Imprisonment Of The Speaker.
The inviolability of the members of Parliament was a right of no less importance than liberty of speech. The ancient Saxon laws granted protection and security to the members of the Wittenagemot, in going and returning from the place of meeting, provided they were not notorious robbers and brigands. From the formation of the new Parliament, the same right was claimed by its members, who, as they came to transact the business of the king in his national council, were entitled to exemption from arrest or hindrance. In 1403, Sir Thomas Brooke repaired to Parliament as a representative of Somersetshire; and one of his suite, Richard Cheddre, was maltreated and beaten by John Salage. A statute ordained that Salage should pay double damages to Cheddre, according to the award of the Court of Queen's Bench; and "moreover, it is granted by the said Parliament that the same shall be done in times to come, in similar cases." This circumstance gave rise to a petition of the Commons, who prayed that all lords, knights, citizens, and burgesses, coming to Parliament and residing there, might be, as well as their followers and domestics, under the special protection and defence of the king, until their return home; and that they might be arrested for no debt, contract, or suit, or imprisoned in any manner during that time, under penalty of a fine to be paid to the king, and damages to the person injured. The king replied that provision should be made to this effect. The statute of 1403 was renewed in 1433, during the reign of Henry VI.
In 1430, a complaint was laid before the House of Commons on account of the imprisonment, for debt, of William Lake, the servant of William Mildred, one of the members for London. He was set at liberty by a special act of Parliament.
In 1453, the Commons complained to the king and to the lords of the imprisonment of Thomas Thorpe, their speaker, who had been arrested for debt at the suit of the Duke of York. The Lords referred the matter to the judges, who replied through Sir John Fortescue: "That it was not their part to judge of the Parliament's actions, who were judges and makers of the laws themselves; only they said there were divers supersedeas of privilege of Parliament brought into courts; but a general supersedeas, to suppress all proceedings, there was not. For, if there should, it would seem as if the High Court of Parliament, that ministered all justice and equity, should hinder the process of the common law, and so put the party complainant without remedy, inasmuch as actions at common law are not determinable in Parliament; but if any member of Parliament be arrested for such cases as are not for treason, felony, or surety of the peace, or for a judgment had before Parliament, it was usual for such person to be quitted of such arrest, and set at liberty to attend his service in Parliament." [Footnote 54]
[Footnote 54: Parliamentary or Constitutional History of England, vol. ii. p. 287.]
Conflicting Opinions.
Notwithstanding this answer of the judges, the Lords decided that Thorpe should remain in prison: and ordered the Commons, in the king's name, to elect another speaker, which they did. But this was a party quarrel; Thorpe was attached to the House of Lancaster, and the Duke of York was then in the ascendant. The privilege then existed, but still in a precarious manner, and a special act of Parliament was necessary on every occasion to ensure its being put into practice.
It was also during this period that the right of parliamentary initiative superseded the right of petition. We have already noticed the abuses originated by the initiative which the House of Commons exercised by means of its petitions; and that the petitions were not always faithfully reproduced in the statutes which they had suggested. We have also seen what efforts had already been put forth by the Commons to prevent these trickeries. In 1414, during the reign of Henry V., they complained of them in a special petition, to which the king replied by promising that in future the statutes should correspond exactly to the petitions granted. But this guarantee was very insecure, and the Commons had already begun to obtain more effectual securities by accustoming themselves to draw up in the form of complete bills, the statutes which they had previously suggested by petitions; and sending them to the House of Lords, that they might be discussed and adopted by that House, before they were presented to the king, who then had nothing more to do than to give or refuse his sanction. It is impossible to indicate with precision the period at which this important change took place; for it was accomplished gradually, and was not remarked by the historians of the time. The usage of petitions co-existed for some time with that of bills. The following facts indicate the progress of the change. Under Richard II., in 1382 (and I have already alluded to this fact), the Commons attempted to obtain the opinion of the Lords, upon a certain question, before bringing under the notice of the king.