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$Title{History Of Europe During The Middle Ages
Part XVII}
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Title:       History Of Europe During The Middle Ages
Book:        Book VIII: The Constitutional History Of England
Author:      Hallam, Henry

Part XVII

     Notwithstanding the just views these parliaments appear generally to have
entertained of their power over the public purse, that of the third of Henry
V. followed a precedent from the worst times of Richard II., by granting the
king a subsidy on wool and leather during his life. ^j This, a historian tells
us, Henry IV. had vainly labored to obtain; ^k but the taking of Harfleur
intoxicated the English with new dreams of conquest in France, which their
good sense and constitutional jealousy were not firm enough to resist.  The
continued expenses of the war, however, prevented this grant from becoming so
dangerous as it might have been in a season of tranquillity.  Henry V., like
his father, convoked parliament almost in every year of his reign.

[Footnote j: Rot. Parl. vol. iv. p. 63.]

[Footnote k: Walsingham, p. 379.]

     4. It had long been out of all question that the legislature consisted of
the king, lords, and commons; or, in stricter language, that the king could
not make or repeal statutes without the consent of parliament.  But this
fundamental maxim was still frequently defeated by various acts of evasion or
violence; which, though protested against as illegal, it was a difficult task
to prevent.  The king sometimes exerted a power of suspending the observance
of statutes, as in the ninth of Richard II., when a petition that all statutes
might be confirmed is granted, with an exception as to one passed in the last
parliament, forbidding the judges to take fees, or give counsel in cases where
the king was a party; which, "because it was too severe and needs declaration,
the king would have of no effect till it should be declared in parliament." ^l
The apprehension of the dispensing prerogative and sense of its illegality are
manifested by the wary terms wherein the commons, in one of Richard's
parliaments, "assent that the king make such sufferance respecting the statute
of provisors as shall seem reasonable to him, so that the said statute be not
repealed; and, moreover, that the commons may disagree thereto at the next
parliament, and resort to the statute;" with a protestation that this assent,
which is a novelty and never done before, shall not be drawn into precedent;
praying the king that this protestation may be entered on the roll of
parliament. ^m A petition, in one of Henry IV.'s parliaments, to limit the
number of attorneys, and forbid filazers and prothonotaries from practising,
having been answered favorably as to the first point, we find a marginal entry
in the roll that the prince and council had respited the execution of this
act. ^n

[Footnote l: Ibid. p. 210.  Ruffhead observes in the margin upon this statute,
8 R. II. c. 3, that it is repealed, but does not take notice what sort of
repeal it had.]

[Footnote m: 15 R. II. p. 285.  See, too, 16 R. II. p. 301, where the same
power is renewed in H. IV.'s parliaments.]

[Footnote n: 13 H. IV. p. 643.]

     The dispensing power, as exercised in favor of individuals, is quite of a
different character from this general suspension of statutes, but indirectly
weakens the sovereignty of the legislature.  This power was exerted, and even
recognized, throughout all the reigns of the Plantagenets.  In the first of
Henry V. the commons pray that the statute for driving aliens out of the
kingdom be executed.  The king assents, saving his prerogative and his right
of dispensing with it when he pleased. To which the commons replied that their
intention was never otherwise, nor, by God's help, ever should be.  At the
same time one Rees ap Thomas petitions the king to modify or dispense with the
statute prohibiting Welshmen from purchasing lands in England, or the English
towns in Wales; which the king grants.  In the same parliament the commons
pray that no grant or protection be made to anyone in contravention of the
statute of provisors, saving the king's prerogative.  He merely answers, "Let
the statutes be observed;" evading any allusion to his dispensing power. ^o

[Footnote o: Rot. Parl. v. 4. H. V. pp. 6, 9.]

     It has been observed, under the reign of Edward III., that the practice
of leaving statutes to be drawn up by the judges, from the petition and answer
jointly, after a dissolution of parliament, presented an opportunity of
falsifying the intention of the legislature, whereof advantage was often
taken.  Some very remarkable instances of this fraud occurred in the
succeeding reigns.

