Page images
PDF
EPUB

Lords holling by Barony, and other Freeholders of Counties and their Knights. (e)

In 31 Edward III., an old Clause "tam infra Libertates quam extra" has the addition "Civitatibus et Burgis duntaxat exceptis," indicating that such as sent Members should not be doubly charged with the Expences of Knights, as well as of their own Burgesses.

In 51 Edward III., the Commons again petition the King as to the manner of levying their Expences, the Lords holding by Barony, having endea voured to extend the exemption from payment even to their Free-Tenants and Freeholders, against former usage, which limited it to their Demesnes, Villains, or Bond Tenants. (ƒ)

It appears from a Petition of the Commons, 1 Richard II., that all Cities and Boroughs which actually sent no Citizens and Burgesses to Parliament, (as those within the Duchy of Lancaster, Edward III. and Richard II.) did and ought to contribute to the Wages and Expences of the Knights; moreover, that all Freeholders, that held not in ancient Demesne, should be charged as in former times. It appears, also, by a Law Case and Pleading, 8 Richard II, that every Village was, of right, particularly taxed towards Knights' Expences, unless discharged by Prescription, or ancient Tenure under a Bishop or other Peer of the Realm, summoned to Parliament; and that Sheriffs and their Officers might legally distrain for those Expences, if not paid. (g)

In the Parliament, 12 Richard II., upon Petition of the Commons, an Act was passed for the due levying of, and contributing to, the Expences of Knights, by all Lands formerly contributing towards them, though afterwards coming into the hands of Lords of Parliament; which Act ended many controversies between the Spiritual and Temporal Lords, and their Freehold Tenants, and the Knights of the Shire, and other Freeholders charged with Knights' Expences.

In the Parliament, 15 Richard II., the Commons petition concerning contributions, as well by the Free Tenants of Lands and others inhabiting within Franchises as without, who pretended Exemption. The King refers them to the Chancellor, as Judge and Umpire in such Cases of difference.

The Sheriffs, 18 Richard II., having again endeavoured to make all Bishops Copyhold and Villain Tenants, and Tenants in Ancient Demesne, contributory to the Expences of Knights, contrary to former Custom, are restrained by Special Writs of Prohibition and Supersedeas, issued out of Chancery; and all Archdeacons and others, are prohibited to compel Clerks of Chancery that were beneficed, to contribute towards the Expences of Bishops, and the Clergy's Proxies, or Clerks in the Convocation. (h)

In the Parliament 2 Henry V., the Commons of Kent, within the Gildable, petition against the Sheriff's who levied the Knights' expenses, contrary to the ancient Custom, upon those who were exempted from any Contribution towards them; by which it appears, that all Knights' Fees, not in the hands of the Archbishop of Canterbury or other Spiritual and Temporal Lords usually repairing to Parliaments, ought to contribute to such expences, and that they ought to be levied equally on all such Freeholders, Lords and Tenants, according to former Custom, and not at the Sheriffs' pleasure; farther, that the King was the only proper Judge as to the Persons on whom they should be levied.

The Commons again petition the King, 8 Henry V., that all Cities, Boroughs, Towns, Hamlets and the Resiants within them, except the Lords Spiritual and Temporal coming to Parliament, men of the Church, and

[blocks in formation]

those Cities and Boroughs which sent Citizens and Burgesses, should from thenceforth for ever become Contributors to the Knights' Expences.

In 23 Henry VI., on the Commons' petition to the King, against the abuses of the Sheriffs, who levied more Expences than were due, and appropriated the surplus to their own purposes, a Statute is made to prevent such misconduct in future. There appear to have been few or no alterations in the Form, or the Issue of Writs or Levy of Wages, in the Reigns of Edward IV., Richard III., or Henry VII.

That a similar practice obtained under Henry VIII., is evident from the Statute, 6 Henry VIII., c. 18, which commands that henceforth none of the Knights, Citizens, Burgesses and Barons shall (as is the practice) depart from the Parliament, nor absent themselves from the same, till it be fully finished, ended, or prorogued, without License of the Speaker and Commons, "upon pain to lose all those Sums which they should have for Wages, and all Counties, &c. are clearly discharged of the said Wages.” (i) It also evident from the Statute, 27 Henry VIII., c. 26, enabling the Counties and Boroughs of Wales to elect and send Knights and Burgesses, which said Knights and others are allowed such Fees as other Knights, &c., to be levied and paid in the same form and order. So, also, 34, 35 Henry VIII., c. 13, the Statute for the County Palatine and City of Chester, directs the levy of Wages and Fees for the Knights, Citizens and Burgesses returned.

It appears clearly from all the Preceding Writs, that, according to the ancient Constitution of England, no Knights or Burgesses were bound to serve gratuitously in the Councils or Parliaments of England; and that such Counties, Cities and Boroughs as could not, or would not pay their Members, might not legally make any election or return, and lost their Privilege of sending.

