament to
secure the Members of both Houses from any insults on their
persons, such was the licentiousness of the times, or rather, so
slow and ineffectual were the remedies given by these laws,
that in a very few years the Commons again apply to the
King for further provisions to suppress this very dangerous
practice.
• Rot. 23 Hen. VI. Nº. 41*.
Prayen the Communes in this present Parlement assem-
bled, that it please unto the Kyng oure Soveraigne Lorde,
by thavis of his Lordes Spirituell and Temporell in the seid
· Parlement beyng, to ordeine, estable and auctorise in the
seid Parliament, and by auctorite of the same; that if
any
person or persones make any assault or affray upon the seid
· Lordes or Communes, or upon any of hem, “s beyng in the
“ seid Parliament, or from thens retournyng homeward," or
upon any Lord, Knyght of the Shire, Citezein or Burgeis,
6
6
6
66
comyng to high Court of Parliament, there abidyng, or
“ from thens retournyng to his dwellyng place," that then the
seid Lord, Knyght of the Shire, Citesein or Burgeis, upon
whom such assault or affray is made, have such Writte or
• Writtes of Proclamation, as by an Act in this saide present
6
6
“ stance of such an alternative.” Now, enacted,“ that if he come and be found
it is clear that the act 5 Hen. IV.ch.6, guilty by inquest, by examination or
is made in order to compel John Salage “ otherwise, of such affray or assault,
to surrender, and that these penalties are " that he shall pay to the party so
only to take place if he does not appear“ grieved bis double damages found
within three months. However, in the “ by the inquest, or to he taxed by
Statute of 11th Henry VI. ch. 11, “ the discretion of the said Justices,
wherein it is declared what punishment " and make fine and ransoın at the
shall for the future be inflicted on such “ King's will.
offenders when they co surrender; it is * Vol. V. page 111.
E 2
. Parlement
28
From the earliest Records to the [CHAP. 1.
· Parlement for Sr Thomas Parr' Knyght, is in like cas or-
• deined to be hade, to be directed to such Shirif or Shirifs
' where the trespas is supposed to be done, retournable or
· retournables at eny day to be desired by the same partie
compleignant, afore the Kyng in his Benche; the same partie
compleignant, to have therupon such appance, or els upon
ye defaute of appaunce of the person or persones upon
whom
' it is in that partie compleigned, such execution as is or-
deined also in the said Acte, for ye seid St Thomas.
Responsio. Soient * l'Estatutz faitz devaunt cez heures
' en cest partie, tenuz, gardez & observez, en toutz poyntes.'
I cannot, upon the most accurate search, find any thing
relating to this Sir Thomas Parr, either in the Records them-
selves, the Statutes, or the Parliamentary History, and am
therefore at a loss to know what particular remedy he had
obtained on this occasion.
12. The next in point of time is the famous Case of Thomas
Thorpe, who was Speaker of the House of Commons, and
being arrested at the suit of the Duke of York, and then in
prison, the Commons make the following application to the
King for his release:
- Rot. Parl. 31 & 32 Hen. VI. Nº. 25, 26, 27, 28, 29-*.
• 25. Fait a remembrer,ſ le dit quatorzisme jour de Feverer,
l'an suisdit, les Communes, “ ſ certeyns de lour Com-
paignons,” firent request au Roy, «& les Seigñrs Espi-
“ rituelx & Temporelx” en le dit Parlement esteantz, qu'eux
* That is, the Statutes of 5 Henry IV, ch. 6, and 11 Henry VI. ch. 11.
* Vol. V. page 239 and 240.
peussent
6
CHAP. 1.] End of the Reign of Henry VIII. 29
6
66
6
* peussent avoir & ensjoier toutz tielx Libertees & Privileges,
come ount este accustumes & d'auncien temps usez pur
venantz au Parlement; & concordaunt a mesmes les Liber-
5 tees & Privileges, ğ Thomas Thorp lour commune Parlour,
• & Walter Rayle, Membres de le dit Parlement, adondes
esteantz en prison, peussent aler a lour large & libertee, pur
$ le boon esploit du dit Parlement.
“ 26. Item, the Friday the xv day of Feverer, it was opened
6 and declared 56 to the Lords Spirituelx and Temporelx
beyng in the Parlement Chambre," by the Counsaill of the
· Duke of York; That where Thomas Thorp, the Monday
- the ... day of the moneth of ...... the yere of the reigne
' of King Harry the Sexte xxXI, came to the place of the
Bishop of Durham, and then and there toke and bare away
certeyn godes and cateles of the seid Dukes, agayn his will
and licence; and theruppon the same Duke camed and toke
an action by Bille in Michell term last past agayn the seid
Thomas, in the Court of th’Eschequer, accordyng to the Pri-
vilegge of the same Court, for somuche that the same Thomas
was oon of the Court, by which Privelegge he ought to be
enpleted in that Court of th’Eschequer in suche cases, and in
noon other Court; to the which Bille the seid Thomas wil--
fully appered, and had diverse daies to emparle atte his re-
queste and desire, and to the said Bille and Action aunswered
" and pleted not gylty: Whereuppon ther was awarded in the
· seid Eschequer, a Venire Fac' to the Shirreve of Midd', re-
• tornable in the seid Eschequer, and there by the Jurre that
passed betwene the said Duke and the said Thomas, it was
- founde that the same Thomas was gylty of the trespas con-
teigned in the seid Bille. And the same Jurr' assessed the
dampmages to the said Duke for the said trespas to a mti.,
s and for his costes xfi., and therupon juggement was yeven in
6
6
6
6
6
6
6
6
6
6
6 the
30
From the earliest Records to the [CHAP. 1.
6
6
6
6
6
66 in
- the seid Eschequer, and the said Thomas accordyng to the
cours of the lawe was committe to the Flete, for the fyne
belongyng to the Kyng in that behalve. And thereupon it
was praied humbly of the behalve of the seid Duke, that it
shuld like theire goode Lordships, consideryng that the said
trespas was doon and committe by the said Thomas sith the
begynnyng of this present Parlement, and also the said Bille
' and Action were take and camed, and by processe of lawe
juggement theruppon yeven agayn the said Thomas,
tyme of vacation of the same Parlement, and not in Parle-
“ ment tyme;" and also that if the said Thomas shuld be re-
lessed by Privelegge of Parlement, or the tyme that the seid
Duke be satisfied of his said dampmages and costes, the same
Duke should be withoute remedie in that behalve; that the
' seid Thomas, accordyng to the lawe, be kepte in warde to the
tyme that he have fully content and satisfied the said Duke of
· his said dampmages and costes : The seid Lordes Spirituelx
' and Temporelx, not entendyng to empeche or hurt the Li-
· bertees and Privelegges of theym that were coñen for the
· Commune of this lande to this present Parlement, but egally
" after the cours of lawe to mynystre Justice, and to have
knowlegge what the lawe will wey in that behalve, opened
and declared to the Justices the premissez, and axed of theym
whether the seid Thomas ought to be delivered from prison,
by force and vertue of the Privelegge of Parlement or noo.
• To the which question, the chefe Justicez in the name of all
• the Justicez, after sadde communication and mature delibe-
ration hadde amonge theim, aunswered and said; “ That they
ought not to aunswere to that question, for it hath not be
“ used aforetyme, that the Justiçez shuld in eny wyse determine
the Privelegge of this high Court of Parlement; for it is so
high and so mighty in his nature, that it may make lawe,
6
1
6
6
66
66 and
CHAP. 1.] End of the Reign of Henry VIII. 31
66
66 and that that is lawe it may make noo lawe; and the de-
“ termination and knowlegge of that Privelegge belongeth
to the Lordes of the Parlement, and not to the Justices.
“ 27. But as for declaration of procedyng in the lower
“ Courtes, in suche cases as writtes of Supersedeas of Prive-
“ legge of Parlement be brought and delivered, the said chief
“ Justice said, that ther be many and diverse Supersedeas of
Privelegge of Parlement brought in to the Courtes, but ther
ys no generall Supersedeas brought to surcesse of all pro-
cesses; for if ther shuld be, it shuld seeme that this high
56 Court of Parlement, that ministreth all justice and equitee,
“ shuld lette the processe of the commune lawe, and so it
“ shuld put the partie compleynaunt withoute remedie, for so
“ muche as actions atte commune lawe be not determined in
“6 this high Court of Parlement; and if any persone that is a
“ membre of this high Court of Parlement be arrested in suche
6 cases as be not for treason or felony, or suerte of the peas, or
“ for a condempnation hadde before the Parlement, it is used
66 that all such persones shuld be relessed of such arrestes and
“ make an attourney, so that they may have theire fredom and
66 libertee, freely to entende upon the Parlement.'
• 28. After which answere and declaration, it was thorowly
agreed, assentid and concluded by the Lords Spirituelx and
Temporelx, that the seid Thomas, accordyng to the lawe,
• shuld remayne stille in prison for the causes abovesaid, the
Privelegge of the Parlement, or that that the same Thomas
was Speker of the Parlement, notwithstondyng; and that the
premisses should be opened and declared to theym that were
6 coñen for the Commune of this land, and that they shuld be
charged and commaunded in the Kynges name, that they,
' with all goodly hast and spede, procede to th’ election of an
• other Speker. The which Premisses, forasmuche as they
6 were
6
6
32
[CHAP. 1.
From the earliest Records to the
6
6
were materes in lawe, by the commaundement of the Lordes
' were open'd and declar'd to the Commons, by the mouthe of
· Walter Moyle, oon of the Kynges Sergeauntz atte lawe, in
' the presence of the Bisshop of Ely, accompanyed with other
· Lordes in notable nombre; and ther it was commaunded and
· charged to the said Commons, by the seid Bisshop of Ely in
' the Kynge's name, that they shuld procede to th’election of
an other Speker with all goodly hast and spede, so that the
· materes for the which the Kyng called this his Parlement
might be proceded yn, and this Parlement take goode and
« effectuell conclusion and ende.
· 29. Item, Sextodecimo die Februarii tunc prox' sequen',
prefati Communes, per quosdam de Sociis suis declarave-
runt Dominis Spiritualibus & Temporalibus in presenti
• Parliamento, quod ipsi, mandatum ex parte Domini Regis
pridie sibi injunctum cum omni diligentia exequentes,
elegerunt loco prefati Thome Thorp, Thomam Charleton
• Militem Prelocutorem suum humillime deprecando quatinus
prefatus Dominus Rex hujusmodi electionem vellet
accep-
Quibus, per Dominum Cancellarium Anglie, de
mandato dicti Domini Regis, & avisamento Consilii sui,
6 extitit responsum, “ Quod idem Dominus Rex de electione
prefati Thome Charleton se bene contentavit,” injungendo
- eis quatinus ad expeditionem negotiorum Parliamenti pre-
• dicti cum omni diligentia procederent.'
tare.
6
66
It appears from the Fourth Register, p. 683, 66 that the
“ Parliament had been adjourned from the 22d of November
to the 11th day of February next following:” Or, as is
perhaps more accurately stated in the second volume of the
Parliamentary History, p. 270, that the Lord Chancellor, on
the 2d day of July, prorogued the Parliament to Reading to
the
CHAP. 1.] End of the Reign of Henry VIII. 33
the 7th day of November following; and that on that day it
was from thence adjourned to the 11th day of February, and
then prorogued to the 14th of February :-“ That the Duke
immediately after the adjournment sued Thorpe in the
Exchequer by Bill, and prosecuted him so close, (though
Speaker, and a Baron of the Exchequer,) in his own Court,
“ that between the 23d of October and 11th of February, he got
“ both a verdict against him by a Jury of Middlesex for one
“s thousand pounds damages, and ten pounds costs of suit, and
“s likewise a judgment, and took and detained him prisoner in
“ the Fleet thereon, between this adjournment and the Parlia-
“ ment's meeting, some few days before their re-assembling.”
66
Indeed the method of proceeding, as well as the expedition,
that was used throughout the whole of this case, appears at
first sight very extraordinary; First, that the Commons should
apply to the Lords, as well as to the King, for redress in a
matter in which their own Privileges were essentially con-
cerned : Secondly, That, notwithstanding the opinion of the
Judges most formally declared, “ That persons arrested for
any other cause than for Treason, Felony, or Surety of the
Peace, or for a Condempnation had before the Parliament,
ought to be released,” the Lords should adjudge that
Thorpe, who came within none of these descriptions, should
according to the law remain still in prison: And thirdly,
That the Commons should so easily acquiesce in this decision,
and immediately proceed to the election of another Speaker ;
and the whole of this transaction was but the business of
three days, the 14th, 15th, and 16th of February.
or
But when we compare the uncommon expedition with
which this very important affair was hurried over ; the Judg-
Vol. I.
F
ment
34
From the earliest Records to the [CHAP. 1.
ment of the Lords, so directly contrary to the conclusion
which ought to have been drawn from the opinion delivered
by the Chief Justice; the command of the Bishop of Ely to
elect another Speaker, signified immediately subsequent to the
judgment, and, as far as appears, without any communication
with the King; and the obedient submission of the Commons;
I say, all these circumstances, being compared with the very
high situation in which the plaintiff Richard Duke of York
then stood, who was, as appears from the Parliamentary His-
tory, that very day, the 14th of February, appointed President
in the said Parliament, and was himself present, and took a
part in the hearing of his cause, may be thought fully to
justify the opinion of Sir N. Rich, who, when this precedent
was cited in a debate on the 8th of March 1620, says, “ It is
a Case begotten by the iniquity of the times, when the
“ Duke of York might have an overgrown power in it; and
“ I therefore wish it may not be meddled with*»
13. In the 39th year of Henry VI. the Commons petition
the King in favour of Walter Clerke, a Member then in
prison :
6
6
• Rot. Parl. 39 Hen. VI. N° 9+.
· Item, quedam alia Petitio exhibita fuit eidem Domino
Regi in Parliamento predicto, per prefatos Communes, sub
eo qui sequitur tenore :
To the Kyng oure Soverayne Lord; Prayen the Commons,
' for als moch that grete delaye hath been in this Parlement,
be that that Waulter Clerke Burgeys of Chypenham in the.
• Shire of Wilts'. which com by your high commaundement
* Commons Journals, Vol. I. p. 546.
+ Vol. V. p. 374
6 lo
CHAP. 1.] End of the Reign of Henry VIII. .
35
your
“ to this youre present Parlement, and attendyng to the same
in the house for the Commens accustumed, the fredome of
6 which Commens soo called, hath ever afore this tyme been
- and oweth to be, the same Commens to have fre commyng,
goyng, and there abidyng; ayens which fredome, the seid
· Waulter was, after his said commyng, and duryng this
present Parlement, arested at your sute, for a fyne to be
I made to youre Highnes, and imprisoned in the Counter of
· London, and from thens remoeved into your Escheker, and
then committed into your prysone of Flete, aswell for xlti.
' in which he was condempned to youre Highnes, and also for
xx Mark', in which he was condempned to Robert Basset,
- in an action of trespas, and also for xxfi. in which he was
? condempned to John Payne, in an action of mayntenaunce,
• and for the fynes due to youre Highnes in the same con-
dempnation; and sithen that committyng, the seid Waulter
was outelawed at the sute of the said John Payne, and for
' that and other premisses, in the same pryson of Flete is
reteigned, ayens the Libertees and Fredomes used, had and
enjoyed afore this tyme by youre seid Commons.
* Please it youre Highnes, in eschewyng the seid delaye
? caused by the premisses, by th’avis and assent of the Lordes
Spirituell and Temporell in this present Parlement assembled,
· and by auctorite of the same, to ordeyne and stablyssh, that
your Chaunceller of Englond have power to direct youre
• Writte or Writtes to the Warden of the seid prison of Flete,
commaundyng hym by the same, to have the seid Waulter
• afore hym without delaye, and then hym to dysmysse at large,
and to discharge the seid Warden of hym, of and for every
• of the premisses, so that the seid Waulter may tende daily of
. this youre Parlement, as his dute is to doo. And that by the
seid auctorite, nouther your seid Chaunceller, Warden of
6
s
6
6
F 2
• Flete,
36 From the earliest Records to the [chap. 1.
• Flete, nor any other persone nor persones, in eny wise be
hurt, endamaged nor greved, because of the seid dismissyng
at large of the seid Waulter. Savyng alway aswel to you,
· Souverayne Lord, youre execution of youre seid xifi., and
• of youre seid fyne, and all other youre interese in that par-
• tie, as to the seid Robert Basset, and John Payne, and iche
• of theym, their execution in the premisses, after the dissolvyng
of this your present Parlement, the -seid arest of the seid
· Waulter, and the seid committing and prisonyng of hym to
Warde notwithstandyng; as plenerly and effectually as if
- the same Waulter at eny tyme for any of the premisses never
* had been arrested nor committed to Warde: Savyng also to
youre seid Commens called nowe to this youre Parlement,
ç and their successours, their hole Libertees, Fraunchises and
Privileges, in alse ample fourme and manere as your seid
« Commens at eny tyme afore this day have had, used and
“ enjoyed, and oweth to have, use and enjoye, this present
• Acte and Petition in eny wise notwithstandyng.
• Qua quidem Petitione, in Parliamento predicto lecta,
• audita & plenius intellecta, de evisamento & assensu Domi-
norum Spiritualium & Temporalium in dicto Parliamento
existen', & ad requisitionem Communitatis predicte, re-
· spondebatur eidem in forma sequenti :
Responsio. Le Roy le voet. '
6
5
6
On comparing this Case with that of Lark, Nº 8, who was
likewise a prisoner in Execution on a Judgment, and was re-
leased by Act of Parliament, saving to the creditors their right
of taking him again in execution when the time of Privilege
should expire, I cannot find upon what particular ground it was
thought necessary, in the present instance, to indemnify the
Chancellor for issuing the writ for his discharge; or the Warden
of
CHAP. 1.] End of the Reign of Henry VIII.
37
He says,
66
GG
66
of the Fleet for obeying it. Elsynge, p. 245, raises a still further
doubt, “ Whether there was even a necessity for an Act of
“ Parliament to deliver the party privileged out of execution.”
“ There may be much dispute upon this question.
“ The strongest allegation against it is, that it will prejudice the
plaintiff's execution : but since the party privileged is not to
56 be arrested for any debt, trespass, or contract, prout an. 5
“ Hen. IV, N° 71, nor can be arrested during the Parliament,
“ but for Treason, Felony, or Breach of the Peace, prout an.
8 Hen. VI. N. 57, my opinion is, that the arrest upon an
“ execution for debt, trespass, or contract, is merely void, and
56 then it can be no prejudice to the plaintiff, but he may have
a new execution after the end of the Parliament, so that an
“ Act, to deliver him that is so arrested, or to save the plaintiff's
rights for a new execution, is ex abundanti, and needless.”
But Elsynge had forgot that the Judges, in giving their opi-
nion of the extent of Privilege of Parliament in Thorpe's
Case, had, to the three exceptions of Treason, Felony, and
Surety of the Peace, added a fourth, viz. “ A Condemnation
had before the Parliament,” which expression, though EL-
synge thinks, p. 247, “ that it cannot be understood to except
“ Arrests upon execution sitting the Parliament, but only
56 such arrests as happen in the interim between the adjourn-
ment and the access, as Thorpe’s was,” will bear the other
construction, and may be understood to mean, that for any
judgment or condempnation had before the Privilege of Par-
liament, the party may be taken in execution even sitting the
Parliament, as he might be for Treason, Felony, or on Surety
of the Peace: and if this was then understood to be the law,
no Writ of Privilege, nor any thing less than an Act of the
Legislature, would certainly have been admitted to release him.
I do not presume to give any opinion upon this question started
by
38
[CHAP. 1.
From the earliest Records to the
by Elsynge, " Whether the party so taken in execution could
66 be delivered without an Act of Parliament: But that
an Act of Parliament was necessary to save the plaintiff's
right to a new execution, appears not only from several in-
stances which follow, but from the statute of the 1st James I.
chap. 13, which was made expressly “ to allow new executions
as to be sued against any which shall hereafter be delivered out
“ of execution by Privilege of Parliament, and for discharge of
" them out of whose custody such persons should be delivered.”
It will immediately occur to every one who reads the fore-
going Cases as entered at length in the Records, (1) That the
Privileges claimed by the House of Commons, during this
period, were only for the Knights, Citizens and Burgesses,
and their mesnial servants, or familiares, present with them in
their attendance on Parliament: (2) That the duration of
these Privileges is in no instance carried farther than in their
coming, staying, and returning to their homes : And (3) That
the extent of the Privilege claimed is, to be free from any
assault, or from arrests or imprisonment, except for 'Treason,
Felony, or Surety of the Peace. No Case has hitherto occurred
in which the Commons have claimed the Privilege of not being
impleaded in
any action or suit during their attendance; this
is the more remarkable, because about this time it appears,
from an Act of Parliament made in Ireland, that the Irish
House of Commons considered this as a known, avowed, and
established Privilege of Parliament. The Act is as follows:
" Anno 3 Edw. IV. cap. 1mº.
“ At the request of the Commons, where the Privilege of
every Parliament and great Council of this land of Ireland
" is, that no Minister of the said Parliament, coming or going
66 to
CHAP. 1.] End of the Reign of Henry VIII. .
39
66 to the said Parliament during forty days before and forty
66. days after the said Parliament finished, should not be im-
pleaded, vexed, nor troubled by no mean : This notwith-
standing, one Lawrence Tathe, Esq; hath arraign'd Assise
“s of novel disseizin against John Barnewall being Knight for
“s the county of Dublin in this present Parliament, as it is in-
formed, for two water mills in Athirde, in the county of
“ Lowthe, the writ þeing returnable before our Sovereign
“ Lord the King, in his chief place in Ireland, to the intent
" that he may recover the said two mills against the said John
“ Barnewall, by default, contrary to reason and conscience,
" and the Privilege aforesaid: Whereupon, the premises con-
“ sidered, it is ordained, enacted, and established by autho-
rity of the said Parliament, That the said Writ of Assize so
“ taken against the said John in any other Court of the King,
before his Commissioners in whatsoever manner it be,
against him solely, or against him jointly, with any other
person or persons whatsoever, and all the Records thereunto
pertaining, be deemed, adjudged, and holden void, and of
none effect in all points as it had never been sued nor taken
against him sole or him jointly, with any person or persons
“ whatsoever. And further be it also enacted and established,
“ That every Minister, as well Lords, Proctors, as Commons,
66 be discharged and quitted of all manner of actions, had or
“ moved against them, or any of them, during the time afore-
" said, and this to endure for ever.”
CG
66
or
60
66.
We have seen before, by the Writs of Supersedeas issued in
the eighth year of Edward II. that the idea of Members not
being impleaded, vexed, or troubled during their attendance,
was then known and adopted in legal proceedings; it is
therefore very strange that, from that time to the twelfth of
Edward
40 From the earliest Records to the [CHAP. I.
Edward IV. a space of above one hundred and fifty years, no
Case should appear upon the Records of Parliament in which
this Privilege is ever brought into question : For Prynn says, in
the Fourth Register, p. 735, “ that of this there is not one pe-
“ tition or complaint to be found in any Parliament Roll in
“ the Tower, or other antient Record that he could ever meet
“ with on the strictest enquiry.” Another circumstance that
is curious in the law passed at this time in Ireland is, that the
duration of Privilege should be ascertained to forty days be-
fore the meeting, and forty days after the conclusion of the
Parliament; whereas, in England, I recollect nothing esta-
blished by law upon this point till the 12th and 13th William
III. ch. 3, and there it is only enacted, “ That no Action or
“ Suit shall be prosecuted against any person entitled to Privi-
lege, unless the adjournment shall be for above fourteen
days.” * But as to what the duration of Privilege ought to
be under the words 66 coming, staying, and returning to their
“ homes,” we shall find in the following Cases a great variety
of opinions upon this subject, nor do I know that even to this
hour it is any where precisely defined or determined t.
66
The
* By statute 4th Geo. III. ch. 24, ports in the House of Lords, from the
the right of Members to send their Committee of Privileges, their opinion,
letters free from postage, is ascertained “ (1) That the Privilege of the Nobility
to continue, during the sitting of Par- " doth clearly extend to all their Menial
liament, and within 40 days before, “ Servants and those of their family, as
and 40 days after any summons or “ also to those employed necessarily and
prorogation of the same.
properly about their estates as well as
+ See the arguments of the Counsel " their persons."(2) “That the Freedom
and Lord Hardwicke's opinion upon this “ from Arrests doth continue twenty
question, in giving judgment in Colonel “ days before and after every session; in
Pitt's Case,which is reported in Strange's is which time the Lords may conve-
Reports, page 985.-On the 14th De-
“niently go home to their houses in the
cember 1621 the Lord Privy Seal re- “most remote parts of this kingdom.”
These
CHAP. 1.] End of the Reign of Henry VIII. 41
The two next Cases which occur, are not taken from the
Rolls of Parliament, but are copied by Prynn, in the Fourth
Register, p.752, from the Records in the Court of Exchequer.
14. The first is that of Donne and Walsh, twelfth year
Edward IV. Rot. 20.
Barthol. Donne brings his Bill against John Walsh,, a ser-
vant of Henry Earl of Essex, for the sum of fourteen pounds
eighteen shillings, which Walsh owed upon his bond : To this
John Walsh, in his answer, produces the King's Writ under
the Great Seal; cujus tenor sequitur in hæc verba :
.
· Edwardus Dei gratia Rex Angliæ & Franciæ, & Dominus
• Hiberniæ, Thesaur. & Baronibus suis de Scaccario, Salutem.
. Cum, secundum consuetudinem in regno nostro hactenus
' optentam et approbatam, Domini Magnates, Milites Comi-
tatuum, ac Cives et Burgenses Civitatum et Burgorum, ad
• Parliamenta nostra de summonitione nostra venientes, ac
eorum familiares, ratione alicujus transgressionis, debiti,
computi, conventionis aut alterius contractus cujuscunque,
• dum sic in Parliamentis nostris morentur, arrestari minime
* debeant, imprisonari, aut “implacitari ;” ac jam ex querela,
• &c. &c. vobis mandamus, quod si ita est, tunc placilo illi
coram vobis ulterius tenando supersedeatis omnino, et ipsum
a prisona siqua occasione prædicta, et non alia, detinetur in
6
6
6
These Resolutions were ordered to be ordered to be observed accordingly,
entered, as the opinion of some of the with this alteration, “This Freedom to
Lords of the Committee of Privileges, “ begin with the date of the Writ of
but suspended by the House, to be “ Summons; and to continue twenty
entered as an Order, till further consi- “ days after every Session of Parlia-
deration.—And on the 28th May 1624,
ment."
these Resolutions are read again, and
VOL. I.
G
eadem,
(
.
42
From the earliest Records to the [CHAP. 1.
6
eadem, sine dilatione deliberari faciatis.--Teste meipso apud
- Westm. 25 die Novembris, anno regni nostri 12°.
· Et prædictus Johannes Walshe jam defendens dicit, quod
ipse est et dicto 25 die Novembris et semper postea fuit
serviens familiaris prædicti Comitis, et cum eo ad prædictum
• Parliamentum venit. Et petit judicium, &c. Et super
hoc
· prædictus Bartholomæus petit, quod breve illud, pro eo
quod non habetur nec unquam habebatur talis consuetudo,
' quod Magnates, et Milites Comitatuum, ac Cives et Bur-
genses Civitatum et Burgorum ad Parliamentum de sum-
' monitione regia venientium, ac eorum familiares ratione
alicujus transgressionis, debiti, computi, conventus, aut al-
' terius contractus cujuscunque dum sic in Parliamento regio
é morentur, minime debeant implacitari, prout in brevi illo
• specificatur et recitatur, disallocetur.
· Et super hoc viso et prælecto brevi prædicto per Barones,
* &c. habitoque avisamento Justiciariorum Domini Regis de
utroque Banco; Quia videtur præfatis Baronibus de avisa-
'mento Justiciariorum prædictorum, quod talis habetur et ha-
• bebatur consuetudo, quod Magnates et Milites Comitatuum,
ac Cives et Burgenses Civitatum et Burgorum ad Parlia-
mentum de summonitione regia venientes, ac eorum fami-
liares, ratione alicujus transgressionis, debiti, computi, con-
“ ventionis, contractus cujuscunque, dum sic in Parliamento
Regis morentur, capi aut arrestari non debent: sed nullam
hujusmodi consuetudinem fore, quod quin implacitari de-
· bent, prout in brevi illo supponitur ; ideo consideratum est
per Barones prædictos, quod breve illud disallocetur, et
quod prædictus Johannes Walshe respondeat, brevi præ-
• dicto non obstante, &c.
15. The next Case is that of Ryver and Cosins, taken from
the Plea Roll of the Exchequer, Hil. Term, 12° Edw. 4".
Rot. 7.
!
chap. 1.] End of the Reign of Henry VIII. 43
Rot. 7. Here the defendant pleads the King's Writ, in which
the custom is set forth as followeth :
6
6
6
· Edwardus Dei gratia Rex, &c. Thes. et Baronibus suis
de Scaccario, Salutem.-Cum, secundum consuetudinem in
regno nostro Angliæ hactenus optentam et approbatam,
· Domini Magnates et Milites Comitatuum, ac Cives et Bur-
genses Civitatum et Burgorum ad Parliamenta nostra de
- summonitione nostra venientes, et in eisdem morantes seu
residentes, ac eorum familiares et servientes ratione alicujus
transgressionis, computi, conventionis, seu alterius contractus
* cujuscunque, dum sic. in Parliamentis nostris morentur, ár-
· restari minime debeant, imprisonari, “ seu implacitari.” Et
. jam ex gravi querela, &c. vobis mandamus quod, si ita est,
• tunc placito illi supersedeatis, omnino, &c. &c. Et prædic-
tus Robertus Cosyn jam defendens dicit, quod ipse ad
respondendum non compelli debeat, et petit judicium et
breve prædictum sibi allocari, &c.
· Et super hoc, prædictus Johannas Ryver petit, quod breve
· illud, pro eo quod non habetur, nec unquam habebatur talis
• consuetudo, quod Magnates, &c. minime debeant implacitari,
disallocetur.
6
Et super hoc, The Barons, with the advice of the Judges
of both the other Courts, reciting, verbatim, their opinion in
the former Case of Walsh and Donne, “ that no such custom
existed to prevent their being impleaded,” disallow the writ.
I beg to refer the Reader to Prynn's Observations on these
two Cases, in the Fourth Register, p. 762, as containing matter
of much parliamentary instruction.
G 2
16. Within
44
From the earliest Records to the [CHAP, 1.
16. Within two years after this opinion formally delivered
from all the Judges of England, “ That persons entitled to
Privilege, capi aut arrestari non debeant ratione alicujus
transgressionis," &c. occurred the Case of a Member of the
House of Commons arrested, sitting the Parliament, and
detained in Newgate for debt.
The Record, as entered in the Parliament Roll, fourteenth
Edward IV. N° 55*, is as follows:
6
6
5
Prayen the Commens in this present Parlement assembled,
" that forasmoche as William Hyde, Squyer, Burges of the
toune and burgh of Chippenham in Wiltshire electe, came
by your high commaundement to this youre present Parle-
ment, and attendyng to the same in the Hous for the Com-
mens accustumed, after his said comyng, and duryng this
your said Parlement, was arrested at Lambhith in the counte
• of Surr' by colour of a Capias ad Satisfaciend', that was
“ directed to the Shireff of Middlesex, and so there by mysche-
vous men, murtherers, unknowen for any officers, taken and
' withoute the shewyng of any warant, carried hym to Lon-
don, at the sute of John Marshall Citezein and Mercer of
' the same, for 691. supposed to be due to hym by the said
William, and for the same enprisoned in the Counter there,
' and from thens had to Newegate, and as he had bee a trai-
tour, and then brought to your Bench tofore your Justices,
' and by theym remytted to Newegate, and there in execu-
tion for the said 69 1. and for a fyne or fynes that belong-
. eth to your Highnes by meane and cause of the said Suyte
or Condempnation, or for other Sutes ; and also for
• 41. 6 s. 8d. in which he was condempned to Thomas Gay
6
6
6
* Vol. VI. page 160.
o the
chap. 1.] End of the Reign of Henry VIII. 45
6
6
6
6
6
• the yonger, Citezein and Taillour of London, in an action
of dette : and so for the premissez in the said prisone of
Newgate is reteyned, to grete delay and retardation of pro-
cedyny, and goode expedition of such matiers and be-
soignes, as for your Highnes and the common wele of this
your reame in this present Parlement were to be doon and
spedde.-It pleas your Highnes by the advis and assent of
• the Lordes Spirituelx and Temporelx in this present Parle-
ment assembled, and by auctorite of the same, to ordeyne
• and stablish, that your Chaunceller of Englond have power
s to direct your writte or writtes to the Shirefs of London,
commaundyng theym, and everych of theym, by the same,
to have the said William Hyde afore hym withoute delay;
and then to dismysse hym at large, and to discharge the said
· Shirefs and everych of theym of hym, of and for every of
• the premysses, so that the said William Hyde may attende to
' this your Parlement, as his duetie is to doo; and that by
- the said auctorite, neither your said Chaunceller, Shirefs,
- neither any of theym, or any other persone neither persones
' in any wyse be hurt, endamaged, charged, neither grieved by
cause of the said dismyssyng at large of the said William
Hyde. And also to ordeyne by the said auctorite, that your
right and enteresse be saved in this behalf: and that the said
• John Marshall and Thomas Gay, and either of theym, have
' writte or writtes of execution in, of and for the premysses,
after the dissolvying of this present Parlement, as plenerly
· and effectuelly as if the said William Hyde at any tyme for
any of the premisses never had been arested; the said ar-
restyng of the same William and comittyng of him to warde
notwithstondyng: Savyng alwey to your Commens called
nowe to this your Parlement, and their Successours, their
· hoole Liberties, Fraunchises, and Priveleges, in as ample
fourme and maner as your said Commens atte any time
"
afore
6
46
[CHAP. 1.
From the earliest Records to the
11
• afore this day have had, used, and enyoied, and owe to have,
use and enyoie, this present Acte and Petition in any wise
• notwithstondyng.
Responsio. Le Roy le voet.
1
6
The only object which the Commons seem to have had in
this application to the Crown was the release of their Member ;
for the law “that a Member was not liable to be imprisoned
“ for debt, sitting the Parliament,” had been too lately and
too solemnly adjudged, for them not to know how grossly it
had been violated in this instance: Mr. Hyde, however, being
a prisoner in execution, it was necessary, as in the Case of
Lark, Nº 8, and Clerk's Case N° 13, to have an Act of
Parliament to save to the parties a right of a new Execu-
tion after the time of Privilege; but the Commons did not
think it necessary to apply to the Crown for any redress for
this breach of their Privilege; they had, on a similar occasion,
received for answer from the King *, “ that there was already
66 sufficient remedy by Law in these cases;" they therefore
cautiously provide by their petition, that this application shall
not be understood in the least to infringe their whole Liber-
ties, Franchises, and Privileges. It is, indeed, something ex-
traordinary that, when all the twelve Judges had but two
years before in two severalinstances adjudged, that a Member
ought not to be imprisoned “ ratione alicujus transgressionis,
“ debiti, computi, conventus aut alterius contractus cujus-
cunque," yet, when Mr. Hyde is brought up to the Court
of King's Bench, that Court should remand him to Newgate,
and not immediately order him to be set at liberty: This cir-
cumstance, added to the necessity (which there appears to have
been) of indemnifying the Chancellour and Sheriffs against
* See N° 6.
any
CHAP. 1.] End of the Reign of Henry VIII. 47
any prosecution at law for his escape, induces me to suspect
that the opinion of the Judges, as delivered in the two former
instances in the 12th Edward IV. was confined only to the
case of persons entitled to Privilege of Parliament, who
should be arrested and imprisoned on Mesne process ; and
that the right, which such persons had by law to Writs of
Privilege and Habeas Corpus for their delivery, did not ex-
tend to persons imprisoned under a Writ of Execution ; for,
if it was otherwise, if Members and their servants had, when
in execution for debt, a right by law to be released by a Writ
of Privilege, or that the law then was, that such imprison-
ment was illegal, it is highly absurd to suppose that the Lord
Chancellour, who was by his office to issue this writ, or the
Sheriffs, who were bound to obey it, should, by their obe-
dience to the law, make themselves liable to the prosecution
of the creditor, as for the escape of his debtor ; or that the
law would not at the same time have provided for a renewal
of the Writ of Execution ; both which however, we see, were
necessary to be specially declared by Act of Parliament *.
This, therefore, I say, makes me think that, at this time,
the claim of Privilege of Parliament extended only to secure
persons entitled to such Privilege from being arrested for
trespass, debt, &c. on mesne process; and against such ar-
rests the law gave the remedy of a Writ of Privilege, which
released the person of the debtor, and did not affect the
* It has been suggested to me, that “Executions also ?-And that this is
the observation on this Case is not “ a point which a Commentator should
settled with sufficient precision, it be- “settle.”
ing of great importance to determine To which I beg leave to answer, that
this question,—“ Whether the Super- the intention of this work is principally
“ sedeas and Habeas Corpus, and con- to produce the Cases; and to leave to
“ sequently the real Privilege of the others to comment on and settle the
“ House of Commons, extended only law which arises out of them.
" to Arrests on Mesne Process, or to
rights
48
From the earliest Records to the [CHAP. 1.
rights of the creditor ; but from an arrest on a judgment, it
appears, both from Lark's, and Clerk's Case, and the present,
that there was, at this time, no other redress than a special
Act of Parliament.
17. Three years after this, happened the Case of John
Atwyll, Burgess for Exeter, which is thus entered on the
Parliament Roll*.
6
Roll Parl. 17 Edw. IV. N° 35.
“ To the Kyng oure Sovereigne Lord, prayen the Comons
' in this present Parlement assembled, That, whereof tyme
" that mannys mynde is not the contrarie, it hath been used,
" that the Knyghtes of the Shires, Citezeins of Citees, Burgies
of Burghes, and Barons of Five Portes, of this your reame,
? called to any of the Parlements of your noble progenitours, ,
or your's, amonges other Libertiees and Fraunchises, have
had and used Pryvylege, that eny of theym shuld not
' be empleded in any action personell, nor be attached by
• their persone or goodes in their comyng to any such Par-
·lement, there abidyng, nor fro thens to their propre home
resortyng, which Liberties and Fraunchises your Highnes to
your Lieges called by your auctorite roiall to this your high
· Court of Parlement for the Shires, Citees, Burghs, and Five
- Ports of this reame by your auctorite roiall, atte commense-
ment of this Parlement graciously have ratified and confirmed
to us youre said Comens nowe assembled by your said rojall
commaundement in this your said present Parlement:-
· And it is so, Sovereigne Lord, that where oon John Atwyll,
one of the Citezeins of the cite of Exeter, comen to this
• present Parlement, and here contynielly attendyng uppon
* Vol. VI. p. 191.
the
6
G
CHAP. 1.] End of the Reign of Henry VIII.
49
6
6
6
6.
6
the same sithen the commensement therof, oon John
Tayllour, callyng hym Merchaunt of the said cite of Exeter,
by vertue of eight dyvers feyned enformations made in your
· Escheker, hath condempned the said John Atwyll duryng
* this present Parlement, by the defaute of aunswere of the
said John, in eight times 201. the same John dayly attend-
yng uppon the same Parlement, and not havyng knowe-
ledge of the said condempnations; uppon which condemp-
' nations dyvers and severall writtes been directed to dyvers
· Shirefs of this your reame, some of Fieri facias, and some
Capias ad Satisfaciend', so that the said John Atwyll may
not have his free departyng from this present Parlement to
· his home, for doute that booth his body, his horses, and his
• other goodes and catalles necessarie to be had with hym,
· shuld be put in execution in that behalfe, contrarie to the
Pryvilege due and accustomed to all the Membres usuelly
• called to the forseid Parlementes ; Be it therefore ordeigned,
' by the advis and assent of the Lordes Spirituels and Tem-
· porell in this present Parlement assembled, and by the auc-
torite of the same, That the said Writtes of Executions, and
every of theym, to be had uppon the same, in no wyse to be
executour, nor hurtfull to the said John Atwyll, his heires
nor executours, nor any of theym; and that the Chief
· Baron of the said Escheker for the tyme beyng, have poiar
by this ordenaunce to graunte withoute denyer, to the said
* John Atwyll, his heires and executours, and every of theym,
• such and als many Writtes of Supersedeas, uppon this or-
denaunce, to every such Shiref or Shirefs of this reame to be
directe, to surcesse of eny maner of execution, in that be-
• halfe to be made or had, as to the said John Atwyll, his
- heires and executours, and every of theym, shall be requi-
* sile: Savyng alwey to the forseid John Tayllour his forseid
Vol. I.
H
' jugementes
6
6
:
1
50
[CH AP. 1.
From the earliest Records to the
Y?
6
jugementes and executions, and every of theym, to be had
* and sued atte his pleasure ayenst the said John Atwyll at
eny tyme after the ende of this present Parlement, this
• ordenaunce notwithstondyng.
• Resp. Le Roy le voet."
There are several matters worthy of observation in this
Record. (1.) This is the first instance I have met with, in
which the Commons themselves have claimed the Privilege of
not being impleaded in any personal action, during the time
of Privilege; it is also remarkable, that though they entirely
supersede these Writs of Execution, as having been obtained
contrary to their Privileges, yet they pray no redress for this
so extraordinary a violation of them. (2.) There is another
claim made by the Commons in this Petition, of which kind
nothing has occurred since the Case of the Prior of Malton,
Nº 5, in the ninth Year of Edward II. above one hundred
and sixty years before, viz, “ that of not being attach'd in
“ their horses or necessary goods and cattales ;” the King's
answer, however, being general, “ Le Roy le voet," confirms
this to have been the Law of Parliament; and as Prynn ob-
serves, in the Fourth Register, p. 775, “ This was the judg-
“ ment of the King, Lords, Judges, and Commons too in that
age, that the Members Privilege extended to protect their
“ persons, horses, and necessary goods, which they carry with
“ them, from arrests and executions during the Parliament,
6 and in coming to, and returning home from it.” (3.) * They
here certainly declare, that it is contrary to the Privilege of
Parliament, that the body of any Member should be put in
execution, sitting the Parliament; and yet we have seen, in
66
See the Note, page 47-
several
CHAP. 1.] End of the Reign of Henry VIII. 51
several foregoing instances, that, when this Privilege was
broken, and the body of a Member was put in execution,
sitting the Parliament, it was found necessary to make a
special Act of Parliament for his release; which seems to
imply that the common law had not in this instance provided
any remedy for this right. (4.) They consider the prosecuting
and obtaining these Writs of Execution, sitting the Parlia-
ment, to be so totally irregular, and against their Privileges,
that they supersede the operation of them even in favour of
Mr. Atwyll’s heirs and executors. And yet, (5.) They think
themselves obliged, at the same time, to save to this creditor
his right to sue these Judgments and Executions after the
expiration of the Parliament.
18. Notwithstanding this formal claim by the House of
Commons, of their Privilege of not being impleaded in any
Personal Action, and that this claim was admitted by the
Lords, and confirmed by the King, the next Case, which
occurred within a very few years, and in which the defendant
sets forth what he conceives to be the custom and law of
Privilege of Parliament, omits this privilege of not being
impleaded in Personal Actions. Indeed we have seen in
the two former Cases, Nº 14 and 15, that when this was
attempted to be introduced as law, the Barons of the Exche-
quer, supported by the opinion of the rest of the Judges, had
disallowed it.
:
The Record is as follows *
6 Hil. 1 Hen. VII. Rot. 104.-Roo v. Sadcliffe.
· Et prædictus H. venit, & dicit quod ipse est serviens
· familiaris Johannis Savage, Mil. unius Militum Com. Staff.
* Prynn's Fourth Register, p. 776.
H 2
qui
52
From the earliest Records to the [CHAP. 1.
qui ad Parliamentum Domini Regis nunc de mandato suo
venit. Et dicit, quod secundum consuetudinem in regno
ipsius Regis Angliæ hactenus obtentam et approbatam,
Domini Magnates, et Milites Com. et Cives et Burgenses
• Civitatum et Burgorum ad Parliamentum ipsius Dom. Regis
de summonitione sua venientes, aut eorum servientes et
· familiares ratione alicujus transgressionis, debiti, computi,
• conventionis aut alicujus contractùs cujuscunque, dum sic
' in Parliamento prædicto morentur, arrestari minimè de-
'beant aut imprisonari. Et hoc paratus est verificare. Et
profert hic in curia breve Domini Regis nunc Justic. suis
• hic directum, quod sequitur in hæc verba :
· Henricus Dei gratiâ Rex, &c. Justiciariis suis de Banco
6 Salutem. Cum secundum consuetudinem, &c.' and then
the writ recites the custom, as set forth before in the words of
the plea; · Vobis mandamus, quod placito illo supersedeatis,
ipsum contra consuetudinem prædictam non molestantes in
aliquo, seu gravantes.
• Et super hoc, iidem Justiciarii viso brevi illo ac allega-
' tione ipsius defend. pleniùs intellectâ, consideratum est quod
prædictus defend. eat sine die, &c.'
6
6
It may, indeed, be said that it was not necessary to state in
this writ any more of the custom than was absolutely suffi-
cient for the particular situation of the defendant: Sadcliffe
was arrested and imprisoned under Mesne Process; he only
wanted to be released ; it was, therefore, not incumbent upon.
him to set forth in the writ any thing of the custom of not
being liable by the Privilege of Parliament to be impleaded ;
and that therefore the authority of this Case, with respect to
the non-existence of such custom, is of no weight
Hitherto
chap. 1.] End of the Reign of Henry VIII.
53
Hitherto we have seen, that when a Member, or his servant,
has been imprisoned, the House of Commons have never
proceeded 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 Chan-
cellor to issue his writ for his release, or, if the party was con-
fined only on Mesne Process, he has been delivered by his
Writ of Privilege, which he was entitled to at common law.
The next Case which occurs is therefore remarkable, as it in-
troduces a new mode of proceeding in this particular :
+
6
19. In the Lent season, whilst the Parliament yet continued,
one George Ferrers, Gentleman, servant to the King, being
• elected a Burgess for the towne of Plimmouth, in the county
• of Devon, in going to the Parliament House was arrested in
· London by a process out of the King's Bench, at the suit of
one White, for the sum of two hundred Marks, or thereabouts,
wherein he was late afore condemned, as surety for the debt of
one Welden of Salisbury ; which arrest being signified to Sir
· Thomas Moile, Knight, then Speaker of the Parliament, and
• to the Knights and Burgesses there, order was taken that the
Serjeantof the Parliament, called S.J. should forthwith repair
to the Counter in Bread-street, whither the said Ferrers was
carried, and there to demand delivery of the prisoner.
Thereupon the Serjeant, as he had in charge, went to the
* Counter, and declared to the Clerks there what he had in
commandment; but they, and other officers of the City, were
• so far from obeying the said commandment, as, after many
stout words, they forcibly resisted the said Serjeant; whereof
• ensued a fray within the Counter gates, between the said
· Ferrers and the said officers, not without hurt of either
part,
so that the said Serjeant was driven to defend himself with
6
6 his
54 From the earliest Records to the [CHAP. 1.
Y
6
6
6
6
6
• his mace of armes, and had the crown thereof broken by
bearing off a stroke, and his man stroken down. During this
< brawle, the Sheriffs of London, called Rowland Hill, and
· H. Suckley, came thither ; to whom the Serjeant complained
of this injury, and required of them the delivery of the said
Burgess, as afore; but they bearing with their officers, made
little account either of his complaint or of his message, re-
jecting the same contemptuously, with much proud lan-
guage, so as the Serjeant was forced to return without the
prisoner; and finding the Speaker and all the Knights and
Burgesses set in their places, declared unto them the whole
cause, as it fell out; who took the same in so ill part, that
they all together (of whom there were not a few, as well of the
King's Pryvy Counsel, as also of his Pryvy Chamber) would
• sit no longer without their Burgess, but rose up wholly, and
retired to the Upper House ; where the whole Case was de-
clared by the mouth of the Speaker, before Sir Thomas
Audley, Knight, then Lord Chancellour of England, and
• all the Lords and Judges there assembled; who, judging
' the contempt to be very great, referred the punishment
6 thereof to the order of the Commons House.
“ They, returning to their places again, upon new debate of
• the Case, took order, that their Serjeant should eftsoon repair
to the Sheriffs of London, and require delivery of the said
Burgess, without any writ or warrant had for the same, but
only as afore: Albeit the Lord Chancellour offered there to
grant a writ, which they of the Commons House refused, be-
ing of a clear opinion, that all commandments and other acts
proceeding from the Neather House, were to be doneand exe-
' cuted by their Serjeant without writ, only by shew of his mace,
which was his warrant. But before the Serjeant's return into
• London, the Sheriffs having intelligence how haynously the
matler
6
6
6
6
6
CHAP. 1.] End of the Reign of Henry VIII.
55
6
6
6
• matter was taken, became somewhat more milde, so as upon
the said second demand they delivered the prisoner without
any denyal. But the Serjeant having then further in com-
• mandment from those of the Neather House, charged the
• said Sheriffs to appear personally on the morrow, by eight
• of the clock, before the Speaker of the Neather House, and
to bring thither the Clerks of the Counter, and such other
• of their officers as were parties to the said affray, and in like
' manner to take into custody the said White, which wittingly
procured the said arrest, in contempt of the Privilege of the
Parliament. Which commandment being done by the said
Serjeant accordingly, on the morrow, the two Sheriffs, with
one of the Clerks of the Counter (which was the chief oc-
casion of the said affray) together with the said White,
appeared in the Commons House; where the Speaker
charging them with their contempt and misdemeanor afore-
' said, they were compelled to make immediate answer,
* without being admitted to any Counsell; albeit Sir R.
• Cholmley, then Recorder of London, and other the Counsell
• of the City then present, offered to speak in the cause, which
were all put to silence, and none suffered to speak but the
parties themselves ; whereupon in the conclusion the said
Sheriffs, and the same White, were committed unto the
- Tower of London, and the said Clerk (which was the occa-
' sion of the fray) to a place there called Little Ease, and the
S officers of L. which did the arrest, called Bayley, with four
• officers more, to Newgate, where they continued from the
28th until the 30th of March, and then they were delivered,
not without humble suit made by the Mayor of L. and
6 other their friends. And forasmuch as the said Ferrers
being in execution upon a condemnation of debt, and set
at large by Privilege of Parliament, was not by law to be
brought
6
56
From the earliest Records to the [CHAP. 1.
6
6
brought again into execution, and so the party without
remedy for his debt, as well against him as his principal
• debtor, after long debate of the same by the space of nine
' or ten days together, at last they resolved upon an Act of
· Parliament to be made, and to revive the execution of the
said debt against the said Welden, which was principal
debtour, and to discharge the said Ferrers.
· But before this came to pass, the Commons House was
6 divided
upon the question : but in conclusion the Act passed
for the said Ferrers, who won by fourteen voyces.—The King
being then advertis'd of all this proceeding, called before him
' immediately the Lord Chancellour of England,and his Judges,
· with the Speaker of the Parliament, and other the gravest per-
sons of the Neather House, to whom he declared his opinion
• to this effect: “First commending their wisdome in maintain-
“ ing the Privileges of the House (which he would not have to
“ be infringed in any point) alledged that he, being head of the
“ Parliament, and attending in his own person upon the business
“ thereof, ought in reason to have Privilege for him, and all his
« servants attending there upon him. So that if the said Fer-
rers had been no Burgess, butonly his servant, that in respect
“ thereof he was to have the Privilege, as well as any other.
- For I understand, quoth he, that you, not only for your own
persons, but also for your necessary servants, even to your
"s cooks and horsekeepers, enjoy the said Privilege, insomuch
as my Lord * Chancellour here present hath informed us, that
“ he being Speaker of the Parliament, the cooke of the Temple
“ was arrested in London, and in execution upona statute of the
66
* This Lord Chancellor was Baron 1529; and was the immediate successor
Audley de Walden. He had been to Sir Thomas More, in both the offices
Speaker of the House of Commons in of Speaker and Chancellor.
Staple
CITAP. 1.] End of the Reign of Henry VIII. 57
C6
1
Staple. And forasmuch as the said cook during the Parlia-
“ment served the Speaker in that office, he was taken out of
“ execution by the Privilege of the Parliament. And further,
“ we be informed by our Judges, that we at no time stand so
highly in our Estate Royal, as in the time of Parliament ;
“ wherein we as Head, and you as Members, are conjoin'd
“ and knit together into one Body Politick, so as whatsoever
“ offence or injury (during that time) is offered to the meanest
“ Member of the House, is to be judg'd as done against our
“ Person and the whole Court of Parliament; which prero-
gative of the Court is so great (as our learned Counsel in-
“ formeth us) as all acts and processes coming out of any
s other inferior Courts, must for the time cease and give place
to the highest. And touching the party, it was a great pre-
sumption in him, knowing our servant to be one of this
“ House, and being warn’d thereof before, would nevertheless
prosecute this matter out of time, and therefore well worthy
“ to have lost his debt, which I would not wish, and therefore
“ do commend your equity, that, having lost the same by law,
“ have restor'd him to the same against him who was the
«debtor; and this may be a good example to other, not to
“ attempt any thing against the Privilege of this Court, but to
“ take the time better.”—- Whereupon Sir Edward Montagu, ,
" then Lord Chief Justice, very gravely declared his opinion,
confirming by divers reasons all that the King had said,
· which was assented unto by all the residue, none speaking
to the contrary.'
66
Such is the history of this transaction*, as related by Hol-
lingshead, to have passed in 1543, the thirty-fourth year of
the
* In Carte's History of England,
Vol. 3. pp. 164, 541, it is said, “That
VOL. I.
" the whole Case of Ferrers, related by
“ Hollingshead, and copied by Grafton
I
6 and
58
[CH AP. 1.
From the earliest Records to the
the Reign of Henry VIII. It is certainly very extraordinary,
that every Privilege, which has been in later times claimed by
the House of Commons on the arrest of any of their Members,
should be here insisted on and exercised, to as great an extent,
in this first instance, as it has ever since been admitted by law
to exist. (1.) First, the Member arrested was delivered, not
by virtue of an Act of Parliament, though in execution, nor
by any Writ of Privilege, but by the Serjeant, without any
other warrant than his mace, even though the Lord Chancellor
offered such a writ. (2.) The parties, who opposed his de-
livery, were imprisoned, by the House of Commons, some in
the Tower, some in Newgate. (3.) The creditor himself, who
procured the arrest, was also committed for his contempt of
the Privilege of Parliament. And these powers, so exercised,
though I have not found the least trace of any one of them
in the foregoing instances, were admitted by all the Judges in
England to be legal. It is said, indeed in Moore's Reports *,
that afterwards, in the sixth year of Queen Elizabeth, Dyer,
when Chief Justice, said, “ That if a man is condemned in
“ debt or trespass, and is elected a Member of Parliament,
" and then is taken in execution, he cannot have the Privilege
“ of Parliament; and so it was held by the sages of the law,
“ in the Case of Ferrers, in the time of Henry VIII. Et
“ coment que le Priviledge a ceo temps fuit a luy allow, ceo
“ fuit minus just."--But Dyer himself citing this Case of
Ferrers, in his Reports ut, mentions it without blame.
There are, however, so many new and extraordinary cir-
cumstances attending this Case of Ferrers, that I own I am
apt to suspect that the measures which were adopted, and the
“ and Speed, is untrue.”—Carte sup- his History, to serve some political
poses the Case to be a mere Fable, purpose.
which the Puritans and Calvinists had
prevailed on Hollingshead to insert into
+ Page 61.
doctrine
* Page 57
CHAP. 1.] End of the Reign of Henry VIII. 59
doctrine which was now first laid down with respect to the
extent of the Privileges of the House of Commons, were more
owing to Ferrers's being a servant of the King's, than that he
was a Member of the House of Commons. The King, in his
argument in favour of Parliamentary Privilege, relies much
upon this ; and it is difficult to explain, why, if Ferrers had
been considered only as a Member, the Commons, in the Bill
which they passed to restore to the creditor his debt against
the principal, did not also revive it against the surety, agree-
able to the principles both of Law and Equity, upon which
they had acted in every former instance* Prynn, in the
Fourth Registerf, very justly observes, that there were aggra-
vating circumstances attending the manner of the arrest, which
might provoke this extraordinary interposition of the House
of Commons.-(1.) Ferrers was only security for the debt.
(2.) He was arrested as he was actually going to the Parlia-
ment House. (3.) White, who procured the arrest, knew him
to be a Member, and a servant of the King's.-- The mode of
interposition was however certainly new, and perhaps Lord
Herbert judges right, when he supposes it gained the King's
approbation, “ that He, whose master-piece it was to make
“ use of his Parliaments, might not only let foreign Princes
the good intelligence between him and his subjects, but
might also keep them all at his devotion."
see
20. Within two or three years after this very memorable
* The following observation was Cases of Executions?-If the Privilege
made by a friend, to whom I shewed did extend to Executions, those Acts
the work before it was printed. It in favour of the plaintiff were ex gratia,
is true they certainly had done so in and might be made in what proportion
former instances; but whether that was the House thought proper for his be-
agreeable to the principles of Law and nefit, under the particular circumstance
Equity, depends on the question, What of the Case.”
was the real Privilege of Parliament in
+ Page 859.
I 2
Case,
60 From the earliest Records to the [CHAP. 1.
Case, occurs that of Trewynnard, in the 36th and 37th Henry
VIII. in the year 1545, of which the Record is as follows*:
©
· Hil. 36 Hen. VIII. Rot. 39. in Ban. Regis.
· Laurence Courtney and Richard Tomyewe, executors of
• John Skewes, Esq; brought an action of debt against Richard
· Chamond, Esq; late Sheriff of Cornwall, for 741. 15 s. pro
eo, viz. quod cum prædictus Johan. Skewes in vita sua
prosecutus est quoddam Breve Dom. Regis Vice Comiti
• dicti Comit. Cornubiæ directum, et coram Justiciariis
' dicti Dom. Regis de Banco retorn. recitans quod idem Vice
Comes præciperet Willo. Trewynnard, quod reddat prædicto
· Johanni Skewes, 751. After a long recital of the proceedings,
and of the judgment given against Trewynnard for the rent due,
and his damages Postea, scilicet præceptum fuit per Breve
· Dom. Regis Vic. Cornub. quod exegi faceret prædict. Wil-
· lielmum Trewynnard, quousque secundum legem et con-
- suetudinem Angliæ utlagaretur, si nou comparuisset, et si
' comparuisset, tunc eum caperet et in prisona salvo custodiri
faceret.'-On 12th November after, · Will. Trewynnard,
quinto exactus, comparuit, & se reddidit Vice Com. Cornub.
--And that, afterwards, the said Trewynnard being then in
custody of the Sheriff, on the 20th of March the said Richard
Chamond let the said Trewynnard go at large, without satisfy-
ing the said Skewes (then alive) in his rent and damages. To
this Richard Chamond pleads, that the said executors ought
not to have their action against him, because that the said
William Trewynnard being, as stated, in his custody, he re-
ceived the King's Writ on the 21st day of February, directed
to the Sheriff of the county of Cornwall, in these words :
6
· Henricus Octavus, Dei gratiâ Rex, &c. Vic. Cornub.
Salutem. Cum secundum consuetudinem in regno nostro
* Prynn's Fourth Register, p. 780.
6
Angliæ
CHAP. 1.] End of the Reign of Henry VIII. 61
6
's
6
6
C
6
Angliæ hactenus obtentam et approbatam, Domini Mag-
• nates, et Milites Comitatuum, ac Cives et Burgenses Civitatum
et Burgorum ad Parliamenta nostra de summonitione nostra
venientes, “seu venire intendentes," aut in eisdem circa ardua
negotia statum et utilitatem regni nostri prædicti concernentia
attendentes, sub protectione nostra liberi et quieti de omni
arrestatione aut imprisonamento corporum suorum ratione
alicujus transgressionis, debiti, computi, conventionis, aut
alicujus alterius contractûs cujuscunque esse debeant, ac tem-
· poribus retroactis consueverunt: Ac jam ex querela dilecti
' nostri Willielmi Trewynnard unius Burgensium Villæ sive
Burgi nostri de Helstone, in comitatu Cornubia predicto,
accepimus, quod ubi ipse ad præsens Parliamentum de
summonitione nostra venire intendisset et parâsset : tu tatem
' ad hoc considerationem non habens, præfatum Willielmum
- virtute cujusdam Brevis nostri de exigend. versus ipsum
• Willielmum ad prosecutionem cujusdam Johannis Skewys
• extra Curiam nostram ad placita coram nobis tenend. rema-
nent. sub arresto ac in prisona detines, ut dicitur, ita quod
· ad Parliamentum nostrum prædictum venire non potest, in
ipsius Willielmi dampnum non modicum et gravamen, et
• contra consuetudinem supradictam. Tibi præcipimus, quod
* si ita est, tunc ipsum Willielmum dearrestari, et a prisona
qua, ea occasione, seu alia occasione quacunque, contra con-
- suetudinem supradictam detinetur, sine dilatione deliberari
6 facias.
• Teste meipso apud Westm. 22 die Febrii. anno regni
6 nostri 35.'
6
By virtue of which Writ of Privilege, afterwards, on the
20th of March, Chamond pleads that he delivered Trewyn-
nard, and suffered him to go at large. -Unde petit judicium
si prædicti Laurentius et Ricardus actionem suam habere
debeant.
+
62
From the earliest Records to the [CHAP. 1.
66
66
66
debeant. To this plea the plaintiffs demur. -Prynn, in the
Fourth Register *, says there was no Judgment or Resolution
of the Court entered in the Record ; and Dyer, who reports
the Case, says t, Quære sequelam hujus placiti.—I should not,
therefore, have taken any notice of this case, but in order to
introduce what Dyer, who appears to have argued the point
as Counsel for the Sheriff, has said upon it in his Reports ..
66 There are three matters to be considered in this Case:
(1.) Ou le privilege soit grantable, en ce cas, pur un Bur-
gess de Parft. esteant arrest sur le brē dexeč. (2.) Item, Si
“ le privilege soit grantable, ou le partie per cē enlargement
serra clere discharge dexeč a touts jours enus le partie, ou
forsque pur le temps del Parliament. (3.) Item admit que le
priviledge nest allowable en le case, unč ou le vič per cest bře
“ et garrant del Roy, precedant del Parliament, serra sufficient
" excuse et discharge vers le partie pitf del debt.-- Et al prim.
“ il semble le privilege allowable; car quand les Membres sont
66 returne, lour parsonal attendance est cy necessary al Parlia-
“ ment, que ils ne doient pur ascun business estre absents, et
doncques il ensua que le person de chescun tiel Member
“ doiet estre privilege d'arrest al suit d'ascun private person,
“ durant cel temps que il est embusied entor les affaires del
Roy et son realme. Et tiel priviledge ad estre touts foits
graunt per le Roy a ses Commoners, al request del Prolo-
“ cutor del Parliament le primer jour, &c. Donộs common
“ reason voit que' entant que le Roy et tout son realme ad un
“ interest en le corps de chescun des dits Members, il semble
que le private commoditie de ascun particular homme ne
“ doiet estre regard, car est un maxime, qd'magis dignum
- trahit ad se minus dignum, issint est a conclude que cest
“ Court de Parliament est le pluis haut Court, et ad plusors
66
6.6
* Page 789.
4 Page 61.
# Page 59.
“ priviledges
6
C
CHAP. 1.] End of the Reign of Henry VIII. 63
66
66
“ priviledges que ascun autre Court del realme; per que sem-
ble, que en chescun case sans ascun except, chescun Burgess
est priviledge, quant larrest nest forsque al suit dun subject :
6. Et le case icy est melior, entant que execut". fuit sue durant
«s le Parliament, en quel case le pitk fuit al election de suer
«« execution de son corps, ou de ses terres et biens. Et auxi
“ chescun priviledge est per prescription, et chescun prescrip-
- tion que sound al common weale est bon, coment que il soit
“ prejudice a ascun private person.—Al second matter; il
“ semble que le party nest discharge dexecution a touts jours,
mes pur certain temps, car il nest impertinent mesque un
judgement poit un foits estre executed, et auterfoits execu-
- torie. - Et al tierce, Semble que le Vicont nest chargeable:
“ Et mittomus que le Vicount ust disobey ceste briefe, quel
damage esteroit il? Verament endaunger de perjury, et auxy
“ de imprisonment de son corps, et raunsome al volunt le
“ Roy : et ceo fuit en ure en mesme le Parliament vers Row,
« land Hill et Suckley, les Viconts de Londres, queux fue-
“ rent commit al Tower pour lour contempt, pur ceo que ils
ne voile lesser George Ferris, que fuit arrest sur un execu-
« tion, d'aler a large, quant les Serjeants del Armes vient pur
luy sans ascun briefe. Et il appiert pleinement per le
briefe, que ils fuerent clere en le Parliament que le partie
“ duist aver le privilege en cest case, car auterment le briefe
“ serroit forsque Habeas Corpus cum causa, quel briefe est
“ souvent foits graunt devaunt ceo que les Justices sont agrees
• le quel de priviledge gist en le case ou nemy, et sils trove
que nest grauntable en le case, doncques ils remaund le mat-
“ ter ove procedendo, &c. per que, &c. coment que le Parlia-
“ ment erra en le graunt del briefe, uncore ceo nest reversible
en auter Court, ne ascun default en le Vicont, per que.”
s
62
We
64 From the earliest Records to the [chap. 1.
We must remember, in reading this Report, that Dyer was
not at this time pronouncing the law as a Judge, but arguing as
Counsel in support of his client; and therefore, as it was his
duty to lay down the extent of Privilege of Parliament as large
as possible, it may fairly be concluded, that the law of Privilege
was at this time confined within the limits that he has here
described. This consideration may excuse me for presuming
to differ from so great an authority with respect to his opinion
on the second point, viz. “ That the party was discharged
“ from the Execution only for a certain time.” All the
ceding Cases, confirmed by the subsequent statute of James I.
shew that the law was otherwise, and that the Writ of Exe-
cution, when executed, could not be revived but by Act of
Parliament.
All the pre-
It should seem, from the concluding words of the Report,
that this Writ of Privilege was directed to be issued by an
Order of the House of Commons; and though nothing appears
in the Record to justify this supposition (nor has any thing of
this sort yet occurred in any of the former instances) we shall
see that, within a very few years, this idea was adopted by the
House of Commons; and it was established, that no person
should apply for a Writ of Privilege without a warrant for
that purpose first obtained from the Speaker.-It appears,
from
the dates of the proceedings in this business, that this Session of
Parliament began on the 14th of January; that Trewynnard
had surrendered himself on the 12th of November preceding;
that the Writ of Privilege was issued on the 22d of February;
and that he was not delivered out of prison till the 20th of
March. Why then did the House of Commons, who had so
lately been alarmed, and had proceeded in so extraordinary a
manner on the imprisonment of Ferrers, suffer this Member to
continue
CHAP. 1.] End of the Reign of Henry VIII. 65
continue in custody above two months after their meeting?
Perhaps his being in custody at the commencement of the
Session, on a judgment issued during a very long prorogation,
might, in their opinion, distinguish this case from that of a
Member arrested as he was coming to the Parliament House;
or perhaps, as I have suggested before, they would not have
acted as they did in the case of Ferrers, if he had not been a
servant of the King, and if, for that reason, the affront had
not been considered by the King's Privy-Counsellors, and those
of his Privy Chamber, “ of whom there were not a few," as
offered to the King himself.
These twenty Cases are all that I have met with; prior to
the Reign of Edward VI.
And here it may not be disagreeable to the Reader to stop
for an instant, and to endeavour to collect from these in-
stances, what was the more ancient doctrine of the extent of
Privilege of Parliament, as claimed by Members of the
House of Commons.
66
First, It has hitherto been confined expressly to the Mem-
bers themselves, and to their servants, familiares,” waiting
on them during their attendance in Parliament *
* After the Resolutions of the Lords,
on the 28th May 1624, which are en-
tered before in the Note, pp. 40, 41,
there is the following entry, “ It is
desired, That all the Lords, after the
“ end of this session, be very careful in
" these points, and remeniber the
“ground of these Privileges, which
“ was only in respect they should not
“ be distracted, by the trouble of their
servants, from attending the serious
“affairs of the kingdom; and that there-
“fore they will not pervert this Pri-
vilege to the public injustice of the
“ kingdom ; so that every one ought
“ rather to go far within, than any way
“ exceed, the due limits."
Vol. I.
K
Secondly,
66
From the earliest Records to the [chap. 1.
Secondly, It has not been extended, in point of duration,
beyond the time of their coming to Parliament, their residing
there, or returning to their homes ; except in the Writ of Pri-
vilege sued out in the last Case of Trewynnard, which was to
persons“ venientes seu venire intendentes.”
