VIII. The Parliamentary Privileges of the Commons

When, in 1387, Richard II’s judges were given virtually no option but to approve his claim to exercise absolute control of Parliament (regimen Parliamenti), and did in fact do so, they might well have observed that he demanded only formal recognition of established custom. So far as the practical business of Parliament was concerned, kings enjoyed prerogative rights; and although prudence dictated that they should seriously consider whatever Parliament required or advised, they themselves were legally entitled to determine matters of policy. Indeed, even judgements pronounced by the Lords as ‘judges of Parliament’ needed the King’s ultimate assent. And although in presenting petitions for remedy of grievances the Commons were responding to an official request, the royal right of veto still went unquestioned, and was by no means infrequently exercised.For further information on this subject see J.R. Maddicott, ‘Parl. and Constituencies’, Eng. Parl. in Middle Ages ed. Davies and Denton. esp. 65-70. Such few parliamentary privileges as the medieval Commons came to enjoy were similarly dependent on the King’s will.

Fundamental to the maintenance of royal prerogatives in Parliament was the protection they were afforded by the King’s Council; but sometimes the basic and jealously guarded right of appointing the great officers of State and Household and other members of the Council was put to the test by Parliament or looked as if it might be disputed, prompting the King to intervene personally in its defence. Such incidents occurred not infrequently in Richard II’s reign; and they were far from unknown in Henry IV’s. In 1406, for example, when pressure was put on the King to nominate his councillors in Parliament, recognition of his right to appoint required a bill brought in by Henry himself; and, in 1410, after names had been proposed by the Commons, the actual appointments were made conditional upon his permission. Obviously, issues of this kind, especially when they threatened to impinge upon the royal prerogative, were matters of high politics.

There were, however, other royal offices and commissions which, although less powerful, were certainly important enough to excite the constant interest of Parliament. Among them were the locally influential posts of sheriff and j.p.; and since the conduct of appointees so directly affected the life of the local communities represented in Parliament, the Commons were most closely involved in initiating proposals for reform. Their main concern about sheriffs was to ensure that their term of office should be for one year only, and that re-appointment should only ever occur after an interval: they did not seek to interfere with the method of royal selection. This was not, however, the case with regard to commissions of the peace. Every now and then, most notably during the reigns of Edward III and Richard II, the Commons attempted to change the way in which j.p.s were normally chosen, only to meet with official resistance and a jealous defence of crown control. No later than 1354, the Commons were asking that the keepers of the peace and the justices appointed to enforce the Statute of Labourers should, if possible, be the same people; and that when their names were now scrutinized by the chancellor, the treasurer and the King’s judges, the shire knights from the county in question should be present, and, moreover, should be able to nominate replacements for anyone who was then removed from the bench. Even so, the Commons’ petition itself did concede that this last, rather audacious request would be subject to the King’s discretion; and, in fact, the official answer ignored it. Furthermore, when the Commons of 1363 urged that the same commissioners should be ‘elected’ by the shire knights and burgesses attending Parliament, and were told they might proceed to nominate suitable persons, they were at the same time firmly given to understand that appointments would finally rest with the King. In the Parliament of 1365, too, reservation to the Crown of the appointment of j.p.s was safeguarded even more positively than before: the Commons’ two-fold request that the terms of the commission should be enlarged to confer the power of oyer and terminer in cases of felony and trespass against the peace, and that the justices in each county should be chosen by its own shire knights before they left Parliament, was rejected. Indeed, regarding nomination, it was simply stated that the King would inform the chancellor and the treasurer of his wishes. Dissatisfaction with the conduct of j.p.s, ventilated in the Good Parliament of 1376, then prompted the Commons to request that they should be named in Parliament (this time by the Lords as well as the shire knights) and, once sworn in before the Council, should not be removed without parliamentary approval; but this idea was also opposed, nomination being explicitly reserved to the King and the Council. The need for conciliar assent to such appointments was confirmed in the Parliament of 1379, despite an appeal by the Commons that the ‘election’ of the justices should be as advised by the Lords and themselves. And when, in the next Parliament of January 1380, they petitioned that such ‘election’ should be by the Lords and shire knights present, the submission of names, at any rate in writing, was again refused.RP, ii. 257-8, 277, 286, 333; iii. 65-66, 83-84. Although, with a view to improving the enforcement of the statutes for the better maintenance of law and order passed after the crisis of 1388, the Commons in November 1390 again requested that fresh commissions of the peace should be appointed in the Parliament and not be changed before the next one met, no mention was then made of recourse to nomination by the Lords and county representatives.Ibid. iii. 279. For the social and political background to this question see R.L. Storey, ‘Liveries and Commissions of the Peace 1388-90’, Reign Ric. II. ed. Du Boulay and Barron. This most probably meant that appointment was, as usual, left with the Council, perhaps just the chancellor; and certainly when, in Henry IV’s first Parliament, the Commons, harking back to a statute of 1361, requested that j.p.s should be men of rank and good standing who were resident locally, the chancellor alone was made directly responsible by the King.RP, iii. 444. In whatever ways the Commons might continue to interest themselves in the functions and behaviour of commissions of the peace, it was then evidently intended that appointments should remain exclusively the preserve of the government. And given the absence from 15th-century parliamentary records of references to any further attempts by the Commons to affect the composition of such commissions, it looks as if they were now content to have it so.