     An ordinance was put upon the roll of parliament, in the fifth of Richard
II., empowering sheriffs of counties to arrest preachers of heresy and their
abettors, and detain them in prison till they should justify themselves before
the church.  This was introduced into the statutes of the year; but the assent
of lords and commons is not expressed.  In the next parliament the commons,
reciting this ordinance, declare that it was never assented to or granted by
them, but what had been proposed in this matter was without their concurrence
(that is, as I conceive, had been rejected by them), and pray that this
statute be annulled; for it was never their intent to bind themselves or their
descendants to the bishops more than their ancestors had been bound in times
past.  The king returned an answer, agreeing to this petition.  Nevertheless
the pretended statute was untouched, and remains still among our laws; ^p
unrepealed, except by desuetude, and by inference from the acts of much later
times.

[Footnote p: 5 R. II. stat. 2, c. 5; Rot. Parl. 6 R. II. p. 141.  Some other
instances of the commons attempting to prevent these unfair practices are
adduced by Ruffhead, in his preface to the Statutes, and in Prynne's preface
to Cotton's Abridgment of the Records.  The act 13 R. II. stat. I. c. 15, that
the king's castles and goals which had been separated from the body of the
adjoining counties should be reunited to them, is not founded upon any
petition that appears on the roll; and probably, by making search, other
instances equally fiagrant might be discovered.]

     This commendable reluctance of the commons to let the clergy forge chains
for them produced, as there is much appearance, a similar violation of their
legislative rights in the next reign.  The statute against heresy in the
second of Henry IV. is not grounded upon any petition of the commons, but only
upon one of the clergy.  It is said to be enacted by consent of the lords, but
no notice is taken of the lower house in the parliament roll, though the
statute reciting the petition asserts the commons to have joined in it. ^q The
petition and the statue are both in Latin, which is unusual in the laws of
this time.  In a subsequent petition of the commons this act is styled "the
state made in the second year of your majesty's reign at the request of the
prelates and clergy of your kingdom;" which affords a presumption that is had
no regular assent of parliament. ^r And the spirit of the commons during this
whole reign being remarkably hostile to the church, it would have been hardly
possible to obtain their consent to so penal a law against heresy.  Several of
their petitions seem designed indirectly to weaken its efficacy. ^s

[Footnote q: There had been, however, a petition of the commons on the same
subject, expressed in very general terms, on which this terrible
superstructure might artfully be raised.  P. 474.]

[Footnote r: Rot. Parl. 6 R. II. p. 626.]

[Footnote s: We find a remarkable petition in 8 H. IV., professedly aimed
against the Lollards, but intended, as I strongly suspect, in their favor. It
condemns persons preaching against the Catholic faith or sacraments to
imprisonment till the next parliament, where they were to abide such judgment
as should be rendered by the king and peers of the realm.  This seems to
supersede the spiritual cognizance of heresy.  Rot. Parl. p. 583. See, too, p.
626.  The petition was expressly granted; but the clergy, I suppose, prevented
its appearing on the statute roll.]

     These infringements of their most essential right were resisted by the
commons in various ways, according to the measure of their power.  In the
fifth of Richard II. they request the lords to let them see a certain
ordinance before it is engrossed. ^t At another time they procured some of
their own members, as well as peers, to be present at engrossing the roll. At
length they spoke out unequivocally in a memorable petition which, besides its
intrinsic importance, is deserving of notice as the earliest instance in which
the house of commons adopted the English language.  I shall present its
venerable orthography without change.

[Footnote t: Rot. Parl. vol. iii. p. 102.]

     "Oure soverain lord, youre humble and trewe lieges that ben come for the
comune of youre lond bysechyn onto youre rizt riztwesnesse, That so as hit
hath ever be thair libte and fredom, that thar sholde no statut no lawe be
made offlasse than theye yaf therto their assent; consideringe that the
commune of youre lond, the whiche that is, and ever hath be, a membre of your
parlemente, ben as well assenters as peticioners, that fro this tyme foreward,
by compleynte of the comune of any mischief axkynge remedie by mouthe of their
speker for the comune, other ellys by petition written, that ther never be no
lawe made theruppon, and engrossed as statut and lawe, nother by addicions,
nother by diminucions, by no manner of terme ne termes, the whiche that sholde
chaunge the sentence, and the entente axked by the speker mouthe, or the
petitions beforesaid yeven up yn writyng by the manere forsaid, withoute
assente of the forsaid comune.  Consideringe, oure soverain lord, that it is
not in no wyse the entente of youre comunes, zif yet be so that they axke you
by spekyng, or by writyng, two thynges or three, or as manye as theym lust:
But that ever it stande in the fredom of youre hie regalie, to graunte whiche
of thoo that you lust, and to werune the remanent.