It, furthermore, appears that the Knights, Citizens and Burgesses received wages only for the period of their actual attendance in Parliament, and for the time which was absolutely necessary for their resort to, and return from, the several Places where such Parliaments were held, and that they could not absent themselves a single day from the service of the House, without Leave, in the earlier periods, from the King, and, afterwards, from the Speaker and Commons, except under a forfeiture of their Wages, and the discharge of the several Counties, &c. from the liability to such debt. The same rule applied to any delay which took place in first coming to Parliament, from whatever cause it might arise.

During Prorogations and Adjournments, Expences were allowed only for the days occupied in travelling to and fro. (k)

From these Writs "de Expensis," we obtain very precise information as to the nature and duration of the Privilege of Parliament, as it existed under the Ancient Constitution of England. This appears to have been strictly limited by the number of days for which wages were received, and to have been precisely bounded by actual attendance, and the time required for repairing to and returning from the several Councils and Parliaments. The duration of this Privilege varied, therefore, in each individual Case.

This Privilege of Parliament is a temporary Immunity which our Kings granted to the Members of Parliament and their necessary attendants, during Parliamentary Assemblies, customarily demanded by the Speakers of the Commons at the beginning of every Parliament in behalf of themselves and the Members, and then fully and graciously granted to them by

(1) See Prynne, iv., 514, 540, for Cases of Isle of Ely, and Maddingley, Cambridgeshire, where a permanent compensation is given in lieu of Wages. 9 Henry 5; 34-35 Henry 8.

(k) See 5 Richard 2, Prynne iv., 355; 8 Henry 4, iv.. 482-4; 23 Henry 6, iv., 527; 6 Henry 8, iv., 11.

See many Arguments to shew the advantages which were derived from this payment of Wages. Prynne, iv., 6, 546, 615.

the King, as a matter of Custom and ancient Right. The Privileges asked and conceded were threefold; First, that the Commons might have free Speech, as of right and custom they have used; and for better attending the public and importunate service of the House, themselves and their necessary attendants might be free, both in Person and Goods, from all Arrests and trouble, according to their ancient Privileges and Immunities. Secondly, that in any thing the Speaker should deliver in the name of the Commons, if he should commit any error, no fault might be imputed to the Commons, &c. Thirdly, that as oft as was necessary for his Majesty's Service, &c., he might have Access to his Majesty's Person.

From this view of the ancient Constitution, it appears, that (1) No Privilege of Parliament can actually begin before the first day of the Parlia ment's sitting, because till that very moment there is no High Court of Parliament, and Privilege is dependent on, and annexed to the Parliament. (2) Privilege is humbly petitioned for, de novo, at the first sitting of every Parliament, and then only, de novo, granted by the King, who, upon this occasion, has sometimes specially guarded and restricted the concession, "so that by colour of this Privilege, no man's ill doings, or not performing of duties may be covered or pretermitted," 10 Henry IV., 35 Elizabeth.

(3) The Ancient Petition of the Speaker from 3 Ric. II. till the present times, only prays for "Libertè en Parliament," and neither extends to any period before, nor after the actual existence of the Parliament, any more than Freedom of Speech does so extend. Moreover, the Writs of Privilege themselves, only claim freedom from Arrest and Imprisonment for the respective Members of both Houses, "dum sic in Parliamentis morantur." (4) No Member can have Privilege before he is an actual Member, and has been admitted into the House." Since 5 Eliz., c. 1, and 7 Jac., c. 6, no one can sit nor claim the Privilege of a Member till he has taken the Oaths of Supremacy and Allegiance. Privilege and the service of Parliament begin together. Privilegium dari non potest, rei quæ non est. A Privilege cannot be conceded for a Parliament, which though summoned, may be prorogued, recalled or dissolved before it actually meets, as happened, 23 Edward I., 11 Edward II. (1)

(5) Privilege, ("proprie quod contra Jus, vel in præjudicium aliorum, debet stricte interpretari, ut minus deroget Juri communi,") ought to begin from the King's actual concession of it to the Speaker, and expire with the dissolution. Prynne is of opinion, that, according to the ancient Constitution, continued through many Reigns, the Privilege of Members and their domestic Servants accompanying them to and waiting on them during Parlia ments, begins the very first day allotted them to set out from their Houses towards the Parliament, so as to be there by the beginning of the Session; that it continues all the time of their stay, and ends with those days after the Session allowed them to return to their Houses, according to their several distances from Places where Parliaments are held, bounded entirely by the days reasonably and indifferently allotted them in their respective Writs de Expensis, for going and returning. (m) Their Expences and the