The Commons were likewise anxious to exercise some control over commissions for the collection of direct parliamentary taxation. But, here, what they were constantly at pains to obtain was freedom from a personal liability to help levy the subsidies they had granted. Since, in the course of the 14th century, their consent to taxation had become so essential that they could attach conditions to their grants, they were well placed to request such a concession; and if alternatively, or occasionally at the same time, they then asked to be allowed to nominate the collectors of a subsidy, official approval would doubtless be tantamount to their own exemption. Not until the second half of the 15th century, even so, did their demand for exemption from appointment as collectors begin to figure regularly among the conditions expressed in the grants of direct taxation. This had by no means always been the case. Admittedly, in 1344 (by which time Edward III was in great need of heavy taxation to finance the French war) the Commons granted a tenth and fifteenth leviable in each of the next two years on the understanding that nobody attending the Parliament ‘by writ’ should be made a collector; and this condition was evidently accepted.Ibid. 148. This was the first occasion when such a demand was recorded in the Parliament rolls. Yet just four years later, in a Parliament which granted the subsidy on a triennial basis, the Commons’ request that personal exemption should again be allowed (because of their ‘great travail’ in two successive Parliaments) met with virtual rejection, since the King simply replied that he would appoint ‘good and loyal persons’ as collectors when it pleased him. And, in 1352, when a triennial subsidy was again forthcoming, and the Commons asked that none of them should be made collectors, the official response was that the King’s Council considered that demand ‘pas resonable’.

The last years of Edward III’s reign and the first half of Richard II’s were, however, to witness a change of attitude by the government. Partly because no direct taxation was approved by Parliament between 1360 (the date of the Anglo-French peace treaty of Brétigny-Calais) and 1369 (when war was resumed), it was not until 1371 that a grant of an unusual subsidy of £50,000 leviable on parishes once again afforded the Commons an opportunity to request exemption from appointment as collectors, although on this occasion their plea specifically referred only to the shire knights. The King’s response—that he would appoint anybody thought suitable by the Council—was hardly encouraging. But this was not the end of the matter; at the great council which met shortly afterwards at Winchester and found it necessary to implement a massive five-fold increase in the parochial contributions (in order to realize the sum originally granted), the shire knights who attended, on the basis of one for each county, were allowed to furnish lists of names of collectors, from which presumably they omitted their own.Ibid. ii. 203, 240, 304, 308. Now that the war with France was again being waged by both sides in earnest, parliamentary grants of direct taxation became so closely recurrent, and so unpopular because of the heavy burden they imposed, that the Commons, in two of the three remaining Parliaments of Edward’s reign which granted taxation (the Good Parliament of 1376 did not), were able to arrange for some, and perhaps all, of their Members to avoid appointment as collectors.Grants were made in the Parliaments of 1372, 1373 and 1377 (Jan.). In 1373 they made it a condition of the award of a biennial subsidy that no MPs should be commissioned; and when, in the last Parliament of the reign (January 1377), they all begged to be excused from helping to levy the poll tax they had just voted, the King agreed.RP, ii. 317, 368. In Richard II’s first Parliament, which early in December 1377 granted two tenths and fifteenths, both together payable in a couple of months’ time, the Commons simply asked that none of their number should be constrained to act as a collector: a more moderate request which could readily be allowed. When, however, in May 1379, the third Parliament of the reign granted another poll tax, and the Commons applied for a general discharge from appointment as collectors, assessors or controllers, their petition was only conceded on the understanding that, before they left for home, they would deliver to the Council in writing the names of persons competent to act in their respective constituencies. No request was made either in the terms of the grant itself or in any Commons’ petitions for the exemption of MPs from commissions for collecting the one-and-a-half tenths and fifteenths approved by Parliament in March 1380; but when the second Parliament of the year voted yet another poll tax (the excessively heavy tax of 1s. per head whch led to the Peasants’ Revolt) one of the specific conditions of the grant proper was that none of them was to be called to serve as a collector or controller. In 1385 the Commons actually presented a similar demand before the subsidy was granted; and not only did the shire knights submit the names of collectors, but they now asked that their nominees should not be changed. While exception was taken to the latter proposal, the demand that no MPs should be appointed as either collectors or assessors received royal approval. Never again in Richard’s reign, however, did the Commons renew any suchlike request. Indeed, even under Henry IV they refrained from doing so until the fifth Parliament of the reign.Ibid. iii. 25, 66, 90, 212.