     "The kyng of his grace especial graunteth that fro hensforth nothyng be
enacted to the peticions of his comune that be contrarie of hir askyng, wharby
they shuld be bounde withoute their assent.  Savyng alwey to our liege lord
his real prerogatif, to graunte and denye what him lust of their petitions and
askynges aforesaid." ^u

[Footnote u: Rot. Parl. vol. iv. p. 22.  It is curious that the authors of the
Parliamentary History say that the roll of this parliament is lost, and
consequently suppress altogether this important petition.  Instead of which
they give, as their fashion is, impertinent speeches out of Hollingshed, which
are certainly not genuine, and would be of no value if they were so.]

     Notwithstanding the fulness of this assent to so important a petition we
find no vestige of either among the statutes, and the whole transaction is
unnoticed by those historians who have not looked into our original records.
If the compilers of the statute-roll were able to keep out of it the very
provision that was intended to check their fraudulent machinations, it was in
vain to hope for redress without altering the established practice in this
respect; and indeed, where there was no design to falsify the roll it was
impossible to draw up statutes which should be in truth the acts of the whole
legislature, so long as the king continued to grant petitions in part, and to
engraft new matter upon them.  Such was still the case till the commons hit
upon an effectual expedient for screening themselves against these
encroachments, which has lasted without alteration to the present day.  This
was the introduction of complete statutes under the name of bills, instead of
the old petitions; and these containing the royal assent and the whole form of
a law, it became, though not quite immediately, ^v a constant principle that
the king must admit or reject them without qualification.  This alteration,
which wrought an extraordinary effect on the character of our constitution,
was gradually introduced in Henry VI.'s reign. ^w

[Footnote v: Henry VI. and Edward IV. in some cases passed bills with sundry
provisions annexed by themselves.  Thus the act for resumption of grants, 4 E.
IV., was encumbered with 289 clauses in favor of so many persons whom the king
meant to exempt from its operation; and the same was done in other acts of the
same description.  Rot. Parl. vol. v. p. 517.]

[Footnote w: The variations of each statute, as now printed, from the
parliamentary roll, whether in form or substance, are noticed in Cotton's
Abridgment.  It may be worth while to consult the preface this subject is
treated at some length.

     Perhaps the triple division of our legislature may be dated from this
innovation.  For as it is impossible to deny that, while the king promulgated
a statute founded upon a mere petition, he was himself the real legislator, so
I thing it is equally fair to assert, notwithstanding the former preamble of
our statutes, that laws brought into either house of parliament in a perfect
shape, and receiving first the assent of lords and commons, and finally that
of the king, who has no power to modify them, must be deemed to proceed, and
derive their efficacy, from the joint concurrence of all the three.  It is
said, indeed, at a much earlier time, that le ley de la terre est fait en
parlement par le roi, et les seigneurs espirituels et temporels, et tout la
communaute du royaume.  Rot. Parl. vol. iii. p. 293.  But this, I must allow,
was in the violent session of II Ric. II., the constitutional authority of
which is not to be highly prized.]

     From the first years of Henry V., though not, I think, earlier, the
commons began to concern themselves with the petitions of individuals to the
lords or council.  The nature of the jurisdiction exercised by the latter will
be treated more fully hereafter; it is only necessary to mention in this place
that many of the requests preferred to them were such as could not be granted
without transcending the boundaries of law.  A just inquietude as to the
encroachments of the king's council had long been manifested by the commons;
and finding remonstrances ineffectual, they took measures for preventing such
usurpations of legislative power by introducing their own consent to private
petitions.  These were now presented by the hands of the commons, and in very
many instances passed in the form of statutes with the express assent of all
parts of the legislature.  Such was the origin of private bills, which occupy
the greater part of the rolls in Henry V. and VI.'s parliament.  The commons
once made an ineffectual endeavor to have their consent to all petitions
presented to the council in parliament rendered necessary by law; if I rightly
apprehend the meaning of the roll in this place, which seems obscure or
corrupt. ^x

[Footnote x: 8 H. V. vol. iv. p. 127.]

