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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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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
their fellows, to the end that they might take the shortest course to comply
with the intention of the said lords.  Which report being thus made to the
said commons, they were greatly disturbed at it, saying and asserting it to be
much to the prejudice and derogation of their liberties.  And after that our
said lord the king had heard this, not willing that anything should be done at
present, or in time to come, that might anywise turn against the liberty of
the estate for which they are come to parliament, nor against the liberties of
the said lords, wills and grants and declares, by the advice and consent of
the said lords, as follows: to wit, that it shall be lawful for the lords to
debate together in this present parliament, and in every other for time to
come, in the king's absence, concerning the condition of the kingdom, and the
remedies necessary for it.  And in like manner it shall be lawful for the
commons, on their part, to debate together concerning the said condition and
remedies.  Provided always that neither the lords on their part, nor the
commons on theirs, do make any report to our said lord the king of any grant
granted by the commons, and agreed to by the lords, nor of the communications
of the said grant, before that the said lords and commons are of one accord
and agreement in this matter, and then in manner and form accustomed - that is
to say, by the mouth of the speaker of the said commons for the time being -
to the end that the said lords and commons may have what they desire (avoir
puissent leur gree) of our said lord the king. Our said lord the king willing
moreover, by the consent of the said lords, that the communication had in this
present parliament as above be not drawn into precedent in time to come, nor
be turned to the prejudice or derogation of the liberty of the estate for
which the said commons are now come, neither in this present parliament nor in
any other time to come. But wills that himself and all the other estates
should be as free as they were before.  Also, the said last day of parliament,
the said speaker prayed our said lord the king, on the part of the said
commons, that he would grant the said commons that they should depart in as
great liberty as other commons had done before.  To which the king answered
that this pleased him well, and that at all times it had been his desire." ^h

[Footnote g: This parliament sat at Gloucester.]

[Footnote h: Rot. Parl. vol. iii. p. 611.]

     Every attentive reader will discover this remarkable passage to
illustrate several points of constitutional law.  For hence it may be
perceived - first, that the king was used in those times to be present at
debates of the lords, personally advising with them upon the public business;
which also appears by many other passages on record; and this practice, I
conceive, is not abolished by the king's present declaration, save as to
grants of money, which ought to be of the free will of parliament, and without
that fear or influence which the presence of so high a person might create;
secondly, that it was already the established law of parliament that the lords
should consent to the commons' grant, and not the commons to the lords'; since
it is the inversion of this order whereof the commons complain, and it is said
expressly that grants are made by the commons, and agreed to by the lords;
thirdly, that the lower house of parliament is not, in proper language, an
estate of the realm, but rather the image and representative of the commons of
England; who, being the third estate, with the nobility and clergy make up and
constitute the people of this kingdom and liege subjects of the crown. ^i

[Footnote i: A notion is entertained by many people, and not without the
authority of some very respectable names, that the king is one of the three
estates of the realm, the lords spiritual and temporal forming together the
second, as the commons in parliament do the third.  This is contradicted by
the general tenor of our ancient records and law-books; and indeed the analogy
of other governments ought to have the greatest weight, even if more reason
for doubt appeared upon the face of our own authorities.  But the instances
where the tree estates are declared or implied to be the nobility, clergy, and
commons, or at least their representatives in parliament, are too numerous for
insertion.  This land standeth, says the Chancellor Stillington, in 7th Edward
IV., by three states, and above that one principal, that is to wit, lords
spiritual, lords temporal, and commons, and over that, state royal, as our
sovereign lord the king.  Rot. Parl. vol. v. p. 622.  Thus, too, it is
declared that the treaty of Staples in 1492 was to be confirmed per tres
status regni Angliae rite et debite convocatos, videlicet per prelatos et
clerum, nobiles et communitates ejusdem regni.  Rymer, t. xii. p. 508.