During this Parliament, which met at Coventry in October 1404, the Commons drew attention to the fact that some of the shire knights and burgesses present had been prevented by their attendance there from rendering accounts at the Exchequer (at Westminster) as assessors, collectors and controllers of the novel tax on knights’ fees and income from land granted by the last Parliament. They then asked that any such individuals should not face prosecution later, either because of this or for any short-fall in tax revenues during the session. Since the King was ready to approve their petition, the Commons unsurprisingly went on to make a generous grant of two tenths and fifteenths, albeit on the understanding that nobody attending the Parliament should be appointed as a collector. It was not, however, until November 1411, when the last valid Parliament of the reign granted a levy of 6 s.8 d. on every £20 of annual income deriving from lands and rents held by any of the King’s subjects, that they re-imposed the same condition; only now, while extending the exemption to cover assessment, collection and controlment, they specifically restricted it to themselves as elected Members. Quite possibly the unusual nature of the tax, as well as the administrative difficulties they expected to arise, prompted them to demand personal exemption from the business of collection in all of its aspects.Ibid. 547, 555, 649. For the appointment of Members of the Parliaments of 1386-1421 as collectors of subsidies, see Appendix B5. In this context, it is significant that the next recorded instance of a similar demand for exoneration of MPs was not to be made until 1427. As we have already seen, the heavy direct taxation of Henry V’s reign had been consistently voted in conventional tenths and fifteenths, but now the first grant of direct taxation under Henry VI took shape as a highly complicated tax on householders, leviable by rural and urban parishes, coupled with an impost on knights’ fees. Presumably, exemption was also allowed the Commons at the end of the next Parliament (1429-30), when need to bring forward the levy of the two tenths and fifteenths they had already voted provided them with an opportunity to demand the right to nominate, ‘atte her wille and fredom’, other, additional collectors. Certainly, the knights and burgesses attending the Parliaments of 1431 and 1435, which again approved general subsidies of an unusual kind, were able to secure a collective release from everything to do with the actual levy. It was not until July 1449 that such an exemption once more appeared as a condition of a grant of direct taxation, the latter being also out of the ordinary, since it comprised a grant for four years of an annual tax on all aliens resident in England.Ibid. iv. 318, 343, 370, 425; v. 144. But thereafter, at least until the end of Henry VII’s reign, the Parliament rolls continuously refer to the Commons’ demand for exemption from appointment as collectors of general subsidies.Ibid. v. 173 (1450), 211 (1451), 228 (1453), 498 (1463), 624 (1468); vi. 7 (1472), 119 (1474), 152 (1475), 197 (1483), 401 (1487), 422 (1489), 439 (1490), 443 (1491), 514 (1497), 534 (1504). In 1472 it was laid down that no ‘Lord of Parliament’ should be appointed as a collector (vi. 7); and from 1491 onwards, in addition to MPs themselves, ‘Clerkes and Ministers’ attending Parliament were also exempted. This was now so persistent and so unexceptionally allowed as virtually to have changed what had once been an occasional concession into a customary privilege. It is, of course, quite obvious that such a dispensation, relating as it did to the aftermath of a Parliament, conferred no parliamentary privilege in the strict sense of the term. In providing exemption from an unpopular and distasteful duty, it was none the less of benefit to Members of the Lower House. Incidentally, so might also be, although in a different way, the alternative to their own appointment as collectors of taxes, namely their nomination of others instead: a practice which was sufficiently corrupt and open to abuse to provide financial profits for MPs who did not scruple to exploit it. In this respect, shire knights seem to have become especially open to temptation. For instance, in 1489, when the knights and burgesses were authorized to submit to Chancery the names of collectors, it was ordained that if any knight were proved to have taken money or other reward ‘for sparing or forbering to make any persone or persones Collectour or Collectours’ of the tenth and fifteenth then granted, he was to be put in prison until he had paid any injured party double damages and made fine to the King for the contempt.Ibid. vi. 439. Nor, evidently, was this complaint particularly new: one of the many grievances voiced by the men of Kent who rose in rebellion with Jack Cade in 1450 was that ‘whereas knights of the shire should choose the King’s collectors indifferently, without any bribe-taking, they have sent now late to divers persons, notifying them to be collectors, whereupon gifts and bribes be taken, and so the collectors’ office is bought and sold extortionately at the knights’ lust’.Peasants’ Revolt ed. Dobson, 338-90.

In view of the importance officially attached to the full and unimpeded attendance in Parliament of Members of the Lower House as well as of the Lords, it was necessary that neither they nor even their servants should be molested when journeying to and from Parliament and, a fortiori, when Parliament was in session. Moreover, if any of them were at such times being impleaded before the courts in civil actions, it was equally important to protect them from arrest or imprisonment, which would, of course, hinder or even prevent them from attending Parliament.

Apparently, it was only very seldom that the Commons had cause to draw Parliament’s attention by petition to the death or injury suffered, in an assault or violent affray, by one of their number or his servants. On the few occasions when they made a complaint their chief concern was to propose what, according to the nature of the crime, ought to be done about the culprit, and, if possible, to provide for similar contingencies in future. There were, of course, limits to what, in certain circumstances, they could request. For instance, following the violent death of Sir John Ipstones, knight-elect for Staffordshire, while on his way to the Parliament of 1394, one Roger Swynnerton had already been indicted by the time the Commons presented their petition, so that, with a local trial evidently still pending, they could do no more than ask that Swynnerton should not be released from prison on bail or mainprise until he had been brought to answer. Yet, so far as it went, their petition was granted.RP, iii. 317. The Commons were far more serious in pursuing a case about which they protested in the Parliament of January 1404: this actually led to a statute which, by strictly defining an appropriate judicial procedure, was intended to secure future protection from criminal assault for lords and MPs summoned to Parliament, and also their household servants. The Commons’ complaint (which lacked nothing in vehement expression) was prompted by a near-lethal attack, made during the session itself, by one John Savage on Richard Cheddar* esquire, who was then acting as servant to his stepfather, Sir Thomas Brooke, shire knight for Somerset. Having demanded the imposition of a punishment harsh enough to serve as a deterrent in future, the Commons also asked that, if anyone were to kill or murder somebody who had come to Parliament under the King’s protection, his crime should be adjudged as treason; that if he were to maim or wound his victim he should lose a hand; that conviction for assault and battery should involve a year’s imprisonment, together with payment of a fine and ransom to the King; and that the King himself should henceforward forbear to grant pardon in such cases, unless the parties became wholly reconciled. The remedy prescribed by the official answer on this occasion, and the statute to which it gave rise, fell short of the Commons’ demands. Both, however, ordered that proclamation should be made where the crime was committed for Savage to appear and surrender himself within three months to the King’s bench, failing which, he was to be convicted, pay the party aggrieved double damages as assessed by the judges or, if necessary, by inquest, and pay whatever fine and ransom the King might decree. It was also agreed by Parliament that if a similar case arose in future, the same procedure should apply.Ibid. 542; Statutes, ii. 144 (5 Hen. IV, c. 6). John Savage was important enough locally to have been escheator of Dorset and Somerset over the year ending November 1403, and Richard Cheddar went on to represent the latter county in Parliament. In September 1403, Savage had been granted the custody of Marshwood Vale, a Dorset manor in royal wardship by reason of the minority of Edmund Mortimer, earl of March, and the award was confirmed during the Parliament of January 1404 (CFR, xii. 185, 217, 242). A dispute over the property may well have prompted Savage’s attack at this time: certainly, on 26 Oct. (while the next Parliament was meeting at Coventry), a local commission was set up by the Crown to inquire into a report that Cheddar and other evildoers had gone fully armed to Marshwood and elsewhere in the county, hoping to ambush and kill Savage (CPR, 1401-5, p. 502).

