The Best of the Bureau/The_Best_of_the_Bureau_Bureau_Development_Inc._1992.iso/dp/0091/00918.txt

Text File | 1992-08-07 | 27KB | 416 lines

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$Title{History Of Europe During The Middle Ages
Part XVIII}
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$Author{Hallam, Henry}
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$Subject{commons
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lords
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$Date{}
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Title:       History Of Europe During The Middle Ages
Book:        Book VIII: The Constitutional History Of England
Author:      Hallam, Henry

Part XVIII

     The most celebrated, however, of these early cases of privilege is that
of Thomas Thorp, speaker of the commons in 31 Henry VI.  This person, who was
moreover a baron of the exchequer, had been imprisoned on an execution at suit
of the Duke of York.  The commons sent some of their members to complain of a
violation of privilege to the king and lords in parliament, and to demand
Thorp's release.  It was alleged by the Duke of York's counsel that the
trespass done by Thorp was since the beginning of the parliament, and the
judgment thereon given in time of vacation, and not during the sitting.  The
lords referred the question to the judges, who said, after deliberation, that
"they ought not to answer to that question, for it hath not be used aforetyme
that the judges should in any wise determine the privilege of this high court
of parliament; for it is so high and so mighty in his nature that it may make
law, and that that is law it may make no law; and the determination and
knowledge of that privilege belongeth to the lords of the parliament, and not
to the justices." They went on, however, after observing that a general writ
of supersedeas of all processes upon ground of privilege had not been known,
to say 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 intend upon the parliament."

     Notwithstanding this answer of the judges, it was concluded by the lords
that Thorp should remain in prison, without regarding the alleged privilege;
and the commons were directed in the king's name to proceed "with all goodly
haste and speed" to the election of a new speaker.  It is curious to observe
that the commons, forgetting their grievances, or content to drop them, made
such haste and speed according to this command, that they presented a new
speaker for approbation the next day. ^d

[Footnote d: Rot. Parl. vol. v. p. 239; Hatsell's Precedents, p. 29.]

     This case, as has been strongly said, was begotten by the iniquity of the
times.  The state was verging fast towards civil war; and Thorp, who
afterwards distinguished himself for the Lancastrian cause, was an inveterate
enemy of the Duke of York.  That prince seems to have swayed a little from his
usual temper in procuring so unwarrantable a determination. In the reign of
Edward IV. the commons claimed privilege against any civil suit during the
time of their session; but they had recourse, as before, to a particular act
of parliament to obtain a writ of supersedeas in favor of one Atwell, a
member, who had been sued.  The present law of privilege seems not to have
been fully established, or at least effectually maintained, before the reign
of Henry VIII. ^e

[Footnote e: Upon this subject the reader should have recourse to Hatsell's
Precedents, vol. i. chap. I.]

     No privilege of the commons can be so fundamental as liberty of speech.
This is claimed at the opening of every parliament by their speaker, and could
never be infringed without shaking the ramparts of the constitution.  Richard
II.'s attack upon Haxey has been already mentioned as a flagrant evidence of
his despotic intentions.  No other case occurs until the 33d year of Henry
VI., when Thomas Young, member for Bristol, complained to the commons, that,
"for matters by him showed in the house accustomed for the commons in the said
parliaments, he was therefore taken, arrested, and rigorously in open wise led
to the Tower of London, and there grievously in great duress long time
imprisoned against the said freedom and liberty;" with much more to the like
effect.  The commons transmitted this petition to the lords, and the king
"willed that the lords of his council do and provide for the said suppliant as
in their discretions shall be thought convenient and reasonable." This
imprisonment of Young, however, had happened six years before, in consequence
of a motion made by him that, the king then having no issue, the Duke of York
might be declared heir-apparent to the crown.  In the present session, when
the duke was protector, he thought it well-timed to prefer his claim to
remuneration. ^f

[Footnote f: Rot. Parl. vol. v. p. 337; W. Worcester, p. 475.  Mr. Hatsell
seems to have overlooked this case, for he mentions that of Strickland, in
1571, as the earliest instance of the crown's interference with freedom of
speech in parliament, vol. i. p. 85.]

     There is a remarkable precedent in the 9th of Henry IV., and perhaps the
earliest authority for two eminent maxims of parliamentary law - that the
commons possess an exclusive right of originating money bills, and that the
king ought not to take notice of matters pending in parliament.  A quarrel
broke out between the two houses upon this ground; and as we have not before
seen the commons venture to clash openly with their superiors, the
circumstance is for this additional reason worthy of attention.  As it has
been little noticed, I shall translate the whole record.

     "Friday the second day of December, which was the last day of the
parliament, the commons came before the king and the lords in parliament, and
there, by command of the king, a schedule of indemnity touching a certain
altercation moved between the lords and commons was read; and on this it was
commanded by our said lord the king that the said schedule should be entered
of record in the roll of parliament; of which schedule the tenor is as
follows: Be it remembered, that on Monday the 21st day of November, the king
our sovereign lord being in the council chamber in the abbey of Gloucester, ^g
the lords spiritual and temporal for this present parliament assembled being
then in his presence, a debate took place among them about the state of the
kingdom, and its defence to resist the malice of the enemies who on every side
prepare to molest the said kingdom and its faithful subjects, and how no man
can resist this malice, unless, for the safeguard and defence of his said
kingdom, our sovereign lord the king has some notable aid and subsidy granted
to him in his present parliament.  And therefore it was demanded of the said
lords by way of question what aid would be sufficient and requisite in these
circumstances?  To which question it was answered by the said lords severally,
that, considering the necessity of the king on one side, and the poverty of
his people on the other, no less aid could be sufficient than one-tenth and a
half from cities and towns, and one-fifteenth and a half from all other lay
persons; and, besides, to grant a continuance of the subsidy on wool,
wool-fells, and leather, and of three shillings on the tun (of wine), and
twelve pence on the pound (of other merchandise), from Michaelmas next ensuing
for two years thenceforth.  Whereupon, by command of our said lord the king, a
message was sent to the commons of this parliament to cause a certain number
of their body to come before our said lord the king and the lords, in order to
hear and report to their companions what they should be commanded by our said
lord the king.  And upon this the said commons sent into the presence of our
said lord the king and the said lords twelve of their companions; to whom, by
command of our said lord the king, the said question was declared, with the
answer by the said lords severally given to it.  Which answer it was the
pleasure of our said lord the king that they should report to the rest of
t