Thirdly, No Case has occurred where the suit or prosecu-
tion against the person claiming Privilege, has been for any
other than a civil cause, “ transgressionis, debiti, computi,
conventionis, aut alterius contractûs cujuscunque.” In-
deed, in Lark's Case, in the year 1430, the Commons state
their Privilege, to be free from all arrests, except for treason,
“ felony, or surety of the peace;" and in Thorpe's Case, in
1456, the Judges declare," that if any Member of Parliament
66 be arrested in such Cases as be not for treason, or felony, or
surety of the peace, or for a condempnation had before the
Parliament, it is used that all such persons should be re-
" leased of such arrests, and make an attorney, so that they
“ may have their freedom, and liberty freely to intend upon
" the Parliament,” But in neither of these cases, nor in any
other that we have yet met with, is there any proceeding, to
explain the precise meaning of these words, “ Surety of the
“ Peace *," or to shew how far they were then understood to
extend to indemnify persons, entitled to Privilege of Parlia-
ment, from any species of criminal prosecution.
CG
* In a Resolution of the House of
Lords, of the 18th April 1626, their
Privilege is thus expressed : “ Re-
solved, nemine dissentiente, That no
" Lord of Parliament, sitting the Par-
“ lianrent, or within the usual times of
“ Privilege of Parliament, is to be im-
prisoned or restrained, without sen-
“tence or order of the House, unless
“ it be for treason, or felony, or for
refusing to give surety for the peace.
See Lord Arundel's Case, in this Vol
Ch. 3, under the head of " Commit-
“ ment of Members by the Privy
· Council," No.8.--See also page 152
of this Volume,
Fourthly,
CỦAp. 1.] End of the Reign of Henry VIII. 67
66
Fourthly, Though the claim of personal Privilege, or of
being free from arrests in civil suits, is general, I cannot, as I
said before, but suspect, as well from the expressions used by
the Chief Justice, in delivering the opinion of the Judges in
Thorpe's Case, condempnation had before the Parliament,
as from other circumstances, that originally it was understood
to extend only to persons arrested on mesne process, and not
to those taken in execution ; and I am supported in this opi-
nion, by the argument, which arises from the remedy provided
by the Common Law for the delivery of persons arrested on
mesne process, viz. “ a Writ of Privilege;" whereas in the
other case, we have seen that it was thought necessary to apply
for a special Act of the Legislature, not only to enable the Chan-
cellor to issue his writ for the release of the Member so taken
in execution, but even to indemnify him for issuing that writ,
and the sheriffs and other ministerial officers for obeying it.
And, when the Judges say, in Thorpe’s Case, “that the person
« arrested is to be released, and to make his attorney," this
seems to imply that he is to be released only on some process
prior to the final judgment; for to a judgment I apprehend
the party could not answer by his attorney; but, if he does not
satisfy the debt and costs, must suffer in his proper person.
Fifthly, The only Cases I have hitherto met with, which
seem to imply a Privilege, that the goods of a Member shall
not be taken in execution, are (1) That of the Master of the
Temple, Nº 1. (2) The Case of the Prior of Malton, N° 5.
(3) Atwyll’s Case, Nº 17. And this last is the only one that
relates to Members of the House of Commons; and in the
two latter of these Cases, the claim is expressly confined to
such goods and chattels, as it was necessary the Member should
have with him during his attendance in Parliament, or in
returning to his home.
K 2
There
68
From the earliest Records to the [CHAP. 1.
There is an expression in Dyer's Argument in Trewynnard's
Case, from which one may collect that it was his opinion,
" that the lands or even goods of a Member were liable to
“ execution, even during the sitting of Parliament,” for he
says, “ Et le Case icy est melior, entant que Execution fuit
sue durant le Parliament, en quel case le Piff. fuit al
6 Election de suer Execution de son corps, ou de ses terres
66 et biens."
Sixthly, The last species of Privilege which may be collected
from any of the foregoing Cases, is that of not being impleaded
during the attendance in Parliament. I have observed before,
that, except the Case of Bogo de Clare, Nº 2. and the Writs of
Supersedeas, N° 3. cited by Sir Edward Coke, nothing appears
in favour of this claim till the two Cases in the Exchequer,
N° 14, and 15, in the year 1474: in which the Barons, assisted
by the rest of the Judges, declare that no such custom did then
exist. In Atwyll's Case, 17 Edward IV. where the Commons,
for the first time, insist on the Privilege of not being impleaded
in any personal action, though they complain that the judg-
ments obtained against Atwyll were on feigned informa-
tions, he being then attending in Parliament, and not having
knowledge of the said condempnations, yet, notwithstand-
ing this irregularity, so subversive of their Privileges, and
indeed so contrary to the principles of natural justice, they
think themselves bound to save to the creditor his right to a
judgment, and new executions, to be sued after the conclusion
of the Parliament.
Seventhly, We have seen in these several instances the dif-
ferent modes, by which persons, who have been arrested or
imprisoned, have been released from their confinement. In
the Cases of Lark N° 8. of Clerk N° 13. and of Hyde Nº 16.
which
CHAP. 1.] End of the Reign of Henry VIII. . 69
which were of persons taken in execution after judgment, no
Writ of Privilege appears to have been applied for, but the
Commons went by petition to the King, and oblained a
special Act of Parliament for their release. In Sadcliffe's Case
N° 18. where the Defendant was arrested on mesne process,
a Writ of Privilege issued, under which he was set at liberty
by order of the Court. It does not appear that any judgment
was ever given in the Case of Trewynnard N° 20. from whence
it might have been collected, how far the Sheriff was justified,
by law, in obeying that Writ of Privilege, which issued to
relcase a Member then a prisoner in execution. The only
instance in which we have seen the House of Commons
interpose by their own authority, and deliver their Member
without the assistance of a Writ of Privilege, or of an Act of
Parliament, is that of Ferrers; and of this, and the several
circumstances attending it, having before given my opinion,
I shall leave it to the judgment of the Reader*,
و
* See page 58.
CHAP
( 70 )
CH A P. II.
FROM THE REIGN OF HENRY VIII. TO THE END OF THE
REIGN OF QUEEN ELIZABETH.
WE are now come to a period from which the Journals of
the House of Commons are extant; though, during the
reigns of Edward VI. Queen Mary, and Queen Elizabeth, the
entries are short and imperfect, and for some years, at the end
of the reign of the latter of these monarchs, the original
Journals are missing. I do not mean to insert, in the future
progress of this work, every instance that is to be found of
Privilege claiined or allowed, especially where there are, as in
the more common complaints of breach of Privilege, several
entries of the same sort: I shall confine myself to those Cases
which appear to me the most interesting, and these I shall
dispose in the order of time in which they happened.
21. On the 14th of January 1548, the Privilege of the
House is granted to John Keysar, servant to Sir Ralph Vane*.
On the 7th of February 1548, it is ordered, That J. S. servant
to Sir A. Wyngfylde, shall have a Writ of Privilege t.-And
there are several other similar instances in the reigns of
Edward VI, and Queen Mary, of Privilege allowed to the
servants of Members.
* See the 21st January 1548.
+ See the 18th January 1549; the
19th February 1552; the 24th February
1552 ; and the 15th November 1553.
22. On
CHAP. 2.]
From the Reign of Henry VIII. 71
6
6
6
22. On the 22d of February 1552, it is ordered, “That if
any Burgess require Privilege for himself, or his servant
(he) shall, upon declaration, have a warrant signed by Mr.
Speaker to obtain the Writ.'— And, 6 For that William
Ward, Burgess of Lancaster, obtained a Writ of Privilege
out of the Chancery, without a warrant from this House;
it is committed to Mr, Mason, and others, to examine the
matter, and certify. We have seen before, in Dyer's Ar-
gument in Trewynnard's Case, some allusion to a practice
of this kind, viz. “ the obtaining the previous consent of the
· House to an application for a Writ of Privilege." Upon
what grounds the House of Commons took this power into
their hands, I will not pretend to decide; it is certain that
the Speaker's Warrant could not be, in all Cases, necessary,
as the duration of Privilege, and consequently the legal right
of the party entitled to a Writ of Privilege, extended even
beyond the existence of the Parliament itself.
23. On the 18th of March 1552, it is ordered, “That Hugh
· Fludde, servant to Sir A. Wyngfylde, shall have Privilege.'
On the 26th a Supplication is exhibited by John Gurdon,
Frenchman, to undo the Privilege granted to Hugh Fludde, ut
supra : On the 28th it is ordered, That a Procedendo shall be
directed to set Hugh Fludde without the Privilege of this
House, as he was before, and the Serjeant to deliver him pri-
soner to the Sheriffs of London ;' on the next day, 'where
“the Serjeant delivered H. Fludde to a serjeant of London, he
• made an assault upon that serjeant, and escaped out of his
“ ward ; whereof, by credible report made to this House, it is
' ordered, that the serjeant shall require Mr. Comptroller to send
• to this House, to-morrow by eight o'clock, H. Fludde, and
Creketoste, to know the further pleasure of the
« House.
72 From the Reign of Henry VIII. tò the (CHAP. 2.
6
6
6
6
6
6
6
6
6 House. On the 30th Mr. Comptroller did send Fludde and
Cryketoste to the House, whereupon was declared by the
· Sheriffs serjeant, the misdemeanour and escape of Fludde, by
the means of Cryketoste; whereupon it is ordered that Fludde
' and Cryketoste shall be sent prisoners to the Gatehouse till
. to-morrow.- On the morrow, the 31st of March, it is or-
dered, that H. Fludde shall be remitted to the Counter of
London, in such case as he was before the Privilege granted
by this House unto him, and if Fludde shall agree with
Gurdon, that notwithstanding, to abide the order of this
House, if it be sitting; and if not, then to abide the order
* of the King's Majesty's Council, for the punishment of this
. demeanor, when it shall be ordered. For Cryketoste, it is
ordered that he should remain in ward, where he was, and to
bring him hither to-morrow at 10 o'clock; and it is ordered,
• that two Members shall make report to Mr. Comptroller of
- the misdemeanour of Fludde and Cryketoste: On the next
day, it is ordered, that Cryketoste shall be sent prisoner to the
· Tower, by the Serjeant of this House: On the 5th of April
he is ordered to be discharged of the imprisonment, paying his
· fees. On the 15th of April, the day of the dissolution of the
* Parliament, it is ordered, that Hugh Fludde, prisoner in the
Counter, shall so remain until he have satisfied or agreed with
• John Gurdon, and that then the said Fludde shall be delivered
' to the Serjeant of this House, and discharged of his imprison-
* ment there, notwithstanding any other action brought against
• him in London, sithence his first arrest for this matter. -
Prynn, in the Fourth Register, p. 1202, says, that “this is ob
scurely entered, but that it clearly implies, that Fludde was
arrested and imprisoned in the Counter, at the suitof Gurdon,
“ either upon an execution, or for some high breach of the
peace, and misdemeanour against him, of which when the
66 House understood the truth, though they had granted him
G
6
66
66 his
2.) End of the Reign of Queen Elizabeth. 73
“ his Privilege, they recommitted him prisoner to the Counter
" in the same state as before, till he had satisfied Gordon.”- LI
have entered the Proceedings in the Journal at length, in order
that the Reader may be able to collect, as clearly as Prynn,
for what cause Fludde was originally arrested, and why the
Privilege allowed him was withdrawn. It may not be here
improper to take notice of the punishments which the House
inflicted on Creketoste (for his contempt and breach of their
Privileges in assisting Fludde to make his escape from the
Sheriffs, to whom they had remanded him) by first committing
him to the Gatehouse, and then to the Tower; because it is
the first instance that has occurred, except in the Case of
Ferrers, in which the House of Commons have taken occasion
themselves to punish a violation of their own privileges.
6
24. On the 17th of April, 1554, - Mr. Rede and Mr. Erm-
stead brought from the Lords a Subpoena, that Mr. Beamond,
• of this House, and his wife, caused to be served upon the
Earl of Huntingdon, in this Parliament time, and prayen
' the order of this House, for that offence :- It is ordered,
' that eight* of this House shall declare to the Lords, that they
• take this Writ to be no breach of Privilege. Neither Prynn,
nor the compilers of the Parliamentary 'History, who both
cite this Case, attempt to give any account of the transaction,
either out of what Court the Subpæna issued, for what purpose
it was served, or of what nature the suit was in which this
process was used.
25. On the 230 of April, 1554, · William Johnson, one of
' the Burgesses, complained upon Monyngton, who had beaten
him, and put him in fear of his life : Whereupon Monyng-
* It has sometimes been matter of is necessary to carry a Message to the
inquiry, what number of Members Lords.
Vol. I.
L
6 ton
74 From the Reign of Henry VIII. to the [CHAP. 2.
' ton came to this House, and not knowing Johnson to be a
Burgess, confessed he had stricken him, for that he took away
a net out of Mr. Bray's house in Bedfordshire, and Johnson
" said it was Lord Mordaunt's net, and as Under-Sheriff he
took it ; whereupon it was ordered, that Monyngton was sent
· prisoner to the Tower.-On the next day, it is ordered, that
' the Serjeant shall fetch Monyngton from the Tower to this
· House ; whereupon Johnson required that he might go safe
' in body, and that was committed to Mr. Higham and Mr.
· Pollard; and thereupon Monyngton discharged.'
26. On the 20th of November, 1555, it is ordered, that
. Tussard, who caused Mr. Mynne to be arrested, shall
pay the Serjeant's fees and withdraw his action.'
6
6
6
6
27. On the 6th of December, 1555, it is ordered, that Mr.
Comptroller, with other of the House, shall declare to the
? Lords, that their opinion is, that their Privilege is broken,
for that Gabriel Pledall, a Member of this House, was bound
' in a recognizance in the Star Chamber to appear before the
Council, within twelve days after the end of this Parlia-
ment :—Whereupon Mr. Comptroller, from the Lords, said,
' that they would send answer thereof to the House :- Mr.
Marten and Mr. Lewis, from the Lords, said, they required
six of the House to confer with the Lords, for that cause;
' and Mr. Comptroller, Mr. S. Petre, with four others, went
up: and they reported, that the Chief Justices, Master of
• the Rolls, and Serjeants, do clearly affirm that the recog-
• nizance is no breach of the Privilege.'- It does not appear
upon what grounds these Lawyers formed this opinion; whether
upon the nature of the suit in which the Member was bound
to appear, or upon the length of time after the dissolution of
the Parliament; nor do I understand for what reason the
Commons
CHAP. 2.) End of the Reign of Queen Elizabeth. 75
1
!
Commons made any application to the Lords in this instance.-
This conference was on Friday, and on Monday the Parlia-
ment was dissolved ; so that we have no opportunity of
knowing how far the Commons acquiesced in this doctrine.
6
28. On the 29th of January, 1557, “ Thomas Eyms, Burgess
• for Thuske, complained, that a Subpæna was delivered to
· him to appear in the Chancery, wherefore he required the
Privilege of this House : whereupon Sir Clement Higham
" and Mr. Recorder were sent to the Chancellour, to require
' that the process might be revoked. This demand it is
pro-
bable the Chancellor complied with, as the Session continued
till the 7th of March, and no further entry appears upon
the subject.
29. On the 5th of February, 1557, “A Committee is assigned
to examine a matter against Walter Rawley*, a Burgess com-
plained of out of the Admiral Court by Dr. Cooke's Letter :'
-And on the 8th of February, · Walter Rawley, one of the
Burgesses for the Borough of Wareham, attached in the Ad-
· miral Court, hath a Warrant to obtain a Writ of Privilege.'
6
We are now come to the Reign of Queen Elizabeth ; and it
appears from the Journals of the House of Commons, that Sir
Thomas Gargrave, who was elected Speaker in Her first Parlia-
ment, did, on his being presented to the Queen, make certain
petitions for the “ ancient” Liberties of the Commons, which
were granted by Her Majesty to be used reverently and decently;
but it is not there stated what these Liberties were. Sir Si-
monds Dewes, in the speech he has given us of Sir Thomas
* This Gentleman was probably fa-
ther to Sir Walter Rawleigh, who lived
at this time in Devonshire, Sir Walter
was born in 1552.
L 2
Gargrave,
76 From the Reign of Henry VIII. to the [CHAP. 2.
Gargrave, expresses them as follows * “ (1.) Liberty of Ac-
“ cess for the House to Her Majesty. (2.) Pardon for himself,
“ if he should mistake or misreport any matter that he was or-
“ dered to declare. (3.) That they might have Liberty and
“ Freedom of Speech. And, (4.) That all the Members of
“ the House, with their servants and necessary attendants, might
“ be exempted from all manner of Arrests and Suits during
“ the continuance of the Parliament, and the usual space both
““ before the beginning, and after the ending thereof, as in
“ former times hath always been accustomed.” - As I did not
recollect to have hitherto met with any instance of Members
servants claiming an Exemption from Suits, I own this petition
of Sir Thomas Gargrave appeared to me rather extraordinary,
till I found an explanation of it in the words of Sir Simonds
Dewes himself, who says, p. 43, “ This Exemption from Suits
“ at Law I have caused to be inserted into the preceding
“ Abstract of Sir T. Gargrave's Speech, because he either did
petition for Freedom from Suits, as well as for Freedom
«s from Arrests, or he ought to have done it:” and then refers,
for his authority, to the two aforementioned General Writs of
Supersedeas, in the eighth year of Edward II. N° 3.
I trust it will not be thought an improper digression from
the subject to remark here, that it is said by Elsynge, p. 176,
and by Sir Simonds Dewes, p. 42, and is also mentioned in the
List of Speakers Names, published by Hakewill, p. 212, “That
“ the request for Access unto his Majesty is first recorded, in the
twenty-eighth year of Henry VIII. to be made by Richard
Riche, Speaker; but that the Speaker's petition for Freedom
of Speech is not recorded before the thirty-fourth Henry VIII.
66
* See Sir Simonds Dewes's Journal, p. 16.
66 when
CHAP. 2.] End of the Reign of Queen Elizabeth. 77
***
“s when it was made by Thomas Moyle, Speaker.” Hakewill,
in page 213, says, “ The petition for Privilege from Arrests
“. is of latter days; but it appears, in the first Henry IV. that
“ Sir J. Cheney, then Speaker, made a general request that the
“ Commons might enjoy their antient Privileges and Liberties,
“ not naming any Liberty in particular; and he is noted to be
“ the first that made this request.” Elsynge, p. 184, says,
“ This petition for Freedom from Arrests was never made until
“ of late years, yet this Privilege did ever belong to the Lords
“ and Commons, and to their servants also, coming to the Par-
“ liament, staying there, and returning home*.” In a debate
upon this subject, which is in the Journals, on the 17th of
December, 1621, Mr. Hakewill says, “ The prayer for these
Privileges, in the beginning of Parliaments, is a matter of
good manners, never used till of late years of: Antiently,
“ protestations were made by the Speaker in this point: The
66 first
prayer was in the first year of Henry IVI."
of Henry IVI.” This debate
had arisen on a letter sent by James I. § to be communicated
to the House of Commons, in which, speaking of their Pri-
vileges, he says,
«« We could not allow of the style, calling it
در *
66
60
p. 667.
* It appears from the preamble to the Speaker's Duty in praying the Privi-
Petition of the Commons in Atwylls "leges of the Commons." --See also
Case (vide page 48) "that, at the com- the Appendix to this Volume (N° 1.)
“mencement of the Parliament of 17th The Apology of the Commons in 1604. .
“Edward IV. the King ratified and I See Vol. I. Commons Journal,
“ confirmed to the Commons their Pri-
vilege of not being impleaded in any. § See the King's letter, dated from
"action personal, or of being attached Newmarket, December 11th, 1621.--
" by their persons or goods, &c.” This Parliamentary History, Vol. V. p. 497 :
must probably have been in his answer And another letter to Mr. Secretary
to the Speaker's petition; and if so, this Calvert, dated from Royston, 16th De-
observation of Elsynge is not accurately cember, 1621, in 2d Vol. of Proceedings
true.
and Debates of the House of Commons
+ See more upon this subject in the in 1620-1, p. 339.
Second Volume of this Work, under title
66 their
78 From the Reign of Henry VIII. to the [CHAP. 2.
grace and
i
66 their antient and undoubted Right and Inheritance; but could
“ rather have wished that they had said, their Privileges were
66 derived from the and permission of our ancestors and
“ us ; (for most of them grow from precedents, which sheweth
“ rather a toleration than inheritance ;) the plain truth is, we
“ cannot with patience endure our subjects to use such anti-
« monarchical words to us concerning their Liberties, except
" that they had subjoined, that they were granted to them by
“ the grace and favour of our predecessors.” This very mo-
narchical message immediately produced a violent spirit in the
House, and a Committee of the whole House was appointed to
meet the next morning, “ to consider all things incident to, or
concerning the Privileges of the House.” Accordingly, the
next morning, the 18th of December, the Committee met, and
having, by the assistance of Sir Edward Coke, Mr. Noy, and
Mr. Glanville, prepared the following Protestation, it was re-
ported to the House, and, having been read several times, was,
upon the question, allowed, and ordered to be presently entered
of Record in the Journal of the House : It was expressed in
these terms:
• The Commons, now assembled in Parliament, being justly
' occasioned thereto concerning sundry Liberties, Franchises,
' and Privileges of Parliament, amongst others not herein
* mentioned, do make this Protestation following; That the
· Liberties, Franchises, Privileges, and Jurisdictions of Parlia-
ment, are the antient and undoubted birthright and inhe-
‘ritance of the subjects of England; and that the arduous
' and urgent affairs concerning the King, State, and the De-
* fence of the Realm, and of the Church of England, and
' the Making and Maintenance of Laws, and Redress of Mis-
· chiefs and Grievances, which daily happen within this realm,
6 are
-
CHAP. 2.] End of the Reign of Queen Elizabeth. 79
6
are proper subjects and matter of counsel and debate in Par-
liament: And that, in the handling and proceeding of those
• businesses, every Member of the House hath, and of right
ought to have, Freedom of Speech to propound, treat, rea-
son, and bring to conclusion the same: And that the Com-
mons in Parliament have like Liberty and Freedom to treat
• of those matters in such order, as in their judgments shall
seem fittest: And that every such Member of the said House
· hath like Freedom from all Impeachment, Imprisonment, or
· Molestation (other than by censure of the House itself) for
or concerning any Bill, speaking, reasoning, or declaring of
any matter or matters touching the Parliament, or Parlia-
• ment business: And that, if any of the said Members be com-
plained of, or questioned for any thing done or said in Par-
liament, the same is to be shewed to the King, by the advice
• and assent of all the Commons assembled in Parliament, be-
'fore the King give credence to any private information.'
This Protestation accorded so ill with King James's ideas of the
Liberties of the Commons, that he soon after sent for the
Journal Book, and, in Council, with his own hand rent it out;
and by a inemorial of the 30th of December, which he ordered
to be entered in the Council Book, “ His Majesty did, in full
“ assembly of his Council, and in the presence of the Judges,
“ declare the said Protestation to be invalid, annull’d, void, and
“ of no effect:" and not long after dissolved the Parliament.—
But, notwithstanding all the pains taken by this ill-advis'd King
to obliterate this glorious monument of the spirit and wisdom
of those great men who directed the councils of the memorable
Parliament of 1621, this Protestation is still happily preserved,
and remains a proof of the temper and moderation of that wise
House of Commons, who had been so frequently provoked
by
80 From the Reign of Henry VIII. to the [CHAP. 2.
by attempts on their Liberties by an injudicious and conceited
Monarch *
Perhaps I ought to make an apology to the Reader, for
having inserted this Protestation, and the Proceedings relating
to it, out of the order of time in which they happened; but I
was led to do it from the reference which they bore to the
subject to Sir Thomas Gargrave's speech. To return however
to the precedents :
6
6
30. On the 24th of February, 1558, ` John Smith, returned
· Burgess for Camelford, upon a declaration by Mr. Marsh,
- that he had come to this House, being outlaw'd, and also had
• deceived divers Merchants in London, taking wares of them
to the sum of three hundred pounds, minding to defraud them
• of the same, under the colour of Privilege of this House; the
examination whereof, committed to Sir Jo. Mason, and other
• of this House, was found and reported to be true; and that a
· Writ of Cap. Utlag. against him, was directed to the Sheriffs
of London, returnable 15º Paschæ next, at the suit of William
• Pinchebek and his wife, in a Plea of Detinue:-Upon which
matters, and consultation had in the House, the question was
• asked by Mr. Speaker, If he should have Privilege of this
· House or not? And by the more number of voices, it seemed
" that he should not have Privilege: But, upon the division of
the House, the number that would have him not to have
Privilege, was 107, and the number that would he should be
6
* It is to be found in Rushworth, gave occasion to it, in Vol. II. of Pro-
Vol. I. page 53; in the Parliamentary ceedings and Debates of the House of
History, Vol.V.page 512; and, together Commons in 1620-1, page 359.
with the Debates and Proceedings that
· privileged
CHAP. 2.] End of the Reign of Queen Elizabeth. 81
privileged was 112 ; and therefore ordered, That he shall still
. continue a Member of this House. It should seem, from the
words of the order, that the doubt was, not whether he should
have a Warrant for a Writ of Privilege against the execution
of the Writ of Capias Utlagatum, (which, as Prynn observes,
in the Fourth Register, p. 1209, was returnable on a day then
to come;) but whether a man, who appeared to the House to
have been guilty of so gross a fraud, ought any longer to con-
tinue a Member : And, as Prynn says,
66 How honourable
“ this vote was for the House, in the case of such a cheating
Member, carried only by five voices, is not fit for me to
66 determine.”
66
6
6
6
31. On the 5th of February, 1562, Sir H. Jones com-
plains all his servants to be imprisoned, and prays Privi-
lege : but, after long arguments for the Privilege, commis-
“sion was given to Mr. Sackvill, and other, to examine and
certify of the matter.–On the 8th, Mr. Sydney declared,
upon examination, the fray to seem to be begun by Sir H.
· Jones's servants :-On the 12th of February, a Bill is brought
sin against Sir H. Jones's servants for the fray and riot; and
" the same day the Committees do certify to the House, that
4. Mr. Jones's men may be committed to the Serjeant, and
" that he attend Mr. Recorder and Mr. Gargrave with the
• prisoners, before the Lord Chief Justice, to enter with sure-
ties in bond of five hundred pounds to appear, personally,
' in the Queen's Bench, in Trinity Term next, to answer
" to such things as shall then be objected to them on the
· Queen's behalf, and so set at liberty. I do not find that
this Bill went further than the first reading : but it is remark-
able that, in the interval of these proceedings about Sir H.
Jones's servants for a fray and riot, it was ordered, on the
Vol. J.
M
10th
82 From the Reign of Henry VIII. to the [CHAP. 2.
6
2
10th of February, “That several Persons, servants to Sir H.
Jones, attached in London in three actions of Trans', da-
mage
three thousand Marks, shall have a Writ of Privilege,
It is probable that these were the same persons, and that the
fray arose on their being attached in these actions; and though
a Writ of Privilege was granted them for these, the House took
care that they should not be set at liberty on the riot, till they
had entered into a very large security to appear in the Queen's
Bench, to answer to what should be objected against them on
account of this Breach of the Peace.
32. On the 16th of February, 1562, ‘R. P., servant to Sir
· William Woodhouse, attached in London at the suit of T. R.
Baker, in Trans', hath a Warrant for Privilege, notwith-
standing judgment given against him for four Marks.'
6
6
6
33. On the 8th of October, 1566, Gardiner, a Burgess,
prisoner in the Fleet, desireth to be restored :—Whereupon
the Master of the Rolls, and Master of Requests, were sent
by the House to know the cause of the Lord Keeper ;' and
the next day the Master of the Rolls declared, from the
· Lord Keeper, that Gardiner might be restored to this House,
' with condition, upon prorogation or dissolution, to be
• eftsoons prisoner. This is the whole of the entry in the
Journal, and it does not appear to warrant what Prynn collects
from it * “ That Gardiner was kept prisoner for a contempt
“ of a decree in Chancery, as the Journal imports.” Nor do
I find any notice taken by the House of the conditions pro-
posed by the Lord Keeper.
* Fourth Register, p. 1209.
34. In
CHAP. 2.] End of the Reign of Queen Elizabeth. 83
66
66
34. In the fourth volume of the Parliamentary History,
p. 153, it is reported “ That Mr. Strickland, having in one of
“ his speeches earnestly pressed the reformation of the Book of
- Common Prayer, was the next day called before the Queen's
Council, and commanded by them to forbear going to the
“ House till their pleasure was further known: this occasioned
great clamour within doors; and divers speeches and motions
“ were made relating to Breach of Privilege; by restraint of
“ one of their Members from attending; although he was
“ neither imprisoned nor confined. Büt the Speaker got up,
66 and desired the House to forbear any further debate on that
matter; and the next day Mr. Strickland came again to the
“ House, by the Council's allowance, to the no small joy of his
“ brethren.” It appears from Dewes *, that Mr. Strickland
had, on Saturday the 14th of April, 1571, brought in a Bill
for reformation of the Book of Common Prayer, which, among
other matters, forbad the kneeling at receiving the Commu-
nion. The House adjourned from this day to Thursday the
19th ; and though Mr. Strickland was then under the restraint
of not coming to the House, no notice is taken of it on that
day: On Friday Mr. Carlton, “ with a very good zeal and
“ orderly shew of obedience, made signification, that a Member
so of the House was detained from them; by whose command-
ment, or for what cause, he knew not: but forasmuch as he
was not now a private man, but to supply the room, person
“ and place of a multitude, specially chosen, he thought that,
“ neither in regard of the country, which was not to be wrong-
ed, nor for the liberty of the House, which was not to be in-
fringed, we should permit him to be detained from us, but,
“s whatsoever the intendment of this offence might be, that he
66
GG
66
66
* Page 166.
M2
“should
84 From the Reign of Henry VIII. to the [chap. 2.
66
66
66
66
6s should be sent for to the Bar of this House, there to be heard
“s and there to answer.” To this Mr. Treasurer advised the
House to be wary in their proceedings, and not to think worse
than there was cause; “. for the man, quoth he, that is meant,
“ is neither detained, nor misused, but, on considerations, is
“ desired to expect the Queen's pleasure, upon certain special
points.—He further said, that he was in no sort stayed for
any word or speech by him in that place offered, but for the
“ exhibiting a Bill into the House against the Prerogative of
“the Queen, which was not to be tolerated.” This doctrine
being supported by another Privy Counsellor, Mr. Comp-
troller ; they were answered by Mr. Yelverton, First, he
said, the precedent was perilous ; and though, in this happy
66 time of lenity, among so good and honourable personages,
“ under so gracious a Prince, nothing of extremity or injury
was to be feared, yet the times might be altered, and what
“ now is permitted, hereafter might be construed as of duty,
“ and enforced even on this ground of the present permission.
- He further said, that all matters not treason, or too much to
“ the derogation of the Imperial Crown, were tolerable there,
“ where all things come to be considered of; and where there
was such fullness of power, as even the right of the crown
was to be determined.- Besides, that the speech uttered in
" that place, and the offer made of the Bill, was not to be
- condemned as evil.” The spirit and manly sense of this
speech had its immediate effect; for, the Privy Counsellors
whispering together, the Speaker moved, “ that the House
« should make stay of any further consultation thereupon ;"
and the next morning, almost as soon as the House met, Mr.
Strickland coming in, whilst the Bill “ for coming to church
“ and receiving the Communion” was referring to a Committee,
“ the House did, in witness of their joy, presently nominate
66
+
66 him
CHAP. 2.] End of the Reign of Queen Elizabeth. 85
“ him one of the said Committees ;” and his name accordingly
appears in the Journal, in which there is scarce any notice
taken of this proceeding. The great warmth with which this
matter was taken up in the House, and the immediate sub-
mission of the Council, shews, with what little foundation the
following remark, among many others equally unfounded, is
made by the Compilers of the Parliamentary History, " That,
when, at any time, this Parliament touched upon the Queen's
Prerogative, either in religious or civil matters, a hauyhty
message or two brought them tamely to submit, and calmly
" bear the burthen *." The speech of Mr. Yelverton, which
is reported at length in Dewes, and from which I have given
the foregoing extracts, breathes a spirit of freedom, and con-
tains a knowledge of the constitutional powers of the House
of Commons, not to be exceeded even by that Parliament
which established and confirmed the Revolution.
66
66
As this of Mr. Strickland is the first Case, in which we have
met with any attempt to restrain the Freedom of Speech in the
House of Commons, it may not be improper here to observe,
how jealous that Assembly has always been of this most valu-
able and most essential Privilege. As long ago as in the fourth
year of Henry VIII. Mr. Strode, a Member, having proposed
a Bill in Parliament for the regulation of the Tinners in Corn-
wall, was prosecuted in the Stannary Courts for that offence,
and there being condemned in a large sum of money, was im-
prisoned in Lidford Castle till he was delivered by a Writ of
Privilege; but not till he had given security to save harmless
the Warden's Deputy in whose custody he was. This very ex-
traordinary proceeding being represented by him in a petition
* See 4th Vol. of Parliamentary History, p. 155.
to
86 From the Reign of Henry VIII. to the [CHAP. 2.
66
to the House of Commons *, an Act of Parliament was imme-
diately passed t, to annuland makevoid these several judgments
and executions ; “ and it was further enacted, that all Suits,
66 Condemnations, Executions, Fines, Amerciaments, Punish-
“ ments, Corrections, Grants, Charges, and Impositions, put or
had, or hereafter to be put or had, upon the said Richard, and
to every other of the person or persons afore specified, that
now be of this present Parliament, or that of any Parliament
6s thereafter shall be, for any Bill, speaking, reasoning, or de-
“ claring of any matter or matters concerning the Parliament,
“ to be communed and treated of, be utterly void and of none
66 effect.” These general words have operated to make this a
general subsisting law, not only in the opinion of Sir Edward
Coke, Prynn, and other great lawyers, but it is now so declared
by the formal Resolutions of both Houses of Parliament: “ And
66 that it extends to indemnify all and every the Members of
“ both Houses of Parliament, in all Parliaments, for and touch-
ing all Bills, speaking, reasoning, or declaring of any Matter
or Matters in and concerning the Parliament, to be com-
"s muned and treated of, and is only a declaratory law of the
6 antient and necessary Rights and Privileges of Parliament."
66
66
* I cannot find either in Lord Her- enorinity, even in such an inferior
bert, or the Parliamentary History, or “ Court, was, to enact, That no Man
in Rapin, or in Carte, any thing re- « could be questioned afterwards for
lating to this transaction. Hume indeed “ his conduct in Parliament.” History
mentions the Case, but with this ex- Tudors, Vol. I. ch. 7. p. 282. This, if
traordinary introduction:-“ The Par- compared with the Statute, appcars
“ liament were so little jealous of their (like many other matters in Mr.
“privileges, (which indeed were scarce Hume's Work) not to be accurately
“ worth preserving) that there is an stated.
"instance of one Strode, &c.” He then + See the 4th Henry VIII, Ch. 8.
recites the account of the prosecution, I See the Commons Journal, 12th
and concludes, “ Yet all the notice November, 1667; and the Lords Jour-
" which the Parliament took of this nal, 11th December, 1667.
35. The
CHAP. 2.] End of the Reign of Queen Elizabeth. 87
35. The next Case I shall cite is not strictly within the line
which I have laid down, being that of a Lord of Parliament,
but it is curious, as it shews the ideas which the House of Lords
at that time entertained, even of the Privilege of Person.-It is
thus reported in the Fourth Register, p. 790* :
6
«
. On the 30th June, 14 Elizabeth, 1572, in the Parliament
Chamber, where the Lords Spiritual and Temporal assem-
bled ;
• Whereas, upon complaint and declaration made to the said
• Lords Spiritual and Temporal, by Henry Lord Cromwell, a
· Lord of the Parliament, that in a Case between one James
· Taverner, against the said Lord Cromwell, for not obeying
' to an injunction given in the Court of Chancery, in the ab-
sence of the Lord Keeper of the Great Seal, at the suit of the
" said Taverner, the person of the said Lord Cromwell was, by
• the Sheriff of the County of Norfolk, attached, by virtue of a
"Writ of Attachment proceeding out of the said Court of
Chancery, contrary to the antient Privileges and Immunities,
• time out of mind, unto the Lords of Parliament, and Peers of
this realm, in such cases used and allowed; as, on the behalf of
- the said Lord Cromwell, was declared and affirmed, wherein
- the said Lord Cromwell, as a Lord of Parliament, prayed
remedy. Forasmuch as, upon deliberate examination of this
cause in the Parliament Chamber, in the presence of the
Judges, and others of the Queen's Majesty's learned Counsel,
" there attendant in Parliament, and upon declaration of the
opinions of the said Judges and learned Counsel, there hath
· been no matter directly produced nor declared, whereby it did
appear or seem to the said Lords of Parliament there assem-
6
6
6
* See also the Lords Journal, 1st Vol. p. 727.
•
bled,
88 From the Reign of Henry VIII. to the [CHAP. 2.
6
6
bled, that by the common law or custom of the realm, or by
any statute law, or by the precedents of the said Court of
Chancery, it is warranted, that the person of any Lord having
place or voice in Parliament, in the like case in the said Court
of Chancery, before this time hath been attached ; so as the
' awarding of the said attachment, at the suit of the said Taver-
ner, against the said Lord Cromwell, for any thing as yet
• declared to the said Lords, appeareth to be derogatory and
prejudicial to the antient Privilege claimed to belong to the
• said Lords of this realm: therefore it is this day and year afore-
said ordered, by the consentof all the said Lords in Parliament
" there assembled, “ That the person of the said Lord Crom-
“ well be from henceforth discharged of and from the said at-
6 tachment.” Provided, nevertheless, and so is the minds of the
said Lords in Parliament, plainly by them with one assent de-
" clared; That if at any time during this Parliament, or here-
* after in any other Parliament, there shall be shewed sufficient
matter, that, by the Queen's Prerogative, or by the common
law or custom of this realm,or by any statute law,or sufficient
precedents, the persons of any of the Lords of Parliament,
' in such case as this Case of the Lord Cromwell is, ought to
be attached or attachable; then, and from thenceforth, it is
by this order intended, that to take place which shall be so
• shewed us, warranted as is aforesaid; this order, or any thing
- to the contrary, notwithstanding.'
6
Dyer, who was at this time Chief Justice of the Common
Pleas, reports the judgment of the House of Lords in this Case*
almost in the same words; but does not explain on what cause
* l'age 314.
this
CHAP. 2.] End of the Reign of Queen Elizabeth. 89
1
this injunction was issued: it appears, however, that the Lords,
even where the person of a Peer was concerned, were ex-
tremely cautious that their determination should not supersede
the authority of the Common Law. Prynn, in a note on that
part of the Case which says, “ that if it can be shewn, by suf-
• ficient precedents, that the persons of Peers are attachable,
observes, “ that the chief authorities against it are only in cases
of Breach of the Peace and Contempts with Force, where
“ fines are imposed, and a capias pro fine awarded, if not paid,
“ for the King, not party, but not for Breach of an Injunction,
“ for which there is no fine to the King by law*."
36. On the 16th of February, 1575, it appears from the
Commons Journals, “ that a Committee was appointed to ex-
· amine the matter touching the arrest of Mr. Hall's servant.
On the 20th it is ordered, upon Debate and a Division, " That
· he should have Privilege. On the 21st a Committee is ap-
pointed to consider “ touching the manner of his delivery
And on the 22d, Mr. Attorney of the Duchy reported, that
• the Committee found no precedent for setting at large by the
· Mace any person in arrest, but only by. Writ; and that, by
divers precedents of Record, it appeareth, that every Knight,
· Citizen, and Burgess of this House, who requireth Privilege,
• hath used in that case to take a Corporal Oath before the
· Lord Chancellor, or Lord Keeper of the Great Seal, that the
party, for whom such Writ is prayed, came up with him, and
was his servant at the time of the arrest made :' And there-
upon Mr. Hall was moved by the House, that he should repair
to the Lord Keeper and make Oath in form aforesaid, and then
proceed to the taking of a Warrant for a Writ of Privilege for
* See the Fourth Register, p. 792.
N
VOL. I.
his
i
90 From the Reign of Henry VIII. to the [CHAP. 2.
C
his said servant, according to the said report of the said former
precedents.-Whether Mr. Hall did apply to the Lord Keeper,
in consequence of this motion, does not appear, but it is certain
his servant did not at that time obtain his release; for on the 27th
of February, “aftersundry reasons, arguments, and disputations,
' it is resolved, That Edward Smalley, servant unto Arthur Hall,
Esquire, shall be brought hither to-morrow by the Serjeant,
' and so set at liberty, by Warrant of the Mace, and not by
• Writ.' And on the 28th, being brought to the Bar by the
Serjeant, accompanied with two Serjeants of London, he was
presently delivered from his Imprisonment and Execution,
according to the former Judgment of the House; and the said
Serjeants of London were discharged of their prisoner and sent
out of the House. The House afterwards, finding that Smal-
ley had fraudulently procured this arrest, in order to be dis-
charged of the debt and execution, commit him to the Tower
for a month, and until he should pay to William Hewet the
sum of one hundred pounds, which was probably the amount
of the debt for which he had been arrested *
The report from the Committee, “ that they could find no
« precedent for setting at large by the Mace any person in arrest,
' but only by Writt; shews that they did not make a very
diligent search; or proves that they did not consider Ferrers's
Case merely in the light of an arrest for debt, but as an insult
* See the Journal of the 7th, and Member's servant; and therefore, when
10th of March, 1575.
the report says, that they could find no
+ It has been suggested by a very in- ' precedent for setting at large by the
genious friend of mine, that the hesita- · Mace any person in arrest, but only by
tion of the House touching the manner Writ,' it may be understood to mean
of delivering Smalley, may be accounted any person of the same description with
for by considering that he was only a Smalley, i. e. any Member's servant.
on
CHAP. 2.] End of the Reign of Queen Elizabeth. 91
very cir-
on the King and the House. It is very remarkable, that neither
Elsynge nor Prynn mention any thing more of this Case than
the Report from the Committee of the 22d of February.--In-
deed it did not suit Prynn's argument so to do; but that El-
synge, who inclines to the enlargement of the Privileges of the
House of Commons, should omit taking notice of the
cumstantial manner of the delivery of Smalley by the Mace, (a
proceeding so much in favour of his doctrine, and which, as well
from its novelty, as from its being adopted in direct contradic-
tion to the opinion of a Committee appointed to examine into
precedents, could not have escaped his observation) appears ra-
ther extraordinary. Thereis another very peculiar circumstance
attending this Case of Smalley, which is, that he is committed
not only for a month, which was a punishment for his insult on
the House, but till he has paid the sum of one hundred pounds,
or given security for the payment of it, which is to be certified
by the Recorder of London, to the Lieutenant of the Tower,
" before any delivery or setting at liberty of the said Edward
Smalley to be in any wise had or made, at any time after the
expiration of the said month; and that he shall not be delivered
out of prison before such notice certified, whether the same
“ be before the first day of the next Term, or after.' The effect
of this Judgment, so awarded, might have detained him even
beyond the term of the existence of the Court which pronounced
it*: Or, if it is supposed that he was set at liberty when the
Parliamert was prorogued, he thereby obtained the end he had
in view, and defrauded his creditor; no Act having been passed,
as in the former instances, to save the right of a new execution.
6
6
6
* In fact, this judgment was pro- therefore, the judginent was executed,
nounced by the Speaker on the 10th of he was certainly iinprisoned for several
March, 1575, and on the 14th of March days after the conclusion of the Session.
the Parliament was prorogued. - If,
37. On
N 2
92 From the Reign of Henry VIII. to the [CHAP. 2.
37. On the 29th of February, 1575, Mr. Bainebrigg com-
plains that one Williams had assaulted and threatened him ;
upon which the Serjeant is ordered to go directly for the said
Williams, that he may answer to the House of such matters as
shall be objected against him: And the same day, Williams
being brought to the Bar, and confessing that he did strike
Mr. Bainebrigg, it is ordered, " That he do remain in the
Serjeant's ward, till the order of the House be further known
to-morrow. But I do not find any cntry of any further
proceeding.-In this case, the House of Commons (without
applying to the Queen) followed the precedent they had
established in Johnson's Case in 1554.
6
6
38. The same mode of proceeding was adopted in a similar
Case, when, on the 1st of February, 1580, Mr. Norton com-
plains ó that two porters had much misused him in his attend-
ance on the service of the House.' The Serjeant is ordered
immediately to fetch them; when they being at the Bar, “ and
charged with their misbehaviour, and rather excusing than
submitting themselves;' and the matter being proved by
evidence, they are both committed to the Serjeant's ward till
further order; but that the Speaker may, in the mean time, set
one of them, who was only servant to the other, at liberty,
upon his submission, if he thinks fit. On the 3d of February,
the porter of Serjeant's Inn, (the Master) prisoner at the Bar,
' is, upon his humble submission and acknowledging his
· fault, remitted and set at liberty, paying his fees.'
39. On the 4th of February, 1580, Mr. Norton complains
of a Book* ' not only as reproaching some particular good
. Members
* This Book, intituled, “ An Ad-
“ monition by the Father of F. A. to
“ him, being a Burgess of the Par-
“ liament, for his better behaviour
" therein,"
CHAP. 2.] End of the Reign of Queen Elizabeth. 93
6
6
** Members of the House, but also very much slanderous and
derogatory to the general authority, power and state of this
House, and prejudicial to the validity of its proceedings, in
making and establishing of laws. And it appearing to the
House*, that Mr. Hall, a Member, was the procurer that the
said Book was printed and published, he is ordered imme-
diately to be apprehended by the Serjeant at Arms, assisted
by Sir Thomas Scott and Sir Thomas Browne: and a Com-
mittee is appointed to send for the Printer and examine him.
On the 6th of February, this Committee make a report, and
Mr. Hall and the Printer being brought to the Bar, and further
examination had, Mr. Hall is committed to the custody of the
Serjeant, and other Committees are added to the former Com-
mittee to enquire further into this matter. On the 14th of
February, Mr. Vice-Chamberlain reports what had appeared
to the Committee; when Mr. Hall being again brought to the
Bar, he submitted himself to the House and asked pardon:
And being withdrawn, “sundry motions, and arguments were
had, touching the quality and nature of his faults, and of
some proportionable forms of punishment for the same, as,
Imprisonment, Fine, Banishment from the fellowship of this
· House, and an utter Condemnation and Retractation of the
Book. But at last it was resolved, without one negative voice,
6 that he should be committed to prison ;' and, upon another
question, that he should be committed to the prison of the
· Tower, as the prison proper to the House :' And it was further
resolved, ' that he should remain in the said prison for six
6 months, and until he should make retractation of the Book, to
" the satisfaction of the House: that he should pay a fine to
6
6
" therein," was re-printed by Triphook, (called Miscellanea Antiqua Anglicana)
St. James's Street, 1815, as part of a and is very curious.
Series of Antiquarian Publications,
* Infra, p. 127
6 the
94 From the Reign of Henry VIII. to the [CHAP. 2.
" the Queen of five hundred marks; and that he should be
' presently severed and cut off from being a Member of this
· House any more during the continuance of this present
Parliament:' And a new Writ is ordered, in the room of
Mr. Hall, “ so as before disabled 4o be any longer a Member
of this House.'-And Mr. Hall being brought to the Bar,
Mr. Speaker pronounces this Judgment against him.--After
which, the course and form of these proceedings and judgment
of the House are ordered to be digested and set down in due
form, and entered by the Clerk, as other orders and proceed-
ings are; which was done accordingly*. -The offences, which
drew upon Mr. Hall this very extraordinary punishment, are re-
cited at large in the Journal, and were certainly a very high and
dangerous contempt of the authority of the House; he had been
before charged before the Privy Council for the same crime;
and it appears from the names of the Committees, that the most
considerable Members of the House, lawyers and others, were
appointed to examineinto and conduct this matter; from which,
and from the number of punishments which were heaped upon
Expulsion, Fine, and Imprisonment,” I cannot but
suspect, that there was some private history in this affair ; some
particular offence against the Queent, with which we are not
acquainted; for neither Prynn, nor the compilers of the Parlia-
mentary History, do, as I can find, mention a single syllable of
this very new and extraordinary proceeding.-On the 18th of
March, being the last day of the Session, Mr. Hall having not
him, s
* It is extremely well worth while the subject of the modern growth of
to read the Entries in the Journal of Parliament, with some censures upon
the whole of this proceeding, of which the modes of conducting business there,
I have only given an abstract. and advice of honesty and indepen-
· + Nothing, however, of this sort ap- dence, &c., written with much quaint-
pears in the printed Pamphlet referred ness of expression,and frequent allusions
to in Note p. 92, which is wholly on to ancient Greek and Roman History.
then
CHAP. 2.] End of the Reign of Queen Elizabeth. 95
6
G
then made any revocation or retractation of the errors, slanders,
and untruths contained in his Book, the House appoint several
Members of the House, the most considerable in rank, to re-
ceive such revocation, when he shall please to make it, to be by
them reported to the House in the next Session ; but the House
does not shorten the time of his commitment, or remit any part
of the Judgment pronounced against him. The Parliament
being afterwards dissolved, we find nothing more of this matter
in the Journal. But some years after, on the 21st of Novem-
ber, 1586, Mr. Markham, Member for Grantham, acquaints
the House, on the part of the Inhabitants of that Borough,
that Mr. Arthur Hall, having been in some former Parlia-
ments returned a Burgess for the said Borough, and in some
6 of those Parliaments disabled for ever afterwards to be
any
• Member of the House at all, hath of late brought a Writ for
' his wages, (amongst other times) for his attendance at the late
· Session of Parliament, holden at Westminster*, in the 27th
year of the Queen, during which time he did not serve in the
· House, but was, for some causes, disabled to be a Member.'
This matter was referred to a Committee, who, on the 21st of
March, report at large a state of the facts: that Mr. Hall had
commenced suits for his wages, as one of the Burgesses of
6 the Parliament in the 13th, 14th, 18th, and 230 years of the
· Queen, (not in the 27th,) but that the Committee having
· desired him to remit the said wages which he had demanded
of the said Borough, Mr. Hall had very freely and frankly
“ remitted the same ti'
6
* It should seem from this, that Mr. mediately succeeding that in which he
Hall was elected for Grantham, in the was expelled); and again in that which
Parliament which met on the 23d of met on the 29th of October, 1586.
November, 1584 (the Parliament im- * See this report in Dewes, p. 417.
The
96 From the Reign of Henry VIII. to the [CHAP. 2.
The Original Journals of the House of Commons being
missing, from the conclusion of the Parliament of the 23d of
Queen Elizabeth, to the end of her reign, we are obliged to
consult the collection made by Sir Simonds Dcwes for the pro-
ceedings of the House during this period, through six successive
Parliaments. Sir S. Dewes informs us, in his preface, from
what materials he compiled this Work; and as it is a very la-
borious, so it has been in general considered as an impartial
collection, and is now become very valuable from the loss of
those originals from whence it was extracted.
1
40. On the 10th of February, 1584, a motion was made
touching the opinion of the House for Privilege in Case of a
Subpæna out of the Chancery, served upon Richard Cook,
Esquire, a Member; and it was ordered, “That Mr. Recorder
of London, Mr. Sands, and Mr. Cromwell, attended on by the
Serjeant of the House, shall presently repair, in the name of the
whole House, into the body of the Court of Chancery, and
• there to signify to the Lord Chancellour and the Master of the
· Rolls, that, by the ancient liberties of this House, the Mem-
“bers of the same are privileged from being served with Sub-
ponas; and to require withal not only the discharge of the
• said Mr. Cook's appearance before them on the said Subpæna,
. but also to desire that from henceforth, upon like Cases, the
said Lord Chancellour and Master of the Rolls, will allow the
· like Privileges for other Members of this House, to be signi-
fied to them in writing under Mr. Speaker's hand. The
next day, the 11th of February, Mr. Recorder, Mr. Cromwell,
and Mr. Sands being returned from the Chancery, declare unto
the House, that they have been in Chancery within the Court,
' and there were very gently and courteously heard in the de-
livery of the message and charge of the House committed to
6
o them;
CHAP. 2.] End of the Reign of Queen Elizabeth. 97
6
Ć
6
is them; and were answered by the Lord Chancellour, that he
thought this House had no such liberty of Privilege for Sub-
pænas, as they pretended; neither would he allow of any pre-
' cedents of this House committed unto them formerly used in
" that behalf, unless this House could also prove the same to
· have been likewise thereupon allowed and ratified also by the
precedents in the said Court of Chancery; and after some
' speeches and arguments, the said Mr. Sands and Mr. Crom-
' well were further appointed to search the precedents of this
· House against the morrow, that thereupon this House may
center into further consideration of the state of the Liberties
• and Privileges of this House accordingly*. I do not find that
these Gentlemen, or either of them, ever made any report of
the precedents they found on this subject; nor indeed has
any
thing of this sort:yet occurred, except in the two before recited
Cases, of Mr. Beamond N° 24, and Mr. Eyms Nº 28; neither
of which would have been of much service to them in sup-
port of the doctrine advanced by the House to the Lord
Chancellor.
41. In the next Case which occurred, and which was of a
similar kind, the House, finding that they might meet with
difficulties in applying to the Courts, took the remedy into
their own hands, and adopted from this time a mode of
proceeding, which proved more effectual to correct the evil.
On the 10th of February, 1584, Mr. Anthony Kirle is
ordered to attend the next day, to answer to such matters as
shall be objected against him on the behalf of Mr. Stepneth,
Member for Haverford-West: Being the next day brought to
* See Dewes's Journal, p. 347.-This Chancellor was Sir Thomas Bromley,
Knight.
O
the
98 From the Reign of Henry VIII, to the [CHAP. 2.
the Bar, “he is charged by Mr. Speaker, in the name of the
“whole House, with a contempt to the House, for that he had
served Mr. Stepneth, a Member, with a Subpæna out of the
Star-Chamber in Parliament time, and within the palace of
Westminster, as the said Mr. Stepneth was coming to the
· House to give his attendance there, and had further procured
an attachment out of the said court against him, to the great
· hinderance and impediment of Mr. Stepneth's service and
• attendance in the House, and also to his great cost and
charge. To this charge Mr. Kirle was heard in his excuse;
and then it was resolved, “That the said Mr. Kirle had com-
' mitted a great contempt to the whole House, and the Liber-
'ties and Privileges of the same, both in serving the said
Subpæna upon the said Mr. Stepneth, and also in procuring
the said attachment against him, and in all the residue of
' the parts of the said suit from the time of serving the said
· Subpæna hitherto.' And thereupon it was ordered and
adjudged by the House, “That the said Anthony Kirle shall,
' for his said contempt, be committed prisoner to the Serjeant's
' ward and custody, there to remain during the pleasure of
" the House; and shall also satisfy and pay unto the said
· Mr. Stepneth, as well all such his costs, charges, and ex-
pences by him expended in and about the same suit, as shall
be set down and agreed upon by Mr. Morrice and Mr. Sands
(who were for that purpose appointed by the House to confer
“ with the said Mr. Stepneth, and to examine those charges),
• as also all other charges and expences which the said Mr.
Stepneth hath been at, or defrayed unto the said Serjeant, in
or about the arresting which should have been executed upon
• him by virtue of the foresaid attachment out of the Star-
Chamber, at the suit of the said Mr. Kirle.' After which the
said Mr. Anthony Kirle was brought again to the Bar, and
there
6
6
.
CHAP. 2.] End of the Reign of Queen Elizabeth. 99
1
6
" there kneeling upon his knees, Mr. Speaker pronounced unto
him the said Judgment in form aforesaid, in the name of the
whole House.—And, on the 16th of February, a motion was
made for Mr. Kirle's releasement from his Imprisonment;
and thereupon he was brought to the House, ' and kneeling
upon his knees, making very humble submission to the
House, and acknowledging his fault, alledging it also to
' have proceeded of ignorance, and not of wilfulness; and
' likewise having paid to the Serjeant, to Mr. Stepneth's
use, the money set down by Mr. Morrice and Mr. Sands,
- according to the former order of the House,' he was
discharged, paying his fees, after he had first taken the Oath
of Supremacy *
1
42. On the 27th of February, 1586, the House was informed,
that one William White had arrested Mr. Martin, a Member
of the House; therefore it was ordered, “That the Serjeant
• should warn White to be here to-morrow, sitting the Court.'
On the 6th of March, William White was brought into the
House, to answer his contempt for arresting Mr. Martin ; who
answered, “ that he caused him to be arrested the 22d day of
January, which was above fourteen days before the beginning
• of the Parliament. The House upon this appoint a Com-
mittee to search precedents, who on the 11th March make
report 6 of the Privilege of Mr. Martin, arrested upon mesne
process by White above twenty days before the beginning
of this Parliament, holden by prorogation (mistaken for
adjournment), and in respect that the House was divided in
opinion, Mr. Speaker, with the consent of the House, moved
these questions to the House :
6
6
6.
* See Dewes's Journal, p. 347. et seq.
02
• (1) Whether
100 From the Reign of Henry VIII. to the [CHAP. 2.
(1). Whether they would limit a time certain, or a reason-
able time, to any Member of the House for his Privilege?
· The House answered, A convenient time.
6
(2) Whether Mr. Martin was arrested within this reason-
able time?
· The House answered, Yea.
6
6
(3) If White should be punished for arresting Martin ?
· The House answered, No; because the arrest was twenty
days before the beginning of the Parliament, and unknown
" to him that would be taken for reasonable time. But the
principal cause why Martin had his Privilege, was, for that
White the last Session (mistaken for Meeting) of Parliament
• arrested Mr. Martin, and then knowing him to be returned
. a Burgess for this House, discharged his arrest; and then
• afterwards Mr. Martin again returning to London to serve
· in the House, Mr. White did again arrest him ; and therefore
" the House took in evil part against hiin his second arrest,
! and thereupon judged, that Martin should be discharged of
his second arrest out of the Fleet, by the said Mr. White*.'
This Parliament met on the 29th of October, 1586: On the
2d of December, they were adjourned, by Commissioners from
the Queen, to the 15th of February following; so that this
arrest was not either before the beginning of the Parliament, or
during a prorogation, but on the 22d of January, during an
adjournment, and consequently clearly within Privilege. But
we learn from this Case, how very cautious the House of Com-
mons were in ascertaining the time and duration of Privilege
* See Dewes's Journal, p. 410. et seq.
beyond
CHAP. 2.] End of the Reign of Queen Elizabeth. 101
beyond the actual sitting of Parliament; not choosing to limit
a time certain, but to reserve, within their own Judgment, the
definition of what should be thought reasonable or con-
venient* This too being an arrest only upon mesne process,
there was no difficulty as to the propriety of discharging
Mr. Martin, or doubt about the mode of delivery, as he was
liable to be again arrested immediately after the expiration of
the time of Privilege.
6
43. On the 27th of February, 1586, Mr. Cope · first using
some speeches touching the necessity of a learned Ministry,
and amendment of things amiss in the Ecclesiastical State,
offered to the House a Bill, and a Book written ; the Bill,
containing a petition, that it might be enacted, - that all laws
now in force touching Ecclesiastical Government should be
void ; and that the Book of Common Prayer now offered,
6 and none other, might be received into the Church to be
used. The Book contained the Form of Prayer, with the
Rites and Ceremonies to be used. A debate arose whether
his Book should be read, the Speaker and one Mr. Dalton
objecting, that her Majesty, before this time, had commanded
the House not to meddle with this matter, and that this might
bring her Majesty's indignation against the House, thus to
' enterprize the dealing with those things, which her Majesty
· had taken into her own charge and direction.' Mr. Lewknor,
Mr. Hurlston, and Mr. Bainbrigg spoke on the other side;
' and so, the time being past, the House rose without either
" the Petition or Book being read.' On this the Queen sent
* But see before Note, pp. 40, 41, cember 1621, on this subject, and agreed
what is laid down by the Lords Com- to by the House on the 28th May
mittee of Privileges upon the 14th De- 1624.
to
102 From the Reign of Henry VIII.to the [CHAP. 2.
to the Speaker for the Petition and Book; and the next day,
the 28th of February, the House did not sit, the Speaker being
with the Queen ; but on the 2d of March, Mr. Cope, the
proposer of the Bill, and Mr. Lewknor, Mr. Hurlston, and
Mr. Bainbrigg, the supporters of it, were sent for to the Lord
Chancellor, by divers of the Privy Council, and from thence
were sent to the Tower. The day before, viz. the 1st of
March, Mr. Wentworth had shared the same fate, probably
for a Speech which he made “ touching the Liberties of the
House of Commons, and some questions which he proposed
to Mr. Speaker upon that subject; which questions Mr. Ser-
jeant Puckering (then Speaker) 'pocketed up and shewed to
• Sir Thomas Heneage, who so handled the matter, that Mr.
· Wentworth went to the Tower, and the questions not at all
' moved *' The House, not warmed with that spirit of
freedom which their predecessors had so properly exerted, in
the similar Case of Mr. Strickland, in the year 1571, sat,
without taking any notice of this gross violation of their
Privileges, till the 4th of March ; when Sir John Higham made
a motion, “ for that divers good and necessary Members thereof
were taken from them, that it would please the House to be
humble petitioners to her Majesty, for the restitution of them
' again to the House.' To which Mr. Vice-Chamberlain,
(Sir Christopher Hatton) answered, “ that if the Gentlemen
were committed for matter within the compass of the
Privilege of this House, then there might be a Petition ; but
. if not, then we should give occasion of her Majesty's further
displeasure ; and therefore advised to stay until they heard
more, which could not be long;' and further, he said, touch-
6
$
* For Mr. Wentworth's speech and questions, see Dewes's Journal, p.410.
6
ing
CHAP. 2.] End of the Reign of Queen Elizabeth. 103
ing the Book and the Petition, her Majesty had for divers
good causes, best known to herself, thought fit to suppress
· the same, without any further examination thereof; and yet
• conceived it very unfit for her Majesty to give any account
• of her doings. With this evasive answer of Mr. Vice-Cham-
berlain, the House waited patiently till the 13th, when Mr.
Cromwell moved to have some conference with the Privy
· Council of this House, and some others, concerning those
Gentlemen, Members of this House, lately committed to the
· Tower:' Whereupon a Committee was appointed ; but they
made no report; nor do I find that any thing further was
done in this matter during the remainder of the Session, which
closed on the 23d of March.
<
44. On the 12th of February, 1588, Mr. Puleston, Member
for the County of Flint, complains, ' that William Aylmer,
Esquire, did, since the beginning of the Session, cause a
Subpoena to be served on him out of the Star-Chamber, to
" the prejudice of the Liberties and Privileges of this House,
to answer there to a Bill,' and prays the order of the House;
and offers the precedent of Mr. Stepneth, under the hand of the
Clerk; which precedent being read (Vide Nº 41.), Mr. Aylmer
is brought to the Bar, where Mr. Speaker, in the name of the
House, charges him with the contempt, and requires his answer;
who, thereupon, in all reverent and humble sort, shewed that
' the said Bill, whereupon the said Subpoena was awarded, did
concern a wrong, not only to her Majesty, but also unto this
honourable House, in an indirect course of proceeding in the
election of the Knights for the County of Denbigh, into this
present Parliament, procured by the said Mr. Puleston,' and
so intimating, that the said Bill and serving of the said
Subpæna did tend to the maintenance of the Liberties and
Privileges
6
104 From the Reign of Henry VIII. to the [CHAP. 2.
9
6
Privileges of this House*. Mr. Aylmer being withdrawn, it '
is resolved, after some debate," that this matter should be
considered of by a Committee; and that Mr. Aylmer (partly,
· for that he had been oftentimes heretofore a Member, and
was an honest đħd grave Gentleman) should be left at liberty,
but should be charged by Mr. Speaker, in the name of this
· whole House, to surcease his suit against Mr. Puleston in
• the mean time.' A Committee is accordingly appointed,
and Mr. Aylmer being again brought to the Bar, Mr. Speaker
signified to him the order of the House, discharged him from
the custody of the Serjeant, and required him to attend the
Committee from time to time, and to forbear, in the mean
time, to proceed against Mr. Puleston ; to which he readily
assented.-On the 19th of February, Mr. Vice-Chamberlain
reports from the Committee, their opinion' upon all the cir-
cumstances of the Case, that Mr. Aylmer had committed a
' contempt unto this House, in prejudice of its Liberties and
Privileges. He however recommended mercy to the House,
not only on account of Mr. Aylmer's humble and dutiful
behaviour before the Committee, but from other favourable
Circumstances attending his Case, and therefore proposed,
" that he might (acknowledging his fault, and upon his humble
< submission to be made to the House, and craving pardon
· for his said contempt) be set at liberty and discharged,
paying the Serjeant's fees :' After sundry speeches and argu-
ments, wherein it appeared, “that Mr. Puleston had already
voluntarily, without the privity of the House, and since his
complaint, put in his answer to the Bill, and that so the
matter was actually at issue,' the House ordered, " That
6
6
6
* It has been very properly observed, in filing a Bill in the Star-Chamber,
that it is rather extraordinary, that Mr. should allege that the Bill was for
Aylmer, in alleviation of his contempt election matters.
Mr,
CHAP. 2.] End of the Reign of Queen Elizabeth. 105
6
· Mr. Aylmer should not only be at liberty to proceed in his
suit, without offence to the House, but should also, upon his
humble submission to be made to the House, be discharged
of his said contempt, paying his fees to the Serjeant of the
House;' which order and judgment of the House (Mr. Aylmer
being again brought in by the Serjeant) Mr. Speaker pro-
nounced unto him, and then, yielding unto the House his
most humble thanks, he departed and went his way*.
6
6
6
45. On the 21st of February, 1588, upon a motion made
by Mr. Harris, “ that divers Members of this House, having
• Writs of Nisi Prius brought against them to be tried at the
Assizes, in sundry places of the realm, to be holden and kept
- in the Circuits of this present vacation, and that Wrils of
Supersedeas might be awarded in those Cases, in respect of
'the Privilege of this House, due and appertaining to the
• Members of the same,' It is agreed, that those of this
- House, which shall have occasion to require such benefit of
Privilege in that behalf, may repair unto Mr. Speaker to
declare unto him the state of their Cases ; and that he
upon
• his discretion (if the Case shall so require) may direct the
“ Warrant of this House to the Lord Chancellor of England,
· for the awarding of such Writs of Supersedeas accordingly.
It is remarkable, that this proposal of Mr. Harris, made
almost as a motion of course, was immediately and without
debate adopted by the House, when nothing similar to this
proceeding has occurred since the Writs in the eighth year of
Edward II. cited by Sir Edward Coke (N° 3, page 6, in this
Volume.)—
The House of Commons continued sitting till the
29th of March ; and, as we hear of no further complaint
upon this subject, it must be taken for granted, that the
* Vide Dewes's Journal, p. 431. et seq.
P
Vol. I.
Lord
106 From the Reign of Henry VIII. to the [CHAP. 2.
Lord Chancellor (then Sir Christopher Hatton) obeyed the
Speaker's Warrant*.
6
6
46. On the 24th of February, 1592, Mr. Peter Wentworth
and Sir Henry Bromley delivered a petition unto the Lord
Keeper, “therein desiring the Lords of the upper House, to be
· suppliants with them of the lower House, unto her Majesty,
' for entailing the succession of the Crown, whereof a Bill
was ready drawn by them. The Queen, always extremely
jealous upon this subject, as well as upon every thing which
affected her prerogative in matters of Religion, was so much
offended, that she charged the Council - to call the parties
before them.' They were accordingly summoned the next
day, Sunday, before the Lord Treasurer, the Lord Buckhurst,
Sir Thomas Heneage, and were told, - that her Majesty
was so highly offended, that they must needs commit them:'
Mr. Wentworth was accordingly sent prisoner to the Tower ;
and Sir Henry Bromley, and one Mr. Richard Stevens, to
whom Sir Henry Bromley had imparted the matter, and Mr.
Welsh, the other Member for Worcestershire, to the Fleet. —
Though this was not literally a commitment for their speeches
or behaviour in Parliament, yet it had so near a relation to it,
that it is surprising to find no notice taken of it for several
days; however, on the 10th of March, the House being
engaged on the subject of granting subsidies, Mr. Wroth
made a motion, " That in respect that some Counties might
complain of the tax of these many subsidies, their Knights
· and Burgesses never consenting unto them, nor being pre-
sent at the grant; and because an instrument, taking away
some of its strings, cannot give its pleasant sound; he
- therefore desired, that we might be humble and earnest
• suitors to her Majesty, that she would be pleased to set at
6
* See Dewes, p.436.
• liberty
CHAP. 2.] End of the Reign of Queen Elizabeth. 107
1
• liberty those Members of the House that were restrained.'