Not until 1432 did the Commons again see fit to reconsider the question of personal protection for Members and their servants coming to Parliament, attending it, or returning home. If a particular incident had then occurred to alarm them, their petition made no mention of it. Nor was there any specific reference to the statute of 1404. However, they clearly had it in mind, as their main concern was to ensure that the protection it had afforded should now be enlarged to cover not merely such assault as had been suffered by Richard Cheddar, but all cases of trespass, offence and damage.RP, iv. 404. In addition, they sought to redefine judicial procedure, by requesting that a Member-elect should be entitled to a writ of trespass returnable in the King’s bench within two months of the offence (not three as in the statute of 1404). They also asked that the sheriff of the county where the offence had occurred should, at the next meeting of the shire court following his receipt of the writ, order the defendant by public proclamation to answer the plaintiff on the day appointed; and that if, in the meantime, within a fortnight of the sheriff’s having notified the King’s bench of his proclamation, the defendant had not appeared before this court, he should there be attainted. Moreover, as a further deterrent, the judges were then to order the sheriff to inquire (by jury) into the damages suffered by the plaintiff, so that if the court found the defendant guilty, it could award damages at double the amount assessed before the sheriff. Whether the nature of the offences which the Commons had listed was too comprehensive, or the procedure they recommended too stringent and complicated, this petition of 1432 was refused. Perhaps what was really needed to give the Commons any real chance of success with that sort of petition was a particular occurrence whereby personal suffering, damage or inconvenience had befallen one of their number; and just such an incident soon provided them with a fresh opportunity to return again to the question of personal protection.

It was in fact in the very next Parliament (July-December 1433) that the Commons were sufficiently disturbed by a breach of the peace, actually committed while they were sitting, to appeal once again for legislative remedy. Recalling (in the preface to their petition) the case of Richard Cheddar and the procedure then afforded by statute, they went on to name Richard Quatermains as the victim of an assault and affray. But whereas Cheddar had been merely the servant of a shire knight, Quatermains was himself attending Parliament as a representative for Oxfordshire; and the Commons, when prompted by this brawl to ask that the statute of 1404 should be enforced in future, referred in their petition to an entitlement to legal redress on the part of MPs alone, making no mention of their servants, nor, indeed, of the lords spiritual and temporal either.Ibid. 453. Quatermains enjoyed such high standing in Oxfordshire that he was appointed to the quorum of its commission of the peace and sat in the consecutive Parliaments of 1432 and 1433. In which of the two sessions of the latter the assault occurred is nowhere made clear, nor does the Parliament roll say who was responsible. Consequently, the response to their petition, as originally formulated for the Crown, omitted servants altogether, as did the fresh statute of 1433 which ultimately resulted. Response and statute alike, however, included lords among potential beneficiaries of royal protection. Of equal significance, both departed from the Commons’ petition in providing protection for members of the two Houses summoned not only to Parliament, but also to councils meeting by special royal command. The judicial procedure now designed to follow a breach of the peace involving assault and affray in either circumstance was, however, changed only in minor details from that provided by the statute of 1404: the sole differences were that when proclamation was now made requiring the appearance of the defendant in the King’s bench within three months, this should be done on three separate days in the most public place of the township where the incident had occurred; and that, were the court not then sitting, proceedings should begin at the start of the next law term.

Thereafter, no such case again appears in the official record until the Parliament of 1445-6 where, on 14 Mar. 1446 (during the fourth and final session), an assault occurred once more involving a shire knight and, on this occasion, servants of his as well. The knight, Sir Thomas Parr of Kendal, who was sitting for Cumberland, himself complained by petition how their assailants (prominent among whom were the brothers, Robert and Thomas Bellingham† of Westmorland) set upon him and his party in the Vintry Ward of the City of London as he was about to go by river to Parliament, and how, in the course of the affray, some of his servants had been wounded. The Commons themselves took up the matter and, in fact, presented two separate petitions. In the first, which was the more specific, they requested that a writ should be addressed to the sheriffs of London, requiring them, on pain of a fine of £100 (half payable to the Crown, half to Parr and his servants), to make proclamations that the assailants should appear before the King’s bench on 17 May; that the latter should then be committed to the Marshalsea without bail or mainprise, pending suit by the plaintiffs and until the case was determined; and that, if they then failed to appear they should be attainted of felony, refused any plea upon a writ of error, and barred from a royal pardon. The Commons’ second petition, which, unlike the first, was enrolled among their own common petitions, was cast in more general terms, since it asked that the procedure affording protection from assault and affray should apply to lords as well as Members of the Lower House when coming to, attending, or returning from Parliament. There was also a further requirement that writs of proclamation sent to a local sheriff wherever such a ‘trespass’ had been committed should be returnable in the King’s bench, and that judicial action should follow the procedure set out in Parr’s case. Although this common petition met with only a laconic response, to the effect that existing statutes were to be observed in all points, the first one, on Parr’s behalf, was unquestionably granted in full. And, in fact, the writ of proclamation addressed to the sheriffs of London was issued by Chancery on 12 Apr. 1446 (three days after the dissolution of Parliament), delivered to them on 5 May, and executed the day after. The proclamations made in the City did not, however, achieve their immediate purpose: the defendants, required to answer before the King’s bench on 17 May, failed to appear; and accordingly they were attainted of felony, thus forfeiting their lands and goods. Even so, matters did not rest here. In the next Parliament but one, which met at Westminster in February 1449 (with Thomas Bellingham sitting for Arundel), the defendants explained that they had been too afraid to come before the King’s bench, but that they and their adversaries had since been reconciled, and Sir Thomas Parr and his servants given satisfaction. Under these circumstances, they asked that the ‘act’ of 1446 and its dependencies might be revoked and annulled by parliamentary authority, and that they themselves might not incur the forfeitures normally attached to attainder of felony. Submitted in the first place to the Commons, who sent it up to the Lords (‘soit baille as Seigneurs’) for their approval, this petition was accepted by the King, albeit with certain reservations. Any (chief) lord to whom, on account of the attainder of felony, freehold land had escheated, was to retain the property; and, similarly, any special royal grant, by patent or otherwise, of forfeited goods was also to hold good.Ibid. v. 111, 168-70. For further details about the quarrel between Parr and the Bellinghams see R.L. Storey, End of House of Lancaster, 120-1.

