ing to the custom of the realm, the lords, knights, citizens, and burgesses were entitled to this privilege; and this was admitted by the king; who instead of agreeing to the proposition of the commons, that treble damages should be paid by parties violating their privilege, answered that there was already a sufficient remedy.' Hence this privilege appears distinctly, not to have been created, but only confirmed by statute as the ancient law and custom of Parliament and of the realm. Much later, viz. in the 17th Edward 4, the commons affirmed, in Atwyll's case, that the privilege had existed, "whereof tyme that mannys mynde is not the contrarie;"2 thus placing it on the ground of prescription, and not on the authority of statutes then in force. The only exception to the recognition of this privilege Thorpe's case. was in the extraordinary case of Thorpe, the speaker of the commons, who was imprisoned under execution from the Court of Exchequer, at the suit of the Duke of Gloucester. The judges delivered their opinion to the lords, "that if any person that is a member of this High Court of Parliament be arrested in such cases as be not for treason or felony, or surety of the peace, or for a condemnation had before the Parliament, it is used that all such persons should be released of such arrests, and make an attorney, so that they may have their freedom and liberty, freely to attend upon the Parliament." As Thorpe was in execution for a civil action, that had been brought during an adjournment, he was obviously entitled to his release, according to the opinion of the judges; yet it is entered on the rolls of Parliament, that after having "heard this answer and declaration, it was thoroughly agreed, assented, and concluded, by the lords spiritual and temporal, that the said Thomas, according to the law, should still remain in prison, the privilege of Parliament, or that the said Thomas was speaker of the Parliament, notwithstanding. Yet even here it is worthy of notice, 13 Rot. Parl. 541. 3 Case of George Ferrers, 1543, 34 Hen. 8. 4 that the privilege of Parliament was admitted, but adjudged to be overruled by the law. The whole case, however, has been regarded as irregular and "begotten by the iniquity of the times." Down to 1543, although the privilege had been recognized by statute, by declarations of both houses," by the frequent assent of the king, and by the opinions of the judges, the commons did not deliver their members out of custody by their own authority; but when the members were in execution, in order to save the rights of the plaintiff, they obtained special statutes to authorize the Lord Chancellor to issue writs for their release; and when confined on mesne process only, they were delivered by a writ of privilege issued by the Lord Chancellor." And in the singular case of Mr. Speaker Thorpe, already mentioned, the commons even submitted the vindication of their privilege to the House of Peers, as well as to the king." At length, with sudden energy, the commons, for the first time, vindicated the privilege of Parliament, and acted independently of any other power. George Ferrers, a member, was arrested in London, by a process out of the King's Bench, at the suit of one White, as surety for the debt of another. The house, on hearing of his arrest, ordered the serjeant to go to the Compter and demand his delivery. The serjeant was resisted by the city officers, who were protected by the sheriffs, and he was obliged to return without the prisoner. The house then rose in a body, and laid their case before the lords, "who, judging the contempt to be very great, referred the punishment 2 Larke's case, "Le Roi, par advis des seigneurs espirituelx et temporelx, et a les especiales requestes des communes."-4 Rot. Parl. 357. Atwyll's case, 6 Rot. Parl. 191. 3 Larke's case, 4 Rot. Parl. 357. Parr's case, 5 Rot. Parl. 111. Hyde's case, 6 Rot. Parl. 160. Thorpe's case, 5 Rot. Parl. 240. 5 Cases of Larke, Clerk, and Hyde, 4 Rot. Parl. 357. 5 Ib. 374. 6 Ib. 160. 6 thereof to the House of Commons." The commons then ordered the serjeant to repair to the sheriffs, and to require the delivery of Ferrers, without any writ or warrant. The lord chancellor had offered them a writ of privilege, but they refused it, "being of a clear opinion, that all commandments and other acts proceeding from the neather house were to be done and executed by their serjeant without writ, only by shew of his mace, which was his warrant.” The sheriffs, in the meantime, were alarmed, and surrendered the prisoner; but the serjeant, by order of the house, required their attendance at the bar, together with the clerks of the Compter, and White, the plaintiff; and on their appearance, they were all committed for their contempt. The king, on hearing of these proceedings, called before him the lord chancellor, the