     5. If the strength of the commons had lain merely in the weakness of the
crown, it might be inferred that such harassing interference with the
administration of affairs as the youthful and frivolous Richard was compelled
to endure would have been sternly repelled by his experienced successor.  But,
on the contrary, the spirit of Richard might have rejoiced to see that his
mortal enemy suffered as hard usage at the hands of parliament as himself.
After a few years the government of Henry became extremely unpopular.  Perhaps
his dissension with the great family of Percy, which had placed him on the
throne, and was regarded with partiality by the people, ^y chiefly contributed
to this alienation of their attachment.  The commons requested, in the fifth
of his reign, that certain persons might be removed from the court; the lords
concurred in displacing four of these, one being the king's confessor.  Henry
came down to parliament and excused these four persons, as knowing no special
cause why they should be removed; yet, well understanding that what the lords
and commons should ordain would be for his and his kingdom's interest, and
therefore anxious to conform himself to their wishes, consented to the said
ordinance, and charged the persons in question to leave his palace; adding,
that he would do as much by any other about his person whom he should find to
have incurred the ill affection of his people. ^z It was in the same session
that the Archbishop of Canterbury was commanded to declare before the lords
the king's intention respecting his administration; allowing that some things
had been done amiss in his court and household; and therefore, wishing to
conform to the will of God and laws of the land, protested that he would let
in future no letters of signet or privy seal go in disturbance of law,
beseeched the lords to put his household in order, so that everyone might be
paid, and declared that the money granted by the commons for the war should be
received by treasurers appointed in parliament, and disbursed by them for no
other purpose, unless in case of rebellion.  At the request of the commons he
named the members of his privy council; and did the same, with some variation
of persons, two years afterwards.  These, though not nominated with the
express consent, seem to have had the approbation of the commons, for a
subsidy is granted in 7 H. IV., among other causes, for "the great trust that
the commons have in the lords lately chosen and ordained to be of the king's
continual council, that there shall be better management than heretofore." ^a

[Footnote y: The house of commons thanked the king for pardoning
Northumberland, whom, as it proved, he had just cause to suspect.  5 H. IV. p.
525.]

[Footnote z: Ibid. p. 595.]

[Footnote a: Rot. Parl. vol. iii. pp. 529, 568, 573.]

     In the sixth year of Henry the parliament, which Sir E. Coke derides as
unlearned because lawyers were excluded from it, proceeded to a resumption of
grants and a prohibition of alienating the ancient inheritance of the crown
without consent of parliament, in order to ease the commons of taxes, and that
the king might live on his own. ^b This was a favorite though rather
chimerical project.  In a later parliament it was requested that the king
would take his council's advice how to keep within his own revenue; he
answered that he would willingly comply as soon as it should be in his power.
^c

[Footnote b: Ibid. vol. iii. p. 547.]

[Footnote c: 13 H. IV. p. 624.]

     But no parliament came near, in the number and boldness of its demands,
to that held in the eighth year of Henry IV.  The commons presented thirty-one
articles, none of which the king ventured to refuse, though pressing very
severely upon his prerogative.  He was to name sixteen counsellors, by whose
advice he was solely to be guided, none of them to be dismissed without
conviction of misdemeanor.  The chancellor and privy seal to pass no grants or
other matter contrary to law.  Any persons about the court stirring up the
king or queen's minds against their subjects, and duly convicted thereof, to
lose their offices and be fined.  The king's ordinary revenue was wholly
appropriated to his household and the payment of his debts; no grant of
wardship or other profit to be made thereout, nor any forfeiture to be
pardoned.  The king, "considering the wise government of other Christian
princes, and conforming himself thereto," was to assign two days in the week
for petitions, "it being an honorable and necessary thing that his lieges, who
desired to petition him, should be heard." No judicial officer, nor any in the
revenue or household, to enjoy his place for life or term of years.  No
petition to be presented to the king, by any of his household, at times when
the council were not sitting.  The council to determine nothing cognizable at
common law, unless for a reasonable cause and with consent of the judges.  The
statutes regulating purveyance were affirmed - abuses of various kinds in the
council and in courts of justice enumerated and forbidden - elections of
knights for counties put under regulation.  The council and officers of state
were sworn to observe the common law and all statutes, those especially just
enacted. ^d

[Footnote d: Rot. Parl. 8 H. IV. p. 585.]