During the first session of the very next Parliament, begun at Westminster on 6 Nov. 1449, yet another case of assault occurred. However, this particular breach of the peace was far more serious than that of 1446, since it not only involved a murderous attack on one of the oldest and most distinguished lords of the King’s Council—Ralph, Lord Cromwell, former treasurer of the Exchequer (1433-43), the longest serving treasurer for nearly a century—but actually occurred in the palace of Westminster itself. Once formally opened there, Parliament had been immediately transferred to the London Blackfriars near Ludgate (allegedly because of the fear of contagious disease), and only returned to Westminster on 4 Dec. (for the remaining fortnight of the first session). It was at Westminster, however, that on 28 Nov., according to a petition presented by the Commons to the King, ‘many grete Lordes of your Counseill ... were assembled in your Counsaile hous, called the Sterre Chambre, within your Paleys’, where William Tailboys†, an esquire from South Kyme in Lincolnshire, broke in at the head of a large following of armed men with the intention of killing Lord Cromwell. Because of local disputes of their own, Tailboys and Cromwell were already at odds, although the riot in the council chamber had more than merely personal implications. Whereas Tailboys was a protégé and firm supporter of the duke of Suffolk, Cromwell was one of the duke’s chief political opponents, especially now that Suffolk’s position at the head of affairs had been jeopardized by the collapse of his policy in France. Indeed, Cromwell was soon to encourage the Commons to impeach him of treason and other offences. Of course, it must have been in the first session, which ended on 17 Dec., that the Commons had petitioned against Tailboys on Cromwell’s behalf, for their principal demand was that he should appear before the King’s bench on 20 Jan. 1450, two days before Parliament was due to re-assemble. Their petition to the King had also requested, with equal success, that Tailboys, who was already in prison, should be transferred to the Tower; and they had even gone so far as to urge that, following his committal, he should be held in custody there for 12 months, the constable of the Tower or his lieutenant being liable to a massive fine of £1,000 if he either escaped or (unless the judges of the bench agreed) was even released on bail. Another demand on their part was that the trial should proceed ‘by bill of Middlesex’ (as if Tailboys were in the custody of the Marshalsea); and this proposal too, although at first turned down, was eventually accepted as a means of expediting matters. This, in fact, proved to be the case: as early in the second session of Parliament as 6 Feb. (the day before the Commons first impeached Suffolk), a Middlesex jury found against Tailboys, and assessed Cromwell’s damages at £3,000. Although these were subsequently reduced to £2,000 by mutual agreement, Tailboys still remained in prison until 1455.RP, v. 200-1. The case is considered more fully in R. Virgoe, ‘Wm. Tailboys and Lord Cromwell’, Bull. John Rylands Lib. lv. 459-82. It is hard to believe that no comparable case of violent assault occurred during the troubles of the second half of the century, but none is actually mentioned in any Parliament roll of the period.