To this it was answered by all the Privy Counsellors, • That
· her Majesty had committed them for causes best known to
- herself; and for us to press her Majesty with this suit, we
• should but hinder them whose good we seek; and it is not
to be doubted but her Majesty, of her gracious disposition,
' will shortly of herself yield to them that which we would
ask for them, and it will like her better to have it left unto
· herself, than sought by us. With these assurances the
House acquiesced; and though they continued sitting above
a month, it does not appear from any circumstances, thal
these Gentlemen were ever released, or that any further motion's
were made about them *
6
47. On the 1st of March 1592, Mr. Serjeant Yelverton,
from the Committee of Privileges and Elections, reported the
following Case, “ Thomas Fitzherbert of Staffordshire, being
• outlawed upon a Capias Utlagatum after judgment, is elected
· Burgess of this Parliament: two hours after his election,
before the indenture returned, the Sheriff arrested him upon
' this Capias Utlagatum : the party is in execution : now he
• sendeth his supplication to this House, to have a Writ froin
the same to be enlarged to have the Privilege in this Case to
6 be grantable. Several questions arose out of this Case:
(1.) - Whether Mr. Fitzherbert, being outlawed, was eligible?'
(2.) • If he were eligible; yet whether, under the circum-
• stances of his Case, he was entitled to Privilege?' (3.) and
lastly, “ If entitled to Privilege, in what manner he ought to
· be delivered?' Very long and almost daily debates ensued
upon these questions, until the 5th of April; for which I shall
refer the Reader to Dewes's Journal, where they are entered
* See Dewes, p. 470, et seq.
p 2
108 From the Reign of Henry VIII. to the [CHAP. 2.
6
at length, and from which much Parliamentary learning is
to be collected. On the 5th of April, the House came to the
following resolution, "That Thomas Fitzherbert was, by his
election, a Member thereof; yet that he ought not to have
Privilege, in three respects : (1.) because he was taken in
' execution, before the return of the indenture of his election;
· (2.) because he had been outlawed at the Queen's suit,
• and was now taken in execution for her Majesty's debt ;
(3.) and lastly, in regard that he was so taken by the
Sheriff, neither sedente Parliamento, nor eundo, nor re-
· deundo.'—I cannot help observing, that there was some-
thing very particular in this determination, it being the first
instance in which the House had permitted their Member to
be detained from his service, by any process whatever in a
Civil Suit; as to the third reason, which Prynn, in the fourth
Register, p. 648, calls “ the grand reason,” viz. “ that he was
66 taken neither sedente Parliamento, nor eundo, nor
“ deundo;" the House must have forgot the doctrine laid down
but a very few years before, in Mr. Martin's Case (N° 42.),
about " what was the reasonable time of Privilege;" when,
in the present instance, Mr. Fitzherbert was arrested on the
3d of February, and the Parliament met on the 19th of the
same month. Sir Edward Coke, at that time Speaker and
her Majesty's Solicitor General, took a very extraordinary part
in the arguments upon these questions, as may be seen in
Dewes, p. 482 and 515; proposing that, before a Writ of
- Privilege should be granted, it would best suit the gravity of
• the House to grant a Habeas Corpus cum causa, returnable in
Chancery, the Sheriff to appear, and the whole matter being
• transmitted out of the Chancery, the House then to judge upon
• the whole Record; by which means it would be no escape
in
• the Sheriff, nor would the party lose his action of debt, though
• Fitzherbert
re-
6
chap. 1.] End of the Reign of Queen Elizabeth. 109
6
6
6
· Fitzherbert should be delivered:' the House (it is said) “ well
“ liked and adopted” this novel and very strange mode of
proceeding; forgetting that, in former Cases, these difficulties,
now started by Mr. Speaker, had been easily obviated by a
special Act of Parliament.-- But, to their great surprize, on
the 7th of March, Sir Edward Hobby reports, that, having
moved the Lord Keeper touching the said Writ of Habeas
Corpus, his Lordship thinketh best, in regard of the ancient
· Liberties and Privileges of this House, that a Serjeant at
· Arms be sent by order of this House for the said Mr. Fitz-
· herbert, by which he may be brought hither without peril of
being further arrested by the way, and the state of the
" matter then considered of and examined into.'-And this
advice of the Lord Keeper Puckering was 6 well liked and
• allowed by the House;' as more consonant to their own
dignity, and more agreeable to former precedents, than the
advice of Mr. Speaker Coke. On the 12th of March, Mr.
Serjeant Moore was heard at the Bar as Counsel for the Sheriff;
and, as appears from his report of the Case, not only mistakes
the fact of the time of the arrest, as being three hours before
• the election, instead of two hours after,' but gives that as
the reason why the · House did not allow him Privilege, be-
• cause he was arrested before he was elected a Burgess*.
However, after a long hearing of the parties by their Counsel,
the House returned again to the Writ of Habeas Corpus; and,
on the 17th of March, it was resolved by the House, “ That
“ this House, being a Court of Record, would take no notice
• of any matter of fact at all in the said Case, but only of
* See Moore's Reports, p. 340.
and the grounds on which the House
From whence it appears that the Ser- proceeded; as may be seen from the
jeant, though himself Counsel in the History of this Case in Dewes, Town-
cause, entirely mistook both the fact shend, and Prynn.
' matter
110 From the Reign of Henry VIII. to the [CHAP. 2.
matter of Record ; and that Mr. Speaker should move the
· Lord Keeper for a return, to be made by the Sheriff into
- the Chancery, of the Writ of Habeas Corpus, awarded by
· his Lordship upon motion from this House. On the 3d of
April, the Lord Keeper sent the Record of Fitzherbert's ex-
ecution to the House ; . and the Chancery men who brought
it, were called into the House to the Bar, and were appointed
to read it, ut Clerici ;' and the House ordered the Writ sent
out of Chancery, to be annexed to the Record : A very learned
debate then arose, as to what power the House could exercise,
in consequence of this Writ and the Sheriff's return ; which
ended, on Friday the 5th of April, in the final resolution and
determination of the House, as set down before, that Mr,
· Fitzherbert ought not to have Privilege.”—There would have
arisen a very great difficulty, if the House had come to a
different determination, and had thereupon proceeded to de-
liver Fitzherbert out of custody, viz. “ that the right of
taking him in execution for this debt would have been gone,
srthe Capias being satisfied.” This difficulty did not occur
(in the only instances in which the House hitherto had
adopted this mode of proceeding) in Ferrers's and Smalley's
Case; for in the first (N° 19.), Ferrers was only a security,
and the debt was still recoverable against the Principal ; in
the latter (N° 36.), the House made it part of the condition
of Smalley's release, “ that the debt should be first satisfied:”
Elsynge * indeed is of opinion, “ that an arrest upon an
“ execution for debt, trespass, or contract, is merely void,
“s and that it can be no prejudice to the Plaintiff; but he may
“ have a new execution after the end of the Parliament.” This
however was not a doctrine established at the time of Fitz-
herbert's Case; and the proceedings of the House, in the
66
Page 245.
subsequent
CHAP. 2.] Endof the Reign of Queen Elizabeth. 111
subsequent Case of Sir Thomas Shirley, in the first year of
James I. and the Act of Parliament of that year, Ch. 13, cer-
tainly prove this opinion of Elsynge to be ill founded in point
of law; the debt therefore to the Queen, and others, for
which Fitzherbert was taken in execution, and the right to
arrest him again, could only have been saved by a special
Act of Parliament, as in the Cases of Lark, Clerk, Hyde,
and Atwyll *.
6
6
48. On the 5th of April, 1593, Mr. Neale, Burgess for
Grantham, complains, “That he had been arrested, the Sun-
day before, upon an execution ; that he had paid the money
6
due upon the execution, but that, out of regard to the
Liberties and Privileges of the House, he thought it his
* duty to acquaint them with it.' The next day, the 6th of
April, Weblen, the person at whose suit the execution was
had, and the officer who executed it, were, for their contempt,
committed prisoners to the Tower, there to remain during
pleasure; and, on the 9th of April, they were reprimanded
and discharged. In this Case, the debt was discharged, and
the Member set at liberty, and yet the House of Commons
punished these men for this contempt, almost in the same
breath that they determined that Fitzherbert, though actually
under confinement, ought not to have Privilege :-—It is curious
to compare the deep and ample charge of the Speaker,
Mr. Solicitor General Coke, against these poor offenders,
with the opinion given by him in the foregoing Case of
Fitzherbert, and his observations on the two Cases of Thorpe
and Trewynnard :
* The curious Reader will not be sult the several Entries in Sir S. Dewes's
content with the abstract I have given Journal, p. 479, et. seq.
of this Case of Fitzherbert, but will con- + See Dewes, pp. 518,519, 520.
49. On
112 From the Reign of Henry VIII. to the [CHAP. 2.
6
49. On the 22d of November, 1597, Sir Edward Hobby
moved the House for Privilege for Sir J. Tracy, a Member,
now presently at the Common Pleas, to be put on a Jury:
Whereupon the Serjeant was presently sent with the Mace to
call the said Sir J. Tracy to his attendance in the House,
which was thereupon so done accordingly, and the said Sir
John then returned to the House *. - This is the first instance
that I have met with of a complaint of this nature: It is
to be observed, that this Member is summoned to be upon
the Jury, during the actual sitting of Parliament, and that
he is thereby withdrawn from his attendance on the House of
Commons.
50. On the 28th of November, 1597, Mr. Bowyer com-
plains, • that he was this day served with a subpæna, to
appear in the Chancery, by one Biddel; that he told
Biddel he was a Member, and willed him to forbear the
process, as being against the Liberties of the House ;' who
answered, that he would do it, notwithstanding any such
Liberties or Privileges of this House whatsoever.'-At the
same time, two other Members complain, that they were this
day served with a subpæna ad testificandum, and so in like
manner moved for Privilege: The Serjeant is thereupon
ordered to bring in the parties so offending, to answer the
contempt. — The principle, upon which this proceeding was
had, must have been, as in the last Case, That no suminons
to any other Court ought to be admitted to interfere with the
Member's attendance on his more important duty in the High
Court of Parliament f.
6
51. On the 6th of February, 1597, the House proceeded
upon the same grounds, and in the same manner, against one
Thomas Bashfield, for a conteinpt against the Privilege of the
* Dewes, p. 560.
* Dewes, p. 564.
House,
CHAP. 2.] End of the Reign of Queen Elizabeth. 113
House, in disturbing, ' by way of an appearance, Robert
Sherry, a member of the House*.
52. On the 7th of November, 1601, a servant of Mr. Coke,
a Member, being arrested on a Bill of Middlesex, the Serjeant
was sent to Newgate to bring the Prisoner immediately to the
House; and on his being brought to the Bar, with his Keeper
attending him, he is by order of the House discharged from
his said Keeper, and from his said Imprisonment; and
Robinson, the party at whose suit he was arrested, was brought
by the Serjeant to the Bar, and being reprimanded, was
discharged, paying his feest.
53. The following is a very curious entry in Dewes's Journal
p. 603, of a Case, in which the House of Lords interfered, on
the arrest of one of the Queen's servants. On the 12th of
November, 1601, a Report being made by the Lord Zouch,
that William Hogan, an ordinary servant to the Queen, was
arrested and imprisoned upon an execution by one Tolkerne,
since the beginning of the Parliament; his Lordship desired
the Judgment of the House, (1.) - Whether an ordinary servant
• of her Majesty (though he be none of the Parliament) be not
privileged from arrest during the time of Parliament, in like
sort as the servants of the Lords of the Parliament are pri-
vileged ?' and, (2.) Whether being arrested in execution,
· he may in this Case, by order of the House, be discharged?'
Upon this information, the Lords ordered Tolkerne to be
sent for, and directed that such precedents as the Clerk of the
Parliaments could shew, should be looked out and made
known to the House.-On the 14th, the Clerk acquaints the
6
of Dcwes, pp. 629. 633.
* Dewes, p. 593.
VOL. I.
Q
House,
114 From the Reign of Henry VIII. to the [CHAP. 2.
House, that, out of all the Journal Books in his custody, there
were to be found only these four here under mentioned, and
no more; viz.
(1.) Anno, 27 Eliz. 1st of December, the Case of James
Diggs, servant to my Lord's Grace of Canterbury.
7
(2.) Anno, 27 Eliz. 7th of December, of Robert Fiennes,
servant to the Lord Bindon.
(3.) Anno,39 Eliz. 26th of November, of Edward Barston,
servant to the Lord Chandois; and, 8th of December, of
John Yorke, the Lord Archbishop's servant.
(4.) Anno, 14 Eliz. 301h of June, it appeareth that Lord
Cromwell complains to the Parliament of an attach-
ment served upon his person out of the Court of
Chancery; and that his Lordship was, by order of the
Parliament, discharged of the attachment; but whether
this attachment was served in the time of the Parlia-
ment, it doth not certainly appear.
Before taking notice of the principal Case, it may be worth
while to consider a little these four Cases, produced by the
Clerk; observing, that none of them relate to servants of the
King or Queen, and are therefore only applicable to the
second point proposed by the Lord Zouch, that is, ' as to the
· mode of discharge.'
(1.) The first in point of time is that of Lord Cromwell,
which is inserted before at length, N° 35 *
* See the Lords Journals, Vol. I. p. 727:
(2.) The
CHAP. 2.] End of the Reign of Queen Elizabeth. 115
6
6
(2.) The next is the Case of Diggs, servant to the Archbishop
of Canterbury, who, since the beginning of the Parliament,
was committed to the Fleet, upon a Reddit-se in the Exche-
quer :- The Lords having heard the Lord Chief Baron, and
other the Barons of the Exchequer, order, “That the said
“Diggs, by virtue of the Privilege of this Court, should be
set at liberty, and that the Warden of the Fleet should be
discharged of the prisoner, and of any action that might be
brought against him for the same ;' it was further ordered,
“ That the appearance of the said Diggs should be a sufficient
discharge of his Sureties and their Bonds, and that the
· Bonds should be re-delivered : Provided, that as the said
Diggs was not arrested in execution at the suit of Howe, but
• committed upon a Reddit-se in discharge of his Sureties, it
* is further ordered, that touching the sum of money recovered
' by Howe, against the said Diggs, Howe and Diggs shall
• stand to such order as the Barons of the Exchequer shall
set down for the same.'-Here, though the Lords order the
immediate discharge of the prisoner, they take care, as the
Commons had done in Smalley's Case, in 1574 (Nº 36.), that
the creditor should be satisfied as to the original debt *.
6
-
There is another precedent which the Clerk might have
found in his Journal Book, of the 6th of March 1585, of one
Clerkt, servant to the Earl of Leicester, but which is indeed
only a repetition of the proceedings in the Case of Diggs.
(3.) The Case of Fiennes seems a very extraordinary one
to be produced on the present question, because the Lords,
after hearing of the cause, resolve, · That he shall not enjoy the
* See the Lords Journals, Vol. II. p. 66. of See the Lords Journals, Vol. II..p. 93.
0 2
Privilege
116 From the Reign of Henry VIII. to the [CHAP. 2.
Privilege of the House, as well because he did not claim this
Privilege when he was first arrested, nor in the Counter when
' he was charged in execution; as also, that he was not a menial
· servant, nor yet ordinarily attendant upon the said Viscount
· Bindon. Nothing very material can be therefore collected
from this precedent*.
(4.) The Cases of Barston and Yorke appear to have been
arrests on mesne process, and not in execution; as there is no
provision for securing the debtot.
To return to the Case of Hogan.—The Lords having heard
these precedents read, together with certain observations (out of
a Book, written by Richard Crompton, Esquire,) concerning
the proceedings of the House in the like Case of George
Ferrers, an ordinary servant of King Henry VIII.S, order,
that Tolkerne should be sent for; and a motion being made
· That Hogan should be sent for out of prison, and brought
- before the Lords to be examined, and to make relation of
· his Case, it was debated by what course the said Hogan
should be brought, being then in execution, whether by
Warrant from the Lords to the Lord Keeper, to grant forth
a Writ in her Majesty's name for the bringing of the said
Hogan, or by immediate direction and order of the House
(to the Gentleman Usher, or Serjeant at Arms,) without any
such Writ; which being put to the question, it was resolved
and ordered by general consent, • That it should be done by
immediate direction and order from the House, without any
6
* See the Lords Journals, Vol. II.
p. 69.
of See the Lords Journals, Vol. II.
p. 201. et seq.
† “ Of the House of Conimons," as
the proceedings relating to Ferrers
occurred there.
$ See before N° 19.
6 such
CHAP. 2.] End of the Reign of Queen Elizabeth. 117
o such Writ. Accordingly, Hogan being brought up on the-
19th, and having made relation of his arrest, and that the
Under Sheriff knew he was her Majesty's ordinary servant,
but that Tolkerne was not privy to his arrest; and Hogan
offering and petitioning to pay the principal debt of fifty
pounds; it was resolved and ordered, “ that the said Hogan
should enter into sufficient Bond, to abide by the order and
judgment of the Earl of Cumberland, the Bishop of London,
' and Lord Zouch, for the satisfaction of the debt of fifty
pounds, with costs and charges, and thereupon be discharged
· out of prison, and out of execution; and that the Warden
6 of the Fleet should be free froin any troublc, damage, or
6 molestation for the said discharge.'--The Under Sheriff
being afterwards ordered to attend, was, on the 23d of
November, for his offence in arresting Hogan, her Majesty's
servant, committed to the prison of the Fleet, from whence he
was set at liberty on the 26th, upon his humble petition *. .
6
6
54. But a similar Case to this, which happened on the 1st of
December following, was proceeded in very differently:
Vaughan, servant to the Earl of Shrewsbury, being arrested
' in execution, and in Newgate, and the Keeper of Newgate
refusing to obey an order of the House of Lords, for the
bringing up the said Vaughan; the Lords committed the
Keeper to the prison of the Fleet, for his refusal and con-
tempt; but, order being likewise given that such precedents
as could be found, touching the proceeding of the Court in
like case of arrest in execution, should be produced at the
next sitting, the Lords (upon view and consideration of
divers precedents and remembrances, produced this day,
6
* For the proceedings at large in this case, see the Lords Journals, Vol. II.
p. 230, and Dewes, p. 603.
and
118 From the Reign of Henry VIII. to the [CHAP. 2.
and differing from the manner of proceeding now followed,)
ordered • That the Lord Keeper shall forthwith make out a
• Writ of Privilege of Parliament to the Sheriffs of London
' and Middlesex, to have the body of the said Vaughan, with
- the cause of his imprisonment, before the said High Court
• the next day. The Lord Keeper accordingly made out
the Writ; and the same, together with the prisoner Vaughan,
and the cause of his imprisonment, being returned, and
brought into Court by the Under Sheriff, the Lords, on the
4th of December, on hearing all parties, proceeded as in the
former Case of Hogan : They discharged Vaughan from his
imprisonment and execution, on his giving security for the
debt, and ordered the immediate release of the Keeper of
Newgate from the Fleet.
It appears from this case, that the Lords, upon view and
consideration of precedents, were of opinion, that the regular
and legal mode of bringing before them any prisoner in
execution, was not, as they had decided upon question in
Hogan's Case, by their Warrant sent by a Serjeant at Arms,
but by an order to the Lord Keeper for a Writ of Privilege
of Parliament *.
55. On the 14th of November, 1601, Complaint is made of
several Members having been served with. Subponas,
ad respondend", others ad testific". And after a debate, which
may be seen in Dewest, and in which an ancient Member of
the House shewed divers precedents, “ how that the minds of
the Members of this House ought to be freed, as well as
• their bodies,' the House resolved, “That the serving these
* See Lords Journals, Vol. II. p. 238,
and Dewes, p. 607.
4 Page 637
6
Subpænas
CHAP. 2.] End of the Reign of Queen Elizabeth. 119
Subpænas ad testific", without leave or information given
to the House, was a breach of Privilege ;' whereupon two
Members were sent to require the Lord Keeper to reverse the
Subpænas, and the persons who had procured them were
ordered into the custody of the Serjeant*
56. On the 19th and 20th of November, 1601, Two ser-
vants of Members being arrested, were, by order of the House,
discharged, and the persons procuring the arrest, and the
officers, were ordered into the custody of the Serjeant t.
57. On the 27th of November, 1601, On a complaint
against one Holland, and Laurence Brook, for abusing and
beating Mr. Fleetwood, a Member, and his servant; they
were brought to the Bar, and committed to the Serjeant for
the space of five days, and then to be discharged, paying
their fees. I
58. On the 3d of December, 1,601, Complaint is made to
the House, of an information exhibited by the Earl of Hunt-
ingdon, in the Star-Chamber, against Mr. Belgrave, a Member
(as it should seem, for some offence, committed by Mr. Bel-
grave, at the election for the town of Leicester); this matter
being referred to the Committee of Privileges, they report on
* See other Cases of the like nature
in Dewes, pp. 647, 651, 655, 656.
+ See also another Case, on the 14th
of December, 1601.—Dewes, pp. 642,
643, 685, 686.–See in the Lords
Journal of the 28th May, 1624, a re-
port from their Committee of Privi-
leges, “ That freedom from arrests,
“ extends to all their menial servants,
s® and those of their families; and that
“ this freedom continues twenty days be-
fore and after every Session; in which
time, the Lords may conveniently go
“ home to their houses, in the most re-
“ mote parts of the kingdom."
# Dewes, pp. 656, 657.
66
the
120 From the Reign of Henry VIII. to the [CHAP. 2.
6
C
6
6
the 7th of December, “That Mr. Belgrave admitted the
' substance of the suggestion to be true, but denied the cir-
cumstance. Some of the Committees censured it to be an
enormous fault to invest himself (for so the words of the
information are) in a blue coat, but others were of a con-
trary opinion; but as the information was put in sedente
· Curiâ, and at the suit of the Attorney General, in order
" that he should be debarred of his remedy against the party,
• the Committee thought it a disgrace:' And on the 8th of
December, it is resolved, to demand a conference with the
Lords upon this point; at which conference the Commons
inform the Lords, that there were two exceptions to be taken
to this information : (1.) · That Mr. Belgrave, being a Mem-
• ber of the House of Commons, was thereby vexed and
molested during his service in the time of Parliament, con-
trary to the honour and Privilege of the House; saying, that
no Member of that House ought, by any such means, in
• time of his service, to be distracted either in body or mind,'
and, (2.) · That in the said Bill preferred by the Attorney
• General, certain words and clauses were inserted, which
were taken to be prejudicial and derogatory to the honour
• of the House. The Lords, without entering into any con-
sideration of these points, objected that the Bill so brought
by the Commons was not testified by the hand of the Clerk
of the Star Chamber, and therefore sent it back to the Com-
mons as informal ; and afterwards on the 14th of December,
when it was returned properly signed, it does not appear that
they had any further proceeding upon this malter : Upon this
the Commons, on the 17th of December, having first referred
the whole to a Committee, resolve, upon their report, “ That
• the said Mr. Belgrave is free from any abuse offered to this
· Housc,
6
G
CHAP. 2.] End of the Reign of Queen Elizabeth. 121
- House, and that he is not to be molested for any such
imputation;' and that this shall be entered as an Act of
the House *
C.
6
These are all the precedents, or at least the most material,
relating to the Privileges of Members of the House of Com-
mons, from the earliest history of Parliament, to the end of
the Reign of Queen Elizabeth. ---And it appears, from some
of the later Cases, that the House had, at this period, laid it
down as the established law of Privilege, · That no Subpæna
or Summons, for the attendance of a Member in any other
• Court, ought to be served without leave oblained, or infor-
- mation given to the House; and that the persons, who
· procured and served such process, were guilty of a breach
• of Privilege, and were punishable by commitment or other-
wise by the order of the House. The refusal of the Lord
Keeper, in 1584, in the Case of Mr. Cook (Nº 46), to revoke
this process, seems to have given the first rise to this method
of proceeding; and upon the same principle, viz. “ that the
minds of the Members ought to be free, as well as their
· bodies,' the exemption from being compelled to serve upon
juries, (N° 49.) or to any other attendance (N° 51.) which
might interfere with their first and principal duty, viz. “their
« attendance in Parliament,' was insisted on by the House of
Commons.-In earlier times, when a Session of Parliament
was short, these avocations could not so often occur; so that
such Summonses were no interruption to the attendance of
the Members, and consequently did not call for the interpo-
sition of the authority of the House; but, during the latter
* See this case at length, and the 614, 666, ct subs. to p.688; and the
debates upon it, in Dewes, pp. 610, Lords Journals, Vol. II. p. 247.
Vol. I.
R
part
122 From the Reign of Henry VIII. to the [CHAP. 2.
part of the Reign of Queen Elizabeth, this interposition
became absolutely necessary; and it was essential to the
public business, that, during the sitting of Parliament, the
Members should not be liable to be compelled, by the Sum-
mons of any inferior Court, to absent themselves from their
attendance in the High Court of Parliament.
6
Another exertion of the authority of the House of Com-
mons, which seems to have grown into constant practice,
during the latter part of this Reign, is, the sending for
persons entitled to Privilege, (when under arrest,) by the
Serjeant at Arms; and the committing the bailiffs, and
persons procuring the arrest, for their contempt to the
- House. The first instance in which the House appear to
have exercised this power, is in Smalley's Case, in 1575,
(N° 36.) and this after great deliberation, and long debate
and consultation : I call it the first instance, because, as was
observed before, the proceedings of the House in the Case
of Ferrers, (N° 19.) were certainly grounded more on the
very particular circumstances of insult and aggravation which
attended that arrest, than on the arrest itself; and not a little
on his being a servant of the King; and we see that, from
that time to Smalley's Case, for above thirty years, the House,
instead of adopting this mode of delivery by the Mace, order
Writs of Privilege to be issued in almost every instance* :
Between the year 1575 and the end of Queen Elizabeth's
Reign, there are one or two other instances of their exercising
this more summary method of proceeding t. It appears
from Hogan's Case (N° 53.) that it was still later before the
House of Lords exerted this Privilege. Where the person so
* See before N° 22.
+ See Huddleston's Case in Dewes, pp. 685, 686.
delivered
CHAP. 2.] End of the Reign of Queen Elizabeth. 123
delivered was a prisoner in execution, a very great inconve-
nience attended this mode of proceeding, viz. “ that the
“ creditor lost his right of arrest;" this inconvenience had,
as we have seen, in all the earlier instances, been obviated
by a special Act of Parliament, and, in a few years, com-
pelled the Legislature to pass the General Law of the 1st
Jac. I. Ch. 13.
I do not find any instance, during the Reign of Queen
Elizabeth, of a complaint of breach of Privilege for the pro-
secution of suits against Members, sitting the Parliament,
except in the Entry of the 21st of February, 1588, (N° 45.)
and there the House are satisfied with ordering the Lord
Chancellor to issue Writs of Supersedeas, but they do not
proceed against the persons prosecuting such suits. This is
the more remarkable, as we have seen several attempts made
so long ago as in the Reign of Edward IV. (Nos 14 and 15.)
to establish this Privilege by Law; and in Atwyll's Case,
(N° 17.) the House of Commons themselves claim it as the
right of every Member, “ not to be impleaded in any action
“ personal," and this right is allowed them: Now, it is dif-
ficult to conceive, that from Atwyll's Case, which happened
in the seventeenth year of Edward IV. to the end of the
Reign of Queen Elizabeth, a space of above one hundred
and twenty years, no action or suit should be prosecuted in
any of the Courts of Westminster Hall, or at the Assizes,
against a Member of the House of Commons, sitting the
Parliament; or, if such a prosecution had existed, that the
House of Commons should acquiesce in it, after the very
clear decision of this Privilege in their favour, in Atwyll's
Case, both by the King and House of Lords; and yet, on
the examination I have been able to make into the several
precedents
R2
124 From the Reign of Henry VIII. to the [CHAP. 2.
precedents relating to Privilege during this period, I do not
find one, except that of N° 45. It should seem therefore,
that the principal object of the House of Commons, in the
preservation of their Privileges at this time, was, the securing
the persons of the Members, and of their menial servants,
from arrests, and the not permitting the attendance of the
Members to be interrupted by the Summons of any inferior
Court; but, as to the inconvenience which might arise to
Members, from suits being carried on against them during
the time of Privilege, they do not seem to have adopted this
idea in so large an extent, as was entertained after the acces-
sion of James I.-- There are, indeed, two Cases (Nº 44. and
58.) in the Star Chamber, where the prosecution of the suit
may perhaps be considered as the object of complaint:
though in the first, Mr. Puleston complains only “of the
service of the Subpoena,” and, in the course of this matter,
it appearing that Mr. Puleston had put in his answer, and that
so the matter was actually at issue, the House give leave to
Mr. Aylmer to proceed in his suit, without offence to the
House : and in the latter Case of Mr. Belgrave, the informa-
tion seems to have been filed for offences committed by him,
at an Election of Members of Parliament; and the House,
having determined “ that therein he is free from any abuse
“ to the House,” declare, that he is not to be molested for
any such imputation. But both these instances being in the
Court of Star Chamber, and in their forms partaking of the
nature of criminal prosecutions, and for offences in matters
of Election, which were not cognizable but by the House of
Commons, they can hardly be produced as precedents, in
favour of the doctrine laid down in Atwyll's Case, “ that
“ no Member is to be impleaded in any personal action,
during the time of Privilege.”—There is another Case,
which
CHAP. 2.] End of the Reign of Queen Elizabeth. 125
which is cited on the 2d of May, 1604, in the Commons
Journal, as of the 16th of December, in the forty-fourth
year of Queen Elizabeth ; " where one Curwen, a servant of
“the Knight of the Shire of Cumberland, being arrested and
in execution, sues out his Writ of Supersedeas;' the words
of which, stating the Privilege of Parliament, are, that
· Lords, Members, and their servants, ratione alicujus debiti,
computi, &c. arrestari minimè debeant, implacitari, aut
imprisonari ;' and therefore, quibus-libet placitis, querelis,
· actionibus seu demandis versus ipsum Anthonium Curwen,
supersedeatis omnind et ipsum Antonium deliberari faciatis.'
No proceeding was had upon this Writ, because, as appears
from a note annexed to it, the officers of the Sheriff,
although they made doubt of this Warrant, for his enlarge-
ment, yet, because the matter was but small, delivered
· Curwen out of custody, rather than so honourable a Court
' of the Parliament should be farther troubled therein. And
indeed it appears from the report of this Case in Dewes *,
that the principal offence was the “ arresting” Curwen, and
impleading” him ; and the House only resolve,
• that the said Anthony Curwen should have Privilege,'
whithout any censure on the persons concerned in the
cution of the suit. This resolution was on the 15th of
December, and the Writ bears date the next day.
6
not the 66
prose-
The power exercised by the Ministers of the Crown, in
committing Members, (as in Nº 34, 43, 46.) for a supposed
breach of the Prerogative by their speeches in the House of
Commons, was indeed a very dangerous power, and most
alarming to the essential Privileges of the House. If, in the
* Pages 685, 686.
two
126 From the Reign of Henry VIII. to the [CHAP. 2.
two last instances, the House had taken up the question with
the same spirit, as they had shewn in the Case of Mr. Strickland,
in 1571, there can be little doubt but that the consequences
would have been the same : for, although Queen Elizabeth
carried her ideas of sovereignty very high, and, from the ac-
cidental circumstances of the times, had perhaps more power,
and in some instances exercised a greater authority than the
legal constitution of this country, even at that time, admitted:
yet such was the wisdom of her Counsellors, and such her
own good sense, that, in points in which she saw the Com-
mons were determined, she was not ashamed to give way,
even where the Prerogatives of the Crown were really and
essentially concerned ; and this was never more apparent,
than in her submitting to destroy the patents for monopolies,
on the representations of the House of Commons upon that
subject*.
This Privilege of liberty of speech, though from the thirty-
third year of Henry VIII. it had always made one of the
articles of the Speaker's petition to the Throne, was frequently
cavilled at by the courtiers, in the Reigns of Queen Mary and
Queen Elizabeth, when they thought it intrenched upon
the
Royal Prerogative: and, in general, the House acquiesced
too much in this doctrine. It was reserved for a more en-
lightened age, and for times when the true spirit of liberty
should be better understood, to ascertain and establish this
Privilege in its utmost extent, consistently with the language
of good-breeding, and the behaviour of men of liberal edu-
cation. Indeed liberty of speech is so essential to the very
existence of a Free Council, that it always made a part of
* See Vol. IV. of Parliamentary History, from pp. 452 to 482.
the
CHAP. 2.] End of the Reign of Queen Elizabeth. 127
year of
the Liberties of the House of Commons; and we see that,
in the Case of Mr. Strode, as early as in the fourth
Henry VIII. in the Act of Parliament which passed upon
that occasion, this doctrine is clearly and explicitly declared,
and all proceedings on condemnations for such speaking are
held to be void *.
It appears from Chedder's Case, (N° 7.) in the fifth year of
Henry IV. that, on an assault made on the person of a Mem-
ber's servant, the House apply by petition to the King, and
desireseveral punishments to be inflicted on the persons making
the assault, according to the degree of their offence: This,
however, the King declined at this time to grant, and only
directed such process to issue, as should compel Salvage the
offender to appear, then leaving him to the course of the law.
-In Prynn's animadversions on the fourth Institute, p. 331,
there is a record of a special commission, from Richard II.
to several Gentlemen of the North, to inquire into a riot and
assault made on the lands and servants of John de Derwent-
water, then Knight of the Shire for the County of Cumberland,
during his attendance in Parliament; and we have seen
(Nos 9, 10, and 11.) several other instances, where the Com-
mons apply to the King for redress, on assaults made upon
the persons of Members, or their servants; and that these
plications produced the Acts of the fifth of Henry IV. Ch. 6.
and of the eleventh of Henry VI. Ch. 11; by the latter of
which a punishment is enacted on those that make assault on
Members coming to the Parliament: But in later times these
laws being found ineffectual, it appears from the Cases (Nºs 25,
37, and 57.) that the House of Commons very properly took
ap-
* See the 4th of Henry VIII. Ch. 8. ber 1667.-Lords Journal, 11th of
-Commons Journal, 12th of Novem- December, 1667.
the
128 From the Reign of Henry VIII. to the [CHAP. 2.
the inquiry into these offences, and the punishment of the
offenders, into their own hands*.
The Case of Mr. Arthur Hall, in 1580, (N° 39.) is the only
instance that I have hitherto met with, or that, I believe,
occurs upon the Journals before the Long Parliament of 1640,
in which the House of Commons proceed upon a complaint
against any person, for printing and publishing matters de-
rogatory from the Honour or Privileges of the House of. It
appears from the report of the Committee appointed to
examine
* It has however been very conimon, " to prosecute the offenders according
particularly since the Revolution, for “ to Law. And the Committee, on pe-
the House of Commons, in cases of “ rusal of the several orders directing
Libels,and several other offences against « Prosecutions by the Attorney Gene-
the House, either to order the Attorney “ ral, do not find, That, at any time,
General to prosecute the offenders, or 6 addresses have been made to the
to address the King, That he will give “ King, for such Prosecutions.”
directions for that purpose. This mode + The only cases that appear to be
of proceeding has been generally con- exceptions to this observation, are,
fined to such cases, as, from the nature (1.) On the 5th of April, 1626,
of them, would deserve a punishment Sir T. Hobby moveth, “That a
different from what the House of Com-
" scrivener bath sold a copy of
mons have power to inflict. The
" the Remonstrance this day
House of Lords have also adopted this
presented to his Majesty, be-
mode; on the 18th May 1716, Lord fore the same was presented unto
Clarendon reports from a Committee “ him."--Resolved, “he shall
appointed to consider of a proper way “ be sent for presently."--The
of proceeding against certain offenders, scrivener is one Turner, dwel-
and in what manner orders have been
ling without Westminster Hall
made for prosecutions by the Attorney
Gate-
General, “ That where offences have The Serjeant sent for him, but
“ been committed against the Honour answer brought, he was not
“ and Dignity of the House in general,
'within.
or any Member thereof, the House (2), See in Chapter the 4th,
“ have proceeded, both by way of Fine (N° 11.) a Committee appoint-
" and Corporal Punishment upon such ed to inquire into a printed
« offenders. But in other Cases, the
book, Who printed it, and by
" Attorney General has been ordered
what allowance ?
(3.) Though
CHAP. 2.] End of the Reign of Queen Elizabeth. 129
6
examine Mr. Hall's book, that it contained a variety of
offensive matter, and that he had been guilty of a contempt of
the House, in going out of town after having been enjoined
to appear. The articles selected by the Committee out of
the Book, and with which he was charged, were, first, the
publishing the conferences of the House abroad in print,
' and that in a libel, with a counterfeit name of the Author,
' and no name of the Printer,—and containing matter of in-
famy of sundry good particular Members of the House, and
• of the whole state of the House in general, and also of the
power and authority of the House; affirming, that he knew
' of his own knowledge, that this House had de facto judged
' and proceeded untruly;' He was further charged, that he
· had injuriously impeached the memory of the late Speaker,
. deceased ; and had impugned the authority of the House,
' in appointing Committees without his consent; and that, in
defacing the credit of the Body and Members of the House,
· he practised to deface the authority of the laws, and pro-
ceedings in the Parliament; and so to impair the ancient
· orders touching the government of the Realm, and Rights of
• the House, and the form of making laws, whereby the sub-
jects of the Realm are governed.' Upon this complicated
charge, increased by his wilful contempt, testified by an un-
seemly letter addressed by him to the House, he was sentenced,
as we have seen before, to be imprisoned, fined, and expelled :
6
(3.) Though it is not immediately
applicable to this point, I beg
to refer the curious Reader to
the proceedings of the two
Houses, in relation to a Book
published by the Bishop of
Bristol about The Union, which
was then in agitation; particu-
VOL. I.
larly the Bishop's acknowledg-
ment in the Lords Journals of
the 5th of June, 1604.--See
the Journals of the Lords and
Commons, from the 26th of
May, 1604, to the end of the
Session.
S
And
130 From the Reign of Henry VIII. ge. [CHAP: 2.
And it was also ordered, “ that the said Book or Libel should
“ be taken and adjudged to be condemned.”—Whoever will
give themselves the trouble to read the Entry of this pro-
ceeding in the Journal of the 14th of February, 1580, from
whence I have given the foregoing Extracts, will find it dif-
ficult, from the variety of offences of different natures charged
against Mr. Hall, to deduce any precise idea of the Law of
Privilege, as understood by that House of Commons, “with
respect to the printing or publishing the debates or pro-
ceedings of the House;' provided that such publication was
not made in a false and infamous Libel, injuriously re-
flecting on the characters of Members, or impeaching the
Rights and Authority of Parliament.'
6
3
С НА Р.
( 131 )
CHAP. III.
.FROM THE ACCESSION OF JAMES I. TO THE END OF
THE PARLIAMENT OF 1628.
A S from this period
of the accession of James I. complaints
of breaches of Privilege will become very frequent, I
shall not think it necessary to insert in this work every Entry
that occurs upon the Journals of those which are the most
common, unless the debate turns upon a new point, or that
the proceeding of the House upon it appears to be in any wise
extraordinary : And for the more easily understanding these
Cases, I shall separate them under the following heads :
(1.) First, The commitment of Members or their servants
by the Privy Council, or by any court of justice or other
magistrate.
(2.) Secondly, The arrest and imprisonment of Members,
or their servants, in civil suits.
(3.) Thirdly, The summoning of Members, or their servants,
to attend inferior courts, as witnesses, jurymen, &c.
(4.) Fourthly, The prosecuting of suits at law, against
Members, or their servants, during the time of Privilege.
s 2
(5.) Fifthly, ,
132 From the Accession of James F. to the (CAAP. 3.
(5.) Fifthly, The taking the goods or effects of a Member
in execution, or otherwise.
(6.) Sixthly, The assaulting or insulting a Member, or his
servant, or traducing his character.
1
I think that all the Cases, relating to the Privilege of Mem-
bers of the House of Commons, which occur between the acces-
sion of James I. and the dissolution of the third Parliament of
Charles I. in 1628, to which period I shall now confine myself,
will fall under one or other of these six heads.
(1.) And first, therefore, I shall give the instances which are
to be found of Members, or their servants, being committed
or restrained by order of the Privy Council, by the courts of
justice, or any inferior magistrate.
1. On the 3d of February, 1605, Mr. Brereton, Member for
Flint, being committed by the Judges of the King's Bench for
a contempt, during a prorogation, this matter is referred to a
Committee; on the 13th, a Writ of Habeas Corpus is ordered
for Mr. Brereton, which is returned and read in the House
on the 15th, and Mr. Brereton is received. I do not find any
report from the Committee, or any other entry of this matter.
2. On the 18th of February, 1605, Complaint is made of
Sir Edwyn Sandys's servants being committed to Newgate, by
a Justice of Peace, for being engaged in a riot, and that he re-
fused to bail them; a Habeas Corpus is ordered for the servants,
and the complaint is referred to the Committee of Privileges ;
on the 19th they report, and the Justice is committed to the
custody of the Serjeant. On the 21st and 22d, he is heard by
his
CHAP. 3.] End of the Parliament of 1628.
193
his Counsel, and, on his submission and acknowledging his
fault, is discharged. The entry of this case in the Journal is
so very confused, that it is difficult to know the exact state
of it; the principal charge against the Justice seems to have
been, his refusing bail when it was offered, unless the parties
would
pay ten shillings.
3. On the 10th of March, 1609, and 12th, 14th, 15th, and
16th, is a very obscure entry of a breach of Privilege, commit-
ted by a constable on the son and servant of a Member.
4. On the 14th of June, 1610, Dr. Steward's servant is taken
up for getting a woman with child; the Warrant was signed by
four Justices, before the Parliament, but executed now; it is
referred to the Committee of Privileges, who report on the 16th,
and it is determined he should have Privilege; there is some
debate on the 20th, about paying the charges.
5. On the 9th of April, 1614, the House are informed that
Sir William Bampfylde is committed by the Lord Chancellor,
since the summons to Parliament, but before his election ; this
matter is referred to the Committee of Privileges, who report
on the 14th, that he was committed before the election for a
contempt ‘for not accepting Sir J. Wentworth's offer ;' it is
however ordered, “ that he shall have his Privilege, by Writ of
· Habeas Corpus. Accordingly on the 16th, he is brought up
by the Warden of the Fleet, by virtue of this Writ; and being
brought in by the Serjeant with his Mace, to the Bar, the
Speaker opens the matter, and desires to know the pleasure of
the House thereupon.-Here the entry in the Journal stops,
and I find nothing further relating to this matter, or that the
House ever came to any determination on the question.
6. It
134 From the Accession of James I. to the [CHAP. 3.
6. It appears from the notes of speeches which are entered
in the Journal of the beginning of the Session of 1620-1,
(and froin the debates which are published more at length in
two volumes*, from an original manuscript in Queen's Col-
lege, Oxford) that, at the end of the last Session of Parliament
in 1614f, some Members had been committed for speeches
they had uttered in Parliament. This matter being now taken
up, though at so great a distance of time, and being dis-
cussed for several days, but without heat or passion, many
motions and propositions were made, in what manner the
House might best assert this Privilege of freedom of speech,
whether by bill, as in Strode's Case, or by petition to the
King; after long consideration, it was determined on the 15th
of February, to proceed by message to the King, and not
by petition in writing, “to desire, that, if any of the House
· should speak in any undutiful manner, they may be censured
• here, and not be punished in or after the Parliament.' But
during the debate upon this question, a message to the House
was brought from the King, by Mr. Secretary Calvert, to
say, that his Majesty did grant liberty and freedom of
speech, in as ample manner as any of his predecessors ever
• did: and if any should speak undutifully, (as he hoped
( none would) he doubted not but we ourselves would be more
• forward to punish it, than he to require it; and he willed us
to rest satisfied with this, rather than to trouble him with
any petition or message, and so cast ourselves upon one of
By my worthy and learned Prede- 'sus aut responsio, per nos, præstita
cessor, Mr. Tyrwhitt.
. fuit.' Parliamentary History, Vol. V.
+ Or of the last Convention, as it is p. 303. See in the 2d Vol. of this
more properly called in the debates
; Work, under title, “ King calls the
the King also in his commission for the “ Parliament," what is there said res-
dissolution, saying, that it was no Ses- pecting the question, “what constitutes
sion, 'pro eo quod nullus regalis assen- “a Session ?"
• these
CHAP. 3.) End of the Parliament of 1628.
195
these rocks : that, if we asked for too little, we should
wrong ourselves ; if too much or more than right, he should
• be forced to deny us, which he should be very loath to do.'
This message from the King put an end, for the present, to
any further proceeding upon this matter*. - It is remarkable,
that, notwithstanding the impartiality professed by the writers
of the Parliamentary Historyt, it does not appear that they
take any notice of these debates, (although they are to be
found
upon
the Journal, to which they pretend strictly to
adhere) or of the proceedings of the House of Commons, in
appointing a Committee, and Sub-Committee, “ for free
speech," of which Sir Edward Coke and Mr. Glanvylle
were chairmen; nay, which is more extraordinary, they cen-
sure the biographer Wilson I, and other Historians, for saying,
" that after the dissolution of the last Parliament, several
“ Members were committed for their behaviour in Parlia-
“ment:" whereas the truth of this assertion appears from the
debates S, and that these Members were imprisoned, for
speaking freely their consciences in the House of Commons,
* and for which being before questioned, they had been
• cleared by the House that they had spoken nothing but
• what was lawful and fitting, and for which they gave good
reason and satisfaction to the House. But this is only one
of the many very glaring misrepresentations and omissions
by the compilers of the Parliamentary History, which they
will be found, upon examination, to have made in favour of
the conduct of James I. and Charles I.
6
* Vide Journal the 5th, 12th, and
15th of February, 1620.-Debates,
Vol. I. pp. 14, 32, and 47, and Vol. II.
in the Appendix.
+ Vol. V. p. 320.
# In p. 305 of the 5th Volume.
§ Vol. I. p. 15; et seq.
Notwithstanding
136 From the Accession of James I. to the [CHAP. 3.
Notwithstanding the fine words of his Majesty's message
in favour of liberty and freedom of speech, soon after the
adjournment of the Parliament, in the month of June 1621,
Sir Edwyn Sandys was committed *, probably for something
he had said on the 29th of May, on the report of the con-
ference with the Lords, touching the breaking up of the
Parliament f: I say it was probably for this, because on the
2d of June, Sir Edwyn Sandys informs the House, that he
· had heard that some words of his had been misconstrued,
' and that out of the House ;' he then explains what he said
at that time, not to have meant any slander against his
· Majesty's government;' and the House resolve upon question,
nemine contradicente, “That Sir Edwyn Sandys is free from
any just cause of offence to his Majesty, or any other, by
• the particular words now related by him, or by any other
words he hath spoken in this House. This shews that ex-
ception had been taken to Sir Edwyn Sandys's speeches, for
• slander against his Majesty's government. On the 4th of
June, the House of Commons adjourns to the 14th of Novem-
ber, and from thence to the 20th of November.-On the
meeting of the House of Commons on the 20th of November,
Sir Edwyn Sandys being still in custody, or restrained by the
King's order from attending, Mr. Mallory moved to know,
· what was become of him.' 'This question was renewed on
the 23d, when it appears that Sir Edwyn Sandys had in the
interim written a letter to the Speaker, in which he informed
6
* It appears from the Appendix to + See Sir Edwyn Sandys's Exa-
the debates of 1621, in the Note on minations, as preserved in the British
Vol. II. p. 182, that Sir Edwyn Sandys Museum, and printed in the Appendix
was committed on the 16th of June; to the debates of 1621.
the two houses had adjourned on the
4th of June.
the
CHAP. 3.] End of the Parliament of 1628.
137
the House, that he had been confined ;' but does not make
any complaint to the House of the cause of his confine-
' ment. However, many Members expressing their appre-
hensions, that this commitment could be for no other cause
than for Parliamentary business, Mr. Secretary Calvert
assures the House, that he was not committed for any thing
' said or done in Parliament ;' but, it is said in the debates *
• that the House will scarce believe Mr. Secretary, but
' thinketh he equivocateth ;' and accordingly desire that his
protestation may be entered in the Clerk's book, which was
done: Sir Edwyn Sandys however not appearing, the matter
is again taken up on the 1st of December, when, notwith-
standing several attempts of the Privy Counsellors to stop
any further proceeding, it is ordered, “That Sir Edwyn
Sandys shall be presently sent for to come and attend the
• service of the House, if he be able to come ; and, if he be
not able to come, then to set down a declaration in writing,
' whether he were examined or committed for any Parlia-
mentary business ;' and that Sir Peter Hayman and Mr.
Mallory shall go to Sir Edwyn Sandys, and bring his answer.
-The House in the mean time resolved to send a Petition
and Remonstrance to the King, setting forth the grievances
under which the Kingdom then suffered ; but the King, then
at Newmarket, hearing of their intentions, immediately dis-
patched a letter to the Speaker, in which, after severely re-
primanding · those fiery and popular spirits of some of the
· House of Commons, who had presumed to argue and debate
publicly of matters far above their reach and capacity,
tending to our high dishonour, and breach of Prerogative
Royal ;' he adds, “ And whereas we hear, they have sent a
message to Sir Edwyn Sandys, to know the reasons of his
* Vol. II. p. 200.
Vol. I.
T
• late
6
6
6
138 From the Accession of James I. to the [CHAP.' 3.
6
6
may arise
6
• late restraint, you shall in our name resolve them, that it
was not for any misdemeanor of his in Parliament;-but to
put them out of doubt of any question of that nature that
among them hereafter, you shall resolve them in
our name, that we think ourselves very free and able to
· punish any man's misdemeanors in Parliament, as well during
• their sitting as after ; which we mean not to spare hereafter,
upon any occasion of any man's insolent behaviour there,
" that shall be ministered unto us*.' This rash and ill advised
message brought on several debates touching the Liberty of
Speech, in which no man expressed himself with more honest
warmth than Mr. Crewe, and with some strokes of eloquence,
that would do honour to the most admired speakers: “I would
not, says he, have spoken about our Privileges, if the thing
' questioned were only matter of form, and not of matter; but
* See in the Appendix to this Vo- lege, an attempt was again made in
lume, Nº 1. a very curious Paper, inti- 1610, first by Message from the King,
tled, “ The Apology and Satisfaction and afterwards in a Speech, to restrain
“ of the Commons to be presented to the Commons from debating in Parlia-
“ His Majesty,” which, though re- ment the right of the Crown to impose
ported from a Committee on the 20th duties on goods imported and exported;
June, 1604, is not entered in the Jour- on which occasion, the Commons reply
nals, nor is to be found in the Parlia- by Petition, and, amongst other things,
mentary History, but is printed in state, “ That we hold it an antient, ge-
Petyt's Jus Parliament”, Ch.10. p. 227, “neral, and undoubted right of Parlia-
in which this Privilege of freedom of “ ment, to debate freely all matters
speech, with many other of the rights “ which do properly concern the sub-
and privileges of the Commons, is “ject, and his right or state : which
very ably asserted and defended, against o freedom of debate being once fore-
some attacks that had been made “ closed, the essence of the liberty of
against them, by his Majesty's ser- " Parliament is withal dissolved."
vants and advisers.--To 'shew that See this Petition at length in the
James the Ist throughout his whole
Journal of 23d May, 1610.
reign was attentive to this object, and No notice is taken of any part of this
desirous of abridging the Members of proceeding in the Parliamentary His-
the House of Communs of this Privi- tory.
this
1
1
CHAP. 3.] End of the Parliament of 1628. 139
this is of that importance to us, that, if we should yield our
· Liberties to be but of grace, these walls, that have known
' the holding of them these many years, would blush; and
" therefore we cannot, in duty to our country, but stand upon
' it, that our Liberties and Privileges are our undoubted
Birthright and Inheritance. The Commons, having sent
down another petition in answer to this letter of the King's,
were told again, · That although we cannot allow of your style,
• calling it your ancient and undoubted right and inheritance,
• but could rather have wished that ye had said that your
Privileges were derived from the grace and permission of
our ancestors and us;' yet we are pleased to give you our
royal assurance, that, as long as you contain yourselves
' within the limits of your duty, we will be as careful to main-
' tain and preserve your lawful Rights and Privileges, as ever
any of our predecesors were, nay, as to preserve our own
Royal Prerogative.' This open declaration of the King's,
touching the foundation of the Privileges of the House of
Commons, brought the matter to a crisis, and produced that
famous protestation in vindication of their Rights and Pri-
vileges, which occasioned the immediate dissolution of the
Parliament; and which (though the King, ' by sending for
• the Journal Book, and striking out the Entry with his own
hand,' was in hopes to have obliterated all traces of it) is
still preserved, and will for ever remain a memorial of the
true spirit of the Great Leaders of that House of Commons,
who stood firm in opposition to the attempts of an arbitrary
Monarch, wishing to trample upon the Rights and Liberties
of his people*.
6
* See this protestation before in p. 78.
T 2
This
140 From the Accession of James I. to the [CHAP. 3.
This protestation, made and recorded in the Journal of the
18th of December, 1621, differed so widely from the King's
principles upon this question, that his Majesty thought fit to
send for the Book, and, “in full assembly of his Council, and
' in the presence of the Judges, did declare the said protesta-
. tion to be invalid, annulled, void, and of no effect; and
' did further, manù sua propria, take the said protestation out
I of the Journal Book of the Clerk of the Commons House of
Parliament; and commanded an Act of Council to be made
thereupon, and this Act to be entered in the Register of
• Council causes :' Intending, as it is expressed in the Entry
in the Council Books, “ that hereby this protestation should
• be erased out of all memorials, and utterly annihilated.'
Immediately on the dissolution of the Parliament, those ill-
tempered spirits, Sir Edward Coke, Sir Robert Phelips,
Mr. Pym*, Mr. Seldent, and Mr. Mallory, who had been
the
* Mr. Pym, who appears so early to “them appear greater than they were.
have been an object of the resentment “At the first opening of the Parlia-
of the Crown for his parliamentary “ inent of the 3d of November, 1640,
conduct, continued a Member of the though in private designing he was
subsequent Parliaments, till his death, “much governed by Mr. Hampden
which happened towards the end of " and Mr. St. John, yet he seemed to
the year 1643. Lord Clarendon says, " allinen, to have the greatest influence
“ That in the short Parliament of 1640, upon the House of Commons of any
" he spoke much, and appeared to be man; and in truth, I think, he was at
“ the most leading man; for, besides " that time, and some months after,
* the exact knowledge of the forms “the most popular man, and the most
“ and orders of that Council, which " able to do hurt, that hath lived in any
“ few men had, he had a very comely "time. Upon the first design of soften-
“and grave way of expressing himself, ing and obliging the powerful persons
“ with great volubility of words, natu- in both Houses, when it was resolved
“ral and proper; and understood the to make the Earl of Bedford Lord
temper and affections of the kingdom “High Treasurer, the King likewise
as well as any man; and had observed “ intended to make Mr. Pym Chancel-
" the errors and mistakes in Govern- “lor of the Exchequer; for which he
ment, and knew well how to make “ received his Majesty's promise, and
“ made
+ See Note in the next page.
CHAP. 3.] End of the Parliament of 1628. 141
3.]
the most forward in asserting the Privileges of the House of
Commons, were committed to the Tower and other prisons ;
the locks and doors of Sir Edward Coke's chambers in
London, and in the Temple, were sealed up,
and his papers
seized ; Sir Dudley Diggs, Sir Thomas Crewe, Sir Nathaniel
Rich, and Sir James Perrot, as a lighter punishment, were
sent, under pretence of inquiring into matters concerning
his Majesty's service, into Ireland, and Sir Peter Hayman
into the Palatinate.
(0
60
“ made a return of a suitable profession « tion. He died towards the end of
“ of his service and devotion; and “ December, 1643, and was buried with
“thereupon, (the other being no se- “ wonderful pomp and magnificence,
cret,) somewhat declined froin that “ in that place, where the bones of our
"sharpness in the House, which was English Kings and Princes are com-
more popular than any man's; and 66 mitted to rest."
“ made some overtures to provide for
Hist.of the Reb. Vol. II.
“ the glory and splendor of the Crown;
p. 354, Book the 7th.
"in which he had so ill success, that * In the commencement of the
“ his interest and reputation there visi- troubles in the following reign, when
“ bly abated; and he found, that he it was proposed to remove the Lord
was much better able to do hurt than Keeper Littleton, King Charles the
good. In the end, (whether, upon First consulted Lord Falkland and Mr.
" the death of the Earl of Bedford, he Hyde, whether he should not deliver
despaired of that preferment; or, the Seals to Mr. Selden-upon which
“ whether he was guilty of any thing, Lord Clarendon observes,
“which, upon his conversion to the " though they did not doubt of Mr.
“ Court, he thought might be disco- “ Selden's affection to the King, yet
“ vered to his damage; or, for pure they knew him so well, that they
"want of courage,) he suffered himself « concluded he would absolutely re-
“to be carried by those, who would “ fuse the office, if it was offered to
not follow him, and so continued at “him.--He was in years, and of a
" the head of those, who made the “ tender constitution; he had for
many
most desperate propositions. From years enjoyed his ease, which he
" the time of his being accused of high “ loved; was rich; and would not have
“ treason by the King, with the Lord “ made a journey to York, or have lain
" Kimbolton, and the other Members, “ out of his own bed, for any prefer-
“ he never entertained thoughts of ment, which he had never affected.”
“ moderation, but always opposed all
Hist. of the Reb. Vol. I.
“overtures of peace and accommoda-
p. 445, Book the 5th.
And
6. That
142 From the Accession of James I. to the [CHAP. 3.
And thus ended this very important question between the
King and the House of Commons: the Reader will find his
pains amply rewarded in studying this more at large, in the
Journals, from the 1st of December to the end of the Session;
in the second volume of the debates, from p. 179, to the end,
and the Appendix; and in the fifth volume of the Parliamentary
History.
7. On the 8th of February, 1620, several pages, servants to
Members, having been guilty of a riot and assault, in the face
of the Judges of the King's Bench, were committed by that
Court, but afterwards sent by them to the House of Commons,
to be punished there.
8. The next Case is that of Lord Arundel; which, though
it is not strictly within the line I originally proposed, yet, as
the proceedings upon it contain much curious learning, touch-
ing the Privilege of Parliament, I trust it will not be thought
entirely foreign to the present Work. As these proceedings
are to be found, collected together from the Journals of the
House of Lords, both in the seventh volume of the Par-
liamentary History, p. 168, and in Elsynge, p. 192, I shall
not insert them at length, but shall only give such extracts as
may be sufficient for understanding the principles upon which
the Lords proceeded in this business.
On the 14th of March, 1625-6, Charles I. had committed
the Earl of Arundel to the Tower, but the cause of his com-
mitment was not expressed; it was supposed to be on account
of the marriage of his eldest son with the Sister of the Duke
of Lenox, a relation of the King's. The Lords, highly dis-
contented that he was committed, sitting the Parliament,
resolved
CHAP. 3.] End of the Parliament of 1628. 143
6
6
the
resolved to take the matter into consideration; and so to pro-
ceed, as to give no just offence to his Majesty, and yet
preserve the Privilege of Parliament.' Upon this the Lord
Keeper acquainted the House, that he was commanded by
his Majesty to deliver this message to their Lordships, viz.
That the Earl of Arundel was restrained for a misde-
meanor, which was personal to his Majesty, and lay in
proper knowledge of his Majesty, and had no relation
to matters of Parliament. The Lords, however, immedi-
ately resolved themselves into a Committee; and the House
being resumed, the Lords Sub-Committees for Privileges were
appointed to scarch for precedents, concerning the commit-
ment of a Peer of this Realm, during the time of Parliament;
and several of the Judges were ordered to attend their Lord-
ships.---'The next day, the 15th of March, the Lord Treasurer
Ley brought another Message to the Lords, to say, “That the
King avowed the message delivered yesterday to their Lord-
ships by the Lord Keeper, to have been done punctually
according to his Majesty's own discretion ; and he knoweth
' that he hath therein done justly, and not diminished the
Privilege of the House.' But, the Lords Committees not
yet having reported the precedents, the Lords do not proceed
any farther at present: On the 18th of April, the Lord Presi-
dent reported the proceedings of the Sub-Committees : First,
· that the King's Counsel had searched and acquainted the
Lords with all that they had found in records, chronicles,
stories touching this matter ; unto which the Lords Com-
“ mittees had given a full answer; and also shewed such
precedents as did maintain their own right*.' This report
6
6
Or
* These precedents, with the an- and are also to be found in Elsynge;
swers to them, are entered at length to which books I beg leave to refer the
in the Journals of the House of Lords, Reader.
being
144 From the Accession of James I. to the [CHAP. 3.
6
being read, it was agreed upon the question by the whole
House, nemine contradicente, “That the Privilege of this
· House is, that no Lord of Parliament, sitting the Parliament,
or within the usual times of Privilege of Parliament, is to be
imprisoned or restrained, without sentence or order of the
· House, unless it be for Treason, or Felony, or for refusing
''to give Surety for the Peace* -And a Committee was ap-
pointed to consider of a Remonstrance of the Privileges of
the Peers of Parliament, and of an humble Petition to be
made unto his Majesty, to enjoy the same. The next day,
the Lord President reported this Remonstrance and Petition,
which was agreed to, and ordered to be presented by the
whole House ; to which the King made answer, “That it
being a matter of some consequence, he would advise of it,
e and give full answer in convenient time:' This was on the
19th of April.–On the 24th, the House was called over ; and
the Earl of Arundel being called, the Lord Keeper signified
to the House, “That his Majesty having taken into considera-
• tion the Petition of their Lordships, touching the Earl of
Arundel, will return answer thereto with all expedition. -
On the 2d of May, the Lords, finding that notwithstanding
the King's promises, the Earl of Arundel was still restrained
from coming to the House, and that no notice was taken of
their Petition, order the Lord Keeper again to move his
Majesty, “ for a speedy and gracious answer:' On the 4th of
May, the Lord Keeper acquainted the House, That in pur-
suance of their order he had moved his Majesty, on behalf of
the Earl of Arundel; and that his Majesty gave for answer,
“ That it is a cause in which his Majesty is willing to give
* See the Resolutions of the House of Commons of the 20th of May, 1675,
upon this subject.
6
satisfaction
CHAP. 3.] End of the Parliament of 1628.
145
• satisfaction to your Lordships, and hath it in consideration
· how to do it; but, having been interrupted by other business,
' will, with all conveniency, give your Lordships satisfaction,
' and return you an answer. The Lords waited patiently till
the 9th of May, when, finding it was with no effect, they
again petition the King, 'for a gracious and present answer.'
The King, highly offended at this expression, and wonder-
ing at their impatience, since he had promised them an
answer in convenient time;' tells them, “That when he re-
' ceives a message fit to come from them to their Sovereign,
" they shall receive an answer. Upon this signification of the
King's displeasure, the Lords strike out the word ' present,
and direct the Petition so altered to be again presented to the
King, to which the King again answers, for the fourth time,
• that they shall have his answer, as soon as conveniently he
can :' This was on the 13th of May, and the first Petition,
with the King's promise to give an answer in convenient
time,' had been on the 19th of April.—On the 17th of
May, the Lords renewed their Petition upon this subject; to
which, on the 19th, the King answers, that they have no
reason to mistrust the sincerity of his promises : that the Lord
• Arundel was committed for a fault directly against the King
• himself, having no relation to the Parliament; that, on the
word of a King, he does not speak out of a desire to delay
' them, but, as soon as it is possible, that they shall know the
* cause : Upon this evasive answer, the Lords immediately
direct the Committee of Privileges to consider, “how farther to
$ proceed with dutiful respect to his Majesty: and yet, so as
may be for preservation of the Privileges of the Peers of this
land, and the Liberties of the House of Parliament.' On the
24th of May, the Lord President reports another Petition to
the same purport, and this is again presented by the whole
Von. I.
U
House
6
6
6
146 From the Accession of James I. to the [CHAP. 3.
6
5
House; to which the King again replies, “That he will use all
possible speed to give them satisfaction, and at farthest
before the end of the Session. The Lords seeing that, not-
withstanding the most solemn promises so frequently repeated,
the King intended to delay giving them satisfaction till the
end of the Session, and by that pitiful evasion to persist in
the violation of their Privileges, immediately resolve, “ That
• all other business shall cease; and that consideration be had,
• how their Privileges may be preserved to posterity ;' and
then adjourn to the next day. On the 26th, the King finding
the matter grow serious, sends a message by the Lord Keeper
to acquaint the Lords, • That he doth much marvel that his
i meaning in his last answer should be mistaken ; and for the
" better clearing his intentions, to assure the Lords, that their
• last petition was so acceptable to his Majesty, that his intent
was then, and he is still resolved, to satisfy their Lordships
fully in what they then desired.' The Lords, determined
to be no longer insulted with this farce of words, immediately
resolve (without taking notice of the message) to adjourn to
that day sevennight; and though the Duke of Buckingham
wished only to signify to their Lordships, that he would
• decline his desire of having the King's Counsel to plead for
him,' the Lords would not hear him, because they would
entertain no business. On that day sevennight, the 2d of June,
the Lord Keeper delivered another message from the King,
· That his Majesty hath thought of the business, and hath
resolved that by Wednesday sevennight at farthest, he will
• either declare the cause, or admit Lord Arundel to the
· House ; and addeth further, upon the word of a King, that
- if it shall be sooner ripe, he will declare it sooner; and that
· he doth not mean to put so speedy an end to the Session,
· but that there shall be an ample space for the dispatch of
public
6
6
CHAP. 3.] End of the Parliament of 1628. 147
6
no
6
public affairs. Upon this, the Lords again resolve, · That
· all other business shall cease, but this of the Earl of Arundels,
concerning the Privileges of the House;' and that this matter
be considered in a Committee of the whole House the next day.
On the next day, the 3d of June, the King, finding it was to
purpose any longer to contend with the Lords, upon a
point which they were determined to maintain, and which,
by their resolution to proceed upon no other business, must
be brought to an issue sooner or later, sends another message
by the Lord Keeper, “ That, in the matter concerning the
· Earl of Arundel, his Majesty hath been very careful and
• desirous to avoid all jealousy of violating the Privileges of
" this House; that he continueth still of the same mind, and
• doth much desire to find out some .expedient, which might
satisfy their Lordships in point of Privilege, and yet not
hinder his Majesty's service in that particular: But, because
“ this will require some time, his Majesty is content that their
“Lordships shall adjourn till Thursday next; and, in the
mean time, his Majesty will take this particular business
• into farther consideration. Upon which the House imme-
diately adjourns itself to Thursday, and all business to cease
until that day. Upon Thursday the 8th of June, the Lord
Keeper delivered this message from his Majesty, “That in
pursuance of his Message of Saturday last, to take away all
dispute, and, that the Privileges of the Lords may be in
· the same estate as they were when this Parliament began,
· his Majesty hath taken off his restraint of the Earl of
• Arundel, whereby he hath liberty to come to the House :"
And the Earl of Arundel being present, did render his most
humble thanks to his Majesty for this, his gracious favour to
him; and gave their Lordships also most hearty thanks, for
thcir
6
6
6
U 2
148 From the Accession of James I. to the [CHAP. 3.
their often intercessions for him to the King, and protested
his loyalty and faithful service unto his Majesty.
What a faithful picture of the character of Charles I. doth
this short history exhibit! Arbitrary, imperious, obstinate, and
deceitful! Secretly wishing to trample upon the Privileges
of Parliament; yet, not daring lo avow his intentions, he
endeavours by false insinuations and untrue assertions, to
protract the time, till it should be no longer in the power of the
Lords to contend with him ; and, when at last their cool but
manly perseverance compels him to submit, he is not ashamed
to give the Earl of Arundel his liberty, without suggesting
even a hint of that * ' most just cause, for which he so often
pretended to detain him. Whoever is acquainted with the
history of this unfortunate Monarch, will see in these outlines
the sketch of that character, which was afterwards more fully
portrayed in the affair of Lord Strafford, and of the Bishops;
and which (the repeated violation of his royal word rendering
all confidence impossible) necessarily brought on that scene
of confusion, which ended in his own destruction, and in the
overthrow of all order and government.