     It must strike every reader that these provisions were of themselves a
noble fabric of constitutional liberty, and hardly perhaps inferior to the
petition of right under Charles I.  We cannot account for the submission of
Henry to conditions far more derogatory than ever were imposed on Richard,
because the secret politics of his reign are very imperfectly understood.
Towards its close he manifested more vigor.  The speaker, Sir Thomas Chaucer,
having made the usual petition for liberty of speech, the king answered that
he might speak as others had done in the time of his (Henry's) ancestors, and
his own, but not otherwise; for he would by no means have any innovation, but
be as much at his liberty as any of his ancestors had ever been.  Some time
after he sent a message to the commons, complaining of a law passed at the
last parliament infringing his liberty and prerogative, which he requested
their consent to repeal.  To this the commons agreed, and received the king's
thanks, who declared at the same time that he would keep as much freedom and
prerogative as any of his ancestors.  It does not appear what was the
particular subject of complaint; but there had been much of the same
remonstrating spirit in the last parliament that was manifested on preceding
occasions.  The commons, however, for reasons we cannot explain, were rather
dismayed.  Before their dissolution they petition the king, that, whereas he
was reported to be offended at some of his subjects in this and in the
preceding parliament, he would openly declare that he held them all for loyal
subjects.  Henry granted this "of his special grace;" and thus concluded his
reign more triumphantly with respect to his domestic battles than he had gone
through it. ^e

[Footnote e: 13 H. IV. pp. 648, 658.]

     Power deemed to be ill gotten is naturally precarious; and the instance
of Henry IV. has been well quoted to prove that public liberty flourishes with
a bad title in the sovereign.  None of our kings seem to have been less
beloved; and indeed he had little claim to affection.  But what men denied to
the reigning king they poured in full measure upon the heir of this throne.
The virtues of the Prince of Wales are almost invidiously eulogized by those
parliaments who treat harshly his father; ^f and these records afford a strong
presumption that some early petulance or riot has been much exaggerated by the
vulgar minds of our chroniclers.  One can scarcely understand at least that a
prince who was three years engaged in quelling the dangerous insurrection of
Glendower, and who in the latter time of his father's reign presided at the
council, was so lost in a cloud of low debauchery as common fame represents.
^g Loved he certainly was throughout his life, as so intrepid, affable, and
generous a temper well deserved; and this sentiment was heightened to
admiration by successes still more rapid and dazzling than those of Edward
III.  During his reign there scarcely appears any vestige of dissatisfaction
in parliament - a circumstance very honorable, whether we ascribe it to the
justice of his administration or to the affection of his people.  Perhaps two
exceptions, though they are rather one in spirit, might be made: the first, a
petition to the Duke Gloucester, then holding parliament as guardian of
England, that he would move the king and queen to return, as speedily as might
please them, in relief and comfort of the commons; ^h the second, a request
that their petitions might not be sent to the king beyond sea, but altogether
determined "within this kingdom of England, during this parliament," and that
this ordinance might be of force in all future parliaments to be held in
England. ^i This prayer, to which the guardian declined to accede, evidently
sprang from the apprehensions. excited in their minds by the treaty of Troyes,
that England might become a province of the French crown, which led them to
obtain a renewal of the statute of Edward III., declaring the independence of
this kingdom. ^j

[Footnote f: Rot. Parl. vol. iii. pp. 549, 568, 574, 611.]

[Footnote g: This passage was written before I was aware that the same opinion
had been elaborately maintained by Mr. Luders, in one of his valuable essays
upon points of constitutional history.]

[Footnote h: Rot. Parl. 8 H. V. vol. iv. p. 125.]

[Footnote i: p. 128.]

[Footnote j: Rot. Parl. 8 H. V. vol. iv. p. 130.]