Less serious than the complaints occasioned by assaults, and yet by no means unimportant, were petitions in which the Commons specially requested freedom from arrest or imprisonment for one of their number, or even for a servant of his. The granting of such requests was obviously advantageous to the MPs concerned, since it temporarily suspended proceedings in any civil actions in which they might currently be involved as defendants, but it was also of course in the interests of the Crown. In strict legal theory, the issue at stake centred upon the freedom of those required by royal summons to attend Parliament to do so without let or hindrance. Indeed, when, in the Parliament of January 1404, the Commons made their first recorded claim to the privilege as a customary protection, they alleged that its frequent neglect was not simply damaging to particular individuals, but was in contempt of the King, and liable to hold up parliamentary business (‘en retardacion des bosoignes de voz Parlementz’).RP, iii. 541. Having defined the privilege as freedom from arrest or imprisonment for debt, account, trespass or breach of contract, and asserted that the members of both Houses, as well as their servants, were all entitled to it, the petition urged that any infringement should result not only in the award of treble damages to a plaintiff, but also in a fine and ransom payable to the King. However, the official answer—‘Y ad sufficient remede en le cas’—while not overtly repudiating the Commons’ claim, can hardly be said to have reinforced the privilege. The Parliament rolls contain no further evidence on the subject until 1429; and even then, when the Commons presented a petition invoking the privilege on behalf of a named individual, which was the first of its kind to be so recorded, official approval was conspicuously limited. The intended beneficiary was one William Larke, a servant of the London MP, William Milrede, who had initially been arrested by officials of the abbot of Westminster’s court of piepowder. However, once Larke’s legal opponent had opted to sue him for trespass in the common pleas instead, he had been removed to the Fleet prison where he still remained after being found guilty by the court. As the petition revealed, all these proceedings had taken place before Parliament met, although the Commons still argued that, since Larke had supposed himself, as an MP’s servant, to be free, ‘par la previlege de vostre Court de Parlement’, of any arrest except for treason, felony or surety of the peace, he should be released until the end of the Parliament. Then, they agreed, justice ought to take its course. As a final request they asked (as previously in 1404) that the privilege in question should extend, during future Parliaments, to Lords and Commons alike, along with their personal servants and other members of their households. Parliament agreed to Larke’s liberation, although not without imposing certain carefully drafted conditions designed to ensure the execution of the judgement of the common bench, including his eventual return to prison pending final settlement. Yet, when it came to the Commons’ request for general recognition of the privilege, the government demurred (Le Roi s’advisera).Ibid. iv. 357-8. Thereafter, a quarter of a century elapsed before the Commons again needed to petition specifically on the subject, this time in very difficult political circumstances, which, given the identity of the Member involved, were inevitably to prove of far greater significance. Indeed, their appeal on behalf of Thomas Thorpe, the Speaker, presented in February 1454, marked one stage in a remarkable cause célèbre.

At the time of his election to the Speakership (at the beginning of the Parliament which held its first session at Reading in March 1453), Thorpe was entering his fourth month as a baron of the Exchequer.PRO List ‘Exchequer Offs.’, 54. Thorpe had obtained the office of third baron in exchange for that of treasurer’s remembrancer which he had occupied since 1444 and surrendered before 7 July 1452. J.S. Roskell, Parl. and Pol. in Late Med. Eng. ii. 212, needs correction here. But the case in question most probably involved him in a personal rather than an official capacity, since he appears either to have been acting on confidential royal orders, or else on behalf of the duke of Somerset, whom he himself warmly supported in his struggle for power against Richard, duke of York. Whoever had given him his instructions, it was almost certainly after the second session of Parliament (which sat at Westminster between 25 Apr. and 2 July 1453), but before 31 Aug. (while Parliament was still in recess), that he went in person to the London inn of Bishop Neville of Durham and there impounded certain of York’s possessions, described much later (in 1485) as ‘harness and apparatus of war’.RP, vi. 294. When on 15 Feb. 1454, York's counsel, in explaining to the Lords everything that had so far happened, briefly referred to the incident (ibid. v. 239), he evidently gave the date, adding later in his statement that it had occurred 'sith the begynning of this present Parliament'. The Parliament roll, however, does not provide any such information, merely recording that the event fell on a Monday in the 31st year of the reign, which ended on 31 Aug. 1453. This reference to the regnal year obviously provides a terminus non post quem. The incident cannot have occurred during the first session of the Parliament (which began and ended at Reading), and is unlikely to have taken place as early as the Easter vacation, or even during the second session, when Thorpe would have been too preoccupied as Speaker, even though he had by then returned to Westminster. It looks, therefore, as if he confiscated York's effects at some point in the second vacation, after 2 July but before the end of August. Whatever the date of this incident, Thorpe was still active as third baron of the Exchequer on 12 Nov. following, when Parliament re-assembled at Reading only to be prorogued at once to 14 Feb. 1454; but before the end of November he had either taken refuge in the London sanctuary of St. Martin le Grand in his own ward of Aldersgate or, having made a grant of all his goods and chattels to the dean of St. Martin’s and others (probably to avoid their attachment), was at any rate seriously thinking of doing so. It was, however, in what remained of the Michaelmas term that York brought an action for trespass against Thorpe in the court of Exchequer (where, as third baron, he could claim the privilege of being tried).York’s counsel, on 15 Feb. 1454, said in the Lords that the duke ‘carried and toke an action by Bille in Michell terme last past agayn the seid Thomas’ (ibid. v. 239). Once a Middlesex jury had found for the duke, the court awarded him damages of £1,000 and costs of £10.J.S. Roskell, Speakers, 254, wrongly supposes that York’s action was heard after 19 Jan. 1454, although a letter written in London on that date stated that ‘Thorpe of th’escheker articuleth fast ayenst the duke of York, but what his articles ben it is yit unknowen’ (Paston Letters ed. Gairdner, i. 264). Pending payment, Thorpe was imprisoned in the Fleet, and had yet to be released when Parliament re-assembled at Westminster on 14 Feb. With Henry VI still afflicted by the mental illness which had struck him down in the previous summer, and Somerset, who had been put in the Tower in November, still imprisoned, York’s political position was, at this time, inherently strong. His hand was further strengthened when, on 13 Feb., he was formally appointed to re-open Parliament on the following day and conduct its proceedings until, with the Council’s assent, he chose to dissolve it.RP, v. 239. With regard to York’s appointment, it should be remembered that he was the oldest adult member of the Plantagenet family proper. Somerset was his senior (by five years), but he was a Beaufort and, in any case, was still in the Tower. Even so, right at the start of the session, the Commons made so bold as to petition that Thorpe, whom they still regarded as their accredited Speaker, should be set at liberty in accordance with their general privilege of freedom from arrest or imprisonment.Ibid. The Commons included in this petition a request for the release of Walter Raleigh, MP for Devon. Why the latter had been imprisoned is not clear: possibly he had helped Thorpe seize York’s goods. York, however, having apparently expected this move, lost no time in countering it; indeed, on the very next day his counsel reviewed the whole case in the Upper House, and, with the intention of justifying this disregard of the Commons’ privilege, gave a detailed account of the legal process which had led to Thorpe’s imprisonment. In so doing, he carefully explained to the Lords that, in this particular instance, the Commons’ claim to privilege was, if not irrelevant, certainly very questionable: although Thorpe had committed the original offence since the beginning of the Parliament, York’s action for trespass had taken place entirely ‘in tyme of vacation of the same Parlement, and not in Parlement tyme’ (thus disposing of any idea that Thorpe’s trial had prevented him from attending the Commons). Having warned the Lords that, if Thorpe were to be released ‘by Privilegge of Parlement’ before satisfying York of his damages and costs, the duke would be left without remedy, his counsel finally requested that Thorpe should remain in custody. The Lords, however, declaring themselves reluctant to ‘empeche or hurt’ the Commons’ privileges, but at the same time anxious that justice should be done according to law, preferred to ask the judges present to decide whether or not Thorpe might be released. This they firmly declined to do. Indeed, the chief justice (Sir John Fortescue*) insisted on their behalf that all matters of parliamentary privilege should be determined by the Lords alone. More constructively, though, he did advise that, however acceptable in principle the privilege in question might be, it should not be invoked in a manner liable to permit of the issue of writs of ‘generall Supersedeas’, which might obstruct the proper administration of the common law in the courts and leave a plaintiff without remedy (a singularly unfortunate consequence of any ruling by ‘this high Court of Parlement, that ministreth all Justice and equitee’). Finally, he noted that the release of any MP from prison to attend Parliament, would have to be strictly conditional upon his readiness to appoint an attorney to represent him in court. This purely legal advice evidently sufficed to enable the Lords to reach a decision on the spot. For the Lords then ‘thorowly’ agreed that Thorpe should stay in prison, despite the Commons’ privilege; that Walter Moyle†, a royal serjeant-at-law, should be sent to the Lower House to explain the legal reasons for their ruling; and that Bishop Bourgchier of Ely should, at the same time, convey their demand for the prompt election of a fresh Speaker. Other lords ‘in notable nombre’ made up this deputation, perhaps to help appease the Commons or (more probably) to overawe them. In any event, the latter, making a virtue of necessity, did as required and, on the following day (16 Feb.), sent a deputation of their own to inform the Lords of the election of Sir Thomas Charlton (shire knight for Middlesex), whom the chancellor, Archbishop Kemp, accepted forthwith.Ibid. 239-40. Precisely when Thorpe left the Fleet prison is not known, but it was probably before the end of this last session of Parliament. If he was deprived of his office as a baron of the Exchequer, it was only temporarily, and in July following he came to some sort of accommodation with York (for details, see J.S. Roskell, Parl. and Pol. in Late Med. Eng. ii. 217).