9. On the 8th, 9th, and 10th of May, 1626, at a conference
with the Lords, on the charge against the Duke of Bucking-
ham, Sir John Eliot and Sir Dudley Digges, having used
expressions that were thought to reflect upon the King and
* The real cause of this commitment, out the King's consent or knowledge;
was, That Lord Arundel's eldest son, his Majesty having designed her for
Henry Lord Maltravers, had married Lord Lorne.
the Lady Elizabeth Stuart, eldest
Life of Thomus E. of Arundel,
daughter of the Duke of Lenox, with-
by Sir Edward Walker.
upon
CHAP. 3.] End of the Parliament of 1628. 149
C
6
upon the Duke, were both committed to the Tower. The
House of Commons, inflamed by this most flagrant violation
of their Privileges, resolve upon the 12th of May, “That this
· House will not proceed in any other business, till we are
righted in our Liberties;' and therein set that example, which,
we have seen in the foregoing Case, was followed by the Lords
with so much success about a fortnight after. The accusation
against Sir Dudley Digges was, “That in speaking of the late
King's death, he had uttered words touching upon the
King's honour:' But the House having appointed a Com-
mittee to inquire into this breach of their Privileges, that
Committee resolve, “That a solenın protestation should be
• taken by every Member of the House, against their giving
' their consent to the speaking any such words, and denying
• that they had affirmed to any that Sir Dudley Digges did
speak such words, or any to that effect. And this
And this protes-
tation each Member solemnly made, as his name was called
over from the book : And on the 15th of May, upon this mat-
ter being moved in the House of Lords, thirty Peers and six
Bishops made this voluntary protestation, upon their honour,
· That Sir Dudley Digges did not speak any thing at the said
• conference, which did or might trench upon the King's
· honour.' Upon these assurances the King was satisfied, and
Sir Dudley Digges was set at liberty, and on the 16th, in his
place in the House of Commons, maketh his protestation fully,
That, as the words charged against him were far from the
words he used, so they never came into his thoughts.'-
One of the charges against Sir John Eliot was of a very ri-
diculous nature; · That in summing up the whole against the
Duke of Buckingham, he had insolently called him “ the
“ man,” saying, “ you see the man," which, as was observed
by
6
6
150 From the Accession of James I. to the [CHAP. 3.
C
6
by that grave but supple courtier Sir Dudley Carleton*, 'were
extraordinary terms to use of so high a personage, such as
. he never heard the like in Parliament before.' Though this
free language of Sir John Eliot's at the conference was the
true reason of his commitment, it was a cause too ridiculous to
be avowed; and therefore the King ordered the Chancellor
of the Exchequer to inform the House, That the charge
' against Sir John Eliot was with things extrajudicial to this
· House;' and on the House desiring an explanation of this
word 66 * extrajudicial,” Mr. Chancellor said “It was his
Majesty's word, and therefore he could not explain it with-
out his Majesty's leave;' Mr. Chancellor little considering
what a charge of untruth and insincerity he hereby brought
upon his Majesty. But the King, being probably advised to
insist no longer upon a point which he could not maintain, on
the 19th of May signed with his own hand a warrant for Sir
John Eliot's release; and on the 20th he was sent for to come
into the House: As soon as he had taken his place, Mr. Vice-
Chamberlain repeated the charge against him, “in order (it is
said) to give him an occasion to discharge himself of what-
ever might be objected against him;' upon which Sir John
Eliot, instead of denying any thing he had said at the confe-
rence, or meanly endeavouring to explain away the harshness
of the terms he had made use of, warmed with a spirit that
did him honour, and which, with the whole of his behaviour
during those times, will render his memory always dear to
6
6
*“ Sir Dudley Carleton understood
« all that related to foreign employ-
ments, and the condition of other
“ princes and nations very well ; but
“ was unacquainted with the govern-
ment, laws, and customs of his own
country, and the nature of the
people."
Clarendon's Hist. of the Rebell.
Vol. I. p. 50, Book the 1st.
every
CHAP. 3.] End of the Parliament of 1628.
151
every lover of Liberty, avowed and supported every name
he had given to this over-grown Favourite; to the particular
objection of the words, “ the man," he said, he thought it
• not fit at all times to reiterate his titles, and yet he thinketh
· him not to be a god.' The House, catching the spirit of
this great patriot, immediately resolved without one negative,
and even refusing to order him to withdraw*, “That Sir John
· Eliot had not exceeded the commission given him by the
· House, in any thing which passed from him in the late
• conference with the Lords :' And the like resolution passed
for Sir Dudley Digges.
Thus ended this impotent attack of that rash Monarch on
the Liberties of the House of Commons, to the disgrace both
of himself and his Favourite.- The Compilers of the Parlia-
mentary History cannot let this assertion of the Privileges of
the House of Commons pass, without observing t; “ That
“ the imprisonment of Commoners, however unjustifiable in
“ itself, was no unprecedented stretch of the Royal Prero-
gative.” How much then are we, at this moment, obliged
to those great men, Sir John Eliot, Sir Dudley Digges, Sir
Edward Coke, Mr. Selden, Mr. Pym, Mr. Mallory, and
many others, for putting a stop to these precedents; and
when this argument, drawn from Precedents, was urged
against them by the base and fawning flatterers of those
days, they sensibly replied, “ As to the question, whether
“ these liberties are old or new, whether by the King's grant
or by prescription, it is immaterial ; if I am sure of my
" title, it is indifferent to me, whether I claim by descent or
CG
* The entry in the Journal is, “Sir
“ John Eliot of himself withdrew, the
“ House refusing to order his with-
“ drawing."
+ Vol. VII. p. 168.
• by
152 From the Accession of James I. to the [CHAP. 3.
“ by purchase.”_Or, as the same thought is expressed by a
noble Writer of the present age,
“If liberty were but a year
“old, the English would have just as good a right to claim
sand to preserve it, as if it had been handed down to thern
“ from many ages *.
10. The last Case I shall mention under this head, is that
of Sir Henry Stanhope, who was committed by the Council
Table for a Challenge, and to prevent further danger : It
appears from the Journal of the 3d, 5th, and Sth of May,
1628, and from Prynnt, that a Warrant had issued for ap-
prehending him without expressing the cause of commitment,
but that in the second Warrant it was declared to be “ for
“ the breach of the peace, and refusing to give security for
“ the peace.” The House sent for Sir Henry Stanhope by
their serjeant with the Mace, but on examination remanded
him to the prison of the Marshalsea ; and on the 8th of
May, he, having given security for the peace, was set at
liberty by order of the House.-Prynn has given a particular
account of the debate upon this subject, for which he only
cites the Journal: Now there is not a word of the debate
entered there, nor in Rushworth, and therefore his authority
upon this occasion is to be suspected, especially as he is
totally mistaken in the manner in which this affair was put
an end to; for he says, “the quarrel was taken up, and
" so the Lords discharged him, not the House.”—The alter-
ation, which the Lords of the Council made in their second
Warrant of the 4th of May, after the matter had been moved
in the House of Commons, is very remarkable ; as it is ex-
pressed in the very words used by the House of Lords, in
* Lord Littleton's Persian Letters, 4 Fourth Register, p: 714.
Letter 58th.
# Page 716.
their
CHAP. 3.] End of the Parliament of 1628.
153
their resolution on Lord Arundel's Case, and was certainly
meant to meet the interposition of the House.
It does not appear that, among these complaints of breaches
of Privilege, by the Imprisonment of the Members, or their
servants, there is any one of a person committed by any
process of a Court of Law, on any proceeding by Indict-
ment or Information, in order to bring him to trial; or on
any Capias to receive Judgment; and yet in a course of five
and twenty years, it is but reasonable to suppose that such an
event must have happened.-The first, fifth, and seventh Cases
are commitments by Courts of Justice, for a contempt to the
Court: In these instances, the House claim their right to the
personal attendance of their Member ; and, in the seventh
Case, where the servants deserved punishment, they are sent
by the Judges of the King's Bench to the House of Commons,
to be punished there; though they had been guilty of so high
an insult on that Court, that it was observed, many for
« lesser offences had lost their hands.'
The second, third, and tenth Cases are in matters of the
peace: If the Justice of the Peace in the second Case had
taken the bail, or the security for the peace, which was
offered, it does not appear that the Privilege of the House
would have been broken ; but being a trading Justice, (a cha-
racter very much complained of about this time, he insisted
on the payment of ten shillings; and in this he undoubtedly
exceeded any powers given him by law, and by that ren-
dered himself a very proper object of the jurisdiction of the
House. In Sir Henry Stanhope's Case, the House, on finding
it “ a matter of the peace,” remand him, till he
procures
his liberty by giving security for the peace.- These instances,
VOL. I.
X
with
154 From the Accession of James I. to the [CHAP. 3.
with that of Lord Arundel, (N° 8.) may, I think, be very
properly considered as a. Parliamentary explanation of the
expression in Thorpe's Case, of “ Surety of the Peace*,
and of what Sir Edward Coke says in the fourth Institute,
“ That the Privilege of Parliament does hold unless
“it be in three Cases, Treason, Felony, and the Peace.”
P. 25,
As to the Case of Dr. Steward's servant, (N° 4. p. 133.)
I believe the law, with respect to bastards, stood at that time
on the Statute of Queen Elizabeth, Ch. 3, by which the
· Justices are empowered to punish the reputed father, and
to make provision for the care of the child, and to charge
• such father with a weekly payment of a sum of money,
which if he refuses to pay, then to commit him to the
common gaol.' It does not appear from the Journal, on
what ground this commitment was made; whether only as
being an offence contra bonos mores, or, upon the Act of
Parliament, on his refusal to pay the money ; it was however
in neither Case clearly a “matter of the peace,' and therefore
the House, consistently with that doctrine, determined he
should have Privilege.
The sixth, eighth, and ninth Cases are commitments by the
King or Council, for offences against the Court, by speaking
too freely of the Prerogative, or by some act by which the
King thought himself personally injured. In these instances,
both Houses, with equal spirit, assert their indubitable and
essential right of freedom of speech, and of the personal
freedom of their Members, and refuse to proceed in any
business, till their Members are restored to them.-If this
* See before, p. 66.
claim,
CHAP.3.]
155
End of the Parliament of 1628.
claim, set up by James I. and Charles I. to imprison the
Members of either House of Parliament, at any time, and
under any pretence, could have been established and carried
into execution, it would have made no inconsiderable part
of that system of Prerogative Government, which these ill-
advised Princes were so desirous of erecting: The terrors of
hard imprisonment, and Star-Chamber punishments, would
undoubtedly have prevented many Members from voting or
speaking against the measures of the Court; while the more
firm and resolute, the Wentworths, Eliots, and other manly
spirits, whom no terrors could affright, would, by the exercise
of this power, have been withdrawn from their attendance
on the House; and the Court might easily have prevailed
with the timid herd, which were left behind, to give the
countenance of Parliamentary authority to those measures
that they were aiming against the constitution; and would
thereby have established the power of the Monarch on a
foundation, perhaps never afterwards to be shaken.-In these
commitments, which we have hitherto met with, made either
by the Council Table, or by the order of the King, there is
generally that modesty in the ministers, as to wish that it
may be supposed, that such commitments were not for any
liberties taken in speeches, or for particular votes or behaviour
in either House of Parliament, but for offences of another
sort committed out of Parliament; well knowing, that if the
Parliament could be deluded by these pretences, their end
would be equally answered; and they should avoid contesting
those Privileges which they could not deny to exist, and which
they were aware the Parliament would never resign.-Yet in
the instance of Sir Edwyn Sandys, (N° 6.) that weak Prince,
James I. induced by his fondness for big words, and angry
menaces,
x 2
156 From the Accession of James I. to the [CHAP.S.
menaces, cannot help, in his message to the House of Com-
mons, openly avowing his right to punish any man's mis-
demeanors in Parliament; though, in the same breath, he is
pusillanimous enough to tell a manifest untruth, that, in this
particular Case, Sir Edwyn Sandys was not committed for
any such behaviour. This transaction is a true picture of
the character of that unwise Monarch ; loud, obstinate,
boasting, threatening in words, but, when matters were
brought to a crisis, mean, cowardly, trifling, and supple:
It is however providential for this country that he existed
such as he was; if, on the one hand, he had made fewer
elaims in favour of the Prerogative, he would not have ex-
cited those active and determined patriots, who, in opposition
to his arbitrary measures, examined into the History of the
Constitution of this Government, and brought forward those
precedents and principles, which were afterwards so justly
applied in resisting the power of the Crown, and reducing it
within its legal limits : Sir Edward Coke, Sir Dudley Digges,
Sir Robert Phelips, Mr. Crewe, and many others, might have
passed unobserved through life; and this country might
never have reaped the advantages of those studies and that
knowledge, to which the patriots in the succeeding Reign,
and those who brought about the Revolution, were so much
indebted. If, on the other hand, he had had more true spirit,
and resolution to have abided by and supported those claims,
upon the foundation of the powers exercised by his prede-
cessors of the House of Tudor ; it is impossible to say, what
might have been the event: I trust the great men of those
days would not have been found an easy conquest ; they
would have continued the same opposition, though they had
been obliged to purchase their liberty with their lives :
Happily
CH AP. 3.
157
End of the Parliament of 1628.
Happily however for us, they were not put to so severe a
trial; the weakness of their competitor always gave the
victory on their side.
(2.) The second general head, is the arrest, or imprison-
ment of Members, or their servants, in civil suits.
1. And the first Case which occurs in this period is that
of Sir Thomas Shirley, on a complaint made on the 22d
of March, 1603, of his being arrested at the suit of a creditor,
and imprisoned four days before the sitting of Parliament.
The proceedings of the House upon this complaint, and the
Bills which were brought in in consequence of it, take up a
considerable part of the Journal of this Session * ; I shall
here therefore only insert a summary account of the Case,
copied from the fifth volume of the Parliamentary Historyt.
Sir Thomas Shirley, Member for Steyning, had been com-
mitted prisoner to the Fleet, soon after his return, and before
the Parliament met, on an execution. The House sent their
Serjeant at Arms to demand the prisoner, which was refused
by the Warden ; on this he was himself sent for to the House,
where he, still persisting in refusing to release the prisoner,
was committed to the Tower for the contempt. On the 9th
of May, a debate arose in the House, in what manner they
could release their Member; some arguing that the House
could not, by law, secure the Warden from an escape of his
prisoner : But the Recorder of London said, “That this was
not a time to treat about matters of law, but how to deliver
· Sir Thomas Shirley.-He moved therefore that six of the
* Which is very well worth the Reader's perusal.
4 Page 113
6 House
1
158 From the Accession of James I. to the [CHAP. 3.
6
6
" House might be selected and sent to the Fleet, with the
Serjeant and his Mace to attend them ; there to require the
delivery of Sir Thomas Shirley; and, if it was denied, to
press to his chamber, and, providing for the safety of the
prison and prisoners, to free him by force, and bring him
away with them to the House.”—This motion of Mr. Re-
corder of London was put to the question, and carried by
one hundred and seventy-six, against one hundred and fifty-
three, on which it was resolved to send, with direction and
authority as before: But the Speaker, Sir Edward Phelips,
putting the House in mind, that all those, so sent to enter
the prison in that manner, were, by law, subject to an action
upon the Case, it was thought meet to stop the proceeding. -
Many projects were formed in the House, for several days
together, for the delivery of the prisoner, but to no purpose;
when the Warden was again ordered to be brought before
them, and though told of the greatness of his contempt, and
terrified with further punishment, if he would not yield, he
still refused to deliver his prisoner to them. On this another
debate arose, and having come to a resolution, the Warden
was again called in, when he, still persisting in his obstinacy,
was told by the Speaker, “ That as he did increase his con-
• tempt, so the House thought fit to increase his punishinent ;
' and that their judgment was, now, that he should be com-
“ mitted to the prison called Little Ease, in the Tower. The
next day, the Lieutenant of the Tower sent a letter to the
Speaker, importing, that he had talked with the Warden his
prisoner, and that he now seemed to have some feeling of
his error and obstinacy; and that if the House would send
two of their Members, which he named, to satisfy him in
the point of his security, he would deliver up his prisoner to
their Serjeant, when they would please to send for him. But
the
CHAP. 3.] End of the Parliament of 1628.
159
the House would not consent to this ; and the day after, they
came to a resolution, to send another Warrant of Habeas
Corpus to release their Member; and that the Warden should
be brought from the Tower to the door of the Fleet, and
there to have it served upon him by the Serjeant, and then
to be returned to his dungeon of Little Ease again. The
forms of all these Warrants are in the Journal ; but there is
a memorandum added to this last, “ That Mr. Vice-Cham-
' berlain was privately instructed to go to the King, and
· humbly desire, that he would be pleased to command the
· Warden, on his allegiance, to deliver up Sir Thomas; not
as petitioned for by the House, but as if himself thought
• it fit, out of his own gracious judgment.'—It is likely this
last method prevailed; for we find that Sir Thomas was
delivered up, by a petition sent to the House from the War-
den in his durance, and praying to be released from it. The
House however thought fit to continue him, in the same
dismal hole, some time longer, when at last, being ordered
to be brought to the Bar, on his knees, he confessed his
error and presumption, and professed that he was un-
feignedly sorry that he had so offended that honourable
• House.' On which, the Speaker, by direction of the
House, pronounced his pardon and discharged him, paying
the ordinary fees.
It
appears that the principal difficulty attending the release
of Sir Thomas Shirley, was the same that had occurred in the
former Cases of this nature, viz. · That the Warden would
“ have been liable to an action of escape, and the creditor
would have lost his right to an execution: Nor was it in
the power of the House of Commons alone to give any secu-
rity upon either of these points; it therefore became necessary
in
160 From the Accession of James I. to the [CHAP. 3.
in this Case, as in the instances of Lark, Atwyll, &c. to make
a particular law, “to secure the debt of the creditor, and to
save harmless the Warden of the Fleet. And in order to
avoid this difficulty for the future, it was thought expedient to
pass the general law of the first of James I. Ch. 13, “ for new
' executions to be sued against any which shall hereafter be
· delivered out of execution by Privilege of Parliament, and
•
for discharge of them out of whose custody such persons
• shall be delivered.'—It appears however, from the words of
this Act, and from the proviso at the end of it, That
nothing therein contained shall extend to the diminishing of
any punishment, to be hereafter, by censure in Parliament,
' inflicted upon any person which hereafter shall make, or
procure to be made, any such arrest as is aforesaid,') that
the opinion of both Houses of Parliament at that time was,
that, during the Privilege of Parliament, it was not lawful
to arrest, even in execution, any Member of either House of
Parliament: and yet it is clear from the former instances,
and from the variety of expedients proposed by the House of
Commons in this Case of Sir Thomas Shirley, in every one of
which they failed, that hitherto neither the law of Parliament,
nor any statute had pointed out a mode, by which the Members
should be delivered, or had taken care to secure the Gaoler
from an action for an escape, or to ensure to the creditor his
right to a new Writ of Execution *.
:
2. On the 13th of February, 1605, Complaint is made that
Mr. Brook, a Member, had been arrested, by virtue of a bill
of Middlesex, by one Mallorie, three days after the last Ses-
sion; the next day, Mallorie is brought to the Bar, in custody
of the Serjeant, but on his protesting ignorance of Mr. Brook's
* Sec Note, pp. 47 and 59.
being
CHAP. 3.]
161
End of the Parliament of 1628.
being a Member, and being commanded to withdraw his
action, he is pardoned and discharged.
3. On the 10th of February, 1606, Thomas Finch, servant
to Sir Michael Sandys, had been arrested in an action of debt,
at the suit of Thomas Knight, a Fishmonger; and being pri-
soner in the Counter, an execution was laid against him for
forty pounds: A Habeas Corpus was ordered to be awarded,
for the bringing the body of Finch to the House on the
Friday following (a copy of which is inserted in the Journal
of the 13th of February, with the Speaker's Warrant, and the
return of the Sheriffs to the Writ); by virtue of this Writ,
Finch was brought up, and the other parties attending were
heard in their defence, and were excused ; but Finch was
privileged, and ordered to be delivered, “according to former
precedents.'
4. On the same day, the 10th of February, 1606, Complaint
was made that Mr. James, a Burgess, had been arrested on
an execution : The Attorney who procured the arrest, and the
officer who arrested Mr. James, were the next day brought to
the Bar, and for their contempt were committed to the custody
of the Serjeant for a month ; which judgment was pronounced
against them, kneeling at the Bar, by Mr. Speaker. On the
19th of February, Sir Noel de Caron, minister from the States
General, intercedes for Bateman the Attorney by a letter to
the Speaker; and on the 20th, Bateman petitioning, he, and
the officer who arrested Mr. James, are both brought to the
Bar, and discharged.--I do not recollect any instance, prior
to this, of persons being committed to the custody of the
Serjeant by way of punishment.
VOL.I.
Y
5. On
162 From the Accession of James' I. to the [CHAP. 3.
5. On the 20th of February 1606, Hawkins, servant to Sir
Warwick Heale, was arrested in an action of eight thousand
pounds: A Habeas Corpus was ordered to be issued to bring
ир Hawkins, and the other parties were to be summoned to
appear; but the affair was, the same day, reported to be
stayed and appeased by mediation.
:
6. On the 30th of June, 1607, a Member's servant was
arrested : On the 1st of July, Pasmore, the officer who had
arrested him, is brought to the Bar by the Serjeant, and,
having been heard in his defence, is committed to the Serjeant
during the pleasure of the House, and ordered to discharge
the suit, and to pay the expences attending it, and his own
fees to the officers of the House; and on the 4th of July, the
House being informed that these conditions had been com-
plied with, he was ordered to be discharged upon his sub-
mission.
17. On the 5th of March, 1609, Eustace Parry, servant to
Sir James Scudamore, was taken in execution: The House
immediately order a Warrant for a Writ of Privilege ; on the
15th, this matter is referred to the Committee of Privileges,
and on the 16th, report is made from the Committee, that the
party shall have his Privilege, and be delivered ; but that the
Sheriff be excused, as not knowing him to be a Member's
servant: There is much debate, who is to pay the fees, i. e.
the expences of the arrest and imprisonment; and it was re-
solved, that the constable arresting shall not, but the party
accused shall; this party was Wayte, at whose suit and by
whose direction the arrest was made: On the 28th, Wayte is
examined and pardoned, paying his fees.
8. The
..
CHAP. 3.3.]
] End of the Parliament of 1628..' 163
8. The memorable Parliament of 1621 being engaged in
many very important pursuits for the public service, it was
thought advisable, in order not to interrupt their proceedings,
that they should not be prorogued, but only adjourned during
the summer months : As soon as this was determined upon, it
appears from the Journals, and from the proceedings of that
Parliament, that there were great doubts and debates, as to the
mode and effect of this so long an adjournment, with respect
to Privilege.—On the first of June, 1621, the opinions of Sir
Dudley Digges, Sir Robert Phelips, Sir Edwin Sandys, and
many other experienced Members, are delivered upon this
occasion; but it appears from the second volume of the
Parliamentary proceedings *, and from the Journal, that the
resolution to which the House came, was upon the motion,
and in the words of Sir Edward Coke, “That in case of any
' arrest, or any distress of goods, serving any process, sum-
• moning the land of a Member, citation or summoning his
person, arresting his person, suing him in any court, or
breaking any other Privilege of this House; a letter shall
issue under Mr. Speaker's hand, for the party's relief therein,
" as if the Parliament was sitting; and the party refusing to
• obey it, to be censured at the next access.'-It is remarkable
that Sir Dudley Digges moves, “ That in consideration of
payment of debts, the lands and goods of any Members,
being debtors, may not be privileged during this long recess:'
But this humane and just proposition was overruledt. As
* Page 146.
+ When Charles the IId. intended
to prorogue the Parliament from the
27th July 1663 to the 16th March fol-
lowing, a space of eight months, he
says in his speech to both Houses of
Parliament upon this occasion," I think
“it necessary to make this a Session,
" that so the current of justice may run
" the two next Terms, without any ob-
“struction by Privilege of Parliament,
« and therefore I shall prorogue you to
“ the 16th day of March.”
Lords Journal.
Y 2
from
164 From the Accession of James I. to the [CHAP. 3.
from the debate, both on this and the day before, it appears
to be universally agreed, that the Privileges of the Members
continue, during an adjournment, the same as during the sitting
of the House, we may consider this resolution, drawn up
in
the words of Sir Edward Coke, as a recapitulation of all the
Privileges, which were at this time claimed by Members of
the House of Commons, either for their persons or estates,
and as Sir Edward Coke expresses himself “ clear both for
“ Members, and their servants.”—It is curious to compare the
part, which Sir Edward Coke took upon this occasion, with
the doctrine that he laid down thirty years before in Fitzher-
bert's Case*, when Speaker and · Solicitor General' to the
Queen.—We hear nothing now of Writs of Habeas Corpus,
Writs of Privilege, Petitions to the King or House of Lords;
but, in every Case recited in the resolution, or the breaking
any other Privilege of the House,' a letter is to issue under
Mr. Speaker's hand for the party's relief; and disobedience
to that letter is to be considered as a contempt of the House,
and to be punished at their next meeting : And this is to con-
tinue during an adjournment of above five months.-- Though
I have a very great respect for the character which Sir Edward
Coke sustained throughout the Parliament of 1621; and am
of opinion, that this country owes its freedom more to his
learning and determined spirit, than perhaps to that of any
I could not, consistently with that fairness and
impartiality which ought to guide the pen of every, even the
most insignificant, writer of history, omit to remark this dif-
ference in his sentiments, according to the difference of situation
in which he acted.
other inan,
9. On the 4th of June, 1621, the House is informed of
* See page 108.
Johnson,
CHAP. 3.165
3.]
] End of the Parliament of 1628.
6
66
Johnson, Sir James Whitlock's man, being arrested: The
parties are immediately called to the Bar, and heard, on their
knees, in their defence; and after a variety of propositions
made for several degrees of punishment, it is ordered' upon
the question, “ That they shall both ride upon one horse bare
backed, back to back, from Westminster to the Exchange,
with
papers on their breasts with this inscription, “For ar-
resting a servant to a Member of the Commons House of
“ Parliament;” and this to be done presently, sedente Curiâ :?
And this their judgment was pronounced by Mr. Speaker to
them, at the Bar, accordingly. This very new and extraor-
dinary punishment was awarded, notwithstanding it appears
from the Journal, and the Parliamentary proceedings*, that
both these parties had acknowledged their fault, and craved
forgiveness of the House, and of Sir James Whitlock.
10. On the 28th of April, 1624, a Warrant is ordered
to issue from the Speaker, for a Writ of Privilege, to bring
up a servant of a Member, in execution with the Sheriff of
Kent.
11. On the 4th of July, 1625, the Case of Mr. Bassett is re-
ferred to the Committee of Privileges, who report on the 8th,
• that he was imprisoned upon mesne process, and afterwards
· chosen a Burgess. There is a debate in the Journal, whether
under these circumstances he is eligible, or to be allowed
Privilege: Great distinction is made between a person arrested
on mesne process, or in execution, and it is at last resolved,
upon
the question, . That Mr. Bassett shall have the Privilege
6 of the House ;' and a Warrant is ordered to the Marshal to
bring him up the next morning, which is done accordingly.
* Vol. II. p. 164.
12. On
166 From the Accession of James I. to the [CHAP. 3.
6
12. On the 9th of February, 1625, a motion was made, that
Mr. Giffard, returned a Member of the House, and now in
execution, may be sent for. On this matter being examined
into, it appears from a report of the Committee of Privileges
on the 15th, that one of the Burgesses for Bury was elected
on the 6th of January, that Mr. Giffard was elected
on the 11th of January, but that the indenture was not
dated till the 30th of January; the Town Clerk conceiving
6. it was to bear date the day of the next County Court; and
• that Mr. Giffard was arrested on the 23d of January, after
his election but before the return.' After much debate and
consideration of this difficulty, on the 17th of February, the
Clerk of the Crown, the Sheriff of Suffolk, and the Town
Clerk of Bury, are all called up to the Table, and there, by
order of the House, amend the return from the 30th of January,
to the 11th; and then it is ordered, that Mr. Giffard shall
have Privilege, and be delivered out of execution : and a
Warrant is issued to the Clerk of the Crown, for a Habeas
Corpus to bring him up the next day: On the 18th, he is
accordingly brought in, with the Keeper of the Gatehouse,
the Bar down; the Writ of Habeas Corpus is handed up
to the
Clerk, and the Writ and Return are read by him, and then
Mr. Speaker discharged Mr. Giffard, and wished him to take
the oath, and then his seat in the House.
13. On the 9th of February, 1625, Complaint is made of
Sir Thomas Badger's servant being arrested at his master's
heels, as he came to the Parliament House. On the next
day, when this debate is resumed, it is ordered, “ that the
consideration of the manner of delivery of one in execution,
• be referred to the Committee of Privileges, for them to re-
port to the House;' On the 15th, Sir Jo. Finch reports, that
the
CHAP. 3.] End of the Parliament of 1628. 167
6
the Committee are of opinion, · That Sir Thomas Badger's
man should be delivered by Habeas Corpus, by Warrant
“ from the House ;' and accordingly the House order a War-
rant for that purpose, to issue to the Clerk of the Crown,
under Mr. Speaker's hand; but they at the same time declare,
• that, notwithstanding the said opinion of the Committee,
the House hath power, when they see cause, to send the
Serjeant immediately to deliver a prisoner.' On the 17th,
he is brought up by the Keeper of the Gatehouse; and the
Writ and Return being read by the Clerk, he is ordered by
the Speaker to be discharged.
6
14. On the 16th of May, 1626, on a complaint made, that
one Colley, servant to a Member, had been arrested the day
before, and taken in execution and detained; it is ordered that
he have Privilege, and that a Warrant for a Habeas Corpus be
issued to bring him up: On the 23d, he is brought in obedience
to this Writ, and discharged.
Notwithstanding the resolution which the House came to
in * the Case of Sir Thomas Badger's servant, that they
· have power, when they see cause, to send the Serjeant im-
· mediately to deliver a prisoner;' yet, since the end of Queen
Elizabeth's reign, we have not actually met with any instance,
where a person entitled to privilege, • if in custody in execution,
* On this question, touching the
mode of proceeding in the case of de-
livering a privileged person from cus-
tody, see the Case of Mr. Petrie, and
the Report of Precedents from the
Comınittee then appointed, in the
Journal of 20th March 1793. The mo-
dern course has been, only to make an
order for the discharge of the person
amoved. But see 10th December 1711,
Boteler's Case, a Member imprisoned
sent for by the Serjeant at Arms. Mr.
Onslow in his MS. Collection, says,
“ This was right, although Bromley,
“ (the Speaker) said at first it ought to
“ have been referred to a Committee
“ to inquire."
hath
168 From the Accession of James I. to the [CHAP. 3.
1
hath been delivered by any other mode, than by virtue of a
Writ of Privilege, or by a Writ of Habeas Corpus, issued in
obedience to a Warrant under the Speaker's hand; and indeed
it should seem necessary, that there must be some formal
process at law, to give the Act of the first of James I. Chap.
13, its full operation.-As the House of Commons had deter-
mined, that this Writ of Privilege could be issued only by
virtue of a Warrant under the Speaker's hand, and that by
order from the House;' Members and their Servants were
still liable to be arrested during an adjournment or prorogation,
and were without remedy, except from the apprehensions
which the party offending might be under of incurring those
censures in the approaching Session, which, by Sir Edward
Coke's advice, were threatened in the resolution of the House
in 1621. This however not being-sufficient, it appears from
the Journals of both Houses, that a further remedy was in
agitation, viz. “ a Bill for the releasement of such privileged
persons as should be arrested after the Parliament ended,
66 but during the Privilege thereof*.”_On the 27th of May,
1628, a Bill was brought from the Lords, “ for explaining and
enlarging the Act of James I. touching delivering persons
• taken in execution ;' and in the next Session, on the 31st
of January, 1628, the Lords sent down the same Bill again.
Whether the purport of either of these Bills was to carry this
remedy into effect, I don't know; as it appears that the Com-
mons took so little notice of them, as never to give either of
them even a first readingt.
6
(3.) The
See the Parliamentary History, Paper Office of the House of Commons,
Vol. VIII. p. 105.
that this Bill was to enable the Lord
+ It appears from a copy of one of Chancellor “ during the time of Pur-
these Bills, which is preserved in the “ liament, or within the days of Privi-
lege,
CHAP. 3.] End of the Parliament of 1628.
169
(3.) The next general head is, the summoning of Mem-
bers, or their servants, to attend inferior Courts as witnesses,
jurymen, &c.—We have seen that this Privilege, of being
exempted from the obligation of attending in an inferior
Court, had been claimed and exercised even earlier than the
Reign of Queen Elizabeth : From what happened in the
year 1584, in the two Cases of (40) and (41)* the Com-
mons found themselves obliged to take the punishment of
this breach of their Privileges into their own hands, whereas,
till that time, the mode of redress had been different.
1. On the 8th of May, 1604, a Subpoena out of Chancery
being served on the person of Sir Oliver St. John ; the
person, at whose suit it was served, was sent for by the
Serjeant to answer the contempt.
2. On the 10th of May, 1604, several Subpoenas for dif-
ferent purposes having been served upon Members ; the Writs
are read, and Warrants ordered for attaching the bodies of
the delinquents by the Serjeant, and bringing them to the
Bar to answer their contempts t.
3. On the 14th of May, 1604, Sir Edward Montagu in-
forms the House, that he was warned to appear upon a trial
at Guildhall to-morrow; and prays to know whether he
should
lege before the beginning or next " the time of Parliament,” which the
" after the dissolution of any Parlia- House of Commons could exercise by
“ ment, or in the time of any adjourn their own authority, might be the rea-
ment, to deliver any person entitled son for the Commons not taking any
“ to the Privilege of Parliament, and notice of either of these Bills.
to save to the creditor the right of * See before pages 96 and 97.
“ arrest."- Perhaps the giving to the + See the 15th of May, 1604, and
Chancellor a right “ to exercise during 11th of February, 1605.
VOL. I.
2
170 From the Accession of James I: to the [CHAP. 3.
should have Privilege: It is ordered that he shall have
Privilege, and in the order it is expressed, “ because his
' said appearance must necessarily withdraw his presence
' and attendance upon the service of this House; and there-
· fore it is thought fit, and so ordered, that he be excused in
that behalf, according to ancient custom of Privilege. It
is observable that, though Sir Edward Montagu is stated as
defendant in this cause, there is no complaint made of the
suit being carried on against him in time of Privilege, but
only that he was warned to appear.
. 4. On the 13th of February, 1605, Mr. Stepney complains,
that seven days before this Session, he was summoned upon
a Subpoena in the Star Chamber :: On the 14th, this matter
is examined into, and referred to the Committee of Privi-
leges; on the 15th, it is ordered, “that Mr. Stepney shall
· have Privilege, and that Warren, who served the
process,
• be committed to the Serjeant for three days.
5. On the 12th of May, 1606, Subpæna ad Rejungendum
is served on Sir Richard Bulkley : The party at whose suit
it was issued, and the party who served it, are ordered to be
sent for ; on the 19th and 20th, Owen ap Rice who served
it, and his Master, Mr. Lloyd, who delivered the process into
his hands, are committed to the Serjeant.
6. On the 31st of March, 1607, is an entry of a letter
written by the Speaker, Sir Edward Phelips, during an ad-
journment, for excusing Sir Edmund Ludlow and his son
from attending at the execụtion of a commission, awarded
out of Chancery, for the examination of witnesses. And this
is said to be warranted - by former general Order.'
7. On
CHAP.3.] End of the Parliament of 1628. 171
7. On the 4th of May, 1607, is a complaint of a Sub-
pæna, to answer to a prosecution in the Exchequer, on the
part of the Crown, served on Sir Richard Pawlett : The
Writ is read, and then the Serjeant is ordered, by his Mace,
to attach the parties delinquent, and to bring them to the
Bar, to receive the judgment of the House ; and on the next
day, the Speaker writes a letter to the Lord Chief Baron,
to inform him, “ that such a Subpæna ad comparendum has
· been served upon Sir Richard Pawlett, contrary to ancient
. and known Privilege ; because the personal attendance of
• the said Sir Richard is here necessarily required, during
the time of Parliament: I therefore thought good, as well
to make known the privilege and pleasure of the House,
as to pray your Lordship, that no farther process issue
against him, until he may have time and leisure to follow
his own cause.
6
6
8. On the 5th, 7th, and 8th of May, 1607, Subpænas
are served, and the parties are committed to the Serjeant,
and to pay fees.
9. On the 6th of May, 1607, two Members inform the
House, that they were returned by the Sheriff Jurors in the
Court of King's Bench : It was ordered, “ that, by the Pri-
vilege of the House, they should be spared from their
“ attendance; and Mr. Serjeant is commanded to go with
' his Mace, and deliver the pleasure of the House to the
Secondary of the King's Bench, the Court then sitting.'
6
10. On the 8th of May, 1607, a Subpæna ad comparen-
dum was served out of the Star Chamber upon Sir Edmund
z 2
Ludlow:
172 From the Accession of James I. to the [CHAP. 3.
Ludlow : The Writ was read, and it appeared to be at the
suit of Mr. Attorney General,' which made the question
disputable; it is therefore referred to the Committee of Pri-
vileges, to consider whether he shall have Privilege or no.-I
do not find that they made any report.
.
11. On the 19th of February, 1609, Complaint of a Su
Sub-
pæna out of Chancery served on Sir William Bowyer: On
the 27th, the person who served the Subpoena is brought
to the Bar, and, because he did it ignorantly, is discharged,
paying his fees.
12. On the 21st of March, 1609, a Writ is served on Mr.
Pelham, ad audiendum judicium : This is referred to the
Committee of Privileges, to consider, as appears from the
5th of May, 1610, “whether a Plaintiff may have Privilege,
a Subpoena ad audiendum judicium being served
'
6
on
upon him.
6
13. On the 14th of May, 1621, Sir H. North produces
a Subpæna : Sir Edward Coke cites a precedent of the tenth
year
of Edward III. - where the Clerk of this House had a
Subpæna served upon him, and had Privilege, and the
party was committed for breaking the Privilege of the
· House *'-It is not said where Sir Edward Coke found
this precedent; but the note which is written in the original
Journal, 6 that there was no Parliament that year,' is a
mistake, as appears from the commission, which is in the
fourth
* See before, pages 9 and 11, the cited by Sir Edward Coke, and whom
case of Thoresby, who was probably he there calls “ Clerk of the Parlia-
the person alluded to in this precedent
“ ment."
CHAP. 3.] End of the Parliament of 1628.
173
fourth volume of Rymer's Federa, p. 701, dated at New-
castle the 20th of June, in the tenth year of the reign of
Edward III. *.
14. On the 29th of November, 1621, Subpoena served on
Mr. Bruerton : Napper, who served it, is ordered to be sent
for by the Serjeant; on the 30th, a Warrant for this
purpose
is given to the Serjeant, and also against one Minott, who
had likewise served a citation on Mr. Bruerton. On the
3d of December, Napper, after debate, is committed to
the Serjeant for three days, and then to be dismissed, paying
his costs to Mr. Bruerton, and his due fees to the Clerk and
Serjeant.
15. On the 28th of April, 1628, Sir Simeon Stuart is
served with a process, at the suit of the Allorney General,
ad audiendum judicium : He desires time to prepare for
the hearing, being bound in a recognizance of five hundred
pounds not to claim his Privilege; but it is ordered, that,
notwithstanding his recognizance, he ought to have the Pri-
vilege of Parliament if he desire it. On the 30th, the person
serving the Subpæna was sent for to answer the contempt :
It was referred to the Committee of Privileges, to consider
what was fit to be done about the recognizance; and Sir
Simeon
* See this commission, intitled, clared Duke of Cornwall, and sundry
Assignatio personarum loco Regis ad other honours were conferred on him.
“ inchoandum concilium suum.” Edw. The commission referred to, “ for
III. was proclaimed the 25th January opening this Parliament,” which was
1327.-On the 12th March 1337, a summoned in the 10th Edw. III. but
Parliament was holden at Westminster, did
did not meet for dispatch of business
at which the Prince of Wales was de- till the beginning of his 11th year.
174 From the Accession of James I. to the [CHAP. 3.
Simeon Stuart was enjoined by the House, to attend the
service of the House, and not to attend the hearing of his
cause in the Star Chamber. On the 10th of May, a petition
from the Inhabitants of the Isle of Ely is presented, com-
plaining, as appears from Prynn's fourth Register, p. 842,
of this delay of trial, and desiring that he might be ordered
to wave his Privilege: This petition is referred to a select
Committee to examine, but there is no report upon it. Prynn
has made some very judicious observations upon this Case,
and particularly upon some doctrines laid down, in the de-
bate upon it, by Sir Edward Coke *.
16. On the 15th of May, 1628, Sir William Alford, re.
turned on a jury this day in the Common Pleas, is to have
Privilege of Parliament not to serve; and a letter is ordered
to be written by Mr. Speaker to the Judges, that he be not
amerced for his not appearance.
17. On the 29th of January, 1628, A motion is made,
that a Member have leave to answer a petition preferred
against him in the House of Lords ; but it is refused, and the
Member is ordered not to answer, upon pain of the dis-
pleasure of the House, and expulsion; and the person, who
preferred the petition, is sent for to answer his contempt.
18. On the 10th of February, 1628, It is ordered that a
servant to Sir William Brereton, a Member of the House,
shall have Privilege of Parliament, and the person who
served him with a Subpoena to answer in the Star Chamber,
to be sent for.
* Fourth Register, p. 843.
19. On
CHAP. 3.] End of the Parliament of 1628.
175
19. On the 10th of February, 1628, Mr. Rolle informs
the House, that he had the day before a Subpæna from the
Atlorney General served upon him, to appear in the Star
Chamber ; but that he had in the evening received a letter
from the Attorney General, excusing this by the mistake
of his messenger, and promising to withdraw the information.
The House, without permitting the letter to be read, imme-
diately resolve, “that Mr. Rolle shall have Privilege, and
' that the person who served the Subpæna, shall be sent for
to answer his contempt.'
6
These are the principal Cases, which occur during this
period, of complaints of Subponas, and other processes
being served upon Members, by which they might be with-
drawn from attending their duty in the House. Whoever
will consult the Journals of the House of Commons will
find several other instances of a similar kind, which I have
purposely omitted, as they are little more than a repetition
of some of those which are here inserted : Even many of
these might perhaps have been more properly introduced
under the next general head *, as they are, in substance,
rather complaints of being compelled to plead, than of being
obliged to make a personal appearance; there are, however,
among these, sufficient instances to show, that at this time
the House of Commons had established it to be one of their
undoubted Privileges, that the Members should be at perfect
liberty
me,
* It has been properly suggested to case of jurors and witnesses; or whe-
" that there is some confusion be- ther it is only a notice of trial; especi-
“tween these heads.” It is not always ally in the proceedings of the Star
possible, from the shortness of the Chamber, where, even in civil cases,
entry, to distinguish, whether the sum- the Court exercised a sort of criminal
mons is to attend personally, as in the jurisdiction.
176 From the Accession of James I. to the [CHAP. 3.
liberty to attend the service of the House, and that no call
of an inferior nature, or obedience to the summons of an
inferior Court, should be permitted to interfere with this,
their first, their principal and most important duty.
6
(4.) The next general head, is that of prosecuting of suits
at law against Members, or their servants.--I have observed
before, that except in the instance of the 21st of February,
1588, (N° 45.) I have not hitherto met with any complaint
in the Journals of a breach of this Privilege: But from the
commencement of the reign of James I. they became very
frequent, upon this principle, That, during the attendance
of Members in Parliament, it was impossible for them
to go down to the Assizes, or to the other Courts of Law,
'. to defend those suits ; besides, that it was inconvenient that
their attention, from the more weighty business of the Public
• for which they were summoned, should be distracted by
• avocations of a private and less important nature.'- As the
law had provided no remedy for this inconvenience but a
Writ of Supersedeas, the House of Commons in many in-
stances order a letter to be issued under the Speaker's hand
for stay of trial : what reception these letters met with, and
the progress of this claim of Privilege, will be seen from the
following Cases,
1. On the 19th of March, 1605, Mr. Speaker moveth the
House, that Sir Thomas Strickland, having a cause at trial
at York Assizes, may be privileged in stay of the said trial :
This is assented to by the House, and a letter is ordered to
be written by Mr. Speaker to Mr. Baron Savill.
2. On
CHAP.3.] End of the Parliament of 1628.
177
2. On the 2d of February, 1606, in a cause depending
in the Court of Wards and Liveries, in which a Servant of
the Speaker's was interested as Assignee of the Ward, the
Speaker writes a letter, and this during an adjournment, to
the Surveyor of the Court : that his servant, being his
· Clerk, and a necessary and daily attendant, should be
excused from being compelled from being joined in com-
mission with the Plaintiff, his Privilege being now as
• warrantable as in the time of sitting*.'
©
6
as
3. On the 26th, 27th, and 28th of February, 1606, are
several letters from the Speaker to the Justices of Assize,
for the stay of trials in which Members were interested,
« in other the like Cases hath been usual.'--And, as the
Speaker expresses it, ' fearing lest the cause might receive
some prejudice by the absence of the Member, or with-
• draw his attendance from this great service, which is the
· principal care of his Majesty and the House to prevent;'
a general authority is therefore, on the 27th, given to the
Speaker to write these letters for stay of proceeding against
any
Member that would require it.
4. On the 13th of May, 1607, the House was informed,
that a Member of the House stood outlawed at the suit of
one Palmer; and that Allen, the Attorney in the suit, did
threaten to proceed to trial : The Plaintiff and Attorney are
both ordered to be brought to the Bar by the Serjeant.
5. On the 13th of May, 1607, upon information of an
attachment being served upon the person of a Member, the
Speaker
* It appears from the Journals, that 18th of December, to the 10th of
the House had adjourned from the February.
Vol. I.
AA
178 From the Accession of James I. to the [CHAP. 3.
Speaker writes to the Plaintiff's Allorney, directing him to
foresee, “that no farther process issue against the Meniber:
And, on the 6th of June, the person who served the Writ,
and the Plaintiff, are sent for by the Serjeant, “as is usual in
< such Cases.'
6. On the 20th of May, 1607, the Speaker writes a letter,
during an adjournment, to the Lord President and Council at
York, for stay of the proceeding of a cause depending before
them, in which the tenants of a Member are defendants.
7. On the 10th of June, 1607, a letter is ordered to be
written by Mr. Speaker to the Barons of the Exchequer, “in
• form as hath been accustomed in like Cases,' for stay of a
trial, in which a Member was defendant : On the 13th, the
Plaintiff complains of the hardship he suffers by this delay,
and prays by petition, that there may be no further stay of
proceeding; but the petition being read, and understood, the
former order of the House was notwithstanding affirmed.-
This, and the letter in the Case of Sir Richard Pawlett, on
the 4th of May, 1607, are the first instances of letters written
to any of the superior Law Courts of Westminster Hall; the
former being to Justices of Assize, or to inferior Courts. It
appears from a complaint inade by Sir Robert Johnson, on
the 4th of July, that the Plaintiff, Sir Robert Brett, finding
he could get no redress by course of law, had employed force,
and had entered upon the house and goods in question, and
kept possession by force and violence; but, says the Journal,
• No order ensued upon this; and upon that day the Par-
liament was prorogued.
8. On
CHAP. 3.] End of the Parliament of 1628.
179
8. On the 16th of June, 1607, on complaint of a Writ
issued in the Court of Common Pleas, for levying issues against
a Member for default of appearance; it is ordered, “That if
" the issues are not discharged before the next night, the
parties delinquent, that is, the Attorney, the Solicitor, and
' the Under Sheriff, shall be brought in by the Serjeant, to
answer their contempt.'
6
9. On the 26th of April, 1610, are several orders for stay of
trial, and one of them in the Court of King's Bench.
10. To prevent these repeated and almost daily applications
to the House, on the 17th of February, 1620, a general order
is made, “ That where any Member hath cause of Privilege,
to stay any trial, a letter shall issue under Mr. Speaker's
hand, for stay thereof, without further motion in the House.'
-On the 1st of March, a motion is made about the form of
these letters, and the Committee of Privileges are directed to
view precedents, and to consider of the course and manner of
writing and entering them : On the 3d of March, Sir George
Moore reports from the Committee, that they have found se-
veral precedents, in the King's time, of these letters, and that
they are recorded in the Journal Book: This course of writing
letters to the Justices of Assize is ordered to be continued, and,
if required, a Warrant for inhibition to the party. It should
seem by this report from the Committee of Privileges, that
the practice of writing letters for the stay of trials took its
rise after the accession of James I.
11. This general order related only to letters to Justices of
Assize; for in the same Session, on the 1st of June, 1621, a
AA 2
letter,
180 From the Accession of James I. to the [CHAP. 3.
letter is ordered to be written by Mr. Speaker to the Court
of the Duchy, for stay of a suit concerning Sir Francis
Popham's inheritance.
12. Although it was intended to adjourn from June to
November, instead of a prorogation, in order that some very
important Bills, Enquiries, and Prosecutions, in which the
Commons were at this time engaged, might not be inter-
rupted; and though, by so long an adjournment, every
argument, that had been employed for the establishment of
this Privilege of staying suits against Members, or their
servants, was taken away ; yet we see from the Journal of
the 1st of June, 1621, and from the printed debates of this
Session, that it was the opinion and advice of Sir Edward
Coke, Mr. Noy, Mr. Hakewill, and others, very respectable
Members of this House of Commons, ó that during this ad-
· journment, no suits against Members, or their servants,
• should be proceeded in, in any Court of Law*; and if
they were, that a letter should issue under the Speaker's
hand, for the party's relief therein, as if the Parliament
was sitting; and the party refusing to obey it, to be cen-
sured at the next access :' And an order was made accord-
ingly, and probably executed, though the adjournment was
for above five months, from the 4th of June, to the 14th of
November.—This certainly appears to have been a very
extraordinary extension of this claim of Privilege. We have
seen, ,
C
6
C
* Upon the 2d of June, 1621, the resolve, “ That they do know, that the
Lords consulted the Judges upon this “ Privileges of themselves, their ser-
question; and they having answered « vants, and followers, do continue not-
on the 4th of June, that they could not “ withstanding the adjournment of the
satisfy their Lordships of any Prece- “ Parliament; and they order and ad-
cents of the continuance of their Pri- 'judge the same to be observed in all
vileges during all the time of the long points accordingly.'
cessation; The Lords notwithstanding
CHAP. 3.] End of the Parliament of 1628.
181
seen, that the claim itself began since the commencement
of this Reign ; or at least, that the power of staying suits,
by a letter from the Speaker, had never been exercised before
the accession of James I. The reasons given in these letters,
" that the Member might not be withdrawn in his attendance
from the service of the House,' did not apply in an ad-
journment of five months, and must have been productive
of great inconveniencies to the suitors of the several Courts.
—The order which was made upon this occasion, and which
appears to have been dictated by Sir Edward Coke, is worth
remarking, from its comprehending every sort of Privilege,
to which a Member of the House of Commons was at this
time thought to be entitled *. -As it was intended that this
adjournment of the Parliament should be by the King's
commission, doubts arose, whether this circumstance made
any alteration in the state of Committees and other business,
from what the usual adjournment of the House by itself
would have done. The King had proposed to the Lords to
take the opinion of the Judges upon this point, and several
messages and conferences passed between the two Houses
upon this subject : in one of these debates, Mr. Alford says,
• Heretofore the judges have been very wary, and would not
6 meddle to deliver their opinion of what belongeth to the
jurisdiction of a Parliament; I would have them warned
• of it; for it were dangerous for the state and liberty of the
subject, if the Parliament should stand on the opinion of
6 the
* Though this order is inserted be-
fore, page 163, I have repeated it here:
(That in case of any arrest, or any
distress of goods, serving any pro-
cess, summoning his land, citation or
' summoning his person, arresting his
person, suing him in any court, or
'breaking any other Privilege of this
House; a letter shall issue under Mr.
Speaker's hand, for the party's relief
" therein, as if the Parliament was
sitting; and the party refusing to
obey it to be censured at the next
6 access.
6
182 From the Accession of James I. to the [CHAP. 3.
6
' the Judges; it is usual that the Parliament hath judged
' the actions of the Judges, but never, that the judges have
6 meddled with the state or business of a Parliament : I de-
• sire therefore, that they may have a warning, how they
censure, or deliver their opinion of the Privileges of Par-
• liament. When the commission is brought down from the
Lords, by the Chief Baron and several of the Judges, the
Commons decline to have it read; but at the same time,
taking notice of the commission, and of his Majesty's plea-
sure, signified to them by the Judges, that all Committees,
' and other Parliamentary business, should rest in the same
state, till the next meeting ;' the House resolves to adjourn
itself accordingly; and then, Sir Edward Coke standing up *,
with tears in his eyes, recited the Collect for the King and
his children, and desired the House to say after him ; adding
only to it, “ and defend them from their cruel enemies :
And then the Speaker adjourned the House, saying,
- This
“ House doth adjourn itself till the 14th of November
66 next *."
6
13. I do not find any general order made at the beginning
of the Parliament of 1623; but on the 27th of February, in
the second | Journal of this Session (which is, in many
instances, more complete than the first) a motion is made to
stay a trial, in the behalf of Sir John Eliot, and a Warrant
is ordered to go out. Indeed there are few Cases upon this
head
* This venerable old patriot was at # There are two separate Journals
this time upwards of seventy years of preserved of this Session ; which are
age.
both in the first volume of the printed
+ See the Journal of the 4th of June, Journals.
1621, and the second volume of the
printed debates of this Parliament.
CHAP. 3.] End of the Parliament of 1628.
183
head in the course of this Session: The House of Commons
were engaged in business of too great importance, to attend
to matters of an inferior nature; they were pulling down those
enormous grievances to the subject, patents and monopolies;
and were employed in attacking the exorbitant increase of
power in the King and his Favourites, by the impeachment
of Lord Middlesex, Lord High Treasurer; a work, as appears
from the sixth volume of the Parliamentary History, of con-
siderable length and difficulty.
14. On the 5th of July, 1625, Mr. Speaker is ordered to
write a letter for stay of a suit in the Star Chamber; and the
contempt is referred to the Committee of Privileges.-Sir Ed-
ward Coke says, that in the seventeenth year of Edward IV.
· informations by the Attorney General, in the King's own
name, were stayed by order here. The only Case that hap-
pened, in that Parliament, to which Sir Edward Coke could
allude, is Atwyll's Case*, where the proceedings were not
stayed by an order of the House of Commons, but reversed
by Act of Parliament.
6
15. On the 17th of February, 1625, Sir Robert Howard,
during Privilege of Parliament, was excommunicated for not
taking the oath ex officio: This matter is referred to the exa-
mination of a select Committee, and on the 21st of March,
Mr. Selden reports the proceedings of the High Commission
Court, from whence the process issued; the only doubt was
whether, on account of the adjournment, this process had
issued in the time of Privilege: It is resolved, nem. con. “ that
6 he
* See before, page 48, Nº 17.
184 From the Accession of James I. to the [CHAP. 3.
he ought to have had Privilege*,' and on the 10th of June,
Sir George Moore informs the House, that he was present
• at an High Commission Court, where seven Bishops were
present, and knoweth, that all the proceedings against Sir
· Robert Howard, from the 1st of February, in the twenty-
• second year of Jac. I. were frustrated and made void;' and
Sir Harry Martin affirmed, that the order of the House was
there read and allowed, and all ordered to be there done
accordingly.'-In the debate upon this question, Mr. Selden
says • it is clear that breach of Privilege in one Parliament,
may be punished in another succeeding.'-The Case of
Bogo de Clare, and the Writs of Supersedeas, are cited by
Mr. Noy, in his argument for the Privilege of Sir Robert
Howardt. Mr. Selden mentions the Case of the Countess of
Warren, which I have referred to before:$, with Prynn's very
judicious observations upon it.
16. On the 25th of February, 1625, Sir Harry Martin hath
Privilege in a suit between him and the Bishop of Oxford: A
letter is ordered to issue under the Speaker's hand, to the Lord
Keeper, to stay the hearing and proceeding; and a select
Committee is appointed to consider of the contempt, and
what course is to be taken.
17. In the fourth Register, p. 810, Prynn reports the Case
of Hodges and Moore, in the first year of Charles I. as follows:
• Moore, having the Privilege of Parliament, procures the
Speaker, Sir H. Finch, to write his letter, in the name of
6 the
* See the further proceedings in
+ See these Cases before, pages 3
this Case, in the Journal of the 29th and 6, and N° 2 and 3.
of April, and 3d of May.
I See the Note, p. 6.
chap. 3.] End of the Parliament of 1628. 185
6
· Seal, per
6
" the Parliament, to the Court of King's Bench, to stay judg-
ment: The Court was greatly offended at this, and would
· have returned a sharp answer to the Parliament, if it had
' not been dissolved ; because it is against the oaths of the
Judges to stay judgment, nec per Grand Seal, nec per Petit
le statute ; but the way in such case is to procure
a Supersedeas, which is a special Writ appointed in these
cases: and this is to be allowed, being the legal course: But
" the letter is not to be regarded.'--And in another report of
this case, the effect of this letter was disallowed by the whole
Court; and the Court said, the defendant ought to have
brought a Writ of Privilege; and when Thorpe, who was
· Speaker, had a Supersedeas for all actions, this was bad;
- for he ought to have had a particular Supersedeas for each
action: And the Parliament hath Privilege for the person,
6 but not for the proceedings by any letter. Lord Chief
Justice Crewe (who had been himself Speaker) said, “ Que
- il voet estoyer sur le Justice del Court: Et si, come ils
66 estoyent sur lour Priviledges, issint nous voylomus ; en
«« ascun Cases poent ils restreyn le Counsel del party, ou le
party luy mesmes, mes nemy le Court; que n’est lye de
“ prender notice sans special breve; mes les partyes queux
prosecute sont en danger.” This Case is reported in Latch* ,
and in Noy there is a very short note of itt. It appears upon
the Journals of the 20th of May, 1626; and it is referred to
the select Committee, to whom Sir Robert Howard's Case
had been referred. This Committee make no report, and the
Parliament is dissolved upon the 15th of June. If the Judges
had continued of the same mind, which the reporter, Latch,
says they were, “ lo have written a sharp answer to the Par-
“ liament;"
66
66
ť Page 83.
* Pages 15, 48, and 150.
Vol. I.
BB
1
186 From the Accession of James I. to the [CHAP. 3.
“ liament;" it is probable that that House of Commons,
which had compelled the High Commission Court “to vacate
“ and annihilate” all their proceedings against Sir Robert
Howard, when in breach of their Privilege, (proceedings sub-
scribed by the Lord Archbishop of Canterbury, Lord Keeper,
Lord President, Lord Lincoln, and several others,) would not
have quietly acquiesced in this disobedience of the Court of
King's Bench to an order, which, from the beginning of the
century, had been sent to all the Courts of Westminster Hall,
and, as far as appears, had been always attended to.
18. The Case of Sir Thomas Hubbeck, cited in the fourth
Register, p. 845, can be no other than that in the Journal of
Sir J. Hotham, of the 13th of June, 1628. This Parliament
sat on, with a prorogation intervening, till the March follow-
ing, and there is no complaint of the Speaker's letter being
disobeyed.
19. On the 29th of January, 1628, Mr. Speaker is ordered
to write a letter to the Court of Chancery, for the suppressing
of depositions taken in a cause between Sir Henry Bagot and
Sir Edward Littelton, by virtue of a commission executed the
first day of the Session.
There is no occasion to repeat what was said at the conclu-
sion of the former head, that these are the principal, but a
very small part in number, of the Cases which are to be found
in the Journals upon this subject: It is observable that, during
this period, there is not a single instance of a Writ of Super-
sedeas being applied for, or issued by Warrant from the
Speaker ; though this would have been absolutely necessary,
if the Courts of Law had always held. the language of Sir
Randolph
CHAP. 3.]
End of the Parliament of 1628.
187
Randolph Crewe, in the Case of Hodges and Moore. The
House of Commons were satisfied with having introduced a
more summary method of staying the proceedings, by the
terrors of their own authority, and having thereby shaken off
all dependance upon the Courts of Law, for their issuing or
obeying the Writ of Supersedeas.
(5.) The next general head, is the taking the goods or effects
of a Member, in execution, or otherwise.
I have already stated at large the Case of the Master of the
Temple, (N° 1.) that of the Prior of Malton, (N° 5.) and
Atwyll's Case (N° 17.) * in the latter of which, the claim of
the Commons not to be attached in their goods,' seems by the
King's answer to be admitted. From this time, viz. from the
year 1477, to the Reign of James I. I find no claim of this
sort made, nor any complaint in the Journals, or elsewhere, of
this Privilege being infringed. This is the more remarkable,
as the claim of securing their necessary goods and chattels
seems to be a very reasonable one, and was probably never
laid aside; and yet it is difficult to suppose, that no Case
occurred in a period of one hundred and thirty years, in which
this Privilege could be brought in question: I would there-
fore by no means be understood to assert, that no such instance
exists; but only that, in the opportunities I have had of con-
sulting the Journals, and other Parliamentary Records, I do
not find any, but the three Cases just mentioned, prior to the
Reign of James I.
1. On the 24th of March, 1603, a cloak is taken from a
Member's servant, and left at a Tavern in lieu of payment;
the
* See these Cases in the first Chapter of this Volume,
B B 2
188 From the Accession of James I. to the [CHAP. 3.
the Vintner and his servant, who kept the cloak by force from
the owner, are committed to the Serjeant, and on the 5th of
April are discharged.
2. On the 26th of February, 1606, the Speaker writes a
letter to the Sheriff of Hampshire, on his having caused a
seizure to be made of the goods of Sir William Kingswell,
a Member; these goods, being seized in the country, could not
be brought within the words of the claim, in Atwyll's Case,
• of goods and chattels necessary to be had with him ;' and
therefore the Speaker in this letter lays down the rule more at
large, “ That the Privilege of Parliament, during the time of
service there (haply not so well known to yourself) reacheth
as well to the goods, as person of every Member attendant
* for the time; I am therefore to advise and require you, that
you forthwith procure the restitution of the said goods, ac-
cording to the said Privilege, lest that question and danger
grow upon it, which I would be loth you should undergo.
'
By the expression, “ haply not so well known to yourself,' it
should seem, that this claim had not been frequently made,
or to this extent; or it is difficult to imagine that the Sheriff
of a neighbouring County, making a distress or taking goods
in execution, would have been ignorant of it: it is probable
the Sheriff, Sir William Oglander, took the Speaker's advice,
as the Session continued till July, and we hear no more of
this matter.
6
3. On the 12th of March, 1606, a Member's horse being
taken away for the use of the post; the post-master, and the
servant who took the horse, are ordered to be brought to the
Bar by the Serjeant the next day: They are brought accord-
ingly, and the servant is, for his contempt, committed to the
Serjeant,
CHAP. 3.] End of the Parliament of 1628. 189
Serjeant, during pleasure. On the 23d of March he is set at
liberty; though at this time the Speaker was detained by
sickness, for several days, from attending the service of the
House*.
4. On the 14th of May, 1628, a servant of a Member has
Privilege for his goods, distrained by Sir Nicholas Row, and
a Warrant for those which distrained them.
5. On the 22d of January, 1628, Mr. Rolle complains of his
goods being seized by an officer of the customs for dues; and
this complaint is immediately referred to the consideration of a
select Committee f.-The substance of this Case was, that these
goods were seized by the customers, or those who had a lease of
the customs, to a considerable amount; and belonging to Mr.
Rolle, for refusing to pay the duties of tonnage and poundage,
which the Commons had not yet granted to the King; but
which the King, as appears from his Warrant, in the eighth
volume of the Parliamentary History, p. 311, had directed to
be levied by his own authority. The Commons seem to have
wished not to bring the King's authority into dispute, but to
suppose
* The entries in the Journals for se- personal indisposition, or any other
veral days begin, Absente Prolocutore. cause, no measure has yet been adopted
-But it appears that very little busi- for the appointment of a Speaker pro
ness was done, except the appointing a tempore.
Committee to consider of such prece- + In the eighth volume of the Par-
dents, as could be found, for the pro- liamentary History, pp. 247 and 254,
ceeding of the House in the absence of set subseq. there is an account of this
the Speaker; this Committee make no transaction, published from a Book,
report, as the Speaker returns the next collected by Sir Thomas Crewe, and
day. It is remarkable, that notwith which the Compilers of that History
standing the inconveniency which say
is fuller than what is in Rushworth,
must attend the public business, in the Vol. I. p. 642, et subs.
necessary absence of the Speaker, from
190 From the Accession of James I. to the [CHAP. 3.
6
suppose the customers to have made this seizure, by virtue of
their lease, without any Warrant from the Crown; and that the
resentment of the House should be directed only against those
officers, for this violation of their Privileges: But the King, with
his usual imprudence, sends a message on the 23d of February,
by Mr. Secretary Cook, in which he avows, 'that what had
'been done was in obedience to his special order in council ;
and that it concerned his Majesty, in high degree of justice
- and honour, that truth be not concealed; and therefore he
would not have the act of the customers divided from his
. act.' Notwithstanding this message, the House of Commons,
upon the report from the grand Committee upon this violation
of their Privileges, resolve, (1.) That every Member of this
House is, during the time of Privilege of Parliament, to have
Privilege for his goods and estate; (2.) That the 30th of Octo-
ber last was within the Privilege of Parliament*; and (3.)
That Mr. Rolle ought to have Privilege for his goods seized
the 30th of October last, the 5th of January last, or at any
time sincet":
(6.) The
6
6
* The Parliament had been prorogued - very beginning of the Parliament held
from the 26th of June, to the 20th of . in November, 1640, when I vainly
October, and then further prorogued to thought myself a courtly young Gen-
the 20th of January.
tleman; (for we Courtiers valued our-
+ It was during this Session, in 1628, 'selves much upon our good clothes).
though not upon this question, but on I came one morning into the House
the subject of Religion, that Oliver well clad, and perceived a Gentleman
Cromwell first appears to have taken speaking (whoin I knew not) very or-
part in the debates. Rushworth, in the dinarily apparelled, for it was a plain
1st Vol. p. 655, has given us the sub- cloth suit, which seemed to have been
stance of the first speech, supposed to • made by an ill country taylor; his
be made by this very extraordinary per- linen was plain, and not very clean;
son. The following extract from Sir and I remember a speck or two of
Philip Warwick's Memoirs, p. 247, is · blood upon his little band, which was
very curious. The first time that ever • not much larger than his collar; his
' I took notice of Cromwell, was in the 'hat was without a hat-band; his
• stature
6
CHAP. 3.] End of the Parliament of 1628.
191
(6.) The sixth and last general head of Cases of privilege,
within this period, is the assaulting or insulting a Member, or
his servant, or traducing his character.
I have
G
C
6
6
stature was of a good size, his sword bishop said, “ That Cromwell, taken
stuck close to his side, his counte- “into the rebels army by his cousin
nance swoln and reddish, his voice “ Hampden, is the most dangerous
sharp and untunable, and his elo- enemy your Majesty has; for though
quence full of fervor.Yet I lived to “he is, at this time, of mean rank and
see this very Gentleman, by multi- use amongst them, yet he will climb
plied, and good successes, and by real higher. I knew him at Bugden, but
(but usurpt) power, (having had a bet- never knew his religion.--He was
ter taylor, and more converse among " then a cominon spokesman for sec-
good company) in my own eye appear “ taries; and maintained their post with
of a great and majestic deportment, " stubbornness. He never discoursed,
' and comely presence.'— And in Bul- as if he were pleased with your
Ma-
strode's Memoirs, p. 192.-This con- jesty and your great officers; and
* ference puts me in mind of what Mr. - indeed he loves none that are more
· Hampden said to the Lord Digby, in “than his equals.-—Your Majesty did
' the beginning of the war. As they “ him but justice, in repulsing a peti-
were going down the Parliament "tion put up by him, against Sir
stairs, Cromwell going just before “ Thomas Steward of the Isle of Ely;
" them, the Lord Digby (who was then “ but he takes all those for his enemies,
a great man in the House of Com- " that would not let him undo his best
' mons) asked Hampden, Who that “ friend; and above all that live, I
man was? for I see, saith the Lord " think he is the most mindful of an
Digby, he is of our side, by his speak- injury.-His fortunes are broken,
ing so warınly this day. Upon which " that it is impossible for him to subsist,
• Mr. Hampden replied, That slovenly
“ much less to be what he aspires to,
fellow which you see before us, if we “ but by your Majesty's bounty, or by
( should ever come to have a breach " the ruin of us all, and a common con-
' with the King, (which God forbid) I “ fusion.-In short, every beast hath
say that sloven, in such case, will be some evil properties; but Cromwell
one of the greatest men of England- “ hath the properties of all evil beasts.
( which was a prophetical speech. But " —My humble motion to your Ma-
Hampden knew him well, and was jesty therefore is, That either you
intimately acquainted with him.'- “ would win him to you by promises of
Some years after this, about December, “ fair treatment, or catch him by some.
1644, Charles I. sent for Archbishop stratagem; and then cut him short.”
Williams to Oxford, to take his opinion All which the King received with a
upon the situation of his affairs at that smile, and said nothing.
time; in the course of their conversa- Philips's Life of Archbp. Williams,
tion, speaking of Cromwell, the Arch- · p. 290.
The
6
6
6
6
.