     It has been seen already that even Edward III. consulted his parliament
upon the expediency of negotiations for peace, though at that time the commons
had not acquired boldness enough to tender their advice. In Richard II.'s
reign they answered to a similar proposition with a little more confidence,
that the dangers each way were so considerable they dared not decide, though
an honorable peace would be the greatest comfort they could have, and
concluded by hoping that the king would not engage to do homage for Calais or
the conquered country. ^k The parliament of the tenth of his reign was
expressly summoned in order to advise concerning the king's intended
expedition beyond sea - a great council, which had previously been assembled
at Oxford, having declared their incompetence to consent to this measure
without the advice of parliament. ^l Yet a few years afterwards, on a similar
reference, the commons rather declined to give any opinion. ^m They confirmed
the league of Henry V. with the Emperor Sigismund; ^n and the treaty of
Troyes, which was so fundamentally to change the situation of Henry and his
successors, obtained, as it evidently required, the sanction of both houses of
parliament. ^o These precedents conspiring with the weakness of the executive
government, in the minority of Henry VI., to fling an increase of influence
into the scale of the commons, they made their concurrence necessary to all
important business both of a foreign and domestic nature.  Thus commissioners
were appointed to treat of the deliverance of the King of Scots, the duchesses
of Bedford and Gloucester were made denizens, and mediators were appointed to
reconcile the dukes of Gloucester and Burgundy, by authority of the three
estates assembled in parliament. ^p Leave was given to the dukes of Bedford
and Gloucester, and others in the king's behalf, to treat of peace with
France, by both houses of parliament, in pursuance of an article in the treaty
of Troyes, that no treaty should be set on foot with the dauphin without
consent of the three estates of both realms. ^q This article was afterwards
repealed. ^r

[Footnote k: 7 R. II. vol. iii. p. 170.]

[Footnote l: 7 R. II. p. 215.]

[Footnote m: 17 R. II. p. 315.]

[Footnote n: 4 H. V. vol. iv. p. 98.]

[Footnote o: p. 135.]

[Footnote p: Rot. Parl. 4 H. V. vol. iv. pp. 211, 242, 277.]

[Footnote q: p. 371.]

[Footnote r: 23 H. VI. vol. v. p. 102.  There is rather a curious instance in
3 H. VI. of the jealousy with which the commons regarded any proceedings in
parliament where they were not concerned.  A controversy arose between the
earls marshal and of Warwick respecting their precedence; founded upon the
royal blood of the first, and long possession of the second.  In this the
commons could not affect to interfere judicially; but they found a singular
way of meddling, by petitioning the king to confer the Dukedom of Norfolk on
the earl marshal.  vol. iv. p. 273.]

     Some complaints are made by the commons, even during the first years of
Henry's minority, that the king's subjects underwent arbitrary imprisonment,
and were vexed by summonses before the council and by the newly invented writ
of subpoena out of chancery. ^s But these are not so common as formerly; and
so far as the rolls lead us to any inference, there was less injustice
committed by the government under Henry VI. and his father than at any former
period.  Wastefulness indeed might justly be imputed to the regency, who had
scandalously lavished the king's revenue. ^t This ultimately led to an act for
resuming all grants since his accession, founded upon a public declaration of
the great officers of the crown that his debts amounted to 372,000l., and the
annual expense of the household to 24,000l., while the ordinary revenue was
not more than 5,000l. ^u

[Footnote s: Rot. Parl. 1 H. VI. p. 189; 3 H. VI. p. 292; 8 H. VI. p. 343.]

[Footnote t: vol. v. 18 H. VI. p. 17.]

[Footnote u: 28 H. VI. p. 185.]