Whereas the parliamentary privilege of freedom from arrest and imprisonment had thus far given rise to two special requests on the part of the Commons, one (in 1429) successful and the other (in 1454) doomed to failure, during the next quarter of a century they were to petition for the privilege on three separate occasions (1460, 1472 and 1478), each time successfully, on behalf of a parliamentary burgess. The first of these appeals followed the detention of Walter Clerk, a lawyer of Lincoln’s Inn who had been arrested at the suit of the Crown while he was representing Chippenham, and imprisoned, first in the Counter of London and subsequently in the Fleet. He had, meanwhile, been condemned in the court of Exchequer to a fine of £40 payable to the King, as well as to fines of £20 and 20 marks arising out of two separate private actions, respectively for maintenance and trespass. At the time of his arrest, Parliament was in session. And this was the case too when, in 1472, William Hide esquire, who then happened to be sitting for Chippenham also, was imprisoned in Newgate, pending satisfaction of two Londoners, each of whom had won lawsuits against him for debt. In both instances, the Commons, when requesting the discharge of these burgesses so that they might attend to their parliamentary duties, clearly understood that release was not to prejudice the execution of any judgement at law once Parliament was dissolved.RP, v. 374-5; vi. 160-1. After the Parliament of 1472-5, Hide brought actions in Chancery for wrongful arrest against John Marshall, the London mercer who was one of his creditors, and the sheriffs of London (HP ed. Wedgwood 1439-1509, Biogs. 490). It was in this particular regard, however, that an appeal made by the Commons of 1478 on behalf of John Attwill, a cloth merchant serving as MP for Exeter, differed from the previous ones concerning the Chippenham burgesses. In the preamble to this petition they were careful to recall that all their Members had, from time out of mind, been privileged not to be impleaded of any personal action, or attached in person or goods, not only when coming to and attending Parliament, but also when returning home—a privilege which, they were assuming, had been ratified, along with all their other liberties and franchises, by royal authority at the beginning of the Parliament. The petition itself related how another Exeter merchant, named John Taylor, had laid ‘feyned enformations’ in the court of Exchequer against Attwill, who, daily attending Parliament and thus failing to answer the charges, had all unknowingly been condemned to pay £160. Moreover, in pursuance of the judgement, writs of execution had been issued to various sheriffs, leaving Attwill afraid that, instead of enjoying the privilege of his ‘free departyng from this present Parlement to his home’, he himself, his horses and other personal possessions might well be attached. The Commons asked, therefore, that none of the writs of execution so far issued should cause harm either to him or to his heirs and executors; and that, by the same ordinance, the chief baron of the Exchequer should be empowered to grant whatever writs of supersedeas, addressed to sheriffs, might subsequently be needed, always reserving Taylor’s right to renew his prosecution once Parliament had been dissolved. This request, like those of 1460 and 1472, received the royal assent.RP, vi. 191-2.