(1) See Prynne, iv., 629, and Sqq. for a Summary of Arguments against the extension of Privilege for 20 or 40 days before or after the actual sitting of Parliament, and also against a previ ous right from the day of Election. See also p 1215-18. The only ground and Law for 40 days seems to have been the old and obsolete Charter of John, which does not confine the Summons to that particular number, but leaves it at large, with the general Restriction, "ad terminum quadraginta dierum ad minus," which sometimes has been 60, 50, 45 days; and sometimes, under urgent circumstances, 35 or fewer days. In a Case, 2 and 3 Philip and Mary, it is decided in the Lords, with the advice of the Chief Justices, Master of the Rolls, King's Serjeants and Counsel, that Privilege does not extend 12 days after the end of the Parliament. Ib. 1213-1214. (m) See the evidence which proves, beyond contradiction, that such was the real state of the Case, Prynne, iv.. 643. 651, even from our first British Lawgiver, Dunwallo Molmutius, who gave his Protection" in veniendo versus Curiam nostram, ibidem morando, et exinde versus propria redeundo," and from Edward Confessor's "Pacem habeat cundo, subsistendo, redeundo," down to 35 Elizabeth, according to the decision of Sir Eward Coke, that no Privilege for release could be granted for a Member taken in Execution upon a Judgment before the Parliament met, citing 2 Edward 4, Brooke, Privilege 44, Dyer, 162-6, and Thorp's case, Parl 31, H. 6, but

term of their Privilege of freedom from Arrest and Imprisonment, varied, therefore, according to the difference of times required to appear, and again to reach their several destinations; in some cases many days being allowed, in others, from their convenient localities, such allowance being granted "pro morâ tantum," and not for any extraordinary period before, or after, the conclusion of the Session.

The original ground, end, and reason of this Privilege, was not to protect Members or their Servants against just debts, suits, judgments, and executions, contrary to right and justice, for their own particular advantage, or to the prejudice of their Creditors and Prosecutors, but merely to enable them, without hindrance and interruption, to attend and dispatch the public affairs of the Kingdom, with all possible expedition; which otherwise might be obstructed and retarded by their absence and restraint. As the Privilege of Parliament, in all the ancient periods of our Constitution, was coincident with the grant of Wages, it is evident, that it was as precisely limited as these. The Expences and Privileges had one and the same beginning, duration, and determination, neither of them lasting during the vacations of Parliament, by adjournment or prorogation, or in cases of absence or departure from the House.

According to the ancient Constitution of England, upon Writs of Privilege or Supersedeas, brought by Members or their menial Servants out of the Chancery or Parliament, the Judges of the King's Courts constantly judged of the Privileges of Parliament, according to Common Law and Right, without ever being questioned for it as a breach of the Privilege or Jurisdiction of Parliament. It will, however, be remarked, that there never was any general Supersedeas or Writ of Privilege brought to the King's Courts to stay all Process of Law against Members or their Servants, by Bill, Original Writ, or otherwise, in real or personal Actions, whereon their Persons were not arrested, even during the Session of Parliament.

The only Privilege of Parliament then known, claimed, and allowed to the Members, was a freedom from Arrests and Imprisonment sitting the Parliament. Such Privilege extended (1) to all Members, Assistants, and Officers of both Houses, who repair to Parliament by the King's Writs of Summons, and upon legal Elections and Returns, continually attend there till their Dissolution, and also during their stay, coming and returning; (2) to all their real and necessary menial Servants, in attendance, to the end of the Sessions; (3) to all Persons resorting to Parliament to prosecute their just Petitions, and to their Witnesses.

According to the ancient Constitution, Privilege did not belong (1) to Members, Assistants, Officers, or their menial Servants, who, through sickness, or their private occasions, did not discharge their trusts in Person, though they made Proxies in the Lords to supply their absence. (2) Neither did it belong to those who came late to the Parliaments, or afterwards departed from them. (3) It did not extend to their Wives, Children, Kinsmen, Counsellors, Attorneys, Solicitors, Proctors, Scriveners, Factors, Physicians, or any kind of Tradesmen, not bona fide their attendant menial Servants; therefore, not to Bailiffs, Shepherds, Stewards, Grooms, Carters, &c., residing elsewhere upon the Estates of such Members; nor to any Tenants occupying their Lands or Houses.