     6. But before this time the sky had begun to darken, and discontent with
the actual administration pervaded every rank.  The causes of this are
familiar - the unpopularity of the king's marriage with Margaret of Anjou, and
her impolitic violence in the conduct of affairs, particularly the imputed
murder of the people's favorite, the Duke of Gloucester.  This provoked an
attack upon her own creature, the Duke of Suffolk.  Impeachment had lain
still, like a sword in the scabbard, since the accession of Henry IV., when
the commons, though not preferring formal articles of accusation, had
petitioned the king that Justice Rickhill, who had been employed to take the
former Duke of Gloucester's confession at Calais, and the lords appellants of
Richard II.'s last parliament, should be put on their defence before the
lords. ^v In Suffolk's case the commons seem to have proceeded by bill of
attainder, or at least to have designed the judgment against that minister to
be the act of the whole legislature; for they delivered a bill containing
articles against him to the lords, with a request that they would pray the
king's majesty to enact that bill in parliament, and that the said duke might
be proceeded against upon the said articles in parliament according to the law
and custom of England.  These articles contained charges of high treason,
chiefly relating to his conduct in France, which, whether treasonable or not,
seems to have been grossly against the honor and advantage of the crown.  At a
later day the commons presented many other articles of misdemeanor.  To the
former he made a defence, in presence of the king as well as the lords both
spiritual and temporal; and indeed the articles of impeachment were directly
addressed to the king, which gave him a reasonable pretext to interfere in the
judgment. But from apprehension, as it is said, that Suffolk could not escape
conviction upon at least some part of these charges, Henry anticipated with no
slight irregularity the course of legal trial, and, summoning the peers into a
private chamber, informed the Duke of Suffolk, by mouth of his chancellor,
that, inasmuch as he had not put himself upon his peerage, but submitted
wholly to the royal pleasure, the king, acquitting him of the first articles
containing matter of treason, by his own advice and not that of the lords, nor
by way of judgment, not being in a place where judgment could be delivered,
banished him for five years from his dominions.  The lords then present
besought the king to let their protest appear on record, that neither they nor
their posterity might lose their rights of peerage by this precedent.  It was
justly considered as an arbitrary stretch of prerogative, in order to defeat
the privileges of parliament and screen a favorite minister from punishment.
But the course of proceeding by bill of attainder, instead of regular
impeachment, was not judiciously chosen by the commons. ^w

[Footnote v: Rot. Parl. vol. iii. pp. 430, 449.]

[Footnote w: Rot. Parl. 28 H. VI. vol. v. p. 176.]

     7. Privilege of parliament, an extensive and singular branch of our
constitutional law, begins to attract attention under the Lancastrian princes.
It is true indeed that we can trace long before by records, and may infer with
probability as to times whose records have not survived, one considerable
immunity - a freedom from arrest for persons transacting the king's business
in his national council. ^x Several authorities may be found in Mr. Hatsell's
Precedents; of which one, in the 9th of Edward II., is conclusive. ^y But in
those rude times members of parliament were not always respected by the
officers executing legal process, and still less by the violators of law.
After several remonstrances, which the crown had evaded, ^z the commons
obtained the statute 11 Henry VI. c. II, for the punishment of such as assault
any on their way to the parliament, giving double damages to the party. ^a
They had more difficulty in establishing, notwithstanding the old precedents
in their favor, an immunity from all criminal process except in charges of
treason, felony, and breach of the peace, which is their present measure of
privilege.  The truth was, that, with a right pretty clearly recognized, as is
admitted by the judges in Thorp's case, the house of commons had no regular
compulsory process at their command.  In the cases of Lark, servant of a
member, in the 8th of Henry VI., ^b and of Clerke, himself a burgess, in the
thirty-ninth of the same king, ^c it was thought necessary to effect their
release from a civil execution by special acts of parliament.  The commons, in
a former instance, endeavored to make the law general that no members nor
their servants might be taken except for treason, felony, and breach of peace;
but the king put a negative upon this part of their petition.

[Footnote x: If this were to rest upon antiquity of precedent, one might be
produced that would challenge all competition.  In the laws of Ethelbert, the
first Christian king of Kent, at the end of the sixth century, we find this
provision: "If the king call his people to him (i.e. in the witenagemot) and
any one does an injury to one of them, let him pay a fine." Wilkins, Leges
Anglo-Saxon. p. 2.]

[Footnote y: Hatsell, vol. i. p. 12.]

[Footnote z: Rot. Parl.  5 H. IV. p. 541.]

[Footnote a: The clergy had got a little precedence in this.  An act passed 8
H. VI. c. I, granting privilege from arrest for themselves and servants on
their way to convocation.]

[Footnote b: Rot. Parl. vol. iv. p. 357.]

[Footnote c: Id. vol. v. p. 374.]