192 From the Accession of James I. to the [Chap. 3.
I have taken notice before of such instances as occurred
prior to the Reign of James I. of this breach of Privilege,
and
+
The following description of Crom- necessary to the design; even his
well by John Maidstone, who was a roughness and unpolishedness, which,
Member of one of his Parliaments, is in the beginning of the Parliament,
also curious.--" Before I pass further, he affected, contrary to the smoothness
“ pardon me in troubling you with the and complacency which his cousin and
“ character of his person ; which, by bosom friend Mr. Hampden practised
reason of
my nearness to him, I had
towards all men, was necessary ;
and
opportunity well to observe. His his first public declaration, in the be-
“body was well compact and strong; ginning of the war, to his troop when
“his stature under six foot (I believe it was first mustered “ that he would
« about two inches); his head so “not deceive or cozen them by the
"shaped, as you might see it a store- “ perplexed and involved expressions
“ house, and shop both, of a vast trea- “ in his commission to fight for King
“sury of natural parts. His temper " and Parliament;" and therefore told
" exceedingly fiery, as I have known; them, “ That if the King chanced to
" but the flame of it kept down for the “ be in the body of the eneiny, that he
“ most part, or soon allayed with those “ was to charge, he would as soon dis-
v moral endowments he had.He was charge his pistol upon him, as any
“naturally compassionate towards ob- “ other private person; and if their
“jects in distress, even to an effemi- “ conscience would not permit them
“ nate measure; though God had made “ to do the like, he advised them not
“ him a heart, wherein was left little “ to list themselves in his troop or un-
room for any fear, but what was due “ der his command," which was gene-
“ to himself, of which there was a large rally looked upon as imprudent and
proportion; yet did he exceed in malicious; and might, by the profes-
" tenderness towards sufferers. A sions the Parliament then made, have
“ larger soul, I think, hath seldom proved dangerous to him; yet served
« dwelt in a house of clay, than his his turn; and severed from others, and
united among themselves, all the furi-
Lett. in the App. to 1st Vol. ous and incensed men against the go-
Thurloe's St. Pap. p.766. vernment, whether ecclesiastical or
civil, to look upon him as a man for
Lord Clarendon, who had been wit- their turn; upon whom they might
ness of his whole political course, de- depend, as one that would go through
scribes him thus, “ Cromwell, though his work that he undertook. And his
the greatest dissembler living, always strict and unsociable humour, in 'not
inade his hypocrisy of singular use keeping company with the other of-
and benefit to himself; and never did ficers of the army in their jollities and
any thing, however ungracious or im- excesses, to which most of the superior
prudent it seeined to be, but what was officers under the Earl of Essex were
inclined,
up was."
CHAP. 3.] End of the Parliament of 1628. 193
and of the measures taken by the House of Commons to
punish them.
1. On the 19th of March, 1603, Complaint is made of
Bryan Tash, a Yeoman of his Majesty's guard, who, on the
House of Commons going into the House of Lords, stopt Sir
Herbert Croft, and shut the door upon him, saying, “Good-
man Burgess, you come not here:' Some debate arose how
the
inclined, and by which he often made " the Civil, than by the Ecclesiastical
himself ridiculous and contemptible, power; and therefore, that the change
drew all those of the like sour or re- " of one would give them little ease if
served natures to his society and con- “ there were not as great an alteration
versation; and gave him opportunity ' in the other; and if the whole go-
to form their understandings, inclina- “ vernment in both were not reformed
tions, and resolutions, to his own model. " and altered,” which, though it made
By this he grew to have a wonderful him generally odious at first, and irre-
interest in the common soldiers; out conciled many of his old friends to him,
of which, as his authority increased, yet it made those who remained more
he made all his officers well instructed cordial and firm ; he could better com-
how to live in the same manner with pute his own strength, and upon whom
their soldiers, that they might be able he might depend.—This discovery
to apply them to their own purposes. made him contrive the new model of
Whilst he looked upon the Presby- the army; which was the most unpo-
terian humour as the best incentive to pular act, and disobliged all those who
rebellion, no man more a Presbyterian; first contrived the rebellion, and who
he sung all psalmns with them to their
were the very soul of it; and yet, if
tunes, and loved the longest Sermons, he had not brought that to pass, and
as much as they; but, when he disco- changed a General, (who, though not
yered, that they would prescribe some very sharp-sighted, but would never
limits and bounds to their rebellion; be governed, nor applied to any thing
that it was not well breathed, and would he did not like,) for another who had no
expire, as soon as some particulars eyes, and so would be willing to be
were granted to them in religion, which led, all his designs must have come to
he cared not for, and that then the go- nothing, and he remained a private
yernment must run still in the same colonel of horse, not considerable
channel, it concerned him to make it enough to be in any figure upon an
believed, “ that the state had been advantageous composition."
“ more delinquent than the church;
Hist. of the Reb. Vol. III.
" and that the people suffered more by
p. 84, Book the 10th.
VOL. I.
Сс
194 From the Accession of James I. to the [CHAP. 3.
the House ought to proceed ; but on the 22d, he is com-
mitted to the Serjeant, and on the 23d, he is brought in
custody to the Bar, and on his submission and confession of
his default, is discharged with a warning from the Speaker,
paying his fees.
2. On the 26th of April, 1604, Mr. James, of Bristol,
complains of some contemptuous expressions used of himself
by Sir Richard Browne: The next day, he produces a witness
at the Bar, in support of this complaint; but the words
were construed to be of small weight, and therefore pardoned
by the House.
3. On the 16th of June, 1604, Complaint is made of one
Rogers, for abusing Sir John Savill in slanderous and un-
seemly terms, upon his proceeding as a Committee, in the
Bill touching tanners and curriers : Rogers is ordered to be
brought by the Serjeant to the Bar on Monday next, but
probably was not to be found, as there does not appear any
further entry in the Journal, during this Session.
4. On the 12th of February, 1620, Mr. Lovell complains,
that one Dayrell had threatened his person: He is ordered to
be sent for by the Serjeant; the same day he is brought to
the Bar, but denying that he spake the words charged upon
him, he is ordered to attend again the next day with his
witnesses; he accordingly attends on the 13th ; but one of his
witnesses being a woman, Mr. Crewe and Sir Edward Coke
oppose her being called in to be examined ; very gravely
objecting, on the authority of St. Bernard, “That a woman
ought not to speak in the congregation.' A Committee
G
is
CHAP: 3.] End of the Parliament of 1628. 195
is therefore appointed to go out, and examine her at the
door ; and Sir Edward Gyles reports the examination, and
Dayrell is ordered to be committed to the Serjeant, and then
to come and acknowledge his fault; which if he does not do,
then to be committed to the Tower.
5. On the 15th of March, 1620, Complaint is made that
one Bryers, a Register, had affronted and threatened Sir
Richard Gifford : He is ordered immediately to be sent for
by the Serjeant.
6. On the 28th of April, 1626, Mr. Crooke complains, that
Sir Thomas Horwood reviled him, saying, “ That he came to be
a Member of this house by bribery and corruption.' Sir
Thomas Horwood is ordered to be sent for to answer the said
words.
6
7. On the 14th of April, 1628, information is given, that
a Lord, viz. the Earl of Suffolk, had said, “That a gentleman
• of this house (innuendo Mr. Selden) deserved to be hanged
· for rasing a record,' with some other speeches to the like
purpose. Sir John Strangways acquainted the house, that
he was present when Lord Suffolk used these expressions ;
upon which, Sir Robert Phelips is ordered to go up with a
message to the Lords to desire Justice from the Lords against
the Earl of Suffolk, for the wrong done to the House of
· Commons in general, and to a member thereof, Mr. Selden,
' in particular, employed in their service: The inessage, as
delivered by Sir Robert Phelips, is in the Lords Journal of
this day; and the messengers being withdrawn, "The Earl
• of Suffolk protests upon his honour, and upon his soul,
6 that
cc 2
196 From the Accession of James I. to the [CHAP. 3.
6
6
* that he never spake those words to Sir John Strangways.'
Upon this denial, the House of Commons appoint a select
Committee to consider of the words, and to make further
inquiry into the proofs : On the 15th, · Sir John Strangways
publicly avows the words, and that the Earl of Suffolk
spake them positively ; Sir William Owen also informs the
· House, that Sir Christopher Nevill yesterday told him, that
· he also heard Lord Suffolk speak the words charged upon
· him.'-On the 17th, Sir John Eliot reports from the Com-
mittee the evidence that had come out before them, and their
resolutions, to which the House agree; · That the Earl of
· Suffolk, notwithstanding his denial, has laid a most unjust
and scandalous imputation upon the House; that they are
fully satisfied, that Sir John Strangways hath affirmed
nothing but what is most certain and true; and that these
particulars shall be again presented to the Lords, and the
• Lords be desired to proceed in justice against the Earl of
Suffolk, and to inflict such punishment upon him, as so
high an offence against the House of Commons doth de-
serve.' It appears from the Lords Journals, that when Sir
John Eliot delivered this message, he referred to several
Lords who were present at the conversation, “and who, the
• Commons had cause to believe, could justify the same.
The House of Lords promise to take this message into consi-
deration, and to return an answer, in due time, by messengers
of their own; but I do not find that any thing further was
ever done upon this matter.
6
6
I have now gone through the several heads, under which I
had classed the Cases of Privilege, from the accession of
James I. to the end of the Parliament of 1628 ; but there
are
CHAP...]
197
End of the Parliament of 1628.
are still to be found, in the Journals of the House of Com-
mons, some other instances, as well in this as in the former
periods, which having omitted to insert in their proper place
in the course of this Work, I shall now give to the Reader,
observing only the order of time in which they occurred *.
* It has been observed, that these as it would have required more trou-
Cases would have been more properly ble, than such an alteration appears to
inserted under the several heads, to deserve, I trust I shall be excused in
which they relate.-It is very true: giving them in the form in which they
but as they occurred after the former appear.
part of the Work was finished; and
( 198 )
CHAP. IV.
ADDITIONAL CASES BETWEEN THE YEAR 1549
AND THE YEAR 1628.
I
1. O N the 5th of November, 1549, it is ordered, that
Mr. Hare, and several other Members, shall excuse
the appearance of Mr. Palmer, Burgess, before the Justices
of the Common Pleas, returned in attaint.
2. On the 18th of February, 1557, Mr. Marsh, one of the
Burgesses of London, complained that Mr. Wylde, Burgess
of Worcester, had slandered him to the drapers of London:
This matter is referred to a Committee for them to examine
and report.
3. On the 15th of April, 1559, Trower, a servant to the
Master of the Rolls, is ordered to attend, to answer to certain
evil words, spoken by him against the House: He attends on
the 17th, and is charged with saying, against the state of the
House, · That if a Bill were brought in for womens wyers
' in their pastes, they would dispute it, and go to the
question ;' for which offence, though he denied the words,
he is committed to the Serjeant's keeping.
6
4. On the 10th of April, 1606, Motion for Privilege, for
one Sayre, servant to the Clerk : On the 3d of May, it is
ordered,
CHAP. 4.7
199
Additional Cases between, &c.
ordered, “That Sayre, servant and bag-bearer to the Clerk,
being arrested the 20th of November last, upon an exe-
cution, be, by order and judgment of the House, dis-
charged*
5. On the 31st of March, 1610, Mr. Craford coming into
the House, and standing awhile, not being a Member, is,
after much debate, admonished by Mr. Speaker for his con-
tempt, kneeling on his knees at the Bar; and then the House,
in favour, was content to remit him.-And on the 5th of
March, 1557, Mr. Perne, affirming that he is returned a
Burgess for Plympton, but having brought no Warrant thereof
to the House, nor being returned hither by the Clerk of the
Crown by Book or Warrant, is awarded to be in the custody
of the Serjeant, till the House have further considered
after
6. On the 17th of May, 1614, Mr. Martin, Counsel for
the Virginia Company, having, in his speech at the Bar,
offended the House by taxing the last Parliament, is ordered
to be brought to the Bar, and reprimanded by the Speaker ;
but “ though the practice of the House required that he
• should receive this judgment upon his knees,' yet from a
regard to his former services in the House, when a Member,
this order is dispensed with, and Mr. Speaker is to charge
him, standing; and the next day, the 18th, the Speaker ac-
cordingly reprimands him standing at the Bar, and he makes
a very humble submission.
7. On
* Note, the Parliament was proro- of February, 1575, 23d of January,
gued from the oth of November, to 1580, and many others.
the 21st of January.
See also the Case of Bukeley, 14th
+ See a similar instance of the 13th of May, 1614.
.
200
[CHAP. 4.
Additional Cases between the
7. On the 25th of May, 1614, there is a complaint of
some words, reflecting on the honour of the House, that had
been used by the Bishop of Lincoln * : Different methods of
proceeding were proposed to have satisfaction for this affront;
but at last it is agreed to appoint a select Committee, to con-
sider of the words, the ground thereof, and the fittest course
''to take by search of precedents, or otherwise. On the
next day, Mr. Hakewill reports the matter, and the words;
and, after much debate upon what had been the practice of
the House in similar Cases, the House resolve to send a mes-
sage to the Lords, and to forbear proceeding in all other
business, save this, till they have an answer from the Lords :
This message, which is carried by Sir Edward Hobby, is in
the Journal of the House of Lords of the 28th of May, to
which the Lords return for answer, “ That they will take the
message into consideration, as the weight thereof requireth ;
• and will have respect both to their own honour, and the
• honour of the House of Commons, and will send an answer,
as soon as conveniently they may, by messengers of their
6 '
own. On the 30th of May, the Lords send a message to
the Commons relative to this matter; to which, on the 31st,
the Commons reply, repeating their former complaint, and
concluding, “That now the Knights, Citizens, and Burgesses,
• of the Commons House, do desire the Lords, if the words
were not spoken, so to signify to that House; otherwise, if
" they were used, then they hope their Lordships will do as
they promised ; lastly, that the Commons know not, what
• other course they could have taken, to bring the matter to
examination, nor otherwise how any undutiful speech which
may
6
6
* See this case again in the 3d
volume of this Work, under title,
“ Proceedings between Lords and
“ Commons, where the Rights and
“ Privileges of either House are
concerned."
CHAP. 4.] Year 1549 and the Year 1628.
201
6
6
may be uttered in this House, or in theirs, can be called
' in question.' Upon this message, the Bishop of Lincoln en-
treated the Lords, that he might be heard to expound himself;
which being granted to him, he did make solemn protestation,
upon his salvation, that he did not speak any thing with evil
' intention to that House; expressing, with many tears, his
sorrow that his words were so misconceived and strained
further than he ever meant:' Upon which submission and
ingenuous behaviour, the Lords are satisfied, “ that however
' the words might sound, the Bishop's intention was not as it
. hath been taken;' and they accordingly assure the Commons,
“ That if they had conceived the Bishop's words to have been
spoken, or meant to cast any aspersion of sedition or unduti-
· fulness upon that House, their Lordships would forthwith
· have proceeded to the censuring and punishing thereof with
all severity. Nevertheless, their Lordships think fit to signify,
• that although they have been careful at this time to give them
• contentment, for the better expediting his Majesty's business;
yet their Lordships are of opinion, that hereafter no Member
' of their House ought to be called in question, when there is
no other ground thereof but public and common fame only.'
Upon this message the Commons were satisfied, and returned
to business *
6
8. On the 27th of April, 1621, Sir Edward Coke reports the
Lady Coppin's petition; that Sir William Cope consented she
might sue him at law: Upon which, it is resolved, “That she
may
* This bishop of Lincoln was the Commons to Charles I. in 1628, was
famous Dr. Richard Neil, who was complained of, together with Bishop
afterwards advanced to the Bisloprics Laud, as being a favourer of Armi-
of Durham and Winchester; and who, nianism.
in the Remonstrance presented by the
VOL. I.
D D
202
[CH AP. 4.
Additional Cases between the
may proceed; and Sir William Cope, by his own consent; to
' have no Privilege of the Parliament. On the 21st of June,
1625, another petition from the same Lady is tendered against
Sir William Cope; and on the 22d, a petition from Sir William
Cope is read, and, by a general voice, rejected.
1
9. On the 21st of November, 1621, one was taken at the
rising of the House, with a pistol charged with three bullets,
who had abused a Member, and called him Knave; and said,
he would kill one of the House before he had done: He is, by
Sir Edward Coke's advice, committed close prisoner to the
Gatehouse, and a Committee is appointed to examine him.
10. On the 14th of April, 1624, one Arnold, master of the
Felt-makers, that came to prefer a Bill to the House, is taken
by a Serjeant, and committed to the Fleet: On the 12th of
May, he petitions the House, and it is ordered, “That the
· Felt-makers, now imprisoned in the Fleet, shall be enlarged,
• and have the Privilege of the House, eundo, redeundo, et
' morando, for the prosecution of their Bill;' and the Com-
mittee of Privileges are to examine whether the former ar-
resting of these men was an impeachment to the Privileges
of the House. On the 28th of May, Mr. Glanville reports,
that the Committee had no time to examine this petition ;
and it is therefore resolved to let it rest in statu quo, till next
Session.
11. On the 11th of April, 1628, “a Book in print, concern-
' ing some proceedings in Parliament:' It is referred to Sir
Edward Coke, and several other Members, to consider whether
this Book is fit to be read in the House; and if it is, then
they
N
CHAI. 4.] Year 1549 and the Year 1628. 203
they are to send for any to inform them, who printed it, and by
what allowance.- I do not find that this Committee made any
report*.
12. On the 22d of April, 1628, one Pemberton, a Brewer,
ordered to attend: On the 25th, the Speaker informs the
House, that he said, he would not come; upon question, to be
presently sent for by the Serjeant; but on the 30th, he is dis-
charged, the words being denied, and not proved.
13. On the 1st of May, 1628, Privilege is granted to Henry
Billingsley, to go abroad with his Keeper, to instruct his
Counsel, and prosecute his petition t.
to go
14. On the 8th of May, 1628, Sir Edward Coke moveth,
that Pecke, being ordered by the Committee of Grievances to
bring in his patent, hath contemned it: The Serjeant is ordered
for Pecke, to bring in his patent, and to answer his con-
tempt;
* Lord Digby having printed his In 1693, Sir John Knight's printed
speech on Lord Strafford's Bill of At- speech was complained of.
tainder, the House of Commons ap- It appears from the case of Rex v.
pointed a Committee to inquire into Lord Abingdon, that a Member of
that subject, who make their report on Parliament printing his own speech is
the 13th July 1641: And the House amenable before the Courts of Law,
resolve, That no Member of this House if it contain libellous matter. So in
shall give a copy, or publish in print, the case of the King v. Creevey, M.P.
any thing that he shall speak here, 1813, Mr. Creevey was convicted, and
without leave of the House; and de- fined 100l.; and 25 June 1813, the
clare, that Lord Digby's speech was House refused to listen to his complaint
untrue, and scandalous to the proceed- against the Court of King's Bench for
ings of this House; and order it to be Breach of Privilege. So on 1 March
burnt.
1693, complaint made with respect to
On 1 April 1679, Sir Francis Win- the House of a printed libel, dispersed
nington, and on 25 April 1679, Lord as a speech made in the House.
Cavendish, printed their speeches, and + See the 24th of June,
were complained of.
DD 2
204
Additional Cases, &c.
[CHAP. 4.
tempt; on the 12th, he petitions, and is discharged, bringing
in the patent, &c.
.
15. On the 21st February, 1628, one Burgess, who had
called some of the Parliament men, · Hell-hounds and Pu-
ritans,' is ordered to be presently sent for by the Serjeant;
and a Warrant likewise to go for the parties that are witnesses
against him.
* On the 29th November 1763, it nor ought to be allowed to obstruct
was resolved, “That Privilege of Par- the ordinary course of the law, in the
liament does not extend to the case of speedy and effectual prosecution of so
writing or publishing Seditious Libels, heinous and dangerous an offence."
CH A P.
( 205 )
CH A P. V.
CONCLUSION.
I
HAVE thus given at large the several Cases, that have
any reference to the Privileges of the Members of the
House of Commons, and their servants, from the earliest times
to the end of the Parliament of 1628, with such observations as
occurred upon them.-We have seen in what manner the
Commons were, at different periods, obliged to make new
claims of Privilege, and to exert new modes of maintaining
and defending those claims, in proportion as the lengthen-
ing the duration of the Session made other avocations incon-
venient and incompatible with their first duty; and as the
increase of their consequence in the state, and their influence
in the management of public affairs, rendered them more
an object of the attention of the Ministers of the Crown.-
The principal view, which the House of Commons seem
always to have had in the several declarations of their
Privileges, was this, of securing to themselves, (1.) their
right of attendance in Parliament, unmolested by threats or
"insults from private persons ; (2.) their thoughts and atten-
* tion undisturbed by any concern for their goods or estate;
(3.) their personal presence in the House, not to be with-
drawn, either by the summons of inferior Courts; by the
“arrest of their bodies in civil causes; or, which was of more
importance,
6
7
206
Conclusion.
[CHAP. 5.
' importance, by commitment by orders from the Crown, for
any supposed offences. Beyond this, they seem never to have
attempted; there is not a single instance of a Member's claim-
ing the Privilege of Parliament, to withdraw himself from the
criminal law of the land*: for offences against the public peace
they always thought themselves amenable to the laws of their
country to: they were contented with being substantially secured
from any violence from the Crown, or its Ministers; but readily
submitted themselves to the judicature of the King's Bench,
the legal Court of criminal jurisdiction; well knowing that
Privilege which is allowed in case of public service for the
· Commonwealth, must not be used for the danger of the Com-
* monwealth ;' or, as it is expressed in Mr. Glynn's Report
of
<
6
* On the 4th of June, 1614, the Lord pointed to prepare heads for a confer-
Chancellor Ellesmere, in a case then ence with the Lords--- To let the Lords
before the House of Lords, declares, understand that the conviction of
“That no Privilege of Parliament doth • divers recusants hath been hindered
-“ protect any man in case of breach ' under pretence of Privilege of Parlia-
“ of the peace.” So on the 7th of Fe- ment from their Lordships; and to
bruary and 8th of June, 1757, on a declare unto their Lordships, that the
complaint against Earl Ferrers, the opinion of this House is, That no
Lords resolve, “That no Peer or Lord · Privilege of Parliament ought to be
“ of Parliament hath Privilege of Peer- " allowed in this case, for these reasons;
age or of Parliament against being (1.) Privilege of Parliament is not to
“ compelled, by process of the courts • be allowed in case of peace, if the
“ in Westminster Hall, to pay obedi- peace be required. (2.) It is not to
"ence to a Writ of Habeas Corpus be allowed against any indictment for
“ directed to him."-In the year 1795, any thing done out of Parliament.
the Earl of Abingdon was committed (3.) It is not to be allowed in case of
to the King's Bench Prison, as part of public service for the Commonwealth,
the punishment inflicted on him, being " for that it must not be used for the
convicted of publishing a libel.
danger of the Commonwealth.'-In
+ See Lord Cochrane's case, 21st the entry of this conference in the
and 22d March 1815, Appendix to Lords Journals of the 18th of August,
this volume, p. 283, Nº 5.
1641, these reasons. are somewhat dif-
S. On the 17th of August, 1641, Mr. ferently expressed. (1.) . That no Pri-
Pym reports from the Committee ap- vilege is allowable in case of the peace
betwixt
6
CHAP. 5.]
Conclusion.
207
6
of the 6th of January, 1641*, They were far from any
endean
'vour to protect any of their Members, who should be, in due
manner, prosecuted according to the Laws of the Realm, and
" the Rights and Privileges of Parliament, for Treason, or any
• other Misdemeanour; being sensible, that it equally imported
them, as well to see justice done against them that are crimi-
nous, as to defend the just Rights and Liberties of the Sub-
jects, and Parliament of England.
6 6
It may be proper to make some pause at this period of the
dissolution of the Parliament of 1628, because the conduct of
Charles I. during the next twelve years, opens a very different
scene. Finding that it was impossible to prevail on any House
of Commons (of which he had tried three in three years) to
comply with his exorbitant ideas of Regal Prerogative, or to
give countenance to the arbitrary measures of his Ministers, he
resolved to get rid of all restraint; and accordingly introduced
such å system of tyranny into every part of the Government,
that the Constitution was entirely destroyed, and lost in the
power of the Crown.-Notwithstanding that he had so lately
given the most solemn assent to the Petition of Right, he now
as publicly violated it in every instance: (1.) By his circular
letters to the Lords Lieutenants of Counties, he exacted loans
and benevolences without pretence of law; and Gentlemen of
fortune and rank in the country were imprisoned for refusing to
contribute: Tonnage and Poundage were taken without the
consent
6
betwixt private men, much less in
case of the peace of the Kingdom. .
(2.) That Privilege cannot be pleaded
' against an indictment for any thing
• done out of Parliament, because all
' indictments are contra pucem Domini
Regis. (3.) Privilege of Parliament
' is granted in regard of the service of
the Commonwealth, and is not to be
I used to the danger of the Common-
wealth.'
* See the second Volume of Com-
mons Journals, p. 374.
208
Conclusion.
[CHAP. 5.
consent of Parliament; and such, as would not submit to pay,
had their goods seized, their persons imprisoned, and heavy
fines imposed upon them. (2.) The rigorous powers of the
Star Chamber were executed with unlimited severity, and the
most trifling offences were punished without mercy. (3.) Sol-
diers were billeted on the houses of private persons; (4.) and
Martial Law executed, attended with the most provoking out-
rages
committed by the soldiers : Add to these, the grievous
imposition of ship-money; the cruelties exercised by the High
Commission Court; the rigorous execution of the forest laws;
and the severe administration of ecclesiastical affairs; together
with the tyrannical oppressions in the government of Scotland;
and of Ireland under that able arch-traitor the Earl of Straf-
and we shall have such a regular and comprehensive
plan of arbitrary government, as was not to be exceeded in the
most despotic states of Europe*. But what rendered all this
most odious and terrible was, that this government' was so
administered under the pretence of law; and the Courts of
Justice were filled with wretches, ready to declare the will
of the Prince to be the law of the land.-Hitherto the people
might have submitted ; but, as Lord Clarendon observes t'
66 when
ford;
6
6
* For proof of these particulars, which have rendered both so obnoxi-
consult Lord Clarendon, Whitelocke, ous to reproach. The damage and
and other contemporary Writers; even 'mischief cannot be expressed, which
those, who were professedly friends to the Crown and State sustained, by the
the
prerogatives of the Crown.
'deserved reproach and infamy that at-
+ Lord Clarendon's History of the • tended the Judges, by being made use
Rebellion, Voì. I. pp. 53 and 54.-T. of in these, and like acts of
power;
which he adds, 'These errors (for errors there being no possibility to preserve
'they were in view, and errors they are 'the dignity, reverence, and estimation
proved by the success) are not to be of the Laws themselves, but by
'imputed to the Court, but to the spirit “the integrity and innocency of the
' and over activity of the Lawyers; who Judges.' See in the ad Vol. of this
should more carefully have preserved Work, the Note towards the end of
• their profession, and its professors, the Observations on the title • King
' from being profaned by those services
opens the Session."
CHAP. 5.]
209
Conclusion.
“s when they saw in a Court of Law (that Law which gave.
“them a title to and possession of all they had) reasons of
“ state urged as elements of law; Judges as sharp sighted
as Secretaries of State, and in the mysteries of State;
judgment of law grounded on matter of fact, of which
“ there was neither inquiry nor proof, the burthen became
66 intolerable.”
66
60
say they,
The Compilers of the Parliamentary History have, with
their usual attachment to Charles I. endeavoured to represent
these twelve years of intermission from Parliament, as the most
halcyon days this nation ever saw. During this period,"
“ this kingdom, and all the King's dominions, en-
“ joyed the greatest calm, and the fullest measure of peace
“s and plenty, that any people, in any age, for so long a time
together, were ever blessed with, to the wonder and envy
“ of all other parts of Christendom : Indeed some little dis-
“ turbances happened in Scotland, in the year 1637, by the
“ introduction of the English liturgy into that kingdom :
• The doctrine of J. Knox had gained so fast a footing there,
“ that all Archbishop Laud's injunctions and admonitions
- could not remove it*."
--
+
Fortunately for this country, that bigoted Minister thought
proper to support his injunctions and admonitions, by the
more prevailing argument of force t; and for that purpose,
in
* Eighth Vol. p. 393.
See particularly the King's letter of
+ See the several Proceedings in the 11th of June to the Marquis of
Scotland upon this subject, in the year Hamilton, p. 752, in which are thèse
1638, with a copy of the covenant, very remarkable
very remarkable expressions: “ When
which was framed and signed at that "I consider, that now not only, my
time, Vol. II. Rushworth's Coll', p.730. “ crown but my reputation for ever lies
"iat
VOL. I.
E
E
210
[c AP. 5.
Conclusion.
in the year 1639, the King marched with an army to the
borders, and encamped within two miles of Berwick *. The
terrors of this force had their effect, and the Scots promised
to be better subjects for the future; but, though this army
was disbanded, there being reason to fear an immediate re-
newal of these insurrections to oppose the tyrannical measures
in religion which Laud was determined to introduce into
Scotland, it was thought necessary to raise another army;
and the Exchequer being already exhausted, no other means
could be suggested to support this army, but the assistance
of Parliament.
The greatest admirers of Charles I. and the most warm
defenders of his conduct, admit this difficulty to have been
the sole cause of calling the Parliament of April, 1640. His
Ministers were not suddenly seized with any violent attach-
ment for these national Councils ; they expressed no remorse
for those oppressive measures, which, for twelve years
together, their enemies charge them to have advised; they
thought (with the Compilers of the Parliamentary History)
that the peace and plenty, the ease and security, with which
the nation had been so long blessed, were owing to this very
intermission : Nothing therefore could have prevailed with
them to have called another Parliament, but the distress from
want of money, which the King's peculiar situation at that
time brought on; and which was not to be repaired by any
of those fruitful and ingenious resources of tonnage and
poundage,
" at stake, I must rather suffer the first, mands (as you rightly call them), for
" which time will help, than this last, “it is all one as to yield to be no King
“ which is irreparable.---This I have " in a very short time.”
« written to no vther end than to show
you, I will rather die than yield to * Clarendon's Hist. of the Rebel-
" those impertinent and damnable de- lion, Vol. I. p. 91, Book 2d.
CHAP: 5.]
Conclusion.
211
poundage, knighthood, monopolies, ship-money, and military
impositions, which, though sufficient for the peaceful expense
of masks and revelling, were not adequate to the charge of
raising and paying a considerable army. “ Though the
raising an army was visibly necessary, there appeared no
“ means how to raise that army.--No expedient occurred, so
proper as a Parliament, which had been now intermitted,
56 near twelve years *."
66
66
If any further argumenls were necessary to prove this pro-
position, the King's frequent speeches and messages upon
this subject, during this short Parliament, are fully sufficient;
besides the speech on the 13th of April, 1640, the day of
opening the Parliament t, the Commons were again pressed
by the Lord Keeper on the 21st, at Whitehall, in the King's
presence to enter speedily and effectually into this matter of
supply; • This done,' says Lord Keeper Finch, ' his Majesty
will give you scope and liberty to present your just
grievances to him.' On the 24th of April, the King camė
himself to the House of Lords, and, without his robes, made
a speech to the Lords only, in which he urged their Lordships
on this head; he complained, “That the Commons, instead
. of preferring his occasions in the first place, have held
- consultation of innovation of religion, property of goods,
and Privileges of Parliament, and so have put the cart
6 before
C
* Clarendon's Hist, of the Rebellion, “ther yet been exhausted by unneces-
Vol. I. p. 103. Book 2d.
“ sary triumphs, or sumptuous build-
+ « The charge of such an army “ings, or other magnificence: Where-
“ hath been thoroughly advised, and “fore his Majesty hath now called this
- must needs amount to a very great " Parliament.”—Lord Keeper's speech,
sum, such as cannot be imagined to eighth Volume of Parliamentary His-
“ be found in his Majesty's coffers; tory, p. 403.
“ which, how empty soever, have nei-
E E 2
212
[CHAP. 5.
Conclusion.
• before the horse :-- If it were a time to dispute, I should
• not much stand upon it; but my necessities are so urgent,
• that there can be no delay* The Lordships immediately
take this speech into consideration, and, in obedience to his
Majesty's recommendation, resolve, (1.) . That the supply
• shall have precedency, and be resolved upon before any
• other matter whatsoever. And, (2.) · That there shall be a
• conference desired with the House of Commons, to dispose
• them thereunto.'
At this conference, which was held on the 25th of April, the
Lord Keeper, after recapitulating what he had said before on
the 13th and 21st, assured the Commons, “That his Majesty's
' necessary affairs will admit of no delay, but require a pre-
sent and speedy supply; that therefore the Lords had voted,
• that his Majesty's supply should have precedency; and that
they desired the Commons would go on with that first, as
• that which, in the opinion of the Lords, is most necessary;
• and that, this being done, their Lordships will be ready to
join in any thing to carry on this great business. '
Every measure taken by this unfortunate King t, throughout
these two Parliaments of 1640, seems to have been the effect
of
p. 66.
* See the Lords Journals, Vol. IV. have prompted him to, and which were
the means of bringing on the civil war.
+ It appears from several circum- The Queen was the principal person, to
stances in the History of Charles the whose counsels he listened; and it.ap-
First, that he was a man not without a pears from a letter of Mr. Elliot's to
considerable share of parts and under- Lord Digby, of the 27th of May, 1642,
standing; but that he was unaccount- before the King had set up his standard
ably led away by others to commit at Nottingham (which was on the 25th
several acts of violence and injustice, of August following, according to
which his own disposition would not Clarendon, Vol. I. p. 557,--but Rush-
worth,
CHAP, 5.]
213
Conclusion.
of infatuation: At a time when he was courting the House of
Commons, and when it was his most essential interest that they
should
67
worth, Vol. IV. p. 783, says it was on particular. -- Memoirs, p. 65.- Lord
the 22d of August) that, even then, Clarendon, who knew him well, says,
perhaps the disputes between him and “ T'he most signal of his misfortunes
the Parliament might have been accom- proceeded chiefly from the modesty
modated; and that the King himself “ of bis nature, which kept him from
seemed willing to come to some terms, trusting himself enough, and made
but that he was prevented by the rash- “himi believe, that others discerned
ness and obstinacy of the Queen. The “better, who were much inferior to
words are these, in a letter dated from “ him in those faculties; and so to de-
York:-“For our affairs, they are now part often from his own reason, to
6 in so good a condition, that if we are " follow the opinions of more unskilful
“ not undone by heurkening to un accom- men, whose affections he believed to
modation, there is nothing else can hurt “ be unquestionable to his service."
us, which I fear the King is too much History of the Rebellion, 2d Vol.p.485,
“ inclined to; but I hope what he shall Book the gth.-See also Lord Claren
" receive from the Queen will make him don's account of the King's removing
so resolved, that nothing but a satis- the Earls of Essex and Holland from
faction, equal to the injuries he hath their offices at a very critical juncturė,
"received, will make him quit the ad- and contrary to the opinion of those
vantage he now hath.” Rushworth’s Counsellors, in whom he at that time
Coll. Vol. IV. p.719.-So, during the confided, and whose advice he had pro-
treaty at Oxford in 1643, Whitelocke mised to follow in allimportant matters;
(who was one of the Commissioners “but the King was inexorable in the
from the Parliament) says, “ In this point; he was obliged by promise to the
“ treaty the King manifested his great “ Queen at purting, which he would
parts and abilities, strength of reason, “ not break; and her Majesty had
" and quickness of apprehension, with “ contracted so great an indignation
“ much patience in hearing what was against the Earl of Holland, whose
objected against him; wherein he al- “ ingratitude indeed towards her was
“ lowed all freedom, and would himself
“ very great, that she had declared,
" sum up the arguments, and give a " She would never live in the Court, if
most clear judgment upon them- “ he kept his place.”—History of the
“ His unhappiness was, that he had a Rebellion, Vol. I. p. 374. Book 5th.--
“ better opinion of others judgments The King's obstinate refusal to grant
" than of his own; and of this the the commission of Lord High Admiral
“ Parliament Commissioners had expe- to the Earl of Northumberland, at the
“rience to their great trouble.” White- time of the Treaty at Oxford, in 1643,
locke then mentions a very remarkable which Lord Clarendon thinks might
instance of the King's weakness in this have had a considerable effect in bring-
ing
!
214
Conclusion.
[CHAP. 5.
should be retained in good humour, what but the most violent
folly could have advised this most flagrant and outrageous
breach of their Privileges? If they had before been ever so
well disposed to take into consideration the supply, preferably
to every other subject, this step taken by the Lords, in con-
sequence of the King's earnestness, must have prevented them;
the warmest friends to the King could not now, consistently
with their regard for the Privileges of the House of Commons,
propose proceeding in the supply in the first place*. —The
interference of the Lords had precluded this course of pro-
ceeding; and it became the immediate duty of the Commons,
to resolve, " That in this conference the Privileges of the
· House are violated ; and that their Lordships voting, pro-
pounding, and declaring touching matters of supply, before
• it moved from this House, is a breach of the Privilege of this
« House.' A Committee is accordingly appointed to prepare,
in writing, an address to the Lords for righting the Privileges
of the Commons; and this address is sent on the 28th of
April to the Lords by Mr. Pymf. Upon which, after long
and serious debate, the Lords resolve, "That this vote was
no breach of the Privileges of the House of Commons. And
on the 1st of May, the Lords at a conference give their reasons
for
6.
ing about a peace, arose, not from his alloy; a composition of conscience,
own judgment, nor from the advice of " and love, and generosity, and grati-
his counsellors (for Sir E. Hyde, then « tude, and all those noble affections,
Chancellor of the Exchequer, pressed
" which raise the passion to the greatest
the King often to consent to this mea- height; insomuch as he saw with her
sure) but from a solemn promise made eyes, and determined by her judg-.
to the Queen, when they separated, “ment."- Life of Lord Clarendon,
" that he would never receive any per- Part 3d, pp. 78, 79.
son into favour or trust, who had * See what Lord Clarendon says
“ disserved him, without her privity and upon this subject, Hist. Reb. Vol. I.
consent.” “Indeed,” Lord Clarendon p. 106, Book 2d.
adds,“ his Majesty's affection to the + See Lords Journals, Vol. IV. p.72.
“ Queen was of a very extraordinary
et subs.
CHAP. 5.]
Conclusion.
215
for this vote, by the mouth of the Lord Keeper: On the 2d
of May, before the Commons had time to consider these
reasons, the King, growing out of all patience, sent another
message by Sir Harry Vane, Treasurer of the Household,
desiring a present answer concerning his supply.' The
debate upon this message lasted till six o'clock on Saturday
night, and was then adjourned till Monday morning at eight
o'clock: On Monday, Mr. Treasurer brings another message,
in which his Majesty proposes the quantum of the supply,
,
' and expects a present and positive answer, upon which he
may rely. This day was also taken up in preparing an
answer to the King's messages, and the debate adjourned till
the next morning at eight o'clock: But before they could meet
on the 5th of May, the King sent for them to the House of
Lords, and dissolved the Parliament*.
I hope this summary account of the proceedings of the
short Parliament of 1640, will not be thought inconsistent
with the general plan of treating on the Privileges of the House
of Commons, since the whole dispute between the King and
the Commons was, as to the right of precedency of business :
" Whether they should first have redress for the several viola-
• tions of their Privileges, in the former Parliaments; or should,
by virtue of his Majesty's pressing directions, be obliged to
proceed first in the matter of supply:'-—a question essentially
material to their existence. For if the King's proposal had
been adopted, it is not difficult to fóretell what would have
been the consequence: 'this done, his Majesty would have
given
6
* See Parliamentary History, Vol. malicious intention, and to bring all
VIII. pp. 436 to 468.- Lord Claren- into confusion.-History of Rebellion, ,
don supposes, that the part which Sir Vol. I. p. 110.
H. Vane took in this affair was with a
216
Conclusion.
[CHAP. 5.
giyen them liberty to present their just grievances to him.
This difference, between the two Houses, would afford an
opportunity of going more largely into the consideration of
that most ancient, most important, and essential Privilege
of the House of Commons, respecting their sole right of
beginning the grants of aids, and supplies, and of directing
and limiting the ends, purposes, considerations, and qualifi-
'cations of such grants, without the Lords having the power
to alter or to change them *:'-But the discussion of this
question, and a collection of the precedents, upon which
this right has been supported, is too great to be inserted in
this Volume, and deserves to be treated of by itselft.
The proceedings of the Court on the dissolution of the Par-
liament of 1628, against those Members that had then taken
an active part; the imprisonment of those respectable men,
Mr. Holles, Sir M. Hobart, Sir J. Eliot, Sir P. Haymạn, and
others I, together with the prosecutions and judgment obtained
against them in the Star Chamber, and Court of King's
Bench S, for their speeches and behaviour in Parliament,
brought on at the commencement of the Session, in April,
1640, an inquiry into these breaches of Privilege. It was
obvious, that if such proceedings were passed over without
notice, and if it should, by their silence, be admitted, that
Members of the House of Commons are punishable, after a
dissolution, for actions or speeches in Parliament; the freedom
of speech, and with that, the freedom of acting and voting,
would
See Commons Journals, 3d of July,
1678...
# See the Parliamentary History,
Vol. VIII. p. 354.
§ See these Proceedings in the King's
Bench at length, in the State Trials,
Vol. VII. p. 242.
+ See Vol. III. of this Work, un
der the title, Supply.
CHAP. 5.]
217
Conclusion.
would be at an end. It had been in vain to plead Strode's
Law, the fourth of Henry VIII. as a general law in favour of
this liberty; or to show that offences, supposed to be com-
mitted in Parliament, are not cognizable in any other Court:
The Judges of that day had been too well schooled to admit
the force of such trifling objections; they determined Strode's
Law to be a private Act of Parliament*; and as to the Privi-
lege of Parliament of not being questioned elsewhere, they
said, “We are judges of their lives and lands, therefore of
' their liberties; no outrageous speeches were ever used against
a great Minister of State in Parliament, that have not been
punished ;' and agreeable to these doctrines, Mr. Justice
Jones, on the last day of the term, pronounced the judgment
of the Court, “ That all the defendants should be imprisoned,
during the King's pleasure, not to be delivered till they had
given security for their good behaviour, and made sub-
“ mission and acknowledgment of their offence; Sir J. Eliot
“ to pay a fine of two thousand pounds, as the greatest offender
" and the ringleader; Mr. Holles, of one thousand marks ;
«s and Mr. Valentine, of five hundred poundst."
6
Notwithstanding the temper and moderation with which
this Parliament of April, 1640, is acknowledged to have met,
these breaches of Privilege, so destructive to the very exist-
ence of a free Council, became an immediate object of their
consideration; petitions were presented from all parts, com-
plaining of the several grievances under which the nation had
long laboured ; and in these debates even the most courtier-
like Members, Mr. Waller, and others, could not help ex-
pressing
* See Whitelocke's Memoirs, pp. 12, 13.
+ See the Parliamentary History, Vol. VIII. pp. 354 to 389.
VOL. I.
FF
218
Conclusion.
[CH AP. 5.
pressing their apprehensions of the consequences of such
unjustifiable proceedings*.
This matter did not rest here; in the next Parliament, on
the 6th of July, 1641, the House of Commons again took
up this breach of their Privileges in 1628, and came to
resolutions :
(1.) That the Warrants of the Lords, and others of the
Privy Council, compelling Mr. Holles and others to appear
before them during that Parliament;—that the committing of
Mr. Holles and others, by the Lords and others of the Privy
Council, in 46 Car. during that Parliament;—that the search-
ing and sealing of the chambers, studies, and papers of Mr.
Holles, Mr. Selden, and Sir J. Eliot, being Members of that
Parliament, and issuing out Warrants for that purpose;-and
that the exhibiting an information in the Court of Star Cham-
ber against Mr. Holles and others, for matters done by them
in Parliament, being Members of Parliament, are breaches of
Privilege.—(2.) That Sir Robert Heath, Sir H. Davenport,
and others who subscribed the said informations, are guilty
of a breach of Privilege.--And on the 8th of July, the Com-
mons came to several other resolutions touching this matter,
and committed Mr. Laurence Whitaker, who had entered
the chamber of Sir J. Eliot, and been concerned in searching
his trunks and papers, to the Tower.
But, as if the heinousness of this crime could never be
expiated, a Committee is appointed on the 15th of October,
1667, at the distance of almost forty years, to consider of this
Case, of the information brought in the King's Bench, and
how
* See Rushworth, Vol. III. p. 1140.
CHAP. 5.]
219
Conclusion.
how the Law and Report is in that particular. On the 12th
of November, Mr. Vaughan reports from this Commillee; and
on the 23d of November the House resolve, “That the judg-
ment given in the fifth Car. I. against Sir J. Eliot, Denzil
· Holles, and Benjamin Valentine, Esquires, in the King's
· Bench, was an illegal judgment, and against the freedom of
· Privilege of Parliament.' To this vote, the Commons at a
conference desire the concurrence of the Lords, and on the
11th of December *, the Lords report this conference, and
agree to the resolution.
In Mr. Pym's speecht is a summary of all the oppressions
of which the public had had reason to complain, during the
last twelve years; and in the Journal of the 24th of April,
1640, these are all recapitulated in a report from a Committee,
appointed to prepare the inducements for the conference with
the Lords.. But this conference was never held; the King
was
* Vide Lords Journals.-See also “ brought ill purposes with them."
this Report in the Appendix to this In p. 106, he mentions a circumstance
Vol. N° 2.
only “ that the temper and sobriety of
“the House may be taken notice of,
+ Parliamentary History, Vol. VIII.
" and their dissolution, which shortly
p. 425.
“ after fell out, the more lamented.”—
I Lord Clarendon's encomiums on This Report therefore, which is to be
the temper and moderation of this Par- found at length in the second volume
liament, render the Report from this of the Commons Journals, p. 11, and
Committee (which was agreed to by which is published in the Appendix to
the House) sufficient evidence of the this Vol. Nº 3, contains a complete
truth of the charges against the King answer to the Compilers of the Par-
and his Ministers, for their tyrannical liamentary History, to Hume, and to
behaviour during this period.---In the those other Historians, who have so
first volume of the History of the Re- artfully laboured to prove, that the Civil
bellion, p. 110, he says, “ It could War was more owing to the violent
“never be hoped that more sober and spirit, and illegal pretensions of the
dispassionate men would ever meet Commons, than to the arbitrary mea-
together in that place, or fewer who sures of the Court,
FF 2
220
Conclusion.
[CHAP. 5.
was unfortunately* advised to dissolve this Parliament on the
5th of May, much to the dissatisfaction of the more moderate
part of the nation; and so much to his Majesty's own, that upon
recollection, Lord Clarendon says, he wished to recall them,
and consulted whether he could not do it by proclamationt.
Notwithstanding all that had passed, the very next day after
this short Parliament was dissolved, fresh violences of the
same nature were committed ; Sir Henry Bellasyse, and Sir
John Hotham, were called before the Council; and, upon
their refusing to answer to questions about matters done in
Parliament, were committed to the Fleet ; and Mr. Crewe,
who was Chairman of the Committee on religion, was, for
refusing to deliver up the petitions and complaints made
upon those matters, committed to the Tower. When there-
fore the necessities of government, administered by the
advice of the bold and daring Strafford and the bigoted
Archbishop Laud, had so involved the King, that he was
again compelled within a few months, contrary to his own
inclinations, to call another Parliament, it is no wonder that
they met, determined to have ample satisfaction for these
enormous breaches of the constitution. They had had too
long experience of the King's own disposition, and of the
wisdom
* « The sudden dissolution of this I See Parliamentary History, Vol.
Parliament was perhaps that, which VIII. p. 489.
hastened the ruin of all things; and § However much the nation had
against which the Lord Keeper Co- been provoked by the conduct of the
ventry had cautioned his Majesty, the King and his Ministers, it is acknow-
year before, with his dying breath, ledged “That the Parliament which
desiring, “ That his Majesty would met on the 3d of November 1640,
take all distastes, from the Parliament “ was, during the first year of its sit-
summoned against April, with pa- “ ting, distinguished for gravity and
tience, and suffer it to sit without an « wisdom, though they afterwards be-
unkind dissolution."
came disorderly and unquiet.” See in
Ambr. Philips's Life of Archbp. the Lords Journal, 29th November,
Williams, p. 220.
1667, the Report of the Free Confer-
+ Lord Clarendon's History, Vol. I. ence touching Lord Clarendon's Im-
p. 111.
peachment.
66
CHAP. 5.]
221
Conclusion
p. 623.
wisdom of his Counsellors, any longer to trust the reins of
government in such hands; they knew they were called to-
gether, not from any affection the King had taken to parlia-
ments, but “ because his Ministers were puzzled how to find
supplies*.”—They were therefore naturally led, in the first
place, to secure their own existence, and no longer to depend
on the capricious temper of the King; they accordingly ob-
tained the Act for preventing their dissolution-t. This secu-
rity, though it altered the Constitution, gave a new spirit to
the leading Members of the House of Commons:-all fears
of a dissolution being removed, they were enabled to insist
upon every measure, which they thought necessary for the
security
* See the Sidney Papers, Vol. II. “ ference with the Lords (where myself
"was present). The Earl of Manches-
+ I am very far from approving of ter, then Lord President, managing
this measure--it was certainly a vio- “ it for the Peers, and the Solicitor
lent breach in the Constitution of this “ General St. John for the Commons,
Government; and, as Lord Clarendon " where the only difference was, about
" the indefiniteness of the time. The
expresses it," was removing the land-
“ marks, and destroying the foundation “ Lord Privy-Seal offering them to
" of the kingdom ;" yet, if this Act “ state it to three, five, or seven years.
had not been obtained, perhaps it “ Hereupon St. John hypocritically
would have been impossible to oppose " answered, “ God forbid that we
the King's attempts with effect.—The " should be forced to sit one year'; for,
following anecdote on the subject of as soon as the armies are disbanded,
this Bill, is related by Sir Edward " the necessity, we hope, will be at an
Walker, in his Historical Discourses, " end, and so there will be no need
p. 359.
“I have been told that Mr. 56 afterwards to insist on the act; but
" Waller was the first that started this " on the contrary, if it be not passed
Bill, in discourse with some of the “ for an indefinite time, we shall not
leading factious party; for they " have credit or interest to raise
money
• found that the Triennial Parliament " to disband the army and satisfy our
< would be rather for their disadvan- “ debts.” To this purpose, I well re-
tage and the King's advantage.- member, St. John discoursed; and
Hereupon they instantly drew up by this false colour got the Lords to
“ this Bill, inserting the plausible pre- concur therewith; and so it was
“tence of raising money for disband- “spcedily drawn up, and passed both
ing the army, as an inducement.
« Houses.”
“ Hereupon the Commons had a con-
60
222
[CHAP. 5.
Conclusion.
security of the State: They had the satisfaction and the
merit of bringing down just punishments on Laud and
Strafford; they abolished the Courts of Star Chamber and
High Commission : they reduced the influence of the Crown,
by taking away the votes of the Bishops in the House
of Lords. This was a violent measure; and, (if it can be jus-
tified at all) it must be from the particular circumstances of
the times; which rendered it expedient to weaken the influence
of the Crown.—However, if both sides had stopped here, per-
haps all might have been well; but so rooted was the jealousy
of the Commons against the King, and so averse was the King,
in his own nature, from submitting to any restraint on the
Regal Power by his subjects, that no concessions on his part,
no intentions for the public good on theirs, however upright,
could induce confidence and harmony between them: Every
day produced bickerings and heats, which were probably
fomented by designing persons on both sides ; till at length
the King was persuaded to take the fatal step of going in
person to the House of Commons, and endeavouring to seize
the Members, who, he thought, had offended him*. From
this day, the 4th of January, 1641, there could be no hopes
of
* See the very curious account of " sufficient grounds of accusation.”
the whole of this extraordinary trans- It appears from Lord Clarendon, that
action, as related by Rushworth, who Lord Digby was the sole adviser of
was at that time Clerk-Assistant, and
this rash measure :
6 And all this was
present in the House of Commons, “ done without the least communica-
in the Appendix to this Vol. N° 4.- “ tion with any body, but the Lord
Amongst the papers of the late Lord “ Digby, who advised it."
Verney, were found, at his decease, Hist. of the Reb. Vol. I. p. 282.
some minutes of this proceeding, which
were taken at the time in pencil, by See also Lord Clarendon's character
Sir Edmund Verney, Knight Mar- of Lord Digby, in the Supplement to
shal.—These minutes are inserted in the third Volume of his State Papers,
the 4th Vol. of this work, under the page 55
title Impeachment, Ch. 2. “ What are
Book 4.
CHAP. 5.]
223
Conclusion.
of a reconciliation ; the King soon withdrew into the North *,
and the Civil War began. This violent and fatal step of en-
deavouring to seize the persons of the Members, as it was
subversive of every idea of the Privileges of the House of
Commons, was the signal to all, who wished ill to the Regal
Power, to go every length, however little to be justified by the
ancient laws of the Constitution, or the rules of proceeding in
Parliament. On the King's retiring from London, the Popular
Leaders in the House of Commons proceeded to take such
measures, as appeared to them to be necessary to protect the
State from the return of arbitrary power; measures which,
however they might then be excused from the very particular
circumstances of the times, or justified by the confusion into
which the Government was thrown by the conduct of the
King, cannot be considered as precedents to be followed in
times of peace and quietness. And therefore, if I shall ever
have leisure or inclination to continue this Workf, I shall
think myself obliged to pass over every thing that occurred in
the
* On Monday, the 10th of January “ tuled, “ An Act for the further
1641-2, about three o'clock in the af-
preventing Delays of Justice by
ternoon, the King, with the Queen, reason of Privilege of Parliament,"
and their royal offspring, left White having provided, " That no action,
hall and the whole Court: His Majesty “ suit, or any other process, or pro-
being in his coach, called the Captain “ ceeding thereupon, shall at any time
of the Guard of Train-Bands, that at- be impeached, stayed, or delayed,
tended at Whitehall, unto him, and “by or under colour or pretence of
said, “ I thank you for your attend- “ any Privilege of Parliament;" much
"ance, and for what you have done,
have done, of the matter which I had collected
“ and do now dismiss you.” So relating to this title of Privilege, is
his Majesty went to Hampton-Court, thereby rendered useless. Instead
and from thence afterwards by de- therefore of proceeding any farther on
grees to York.-Rushworth, Vol. 1V. this title, I have thought it more expe-
dient to select and publish those cases
and precedents, in the Journals, that
+ The Act which passed in the refer to the other Heads which con-
10th year of Geo. III. ch. 50, inti- pose the following Volumes.
p. 484.
224
[CHAP. 5.
Conclusion.
the Long Parliament, after this unhappy day, and shall
collect only such precedents as are to be met with before
the 4th of January, 1641, and then proceed directly to the
Restoration.
APPENDIX
[ 225 ]
APPENDIX
TO THE FIRST VOLUME.
1
VOL. I.
GG
Nº
1.-APOLOGY of the Commons, on 20 June 1604; on Freedom of Speech, &c.
in consequence of the Imprisonment of Members for Words spoken in
Parliament
p. 227
2.-REPORT of the Conference in 1667, touching Freedom of Speech, as
violated by the Proceedings against Sir J. Eliot, Denzil Holles, and
Benjamin Valentine, esquires, 5 Car. I.
250
3.-REPORT of 24 April 1640, touching Grievance; being a summary of all
public oppression, during the twelve years preceding
259
4.-RUSHWORTH's Account of King Charles the First's coming to the House
of Commons, on Jan. 4, 1641, to accuse and demand the arrest of the
Five Members
265
5.-REPORT from the Committee of Privileges, relating to Lord Cochrane's
having broken Prison, and having been retaken whilst in the House
of Commons; 10 March 1815
278
6.-REPORTS from the Select Committee, appointed to consider the Proceed-
ings on the apprehension and commitment of Sir Francis Burdett to
the Tower, 12 May and 15 June 1810
281
[ 227 ]
Α Ρ Ρ Ε Ν DI X
TO THE
FIRST VOLUM E.
N° 1.-p. 138.
[Reported from a Committee, on the 20th June 1604.]
Petyt's Jus Parliamentarium, Ch. 10.-p. 227.
To the KING's Most Excellent Majesty; from the
House of Commons assembled in Parliament.
N° 1.
on Freedom
Most Gracious Sovereign,
E cannot but with much joy and thankfulness of mind A pology of
acknowledge your Majesty's great graciousness, in de- 20 June 1604;
claring lately unto us, by the mouth of our Speaker, That you
of Speech, &c.
rested now satisfied with our doings.
Which satisfaction notwithstanding, though most desired and
dear unto us, yet proceeding merely from your Majesty's most
gracious disposition, and not from any justification which on our
behalf hath been made; we found this joy intermingled with
no small grief; and could not, dread Sovereign, in our dutiful
love to your Majesty, and in our ardent desire of the continuance
of your favour towards us, but tender in humble sort this farther
satisfaction,
G g 2
g
228 APPENDIX TO THE FIRST VOLUME:
on Freedom
N° 1.
Apology of satisfaction, being careful to stand right, not only in the eye of
20 June 1604; your Majesty's grace, but also (and that much more) in the
balance of your princely judgment; on which all assuredness of
of Speech, &c.
love and grace is founded. Into which course of proceedings
we have not been rashly carried by vain humour of curiosity,
of contradiction, of presumption, or of love of our own devices
or doings, unworthy affections in a Council of Parliament, and
more unworthy in subjects towards their Lord and Sovereign;
but, as the Searcher and Judge of all hearts doth know, for
these and for no other undue ends in the world; to increase and
nourish your Majesty's gracious affection towards your loyal
and most loving people, to assure and knit all your subjects'
hearts most firmly to your Majesty, to take away all cause of
jealousy on either part, and diffidence for times ensuing, and to
prevent and control all sinister reports, which might be un-
reasonably spread either at home or abroad with prejudice to
your Majesty, or the good state of your Kingdom.
With these minds, dread Sovereign, your Commons of
England, represented in us their Knights, Citizens and Bur-
gesses,
do come with this humble declaration to your Highness,
and in great affiance of your most gracious disposition, that your
Majesty, with benignity of mind correspondent to our dutiful-
ness, will be pleased to peruse it.
We know, and with great thankfulness to God acknowledge,
that he hath given us a King of such understanding and wisdom
as is rare to find in any Prince in the World.
Howbeit seeing no human wisdom, how great soever, can
pierce into the particularities of the rights and customs of people,
or of the sayings and doings of particular persons, but by tract
of experience and faithful report of such as know them (which
it hath pleased your Majesty's princely mouth to deliver) what
grief, what anguish of mind hath it been unto us at some time,
in
PRIVILEGE OF PARLIAMENT. 229
N 1.
in presence to hear, and so in other things to find and feel by Apology of
the Commons,
effect your gracious Majesty (to the extream prejudice of all
20 June 1604;
your subjects of England, and in particular of this House of the on Freedom
of Speech, &c.
Commons thereof) so greatly wronged by misinformation, as well
touching the Estate of the one, as the Privileges of the other,
and their several Proceedings during this Parliament: which
misinformations, though apparent in themselves, and to your
subjects most injurious, yet have we in some humble and dutiful
respect rather hitherto complained of amongst ourselves, than
presumed to discover and oppose against your Majesty.
But now, no other help or redress appearing, and finding
those misinformations to have been the first, yea the chief
and almost the sole cause of all the discontentful and trou-
blesome Proceedings so much blamed in this Parliament;
and that they might be again the cause of like or greater
discontents and troubles hereafter (which the Almighty Lord
forbid) we have been constrained, as well in duty to your
Royal Majesty, whom with faithful hearts we serve, as to our
dear native country, for which we serve in this Parliament, to
break our silence, and freely to disclose unto your Majesty the
truth of such matters concerning your subjects the Commons, as
hitherto by misinformation hath been suppressed or perverted:
Wherein that we may more plainly proceed, (which next unto
truth we affect in this discourse) we ſhall reduce these misinfor-
mations to three principal heads :
First, Touching the cause of the joyful receiving of your
Majesty into this your Kingdom.
Secondly, Concerning the Rights and Liberties of your
subjects of England, and the Privileges of this House.
Thirdly, Touching the several Actions and Speeches passed
in the House, it has been told us to our faces by some of no
small
;
230 APPENDIX TO THE FIRST VOLUME:
on Freedom
N° 1.
Apology of small place (and the sáme spoken also in the presence of
your
the Commons Majesty) “ That on the 24th of March was a twelvemonth, * we
;
stood in so great fear, that we would have given half we were
of Speech, &c.
' worth for the security wherein we now stand.'
Whereby some misunderstanders of things might perhaps
conjecture, that fear of our own misery had more prevailed with
us in the duty which on that day was performed, than love of
your Majesty's virtues, and hope of your goodness towards us.
We contrarywise most truly protest the contrary, that we
stood not at that time, nor of many a day before, in any doubt
or fear at all.
We all professing true Religion by law established (being by
manifold degrees the greater, the stronger, and more respective
part of this your Majesty's realm) standing clear in our con-
sciences touching your Majesty's right, were both resolute with
our lives and all other our abilities, to have maintained the same
against all the world, and vigilant also in all parts to have
sup-
pressed such tumults, as, but in regard of our poor united minds
and readiness, by the male-contented and turbulent might have
been attempted.
But the true cause of our extraordinary great chearfulness and
joy in performing that day's duty, was the great and extraordi-
nary love which we bear towards your Majesty's most royal
and renowned Person, and a longing thirst to enjoy the happy
fruits of your Majesty's most wise, religious, just, virtuous, and
gracious heart.
Whereof not rumour, but your Majesty's own writings, had
given us a strong and undoubted assurance.
For from hence, dread Sovereign, a general hope was raised
in the minds of all your people, that under your Majesty's
reign
* Queen Elizabeth died on that day, the 24th of March, 1603.
PRIVILEGE OF PARLIAMENT.
281
N° 1.
the Commons
reign religion, peace, justice, and all virtue should renew again Apology of
and flourish.
20 June 1604;
That the better sort should be cherished, the bad reformed on Freedom
of Speech, &c.
or repressed, and some moderate ease should be given us of those
burdens and sore oppressions, under which the whole land did
groan.
.
This hope being so generally and so firmly settled in the
minds of all your most loyal and most loving people, recounting
what great alienation of men's hearts the defeating of great
hopes doth usually breed, we could not in duty, as well unto
your Majesty as to our Country, Cities, and Boroughs, (who
hath sent us hither not ignorant or uninstructed of their griefs,
of their desires, and hopes) but, according to the ancient use and
liberty of Parliaments, present our several humble Petitions to
your Majesty of different nature:
Some for Right and some for Grace, to the easing and relieving
of us of some just burdens, and of other some unjust oppres-
sions, wherein what due care, and what respect we have had, that
your Majesty's honour and profit should be enjoyed with the
content and satisfaction of your people, shall afterwards in their
several due places appear.
Now concerning the antient Rights of the subjects of this
realm, chiefly consisting in the Privileges of this House of Par-
liament, the misinformation openly delivered to your Majesty,
hath been in three things.
First, That we held not Privileges of Right, but of Grace only,
renewed every Parliament by way of Donature upon Petition,
and so to be limited.
Secondly, That we are no Court of Record, nor yet a Court
that can command view of Records ; but that our Proceedings
here are only to Acts and Memorials, and that the attendance
with the Records is courtesy, not duty.
Thirdly,
232 APPENDIX TO THE FIRST VOLUME:
on Freedom
N 1.
Apology of Thirdly, and lastly, That the examination of the return of
the Commons; Writs for Knights and Burgesses is without our compass, and due
to the Chancery.
of Speech, &c.
Against which assertions (most gracious Sovereign) tending
directly and apparently to the utter overthrow of the very
fundamental Privileges of our House, and therein of the rights
and Liberties of the whole Commons of your Realm of England,
which they and their Ancestors from time immemorable have
undoubtedly enjoyed under your Majesty's most noble Progeni-
tors; We the Knights, Citizens, and Burgesses of the House of
Commons assembled in Parliament, and in the name of the
whole Commons of the Realm of England, with uniform con-
sent for ourselves and our posterity, do expressly protest, as being
derogatory in the highest degree to the true dignity, liberty,
and authority of your Majesty's High Court of Parliament, and
consequently to the rights of all your Majesty's said subjects,
and the whole body of this your Kingdom ; And desire that this
our Protestation may be recorded to all Posterity.
And contrarywise with all humble and due respect to your
Majesty, our Sovereign Lord and Head, against those misinfor-
mations we moșt truly avouch;
First, That our Privileges and Liberties are our Right and
due Inheritance, no less than our very Lands and Goods.
Secondly, That they cannot be with-held from us, denied,
or impaired, but with apparent wrong to the whole state of the
Realm.
Thirdly, And that our making of request, in the entrance of
Parliament, to enjoy our Privilege, is an act only of manners,
and doth weaken our Right, no more than our suing to the King
for our lands by petition ;
Which form, though new and more decent than the old by
Precipe, yet the subject's right is no less new than of old.
Fourthly,
PRIVILEGE OF PARLIAMENT.
233
N° 1.
Fourthly, We avouch also, that our House is a Court of Re- Apology of
the Commons,
cord, and so ever esteemed.
20 June 1604;
on Freedom
Fifthly, That there is not the highest standing Court in this
of Speech,&c.
land that ought to enter into competency either for dignity or
authority with this High Court of Parliament, which with your
Majesty's Royal Assent gives Laws to other Courts, but from
other Courts receives neither Laws nor Orders.
Sixthly, and lastly, We avouch that the House of Commons
is the sole proper judge of Return of all such Writs, and of the
Election of all such Members as belong unto it, without which
the freedom of election were not entire.
And that the Chancery, though a standing Court under your
Majesty, be to send out those Writs, and receive the returns,
and to preserve them, yet the same is done only for the use of
the Parliament:
Over which neither the Chancery, nor any other Court, ever
had, or ought to have, any manner of jurisdiction.
From these misinformed positions (most gracious Sovereign)
the greatest part of our troubles, distrusts, and jealousies have
risen ; having apparently found, that in the first Parliament of
the happy Reign of your Majesty, the Privileges of our House,
and therein the Liberties and Stability of the whole Kingdom,
have been more universally and dangerously impugned than
ever (as we suppose) since the beginnings of Parliaments.
Besides that in regard of her sex and age which we had
great cause to tender, and much more upon care to avoid all
trouble, which by wicked practice might have been drawn to
impeach the quiet of your Majesty's right in the succession,
those actions were then passed over, which we hoped, in suc-
ceeding times of freer access to your Highness of renowned grace
and justice, to redress, restore, and rectify.
Whereas
* Queen Elizabeth,
VOL. I.
Hн
234 APPENDIX TO THE FIRST VOLUME ;
on Freedom
N° 1.
Apology of
Whereas contrarywise in this Parliament, which your Majesty
the Commons,
20 June 1604in great Grace (as we nothing doubt) intended to be a Precedent
for all Parliaments that should succeed, clean contrary to your
of Speecb, &c.
Majesty's so gracious desire; by reason of these Misinforma-
tions, not Privileges, but the whole Freedom of the Parliament
and Realm have from time to time, upon all occasions, been
mainly hewed at us.
First, The Freedom of Persons in our Election hath been
impeached.
Secondly, The Freedom of our Speech prejudiced by often
reproofs.
Thirdly, Particular persons noted with Taunt and Disgrace,
who have spoken their consciences in matters proposed to
the House, but with all due respect and reverence to your
Majesty,
Whereby we have been in the end subject to so extreme
contempt, as a gaoler durst so obstinately withstand the de-
crees of our houſe ;
Some of the higher Clergy to write a book against us, even
sitting the Parliament;
The inferior Clergy to inveigh against us in pulpits, yea to
publish their protestations, tending to the impeachment of our
most ancient and undoubted Rights in treating of matters for
the peace and good order of the Church.
What cause we your poor Commons have to watch over
our Privileges, is manifest in itself to all men.
The Prerogatives of Princes may easily, and do daily grow.
The Privileges of the Subject are for the most part at an ever-
lasting stand.
They may be by good Providence and Care preserved, but
being once lost are not recovered but with much disquiet.
If
PRIVILEGE OF PARLIAMENT.
235
N° 1.
If good Kings were immortal as well as Kingdoms, to strive Apology of
so for Privilege were but vanity, perhaps, and folly ; but seeing 20 June 1604;
the same God who in his great Mercy hath given us a wise of Ireedom
of Speech, itc.
King and religious, doth also sometimes permit Hypocrites and
Tyrants in his displeasure, and for the sins of the people ;
From hence hath the desire of Rights, Liberties, and Privi-
leges, both for Nobles and Commons, had its just original ;
By which an harmonical and stable state is framed
Each Member under the Head enjoying that Right, and
performing that Duty, which for the honour of the Head and
happiness of the whole is requisite..