     I will not, however, suppress one passage, and the only instance that has
occurred in my reading, where the king does appear to have been reckoned among
the three estates.  The commons say, in the 2d of Henry IV., that the states
of the realm may be compared to a trinity, that is, the king, the lords
spiritual and temporal, and the commons.  Rot. Parl. vol. iii. p. 459.  In
this expression, however, the sense shows that by estates of the realm they
meant members, or necessary parts, of the parliament.

     Whitelocke, on the Parliamentary Writ, vol. ii. p. 43, argues at length
that the three estates are king, lords, and commons, which seems to have been
a current doctrine among the popular lawyers of the seventeenth century.  His
reasoning is chiefly grounded on the baronial tenure of bishops, the validity
of acts passed against their consent, and other arguments of the same kind;
which might go to prove that there are only at present two estates, but can
never turn the king into one.

     The source of their error is an inattention to the primary sense of the
word estate (status), which means an order or condition into which men are
classed by the institutions of society.  It is only in a secondary, or rather
an elliptical application, that it can be referred to their representatives in
parliament or national councils.  The lords temporal, indeed, of England are
identical with the estate of the nobility; but the house of commons is not,
strictly speaking, the estate of commonalty, to which its members belong, and
from which they are deputed.  So the whole body of the clergy are properly
speaking one of the estates, and are described as such in the older
authorities, 21 Ric. II. Rot. Parl. vol. iii. p. 348, though latterly the
lords spiritual in parliament acquired, with less correctness, that
appellation.  Hody on Convocations, p. 426. The bishops, indeed, may be said,
constructively, to represent the whole of the clergy, with whose grievances
they are supposed to be best acquainted, and whose rights it is their peculiar
duty to defend.  And I do not find that the inferior clergy had any other
representation in the cortes of Castile and Aragon, where the ecclesiastical
order was always counted among the estates of the realm.]

     At the next meeting of parliament, in allusion probably to this
disagreement between the houses, the king told them that the states of
parliament were come together for the common profit of the king and kingdom,
and for unanimity's sake and general consent; and therefore he was sure the
commons would not attempt nor say anything but what should be fitting and
conducive to unanimity; commanding them to meet together and communicate for
the public service. ^j

[Footnote j: Rot. Parl. vol. iii. p. 623.]

     It was not only in money bills that the originating power was supposed to
reside in the commons.  The course of proceedings in parliament, as has been
seen, from the commencement at least of Edward III.'s reign, was that the
commons presented petitions, which the lords, by themselves, or with the
assistance of the council, having duly considered, the sanction of the king
was notified or withheld.  This was so much according to usage, that, on one
occasion, when the commons requested the advice of the other house on a matter
before them, it was answered that the ancient custom and form of parliament
had ever been for the commons to report their own opinion to the king and
lords, and not to the contrary; and the king would have the ancient and
laudable usages of parliament maintained. ^k It is singular that in the terror
of innovation the lords did not discover how materially this usage of
parliament took off from their own legislative influence. The rule, however,
was not observed in succeeding times; bills originated indiscriminately in
either house; and indeed some acts of Henry V., which do not appear to be
grounded on any petition, may be suspected, from the manner of their insertion
in the rolls of parliament, to have been proposed on the king's part to the
commons. ^l But there is one manifest instance in the 18th of Henry VI., where
the king requested the commons to give their authority to such regulations ^m
as his council might provide for redressing the abuse of purveyance; to which
they assented.

[Footnote k: Rot. Parl.  5 R. II. p. 100.]

[Footnote l: Stat.  2 H. V. c. 6, 7, 8, 9; 4 H. VI. c. 7.]