The true and genuine Privilege never extended to deny or obstruct common right, justice, and legal process against any Members, or their menial Servants, either in real, personal, or mixed Actions, Demands, or Suits, whether in or out of Parliament, in other Courts of Public Justice, when their Persons were not arrested, nor their Rights or Titles prejudiced by

if he had been arrested "Sedente Parliamento, or eundo, redeundo or morando," he and every Member of the House were then to be privileged. The Judgment of the House was that he was not to have Privilege for 3 causes, chiefly because he was taken neither Sedente Parliamento, nor eundo, nor redeundo, to which the Privilege was confined.

surprise or circumvention, the King himself, the head of the Parliament, having no such Privilege from Public and Private Suits. It never extended to exempt any Members whatsoever of either House, from being prosecuted not only civilly by Petitions or Writs or Error, for their real and personal Estates and Debts; and criminally for all Sorts of Oppressions, Extortions, Frauds, Riots, &c. &c.; but capitally, for High Treasons, Conspiracies, Murders, and high Misdemeanours. (n)

The Privilege of Parliament protects no Members, Assistants, or their Servants, sued for Lands, Goods, Debts, &c., in "Auter Droit," as in right of their Wives, or as Executors, Administrators, or Trustees, or as Mayors or Members only of a Corporation.

It neither inhibits, nor stays, any real or mixed Actions at Law, sitting the Parliament itself, to recover Manors, Lands, Tenements, &c., nor protects any Goods or Chattels from distress, scizure, &c., but such as are brought for necessary and personal use, without fraud or collusion, during attendance on public duties. Privilege extends not to the bringing or prosecuting of any Actions of Trespass, Debt, Covenant, &c., but only to Arrests and Imprisonments by Process or Judgements in such Actions, not to Bills, Subpoenas, Quo Minus Citations, Attachment of Goods, or other Process; where the Persons are not restrained. (0)

It appears, that, according to ancient usage, the principal care of our Kings was to preserve the Persons of Members and their Servants from Violence, Arrests, and Imprisonments, during Parliaments, but never from just and legal Suits against them, whether real or personal, the Persons of Members and their Attendants being sufficiently secured by Statute, 7 Edward I., and by the King's Writs and Proclamations. If any Assault was committed on Members to hinder them from discharging their duties, impeachment and severe punishment followed. 4 Edward III., 28 Henry VI.

It appears, also, from numberless Precedents, that the King, by the advice of the Lords, and assisted by his Judges, was not only the sole granter of the Privileges of the Members of his Supreme Court of Parliament, but the only Interpreter and Judge in all that related to them. In the 1st of Henry IV., the Commons admit that they cannot be Judges as well as Parties, Prosecutors, Coniplainants in their own cause, and Protest that "Les Juggementz du Parlement apparteignent soulement au Roy et as Seigneurs et nient as Commones," which the King affirms, "Sauve qu'en Statutz affaires, ou en grauntez et subsides, ou tiels choses affaires "

Even in 34 Henry VIII., the first Precedent in which the Commons attempted the enlargement of their Members, under peculiar circumstances, they were obliged to declare the whole Cause by their Speaker, before Sir Thomas Audley, Lord Chancellor, and all the Lords and Judges assembled in the Upper House. (p)

(n) See Prynne iv., 699, for Precedents from 9 Edward 2 to 3 Car. 1.

(0) See Prynne, iv., 695, 699, for Reasons of such non exemption. See also 1198 for Precedent, 1 Mary, 2d Parliament, where the Commons specially determine that the serving of a Subpœna in case of a Member of the Lords' House, was no breach of Privilege.

See also iv., 720; twenty three Precedents, 5 Henry 4, 71, 78; 8, 31, 32, 39, Henry 6: 12 Rot. 7, 20, 13, 14, 17; 1 Henry 7; 34, 36, 37, Hen. 8; 14, 18, 35, Elizabeth; 1 Jac., c. 13; 19 Jac.; 4 Car. 1; 1 Car. 1? Remonstrance of the Lords and Commons 2 Nov., 1642, 15, 16. Car. 2; and Answers to 4 objected Precedents, 18 Edward 1; 8 Edward 2; 10 Edward 3.

(p) See Prynne, iv., 849. In the 6 Edward 6, it appears from an order of the Commons, that the Speaker granted a Warrant directed to the Lord Chancellor, to issue a Writ of Privilege, if the Chancellor saw Cause. Ib. 1200. The new pretended Privilege to stay legal Suits, Trials, and Executions, against Members and their Menial Servants, or their Lands and Goods, seems to have had its origin in 7 or 12 Elizabeth, and was followed up, 18 Jacobi, in an unusual, if not illegal way, by the Speaker's Letters of Inhibition directed to the Justices of Assize, not by a Writ of Supersedeas under the King's Great Seal to the Judges.

It will be recollected with regard to this question of Privilege, that it is not the meaning of Prynne, from whom the arguments are derived, that all misdemeanors are so exempted. On the contrary, he excepts from it only Treason, Felony, Breaches and Surety of the Peace, Judgements or Condemnations in Parliament, or before election into Parliament, or at least the beginning of it 689. 697. 700. 756. 764. 794. 795. 827. As to breaches of Peace, see Selden's Explanations. p. 715.

« PreviousContinue »