Thus much touching the Wrong done to your Majesty by
Misinformation touching our Privileges.
;
The last kind of Misinformation made to your Majesty, hath
been touching the actions and speeches of particular persons
used in the House.
Which imputation notwithstanding, seeing it reacheth the
whole House in general, who neither ought, neither have at any
time suffered any speech touching your Majesty, other than
respective, dutiful, and as become loyal subjects of a King so
gracious ;
And forasmuch as it is very clear unto us by the effect, that
divers things spoken in the House, have been perverted and
very untruly reported to your Majesty ;
If it might seem so fit in your Majesty's wisdom, and were
seemingly for us to crave, we should be most glad, if, for our
better justification, and for
your further satisfaction, which we
principally desire, the accusers and the accused might be con-
fronted.
And now (most gracious Sovereign) these necessary grounds
of our causes and defences being truly laid, and presented
sincerely to your Majesty's grace and wisdom, the justification
of
II H 2
236
APPENDIX TO THE FIRST VOLUME:
N° 1.
on Freedom
of such particulars, wherein your Highness seemed doubtful of
Apology of
the Commons, our dutiful carriage (though not so much for the matter, as for
20 June 1604;
the manner of our proceedings) we trust will be plain ; and to
of Speech, &c.
expedite which particulars, we find them to have been of three
different natures;
The first sort, Concerning the Dignity and Privileges of
our House.
The second, The good Estate of the Realm and Church.
The third, Was for Ease of certain Grievances and Op-
pressions.
In the first Rank there were five particulars,
1. The Matter of the Gentleman Usher.
2. 'Of the Yeomen of the Guard.
3. Of the Election of the Knights of Buckinghamshire.
4. Of Sir Thomas Shirley's Deliverance.
5. And of the Bishop of Bristow's Pamphlet.
1
The second Head had two particulars,
The Union, and Matters of Religion.
The third Head had three,
The Bill of Assarts *; and Matters of Purveyors; and the
Petition for Wardships.
Of each of these we must say somewhat to give your Majesty
satisfaction, and that with all brevity, to shun tediousness and
trouble.
The Gentleman Usher's fault in depriving, by his unaccus-
tomed neglect, a great part of our House from hearing your
Majesty's
* Assart (as it is here properly to be the King's forests, stubs the ground,
understood) signifies where the sub- making it fit for tillage, without the
ject within the limits and bounds of King's license.
PRIVILEGE OF PARLIAMENT.
237
N° 1.
on Freedom
Majesty's speech the first day of Parliament, we could not, in Apology of
the Commons,
the grief of being frustrate of our so longing and just desire
20 June 1604;
to hear your Majesty's voice and renowned wisdom, but com-
of Speech,&c.
plain of in decent sort among ourselves, and further we pro-
ceeded not.
Your Majesty's extraordinary great grace and favour, in re-
hearsing the day ensuing your former admirable speech, did
give us content, with abundance of increase of joy.
The Yeoman of the Guard's * words were very opprobrious ;
and howsoever they might have been not unfitly applied to the
Peasants of France, or Boores of Germany,
Yet could they not be other than very reproachful and in-
jurious to the great dignities and honour of the Commons of
this Realm, who contain not only the Citizens, Burgesses, and
Yeomanry, but also the whole inferior Nobility of the Kingdom,
Knights, Esquires, and Gentlemen, many of which are come
immediately out of the most noble Families, and some other of
their worth advanced to the high honour of your Majesty's
Privy Council, and otherwise have been employed in very
honourable service ;
In sum, the sole persons of the higher Nobility excepted,
they contain the whole power and flower of your Kingdom ;
First, With their Bodies, your Wars,
Secondly, With their Purses, your Treasures are upheld and
supplied.
Thirdly, Their Hearts are the strength and stability of your
Royal Seat.
All
* Brian Tash, the Yeoman of the the door upon them, with these uncivil
Guard, keeping one of the doors of the and contemptible terms,
« Goodmen
Upper House, repulsed several Mem- “Burgesses, you come not here."
bers of the Lower House, and shut
Journ. Dom. Com.
238
APPENDIX TO THE FIRST VOLUME:
N° 1.
on Freedom
Apology of All these, amounting to many millions of people, are repre-
the Commons,
20 June 1604; sentatively present in us of the House of Commons.
The
of Speech, &c.
done to us doth redound upon the whole land,
wrong
and will be so construed.
We could not therefore do less in our duties to the Realm,
than to advertise such a delinquent of the unseemliness of his
fault, neither could we yet do more in duty to your Majesty,
than
upon his acknowledgment thereof so freely to remit ít.
The Rights of the Liberties of the Commons of England
consisteth chiefly in these three things :
First, That the Shires, Cities, and Boroughs of England,
by representation to be present, have free choice of such
persons as they shall put in trust to represent them :
Secondly, That the Persons chosen during the time of the
Parliament, as also of their access and recess, be free
from Restraint, Arrest, and Imprisonment :
Thirdly, That in Parliament they may speak freely their
Consciences without check and controlment, doing the
same with due Reverence to the Sovereign Court of Par-
liament, that is to your Majesty and both the Houses,
who all in this case make but one Politick Body, whereof
your Highness is the Head.
These three several branches of the antient inheritance of our
Liberty, were in three matters ensuing apparently injured ;
The Freedom of Election in the Case of Sir Francis Goodwin.
42
The Freedom of the Persons elected, in Sir Thomas Shirley's
Imprisonment:
The
PRIVILEGE OF PARLIAMENT.
239
N° 1.
on Freedom
The Freedom of our Speech, as by divers other reproofs, so Apology of
the Commons,
also in some sort by the Bishop of Bristow's invective.
20 June 1604;
of Speech, &c.
For the Matter of Sir Francis Goodwin, the Knight chosen
for Buckinghamshire, we were and still are of a clear opinion,
that the Freedom of Election was in that action extremely in-
jured ; that by the same Right it might be at all times in a
Lord Chancellor's power to reverse, defeat, to evert and substi-
tute all the Elections, and Persons elected, over all the Realm.
Neither thought we that the * Judges opinion, which yet
in due place we greatly reverence, being delivered what the
Common Law was, which extends only to inferior and standing
Courts, ought to bring any prejudice to this High Court of
Parliament, whose power being above the law is not founded on
the Common Law, but have their Rights and Privileges peculiar
to themselves.
For the Manner of our Proceeding, which your Majesty
seemed to blame, in that the second Writ going out in your
Majesty's Name, we presumed to censure it, without first craving
access to acquaint your Highness with our reasons therein, we
trust our defence shall appear just and reasonable :
It is the form of the Court of Chancery, as of divers other
Courts, that Writs going out in your Majesty's Name are
returned also as to your Majesty, in that Court from whence
they issue;
How beit
* In the memorable Case of Thorp, mighty in its nature, that it is judge
which happened 31 Henry VI. the “ of the law, and makes that to be law
Judges being asked their opinions by " which is not law, and that to be no
the Lords, answered in these words: “ law which is; and the determination
“ It hath not been used before-time, " of its privileges belongs to the Lords
nor becomes it us to deterinine mat- “ in Parliament, and not to the Jug-
“ters concerning the High Court of “ tices.” — Rot. Parl. 31 Hen. VI.
Parliament, which is so high and Nº 25, 26, &c.
240
APPENDIX TO THE FIRST VOLUME:
N° 1.
the Commons,
on Freedom
Apology of Howbeit therefore, no man ever repaireth to your Majesty's
20 June 1604; person, but proceeds according to law, notwithstanding the writ.
of Speech, &c.
This being the universal custom of this Kingdom, it was not,
nor could be admitted into our conceits, that the difference was
between your Majesty and us (for God forbid that between so
gracious a Sovereign, and so dutiful and loving subjects, any
difference should arise) :
But it always was.and still is conceived, that the controversy
was between the Court of Chancery and our Court; an usual
controversy between Courts about their pre-eminences and
privileges :
And that the question was, whether the Chancery, or our House
of the Commons, were judge of the Members returned for it.
Wherein though we supposed the wrong done to be most
apparent, and extremely prejudicial for the rights and liberties
of this Realm,
Yet such and so great was our willingness to please your
Majesty, as to yield to a middle course proposed by your High-
ness, preserving only our Privileges by voluntary cessions of the
lawful right.
And this course, as it were, of deceiving of ourselves, and
yielding in our apparent right, wheresoever we could but invent
such ways of escape as that the precedent might not be hurtful,
we have held, dread Sovereign, more than once this Parliament,
upon desire to avoid that, which in your Majesty by misin-
formation, whereof we have had cause always to stand in doubt,
might be distasteful or not approveable : So dear hath your
Majesty's gracious favour been unto us.
In the delivery of Sir Thomas Shirley, our proceedings were
long; our defence of them shall be brief,
We
PRIVILEGE OF PARLIAMENT. 241
N° 1.
We had to do with a man, the Warden of the Fleet, so in- Apology of
tractable, and of so resolved obstinacy, as that nothing we could the Commons,
,
do, no not your Majesty's Royal word for confirmation thereof, on Freedom
of Speech, &c.
could satisfy him for his own security.
This was the cause of the length of that business ; our Privi-
leges were so shaken before, and so extremely vilified, as that
we held it not fit in so unreasonable a time, and against so mean
a subject, to seek our right by any other course of law, or by
any strength than by our own.
The Bishop of Bristow's book was injurious and grievous to
us, being written expressly with contempt of the Parliament,
and of both the Houses in the highest degree ; undertaking to
deface the reasons proposed by the Commons, approved by the
honourable Lords, confirmed by the Judges, and finally by your
Royal Majesty not disassented to.
And to increase the wrong, with strange untruths he had
perverted those reasons in their main drift and scope, pretending
that they were devised to impugn the Union itself.
Whereas both by their title and by themselves it was clear
and evident, that they were only used against alteration of name,
and that not simply, but before the Union of both Realms in
substance were perfected.
* This book being thus written and published to the world,
containing moreover sundry slanderous passages, and tending
to murmurs, distraction, and sedition ;
We could not do less against the writer thereof, than to com-
plain of the injury to the Lords of the Higher House, whereof
he had now attained to be a Member.
These wrongs were to the dignity of our House and Privileges.
Touching
* The Lords, for yielding satisfaction Bishop's book, did all agree in opinion,
unto the Lower House concerning the that the same might best be done if he
would
VOL. I.
II
242
APPENDIX TO THE FIRST VOLUME :
1
N° 1.
? on Freedom
Apology of Touching the causes appertaining to State and Church, true
the Commons; it is, we were long in treating and debating the matter of Union.
20
The propositions were new;
of Speech, &c.
The importance great;
The consequence far reaching, and not discoverable but by
long disputes; our numbers also are large, and each hath liberty
to speak.
But the doubts and difficulties once cleared or removed, how
far we are from opposing to the just desires of your Majesty,
as some evil-disposed minds would perhaps insinuate, who live
by division, and prosper by disgrace of other men, the great
expedition, alacrity, and unanimity, which was used and showed
in passing the Bill, may sufficiently testify.
For matter of religion, it will appear by examination of truth
and right, that your Majesty should be misinformed, if
any man
should deliver, that the Kings of England have any absolute
power in themselves, either to alter religion (which God defend
should be in the power of any mortal man whatsoever) or to
make any laws concerning the same, otherwise than as in tem-
poral causes, by consent of Parliament.
We have and shall at all times by our oaths acknowledge,
that your Majesty is Sovereign Lord and Supreme Governor in
both.
Touching
would voluntarily acknowledge hiinself in the end he did in these words fol-
to have committed an error in that lowing; viz.
behalf, and to be sorry for it; which
1. I confess I have erred in presuming to deliver a private sentence in a
matter so dealt in by the High Court of Parliament.
2. I am sorry for it.
3. If it were to do again, I would not do it.
4. But I protest it was done of ignorance, and not of malice towards either of
the Houses of Parliament, or any particular Member ; but only to de-
clare my affection to the intended Union, which I doubt not but all your
Lordships do allow of.
Journ. Dom. Procerum, 5 Jun. an. 1 Jac. 1.
PRIVILEGE OF PARLIAMENT. 243
the Commons,
on Freedom
N° 1.
Touching our own desires and proceedings therein, they have Apology of
not been a little misconceived and misreported.
20 June 1604;
We have not come in any Puritan or Brownish spirit to of Speech, &e.
introduce their party, or to work the subversion of the State
Ecclesiastical, as now it standeth :
Things so far and so clearly from our meaning, as that with
uniform consent in the beginning of this Parliament we com-
mitted to the Tower a man, who out of that humour, in a Pe-
tition exhibited to our House, had slandered the Bishops.
But according to the tenour of your Majesty's Writ of Sum-
mons directed to the Counties from whence we came, and ac-
cording to the ancient and long continued use of Parliaments,
as by many Records from time to time appeareth, we come
with another spirit, even with the spirit of Peace.
We disputed not of matters of faith and doctrine ; our desire
was peace only; and our device of unity, how this lamentable and
long lasting dissension amongst the ministers, from which both
atheism, sects, and all ill life have received such encouragement
and so dangerous increase, might at length, before help come
too late, be extinguished.
And for the ways of this peace, we are not at all addicted to
our own inventions, but ready to embrace
any
fit way that
may
be offered; neither desire we so much, that any man in regard
of weakness of conscience may be exempted after Parliament
from obedience unto laws established, as that in this Parliament
such laws may be enacted, as by the relinquishment of some
few ceremonies of small importance, or by any way better, a
perpetual uniformity may be enjoyed and observed.
Our desire hath also been, to reform certain abuses crept into
the Ecclesiastical State, even as into the Temporal :
And
II 2
244
APPENDIX TO THE FIRST VOLUME:
N° 1.
on Freedom
Apology of And lastly, that the Land might be furnished with a learned,
the Commons,
20 June 1604; religious, and godly ministry :
For the maintenance of whom we would have granted no
of Speech, &c.
small contributions, if in these, as we trust just and religious de-
sires, we had found that correspondency from others which was
expected.
These minds and hearts we in secret present to that Sovereign
Lord who gave them, and in public profess to your gracious
Majesty, who we trust will so esteem them.
your Council
There remains the Matters of Oppression or Grievance in the
Bill of Assarts.
Your Majesty's Council was heard, namely, your Solicitor
and Sir Francis Bacon.
It was also desired by the House, that other of your
would have been present.
We knew that our passing the Bill could not bind
your
Ma-
jesty : Howbeit, for sundry equitable considerations (as to us
they seemed) we thought good to give so much passage to the
Bill, in hope your Majesty might either be pleased to remit in
some sort unto this equity that Right, which the rigour of Law
had given, or otherwise entreated by this kind of solicitation, to
let them fall into your Majesty's hands full of piety and mercy,
and not into the jaws of devouring promoters.
And this do we understand to be your gracious intent, where-
with we rest joyfully content and satisfied.
The grievance was not unjust in rigour of law, and was par-
ticular;
But a general, extreme, unjust, and crying oppression is in
cart-takers and purveyors, who have rummaged and ransacked
since your Majesty's coming in, far more than under
your Royal Progenitors : There hath been no Prince since
Henry
any of
PRIVILEGE OF PARLIAMENT.
245
N° 1.
the Commons,
on Freedom
Henry III. except Queen Elizabeth, who hath not made some Apology of
one law or other to repress or limit them: They have no
20 June 1604;
prescription, no custom to plead.
of Speech, &c.
For there hath not been any Parliament, wherein complaint
hath not been made, and claim of our Rights, which doth in-
terrupt prescription.
We have not in this present Parliament sought any thing
against them but execution of those laws, which are in force
already.
We demand but that justice, which our Princes are sworn
neither to deny, delay, nor sell.
That we sought into the accounts of your Majesty's expence,
was not our presumption, but upon motion from the Lords of
your Majesty's Council, and after from your Officers of your
Highness's Household; and that, upon a demand of a perpetual
yearly revenue, in lieu of the taking away of those oppressions,
unto which Composition neither know we well how to yield,
being only for Justice and due Right, which is unsaleable :
Neither yet durst we impose it by Law upon the People,
without first acquainting them, and having their consents
unto it.
But if your Majesty might be pleased, in your gracious fa-
vour, to treat of Composition with us for some Grievance, which
is by Law and just; how ready we should be to take that oc-
casion and colour to supply your Majesty's desire, concerning
these also, which we hold for unjust, should appear, we nothing
doubt, to your Majesty's full satisfaction.
And therefore we come, lastly, to the matter of Wards, and
such other burthens (for so we acknowledge them) as to the
Tenures of Capite and Knights Service are incident: We cannot
forget (for how were it possible ?) how your Majesty, in a former
most gracious speech in your gallery at Whitehall, advised us, for
unjust
246
APPENDIX TO THE FIRST VOLUME:
N° 1.
Apology of unjust burthens to proceed against them by Bill: But for such
the Commons,
20 June 1604;
as were just, if we desired any case, that we should come to
of Sprecherc. yourself, by way of Petition, with tender of such countervailable
Composition in profit, as for the supporting of your Royal Estate
was requisite. According unto which your Majesty's most
favourable grant and direction, we prepared a Petition to your
most excellent Majesty, for leave to treat with your Highness
touching a perpetual Composition, to be raised by yearly revenue
out of the lands of your subjects, for Wardships and other
burthens depending upon them, or springing with them ;
wherein we first entered into this dutiful consideration, That.
this Prerogative of the Crown, which we desire to compound
for, was matter of mere profit, and not of any honour at all or
princely dignity : For it could not then, neither yet can by any
means, sink into our understandings, that these oeconomical
matters of education and marrying of Children, which are
common also to subjects, should bring any renown or reputation
to a potent Monarch, whose honour is settled on a higher and
stronger foundation : Faithful and loving subjects, valiant
soldiers, an honourable nobility, wise counsellors, a learned and
religious clergy, and a contented and a happy people, are the
true honour of a King : And contrarywise, that it would be an
exceeding great honour, and of memorable renown to your Ma-
jesty with all posterity, and in present an assured bond of the
hearts of all your people, to remit unto them this burthen, under
which our children are born.
This Prerogative then appearing to be a mere matter of
great profit, we entered into a second degree of consideration,
with how great grievance and damage of the subject, to the
decay of many houses, and disabling of them to serve their
prince and country; with how great mischief also, by occasion
of many forced and ill-suited marriages ; and lastly, with how
great
PRIVILEGE OF PARLIAMENT.
247
NJ.
,
great contempt and reproach of our nation in foreign countries ; Apology of
how small a commodity now was raised to the Crown in respect 20 June 1604;
of that, which with great love and joy and thankfulness, for the on Freedom
of Speech, &c.
restitution of this original Right in disposing of our children, we
would be content and glad to assure unto your Majesty.
We fell also from hence into a third degree of consideration,
That it might be, that in regard that the original of these
Wardships.was, serving of the King in his wars against Scotland,
which cause we hope now to be at an everlasting end ;
And in regard moreover of that general hope, which at your
Majesty's first entry, by the whole land was embraced (a thing
known unto all men) that they should be now for ever eased of
this burthen ;
Your Majesty, out of your most noble and gracious disposition,
and desire to overcome our expectation with your goodness,
may be pleased to accept the offer of a perpetual and certain
revenue, not only proportionable to the uttermost benefit that
your Progenitors ever reaped thereby, but also with
such an overplus and large addition, as in great part to supply
your Majesty's other occasions, that our ease might breed
you
plenty with their humble minds.
With these dutiful respects, we intended to crave access unto
your Majesty.
But that ever it was said in our House by any man, That it
was a slavery unto your Majesty more than under our former
princes, hath come from an untrue and calumnious report:
Our sayings have always been, That this burthen was just; that
the remitting thereof must come from your Majesty's grace;
and that the denying our suit was no wrong.
And thus, most gracious Sovereign, with dutiful minds and
sincere hearts towards your Majesty, have we truly diso
any of
secret
I
248 APPENDIX TO THE FIRST VOLUME:
N° 1.
Apology of
secret intents, and delivered our outward actions in all these so
the Commons,
20 June 1604; much traduced and blamed matters :
on Freedom
of Speech, &c.
And from henceforward shall remain in great affiance, that
your Majesty resteth satisfied, both in your grace and in your
judgment, which above all worldly things we desire to effect,
before the dissolving of this Parliament, where in so long time,
with so much pains and endurance of so great sorrow, scarce
any thing hath been done for their good and content who
sent us hither; and whom we left full of hope and joyful
expectation.
There remaineth, dread Sovereign, yet one part of our duty at
this present, which faithfulness of heart, not presumption, doth
press : We stand not in place to speak or do things pleasing.
Our care is, and must be, to confirm the love, and tye the
hearts of your subjects, the Commons, most firmly to your
Majesty.
Herein lieth the means of our well deserving of both :
There was never Prince entered with greater love, with
greater joy and applause of all his people.
This love, this joy, let it flourish in their hearts for ever.
Let no suspicion have access to their fearful thoughts, that
their Privileges, which they think by your Majesty should be
protected, should now by sinister informations or counsel be
violated or impaired :
Or that those, which with dutiful respects to your Majesty,
speak freely for the right and good of their country, shall be
oppressed or disgraced.
Let your Majesty be pleased to receive publick information
from
your
Commons in Parliament, as to the civil estate and
government: for private informations pass often by practice :
The voice of the people, in the things of their knowledge, is
said to be as the voice of God.
And
PRIVILEGE OF PARLIAMENT.
249
N° 1.
;
on Freedom
And if
your Majesty shall vouchsafe, at your best pleasure Apology of
the Commons,
and leisure, to enter into your gracious consideration of our 20 June 1604;
Petition for the ease of these burthens, under which your whole of Speech, &c.
people have of long time mourned, hoping for relief by your
Majesty; then may you be assured to be possessed of their
hearts; and, if of their hearts, of all they can do or have.
And so we, your Majesty's most humble and loyal subjects,
whose Ancestors have with great loyalty, readiness and joyful-
ness, served
your famous Progenitors, Kings and Queens of this
Realm, shall with like loyalty and joy, both we and our posterity,
serve your Majesty and your most Royal Issue for ever, with
our lives, lands, and goods, and all other our abilities :
And by all means endeavour to procure your Majesty honour,
with all plenty, tranquillity, content, joy and felicity.
VOL. I.
KK
250
APPENDIX TO THE FIRST VOLUME:
APPENDIX, Nº 2.-P. 219.
Extract from the Lords Journal, 11th December, 1667.
N° 2.
Konferent the NEXT, the Lord Chamberlain and the Lord Ashley re-
1667, touch-
ported the effect of the conference with the House of
ing Prose-
Commons yesterday, which was managed by Mr. Vaughan,
cution of
Members for who said,
Freedom of
Speech.
“ He was commanded by the House of Commons, to ac-
quaint their Lordships with some resolves of their House,
concerning the Freedom of Speech in Parliament, and to
“ desire their Lordships concurrence therein.
« In order to which, he was to acquaint their Lordships with
“ the reasons that induced the House of Commons to pass those
66
resolves.
“ He said, the House of Commons was accidentally informed
" of certain books published under the name of Sir George
“ Croke's Reports ; in one of which there was a Case pub-
“ lished, which did very much concern this great Privilege of
“ Parliament; and which passing from hand to hand amongst
“ the men of the long robe, might come in time to be a
as received opinion, as good law.
66 The House of Commons, considering the consequence, did
“ take care that this Case might be inquired into, and caused
“ the book to be produced and read in their House; and he
thought,
PRIVILEGE OF PARLIAMENT.
251
1
N° 2.
thought, that the next and clearest way to inform their Report of the
Conferencein
“ Lordships is, to read the Case itself, which is Quinto
1667, touch-
66 Caroli Primi, Michaelmas terme ; which case was read as
ing Prose-
cution of
66 followeth:
Members for
Freedom of
Speech.
“ The King versus Sir John Eliot, Denzell Holles, and
Benjamine Valentine.
66
66
66
66
“ An information was exhibited against them, by the Attor-
ney General, reciting, that a Parliament was summoned
" to be held at Westminster, decimo septimo Martii,
“ tertio Caroli Regis ibidem inchoat. and that Sir John
“ Eliot was duly elected and returned Knight for the
County of Cornwall, and the other two Burgesses of
“ Parliament for other places ; and Sir John Finch chosen
Speaker : That Sir John Eliot, machinans et intendens
66 omnibus viis et modis seminare et excitare, discord,
“ evil-will, murmurings, and seditions, as well versus Re-
gem, magnates, prelatos, proceres, et justiciarios, et reli-
quos subditos Regis, et totaliter deprivare et avertere
regimen et gubernationem regni Angliæ, tam in Do-
" mino Rege, quam in consiliariis et ministris suis cujus-
cumque generis, et introducere tumultum et confusionem
s in all estates and parts, et ad intentionem, that all the
King's subjects should withdraw their affections from the
King, the twenty-third of February, anno quarto Caroli,
“ in the Parliament and hearing of the Commons, falsò,
“ malitiosè, et seditiosè, used these words, “The King's
Privy Council, his Judges, and his Council learned, have
conspired together, to trample under their feet the liber-
• ties of the subjects of this Realm, and the liberties of
66
66
KK 2
o this
252
APPENDIX TO THE FIRST VOLUME:
N° 2.
Report of the
Conference in
1667, touch-
ing Prose-
cution of
Members for
Freedom of
Speech,
66
6 this House : “ And afterwards, upon the second of
March, anno quarto aforesaid, the King appointed the
“ Parliament to be adjourned until the 10th of March
next following, and so signified his pleasure to the House
" of Commons; and that the three defendants, the said
“ second day of March, quarto Caroli, malitiosè agreed,
« and amongst themselves conspired, to disturb and distract
“ the Commons, that they should not adjourn themselves,
according to the King's pleasure before signified; and
" that the said Sir John Eliot, according to the agreement
" and conspiracy aforesaid, had maliciously, in propositum
et intentionem prædict. in the House of Commons afore-
said, spoken these false, malicious, pernicious, and sedi-
“ tious words precedent, &c.; and that the said Denzell
6 Holles, according to the agreement and conspiracy afore-
“ said, between him and the other defendants, then and
" there, falsò, malitiosè, et seditiosè, uttered hæc falsa,
“ malitiosa, et scandalosa verba præcedentia, &c.; and
66 that the said Denzell Holles and Benjamin Valentine,
“ secundum agreamentum et conspirationem prædict. &c.;
“ ad intentionem et propositum prædict. uttered the said
“ words, upon the said second day of March, after the
signifying the King's pleasure to adjourn ; and the said
- Sir John Finch, the Speaker, endeavouring to get out of
“ the chair, according to the King's command, they vi et
armis, manu forti, et illicitò, assaulted, evil-entreated,
“s and forcibly detained him in the chair; and afterwards,
being out of the chair, they assaulted him in the House,
- and evil-entreated him, et violenter, manu forti, et
“ illicitò, drew him to the chair, and thrust him into it;
whereupon there was great tumult and commotion in
“. the House, to the great terror of the Commons there
66 assembled,
66
PRIVILEGE OF PARLIAMENT.
253
N° 2.
80
Conference
assembled, against their allegiance, in maximum con- Report of the
“ temptum, and to the disherison of the King, his Crown, in 1969,
" and dignity: for which, &c.”
touching Pro-
secution of
Members for
Freedom of
66
« To this information, the defendants appearing, pleaded to Speech.
“ the jurisdiction of the Court, That the Court ought not
to have cognizance thereof, because it is for offences
“ done in Parliament, and ought to be there examined
" and punished, and not elsewhere : It was thereupon
66 demurred, and after argument adjudged, That they
ought to answer; for the charge is for conspiracy, sedi-
“ tious acts, and practices to stop the adjournment of the
“ Parliament, which
may
be examined out of Parliament,
being seditious and unlawful acts; and this Court may
«s take cognizance, and punish them.
“ Afterwards divers rules being given against them, videlicet,
“ Sir John Eliot, That he should be committed to the
“ Tower, and should pay two thousand pounds fine, and
upon his enlargement should find sureties for his good
“ behaviour; and against Holles, that he should pay a
“ thousand marks, and should be imprisoned, and find
“ sureties, &c.; and against Valentine, that he should
pay five hundred pounds fine, be imprisoned, and find
6
sureties.
66
“ Then Mr. Vaughan laid much emphasis upon the words
66 machinans et intendens, &c. and then went on; that the
“ House of Commons had not only read the Case as it was in
“ the book, but did look in the record, where, in the informa-
“ tion itself they found some considerable differences from the
print ; as, that the crime alleged, consisting partly of words
spoken
254
APPENDIX TO THE FIRST VOLUME:
N° 2.
Report of the
Conference
in 1667,
touching Pro-
secution of
Members for
Freedom of
Speech
spoken in the House, partly of criminal actions pretended to
“ be committed. The gentlemen accused pleaded severally,
namely, specially to the words, and a several plea apart to
" the criminal actions : But the court dealt so craftily, that
they over-ruled the whole plea mingled together, and took it
“ in general ; so that perhaps whatsoever was criminal in the
actions might serve for a justification of their rule ; and
might make it seem in time to come a precedent, and a ruled
case, against the liberty of speech in Parliament, which they
“ durst not singly and bare-faced have done.
66
66
66
“ The House of Commons did take care to inquire what
“ antient laws did fortify this the greatest Privilege of both
“ Houses ; and they found, in the fourth year of Henry VIII.
an Act concerning one Richard Strowd, who was a Member
66 of Parliament, and was fined at the Stannary Courts, in the
“ West, for condescending and agreeing, with other Members
os of the House, to pass certain Acts to the prejudice of the
“ Stannaries. This Act was made occasionally for him, but
“ did reach to every Member of Parliament that then was, or
“ shall be ; the very words being, videlicet,
1
66
“ And over that, be it enacted, by the same authority, that
« all suits, accusements, condemnations, executions, fines,
“ amerciaments, punishment, corrections, grievances,
“ charges, and impositions, put or had, or hereafter to be
put or had, unto or upon the said Richard, and to every
“. other of the person or persons afore specified, that now
“ be of this present Parliament, or that of any
Parliament
“ hereafter shall be, for any Bill, speaking, reasoning, or
declaring, of any matter or matters concerning the
“ Parliament, to be communed and treated of, be utterly
66 void
66
PRIVILEGE OF PARLIAMENT. 255
Conferencein
66
cution of
Freedom of
N 2.
66 void and of none effect: And over that, be it enacted by Report of the
“ the said authority, that if the said Richard Strowd, or
1667, touch-
any of all the said other person or persons, hereafter being prose-
“ vexed, troubled, or otherwise charged, for any causes as Members for
" is aforesaid ; that then he or they, and every of them, so
Speech.
66 vexed or troubled of or for the same, to have action upon
" the case against every such person or persons so vexing
or troubling any, contrary to this ordinance and pro-
vision, in the which action the party grieved shall re-
cover treble damages and costs ; and that no protection,
essoign, nor wager of law, in the sai daction, in any wise,
“ be admitted nor received.
“ He said, 'Tis very possible the plea of those worthy persons
“ Denzell Holles, Sir John Eliot, and the rest, was not sufficient
us to the jurisdiction of the Court, if you take in their criminal
" actions altogether; but as to the words spoken in Parliament,
“ the Court could have no jurisdiction, whilst this act of the
66 fourth of Henry VIII. is in force, which extends to all
6. Members that then were, or ever should be, as well as Strowd;
" and was a public general law, though made upon a private
“ and particular occasion.
to
“ He recommended to their Lordships the consideration of
«s the time when these words, in the case of Sir George Croke's
Reports, were spoken, which was the ad of March, 4
64 Caroli Primi, being in that Parliament which began in the
precedent March, 3° Caroli, at which time the judgment
given in the King's Bench about Habeas Corpus, was newly
reversed, which concerned the freedom of our persons; the
liberty of speech invaded in this Case; and not long after
“ the same judges, with some others joined with them, in
" the
256
APPENDIX TO THE FIRST VOLUME:
N° 2.
Conference
in 1667,
Prosecution
of Members
for Freedom
66 If
Report of the “ the case of ship-money, invaded the propriety of our goods
66 and estates : So that their Lordships find every part of
touching
" these words, for which those worthy persons were accused,
justified.
of Speech.
any man should speak against any of the great officers, as
“ the Chancellor, or Treasurer, or any of the rest recited in those
acts, as by accusing them of corruption, ill council, or the
“ like, he might possibly justify himself by proving of it: But
“ in this case it was impossible to do it, because these judgments
“ had preceded and concluded him ; for he could make none,
"s but by alleging their own judgments, which they themselves
“ had resolved, and would not therefore allow to be crimes,
“ which they had made for laws.
“ He did inform their Lordships, that the Bill in the Rolls
“ hath another title than that he did mention; this being that
“ the Clerks knew it by, rather than the
proper title.
66
“ The words in the Case are charged eâ intentione ; which
ought not to be; for it is clear and undoubted law, that
6 whatever is in itself lawful, cannot have an unlawful intent
“ annexed to it. Things unlawful may be made a higher
« crime by the illness of the intent.For instance, taking away
my horse, is a trespass only; but intending to steal him,
“ makes it felony: Borrowing my horse, though intending to
“ steal him, is not felony, because borrowing is lawful, and
“ there were no use of freedom of speech otherwise ; for a de-
praved intention may be annexed to any the most justifiable
" action: If a man eat no flesh, he may be accused for the
depraved intention of bringing in the Pythagorean Religion,
56 and subverting the Christian. If a man drink water, he may
66 be
PRIVILEGE OF PARLIAMENT.
257
N° 2.
“ be accused of the depraved intention of subverting the King's Report of the
“ Government, by destroying his revenue both of Excise and
66 Custom.
touching Pro-
Conference
in 1667,
secution of
Members for
Freedom of
Speech.
66
“ No man can make a doubt, but whatever is once enacted
“ is lawful; but nothing can come into an Act of Parliament,
66 but it must be first affirmed or propounded by somebody ; so
that, if the Act can wrong nobody, no more can the first
pro-
có
pounding: The Members must be as free as the Houses.
“ An Act of Parliament cannot disturb the State ; therefore
" the debate that tends to it cannot, for it must be propounded
6 and debated before it can be enacted.
66
66
as
«« In the reign of Henry VIII. when there were so many
persons taken by Act of Parliament out of the Lords House,
the Abbots and Priors, and all the religious houses and
“ lands taken away; it had been a strange information against
any Member of the Parliament then, for propounding so
great an alteration in Church and State.
66
66
«« Besides, Religion itself began then to be altered, and was
“ perfected in the beginning of Edward VI.'s reign, and re-
“ turned again to Popery in the beginning of Queen Mary's,
“ and the Protestant Religion restored again in the beginning
66 of Queen Elizabeth's.
“ Should a Member of Parliament, in any of these times,
“ have been justly informed against in the King's Bench, for
propounding or debating any of these alterations ? So that
“ their Lordships perceive the reasons and inducements the
“ House of Commons had to pass these votes now presented to
6 their Lordships."
VOL. I.
LL
After
258
APPENDIX TO THE FIRST VOLUME:
N° 2.
After this, the votes were read, videlicet,
Report of the
Conference
in 1667,
touching Pro-
secutior of
Members for
Freedom of
Speech.
66
66
Resolved, &c. That the Act of Parliament quarto Hen- .
“ rici VIII. commonly intituled, “ An Act concerning Richard
“ Strowd, is a general law, extending to indemnify all and
every
the Members of both Houses of Parliament, in all Par-
66 liaments, for and touching any Bills, speaking, reasoning, or
declaring, of
any matter or matters in and concerning the
" Parliament, to be communed and treated of; and is a decla-
ratory law of the ancient and necessary Rights and Privileges
66 of Parliament.
“ Resolved, &c. That the Judgment given quinto Caroli
against Sir John Eliot, Denzell Holles, and Benjamin Valen-
tine, Esquires, in the King's Bench, was an illegal judgment,
" and against the Freedom and Privilege of Parliament."
To both which votes the Lords agree with the House of
Commons.
.
PRIVILEGE OF PARLIAMENT.
259
APPENDIX, Nº 3-p. 219.
Extract from the Commons Journal, 24th April, 1640.
THESE heads following were by the Committee, accord- Report of
ing to yesterday's order, brought in, as inducements 24 Apr. 1640,
touching
66 and matter for the conference to be desired with the Lords :
66
Grievances.
66 Sir W. Erle reports from the Committee, appointed to
prepare the inducements for the conference with the Lords,
66 in hæc verba, viz.
IN DU CE M E N T S.
“ (1.) Concerning Innovation in Matters of Religion.
1.
66
66
The commission that was lately granted to the Con-
66 vocation House :-the rather because of the Innovations
brought in and practised, when there was no such com-
66 mission.
2. The complaints arising from the petitions brought in
“ from the several counties, by the Members of the House,
66 against Innovations in Religion.
“ 3. The molesting and depriving of godly and conformable
ministers, for not yielding to matters enjoined without warrant
66 of law.
4. The publishing of Popish tenets, in licensed books,
“ sermons, and disputations.
5. Restraining
L L 2
66
260 APPENDIX TO THE FIRST VOLUME:
N° 3:
66
Report of
5.
Restraining of conformable ministers from preaching
24 Apr. 1640, 66 in their own charges.
touching
Grievances.
66
(2.) Concerning Propriety of Goods.
66
1. Monopolies, and restraint of trade.
2. Ship-money.
3. Enlarging the bounds of forests, beyond what they
“ have been for some hundreds of years last past.
4. Military charges, viz. coat and conduct-money, wages,
arms taken from the owners ; forcing the counties to buy
or provide, at their charges, horses and carts, by way of
66
66
tax.
5. The denial of justice in the Courts at Westminster, to
" the subject's prejudice, in point of the propriety of his goods.
“ 6. Frequent imprisonments and vexations for non-payment
“ of unwarrantable taxes, and not submitting to unlawful
monopolies,
(3.) Liberties and Privileges of Parliament
66
1. Punishing men, out of Parliament, for things done in
“s Parliament.
« 2. That which is already voted in the House, concerning
Privilege of Parliament.
3. Sudden dissolving of Parliaments without redress of
grievances.—Laid by for the present, and not put to the
question.
Lastly (as that which relates unto all, and is a great
cause of all the former grievances), the not holding of
• Parliaments
GC
PRIVILEGE OF PARLIAMENT.
261
Nº 3
“ Parliaments every year, according to the laws and statutes Report of
24 Apr. 1640,
56 of this Realm.-Laid by for the present, and not put to
touching
- the question.
Grievances,
“ That business of pressing the Trained Bands out of the
“ counties was only moved ; and nothing more done in it at
66 this time.
“ A transcript of the commission lately granted to the Con-
56 vocation House, was read.
“ Motion was made, That this House might be informed, by
“ what means this transcript was had.
Whereupon Mr. Holborne, one of that Select Committee
" that was appointed to view this commission, said, that, accord-
ing to this House's order, they repaired to the Lord **, who
as told them, that if they had come to him before any question
“ had been made of this business,—but now desired he might
“ first acquaint his Majesty ; which he did ; and, at our repair
again unto him the same evening he gave us leave, not only
" to see it, but to have this transcript of it.
“ The first question was upon the commission that was
lately granted to the Convocation,—Whether this matter of
“ the commission lately granted to the Convocation, shall be one
" of the heads of the conference with the Lords, to the end to
prevent any innovations in matter of Religion.
- Innovation in Matter of Religion.
“ 1. Resolved, upon the question, That, in this conference
“ with the Lords, for prevention of innovations in matter of
Religion,
66
262
APPENDIX TO THE FIRST VOLUME:
N° 3.
Report of
24 Apr. 1640,
touching
Grievances.
60
Religion, there shall be use made of this commission lately
granted to the Convocation, the rather because of the com-
plaints of innovations practised before the grant of this
66 commission.
“ 2. Resolved, upon the question, That, in this conference
“ with the Lords, use shall be made of the complaints arising
“ from the petitions brought in by the several Members of the
House, from several counties, against innovations in matter
6 of religion.
60
CG
3. Resolved, upon the question, That, in this conference
6 with the Lords, use shall be made of the complaints that
“ have been made here, for the molesting and depriving of
godly and conformable ministers, for not yielding to matters
“ enjoined, complained of to be without warrant of law.
6 4. Resolved, upon the question, That, in this conference
“ with the Lords, use shall be made of the complaints that
“ have been made, for the publishing of Popish tenets, con-
trary to the doctrine of the Church of England, in licensed
“ books, sermons, and disputations.
5. Resolved, upon the question, That, in this conference
66 with the Lords, use shall likewise be made of the complaints
“ that have been made, touching the restraint of conformable
“s ministers from preaching in their own charges.
66
Propriety of Goods.
1. Resolved, upon the question, That, in this conference
“ with the Lords, use shall be made of the complaints that
“ have been here presented, touching monopolies, and restraint
66 of trade.
2. Resolved, upon the question, That, in this conference
“ with the Lords, use shall be made of the complaints that
“ have been, touching ship-money.
3. Resolved,
PRIVILEGE OF PARLIAMENT:
263
N° 3
66
Grievances.
.
3. Resolved, upon the question, That, in this conference Report of
24 Apr. 1640,
66 with the Lords, use shall be made of the complaints that touching
“ have been had, of enlarging the bounds of forests, beyond
“ what they have been for some hundreds of years last past.
4. Resolved, upon the question, That, in this conference
66 with the Lords, use shall likewise be made of the complaints
“s that have been had, concerning military charges, viz. coat
“ and conduct-money, wages, arms taken from the owners,
“ forcing the counties, to buy or provide, at their charges,
“ horses and carts, by way of tax.
5. Resolved, upon the question, That, in this conference
66 with the Lords, use shall be likewise made of the complaints
“ that have been had, concerning denial of justice in the Courts
at Westminster, to the subject's prejudice, in point of the
propriety of his goods.
" 6. Resolved, upon the question, That, in this conference
56 with the Lords, use shall be likewise made of the complaints
“ that have been, for the frequent imprisonments and vexations
“ for non-payment of unwarrantable taxes, and not submitting
“ to unlawful monopolies.
Liberties and Privileges of Parliament.
“ j. Resolved, upon the question, That, in this conference
“ with the Lords, use shall be likewise made of the complaints
" that have been, touching the punishing of men out of Par-
liament, for things done in Parliament.
2. Resolved, upon the question, That, in this conference
66 with the Lords, use shall likewise be made of that which is
already voted in this House, touching Privilege of Par-
(6 liament.
CO
“ The other propositions,–Of sudden dissolving of Parlia-
ments, without redress of grievances,—and that, Of not
66 holding
264
APPENDIX TO THE FIRST VOLUME:
N° 3.
Report of
24 Apr. 1640,
touching
Grievances.
“s holding Parliaments once a year,—and that, Of pressing the
“ Trained Bands out of their proper Counties,—were for this
present laid aside, and not put to the question.
“ Mr. Treasurer, Mr. Comptroller, Mr. Secretary Winde-
“ bank, Mr. Holborne, Mr. Edw. Hyde, Mr. St. John,
“ Dr. Jones, Dr. Eden, Sir Robt. Harley, Mr. Vaughan, Sir
“ Ben. Rudyard, Sir M. Fleetewood, Mr. Pym, Mr. Hampden,
“ Sir Tho. Paddington, Sir Fr. Seymour, Mr. Crewe, Sir
“ H. Martyn, Mr. Bridgman, Mr. Grimston, Mr. Kirton, Sir
“ Jo. Strangeways, Sir Peter Hayman, Sir Walth. Erle, Mr. Lent-
" hall, Sir Oliver Luke, Sir Wm. Masham, Sir Christ. Hatton,
“ Sir Robt. Cooke, Lord Digby, Sir Jo. Hotham, Sir Hugh
Cholmeley, Sir Jo. Culpepper, Mr. Maynard, Mr. Hatcher,
“ Lord Ruthyn, Mr. Glynn.
1
66
“ This Committee is to use all expedition in preparing and
giving directions for the managing of the business of this con-
«« ference; and have power to send for records and witnesses ;
“ and are to report it to the House to-morrow morning, if pos-
66 sible; and are to meet this afternoon at two of the clock in
6 the Court of Wards.
66
“ Mr. Vassal moved, that his particular grievance, of having
“ his goods, viz. six hundred and odd pounds, detained from
“ him, by colour, as he said, of orders from the Lords of the
Privy Council, might be inserted, as one of the inducements
6 for this conference : But it was said, it might serve for an
“ instance in one of the particulars contained under the head
“ of propriety of goods ; and so it was passed by, and no fur-
“ther resolution taken in it.”
PRIVILEGE OF PARLIAMENT.
265
APPENDIX, Nº 4:--. 222.
Extracts from RUSHWORTH (Vol. IV. p. 474.)
N° 4.
6
THI
HE House of Peers sent a message to the Commons Account of
Car. I. coming
(who were then in debate of his Majesty's answer to the House
concerning their desire of a guard) to acquaint them that five Members.
some of their Members were accused in the Lords House of
high treason by the King's Attorney General.
“ At the same time information was also brought them, that
66 several persons were sealing up the trunks, doors, and
papers,
belonging to Mr. Pym and Mr. Holles, and afterwards of
" the other accused Members; whereupon it was ordered by
“ the House of Commons, that the Serjeant attending this
66 House shall have power to break open the said doors, and
“ the seals upon the trunks, &c; and the Speaker to sign a
“ warrant to apprehend the said persons and likewise they
passed this following Order :
Die Lunæ, 3 January 1641.
* It is this day ordered, upon the question, by the Commons
· House of Parliament, that if any persons whatsoever shall
come to the lodgings of any Member of this House, and
• there do offer to seal the trunks, doors, or papers of any
VOL. I.
• Member
6
MM
266
APPENDIX TO THE FIRST VOLUME:
NO 4.
6
Account of
Car. I. coming
to the House
to demand the
five Members.
6
· Member of this House, or to seize upon their persons, that
then such Members shall require the aid of the Constable, to
keep such persons in safe custody, till this House do give
* further order. And this House doth further declare, that if
any person whatsoever shall offer to arrest or detain the person
• of any Member of this House, without first acquainting this
· House therewith, and receiving further order from this House,
« that it is lawful for such Member, or any person to assist him,
• and to stand upon his and their guard of defence, and to make
' resistance, according to the Protestation taken to defend the
Privileges of Parliament.
' H. Elsynge, Cler. Parl. D. Com.'
6
" And immediately the Commons sent up Mr. Walter
“ Long, to desire a conference with the Lords about breach of
Privileges: the heads of which conference were to this
purpose :
66
“ That the violating of the Privilege of Parliament, is the
66 overthrow of Parliament. That by the Protestation taken
by both Houses of Parliament, to defend the Privileges of
“ Parliament, both Houses are concerned in the breach of
66 either. That the trunks, chambers, and studies of divers
“ Members of this House are this day sealed up. That the
“ Parliament, as the great Council of the kingdom, ought to
“ sit as a free Council, and no force ought to be set about them
66 without their consent. That, notwithstanding, there is a guard
“ in a warlike manner placed at Whitehall, to the breach
w of the Privilege of Parliament. Also to desire the Lords, that
66
such a guard may be set about the Parliament as shall be
ap-
“ proved of by both Houses, or else to join with this House to
adjourn to a place of safety; and the House ordered Mr.
Glyn,
PRIVILEGE OF PARLIAMENT.
267
N 4
EC
Glyn, Sir Philip Stapelton, and Mr. Fiennes, to manage this Account of
Car.I.coming
6 conference.
to the House
to demand the
five Members.
“ Whilst these Members were about to go to the Lords
“ House, Serjeant Francis being come to the door of the
“ House, having the mace in his hand, sends in word that
“ he was at the door of that House, and had a command to
“ deliver a message from his Majesty to Mr. Speaker; where-
“ upon he was called in to the bar (but without his mace) and
«« there he delivered this message, viz.
6
· I am commanded by the King's Majesty, my master, upon
my allegiance, that I should come and repair to the House of
• Commons, where Mr. Speaker is, and there to require of Mr.
Speaker five Gentlemen, Members of the House of Com-
mons; and those Gentlemen being delivered, I am com-
manded to arrest them in his Majesty's name of high treason:
• Their names are Denzell Holles, Sir Arthur Haslerig, John
Pym, John Hampden, and William Strowd.'
6
6
“ After he delivered his message, the House commanded him
“ to withdraw, and appointed Sir John Culpepper, Lord Falk-
land, Sir Philip Stapleton, and Sir John Hotham, to attend
“ his Majesty, and to acquaint him, That this Message from his
Majesty was a matter of great consequence; that it con-
“ cerneth the Privilege of Parliament, and therein the Privilege
“ of the Commons of England: That this House will take it
66 into serious consideration, and will attend his Majesty with
an answer, in all humility and duty, with as much speed as
" the greatness of the business will permit; and in the mean
6 time the said Members shall be ready to answer any legal
charge made against them.
M M2
66
66 At
268
APPENDIX TO THE FIRST VOLUME!
N° 4.
66
Account of
Car. I. coming
to the House
to demand the
five Members.
66
“ At this time Mr. Speaker, by command of the House,
enjoined these five Members before named, particularly (one
by one) to give their attendance on this House de die in
66 diem, till the House take further order; and further or-
“ dered, that to-morrow morning, at ten of the clock, the
“ House be turned into a Grand Committee, to take into
s consideration the message sent by Serjeant Francis from the
King concerning the said Members.
“ Mr. Glyn reports the conference this day had with the
“ Lords concerning this matter, that the Lords had made an
“ order to open the doors and trunks of the Members of both
“ Houses, which were shut up and sealed ; and that they have
“ resolved to join with this House in an humble Petition to
“ the King, to desire that such a guard as himself and both
“ Houses of Parliament shall approve of, may be appointed ;
“ and that they have appointed two Lords to attend the King,
“ with a proportionable number of the Members of this House,
66 in this matter.
" Then the House returned answer to Serjeant Francis (who
« attended all this while at the door of the House of Commons)
“ That this House will send an answer to his Majesty, to the
message the Serjeant brought, by Members of their own:
“ whereupon he returned.
« The House being informed, that it was Sir William Flem-
ming, Sir William Killigrew, and other Gentlemen, who
66 sealed
up the studies and doors of the five Members, ordered
" that they should be forthwith apprehended by the Serjeant at
“ Arms attending this House, and to remain in the custody of
" the Serjeant of this House till further order.
card
66 The
PRIVILEGE OF PARLIAMENT.
269
N° 4.
“The Lord Falkland reported the King's answer to the said Account of
Car.I. coming
message, delivered the last night to his Majesty, concerning to the House
6c the breach of Privilege of Parliament, in accusing five Mem- to demand the
“ bers of this House, and sending Serjeant Francis with the
mace to seize upon their persons.
five Members.
“ That at the delivery of this message to the King, his
“ Majesty did ask the Lord Falkland, Whether the House did
expect an answer ? and before the Lord Falkland made an-
swer, his Majesty said he would send an answer this morning
(being the 4th of January) as soon as the House was set;
" and in the mean time he bid him acquaint the House, that
6s the Serjeant at Arms did nothing but what he had directions
66 from himself to do.
“ After the report of this answer of the King's, the House
ss of Commons presently ordered, That a conference be desired
** with the Lords, to acquaint them, that there is a scandalous
Paper published, containing articles of high treason against
66 the Lord Kimbolton, of the House of Peers ; Denzell Holles,
" Sir Arthur Haslerig, John Pym, John Hampden, and William
“ Strowd, Members of the House of Commons. And that for-
“ asmuch as it being against the Members of both Houses,
they do desire the Lords, that right may be done against the
publishers of the said scandalous Paper, and to inquire who
are the authors and publishers thereof, that they may receive
condign punishment, and that the Commonwealth may be
secured against such persons.
S
6 The Gentlemen of the Inns of Court having, upon the
“ apprehensions of tumults, offered themselves to be a guard
to his Majesty, and the Parliament understanding there had
66 been
270
APPENDIX TO THE FIRST VOLUME:
N° 4.
Account of
Car. I. coming
to the House
to demand the
five Members.
66
66
66
« been some .practices used to bid them be this day in readi-
ness, sent some of their Members to the four Inns of Court,
to inquire into the same, who now made their report; and
“ first Mr. Brown spake, and said, That he had done the message
enjoined him by this House, to the gentlemen of the society
“ of Lincoln's Inn, and received this answer, viz. That they
“had at first gone to the Court this last week, only upon
“ occasion of a report brought to them, that the King's person
was in danger. That yesternight they had received a message
“ from his Majesty by Sir William Killigrew, and Sir William
Flemming, that they should keep within this day, and be
ready at an hour's warning, if his Majesty should have oc-
“ casion to use them. That they likewise brought a paper
of
“ articles to them, by which the Lord Mandeville, and five
“ Members of the House of Commons were accused of high
That they had only an intent to defend the King's
person, and would do their utmost also to defend the Par-
“ liament; being not able to make any distinction between the
King and his Parliament: and that they would ever express
“ all true affection to the House of Commons in particular.
“ Mr. Ellis of Gray's Inn, Mr. Hill of the Inner Temple, and
" Mr. Smith of the Middle Temple, made the like relation
“ from the gentlemen of those other three societies; only the
gentlemen of the Middle Temple sent their answer in writing,
" by the said Mr. Smith; in which they showed, that their
“s intention to defend the King's person was no more than they
" were bound unto by the oath of allegiance: with which
“ several answers from the Inns of Court the House rested well
66 satisfied.
treason.
66
• The said five accused Members, this day after dinner, came
“ into the House, and did appear according to the special order
66 and
PRIVILEGE OF PARLIAMENT.
271
N4.
66
65 and injunction of the House laid upon them yesterday, to Account of
Car. I. coming
give their attendance upon the House, de die in diem; and
to the House
6
their
appearance was entered in the Journal.
five Members.
to demand the
66
66
They were no sooner sate in their places, but the House
was informed by one Captain Langrish, lately an officer in
arms in France, that he came from among the officers and
“ soldiers at Whitehall, and understanding by them that his
Majesty was coming with a guard of military men, com-
“ manders, and soldiers, to the House of Commons; he passed
by them with some difficulty to get to the House before them;
6 and sent in word how near the said officers and soldiers were
come. Whereupon a certain Member of the House *, having
“ also private intimation from the Countess of Carlisle, sister
to the Earl of Northumberland, that endeavours would be
“ used this day to apprehend the five Members, the House re-
quired the five Members to depart the House forthwith, to
“ the end to avoid combustion in the Housè, if the said soldiers
“ should use violence, to pull any of them out. To which com-
“ mand of the House, four of the said Members yielded ready
« obedience; but Mr. Strowd was obstinate, till Sir Walter
“ Erle (his ancient acquaintance) pulled him out by force, the
King being at that time entering into the New Palace Yard,
6 in Westminster. And as his Majesty came through West-
« minster Hall, the commanders, reformadoes, &c. that at-
" tended him, made a lane on both sides the hall (through
“ which his Majesty passed, and came up the stairs to the
“ House of Commons) and stood before the guard of pen-
~ sioners and halberteers (who also attended the King's per-
son): and the door of the House of Commons being thrown
open,
* This Member was Mr. Pym.-See Sir Philip Warwick's Memoirs, p. 204.
272
APPENDIX TO THE FIRST VOLUME:
N 4.
Account of
Car.I. coming
to the House
to demand the
five Members.
open, his Majesty entered the House ; and as he passed up
“ towards the Chair, he cast his eye on the right hand, near
“ the Bar of the House, where Mr. Pym used to sit; but his
Majesty not seeing him there (knowing him well) went up
6 to the Chair, and said, “By your leave, Mr. Speaker, I must
6 borrow
Your Chair a little :' whereupon the Speaker came out
“c of the Chair, and his Majesty stept up into it. After he had
“ stood in the chair a while, casting his eye upon the Members
as they stood up uncovered, but could not discern any of the
“ five Members to be there ; nor indeed were they easy to be
“ discerned (had they been there) among so many bare faces
«s all standing up together :
" Then his Majesty made this speech :
· Gentlemen,
· I am sorry for this occasion of coming unto you. Yesterday I
sent a Serjeant at Arms, upon a very important occasion, to ap-
prehend some that, by my command, were accused of high treason;
' whereunto I did expect obedience, and not a message. And I must
• declare unto you here, that albeit no King that ever was in Eng-
• land shall be more careful of your Primileges, to maintain them
to the uttermost of his power, than I shall be ; yet you must know
that, in case of treason, no person hath a Privilege. And there-
'fore I am come to know if any of these persons, that were accused,
are here : for I must tell you, gentlemen, that so long as these
persons that I have accused (for no slight crime, but for treason)
are here, I cannot expect that this House will be in the right way
• that I do heartily wish it: therefore I am come to tell
must have them wheresoever I find them. Well, since I see all the
· birds are flown, I do expect from you, that you shall send them unto
me, as soon as they return hither. But I assure you, on the word
6
you, that I
6
5
6
of
PRIVILEGE OF PARLIAMENT.
273
N° 4.
of a King, I never did intend any force, but I shall proceed Account of
against them in a legal and fair way, for I never meant
6
Car. I. coming
to the House
to demand the
five Members.
any other.
And now, since I see I cannot do what I came for, I think
• this no unfit occasion to repeat what I have said formerly, That
" whatsoever I have done in favour and to the good of my subjects,
"I do mean to maintain it.
· I will trouble you no more, but tell you I do expect, as soon
as they come to the House, you will send them to me; otherwise
" I must take my own course to find them.'
6C
" When the King was looking about the House, the Speaker
standing below by the Chair, his Majesty asked him, “Whether
any of these persons were in the House? Whether he saw
any
of them ? and, Where they were?' To which the Speaker,
falling on his knee, thus answered :
? May it please your Majesty,
I have neither eyes to see, nor tongue to speak, in this place,
“ but as the House is pleased to direct me, whose servant I am
here ; and humbly beg your Majesty's pardon, that I cannot
give any other answer than this, to what your Majesty is pleased
' to demand of me.
6
6
“ The King having concluded his speech, went out of the
“ House again, which was in great disorder ; and
disorder; and many Mem-
66 bers cried out aloud, so as he might hear them, Privilege !
Privilege ! and forthwith adjourned till the next day, at one
66 of the clock.
66
VOL. I.
NN
66 The
274 APPENDIX TO THE FIRST VOLUME:
to the House
to demand the
five Members.
16
N. 4.
Account of “ The same evening his Majesty sent James Maxwell, Usher
Car.I coming o of the House of Peers, to the House of Commons, to require
Mr. Rushworth, the Clerk Assistant, whom his Majesty had
“ observed to take his speech in characters at the Table in the
“ House, to come to his Majesty; and when Maxwell brought
“ him to the King, his Majesty commanded him to give him a
copy of his speech in the House. Mr. Rushworth humbly
“ besought his Majesty (hoping for an excuse) to call to mind
“ how Mr. Francis Nevil, a Yorkshire Member of the House of
“ Commons, was committed to the Tower, but for telling his
Majesty what words were spoken in the House by Mr. Henry
“ Bellasis, son to the Lord Faulconbridge ; to which his Majesty
smartly replied, “ I do not ask you to tell me what was said by
any Member of the House, but what I said myself:' Whereupon
“ he readily gave obedience to his Majesty's command, and in
“ his Majesty's presence, in the room called the Jewel House, he
“ transcribed his Majesty's speech out of his characters, his
Majesty staying in the room all the while. And then and
" there presented the same to the King, which his Majesty was
pleased to command to be sent speedily to the press, and the
“ next morning it came forth in print.
6
CC
66
“ The Commons sent Mr. Fiennes with a message to the
“ Lords, to give them notice of the King's coming yesterday,
“s and that they conceived it a high and great breach of Pri-
vilege; and to repeat their desires, that their Lordships would
join with them in a petition to the King, that the Parliament
may have a guard to secure them, as shall be approved of by
“ his Majesty and both Houses; and also to let them know,
" that they have appointed a committee to sit at Guildhall,
“ London; and have also appointed the Committee for the
66 Irish affairs to meet there.
66 Then
PRIVILEGE OF PARLIAMENT.
275
N° 4.
" Then falling into further detail about yesterday's trans- Account of
Car. I. coming
" actions, passed the following Order :
to the House
to demand the
five Members.
Die Mercurii, 5 Januarii.
• Whereas his Majesty in his royal person, yesterday, being
" the 4th of January 1641, did come to the House of Com-
mons, attended with a great multitude of men armed in a
“ warlike manner, with halberts, swords, and pistols, who came
up to the very door of the House, and placed themselves
“s there, and in other places and passages near to the House, to
“ the great terror and disturbance of the Members thereof then
sitting, and, according to their duty, in an orderly and peace-
“ able manner treating of the great affairs of both kingdoms of
England and Ireland; and his Majesty having placed himself
6 in the Speaker's Chair, did demand the persons of divers
Members of the House to be delivered unto him ;
66
66
6
“ It is this day declared by the House of Commons, that the
same is a high breach of the Rights and Privileges of Parlia-
“ ment, and inconsistent with the liberty and freedom thereof;
" and therefore this House doth conceive they cannot, with the
safety of their own persons, or indemnity of the Rights and
Privileges of Parliament, sit here any longer without a full
“ vindication of so high a breach, and sufficient guard wherein
they may confide; for which both Houses jointly, and this
“ House by itself, have been humble suitors to his Majesty, and
cannot yet obtain.
“ Notwithstanding which, this House being very sensible of
“ the greatest trust reposed in them, and especially at this time
66 of the manifold distractions of this kingdom, and the lament-
“ able and distressed condition of the kingdom of Ireland, doth
5 order that this House shall be adjourned till Tuesday next,
N N 2
at
276
APPENDIX TO THE FIRST VOLUME:
N° 4.
Account of
Car. I. coming
to the House
to demand the
five Members.
66
" at one of the clock in the afternoon, and a Committee be
«« named by this House, and all that will come to have voices,
shall sit at the Guildhall in the City of London, to-morrow
morning at nine of the clock, and shall have power to consider
“s and resolve of all things that may concern the good and
safety of the City and Kingdom, and particularly how our
“ privileges may be vindicated, and our persons secured ; and
66 to consider of the affairs and relief of Ireland ; and shall have
power to consult and advise with any person or persons touch-
ing the premises; and shall have power to send for parties,
“ witnesses, papers, and records : And it is further ordered, that
66 the Committee for Irish affairs shall meet at the Guildhall
“ aforesaid, at what time they shall think fit, and consult and do
touching the affairs of Ireland, according to the power formerly
given them by this House; and both the said Committees shall
report the results of their consideration and resolution to this
“ House. The names of the Committee do follow, viz.
66
66
66
66
66
“ Mr. Chancellor of the Exchequer, Mr. Glyn, Mr. Whit-
lock, Lord Falkland, Sir Philip Stapleton, Mr. Nathaniel
“ Fiennes, Sir Ralph Hopton, Sir John Hotham, Sir Walter
Earl, Sir Robert Crook, Sir Thomas Walsingham, Sir Samuel
Roll, Mr. Pierpoint, Mr. Walter Long, Sir Richard Cave,
66 Sir Edward Hungerford, Mr. Grimstone, Sir Christopher Wray,
“ Sir Benjamin Rudyard, Sir John Heppisley, Mr. Herbert
6 Price, Sir John Wray, Sir Thomas Barrington, Mr. Wheeler,
66 Sir William Litton: And all that will come are to have voices
6 at this Committee *.
“s And then the House adjourned till Tuesday the 11th of
January, at one in the afternoon, according to the said order.
66 The
* Mr. Edward Hyde (afterwards Lord Clarendon) was not appointed of this
Committee.
PRIVILEGE OF PARLIAMENT.
277
.
N°4.
to the House
66
five Members.
“ The same day his Majesty was also pleased to go into Account of
Can I. coming
- London with his usual attendance; and in his passage some
“
people did cry out aloud, Privileges of Parliament ! Privileges to demand the
of Parliament ! And one Henry Walker, an ironmonger and
pamphlet-writer, threw into his Majesty's coach a paper,
“s wherein was written, “ To your tents, O Israel ! For which he
was committed, and afterward proceeded against at the
56 Sessions.
66
“ His Majesty being arrived at Guildhall, and the Common
“ Council assembled, he made this speech to them:
“ Gentlemen,
· I am come to demand such persons as I have already accused
of high treason, and do believe are shrouded in the City. I hope
no good man will keep them from me ; their offences are treason,
• and misdemeanors of an high nature. I desire your loving as-
“sistance herein, that they may be brought to a legal trial.
· And whereas there are divers suspicions raised, that I am a
favourer of the Popish Religion ; I do profess, in the name of a
King, that I did and ever will, and that to the utmost of my
power, be a prosecutor of all such as shall any ways oppose the
- laws and statutes of this kingdom, either Papists or Separatists;
' and not only so, but I will maintain and defend that true Pro-
• testant Religion which my father did profess, and I will continue
- in it during life.'
“ His Majesty was nobly entertained that day in London, at
" the house of one of the Sheriffs ; and after dinner returned to
“ Whitehall without interruption of tumults.”
278
APPENDIX TO THE FIRST VOLUME:
APPENDIX, Nº 5.
Report from the Committee of Privileges ; 23 March 1815.
The COMMITTEE OF PRIVILEGES, to whom the Letter of
William Jones, Esquire, Marshal of the King's Bench Prison,
stating, “ that he had taken Lord Cochrane (who had made
his escape from out of the King's Bench Prison) into
custody, in the House of Commons," was referred ; and
who were to examine the matter thereof, and to report the
same, together with their Opinion thereupon ;-
و
N' 5.
Arrest
of Lord
Cochrane in
the House.
HAVING read the Letter from the Marshal of the King's
Bench to Mr. Speaker, giving an account of his having
arrested Lord Cochrane within the walls of this House, on the
21st Instant, proceeded to inquire into the circumstances of the
subject matter referred to their consideration :
And They find,
That Lord Cochrane having been indicted and convicted for
a Conspiracy, was committed by the Court of King's Bench
on the 21st day of June 1815:
That from the date of the said Commitment no pardon, nor
any remission of the confinement of Lord Cochrane had been
granted :
That
PRIVILEGE OF PARLIAMENT.
279
Nº 5.
That between the 5th day of March and the 10th day Arrest
of March last, Lord Cochrane escaped from the Prison of Lord
above mentioned, and remained at large until the 21st of this the House.
Month:
Cochrane in
That on the day last mentioned, Lord Cochrane went between
the hours of one and three to the Clerk's room in which Mem-
bers are usually sworn previously to taking the oaths at the
Table of the House ; and being informed it was necessary he
should have the Certificate of his Return with him, sent for the
same to the Crown Office, and went into the House, where he
sat down on the Privy Councillors Bench on the right hand of
the Chair, at which time there was no Member present, Prayers
not having been read :
That soon after Lord Cochrane had sat down in the House,
the Marshal of the King's Bench entered it with two or three
of his Officers, and other Assistants, and carried his Lordship
away to the Prison from which he had escaped; notwithstanding
a remonstrance from him, that they had no right to lay their
hands
upon
him there :
That by a Return in the Crown Office of the 16th day of
July 1814, it appears that Lord Cochrane was returned to
serve as a Citizen for the City of Westminster on the 16th day
of July 1814.
Having ascertained these Facts, it became the duty of Your
Committee to consider whether the Marshal of the King's
Bench, in the execution of what he conceived to be his duty,
has been guilty of a Breach of the Privilege of this House.
In deliberating on a matter of such high importance, Your
Committee have to regret that they could find nothing in the
Journals
280
APPENDIX TO THE FIRST VOLUME:
N 5.
Arrest
of Lord
Cochrane in
the House.
Journals of this House to guide them : The Case is entirely
of a novel nature; they can therefore only report it, as their
Opinion,-
That, under the particular circumstances given in Evidence,
it does not appear to Your Committee that the Privileges of
Parliament have been violated, so as to call for the interposition
of the House by any Proceedings against the Marshal of the
King's Bench.
.PRIVILEGE OF PARLIAMENT.
281
APPENDIX, Nº 6.
REPORTS from the Select Committee appointed to consider of Proceedings
the Proceedings had, and to be had, with reference to the Sir Francis
several Papers signed “ FRANCIS BURDETT ;" the Contents Burdett.
of which relate to his being apprehended, and committed to the
Tower of London : together with an Appendix, as amended
on Re-commitment.—Ordered to be printed 11th May and
15th June 1810.
(C.)-Claim and Recognition of the
Privileges of Parliament, and the Power
of Commitment
p. 304
FIRST REPORT pp. 281 to 294
SECOND REPORT
pp. 294 to 298
APPENDIX ;--- viz.
(A.)--Precedents of Commitments for
Words and Publications, Speeches, &c.
reflecting on the Proceedings of the
House
- p. 299
(B.) -Cases since 1697, of Prosecutions
at Law against Persons for Libels, &c.
upon the House of Commons or any of
its Members, and whether by Order or
Address
p. 302
(D.)—Recognition of the Law and Pri-
vilege of Parliament, and of the Power
of the House of Commons to commit for
Contempt, by Legal Authorities, and by
the Decision of Courts of Justice - p. 306
(E.) — Cases of Commitments for
Contempt, by Courts of Justice.--
(Analogy)
- pp: 314 to 322
FIRST REP O R T.