[Footnote m: Rot. Parl. vol. v. p. 7.  It appears by a case in the Year Book
of the 33d of Henry VI., that, where the lords made only some minor
alterations in a bill sent up to them from the commons, even if it related to
a grant of money, the custom was not to remand it for their assent to the
amendment.  Brooke's Abridgment: Parliament.  4. The passage is worth
extracting, in order to illustrate the course of proceeding in parliament at
that time.  Case fuit que Sir J. P. fuit attaint de certeyn trespas par acte
de parliament, dont les commons furent assentus, que sil ne vient eins per
tiel jour que il forfeytera tiel summe, et les seigneurs done plus longe jour,
et le bil nient rebaile al commons arrere; et per Kirby, clerk des roles del
parliament, l'use del parliament est, que si bil vient primes a les commons,
et ils passent ceo, il est use d'endorser ceo en tiel forme, Soit bayle as
seigniors; et si les seigniors ne le roy ne alteront le bil, donques est use a
liverer ceo al clerke del parliamente destre enrol saunz endorser ceo. . . .
Et si les seigniors volent alter un bil in ceo que poet estoyer ore le bil,
ils poyent saunz remandre ceo al commons, come si les commons graunte
poundage, pur quatuor ans, et les grantent nisi par deux ans, ceo ne serra
rebayle al commons, mes si les commons grauntent nisi pur deux, ans, et les
seigneurs pur quatre ans, la ceo serra reliver al commons, et en cest case les
seigniors doyent faire un sedule de lour intent, ou d'endorser le bil en ceste
forme, Les seigneurs ceo assentent pur durer par quatuor ans; et quant les
commons ount le bil arrere, et ne volent assenter a ceo, ceo ne poet estre un
actre; mes si les commons volent assenter, donques ils indorse leur respons
sur le mergent ne basse deins le bil en tiel forme, Les commons sont assentans
al sedul des seigniors, a mesme cesty bil annexe, et donques sera bayle ad
clerke del parliament, ut supra.  Et si un bil soit primes liver al seigniors,
et le oil passe eux, ils ne usont de fayre ascun endorsement, mess de mitter
le bil as commons; et donques, si le bil passe les commons; il est use destre
issint endorce.  Les commons sont assentants; et ceo prove que il ad passe les
seigniors devant, et lour assent est a cest passer del seigniors; et ideo cest
acte supra nest bon, pur ceo que ne fuit rebaile as commons.

     A singular assertion is made in the Year Book 21 E. IV. p. 48 (Maynard's
edit.), that a subsidy granted by the commons without assent of the peers is
good enough.  This cannot surely have been law at that time.]

     If we are to choose constitutional precedents from seasons of
tranquillity rather than disturbance, which surely is the only means of
preserving justice or consistency, but little intrinsic authority can be given
to the following declaration of parliamentary law in the 11th of Richard II.:
"In this parliament (the roll says) all the lords as well spiritual and
temporal there present claimed as their liberty and privilege, that the great
matters moved in this parliament, and to be moved in other parliaments for
time to come, touching the peers of the land, should be treated, adjudged, and
debated according to the course of parliament, and not by the civil law nor
the common law of the land, used in the other lower courts of the kingdom;
which claim, liberty, and privileges the king graciously allowed and granted
them in full parliament." ^n It should be remembered that this assertion of
paramount privilege was made in very irregular times, when the king was at the
mercy of the Duke of Gloucester and his associates, and that it had a view to
the immediate object of justifying their violent proceedings against the
opposite party, and taking away the restraint of the common law.  It stands as
a dangerous rock to be avoided, not a lighthouse to guide us along the
channel.  The law of parliament, as determined by regular custom, is
incorporated into our constitution; but not so as to warrant an indefinite,
uncontrollable assumption of power in any case, least of all in judicial
procedure, where the form and the essence of justice are inseparable from each
other.  And, in fact, this claim of the lords, whatever gloss Sir E. Coke may
put upon it, was never intended to bear any relation to the privileges of the
lower house.  I should not, perhaps, have noticed this passage so strongly if
it had not been made the basis of extravagant assertions as to the privileges
of parliament; ^o the spirit of which exaggerations might not be ill adapted
to the times wherein Sir E. Coke lived, though I think they produced at
several later periods no slight mischief, some consequences of which we may
still have to experience.

[Footnote n: Rot. Parl. vol. iii. p. 244.]