judges, the speaker, and some of the gravest persons of the lower house, and addressed them. Having commended the wisdom of the commons in maintaining the privileges of their house, and stated that even their cooks were free from arrest, he is reported to have used these remarkable words: "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 conjoined 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 judged as done against our person and the whole court of Parliament; which prerogative of the court is so great (as our learned counsel informeth us), that all acts and processes coming out of any other inferior courts, must for the time cease, and give place to the highest." When the king had concluded his address, Sir Edward Montagu "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." As this case rests upon the authority of Hollinshed, and not upon parliamentary records, its accuracy has sometimes been doubted: but the positions there maintained are so conformable with the law of Parliament, as since asserted; the circumstances are so minutely stated, and were of so notorious a character; that there can be little ground for distrusting the general correctness of the account. Its probability is confirmed by the fact that Ferrers was a servant of the king, and the proceedings of the commons on his behalf, were therefore the more likely to be acceptable to the king, and to be sanctioned by his councillors and the House of Lords.1 The practice of releasing members by a writ of privilege was still continued, notwithstanding the course pursued in the case of Ferrers, but henceforward no such writ was suffered to be obtained without a warrant, previously Smalley's case. signed by the speaker. Thirty years later, in the case of Smalley, the servant of a member who was under arrest, Fitzherbert's case. was ordered to be brought hither to-morrow by the serjeant, and so set at liberty by warrant of the mace, and not by writ." Again, in 1592, in the case of Fitzherbert, a member who had been outlawed and taken in execution, the house, after many discussions as to his title to privilege, and concerning the manner in which he should be delivered, were at length acquainted that the lord keeper thought it best, "in regard to the ancient liberties and privileges of the house, that a serjeant-at-arms be sent by order of the house for Mr. Fitzherbert, 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." In this case, however, the house determined that the member should not have privilege; "first, because he was taken in execution before the return of the indenture of his election; secondly, because he had been outlawed at the queen's suit, and was now taken in execution for her majesty's debt; thirdly, in regard that 1 1 Hats. 57. 2 27th Feb. 1575, 1 Com. J. 108. 31 Hats. Prec. 107. D'Ewes, 482. 514. he was so taken by the sheriff, neither sedente Parliamento, nor eundo, nor redeundo." This case was scarcely settled, when Mr. Neale, a Neale's case. member, complained that he had been arrested upon an execution; that he had paid the money, but out of regard to the liberties and privileges of the house, he thought it his duty to acquaint them with it. Upon which the house committed to the Tower the person at whose suit the execution was obtained, and the officer who executed it. Three days afterwards the prisoners were reprimanded and discharged." Lords. The principal cases in the lords, up to this period, show an Cases in the uncertainty in their practice similar to that of the commons; privileged persons being sometimes released immediately, and sometimes by writs of privilege. On the 1st December, 1585, they ordered to be enlarged and set at liberty James Diggs, servant to the Archbishop of Canterbury, "by virtue of the privilege of this court:"3 and again in the same year, a servant of Lord Leicester, and in 1597, the servants of Lord Chandois and the Archbishop of Canterbury. the two last cases the officers who had arrested the 4 In prisoners were committed by the house. Later still, in November 1601, they adopted the precedent of Ferrers. William Hogan, like Ferrers, a servant of the queen, was imprisoned in execution; and the lords debated whether he should be discharged by a warrant from the lords to the lord keeper, to grant a writ in the queen's name for bringing up Hogan, or by immediate direction and order of the house, without any writ; and at length it was agreed that he should be brought up by order from the house. By virtue of their order, he was brought up and discharged on giving a bond for the payment of his debt, and the under-sheriff was committed to the Fleet for having arrested him. Yet, soon afterwards, in Vaughan's case, the lords resorted to the old method of discharging a 1 D'Ewes, 518. 2 Ib. 518. 520. 52 Lords' J. 201. 205. 6 32 Lords' J. 66. Ib. 230. D'Ewes, 603. |