The SELECT COMMITTEE appointed to consider of the Pro-
ceedings had, and to be had, with reference to the several
Papers signed “ Francis Burdett;"—the Contents of which
related to his being apprehended and committed to the Tower
of London, and which Papers were communicated to the
House, by Mr. Speaker, upon the 13th and 17th days of April
last ;-and to report such Facts, as they may think necessary,
together with their Opinion thereupon, from time to time, to
VOL. I.
O o
the
1
282
APPENDIX TO THE FIRST VOLUME:
N° 6.
Proceedings
relative to
Sir Francis
Burdett.
the House ;-And to whom the matters stated by the Serjeant
at Arms attending the House, and the Process served upon
him in an Action at Law by Sir Francis Burdett ;—and also
the Summons served on Mr. Speaker, and the Notice of
Declaration delivered to the Serjeant at Arms, at the suit of
the said Sir Francis Burdett; were referred ;
suant to the Orders of the House, with all dispatch, considered
the matters referred to them; and have agreed to the fol-
lowing REPORT:
Have, pur-
IT
appears to Your Committee, after referring to the Order of
the House of the 5th day of April last, for the commit-
ment of Sir Francis Burdett to the Tower; the Warrants of the
Speaker for that purpose ; the Letter of Sir Francis Burdett to
the Speaker, dated the 37th day of April last; the Report and
Examination of the Serjeant at Arms, touching his proceedings
in the execution of such warrants ; the Notices to the Speaker
referred to Your Committee ; the demand made upon the Ser-
jeant at Arms of a copy of the Warrant under which he arrested
Sir Francis Burdett; the Writ served upon the Serjeant, and
the Summons served upon the Speaker, and the Notice of De-
claration filed against the Serjeant; which said Notices, Demand,
Writ and Summons, are all at the suit or on behalf of the said
Sir Francis Burdett, and all bear the name of the same solicitor,
John Ellis ;—That the said proceedings have been brought
against the Speaker, and the Serjeant, on account of what was
done by them respectively in obedience to the Order of the
House; and for the purpose of bringing into question, before a
Court of Law, the legality of the proceedings of the House in
ordering the Commitment of Sir Francis Burdett, and of the
conduct of the Speaker, and the Serjeant, in obedience to that
Order.
1.-Your
PRIVILEGE OF PARLIAMENT.
283
relative to
Sir Francis
N° 6.
1.-Your Committee, not in consequence of any doubt upon Proceedings
the question so intended to be raised, but for the
purpose
of
collecting into one view such Precedents of the Proceedings of Burdett
.
the House upon Cases of Breach of Privilege as might afford light
upon this important object, have in the first place examined the
Journals, with relation to the practice of the House in commit-
ment of persons, whether Members or others, for Breaches of
Privilege, by offensive words or writings derogatory to the
honour and character of the House, or of any of its Members ;
and they have found numerous instances, in the History of Par-
liament, so far as the Journals extend, of the frequent, uniforni,
and uninterrupted practice of the House of Commons to commit
to different custodies, persons whom they have adjudged guilty
of a Breach of their Privileges by so offending.
The statement of these Precedents, which establish the Law
of Parliament upon this point by the usage of Parliament: the
utility of such Law, and the necessity which exists for its con-
tinuance, in order to maintain the dignity and independence of
the House of Commons; its analogy to the acknowledged powers
of courts of justice, and the recognition of such right in various
instances, by legal authorities, by judicial decisions, and by the
other branch of the Legislature ; as well as the invariable asser-
tion and maintenance of it by the House of Commons, are topics
which may be reserved for a further Report. And although
there are sonie instances in which the House has thought proper
to direct prosecutions for such offences, yet the Committee
confidently state that the more frequent practice of the House,
at all tiines, has been to vindicate its own Privileges by its own
Authority.
002
2.--The
284
APPENDIX TO THE FIRST VOLUME:
N° 6.
Proceedings
relative to
Sir Francis
Burdett.
2.-The subject which appears to Your Committee to press
most urgently for an immediate Report, is, The state of the
Law and the practice of the House in cases either of criminal
prosecution or civil action against any of its Members, for any
thing spoken or done in the House of Commons; or for any pro-
ceeding against any of its officers or other persons acting under
its authority
The principal instances to be found under this head arose out
of those proceedings which, in the time of Charles the first,
Charles the second, and James the second, were instituted by the
Officers of the Crown, in derogation of the Rights and Privileges
of the Commons of England. Those proceedings were resisted
and resented by the House of Commons; were condemned by the
whole Legislature, as utterly and directly contrary to the known
Laws and Statutes and Freedom of this Realm; and led directly
to the Declaration of the Bill of Rights, 66 That the Freedom
“ of Speech, and Debates or Proceedings in Parliament, ought
«i not to be impeached or questioned in any court or place out
“6 of Parliament;"_and Your Committee have no hesitation in
stating, that this article in the Bill of Rights extends as clearly
to Actions or Indictments brought or Prosecutions by Indivi-
duals, as to Informations or other proceedings directly instituted
by the authority of the Crown.
The Law of Parliament on this subject, so far as relates to
words spoken in Parliament, was legislatively declared in a Sta-
tute to be found in the Parliament Roll of the 4th of Henry VIII.:
By that Act, the Rights and Privileges of free Speech in Parlia-
ment are established, and a special action is given in favour of
the party injured by any action brought against him for words
spoken
PRIVILEGE OF PARLIAMENT. 285
N° 6.
spoken in Parliament. And, from this Statute, it appears that Proceedings
Parliament at that time, when the case occurred which seemed Sir Francis
to show the expediency of legislative provision to give fuller
force and protection to its Privileges, made it the subject of
such provision.
Burdett.
In the 5th of Charles I. an Information was filed against ii. Com.
Jour. July
Sir J. Elliot, Denzel Holles, esq. and Benjamin Valentine, for
6 & 8, 1641.
their speeches and conduct in the House of Commons; Judg-
ment was given against them in the King's Bench, they were
sentenced to imprisonment, and were fined : In the Parliament
which met in 1640, the House of Commons, after a Report
made of the state of the cases of Mr. Holles and the rest of the
imprisoned Members, in the 3d of Charles, came to several
Resolutions ; by which they resolved, That these Proceedings
were against the Law and Privilege of Parliament; and con-
demned the authors and actors in them as persons guilty of a
Breach of the Privilege of Parliament.
vol, vii.
p. 242.
In the reign of Charles II. these Proceedings were again taken State Trials,
into consideration ; and the House of Commons came to several
Resolutions. On the i2th of November 1667, they resolved,
That the Act of Parliament in the 4th year of the reign of
Henry VIII, above referred to, is a Declaratory Law of the
ancient and necessary Rights and Privileges of Parliament. On
the 23d of November 1667, they resolved, That the Judgment
above referred to against Sir J. Elliot, D. Holles, and B. Valen-
tine, esquires, in the King's Bench, was an illegal Judgment;
and on the 7th December 1667, they desired the concurrence
of the Lords. The Lords on the 12th of December agreed
with the Commons in these Votes *.
* See an account of these Proceedings in the Appendix to this vol. Nº 2, p. 250.
Your
286
APPENDIX TO THE FIRST VOLUME:
N° 6.
Proceedings
relative to
Sir Francis
Burdett.
Your Committee next refer to the case of Sir William Williams;
the detail of which they proceed to insert from the Report of a
former Committee of this House.
27 Mar. 1771.
ii.Com. Rep.
P. 11.
6
The case of Sir William Williams, against whom, after the
• dissolution of the Parliament held at Oxford, an Information
was brought by the Attorney General, in the King's Bench,
in Trin. Term. 36 Car. II, for a misdemeanor, for having
printed the Information against Thomas Dangerfield, which
· he had ordered to be printed when he was Speaker, by order
• of the House. Judgment passed against him on this Information
' in the second year of King James the second. This Proceed-
ing the Convention Parliament deemed so great a grievance,
' and so high an infringement of the Rights of Parliament, that
it
appears
to Your Committee to be the principal, if not the
sole object of the first part of the Eighth Head of the means
used by King James to subvert the laws and liberties of this
Kingdom, as set forth in the Declaration of the two Houses ;
· which will appear evident from the account given in the
Journal, 8th February 1688, of the forming of that Declara-
- tion, the Eighth Head of which was at first conceived in these
words ; videlicet, By causing Informations to be brought
“ and prosecuted in the Court of King's Bench, for matters and
causes cognizable only in Parliament, and by divers other
arbitary and illegal courses.”
6
66
66
66 and
11th February 1688. - To this article the Lords disagreed;
gave
for a reason, Because they do not fully apprehend
what is meant by it, nor what instances there have been of it;
“ which therefore they desire may be explained, if the House
66 shall think fit to insist further on it."
12th
PRIVILEGE OF PARLIAMENT.
287
66
N° 6.
12th February 1688. “ The House disagree with the Lords Proceedings
“ in their amendment of leaving out the Eighth Article. But Sir Francis
“ in respect of the liberty given by the Lords in explaining that Burdett
.
“ matter ; Resolved, That the words do stand in this manner;
By prosecutions in the Court of King's Bench for matters
“ and causes cognizable only in Parliament, and by divers other
66 arbitrary and illegal courses. By which Amendment,
your Committee observes, that the House adapted the article
more directly to the case they had in view ; for the Inform-
' ation was filed in King Charles the second's time; but the
prosecution was carried on, and judgment obtained, in the
6 second
year of King James.
6
S
· That the meaning of the House should be made more evident
to the Lords, the House ordered, “ That Sir William Williams
“ be added to the Managers of the Conference ;” and Sir Wil-
• liam Williams the same day reports the Conference with the
· Lords; and, “ That their Lordships had adopted the article
“ in the words as amended by the Commons.”
responding to this article of Grievance, is the assertion of the
right of the Subject in the Ninth Article of the declaratory
part of the Bill of Rights; videlicet, " That the Freedom
6 and Debates or Proceedings in Parliament ought not to be im-
peached or questioned in any court or place out of Parliament.
And cor-
• To which may be added, the latter part of the sixth Reso-
· lution of the Exceptions to be made in the Bill of Indemnity,
Journal, vol. x. p. 146, wherein, after reciting the surrender
' of Charters, and the violating the rights and freedoms of
Elections, &c. it proceeds in these words : “ And the
ques-
« tioning the Proceedings of Parliament, out of Parliament, by
¢ Declarations, Informations or otherwise, are crimes for which
some
288
APPENDIX TO THE FIRST VOLUME :
66
N° 6.
Proceedings
relative to
Sir Francis
Burdett.
some persons may be justly excepted out of the Bill of
Indemnity.'
x.Com. Jour.
p. 177.
On the 11th June 1689, the House ordered, “ That the Re-
cords of the Court of King's Bench, relating to the Proceed-
ings against William Williams, Esquire, now Sir William
“ Williams, Knight and Baronet, late Speaker of this House, be
brought into this House, by the Custos Brevium of the said
“ Court, on Thursday morning next.”
Ibid. p. 215.
On the 12th of July, “ the Record was read; and the House
thereupon Resolved, That the Judgment given in the Court
“ of King's Bench, in Easter Term 2 Jac. II. against William
“ Williams, Esquire, Speaker of the House of Commons in the
" Parliament held at Westminster 5th October 32 Car. II.
" for matter done by Order of the House of Commons, and as
Speaker thereof, is an illegal Judgment, and against the Free-
66 dom of Parliament."
66
“ Resolved, That a Bill be brought in to reverse the said
“ Judgment."
* This Bill was twice read, but went no farther in that
Session:'--A similar Bill was in the following Session ordered to
be brought in; and a third Bill passed the Commons in 1695,
and was sent up to the House of Lords, but did not proceed
there to a second reading.
x. Com. Jour.
p. 164
It appears further, that on the 4th June 1689, “ a Petition
" of John Topham, Esq. was read; setting forth, That he, being
a Serjeant at Arms, and attending the House in the years 1679
" and 1680, when several Orders were made, and directed to
“ the Petitioner, for the taking into his custody the several
persons
PRIVILEGE OF PARLIAMENT. 289
relative to
Burdett.
N° 6.
persons of Sir Charles Neal, &c. &c. and others, for several Proceedings
misdemeanors by them committed in breach of the Privilege Sir Francis
66 of the House; and after that the Commons were dissolved,
“ the said persons being resolved to ruin the Petitioner, did, in
Hilary Term, the 33d or 34th of King Charles, sue the Peti-
“ tioner in the King's Bench in several Actions of Trespass,
“ Battery, and false Imprisonment, for taking and detaining
65 them as aforesaid : to which Actions the Petitioner pleaded to
“ the jurisdiction of the Court the said several Orders; but such
- his Plea was over-ruled; the then Judges ruling the Peti-
“ tioner to plead in chief, and thereupon he pleaded the Orders
“ in bar to the Actions : notwithstanding which Plea and
“ Orders, the then Judges gave Judgment against him," &c.
p. 209.
Upon the Report from the Committee of Privileges and x.Com. Jour.
“ Elections, to whom this Petition of J. Topham was referred,
6 the House Resolved, That this House doth agree with the
“s Committee, That the Judgment given by the Court of King's
“ Bench, Easter term 34 Car. II. Regis, upon the Plea of John
“ Topham, at the suit of John Jay, to the Jurisdiction of that
“ Court; and also the Judgments given against the said
“ Mr. Topham, at the suit of Samuel Verdon, &c. are illegal,
- and a violation of the Privileges of Parliament, and pernicious
to the rights of Parliament.” Whereupon it was Ordered,
66 That Sir Francis Pemberton, Sir Thomas Jones, and Sir
66 Francis Wythens, do attend this House on Wednesday
“ morning next.
“ In consequence of this Order, Sir Francis Pemberton and x.Com. Jour.
“ Sir Thomas Jones, who had been two of the Judges of the P. 227.
“ Court of King's Bench at the time when the Judgment was
VOL. I.
PP
66 passed
290
APPENDIX TO THE FIRST VOLUME:
66
N°6.
Proceedings
relative to
Sir Francis
Burdett.
passed, were heard in their defence; and afterwards com-
“ mitted to the Serjeant at Arms, for their breach of the Privi-
leges of this House by giving Judgment to over-rule the Plea
“ to the Jurisdiction of the Court of King's Bench."
66
State Trials,
vol. viii.
from p. 3 to
6.
Your Committee think it proper to state, that Sir Franeis
Pemberton and Sir Thomas Jones, in defending themselves at
the bar of this House for their conduct in over-ruling the Plea
to their Jurisdiction in the Actions of Jay v. Topham, &c. de-
fended the Judgment they had given, by resting upon the
nature of the pleading, and not by denying the Jurisdiction or
Authority of this House ; and Sir Francis Pemberton expressly
admitted, that for any thing transacted in this House no other
Court had any jurisdiction to hear and determine it.
Your Committee in the next place think it expedient to state
to the House, that there are various instances in which persons
committed by the House of Commons have been brought up by
Habeas Corpus before the Judges and Courts of Common Law;
and in these cases, upon its appearing by the Return to the
Habeas Corpus that they were committed under the Speaker's
Warrant, they have been invariably remanded.
3.-Having stated these instances of the manner in which the
Acts and Commitments of this House have been brought into
Judgment in other Courts, and the consequences of such Pro-
ceedings ; Your Committee further think it proper, and in some
degree connected with this subject, to advert to the course which
was adopted for staying Proceedings in Suits brought against
Members and their Servants, while they were protected from
such Suits during the sitting of Parliament.
The
PRIVILEGE OF PARLIAMENT. 291
Burdett.
N° 6.
The Roll of Parliament 8 Ed. II. affords the earliest trace Proceedings
relative to
which Your Committee has found upon this subject.* It is a Sir Francis
Writ from the King confirmatory of the Privilege of being free
from suits in time of Parliament, and is in the following words:
“ Rex mandavit justiciariis suis ad assisas, jurat', &c. capiend.
assignat quòd supersedeant captioni eorundem ubi comites,
barones et alii summoniti ad Parliamentum regis sunt partes,
quamdiu dictum Parliam. duraverit.
*
4
Co. Inst.
24
1
There have been various modes of proceeding to enforce this
Privilege. In Dewes's Journal, pa. 436, 31 Eliz. 1588-1589,
Friday 21st of February, Your Committee find the following
Entry: “Upon a Motion made hy Mr. Harris, that divers Mem-
"s bers of this House having Writs of Nisi prius brought against
" them, to be tried at the Assises in sundry places of this Realm
to be holden and kept in the Circuits of this present Vacation,
“and that Writs of Supersedeas might be awarded in those
cases in respect of the Privilege of this House due and
apper-
“ taining to the Members of the same; It is agreed, that those
6 of this House which shall have occasion to require such benefit
of Privilege in that behalf, may repair unto Mr. Speaker, to
- declare unto him the state of their cases, and that he, upon
“ his discretion (if the cases shall so require) may direct the
“ Warrant of this House to the Lord Chancellor of England,
“ for the awarding of such Writs of Supersedeas accordingly.”
66
But the House used to stay also Proceedings by its own
authority; sometimes by sending the Serjeant at Arms to deliver
the person arrested out of custody; and sometimes by Letter
from the Speaker to the Judgs before whom the cause was
be tried. Of this latter mode of proceeding, Your Committee
find many instances previous to the 3d of Charles I. Your
Committee
io
P P9
292 APPENDIX TO THE FIRST VOLUME.
relative to
Sir Francis
Burdett.
N° 6.
Proceedings Committee find a decision * against the authority of such a
Letter in the Court of King's Bench, which is reported in the
marg. of Dyer's Reports, p. 60, and in Latch, pp. 48 & 150.
Hodges v.
Moor, Trin. And shortly after the refusal by the Court of King's Bench to
3 Car. I.
notice this Letter from the Speaker, the Parliament was dis-
solved. There are however many other instances of this course
of proceeding after the Restoration ; and in the instance of
Lord Newburgh (23 February 1669) the House ordered the
proceedings to outlawry to be stayed during the Session, and
the Record of the Exigents to be vacated and taken off
the file.
ix.Com.Jour.
p. 126.
P. 537,
The last instance which Your Committee find of such Letters
x.Com. Jour. having been written, occurs in the Lord Bulkeley's case in 1691,
in which the Speaker is directed to write a Letter to the Pro-
thonotary that he do not make out, and to the Sheriff of the
county of Pembroke that he do not execute, any Writ, whereby
the Lord Bulkeley's possessions may be disturbed, until
Mr. Speaker shall have examined and reported the matter to
the House, and this House take further Order thereon. By
the 12 & 13 W. III. c. 3, this Privilege was curtailed; and
further by Stat. 2 & 3 Ann. c. 18.-11 Geo. II. C. 24.-
10 Geo. III. c. 50
3. Wils. Rep.
201.
Lord Chief Justice De Grey says in Crosby's case, “ If a
“ Member was arrested before the 12 & 13 W. III. the method
“s in Westminster Hall was to discharge him by Writ of
Privilege under the Great Seal, which was in the nature of a
Supersedeas to the proceeding. The statute of William has
now altered this, and there is no necessity to plead the
Privilege of a Member of Parliament."
All
PRIVILEGE OF PARLIAMENT. 293
Burdett.
N° 6.
All these Acts merely apply to proceedings against Members Proceedings
in respect of their debts and actions as individuals, and not in Sir Francis
respect of their conduct as Members of Parliament; and there-
fore they do not in any way abridge the ancient Law and
Privilege of Parliament so far as they respect the freedom and
conduct of Members of Parliament as such, or the protection
which the House may give to persons acting under its
authority.
4.-Upon the whole, it appears to Your Committee, That the
bringing these Actions against the Speaker, and the Serjeant, for
acts done in obedience to the Orders of this House, is a Breach
of the Privileges of this House.
And it appears, that in the several instances of Actions
commenced in breach of the Privileges of this House, the House
has proceeded by commitment, not only against the party, but
against the Solicitor and other persons concerned in bringing
such Actions; but Your Committee think it right to observe,
that the commitment of such party, Solicitor, or other persons,
would not necessarily stop the proceedings in such Action.
That as the particular ground of Action does not necessarily
appear upon the Writ or upon the Declaration, the Court before
which such Action is brought cannot stay the Suit, or give
Judgment against the Plaintiff, till it is informed by due course
of legal proceeding that such Action is brought for a thing done
by Order of the House.
And it therefore appears to Your Committee, That even
though the House should think fit to commit the Solicitor or
other
294 APPENDIX TO THE FIRST VOLUME:
relative to
Sir Francis
Bardett.
N° 6.
Proceedings other
person concerned in commencing these Actions ; yet it
will still be expedient that the House should give leave to the
Speaker and the Serjeant to appear to the said Actions, and to
plead to the same; for the purpose of bringing under the know-
ledge of the Court the authority under which they acted: And
if the House should agree with that opinion, Your Committee
submits to the House, whether it would not be proper that
directions should be given by this House, for defending the
Speaker, and the Serjeant, against the said Actions.
SECOND REPORT.
The SELECT COMMITTEE appointed to consider of the Pro-
ceedings had, and to be had, with reference to the several
Papers signed “ Francis Burdett;"--the Contents of which
related to his being apprehended and committed to the Tower
of London, and which Papers were communicated to the
House, by Mr. Speaker, upon the 13th and 17th days of
April last ;-and to report such Facts, as they may think
necessary, together with their Opinion thereupon, from time
to time, to the House ;--and to whom the Matters stated by
the Serjeant at Arms attending the House, and the Process
served upon him in an Action at Law by Sir Francis Burdett;
—and also the Summons served on Mr. Speaker, and the
Notice of Declaration delivered to the Serjeant at Arms, at
the Suit of the said Sir Francis Burdett ; were referred ;
And to whom the Report was again re-committed, which
was made from the said Committee; HAVE, pursuant to
the Orders of the House, further considered the Appendix to
the
PRIVILEGE OF PARLIAMENT.
295
Nob.
the said Report, and corrected some of the References to Proceedings
the Authorities therein cited ; and have agreed to the Sir Francis
following REPORT :
relative to
Burdett.
YOUR Committee, resuming the consideration of the prin-
cipal matters reserved in their former Report, do not think it
necessary to state all the various Precedents which are to be
found of the exercise of the power of Commitment by the
House of Commons for Breaches of Privilege and Contempt in
general, conceiving that to be a power too clear to be called in
question, and proved, if proof were necessary, by the same Pre- Appx.(A.)
cedents, which they have collected with a view to the point to
which they have more immediately directed their attention,
and which Precedents are subjoined to their Report.
The Cases which Your Committee have selected as most
directly connected with the subject referred to them, are those
of Commitments for Libel, an offence which tends to excite
popular misapprehension and disaffection, endangers the freedom
of the Debates and Proceedings in Parliament, and requires
the most prompt interposition and restraint. The effect of
immediate punishment and example is required to prevent the
evils necessarily arising from this offence, which evil it is obvious
would be much less effectually guarded against by the more
dilatory proceedings of the ordinary courts of law; nevertheless
upon some occasions the House of Commons have proceeded
against persons committing such offences, by directing prose-
cutions, or by addressing His Majesty to direct them, as appears
by the Precedents collected in the Appendix.
Appx. (B.)
From the series of precedents which Your Committee find on
your Journals, it will most clearly appear that the House of
Commons,
296 APPENDIX TO THE FIRST VOLUME:
relative to
Sir Francis
Burdett.
N 6.
Proceedings Commons have treated Libels as Contempts; that they have
frequently punished the authors and publishers of them by com-
mitment, whether those authors and publishers were or were not
(Appx, A.).
Members of the House; and that this power has been exercised
at all times, as far back as the Journals afford an opportunity
of tracing it. And
your Committee cannot forbear observing,
that the precedents subjoined to their Report establish this
Law of Parliament, upon the ground and evidence of an imme-
morial usage, as strong and satisfactory as would be held
sufficient in a Court of Law for the establishment of any
legal right.
(Appx, C.)
Your Committee also beg leave to observe, that the general
power of commitment was solemnly asserted by the House of
Commons in 1675, and in their Resolutions of 1701 ; and was
also claimed by the House of Commons, and admitted by the
House of Lords in the most explicit terms, in the Conference
between the two Houses, in the Case of Ashby and White, in
1704; although other points arising in that case were strongly
controverted between the two Houses.
(Appx. D.)
Your Committee further state, that it has been recognized by
legal authority, and by the most solemn decisions of the Courts
of Law on various occasions, whenever any question upon it has
been brought before them :
By eleven of the Judges in the Case of the Aylesbury Men.
2 Lord Raym. p. 1105. 3
Wils.
p. 205.
I Wils.
By the Court of King's Bench-in Murray's Case.
P. 299. 1751.
.
By
PRIVILEGE OF PARLIAMENT.
297
N° 6.
By the Court of Common Pleas—in the Case of Brass Crosby. Proceedings
3 Wils. p. 203. 1771.
relative to
Sir Francis
Burdett.
By the Court of Exchequer-in the Case of Oliver.
1771.
And that this power of commitment by either House of
Parliament was further recognized by the Court of King's Bench
in the case of Benjamin Flower, 8 Term Reports, p. 323, who
had been committed by the House of Lords. And Your Com-
mittee have not found the authority of a single decision to the
contrary in any Court whatever.
Your Committee also beg leave to state, that the Judges of (Appx. E.)
the Common Law have considered Libels upon their Courts, or
the proceedings in Judicature, as Contempts, and have frequently
punished the authors and publishers of them by summary
commitment. This appears from various instances stated in the
Appendix, which have occurred both in Courts of Law and (Appx. E.)
Equity.
1
Amongst the Judges who have concurred in those decisions,
upon the power of Parliament and of the Courts of Law and
Equity to commit for such Contempts, are to be found Lawyers
the most distinguished for their zealous regard for the liberty
of the Subject, and the most upright, able and enlightened men
that ever adorned the Seat of Justice; and the doctrines laid
down by them all coincide with the opinion solemnly delivered
by Lord Chief Justice De Grey in Crosby's case, that the power
of Commitment is “ inherent in the House of Commons from
" the very nature of its institution, and that they can commit
generally for all contempts." 3 Wils. p. 198.
Vol. I.
QQ
Under
298
APPENDIX TO THE FIRST VOLUME:
N° 6.
Proceedings
relative to
Sir Francis
Burdett.
Under all these circumstances, Your Committee can have
no hesitation in submitting their decided Opinion, that the
power of Commitment for a Libel upon the House, or upon its
Members, for or relative to any thing said or done therein, is
essential to the Freedom of Debate, to the Independence of
Parliament, to the Security of the Liberty of the Subject, and
to the general preservation of the State.
This
power is in truth part of the fundamental Law of Par-
liament; the Law of Parliament is the Law of the Land; part
of the Lex Terræ, mentioned in Magna Charta, where it is
declared, that “ no Freeman shall be taken or imprisoned but
by lawful judgment of his Peers, or by the Law of the
Land;" and it is as much within the meaning of these words,
“ the Law of the Land," as the universally acknowledged power
of Commitment for Contempt by the Courts of Justice in
Westminster Hall, which Courts have inherent in them the
summary power of punishing such Contempts by Commitment
of the offenders, without the intervention of a Jury.
Your Committee therefore are of opinion, That this power
is founded on the clearest principles of expediency and right,
proved by immemorial usage, recognized and sanctioned by the
highest legal Authorities, and analogous to the power exercised
without dispute by Courts of Justice ; that it
grew up with our
Constitution ; that it is established and confirmed as clearly and
incontrovertibly as any part of the Law of the Land, and is one
of the most important safeguards of the Rights and Liberties of
the People.
1
PRIVILEGE OF PARLIAMENT.
299
APPENDIX to the SECOND REPORT.
Appendix (A.)
Precedents of Commitments for Words and Publications, Speeches, &c. reflecting
on the Proceedings of the House.
I.- From the beginning of the Journals, to the Commonwealth.
Volume
Name
SORT of CUSTODY.
Year.
and
of
CAUSE of COMMITMENT.
Page.
Person.
Serjcant. Newgate. Tower.
1559. i.
Tower,
125, 126,
1
Eliz.
59
Trower. For contumelious words against the House Serjeant.
1580. i. 122, 124, Hall, For publishing a book against the autho-
a Member. rity of the House.
132
N. B.--Also fined and expelled.
1625. i. 805, 806 Montague. For a great contempt against the House, Serjeant.
in publishing a book traducing persons for
petitioning the House.
1628. i.
922
Lewes. For words spoken against the last Par- Serjeant.
liament.
1628. | i.
925 Aleyn.
For a libel on last Parliament
Serjeant.
Car. I.
1640. ii. 63 Piers. Archdeacon of Bath, for abusing the last Serjeant.
Parliament.
Gate-
1640. ii.
71
Preston. Scandalous words against this House -
house,
N. B.—The King did not leave Lon-
don till the 10th of January 1641. In the
year preceding, there are very many cases
of strangers committed for contemptuous
words spoken against the Parliament.
I
II.---Precedents of the like nature, from the Restoration to the Revolution,
1
Car. II.
1660. viii. 24 Lenthall,
For words in the House against the pre- Serjeant.
a Member. ceding Parliament.
1660. viii. 183,185
Drake.
For a pamphlet reflecting on the Parlia- Serjeant.
186)
ment; and impeached.
viii. 193 Cranford.
. Dº
Dº.
1
_
1
QQ 2
+
300
[Appx. N° 6.
PRIVILEGE OF PARLIAMENT:
Appendix (A.)-II. Precedents of Commitment, from the Restoration to the Revolution—continued.
Volume
Name
SORT of CUSTODY.
Year.
and
of
CAUSE of COMMITMENT.
Page.
Perrons.
Serjeant. Newgate. Tower.
.
-
Tower.
1
1661. viii. 368 Gregory & For pamphlets reflecting on the justice of
Withers. the House :
They were prisoners in Newgate, and
were committed to the Tower, and ordered
into close custody.
1662. viii. 446 Green.
Dº
Serjeant.
1670. ix. 147 | Woodyard. For a breach of Privilege against a Mem- Serjeant.
ber, and speaking contemptuous words
against this House.
1675. ix.
364 Howard. For a scandalous paper, and a breach of
the Privilege of the House.
1680. ix.
642 Sir For words in the House, reflecting on a
Robert Cann Member-brought to the Bar, and received
a Member. a reprimand from the Speaker And for
words spoken out of the House--committed
and expelled.
1680. ix. 654,686 Yarington
land Groome.
For a pamphlet against a Member Serjeant.
1685. ix. 760
Cooke,
For words in the House
a Member.
Tower.
N
Tower.
)
1
in
1
Tower.
ma
1
i
1
III.- Precedents, &c. from the Revolution to the end of King William.
1689. x. 244. Christopher Spreading a false and scandalous report of Serjeant,
Smelt. Sir Peter Rich, a Member.
29th July
169o. x.
Contemptuous words and behaviour, and 18th Dec.
512
William
scandalous reflections upon the House and
Briggs.
upon Sir Jonath. Jennings, a Member thereof.
1691. x. 548,558 Richard Printer of a pamphlet intitled, “Mercurius 'gth & 21st
Baldwin. Reformatus," reflecting on the proceedings Nov.
of the House.
1693. xi.
123
William Affirming and reporting that Sir Francis gth Mar.
Soader. Massam, a Member, was a pensioner,
371 Sir George Having scandalized the House, in declaring 27th Dec.
Meggot. that without being duly chosen he had friends
enough in the House to bring him into the
House.
John
1696. xi. 581
A Member, for words in the House.
Manley.
6
1695. xi.
Tower,
9 Nov.
APPx. N° 6,]
Commitments for Words and Publications.
301
Appendix (A.)—III. Precedents, &c. from the Revolution to the end of King William-continuell.
Volume
Name
SORT of CUSTODY.
•
and
of
CAUSE of COMMITMENT.
Year,
AMITI
Page.
Person.
Serjeant.
Newgate.
1696. xi.
1696. xi.
1
651 Francis Having declared before two witnesses, that 5th Jan.
Duncomb. he had distributed money to several Mem-
bers of the House, and afterwards denied it
before a Committee of the House.
656 | John Rye. Having caused a libel, reflecting on a 11th Jan.
Member of the House to be printed and de-
livered at the door.
141
John For being the occasion of a letter being 24th Jan.
Haynes. written, reflecting upon the honour of the
House, and of a Committee.
735
Thomas Reflections upon the last House of Com-
Colepeper. mons.
N. B.-And Attorney General ordered
to prosecute him for his said crimes.
1699. xii.
1
1701. xii.
7th Feb.
1
1704. xiv,
1704. xiv,
IV.-Precedents of the like nature, from 1701 to 1809.
John
1703. xiv.
270
Tutchin, As Author, Printer, and Publisher of a 3d Jan.
John How, I printed paper entitled, “ The Observator,"
Benjamin reflecting upon the Proceedings of the House.
Bragg.
565 James False and scandalous reflections upon two oth Mar.
Mellot. Members,
557
Edward
Theobalds.
Scandalous reflections upon a Member
2d Mar.
1712. xvii. 182
Samuel As Printer of a pretended Memorial print- uth Apr.
Buckley. ed in the “ Daily Courant,” reflecting upon
the Resolutions of the House.
1715. xviii. 195 2. As Printer and Publisher of a pamphlet, 1st July.
Berrington, intitled, “ The Evening Post," reflecting on
J. Morphen. his Majesty and the two Houses of Parlia-
ment.
1729. xxi.
307
Richard Reflecting upon the Proceedings and the 31st Mar.
Corbet. authority of a Committee.
1733. xxii. 245 William Asserting that a Member received a pen- 19th Feb.
Noble. sion for his voting in Parliament.
William
1740. xxiii. 545
Cooley,
As Author, Printer, and Publisher of pa- 3d Dec.
546
John Meres, pers reflecting upon his Majesty's Govern-
547
ment, and the Proceedings of both Houses
John
of Parliament.
Hughes.
1
1
2 Dec.
302
[APPx. N° 6.
PRIVILEGE OF PARLIAMENT:
Appendix (A.)-IV. Precedents of Commitments, from 1701 and 1809 - continued.
Volume
Name
SORT of CUSTODY,
and
of
Year.
CAUSE of COMMITMENT,
Page.
Person.
Serjeant.
Newgate.
1746. xxv.
154
1
1
1768. xxxii. 97
1
10th Dec.
1771. xxxiii. 258
Samuel Author of a printed paper containing im- 13th May.
Johns. pudent reflections on the Proceedings of the
House.
Dennis
Sticking up a paper to inflame the minds gth Dec.
Shade. of the people against the House.
Joseph Giving directions for sticking up the above-
Thornton. mentioned paper:
Henry
Baldwin,
Printing the Debates, and misrepresenting 14th Mar.
Thomas the Speeches of Members.
Wright.
H. S. For publishing a Letter highly reflecting 14th Feb.
Woodfall. on the character of the Speaker.
Peter For printing in his Paper libellous reflec-26th Apr.
Stuart. tions on the character and conduct of the
House.
259
1
1774. xxxiv. 456
1
1805. lx.
217
Appendix (B.)
Cases since 1697, of Prosecutions at Law against Persons for Libels, &c. upon
the House of Commons or any of its Members; and whether by Order or
Address.
Year.
Vol. & Page.
Name.
TITLE or DESCRIPTION of PUBLICATION.
By Order.
By Address.
negangkang
1
1
1699. xiii.
230 Edward Libel on the House, and on an individual 27th Feb.
Stephen. Member.
1701. xiii.
735
Thomas A Letter to the Freeholders and Freemen 7th Feb.
Colepeper. of England, aspersing the House.
1702. xiv.
37 Mr. Lloyd. Aspersing the character of a Member. 18th Nov.
1702. xiv.
207, Dyer. Misrepresenting the Proceedings of the 26th Feb.
208
House.
1740. xxiii. 546 John Meres. “ The Daily Post:”
Highly and injuriously reflecting upon an
act of Government, and the Proceedings of
both Houses of Parliament.
1750. xxvi.
9 Author,
Printer and
Publishing paper, intitled “ Constitutional
Publisher
Queries," grossly reflecting on the House.
3d Dec.
C
22d Jan.
Appx. N' 6.
303
Prosecutions for Libels on the House.
Appendix (B.)--Prosecutions at Law against Persons for Libels, &c.--continued.
Year. Vol. & Page,
Name.
TITLE or DESCRIPTION of PUBLICATION.
By Order.
By Address.
20th Nov.
D
16th Feb.
-
3
1751. xxvi. 304 Authors, The case of the Honourable Alexander
Printers and Murray :
Publishers. Aspersing the Proceedings of the House,
and tending to create misapprehensions of
the same in the minds of the people.
Author,
1774. xxxiv. 464 Printers and
Publishing paper called the “ South Bri-
Publishers.
ton,” reflecting on the House.
1788. xliii.
213
Authors, “ The Morning Herald, The Gazetteer,
Printers and and New Daily Advertiser.”
Publishers. Grossly reflecting on the House and the
Members, and tending to prejudice the de-
fence of a person answering at the Bar.
8th Feb.
15th Feb.
1788. xliii. 232
Authors, “ Review of the principal Charges against
Printers and Warren Hastings," &c.
Publishers. Highly disrespectful to His Majesty, and
the House; and indecent observations re-
flecting on the motives which induced the
House to prefer the Impeachment against
Warren Hastings.
16th June.
1
1
1789. xliv. 463 Printer and
Publisher.
66 The World.
Containing matter of scandalous and libel-
lous nature, reflecting on the Proceedings of
the House.
.
1795. li.
15th Dec.
119 John Reeves. As author of a pamphlet, intitled,
235
“ Thoughts on the English Government;
which was adjudged by the House to be a
malicious, scandalous, and seditious libel,
containing matter tending to create jealou-
sies and divisions among His Majesty's
loyal subjects; to alienate their affections
from our present happy form of Govern-
ment in King, Lords, and Commons, and
to subvert the true principles of our free
Constitution; and to be a high breach of the
privileges of the House.
304
[N° 6.
APPENDIX TO THE FIRST VOLUME:
Appendix (C.)
Claim and Recognition of the Privileges of Parliament, and the Power
of Commitment.
11 Rich. II.-Rot. Parl. Vol. iii. p. 244.
Claim and EN ycest Parlement, toutz les Seigūrs si bien Espiritels come Temporels
Recognition alors presentz clamerent come lour Libertee & Franchise, õ les grosses matires
of the Pri-
vileges of
moevez en cest Parlement, & a movers en autres Parlementz en temps a venir,
Parliament, tochantz Pieres de la Terre, serroient demesnez, ajuggez, & discus par le cours
de Parlement, & nemye par la Loy Civile, ne par la Commune Ley de la Terre,
usez en autres plus bas Courtes du Roialme: quell claym, liberte, & franchise
le Roy lour benignement alloua & ottroia en plein Parlement.
32 Hen. VI.-Rot. Parl. Vol. v. p. 239.—Thorp's Case.
The seid Lordes Spirituelx and Temporels, not entendyng to empeche or hurt
the Libertees and Privelegges of theym that were coñen for the Commune of
this lande to this present Parlement, but egally after the cours of lawe to mynystre
justice, and to have knowlegge what the lawe will wey in that behalve, opened
and declared to the Justices the premissez, and axed of them whether the seid
Thomas ought to be delivered from prison, by force and vertue of the Privelegge
of Parlement or noo. To the which question the chefe Justcez in the name of
all the Justicez, after sadde communication and mature deliberation hadde among
theim, aunswered and said; that they ought not to aunswere to that question, for
it hath not be used afore tyme, that the justicez shuld in eny wyse determine
the Privilegge of this high Court of Parlement
4 Hen. VIII.--The original Roll in the Parliament Office.-Stroude's Case.
This is the act conc'nying Richard Stroude for matt resoned in the P’liament.-
The Act begins by reciting the Petition of R4 Stroude, and after that recital
proceeds thus :
ᎻᎬNᎡY Ꭱ.
Soit baill aux Senio's.
And on that be it inacted by the seide Autorite, That al suts, accusementis,
condempnacons, execucions, fyns, am’ciamentis, punyshements, correccons,
grev’ncez, charges, & impositions putt or hadde or her aft to be put or hadde
unto or upon the seide Richard, and to every other of the p’son or p’sons afore
specyfyed that nowe be of this p’sent P’liament or that of any P’liament her
after
N° 6.]
305
PRIVILEGE OF PARLIAMENT.
after shall be for any bylle speyking, reasonying or declarying of any mat' or Claim and
maters conc’nying the P’liament to be comenced and treated off, be uttly voyde Recognition
of the Pri.
& of none effecte, and on that be hyt inacted by the seide Autorite, That if the
vileges of
seide Richard Strode, or any of all the seide other p’son or persons her after be Parliament.
vexy'd, trobeled or other wyse charged for any causes as is aforesaide, that then
he or they & every of them so vexed or troubled off and for the same, have
acc'on upon the case agaynste ev'ry such p’son or p’sons so vexying or tro-
belying any cot’rie to this Ordin'ns & p'vision, in the whych acc'on the p'tie
greyvd shall be recov' treby'll damages & costis, & that no p’teccon, essoine, nor
wager of Lawe in the seide acc'on in anywise be admytted nor receyvid.
A Ce'st Bill Ley Seinos ss Assent.
1606.-Com. Journ. Vol. i. p. 349.
The Commons tell the Lords that they doubt not, but the Commons House
is a Court, and a Court of Record.”
1620.--Com. Journ. Vol. i. p. 545.
In a Report of Precedents by Sir Edward Coke, it is agreed, “ The House
of Commons, alone, hath a power of punishment, and that judicial.”-Hall's
Case, 23 Elizth, and Long's Case 5th Elizth cited.
1675, June 4th.-Com. Journ. Vol. ix. p. 354. .
In the matter of the appellant Jurisdiction of the House of Lords, the Com-
mons assert their right “ to punislı by imprisonment a Commoner that is guilty
“ of violating their Privileges, that being according to the known Laws and
“ Custom of Parliament, and the right of their Privileges declared by the King's
Royal Predecessors in former Parliaments and by himself in this ;” and “ that
“ neither the great Charter, the Petition of Right, nor any other Laws, do take
away the Law and Custom of Parliament, or of either House of Parliament.”
1701.-Vol. xiii. p. 767.—Kentish Petition.
Resolved, That it is the Opinion of this Committee, that to assert the House
of Commons have no power of Commitment, but of their own Members, tends
to the subversion of the Constitution of the House of Commons.
Resolved, That it is the Opinion of this Committee, That to print or publish
any Books or Libels reflecting upon the proceedings of the House of Commons,
or any Member thereof, for or relating to his service therein, is a high violation
of the Rights and Privileges of the House of Commons.
Ashby & White.
Conferences between the two Houses.
The Commons at the second Conference with the Lords re-assert their
Resolution of 1701:
VOL. I.
RR
« For
306
[Nº 6.
APPENDIX TO THE FIRST VOLUME:
Claim and
Recognition
of the Pri-
vileges of
Parliament.
“ For it is the ancient and undoubted right of the House of Commons to
“ commit for breach of Privilege; and the instances of their committing persons
(not Members of the House) for breach of Privilege, and that to any her
Majesty's prisons, are ancient, so many, and so well known to your Lord-
ships, that the Commons think it needless to produce them.”Lords Journ.
Vol. xvii. p. 709.
Lords Journ. Vol. xvii. p.714.
The Lords in answer say,—“ The Lords never disputed the Commons power
“ of committing for breach of Privilege, as well persons who are not of the
“ House of Commons as those who are," &c.
3
Appendix (D.)
Recognition of the Law and Privilege of Parliament, and of the Power
of the House of Commons to commit for Contempt, by Legal Autho-
rities, and by the Decision of Courts of Justice.
Coke, 4 Inst. fo. 15.
Recognition
Lord Coke observes, upon the Claim of the Lords, in 11 Rich, II. sanc-
of the Pri- tioned by the King (as stated in the first paragraph of Appendix (C.) under the
vilege and
head of “Lex & Consuetudo Parliamenti;' as followeth—" And as every Court
Power of the
of Justice hath Laws and Customs for its direction, some by the Coinmon
House, by
Legal Autho- “ Law, some by the Civil Law and Common Law, some by peculiar Laws and
rities.
“ Customs, &c. so the High Court of Parliament-suis proprijs legibus et con-
« suetudinibus subsistit-It is lex et consuetudo Parliamenti, that all weighty.
“ matters in any Parliament, moved concerning the Peers of the Realm, or
“ Commons in Parliament assembled, ought to be determined, adjudged, and
“ discussed by the course of Parliament, and not by Civil Law, nor yet by the
“ Common Laws of this Realm used in inferior Courts; which was so declared
“ to be-secundum legem et consuetudinem Parliamenti-concerning the Peers
“ of this Realm, by the King, and all the Lords Spiritual and Temporal: And
" the like, pari ratione, is for the Commons for any thing moved or done in the
" House of Commons.”
Coke, 4 Inst. fo. 50.
And on another occasion, in treating of the Laws, Customs, Liberties, and
Privileges of the Court of Parliament, which he saith, “ hath been much desired,
66 and
N° 6.]
307
PRIVILEGE OF PARLIAMENT:
Power of the
66
" and are the very heart-strings of the Commonwealth:” Lord Coke says,– Recognition
“ All the Justices of England, and Barons of the Exchequer, are assistants to of the Pri-
« the Lords to inform them of the Common Law, and thereunto are called lege and
severally by Writ: neither doth it belong to them (as hath been said) to judge House, by
“ of any Law, Custom, or Privilege of Parliament. And to say the truth, the Legal Autho-
“ Laws, Customs, Liberties, and Privileges of Parliament, are better to be rities
.
“ learned out of the Rolls of Parliament, and other Records, and by Precedents
“ and continued experience, than can be expressed by any one man's
pen.”
66
26 Car. II.--1674.--State Trials, Vol. vii. p. 449.--Soame's Case.
Lord Chief Justice North said," I can see no other way to avoid conse-
quences derogatory to the honour of the Parliament, but to reject the action;
" and all others that shall relate either to the Proceedings or Privilege of Par-
“ liament, as our predecessors have done.
“ For if we should admit general remedies in matters relating to the Par-
liament, we must set bounds how far they shall go, which is a dangerous
“ province; for if we err, Privilege of Parliament will be invaded, which we
ought not in any way to endamage.”
(6
(6
«
1675.--State Trials, Vol. ii. p. 622.-Earl of Shaftesbury's Case.
In the Case of the Earl of Shaftesbury, who was committed by the House of
Lords, “ for high contempts committed against the House," on being brought
up to the King's Bench on the Return of an Habeas Corpus, the Court unani-
mously determined against entertaining the case; when Rainsford, Chief Justice,
said, “ This Court has no jurisdiction of the Cause, and therefore the form of
" the Return is not considerable. We ought not to extend our jurisdiction
beyond its limits, and the actions of our ancestors will not warrant such an
attempt.
" The consequence would be very mischievous, if this Court should deliver
“ a Member of the House of Peers and Commons who are committed, for
“ thereby the business of Parliament may be retarded ; for it may be the com-
“ mitment was for evil behaviour, or indecent reflections on other Members, to
" the disturbance of the affairs of Parliament.
“ The commitment in this case is not for safe custody; but he is in execution
" of the judgment given by the Lords for contempt; and therefore, if he should
“ be bailed, he would be delivered out of execution ; for a contempt in facie
" curiæ there is no other judgment or execution.
“ This Court has no jurisdiction, and therefore he ought to be remanded.
“ I deliver no opinion whether it would be otherwise in case of a Prero-
27
“ gative."
RR 2
1751,
308
APPENDIX TO THE FIRST VOLUME: [N° 6.
Recognition
1751, Feb 7th.—1 Wilson, p. 200.-Murray's Case.
of the Pri-
vilege and When he was brought up to the King's Bench by a Habeas Corpus, and the
Power of the Court unanimously refused to discharge him, Mr. Justice Wright said,
House, by
“ It appears upon the Return of this Habeas Corpus, that Mr. Murray is
Legal Autho-
rities.
“ committed to Newgate by the House of Commons, for an high and dan-
gerous contempt of the Privileges of that House; and it is now insisted on
at the Bar, that this is a bailable case, within the ineaning of the Habeas
“ Corpus Act.
“ To this I answer, that it has been determined by all the Judges to the
contrary ; that it could never be the intent of that Statute to give a Judge
“ at his chamber, or this Court, power to judge of the Privileges of the
56 House of Commons.
“ The House of Commons is undoubtedly an high Court; and it is agreed
“ on all hands that they have power to judge of their own Privileges; it need
not appear to us what the contempt was for; if it did appear, we could not
“ judge thereof.
“ Lord Shaftesbury was committed for a contempt of the House; and being
brought here by an Habeas Corpus, the Court remanded him ; and no case
“ has been cited wherever this Court interposed.
• The House of Commons is superior to this Court in this particular; this
“ Court cannot admit to bail a person committed for a contempt in any other
" Court in Westminster Hall.
Dennison, Justice.—." This Court has no jurisdiction in the present case.
“ We granted the Habeas Corpus, not knowing what the commitment was ;
" but now it appears to be for a contempt of the Privileges of the House of
« Commons: what those Privileges (of either House) are, we do not know;
nor need they tell us what the contempt was, because we cannot judge of it ;
“ for I must call this Court inferior to the House of Commons with respect to
judging of their Privileges, and Contempts against them. I give my Judg-
ment so suddenly, because I think it a clear case, and requires no time for
« consideration."
Foster, Justice,_"The Law of Parliament is part of the Law of the Land;
" and there would be an end of all Law, if the House of Commons could not
" commit for a Contempt. All Courts of Record (even the lowest) may
“ commit for a Contempt; and Lord Holt, though he differed with the other
Judges, yet agreed the House might commit for a Contempt in the face of
« the House. As for the Prisoner's illness, we can take no notice of it, having no
power at all in this case.
The Prisoner was remanded.
1771
N° 6.]
309
PRIVILEGE OF PARLIAMENT.
1771.-3 Wils. 188.-Crosby's Case.
Recognition
of the Prin
In the year 1771, Brass Crosby, esq. the Lord Mayor, who was committed to power of the
vilege and
the Tower by order of this House, under the Speaker's Warrant on 25th House, by
March 1771, was brought up by Habeas Corpus before the Court of Common Legal Autho-
rities.
Pleas in Easter term. The Question was fully argued, and, by the unanimous
judgment of the Court, he was remanded.
The Lord Chief Justice de Grey, in giving the opinion of the Court, stated,
“ That this power (viz. of commitment) must be inherent in the House of
“ Commons, from the very nature of its institution; and therefore is part of the
“ Law of the Land. They certainly always could commit in many cases ; in
matter of Elections they can commit Sheriffs, Mayors, Officers, Witnesses,
" &c. and it is now agreed, that they can commit generally for all Contempts.
“ All Contempts are either punishable in the Court contemned, or in some
higher Court. Now the Parliament has no superior Court; therefore the
contempt against either House can only be punished by themselves.”
An Act for new
any
which shall
liereafter be
“ The Stat. of James I. cap. 13, sufficiently proves that they have power Note :
“ to punish it, in these words : Provided always, that this Act, or any thing Exceutions to
therein contained, shall not extend to the diminishing of any punishment to be sued against
“ be hereafter by censure in Parliament inflicted upon any person which here-
“ after shall make or procure to be made any such arrest as aforesaid ;' so that delivered out of
Execution by
“ it is most clear that the Legislature have recognized this power of the House Privilege of
“ of Commons. In the case of the Aylesbury Men, the Council admitted, Parliament, &c.
“ Lord Chief Justice Holt owned, and the House of Lords acknowledged, that
" the House of Commons had power to commit for Contempt or Breach of
" Privilege. Indeed, it seems that they must have power to commit for any
“ crime. When the House of Commons adjudge any thing to be a Contempt
or a Breach of Privilege, their adjudication is a conviction, and their commit-
“ mitment in consequence an execution; and no Court can discharge or bail
a person that is in execution by the judgment of any other Court.”
And he concluded his judgment in these words :
“ I am perfectly satisfied that if Lord Holt himself were to have determined it,
" the Lord Mayor would have been remanded. In the case of Mr. Murray, the
Judges could not hesitate concerning the contempt by a man who refused to
“ receive his sentence in a proper posture; all the Judges agreed, that he must
“ be remanded, because he was committed by a Court having competent
jurisdiction. Courts of Justice have no cognizance of the acts of the Houses
“ of Parliament, because they belong ad aliud examen. I have the most
perfect satisfaction in my own mind in that determination. Sir Martin Wright,
66 who
310
APPENDIX TO THE FIRST VOLUME: [N° 6.
Recognition “ who felt a generous and distinguished warmth for the liberty of the subject;
of the Pri- " Mr. Justice Denison, who was so free from connections and ambition of every
vilege and
“ kind; and Mr. Justice Foster, who may be truly called the Magna Charta of
Power of the
House, by liberty, of persons as well as fortune; all these revered Judges concurred in
Legal Authn- “ this point. I am therefore clearly and with full satisfaction of opinion, that
rities.
“ the Lord Mayor must be remanded.”
Gould, Justice.-I entirely concur in opinion with my Lord Chief Justice,
" that this Court hath no cognizance of Contempts or breach of Privilege of
“ the House of Commons; they are the only Judges of their own Privileges ;
" and that they may be properly called Judges, appears in 4 Inst. 47, where my
“ Lord Coke says, an alien cannot be elected of the Parliament, because such
" a person can hold no place of judicature. Much stress has been laid upon
an objection, that the Warrant of the Speaker is not conformable to the Order
“ of the House; and yet no such thing appears upon the Return, as has been
pretended. The Order says, that the Lord Mayor shall be taken into the
“ custody of the Serjeant or his Deputy; it does not say, by the Serjeant or
“ his Deputy. This Court cannot know the nature and power of the pro-
“ ceedings of the House of Commons: it is founded on a different law; the
“ lex et consuetudo Parliamenti, is known to Parliament men only. Trewyn-
“ nard's case, Dier, 59, 60. When matters of Privilege come incidentally
“ before the Court, it is obliged to determine them, to prevent a failure of
*Wilkes's Case,“ justice. * It is true this Court did, in the instance alluded to by the Counsel
the Bar, determine upon the Privilege of Parliament in the case of a
“ Libel; but then that Privilege was promulged and known; it existed in
“ records and law books, and was allowed by Parliament itself. But even in
66 that case, we now know that we were mistaken ; for the House of Commons
« have since determined, that Privilege does not extend to matters of Libel.
“ The cases produced respecting the High Commission Court, &c. are not to
“ the present purpose, because those Courts had not a legal authority. The
" Resolution of the House of Commons is an adjudication, and every Court
“ must judge of its own contempts.”
2 Wils. 151.
at
Blackstone, Justice.-—“ I concur in opinion, that we cannot discharge the
“ Lord Mayor. The present case is of great importance, because the liberty of
“ the Subject is materially concerned. The House of Commons is a Supreme
Court, and they are Judges of their own Privileges and Contempts, more
“ especially with respect to their own Members.-Here is a Member committed
“ in execution by the judgment of his own House. All Courts, by which I
mean to include the two Houses of Parliament and the Courts of West-
« minster Hall, can have no control in matters of contempt.
The sole
“ adjudication of contempts, and the punishment thereof, in any manner,
“ belongs exclusively, and without interfering, to each respective Court.
Infinite
N° 6.]
311
PRIVILEGE OF PARLIAMENT.
66
rities.
may, with
“ Infinite confusion and disorder would follow, if Courts could by Writ of Recognition
of the Pri-
“ Habeas Corpus examine and determine the contempts of others. This power vilege and
to commit results from the first principles of justice ; for if they have power Power of the
“ to decide, they ought to have power to punish. No other Court shall scan the House, by
“ judgment of a superior Court, or the principal Seat of Justice. As I said before,
Legal Autho-
“ it would occasion the utmost confusion, if every Court of this Hall should have
power to examine the commitments of the other Courts of the Hall for con-
tempts; so that the judgment and commitment of each respective Court as to
contempts must be final and without control. It is a confidence that may,
“ perfect safety and security, be reposed in the Judges and the Houses of Par-
“ liament. The Legislature since the Revolution (see 9 & 10 W. III. c. 15,)
“ have created many new contempts. The objections which are brought, of
“ abusive consequences, prove too much, because they are applicable to all
« Courts of dernier resort: et ab abusu ad usum non valent consequentia, is a
“ maxim of law as well as of logic. General convenience must always outweigh
partial inconvenience ; even supposing (which in my conscience, I am far
“ from supposing) that in the present case the House has abused its power,
“ I know, and am sure that the House of Commons are both able and well
“ inclined to do justice. How preposterous is the present murmur and
“ complaint! The House of Commons have this power only in common with
“ all the Courts of Westminster Hall: and if any persons may be safely
“ trusted with this power, they must surely be the Commons, who are chosen by
“ the people ; for their privileges and powers are the privileges and powers of
“ the people. There is a great fallacy in my brother Glynn's whole argument,
“ when he makes the question to be, Whether the House have acted according
to their right or not; Can any good man think of involving the Judges in a
óc contest with either House of Parliament, or with one another? And yet this
manner of putting the question would produce such a contest. The House
“ of Commons is the only Judge of its own proceedings : Holt differed from
" the other Judges in this point, but we must be governed by the eleven,
" and not by the single one. It is a right inherent in all supreme Courts; the
“ House of Commons have always exercised it. Little nice objections of
particular words, and forms and ceremonies of execution, are not be regarded
" in the acts of the House of Commons; it is our duty to presume the Orders
“ of that House, and their execution, are according to law. The Habeas .
Corpus in Murray's case was at Common Law. I concur entirely with my
« Lord Chief Justice."
1771.- Oliver's Case.
And in Mr. Alderman Oliver's case, argued in the Court of Exchequer on the
27th of April 1771, the four Judges, Chief Baron Parker, Mr. Baron Smythe,
Mr. Baron Adams, and Mr. Baron Perrot, unanimously acknowledged in like
manner the right of the House of Commons to commit.
312
[Nº 6.
APPENDIX TO THE FIRST VOLUME:
1779.—Durnford and East's Report, K. B. Book 8. p. 314.
Recognition
of the Pri-
vilege and
Flower's Case.
Power of the
In the case of Flower, committed by the House of Lords, for a libel on the
House, by
Legal Autho- Bishop of Landaff, on his being brought up to the King's Bench upon Habeas
rities
Corpus,
Lord Kenyon, Chief Justice, said—“ If we entertain any doubts upon this
subject, it would be unbecoming in us to rush to a speedy decision without
“ looking through all the cases cited by the Defendant's Counsel ; but not
“ having any doubts, I think it best to dispose of the case at once. The cases
“ that have been referred to are all collected in Lord Hale's Treatise on the
“ Jurisdiction of the Lords House of Parliament, and that valuable Preface
to it published by Mr. Hargrave; but in the whole of that publication the
“ Defendant's Counsel has not found one case applicable to the present. This
" is one of the plainest questions that ever was discussed in a Court of Law.
“ Some things, however, have dropped from the learned Counsel, that require
an answer :—First, it is said that the House of Lords is not a Court of Record.
“ That the House of Lords when exercising a legislative capacity is not a
“ Court of Record, is undoubtedly true; but when sitting in a judicial capa-
“ city, as in the present case, it is a Court of Record. Then it was objected,
“ that the Defendant was condemned. without being heard in his defence: but
« the warrant of commitment furnishes an answer to that: by that it appears,
“ that he was informed of the complaint made against him, &c. and having
“ been heard as to what he had to say in answer to the said complaint, &c.
“ he was adjudged 'guilty of a high breach of the Privileges of the House,' &c.
so that it clearly appears that he was heard in his defence, and had the same
« opportunity of calling Witnesses that every other Defendant has in a Court
“ of Justice. Then insinuations are thrown out against the encroachments by
“ the House of Lords on the liberties of the Subject: but the good subjects of
“ this country feel themselves protected in their liberties by both Houses of
“ Parliament. Government rests in a great degree on public opinion; and if
ever the time shall come, when factious men will overturn the Government of
“ the Country, they will begin their work by calumniating the Courts of Justice
" and both Houses of Parliament.
“ The ground of this proceeding is, that the Defendant has been guilty of
a breach of Privileges of the House, and a contempt of the House. This
" claim of right to punish by fine and imprisonment for such an offence, is not
peculiar to the House of Lords ; it is frequently exercised by this and other
“ Courts of Record, and that not merely for contempts committed in the
presence of the Court: One instance of which was that of Mr. Beardmore*,
6 Under
* Vide 2 Burr. 792.
No6.]
313
PRIVILEGE OF PARLIAMENT.
CO
64 Under Sheriff of Middlesex, for a contempt of the Court in not executing Recognition
part of the sentence pronounced on Dr Shebbeare. And that case answers of the Pri-
“ another objection, strongly insisted on by the Defendant's Counsel here, that vilege and
Power of the
“ if the party accused can be punished in any other manner, this mode of House, by
“ trial cannot be resorted to; for there Mr. Beardmore might have been in- Legal Autho-
“ dicted, but yet he was attached, examined upon interrogatories, and fined rities.
" and imprisoned. Again it is objected, that the House of Lords cannot
impose a fine for such an offence: but this and other Courts of Record have
“ the power of fining in this summary manner; and why should not the House
“ of Lords have the same power of imposing a fine for a contempt of their
privileges? Then several instances were alluded to, where the House did not
" choose to exercise this privilege, but directed prosecutions to be instituted
« in the Courts of Law. The same observations might equally be made on the
“ proceedings of this Court, who have sometimes directed indictments to be
preferred. We are not therefore to conclude that the House of Lords has
not the power of inflicting this punishment, from the circumstance of its not
“ exercising it on all occasions. When Lord Shaftesbury's case came on, there
“ were some persons who wished to abridge the Privileges of the House of
“ Lords : but Mr. Serjeant Maynard was one of those who argued in support
" of their Privileges; and he surely was not capable of concurring in any
“ attempt to infringe the liberties of the people. It has been said, however,
w that though many instances are to be found in which the House of Lords
“ has in point of fact exercised this power, whenever that power has been re-
“ sisted it has been resisted with effect; from whence it is inferred, that the
“ House of Lords has not the authority which it assumes : but in this case I
“ may avail myself of the same argument in favour of its Jurisdiction, for no
case has been found where it has been holden to be illegal in the House of
“ Lords to fine and imprison a person guilty of a breach of Privilege. We
were bound to grant this Habeas Corpus; but having seen the Returu to it,
we are bound to remand the Defendant to prison, because the subject belongs
to 'aliud examen. There is nothing unconstitutional in the House of Lords
“ proceeding in this mode for a breach of Privilege ; and unless we wish to
“ assist in the attempt that is made to overset the Law of Parliament and the
" Constitution, we must remand the Defendant."
Grose, J.-" This question is not new; it has frequently been considered in
“ Courts of Law; and the principles discussed to-day, and the Cases cited, were
“ examined not many years ago; and the result is very ably stated by Lord
“ Ch. Just. De Grey, in 3 Wils. 199. When the House of Commons (and
- the same may be said of the House of Lords) adjudge any thing to be a
"
“ Contempt or a breach of Privilege, their adjudication is a conviction, and
“ their commitment in consequence, is execution; and no Court can discharge
" or bail a person that is in execution by the judgment of any other Court.
VOL. I.
Ss
« In
314 APPENDIX TO THE FIRST VOLUME:
[Nº 6.
Recognition
of the Pri:
vilege and
Power of the
House, by
Legal Autho-
rities.
“ In another passage he said 'Every Court must be sole judge of its own
“ contempts. And again, “ The Counsel at the Bar have not cited one case
“ where any Court of this Hall ever determined a matter of Privilege which did
not come immediately before them.”
“ Having stated this, I think I need not add more in the present case.”
Per Curiam. *
Let the Defendant be remanded,
Appendix (E.)
Cases of Commitments for Contempt by Courts of Justice.
ANALOG Y.
Analogical
Cases of
Commit-
ments for
Contempt.
In Michaelmas Term, 18 Edward III.
John De Northampton, an Attorney of the Court of King's Bench, con-
fessing himself guilty of writing a letter respecting the Judges and Court of
King's Bench, which letter was adjudged by the Court to contain no truth in
it, and to be calculated to excite the King's indignation against the Court and
the Judges, to the scandal of the said Court and Judges, was committed to the
Marshal, and ordered to find securities for his good behaviour.-3. Inst. 174.
Hilary Term, 11 Ann.
A Writ of Attachment was issued against Thomas Lawson, for speaking dis-
respectful words of the Court of Queen's Bench, upon his being served with a
Rule of that Court.
Hilary Term, 12 Ann.
A Writ of Attachment was granted against Edward Hendale, for speaking
disrespectful words of the Lord Chief Justice of the Court of Queen's Bench,
and his Warrant.
Trinity Term, 5 Geo. I.
A Writ of Attachment against
Jones, for treating the Process
of the Court of King's Bench contemptuously; and there being an intimation
that
* Mr. Justice Lawrence was not in Court,
being indisposed; and Mr. Justice Le
Blanc, having attended at the Guildhall
Sittings for Lord Kenyon, and not return-
ing till the argument was closed; gave no
opinion.
N° 6.]
315
PRIVILEGE OF PARLIAMENT.
that he relied on the assistance of his fellow-workmen to rescue him, the Court Analogical
sent for the Sheriff of Middlesex into Court, and ordered him to take a suffi- Cases of
cient force.-1 Strange 185.
Commit-
ments for
Contempts.
Michaelmas Term, 6 Geo. I.
A writ of Attachment was granted to Richard Lamb, for contemptuous words.
concerning a Warrant from a Judge of the Court of King's Bench.
Easter Term, 6 Geo. I.
Wilkins having confessed himself guilty of publishing a Libel
upon the Court of King's Bench, the Court made a rule committing him to
the Marshal.
The next Term Wilkins having made an affidavit charging Doctor Colebatch
with being the author of the Libel, was sentenced to pay a fine of £. 5, and
to give security for his good behaviour for a year.
Hilary Term, 7 Geo. I.
An Attachment was granted against John Barber esquire, for contemptuous
Words of the Court of King's Bench, in a speech to the Common Council of
London.--1 Strange, 443.
Hilary Term, 9 Geo. I.
Doctor Colebatch having been examined upon interrogatories, for contempt
in publishing a Libel, the interrogatories and answers were referred to the
King's Coroner and Attorney; and
In Easter Term, 9 Geo. I.
Dr. Colebatch, being in the custody of the Marshal, was brought into Court,
and was sentenced to pay a fine of £. 50, and to give security for his good
behaviour for a year, and was committed to the Marshal in execution.
Michaelmas Term, 9 Geo. I.
A Writ of Attachment was granted against John Bolton, Clerk, for con-
temptuous words respecting the Warrants of the Lord Chief Justice of the
Court of King's Bench, at a meeting of his parishioners in the Church-yard.
Easter Term, 9 Geo. I.
John Wyatt, a bookseller in St. Paul's Church-yard, publisheď a pamphlet,
written by Dr. Conyers Middleton, in the dedication of which to the Vice-
Chancellor of Cambridge, were some passages reflecting upon a proceeding of
the Court of King's Bench; the Court granted a Rule against Wyatt, to show
cause why a Writ of Attachment should not issue against him for his contempt;
and Wyatt, having made an affidavit that Cornelius Crownfield had employed
him
SS 2
316
APPENDIX TO THE FIRST VOLUME: [N° 6.
Analogical
Cases of
Commit-
ments for
Contempts.
him to sell the pamphlet, and he having charged Dr. Conyers Middleton with
being the author of it, Crownfield was discharged upon payment of the costs,
and a Writ of Attachment was granted against Dr. Conyers Middleton, who,
in the next Term, gave bail to answer the contempt; he was afterwards ex-
amined upon interrogatories, and upon the report of the King's Coroner and
Attorney he was adjudged to be in contempt, and was committed to the
Marshal in execution quousque, &c. and it was referred to the Master to tax
the Prosecutor's costs.
It is stated in Fortescue's Reports, that Dr. Middleton was sentenced to
pay a fine of £.50, and to give security for a year ; but no Rule for such sen-
tence has at present been found; and Dr. Colebatch having received such a
sentence, for a similar offence, in the preceding Term, it is possible that this
sentence may, by mistake, have been applied to Dr. Middleton.
Michaelmas Term, 5 Geo. II.
The Court granted a Writ of Attachment against Lady Lawley, for a con-
tempt in publishing a paper reflecting upon the proceedings of the court; and
she having been examined upon interrogatories, was in Easter Term following
reported by the Officer of the Court to be in contempt, and was committed to
the Marshal.
And in Trinity Term, 6 Geo. II. she was brought into Court, and a Rule
made, stating that “ fecit submissionem suam petivit veniam de curiâ ;” and
thereupon she was fined five marks and discharged.