[Footnote o: Coke's 4th Institute, p. 15.]

     The want of all judicial authority, either to issue process or to examine
witnesses, together with the usual shortness of sessions, deprived the house
of commons of what is now considered one of its most fundamental privileges,
the cognizance of disputed elections.  Upon a false return by the sheriff,
there was no remedy but through the king or his council.  Six instances only,
I believe, occur, during the reigns of the Plantagenet family, wherein the
misconduct or mistake of the sheriff is recorded to have called for a specific
animadversion, though it was frequently the ground of general complaint, and
even of some statutes.  The first is in the 12th of Edward II., when a
petition was presented to the council against a false return for the county of
Devon, the petitioner having been duly elected.  It was referred to the court
of exchequer to summon the sheriff before them. ^p The next occurs in the 36th
of Edward III., when a writ was directed to the sheriff of Lancashire, after
the dissolution of parliament, to inquire at the county court into the
validity of the election; and upon his neglect a second writ issued to the
justices of the peace to satisfy themselves about this in the best manner they
could, and report the truth into chancery.  This inquiry after the dissolution
was on account of the wages for attendance, to which the knights unduly
returned could have no pretence. ^q We find a third case in the 7th of Richard
II., when the king took notice that Thomas de Camoys, who was summoned by writ
to the house of peers, had been elected knight for Surrey, and directed the
sheriff to return another. ^r In the same year the town of Shaftesbury
petitioned the king, lords, and commons against a false return of the sheriff
to Dorset, and prayed them to order remedy.  Nothing further appears
respecting this petition. ^* This is the first instance of the commons being
noticed in matters of election.  But the next case is more material; in the
5th of Henry IV.  the commons prayed the king and lords in parliament, that,
because the writ of summons to parliament was not sufficiently returned by the
sheriff of Rutland, this matter might be examined in parliament, and in case
of default found therein an exemplary punishment might be inflicted; whereupon
the lords sent for the sheriff and Oneby, the knight returned, as well as for
Thorp, who had been duly elected, and, having examined into the facts of the
case, directed the return to be amended, by the insertion of Thorp's name, and
committed the sheriff to the Fleet till he should pay a fine at the king's
pleasure. ^s The last passage that I can produce is from the roll of 18 H.
VI., where "it is considered by the king, with the advice and assent of the
lords spiritual and temporal," that, whereas no knights have been returned for
Cambridgeshire, the sheriff shall be directed, by another writ, to hold a
court and to proceed to an election, proclaiming that no person shall come
armed, nor any tumultuous proceeding take place; something of which sort
appears to have obstructed the execution of the first writ.  It is to be
noticed that the commons are not so much as named in this entry. ^t But
several provisions were made by statute under the Lancastrian kings, when
seats in parliament became much more an object of competition than before, to
check the partiality of the sheriffs in making undue returns.  One act (11 H.
IV. c. 1) gives the justices of assize power to inquire into this matter, and
inflicts a penalty of one hundred pounds on the sheriff. Another (6 H. VI. c.
4) mitigates the rigor of the former, so far as to permit the sheriff or the
knights returned by him to traverse the inquests before the justices; that is,
to be heard in their own defence, which, it seems, had not been permitted to
them.  Another (23 H. VI. c. 14) gives an additional penalty upon false
returns to the party aggrieved.  These statutes conspire with many other
testimonies to manifest the rising importance of the house of commons, and the
eagerness with which gentlemen of landed estates (whatever might be the case
in petty boroughs) sought for a share in the national representation.

[Footnote p: Glanvil's Reports of Elections, edit. 1774; Introduction, p. 12.]

[Footnote q: 4 Prynne, p. 261.]

[Footnote r: Glanvil's Reports, ibid. from Prynne.]

[Footnote *: Glanvil's Reports, ibid. from Prynne.]

[Footnote s: Glanvil's Reports, ibid. and Rot. Parl. vol. iii. p. 530.]

[Footnote t: Rot. Parl. vol. v. p. 7.]