Mark Halpenn, the husband of Lady Lawley, was also examined upon inter
rogatories, for publishing the same Libel.—2 Barnardiston, K's B. 43.
Extract from Atkyns's Reports, Book 2, p. 469.
First Seal after Michaelmas Term, December 3d, 1742.
A motion against the printer of The Champion, and the printer of The
Saint James's Evening Post; that the former, who is already in the Fleet, may
be committed close prisoner, and that the other, who is at large, may be com-
mitted to the Fleet, for publishing a Libel against Mr. Hall and Mr. Garden
(executors of John Roach esquire, late Major of the garrison. of Fort Saint
George in the East Iudies) and for reflecting likewise upon governor Mackay,
governor Pitt, and others, taxing them with turning affidavit-men, &c. in
the Cause now depending in this Court; and insisting that the publishing
such a paper is a high contempt of this Court, for which they ought to be
committed.
Lord Hardwicke, Lord Chancellor.
Nothing is more incumbent upon Courts of Justice than to preserve their
proceedings from being misrepresented; nor is there any thing of more per-
nicious
No 6.1
317
PRIVILEGE OF PARLIAMENT.
nicious consequence, than to prejudice the minds of the public against persons Analogical
concerned as parties in causes, before the cause is finally heard. * It has always
Cases of
Commit-
been my opinion, as well as the opinion of those who have sat here before me, ments for
that such a proceeding ought to be discountenanced.
Contempts.
But to be sure Mr. Solicitor General has put it upon the right footing, that
notwithstanding this should be a Libel, yet unless it is a contempt of the Court,
I have no cognizance of it; for whether it is a Libel against the public, or
private persons, the only method is to proceed at law.
The Defendants Counsel have endeavoured two things--ist, to show this
paper does not contain defamatory matter; 2dly, if it does, yet there is no
abuse upon the proceedings of this Court; And therefore there is no room for
me to interpose.
Now take the whole together, though the letter is artfully penned, there can
remain no doubt in every common reader at a coffee-house but this is a defa-
matory libel.
It is plain therefore who is meant; and as a Jury, if this fact was before
them, could make no doubt, so, as I am a Judge of facts as well as law, I can
make none.
I might mention several strong cases, where even feigned names have been
construed a libel upon those persons who were really meant to be libelled.
Upon the whole, as to the libellous part, if so far there should remain any
doubt whether the executors are meant, it is clear beyond all contradiction
upon the last paragraph, in which are these words: “ This case ought to be a
“ warning to all fathers to take care with whoin they trust their children and
" their fortunes, lest their own characters, their widows and their children, be
aspersed, and their fortunes squandered away in law-suits.”
And likewise, though not in so strong a degree, the words “turned Affidavit.
men," is a libel against those Gentlemen who have made them.
There are three different sorts of Contempt:
One kind of Contempt is, scandalizing the Court itself.
There may be likewise a Contempt of this Court, in abusing parties who are
concerned in causes here.
There may also be a Contempt of this Court, in prejudicing mankind against
persons before the cause is heard.
There cannot be any thing of greater consequence than to keep the streams
of justice clear and pure, that parties may proceed with safety both to them-
selves and their characters.
The case of Raikes, the Printer of the Gloucester Journal, who published a
libel in one of the Journals against the Commissioners of Charitable Uses a
Burford, calling his advertisement A Hue and Cry after a Coinmission of
Charitable Uses, was of the same kind as this, and the Court in that case
committed him.
There
* Vide Baker v. Hart, post. 488. Mrs. Farley's Case, 2 Ves. 520.
318
APPENDIX TO THE FIRST VOLUME: [N° 6.
Analogical There are several other cases of this kind; one strong instance, where there
Cases of
Commit-
was nothing reflecting upon the Court, in the case of Captain Perry, who
ments for printed his brief before the cause came on; the offence did not consist in the
Contempts. printing, for any man may give a printed brief as well as a written one to
Counsel; but the Contempt of this Court was, prejudicing the world with
regard to the merits of the cause before it was heard.
Upon the whole, there is no doubt but this is a Contempt of the Court.
With regard to Mrs. Read, the Publisher of Saint James's Evening Post, by
way of alleviation, it is said, that she did not know the nature of the paper ;
and that printing papers and pamphlets is a trade, and what she gets her
livelihood by.
But though it is true this is a trade, yet they must take care to do it with
prudence and caution ; for if they print any thing that is libellous, it is no
excuse to say that the printer had no knowledge of the contents, and was en-
tirely ignorant of its being libellous : and so is the rule of Law, and I will
always adhere to the strict rules of Law in these cases.
Therefore Mrs. Reed must be committed to the Fleet, according to the
common order of the Court upon Contempts.
But as to Mr. Huggonson, who is already a prisoner in the Fleet, I do not
think this any motive for compassion; because these persons generally take the
advantage of their being prisoners to print any libellous or defamatory matter
which is brought to them, without scruple or hesitation.
If these printers had disclosed the name of the person who brought this
paper to them, there might have been something said in mitigation of their
offence; but as they think proper to conceal it, I must order Mrs. Read to be
committed to the Fleet, and Huggonson to be taken into close custody of the
Warden of the Fleet.
the Printer.
Lord Erskine,
13th Vesey, jun. page 237.
Lord Chancellor.
1806.
Ex parte Jones.
Dec. 20. 23
The objeet of this Petition was to remove the Committee of a Lunatic, and
Commitment in the to bring before the Lord Chancellor an alleged Contempt by the Committee and
Jurisdiction of Lunacy
for a Contempt, by the his Wife, and other persons, as the authors, printers and publishers of a Pamphlet,
publication of a pam- with an Address to the Lord Chancellor by way of dedication, reflecting upon
phlet. Ignorance of the
contents will not excuse the conduct of the Petitioner, and others acting in the management of the affairs
of the Lunatic, under orders made in pursuance of the Trusts of a Will, the
Affidavit representing the conduct of the Committee and his Wife, intruding
into the Master's Office, and interrupting him, not only in the business of this
particular Lunacy, but all other business. The Wife of the Committee avowed
herself" to be the author of the Pamphlet, alleging the innocence of her husband.
The Solicitor-general (Sir Samuel Romilly) and Mr. Hart, in support of the
Petition, were stopped by the Lord Chancellor, who called on the Counsel
against it.
Mr.
N° 6.]
319
PRIVILEGE OF PARLIAMENT.
Mr. Plowden resisted the Petition, contending that the Petitioners had a Analogical
remedy at Law.
Cases of
Commit-
ments for
Lord Erskine, Lord Chancellor.
Contempts.
As to remedy at Law, the subject of this application is not the libel against
the Petitioner. The case of Roach v. Garvan *, and another there mentioned, * 2 Atk. 469.
were cases of constructive contempt, depending upon the inference of an inten-
tion to obstruct the course of justice. In this instance, that is not left to con-
jecture; and whatever may be said as to a constructive contempt through the
medium of a libel against persons engaged in controversy in the Court, it never
has been nor can be denied, that a publication not only with an obvious tendency,
but with the design to obstruct the ordinary course of justice, is a very high
contempt. Lord Hardwicke considered persons concerned in the business of
the Court as being under the protection of the Court, and not to be driven to
other remedies against libels upon them in that respect.-But without considering
whether this is or is not a libel upon the Petitioner, what excuse can be alleged
for the whole tenor of this book, and introduced by this declaration of the pur-
pose which the author intended it to answer? It might be sufficient to say of the
book itself, stripped of the dedication, that it could be published with no other
intention than to obstruct the duties cast upon the Petitioner, and to bring into
contempt the orders that had been made. But upon the dedication this is not
a constructive Contempt. It is not left to inference. In this dedication the
object is avowed, by defaming the proceedings of the Court standing upon its
Rules and Orders, and interesting the public, prejudiced in favour of the author
by her own partial representation, to procure a different species of judgment
from that which would be administered in the ordinary course, and by flattering
the Judge to taint the source of justice.- This Pamphlet has been sent to me.
As to the printers, Lord Hardwicke observes, it is no excuse that the printer
was ignorant of the contents. Their intention may have been innocent; but, as
Lord Mansfield has said, the fact whence the illegal motive is inferred must be
traversed, and the party admitting the act cannot deny the motive.--The maxim
“ Actus non facit reum, nisi mens sit rea,” cannot be made applicable to this
subject in the ordinary administrations of justice, as the effect would be that
the ends of justice would be defeated by contrivance.-But upon the satisfactory
account given by three of these printers, though undoubtedly under a criminal
proceeding, they would be in mercy in a case of contempt. Though I have the
jurisdiction, I shall not use it.—The other printer appears upon the affidavits
under different circumstances. Having made the observation, that this Pamphlet
ought not to be printed, being totally uninteresting to the public, yet he does
print it; and though the locus penitentiæ was afforded to him, and he was
called upon not to print any more, he proceeded until he had notice of this
Petition.
Let
320 APPENDIX TO THE FIRST VOLUME:
[Nº 6.
Analogical
Cases of
Commit-
ments for
Contempt.
Let the Committee, and his Wife, and the Printer to whom I have last alluded,
be committed to the Fleet Prison. Dismiss the Committee from that office;
and direct a reference to the Master, as to the appointment of another Com-
mittee.
delivered in Court, the
but after the death of
occasion of it was a
Extracts from Sir Eardley Wilmot's Opinions and Judgments; p. 253.
Hilary Term, 5 Geo. III.---1765.
The King against ALMON.
This opinion was not
It has been argued that the mode of proceeding by Attachment is an invasion
upon the ancient simplicity of the Law; that it took its rise from the Statute of
Prosecution having
heen dropped, in con- Westminster, ch. 2; and Gilbert's History of the practice of the Court of Com-
of the resignation of the mon Pleas, p. 20, in the first edition, is cited to prove that position. And it is
then Attorney General; said, that Act only applies to persons resisting process; and though this mode
this eminent and very
of proceeding is very proper to remove obstructions to the execution of process,
learned Chief Justice
, or to any contumelious treatment of it, or to any contempt to the authority of
hand-writing among bis the Court, yet that papers reflecting merely upon the qualities of Judges them-
papers by his somewho selves are not the proper objects of an attachment; that Judges have proper
of his life, p. 243. The remedies to recover a satisfaction for such reflections, by actions of “ Scandalum
Motion in the Court of Magnatum ;” and that in the case of a Peer, the House of Lords may
be applied
King's Bench, for an to for a breach of Privilege: That such Libellers may be brought to punish-
attachment against Mr.
Almon, for a Contempt ment by indictment or information ; that there are but few instances of this sort
upon the Court
, Land upon Libels on Courts or Judges ; that the Common Pleas lately refused to do
upon the Chief Justice. it; that Libels of this kind have been prosecuted by Actions and Indictment;
and that Attachments ought not to be extended to Libels of this nature, because
Judges would be determining in their own cause ; and that it is more proper
for a Jury to determine “ quo animo” such Libels were published.
“ As to the origin of Attachments, I think they did not take their rise from
the Statute of Westminster, ch. 2 ; the passage out of Gilbert does not prove
it, but he only says, “ the origin of commitments for contempt, 'seems to be
“ derived from this Statute;" but read the paragraph through, the end contra-
dicts the seeming' mentioned in the beginning of it; and shows that it was a
part of the Law of the Land to commit for contempt, confirmed by this Sta-
tute. And indeed when that Act of Parliament is read, it is impossible to draw
the commencement of such a proceeding out of it; it empowers the Sheriff to
imprison persons resisting process, but has no more to do with giving Courts
of Justice a power to vindicate their own dignity than any other chapter in
that Act of Parliament.
“ The power which the Courts in Westminster Hall have of vindicating
their own authority, is coeval with their first foundation and institution; it is a
necessary incident to every Court of Justice, whether of Record or not, to fine
and imprison for a contempt to the Court, acted in the face of it, 1 Vent. 1,
and
PRIVILEGE OF}PARLIAMENT.
321
« Lex
and the issuing of Attachments by the supreme Courts of Justice in Westmin- Analogical
ster Hall, for contempts out of Court, stands upon the same immemorial usage
Cases of
Cummit-
as supports the whole fabric of the Common Law; it is as much the “
inents for
Terræ,” and within the exception of Magna Charta, as the issuing any other contempt.
legal process whatever.
“ I have examined very carefully to see if I could find out any vestiges or
traces of its introduction, but can find none; it is as ancient as any other part
of the Common Law; there is no priority or posteriority to be discovered about
it, and therefore cannot be said to invade the Common Law, but to act in
alliance and friendly conjunction with every other provision which the wisdom
of our ancestors has established for the general good of society. And though I
do not mean to compare and contrast Attachments with Trials by Jury, yet
truth compels me to say, that the mode of proceeding by Attachment stands
upon the very same foundation and basis as Trials by Jury do, immemorial
usage and practice; it is a constitutional remedy in particular cases; and the
Judges in those cases are as much bound to give an activity to this part of the
Law, as to any other part of it. Indeed it is admitted, that Attachments are
very properly granted for resistance of process, or a contumelious treatment of
it, or any violence or abuse of the Ministers or others employed to execute it.
But it is said that the Courts of Justice in those cases is obstructed, and the
obstruction inust be instantly removed ; that there is no such necessity in the
case of Libels upon Courts or Judges, which may wait for the ordinary method
of prosecution, without any inconvenience whatsoever. But where the nature
of the offence of libelling Judges for what they do in their judicial capacities,
either in Court or out of Court, comes to be considered, it does, in my opinion,
become more proper for an Attachment than any other case whatsoever.
“ By our Constitution, the King is the fountain of every species of Justice
which is administered in this Kingdom, 12 Co. 25. The King is " de jure”
to distribute justice to all his subjects; and because he cannot do it himself to
all persons, he delegates his power to his Judges, who have the custody and
guard of the King's oath, and sit in the seat of the King “ concerning his
justice.”
“ The arraignment of the justice of the Judges is arraigning the King's
justice; it is an impeachment of his wisdom and goodness in the choice of his
Judges, and excites in the mind of the people a general dissatisfaction with all
judicial determinations, and indisposes their minds to obey them; and whenever
mens allegiance to the Laws is so fundamentally shaken, it is the most fatal
and the most dangerous obstruction of justice, and in my opinion, calls out for
a more rapid and inmediate redress than any other obstruction whatsoever; not
for the sake of the Judges, as private individuals, but because they are the
channels by which the King's justice is conveyed to the people. To be impar-
tial, and to be universally thought so, are both absolutely necessary for the
giving justice that free, open and uninterrupted current, which it has for many
VOL.I.
ages
TT
322
APPENDIX TO THE FIRST VOLUME.
Analogical
Cases of
Commit.
ments for
Conteinpt.
ages
found all over this kingdom, and which so eminently distinguishes and
exalts it above all nations upon the earth.
« In the moral estimation of the offence, and in every public consequence
arising from it, what an infinite disproportion is there between speaking con-
tumelious words of the rules of the Court, for which Attachments are granted
constantly, and coolly and deliberately printing the most virulent and malignant
scandal which fancy could suggest upon the Judges themselves. It seems to
be material to fix the ideas of the words “ Authority” and “ Contempt of the
Court,” to speak with precision upon the question.
“ The Trial by Jury is one part of that system, the punishing Contempts of
the Court by Attachment is another: we must not confound the modes of pro-
ceeding, and try Contempts by Juries, and murthers by Attachment; we must
give that energy to each which the Constitution prescribes. In many cases, we
may not see the correspondence and dependance which one part of the system
has and bears to another; but we must pay that deference to the wisdom of
many ages as to presume it. And I am sure it wants no great intuition to see,
that Trials by Juries will be buried in the same grave with the Authority of the
Courts who are to preside over them.”
Trinity Term, 8 Geo. III.
Writs of Attachment were granted against Staples Steare, John Williams,
and John Pridden, for Contempt, in pablishing the North Briton Extraordinary,
No. 4, containing a Letter addressed to Lord Mansfield, Lord Chief Justice,
containing gross reflections on his Lordship.
They were all examined upon interrogatories, and reported in Contempt.
And in Michas. Term, 9 Geo. III. Steare was sentenced to be imprisoned
three calendar months.
INDEX
323
1 N D E X
TO THE FIRST VOLUME.
ABIN
BINGDON, the Earl of, amenable to the law for publishing his own specch
in Parliament, 203 n; and committed to the King's Bench Prison (A. D.
1795) 206 n.
Access to her Majesty, petitioned for by the Speaker on being presented to the
Queen (A. D. 1558) 75, 76; first asked, 28° Hen. VIII, 76.
Acts of Parliament in matters of privilege. See Statutes.
Adjournment of Parliament by the Queen's Commissioners (A.D. 1586) 100;
privileges of Members the same as during the sitting of the House, 101.
164. 177; even during an adjournment of five months, 180; royal com-
mission for adjournment brought down, but not read (apparently from
fear of suspension of privilege of Parliament,) and the House adjourns
itself, 182.
Admiralty Court, Members privileged from attachment therein, 75.
Apology and satisfaction of the Commons (A. D. 1604) 77 n. 138; App. 227-249;
they represent to King James 1, that he is misinformed as to their privileges,
which are of right, though renewed upon petition, 231, 232; and as to the
House not being a court of record, 231.233; also as to their right to judge
of returns of Members, 231. 233.
that breach of their privileges has been committed against freedom of per-
sons in elections (234) and of the elected, 238; against their freedom of
speech in Parliament, 234. 238; and in noticing the conduct of Members
in the House, 234, 235; in a book written against them, 234. 241; by the
insolence of Black Rod, and of a yeoman of the guard, 236, 237 n; by the
interference of the Court of Chancery in election cases, 239, 240.
intention of the Commons in their apology is the reform of abuses in State
and Church, 243; and for the King's favour as to assarts, 244; purveyors,
244; and wardship (245) for which they offer composition (compensation)
to the Crown, 247.
Arrest for debt, account, trespass or contract; Commons petition the King
(5° Hen. IV,) against, for themselves and servants, 13; for freedoin from
arrest, except for treason, felony, or surety of the peace (8° Hen. VI,) 18;
practice and instances, 52, 53. 113. 119. 160-165; bill for delivery from
arrest during prorogation or adjournment introduced, but not passed, 168& n.
of Member for a fine to the King, 35; freedom from arrest prayed by the
Speaker when presented to Queen Elizabeth, 76; such petition of latter
days, in the opinion of Hakewill and Elsynge, 77; but see, 77 n.
Member arrested twenty days before the meeting of Parliament, has privilege
allowed him, 99, 100; instance of arrest fraudulently procured by a
Member's servant, 90. See Privileges of Parliament.
Arundel, Lord, imprisoned without cause expressed (A. D. 1626); the House of
Lords interfere, and constrain the King to release him, 142-148.
Assarts, bill of, 236 & n. 244.
TT 2
Assault,
324
INDEX TO THE FIRST VOLUME.
;
Assault, punishment for assaulting a Member, by statute 5° Hen. IV, 16; and
11° Hen. VI, 26; person assaulting a Member, committed to the Tower
(A. D. 1554) 73; to remain in the Serjeant's wärd till further order (A. D.
1575) 92; committed to the Serjeant (A. D. 1601. 1608, &c.) 119. 193, 194.
Assizes, Members impleaded at, obtain writ of supersedeas, 105.
Attachment, Member privileged from attachment of his goods, 12. 48; in the
Admiralty Court (A.D. 1557) 75.
Attendance in Parliament, exempts Members from several duties, and from legal
process, and is the foundation of their privileges, 2.
Attorney, committed for procuring the arrest of a Member in execution, 161
brought to the bar for threatening to proceed against an outlawed Mem-
ber, 177.
Attorney-General, 120. 173 ; ordered to prosecute persons for offences against the
House, 128 n; causes a Star-chamber subpæna to be served on a Member,
but excuses this as a mistake, 175.
Atwyll, John, case of, 17° Edw. IV, Members not to be impleaded, 48; observa-
tions, 50.
Audley, Lord, Speaker in 1529; afterwards Chancellor, 56 & 17.
Badger, Sir Thomas, his servant imprisoned, brought to the House upon the
Speaker's Habeas Corpus, and discharged, 167.
Bainebrigg, a Member, assaulted, the offender committed, 92.
Barnewall, John, a case of privilege of Parliament in Ireland, 3° Edw. IV, 39.
Bassett, elected a Member, and privileged as such, though previously imprisoned
on mesne process, 165.
Bastardy warrant, a Member's servant privileged therefrom, 133. 154.
Belgrave, Mr. privileged, and protected from information in the Star-chamber,
119-121.
Bishop of Bristol (Thornborough,) publishes a book which is complained of by
the Commons (A. D. 1604) 234. 241; acknowledges his fault in the House
of Lords, 242 n.
of Lincoln (Neil,) complained of as having reflected on the House; message
to the Lords upon this, and other business stayed, 200; the bishop excul-
pates himself before the Lords, 201.
Bishops ousted from the House of Lords by the Long Parliament (A. D. 1641) 222.
Black-Rod, gentleman usher of, his neglect of duty, and misbehaviour to the
House, 236.
Bogo de Clare, fined for a breach of the privilege of the King's palace, Parliament
sitting there, 4-6.
Book, slanderous to the House, published by a Member, wlio being with the
printer apprehended, is imprisoned, fined and expelled, and loses his wages,
93. 95; observations thereupon, 128-n.-130.
in print, concerning proceedings in Parliament, noticed and referred to a
Committee, 202, 203; speech published by a Peer, ordered to be burnt,
(A. D. 1641) 203 n. See Speeches published, Prayer Book.
Brereton, a Member, committed during a prorogation, liberated by writ of Habeas
Corpus, issued by order of the House, 132.
Buckingham, Duke of, two Members committed for expressions used concerning
him at a conference; they are released and exculpated by a resolution of
the House, 148–151.
Burdett, Sir Francis, Report of a Committee on bis case, App. 281-322 ; he having
been committed to the Tower (April 1810) for a publication against the
House, notices, writ and summons are served by his Solicitor on the
Speaker and the Serjeant, in order to try the legality of the proceedings
of
INDEX TO THE FIRST VOLUME.
325
Burdett- continued.
of the House, 282; the practice has usually been to commit by their own
authority, for offensive words and writings, 283 ; sometimes prosecutions
have been ordered, 302, 303.
Bill of Rights declares that proceedings of Parliament cannot elsewhere be
questioned, 284; the law in favour of Strode, and the liberation of Eliot
and Digges to the same effect, 285; case of Sir W. Williams fined for
acts done as Speaker of the House; an illegal judgment, and bills brought
in to reverse it, 288; case of Topham (Serjeant at Arms,) Judges com-
mitted for illegal judgment against him, 290; other instances and autho-
rities cited, 292; but in the present case the Speaker and Serjeant must
plead to the actions brought, in order to inform the court, 294.
precedents of commitment for scandalous words and libels, 299-301 ; of
prosecutions at law, 302, 303; claim and recognition of the privilege of
Parliament, and power of commitment, 304–306; commitments for con-
tempt of courts of justice, 314-322 ; by Lord Erskine, chancellor, 319.
Calvert, Mr. Secretary, brings a message from the King to the House (A.D. 1620) as-
suring freedom of speech, 134; thought by the House to equivocate, 137.
Capius ad satisfaciendum, writ of, against a Meinber, superseded before put in
execution, 49.
Carleton, Sir Dudley, his courtly observation on the offence taken by the Duke of
Buckingham, 150 ; his character, 150 n.
Carlton, Mr. argues for the privileges of the House (A. D. 1571) 83, 84.
Challenge, Member comınitted by the Council for sending a challenge, as a breach
of the peace; he is brought to the House, and after giving security, is
liberated, 152.
Chancellor, Lord, ordered, at the instance of the Commons, to direct the King's
writ to the Warden of the Fleet for liberation of a Member in custody, for
a fine, and in execution (39° Hen. VI,) 35; and indemnified for so doing,
36; similar writ offered, but refused by the Commons (34° Hen. VIII, 54;
Chancery process of subpæna having been served on a Member (A. D. 1584)
the Chancellor refuses to revoke it, 96, 97.
Chancery. See Injunction, Writs, Chancellor.
CHARLES I, commits the Earl of Arundel to the Tower without cause expressed,
142 ; his contemptible conduct and messages to the Lords thereupon,
143-147.
proposes question as to the effect of an adjournment by the King's com-
mission, 181; avows that the seizure of a Member's goods was by his
special order, 190; his digested system of arbitrary power, after he had
assented to the petition of right, 207; happiness of the Realm while he
governcd without Parliaments, described in the Parliamentary History, 209.
calls the Parliament of April 1640 from want of money, 210; his speeches
and messages on the subject, 211; dissolves the Parliament, and imme-
diately wishes to recall it by proclamation, 220; infatuation during that
and the after Parliament of 1640, 212–215.
attempts in person to seize five Members of the Long Parliament, 4 January
1641, 222; and retires from London, 223 & n; influence of the Queen over
him ruinous to his counsels, 212 1, 213n.
Cheney, Sir John, said to be the first Speaker who petitioned generally for the
antient privileges and liberties of the Commons, 1° Hen. IV, 77; doubted
whether not an earlier instance, 77 n.
Citations, ecclesiastical, Members privileged from in going to Parliament, 4.
Clarendon, Lord, quoted 140. 150, 193. 208. 211. 213. 219. 222 n.
Clerk
326
INDEX TO THE FIRST VOLUME.
Clerk of the Crown, called up to the table to amend a return; warrant of Habeas
Corpus issued to him (A.D. 1625) for delivery of a Member in execution ;
he brings the Member to the House, who takes his seat, 166; similar war-
rant issued to him, for delivery of a Member's servant, 167.
Clerk of the House, privileged from subpæna, 10° Edw. III, 172, a doubtful
instance, especially if referable to Thoresby's case, 172 n; who is called by
Sir Edward Coke, Clerk of Parliaments, 11.
his bag-bearer allowed privilege (A. D. 1606) 198, 199.
Cochrane, Lord, 206 n. having escaped from prison, is apprehended within the
House of Commons by the Marshal of the K. B. during the sitting, but
before the meeting of the House, and this not held to be a punishable
breach of privilege, 278–280.
Coke, Sir Edward, cases produced by him under the title of Privilege of Parlia-
ment, 3-10; defines privilege, 20; Speaker and Solicitor-General (A. D.
1592) 108; reprehension of poor offenders against privilege, 111.
his extraordinary advice in the case of a Member claiming privilege, 108 ;
very different motion of his for an extension of privilege during the five
montlis adjournment (A. D. 1621) 163. 180; standing up, recites the collect
for the King and his family, 182.
committed to the Tower, and his papers seized (A. D. 1621) for his conduct
in that Parliament, 141; objects to the examination of a woman in the
House, 195; his character ambiguous, 164.
Committee appointed (A. D. 1575) to enquire into a breach of privilege, 89; com-
mittees of privilege on particular cases (A. D. 1601 & 1609) 119. 162; to
consider all things concerning privilege (A. D. 1621) 78; grand committee
on violation of privilege (A. D: 1628) 190.
Common Prayer Book, 83. 101.
See Prayer.
COMMONS, House of; their petitions for privilege, 5° Hen. IV, and 10° Hen. VI,
13. 22, 23
petition the King and Lords for delivery of their Speaker from imprisonment,
31 Hen. VI, 29; and on refusal of their petition elect another Speaker, 32;
complain to the Upper House (34 Hen. VIII,) that their Serjeant has been
resisted in proceeding to liberate a Member, 54; but refuse aid by the
Chancellor's writ, and the Member is liberated by the Serjeant, whose
mace is declared to be his warrant, 54.
declare a recognizance to appear in the Star Chamber a breach of privilege
(A. D. 1555) 74; fine, imprison, and expel a Member (A. D. 1580) 94;
and in the last day of the session, appoint Members to receive a retractation
of slanders on the House, and to report next session, 95,
Members having been committed in 1614 for speeches in Parliament, the
matter is taken up in 1620, and a faithless assurance from the King obtained,
134, 135 ; protestation touching the liberty and privilege of Parliament
(A. D. 1621) 78, 79. 139.
refuse to proceed on other business till righted in their liberties (A. D.
1626) 149; resolved that every Member shall have privilege of his goods
and estate (A.D. 1628) 190; committee and resolution regarding a Member
slandered by a Peer, 196.
a Court of Record, 109.
commit Sheriffs, 55 ; the Warden of the Fleet, 157; a creditor, 55; a Mem-
ber's servant fraudulently procuring an arrest, 90; their own Members, 93 ;
Justices of the Peace, 132.
commit to the Tower (55.72, 73.90. 157) as the proper prison of the House,
93; to Little Ease, 55; to the Gate House, 72 ; to the custody of the Ser-
jeant, 132
Contempt
INDEX TO THE FIRST VOLUME.
327
Contempt of Court; Member during prorogation being committed for contempt by
the K. B. is liberated by the House, by writ of Habeas Corpus, 132; com-
mitted for contempt in Chancery, is brought to the House by Habeas
Corpus, 133.
libel a contempt of court, 314. 319.
Convention, not Session of Parliament (A. D. 1614) because no Bill passed, 134 n.
Costs, charges, and expences, ordered to be repaid to Member served with Star
Chamber subpoena (A. D. 1584) and accordingly paid through the Serjeant,
98, 99.
Cotton, Sir Robert; his opinion on Larke's case, questionable, 22.
Council, The Queen's. See Privy Council.
Counsel, reprimanded for taxing a former Parliament, 199.
Creditors, lost their right to future execution on discharge of debtor by privilege,
until Act of 13. James I, 159.
Creevey, Mr. fined for a published speech, 203 n.
Crewe, Mr. his excellent speech in behalf of the privileges of the House
(A. D. 1621) 138.
Criminal law, not impeded by privilege of Parliament, 206 & n.
Cromwell, Oliver, first takes part in the debates of 1628, 190 n; anecdotes of him
from Sir Ph. Warwick, Abp. Williams, Mr. Maidstone (in the Thurloe
papers) and Lord Clarendon, 191-193 n.
Curwen, a Member, in execution for debt, has privilege, 125.
Custody, a privileged person in custody might formerly be sent for by the Serjeant
and Mace, 90. 152 ; afterwards by warrant of Habeas Corpus, issued by the
Speaker, 71. 167; in modern practice by an order for discharge, 167 11. See
Report of 20 March, 1793.
Debute, in A. D. 1543, on Ferrar's case, 54; in 1571, on the detention of a Member
by the Council, 83, 84; in 1586, on the same subject, 101; in 1592, 106,
107.
relative to freedom of speech (A. D. 1620) 134; and on the King's letter to
the Speaker (A. D. 1621) 138 ; on the proper mode of releasing a Member in
execution, the Warden of the Fleet refusing to deliver him up, 157 ; on the
effect of a long adjournment (A. D. 1621) 163; on the case of a Member
taken in execution before the date of his return, 166.
freedom of, claimed, on all subjects which concern the State, 138 1. 234. 238.
See Speech.
Dewes, Sir Simonds, his account of Sir Thomas Gargrave's speech, on being pre-
sented as Speaker, 75, 76; his collection of proceedings during the last six
Parliaments of Q. Elizabeth, very valuable from the loss of the original
Journals of the House, 96.
Digby, Lord, his character, 222 n.
Digges, Sir Dudley, committed to the Tower for his conduct in Parliament
(A. D. 1626) 149; moves that the lands and goods of Members be not privi-
leged from the payment of debts during a five months adjournment; but
over-ruled by Sir E. Coke and others, 163 & n, 164.
Diggs, servant to the Archbishop of Canterbury, privileged, 114, 115.
Dissolution of Parliament by Charles I, (A. D. 1640) who immediately repents of
it, 220; Act of the next Parliament to prevent their own dissolution;
a violent breach in the constitution, 221; insidious argument of Mr. St. John
by which it was obtained, 221 n.
Distress, Members privileged from, during Parliament, 3.
Donne and Walsh's case, 12° Edw. IV, a Member's servant impleaded for
debt, 41.
Dyer,
328
INDEX TO THE FIRST VOLUME.
!
Dyer, Chief Justice of the C.P.(A.D. 1572) 88; his argument concerning writ
of privilege, 62, 63.
Dyson, Mr. Clerk of the House (a. D.1747 to 1762) his character in public and
private life, p. vi, vii.
Eliot, Sir John, committed to the Tower (A. D. 1626) for bis expressions at a con-
ference, 148 ; released by the King, 150; avows and justifies his expres-
sions on his return to the House, 151; a trial stayed in his behalf (A. D.
1623) 282.
Elizabeth, Q. charges the Council to call Members before them for their conduct
in Parliament, 106.
Elsynge, his opinion on the petition of the Commons, 5° Hen. IV, 14; on Clerke's
case, 37; on the usual petition for freedom from arrests, 77 & 11.
Escape, gaoler liable to an action of escape, on the discharge by privilege of Par.
liament of a person in execution for debt, previous to Act of 1º Janies I, 159,
160.
Excommunication in the High Commision Court, a breach of privilege, 183.
Execution for debt, Members and their servants discharged from, 19. 44. 82. 161.
166; plaintiff and officer committed to the Tower, 111; right of fresh
execution after the end of the session saved by special Acts of Parliament,
19. 36. 45; general Act of 1° James I, c. 13, to that effect, 38; Ferrer's
case (A.D. 1543) debated, 54; Act against reviving the right of the crc-
ditor against him carried upon division, 56; right not saved in Smalley's
case, 90. 91.
in Thorpe's case, 32° Hen. VI, distinction taken by the Judges whether con-
demnation had before Parliament, 31; privilege extended to this in
Trewynnard's case, 61.
privilege of Parliament originally not extended to execution for debt, 67;
Q. Elizabeth's servant discharged therefrom by the Lords, 117; servant of
a Peer discharged, 118.
on statute staple, privilege allowed to the Speaker's cook, 56, 57.
Expulsion of Member (A. D. 1580) 94.
Felony, not within privilege, 18. 20.
Ferrers, George, a Member and a servant of the King, arrested (A. D. 1543) 53;
the parties concerned therein punished, and the creditor left without re-
medy, 55, 56; his arrest considered as an insult upon the King, 91;
observations upon it referred to in the House of Lords (A. D. 1601) 116;
cited by Dyer in arguing Trewynnard's case, 58 ; Carte supposes the
whole of Ferrer's case to have been a fabrication of the Puritans, 57 n.
Fiennes, servant to a Peer, his case, 114, 115.
Fieri Facias, writ against a Member superseded, 49.
Finch, Lord Keeper, at a conference, urges a speedy supply, 212.
Fine to the King, Member privileged from arrest on this account, saving execu-
tion after Parliament dissolved, 35, 36.
inflicted on a Member (A.D. 1580) by the House, 94.
Fitzherbert, Thomas, a Member arrested upon writ of outlawry after his election,
107; privilege not allowed, 110; Elsynge's observation upon this case,
not well founded, 111.
Fleet,
ÎNDEX TO THE FIRST VOLUME.
329
Fleet, the Warden of, refuses to deliver up a Member without security given,
157, 158. 241; which produces the general law of 1° James I, saving the
right of creditors in case of privilege, 160. See Warden of the Fleet.
Franking letters, 40 days before and after Parliament, 40 n.
Gardiner, a Member, released from the Fleet during the session (A.D. 1566) 82.
Gargrare, Sir Thomas, Speaker, petitions Q. Elizabeth for the privileges of Par-
liament, 76.
Gatehouse, person committed to, 73.
Gemotum, Conventus publicus, 2 n.
Gifford, Mr. arrested after his election, but before the erroneous date of his re-
turn, which is amended, and the prisoner liberated, 166.
Goods of Members not to be attached, 12. 48; or taken in execution, 49; cases
prior to Edw. VI, 67; no claiın of this privilege from 1477 to 1603;
goods of Member (188) and of Member's servant privileged, 189; Speaker's
letter for restitution of goods attached, 188; goods of Member seized for
refusing to pay tonnage and poundage, 189; contest between the King
and the House thereupon (A. D. 1628) 189, 190.
Goodwin, Sir Francis, the King interferes in his election for co. Bucks (A. D. 1604)
236.239.
Grievances, recapitulated in the report of a committee (A.D. 1640) to be offered
in conference, 219. App. 259-264; innovations in religion, 259–261 ;
invasions of the propriety (property) of goods, 262; and of privilege of
Parliament, 260-263.
Habeas Corpus, writ of, Peer not privileged against, 206 n.
Hall, Mr. 93; the only case before 1640 of punishment for publishing a book de-
rogatory to the House, 128; report of the Committee upon the book, and
inference to be made from it, 129, 130. See also 299.
Hutton, Sir Christopher, Vice-Chamberlain (A.D. 1586) his speech on motion for
petitioning Q. Elizabeth for liberation of Members from the Tower, 102 ;
Lord Chancellor (A. D. 1588) obeys the Speaker's warrant for issuing writs of
supersedeas in favour of Members impleaded at the assizes, 106.
Henry VIII, his speech to the House of Commons in Ferrer's case, 56; claims
privilege of Parliament for his servants, 57.
High Commission Court abolished, 222.
Hogan's case (in the Lords) a privileged servant, 113-117.
Hume, the historian, bis statement of Strode's case incorrect, 86 1.
Hyde, Williain, a Member, taken in execution, privileged during the Parliament, and
a right saved to his creditors of obtaining execution afterwards, 44-46.
Impleaded, privilege of not being; writs of supersedeas to prevent Members being
impleaded, 8° Edw. II, 7. 291 ; Members of the Parliament of Ireland pri-
vileged in this particular by law, 3° Edw. IV, and duration of such privilege
specified, 39.
claimed for a servant of the Earl of Essex, 12° Edw. IV, but disallowed by
the Judges, 41, 42; so in the case of Ryvers and Cosins, 43; claimed by
the Commons in Atwyll's case, 17 Edw. IV, 48–50; special Act to save the
right of the creditor, 51 ; cases prior to Edw. VI, 68; exemption from suits
petitioned for in the first Parliament of Q. Elizabeth, 76.
Vol. I.
Speaker,
Uu
330
INDEX TO THE FIRST VOLUME.
Impleaded continued.
Speaker to direct warrant of supersedeas to the Lord Chancellor, if Members
impleaded at the assizes, 105, 291 ; to the Judges of Assize, 176; in the
Court of Wards, 17.7 ; in the King's Bench 179; but in another instance
the Chief Justice expresses displeasure at it, 185.
reason of such privilege against Members being impleaded (A. D. 1604) 170;
privilege waived 201, 202.
privilege limited by several Acts, 292 ; abolished by Act 10° G. III. c. 30,
223 1. with regard to actions, and suits.
Imprisonment, privilege of a Peer in Parliament time, not to be imprisoned (Lord
Arundel's case) 144.
Members, or their servants delivered from. See Members, Servants. Mem-
bers and others imprisoned by order of the House. See Commons, House of.
Indenture of return to be dated on the day of election, 166.
Indictments, being always contra pacem D. Regis, privilege of Parliament not
pleadable against, 206, 207 n.
Injunction of the Court of Chancery, Lord of Parliament allowed privilege against
(A.D. 1572) 87.
Ireland, privileges of the Parliament there specified by law, as also duration of
privilege, 3° Edw. IV, 39.
Issues, levied against a Member for default of appearance in the C.P. a contempt
and the parties held answerable, 179.
James 1, writes a letter to the House of Commons in 1621, not allowing of their
privileges; with his own hand rends their protestation thereon out of the
Journal Book, 77-79. 139, 140; and dissolves the Parliament, 79. 139, 140 ;
his message to the House on their debate respecting privilege of speech,
134; his letter (A. D. 1621) on the House sending to ask Sir Edwyn Sandys
why he was in confinement, 137, 138; and answer to the petition of the
House on that occasion, 139.
Journals of the House of Commons, not extant further back than 1° Edw. VI,
2. 70; imperfect till James I, 2; missing for some years at the close of
Queen Elizabeth, 70; chasm supplied by the collection of Dewes, 96; pro-
testation of the Commons (A. D. 1621) torn out of the Journal by James I,
79. 139; two Journals extant of the same session (A. D. 1628) 182 n.
Judges, questioned by the House of Lords as to privilege of Parliament, decline
answering in Thorpe’s case, 30. 239 n; and as to the effect of a five months
adjournment on the privileges of the Lords, 180 n; on the same occasion by
the King ; cautioned in Mr. Alford's speech, 181; their opinion of no
weight against the High Court of Parliament, 239.
influenced by theCrown in the time of Charles I, 208 n. 217; whereby the
law became the most intolerable grievance of all others, 208, 209.
of the King's Bench, commit a Member during prorogation for a contempt,
132; send a Member's servants guilty of a riot to the House for punishment,
142 ; greatly offended at the Speaker's letter, desiring a stay of judgment
against a Member, 185.
Judgment, Speaker's letter to the Judges of the K.B. to stay judgment, 185.
Juries, Members privileged from serving thereon, 112. 171. 174.
Justice of the Peace, commits a Member's servant for a riot, and refuses bail
(A. D. 1605); complaint thereof, and the Justice committed, 132 ; remarks
on this case, 153.
Keeper,
1
INDEX TO THE FIRST VOLUME. .
331
Keeper, Lord, directed by the Lords (A. D. 1601) to make out a writ of privilege
for liberation of a Lord's servant arrested in execution, 118.
King; His servants intitled to privilege of Parliament, 56; For transactions between
the Sovereign and the Commions, see Elizabeth, James I, Charles I.
Kneeling at the Bar, 99. 159.
dispensed with in favour of a counsel formerly a Member, 199.
Larke's case, 17; a Member's servant arrested for debt; the House petition the
King in his behalf (18) and he is liberated, but left liable for the debt, 19–22.
Laud, Archbishop, an adviser of Charles I, 209; punished by the Long Par-
liament, 222.
Libels; privilege of Parliament does not extend to the authors or publishers of
seditious libels (resolution of 29 Nov. 1763) 204 n; deemed a Contempt
of Court, 314-322.
Little Ease, person committed to, 55.
Lords, House of; their opinion and construction of Larke's case, 20, 21; proceedings
in the case of Hogan, the Queen's servant, arrested in execution, 113–117;
in Lord Arundel's case, 142–147; commit Under Sheriff and the Keeper of
Newgate to the Fleet, 117. Privilege to precede all other business, 147.
desire that their Members be not called in question by the Commons on co!
mon fame only, 201; resolve that supply shall have precedency of all other
business (A.D. 1640) and communicate this resolution to the Commons, 212;
who declare their privileges violated by it, 214; Bishops driven from the
House of Lords (A.D. 1640) by the Long Parliament, 222.
Lord of Parliament. See Peer.
Mace, the crown of it broken in a scuffle, 54; declared to be the Serjeant's war-
rant in Ferrer's case, 34° Hen. VIII, 54; in 1575, a Member's servant set
at liberty by it, g0; sent for Member put on a jury, 112; for Member
committed by the Council to the Marshalsea, 152; delinquents attached
by it, 171; Serjeant sent with it to deliver the pleasure of the House to
the Secondary of the K. B. the Court then sitting, 171.
Malton, Prior of, an early case of privilege (9• Edw. II,) his harness and horses
seized at York in returning from Parliament, 12, 13.
Martin, a Member, arrested before the meeting of Parliament, and after con-
sideration of the case liberated from the Fleet, 99, 100.
Member in prisoned on execution for debt, delivered by writ of the Chancellor to
the Warden of the Fleet, 39° Hen. VI, 35; by similar writ issued under an
Act, 47; in the case of Ferrers, 34° Hen. VIII, delivered by the Serjeant
of the House without writ by shew of his mace, 54; mode of release con-
sidered by the House, the Warden refusing to deliver his prisoner without
security, 158, 159; which gives rise to the Act 1. Jac. I, c. 13, 160.
delivered from execution in 1625 by Habeas Corpus issued on the Speaker's
warrant to the Clerk of the Crown, 166; declaration of the House thereon,
167.
imprisoned on mesne process, delivered by writs of privilege and Habeas
Corpus, 47.67
sent for by the Privy Council (A. D. 1586,) and thence to the Tower or Fleet
Prison for conduct in Parliament, 106; remarks on this, 125; Members
comunitted (A. D. 1621,) their chambers sealed up and papers seized
(A.D. 1626) 136-141; in 1626, proceedings of the House thereupon, 148-
151 ; remarks, 154-156. 206.
Members having been imprisoned for their conduct in the Parliament of
1628 (216) and heavily fined by the courts of law (217) the House
U u 2
complains
332
INDEX TO THE FIRST VOLUME. .
Member-continued.
complains of this grievance in 1641 (218) and in 1661 the affair is again
brought before Parliament (219. App. 250~258); on occasion of Croke's
report of the case, who states that information was exhibited by the
Attorney General against Sir John Eliot, Mr. Holles, and Mr. Valentine,
for words spoken in Parliament, 250~252; plea that the Court had no
cognizance thereof, over-ruled upon argument, and the parties fined, 253 ;
inaccuracy noticed in this reported case (253) which might eventually sub-
mit the privilege of Parliament to the law courts, 250; resolution, that
Strode's Act is a public Act declaratory of the antient and necessary pri-
vileges of Parliament, agreed to by the Lords, 258.
imprisoned for conduct in the short Parliament of 1640, 220.
attempt to seize five Members by the King in person, 222, 223; account of
the transaction by Rushworth, an eye witness, 222 n; and of what passed
on the preceding and following days, App. 265–277.
prosecuted in the Stannary Courts for having proposed a bill in Parliament,
and imprisoned, 85; Strode's law thereupon passed, 4° Hen. VIII, 86.
commanded by the Council (A. D. 1571) to forbear going to the House; but
the next day is allowed to come, 83.
arrested after the summons of Parliament, but before his election, privileged,
133 ; ordered to repair in the name of the House to the Court of Chancery
attended by the Serjeant, 96 ; sent by James I, to Ireland and to the Pala-
tinate, on pretence of the King's service, but really for conduct in Parlia-
ment, 141 ; ordered not to answer petition preferred in the Lords, 174.
apprehended by the Serjeant by order of the House, 93 ; committed to the
Tower, 93; expelled the House (A. D. 1580) 94.
slandered, complains to the House, 198;--restored to the House (A. D. 1566)
on condition to be eftsoons prisoner after the Session, 82;—assaulted, and
the offender committed to the Tower, 74; non-appearance of Member in
the Coinmon Pleas excused, 198.
Mesne process, Members delivered from arrest in that case by writ of privilege,
Message to the King intended respecting Members committed (A. D. 1620) 134;
King's message anticipates this, 135; message respecting the seizure of
Mr. Rolle's goods for not paying tonnage and poundage, 190.
to the Lords by eight Members (A.D. 1554) 73.
Motion, framed by the Speaker, 99, 100.
See Question.
47. 67
Neale, a Member arrested, pays the debt, and complains to the House, 111.
Newgate, persons committed to, 55.
Norton, a Member misused by certain porters, who are punished for it, 92.
Qath required of Members requiring privilege for their servants, 89.
Outlawry, Members privileged in 1558 from a writ of Capias Utlegatum, 80; per-
son outlawed eligible as Member, 81; in 1592 declared eligible, but not
entitled to privilege, 108; plaintiff and attorney brought to the bar for
outlawing a Member, 177.
Palace, summons and attachment within the King's palace, to be made only by
the King's Steward and Marshal, 4.
Parliament of 1640, called from want of money to raise an army, 210, 211;--pri-
vilege of Parliament holds, unless in treason, felony, and breach of the
peace (20) or seditious libels, 204. See Privilege.
of
INDEX TO THE FIRST VOLUME.
333
$
Parliament-continued.
of Ireland, duration of privilege established by law, 3° Edw. IV, at forly days
before and after the Parliament, 39; duration of privilege in the English
Parliament remains unsettled, 40 & n.
Parliamentary History, censured for misrepresentations, 85. 135. 151. 209.
Parr, Sir Thomas, Act of Parliament in his favour referred to in petition of the
Commons, 23° Hen. VI, but not found in the records, statutes, or parlia-
mentary history, 28.
Patent, ordered to be brought to the committee of grievances; and the patentee
refusing is committed, 203, 204.
Peace, privilege of Parliament not extended to breach of the peace, 18. 20. 31. 89.
144. 154. 206n; Member committed by the Council in 1628 for breach of
the peace; sent for by the House, remanded, and on giving security, libe-
rated by the House, 152; resolution of the Lords, that privilege does not
extend to surety of the peace, 66 n.
Peer, privileged from attachment, although for disobeying an injunction of the
Court of Chancery, 88 ; from imprisonment, without sentence of the
House, except for treason, felony, or the peace, 144; Peer saying that
a Member of the Commons deserved to be hanged, the House request the
Lords to inflict punishment upon him, 195, 196.
Peers, House of. See Lords, House of.
Petition of the House of Commons, against arrest for debt, 5° Hen. IV, 13; in case
of the murder or mayhem of a Member, 16; in case of trespass, offence, or
damage to their persons or their servants, 10. Hen. VI, 22; not granted,
23; in Quatremain's case, and Act passed thereon, 25, 26; for writ of
pro-
clamation in case of assault upon Members, 27; in Thorpe's case to the
King and Lords, 28; in Clerke's case, 35; on the King's attempt to restrain
their debates, 138 n.
of the House of Lords, for their privileges, on occasion of the commitment
of Lord Arundel, 144.
to the House of Commons, by a plaintiff against stay of proceedings, a
Member being defendant; petition not granted (A.D. 1607) and the custom
of Speaker's letters against being impleaded, established, 178.
to the House of Lords, against a Member of the House of Commons, treated
as a contempt, 174.
Petitioners of the House, whether privileged in prosecution of their bills, 202.
Phelips, Sir Edward, Speaker (A. D. 1603) his advice in the case of Sir Thomas
Shirley, 158.
Pledall, Gabriel, a Member bound in a Star Chamber recognizance to appear,
whether a breach of privilege, 74.
Prayer; Common prayer book, a Meinber pressing reformation thereof (A D. 1571)
commanded to forbear going to the House, 83 ; proposer of a new common
prayer book (A. D. 1586) sent to the Tower, 101, 102.
Precedents, which occurred between the attempt to seize the five Members
(A.D. 16.41) and the restoration of Cha. II. (A. D. 1660) passed over in
this work, 223.
Prisoner, privileged to go abroad with his keeper, 203.
Privileges of Parliament; privilege essential and necessary to every court of judi-
cature, 1; exists for the service of the State, not to endanger it, 65 n. 206 n,
207 n.; general view of the privileges of Parliament to secure unmolested
attendance, 205; never extended to protection from criminal law, 18. 206.
extent
334
INDEX TO THE FIRST VOLUME.
Privileges-continued.
extent and duration, 2; in veniendo morando et 'redeundo, 12. 40; seu venire
intendentes, 61. 66; settled at 40 days before and after the session in Ire-
land, 3° Edw. IV, 38.40 ; the duration uncertain in England, 20 days said
to be a reasonable time, 100; not to be deterinined by the justices, 30,
181; the Act of 12°–13° Will. III, c. 3, limits the privilege of not being im-
pleaded, to 14 days, 40; a resolution of the Lords limits that of not being
arrested to 20 days, 40n; that of franking letters extends to 40 days, 40 n;
instance of privilege extended through an adjournment of five months, 180.
petitions of the House of Commons for their privileges, 13. 16. 19. 25. 27.
See Petition.
extent of, temp. Hen. VI, 38 ; at the end of Hen. VIII, 65. 69; petition for
ancient liberties of the Commons, 1° Eliz. 75, 76; antiquity of such peti-
tion, 77; observations on the state of privilege at the end of Eliz. 121.127;
six several heads of privilege specified, 131, 132 ; apology and satisfaction of
the Commons addressed to James 1,138 n; protestation for their insisting on
their privileges, 78. 139 ; enumeration of personal privileges by Sir Edward
Coke, 163.
allowed notwithstanding recognizance not to clain it, 173; extended to
Members committed since the summons, but before their election, 133;
between election and return of Member, 166; petition to the Peers against
a Member, a breach of privilege, 174; or for the Peers to interfere in
matters of supply, 214.
breach of privilege by commitment or restraint of Members, 113, 114. 153.
156. See Members.-By arrest for debt, 167. See Arrest, Mesne Process,
Execution.—By citations and summons of inferior courts, 74, 75. 112.
118. 123. 175. See Citations, Summons, Subpæna, Recognizance, Issues,
Juries, Outlawry, Admiralty Court, Star Chamber, &c.-By suits at law
during time of privilege, 38. 50. 68. 76. 103. 186. See Impleuded, Speaker.
-By taking goods of a Member, 12. 48. 67. 187. See Goods, Distress.-
By assaulting a Member or his servants, 26. 92. 119. 193. Seé Assault.
Asserted by the Ho. Lords, 143. See Lords.
of freedom of speech, 76. 83. 86. 234. See Speech, Debate.-Of servants of
Members, 13, 65.70. 177. See Servants.--Acts of Parliament regarding
privilege. See Statutes.
Privy Council; in 1571 command a Member to forbear going to the House, 83 ;
in 1586 send for Members and commit them to the Tower for their conduct
in Parliament, 102 ; in 1592, commit Members to the Tower and Fleet for
the same reason, 106; in 1628, commit a Meinber for a challenge, 152.
Proclamation, in case of persons assaulting Members, by 11° Hen. VI, 26 ; writ of
proclamation prayed for by the Commons, 23° Hen. VI, 27.
Protestation of the Commons (A. D. 1621) rent out of the Journals by James I, 79.
139, 140; but it still is preserved, 78.
ordered to be taken by every Member to clear Sir Dudley Digges of words
supposed to have been spoken by him, 149.
of a Member entered in the clerk's book, 137.
Prynn, Mr. his opinions quoted, 8. 43. 59.
his works referred to, 32. 51.60. 82. 89.
Puckering, Serjeant, Speaker (A. D. 1586) his conduct on questions proposed by
Mr. Wentworth, 102; Lord Keeper (A. D. 1592) advises the House to send
by their serjeant for a Member in execution for debt, 109.
Puleston, Mr. a Star Chamber subpæna served on a Member in an election ques-
tion, 103; after a Committee had reported on the case, the suit is suffered to
proceed, 105.
Purveyors,
INDEX TO THE FIRST VOLUME.
335
Purveyors, their abuses restrained by many Acts of Parliament, but still practised,
244, 245
Pym, Mr. committed to the Tower (A. D. 1621) by James I, for his conduct in
Parliament, 140; his character, by Lord Clarendon, 140 n; sums up the
grievances of the nation in his speech (1. D. 1640) 219.
Quatremains, Richard, Member for Oxfordshire, assaulted, gives occasion for Act
11° Hen. VI, 26.
Queen Elizabeth. See Elizabeth.
Questions moved (Motions) by the Speaker to the House, 84.99, 100. He pockets a
motion, 102.
Recognizance, Member thereby bound not to claim privilege, but has it, 173.
Record, the House of Commons a court of record, 109. 233.
Remonstrance of the privileges of the Peers in Parliament, presented to the King
(A. D. 1626) 144.
Return of Meinber, the date of the indenture amended by order of the House, 166.
Riot, privilege of Members servants not extended to protect them in, 81; ser-
vants committed to Newgate (A.D. 1605) and bail refused ; Habeas Corpus
ordered for servants, 132.
Rolle, Mr. his goods seized in payment of tonnage and poundage, 189, 190.
Rolls of Parliament so called, are those six volumes, intitled, Rotuli Parliamen-
torum, printed by order of the House of Lords, 3 n.
Rushworth, Clerk-Assistant, 222.
Ryvers and Cosins case; privilege against being impleaded, claimed but not
allowed, 42, 43.
Sandys, Sir Edwyn, a Member committed by James I, for his conduct in Parlia-
ment, 136; proceedings of the House thereupon, and the King's letter to
the Speaker, 137
Seditious libels. See Libels.
Selden, Mr. committed to the Tower (A. D. 1621) for his conduct in Parliament,
140;
his character and manner of life, 141 n; opinion respecting breach of
privilege, 184; words spoken of him by Lord Suffolk, 195.
Serjeant at Arms, (or of the Parliament) ordered to demand delivery of a Member
imprisoned in the Counter under execution for debt, 53; resisted and
assaulted by the City officers, and complains to the House, 54; repairs
again to the Counter, and the prisoner delivered to him ; charges the
Sheriffs to appear before the House, 55; the mace his warrant, 54.
ordered to go and fetch a person who had assaulted a Member, 92 ; usually
sent for privileged persons under arrest, 122. See Mace.
apprehends a Member by order of the House, 93 ; sent by order of the House
for a Member in execution for debt, 109; sent to Newgate to bring a
Member's servant to the House, 113; brings a Meinber committed for a
contempt of Chancery to the bar, 133; persons committed to his custody,
122. 161; for five days, 119; for three days, 170.
Servants of Members, included in the petition 5° Hen. IV, against arrest for debt,
13; claimed to be under the King's protection in Chedder's case, 15; pri-
vileged from arrest, 113. 119, 162 ; from arrest in execution for debt, 18.
161. See Execution. To what servants privilege confined, 65; writ of
privilege ordered (A. D. 1548) for a servant, 70; servants imprisoned for
à riot, and writ refused, 81; strange punishment inflicted for arrest of a
Member's servant, 165.
supplication
336
INDEX TO THE FIRST VOLUME.
Servants-continued.
supplication to undo the privilege granted Fludde; procedencio directed to
set him without the privilege of the House, 71; Oath taken by Member
requiring privilege for his servant, 89.
set at liberty by warrant of the mace, not by writ, 90.
Speaker's servant, not joined in comunission in a suit in the Court of Wards
& Liveries, 177
of the King, intitled to privilege of Parliament, 57; discharged by the Lords
(A. D. 1 601) 117.
of Lords, discharged from custody on arrest of debt, 115; if not ordinarily
attendant, privilege refused, 116.
Sheriffs of London, with others, brought to the House of Commons for ill usage of
the Serjeant, and committed to the Tower, 34° Hen. VIII, 55; sued in debt
for discharging a Member taken in execution, 60; pleads a writ of privilege,
61; no judgment given, 62; Dyer's argument for the Sheriff, 62, 63. See
Under Sheriff.
Shirley, Sir Thomas, a Meinber committed to the Fleet in execution for debt, and
the Warden refuses to release him, 157 ; which gives occasion for a general
law allowing of new execution after such release, 160.
Smalley, a Member's servant, having procured a fraudulent arrest for the sake of
privilege, is committed by the House, 89, 90.
Smith, John, a Member and fraudulent outlaw, allowed privilege and to continue
a Member, on a division of 112 to 107, 80, 81.
Speaker, Thomas Thorpe, imprisoned on execution for a debt in vacation time, and
new Speaker chosen. See Thorpe. Sir William Williams fined. See
Williams. Mr. Abbot served with notice of action. See Burdett.
on being presented to Queen Elizabeth, makes petition for the antient
liberties of the Commons, 75; charges persons at the bar with a contempt,
98. 103 ; pronounces judgment of the House to persons kneeling at the
being with the Queen, the House does not sit, 102; moves questions to the
House, 100; pockets a motion, and the Meinber committed, 102.
absent for several days, 189; remarkable that no ineasure has hitherto been
adopted for appointment of a Speaker pro tempore, 189 n.
to grant warrants for writ of privilege, upon declaration of a Member, 71;
to direct warrants (A. D. 1588) to the Chancellor for writs of Supersedeas on
Members impleaded by writs of Nisi Prius brought against them at the
assizes, 105; issues warrants for Habeas Corpus to the Clerk of the Crown,
to deliver Members or their servants out of execution, 166.
to issue letters during a long adjourninent, in case of breach of personal
privilege, 163; writes accordingly excusing Members from attending the
execution of a commission out of Chancery to examine witnesses, 170 ; to
the Chief Baron on Member served with subpæna at suit of the Crown,
171; to the Judges on Member being returned on a jury, 174,
general authority given to the Speaker (without motion) to write letters to
the Justices of Assize for stay of proceedings against Members requiring
it, 177, 291, 292; form of such letters, 179; writes to the plaintiff's attor-
ney to foresee that no further process issue against a Member, 178; to the
Lord President and Council at York for stay of proceedings, where the
tenants of a Member were defendants, 178; to the Barons of the Exchequer
for stay of trial, 178; for stay of suit to the Star Chamber, 183; to the Lord
Keeper, 184; to the court of K. B. to stay judgment against a Meinber,
185; to suppress depositions in the Court of Chancery, 18ô. See Impleaded.
Speech,
bar, 99
INDEX TO THE FIRST VOLUME.
337
Speech, freedom of, petitioned for by the Speaker (A. D. 1558) on being presented
to Queen Elizabeth, 76; such petition first said to have been made 34°
Hen. VIII, 76; always one of the articles of the Speaker's petition after
33° Hen. VIII, 126; Strode's Act 4° Hen. VIII, as to liberty of speech in
Parliament, deemed a general Act, 85, 86. 258; Mr. Strickland (A. D. 1571)
having proposed innovation in the Common Prayer Book, is commanded
not to come to the House; debate upon this restraint, and Mr. Strickland
freed from it, 83, 84.
Member committed (A. D. 1586) to the Tower by the Privy Council for a
speech, 102 ;, comunitted (A. D. 1614) for speeches in Parliament, 134;
proceedings therein in session of 1620, 134; Sir Edwyn Sandys committed
(A. D. 1621) for a speech in Parliament, 136; declaration of both Houses
upon this subject (A. D. 1667) 86; observations, 126. 154-157; report of
the conference on that occasion, App. 250-258.
Speeches published by Lord Digby reflecting on the House (A. D. 1641) ordered
to be burnt, 203 n; by Sir F. Winnington and Lord Cavendish (A. D.
1679) by Sir J. Knight (A. D. 1693) complained of 203 n; the publishers
of libellous matter in the form of a speech, amenable to the courts of law,
203 n.
Stanhope, Sir Henry, committed by the Council for a challenge, discharged by
the House, 152.
Staple, statute of, privilege of Parliament extends to actions thereon, 56.
Star Chamber, recognizance for a Member's appearance there, declared a breach
of privilege (A.D. 1555) conference thereon, and affirmed to be no breach
of privilege, 74; information at the suit of a Peer (A. D. 1601) conference
thereon with the Lords, 120; Member enjoined not to attend the hearing
of the cause, 174. See Subpana.
-- abolished, 222.
Statutes regarding privilege of Parliament, in consequence of Chedder's case, 50
Hen. IV, c. 6. 16; of Quatremain's case, 11 Hen. VI, c. 11. 26; of
Clerke's case, 39° Hen. VI, 36; of Strode's case, 4° Hen. VIII, c. 8,
afterwards considered as a general law, 86; of Shirley's case, 1° Jac. I,
c. 13, which is deemed a public law, 160 ; Acts restraining privilege, 292;
abolishing privileges, 10° G. 111, 30 & 50, 223 n.
“ Observations on the statutes ;" the author of this book in a mistake, 26 n.
Stepneth, Mr. a Member, sued in the Star Chamber; Kirle imprisoned for it, and
pays costs, 97-99.
Strafford, Lord, a minister of Charles I, 208. 220; punished by the Long Par-
liament, 222.
Stranger, in the House, admonished for his contempt, 199; affirming himself to
be a Member, committed, 199.
Strickland, Mr. See Prayer Common, Speech freedom of.
Strode, Mr. imprisoned for bringing a bill into Parliament, 85; law made
thereon, 86; declared to be a private law by the Judges (temp. Cha. I.)
falsely, 254. 258. 284.
Subpæna, served upon a Peer (A. D. 1554) declared to be no breach of privilege,
73 ;--ad testificandum, served upon Members (A.D. 1597) a contempt, 112;
without leave of the House (A.D. 1601) declared to be a breach of privi-
lege, 119.
put of the Star Chamber, service on a Member deemed a contempt, 98;
party serving it charged by the House to surcease his suit, 104; but after-
wards leave given to proceed, 105; Member has privilege against (A. D.
1605), and the person serving process committed, 170; at suit of the
VOL. I.
x x
Attorney
338
INDEX TO THE FIRST VOLUME.
Subpæna——continued.
Attorney General (A.D. 1607) referred to the Committee of Privilege, but
no report, 172; Members privileged (A.D. 1628) and Member's servant,
against, 174.
out of Chancery, served on a Member (A. D. 1557) message to the Chancellor
to revoke the process, 75; served on a Member (A. D. 1584) the House claim
privilege therefrom, 96; but disallowed by the Chancellor, 97 ; persons
serving Chancery subpoena (A. D. 1597) brought to the House to answer
the contempt, 112; so in A. D. 1604, 169, 172.
Suits stayed. See Impleaded, privileged from being;
Summons, Members privileged from, in going to Parliament, 4.
Supersedeas, General Writs of, to protect Members from civil process durante Par-
liamento, issued in 8° Edw. II, 7,8; writ in Curwen's case (A. D. 1604) 125;
Speaker to direct warrant to the Chancellor for such writ on Members being
impleaded at the assizes, 105.
Supply, Lords come to a resolution as to precedency of supply (A. D. 1641) and
communicate this to the Commons (212) who declare it to be a breach
of their privileges, 214; precedency of supply, or of redress of grievances,
the whole dispute in 1640 between Charles 1, and his Parliament, 215.
(General discussion of Supply in Volume III.)
ܪ
Tash, Bryan. See Yeoman of the Guard.
Temple, Master of, his petition refused for liberty of distraining Members of Par-
liament, 18. Edw. I.“illi de concilio suo," 3.
Tenants of Members, stay of proceedings against them desired by the Speaker's
letter, 178.
Thoresby's case, 10° Edw. III, a contest between the civil and ecclesiastical courts, 9.
Thorpe, Thomas, Speaker, 31° Hen. VI, taken in execution at the suit of the Duke
of York, during an adjournment (28) the Commons petition the King an
the Lords for the liberation of their Speaker; the opinion of the Judges
regarding the then privilege of Parliament, 31; Thorpe not liberated, and
a new Speaker chosen, 32 ; observations upon this case, 34.
Thurloe's state papers quoted, 192 n.
Tonnage and Poundage, exacted on a Member's goods, 189.
Tower of London, the proper prison of the House of Commons, 93.
Town Clerk of Bury, sent for by the House (A. D. 1625) on occasion of a mistake in
dating a reiurn, 166.
Treason, Felony, and Surety of the Peace (and therein seditious libels, 204) not
within privilege, 18. 20.
Trewynnard, William, liberated from execution by writ of privilege, and argument
whether execution could be revived, 60, 65.
Under Sheriff, committed (A. D. 1601) by the Lords to the Fleet, 117.
Union with Scotland proposed (A.D. 1604) 242.
Wages formerly paid to Members for their service, writ to recover (A. D. 1586)
brought by a burgess, 95.
Warden of the Fleet, refusing to release a Member in execution committed to the
Tower for contempt (157) and persisting in his refusal committed to Little
Ease, 158; the Member being delivered up is brought to the bar, and dis-
charged, 159.
Wardship, evils of, and composition proposed, 245-247.
Warwick,
INDEX TO THE FIRST VOLUME.
339
Warwick, Sir Philip, quoted, 191 n.
Wentworth, Mr. committed by the Privy Council (A. D. 1586) to the Tower, 102;
again committed (A. D. 1592) 106.
Westminster Hall, Palacium Domini Regis, citations and summons to be served
therein only by the King's Steward and Marshall, 4.
Whitelocke quoted, 213 n.
Williams, Sir William, fined for acts done by him as Speaker of the House, 288.
Woman, coming as a witness, not permitted to enter the House, but examined at
the door by a Committee, 194, 195.
Words, complaint made by a Member of contemptuous expressions used concern-
ing him, 194; the offending party ordered to be sent for, 195; evil words
against the House punished, 198. 204.
spoken by a Peer against a Member, 195; proceedings tliereupon, 196.
Writ directed to the Warden of the Fleet (39° Hen. VI,) by virtue of an Act of
Parliament to discharge a Member in execution, 35; similar writ offered
but refused by the Commons, 34° Hen. VIII, 54.
of election issued from the Chancery and returnable therein, does not confer
on the Court of Chancery judgment of elections, 240.
of Privilege, the remedy at common law for delivery of Members arrested on
mesne process, 67; ordered for the servant of a Member (A. D. 1548) 70;
for a servant taken in execution (A. D. 1624) 165; to be obtained by the
Speaker's warrant upon Member's declaration, 71; to be issued only by
virtue of the Speaker's warrant, though the right of sending the Serjeant is
declared, 167, 168; the Lord Keeper directed by the Lords to issue such
a warrant, 118.
Yelverton, Mr. his speech (A.D. 1571) on the detention of Mr. Strickland, a
Member from the House, by the Queen Council, 84; whereupon Mr.
Strickland restored to the House, 84, 85.
Yeoman of the Guard, insolent to the Commons, 193. 237 n.
END OF THE FIRST VOLUME.
UNIV. OF MICHIGAN,
IV 4 1912
UNIVERSITY OF MICHIGAN
3 9015 07344 9186
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}