In the course of the half-century between 1429 and 1478, the Commons had but rarely invoked by petition the privilege of freedom from arrest and imprisonment, so seldom, in fact, as to pose the question whether the privilege necessarily had depended for its allowance on such special appeals, or was in more frequent use, possibly even common use. In this connexion, it is worth remembering Chief Justice Fortescue’s advice to the Lords, in 1454, on the question of Speaker Thorpe’s release from prison, since he had emphasized that, although there could be ‘no generall Supersedeas brought to surcease of all processes ... ther be many and diverse Supersedeas of [deriving from] Privelegge of Parlement brought in to the Courtes’.Ibid. v. 240. We may reasonably assume, therefore, that in occasionally asking for this particular privilege to be allowed the Commons were only promoting some ‘special petition’ made to them in the first place by the Member concerned. Certainly, enough MPs were involved as defendants in the courts at Westminster (as their biographies amply attest), to have benefited from the privilege. But however valuable it may have been for individuals, freedom from arrest or imprisonment was especially important in expediting the general business of Parliament, by ensuring the constant attendance of Members. That attendance in the Lower House remained a matter of concern, no less to the Crown than to the Commons, was eventually made abundantly clear in a statute passed in Henry VIII’s third Parliament in 1515, specifically to discourage the premature departure from Parliament of Members of the Lower House. It laid down that anyone wishing to leave before the end of the session should first obtain the permission of the Speaker and his fellows; that all such licences should be formally recorded ‘in the booke of the Clerke of the Parlement appoynted ... for the Common House’; and that any MP who left or was absent without licence should lose all his wages.Statutes, iii. 134. In this connexion, attention may be drawn to a common petition which was presented in the second session of the Parliament of 1491-2 requesting the repeal of an Act passed in the first. This Act would have curtailed the jurisdiction of the county palatine of Lancaster by excluding from forfeiture the goods possessed elsewhere by outsiders, who had been impleaded in the county for serious crimes and duly condemned to outlawry. As the petition made plain, it also threatened to deprive inhabitants of the county palatine of their remedy; and stress was laid upon the fact that it had been passed not only 'at the sute of a particular persoune, for this particular cause', but in the absence pf the 'Knyghts of Shyres, and other noble persones of the same Countie'. By the advice and assent of the Lords and Commons, Henry VII revoked the Act on 8 Feb. 1492 (RP, vi. 456-7).

Although, in Henry IV’s first Parliament, the Commons referred (in relation to Haxey’s case of 1397) to their ‘customs’ and ‘liberties’ in the plural, as, indeed, the Speaker was subsequently to do from time to time, these other, additional privileges were neither specified nor defined.RP, iii. 434 (1397); iii. 455 (1401); v. 374 (1460), 572 (1467). Perhaps freedom of speech was assumed to be among them. The peers had always been entitled to it as of right;It is here worth noting the complaint of Richard, earl of Arundel, made in the Parliament of 1394, about Richard II’s intimate relations with his uncle, John of Gaunt. One of the earl’s grudges was that Lancaster often spoke in Parliaments (as well as in the Council) such ‘grosses paroles et aspres’ that he and others did not dare to say in full what they had intended (ibid. iii. 313). The King denied the charges, and Arundel was made to apologize. and, being occasionally recorded as questioned ‘severally’ (as in 1399, when one by one they assented to the conditions of Richard II’s imprisonment), such a privilege could hardly have been denied them.Ibid. 426. When, in a great council composed of lords and commoners, Henry IV asked whether he should invade France and Scotland, nine lords objected to war being declared without the assent of Parliament, and eight others opposed it because of the cost (PPC,143-4). The medieval Commons, on the other hand, never directly requested the privilege (or if they did so, it was not recorded). And not even the Speaker, for whom it was an essential requirement when orally informing the King and the Lords about the Commons’ complaints and demands, enjoyed it untrammelled. The protestation he made on his appointment, asking that any departure from what the Commons had authorized him to say might be subject to their correction or amendment, and that remarks derogatory or displeasing to the King or (less frequently) the Lords be overlooked, afforded both him and the Commons some broad measure of protection. Yet, if this sort of apology in advance was needed by the Speaker, the Commons generally must have had to exercise discretion when, on their own, they discussed the ‘charge’ given to them at the opening of Parliament. For as well as usually including the never welcome demand for taxation, this also invited the submission of grievances, such as complaints about maladministration or corruption on the part of royal officials at all levels, and made possible criticism of governmental policy touching highly important matters of State. It is in the nature of grievance and complaint that, however cool and mannerly its ultimate expression, its formulation should give vent to plain-speaking. Plain-speaking was a means whereby the Commons were able to assert their independence, as the Parliament rolls so often reveal. For example, the impeachments of 1376 and 1388, involving the incrimination of high officials of the King’s household, and that of 1386, charging the chancellor (the earl of Suffolk) with misgovernment and peculation, must have emerged in turbulent sessions of the Lower House in which even the King suffered disrespect, if not worse. In point of fact, during the frequent Parliaments of Richard II’s minority, the Commons were often highly critical of the government, especially on the score of finance; and, in the autumn and winter of 1382-3, they quarrelled with the Lords over the destination of overseas expeditions (to either Flanders or Spain). Then in Henry IV’s reign, as we have seen, hardly a Parliament went by without more than one minor political crisis for which the Commons were largely responsible; and in some apparently tumultuous sessions (notably in the two Parliaments of 1404 and those of 1406, 1410 and 1411), they were strongly opposed to the King, and on occasion (as in 1407) seriously at odds with the Lords as well. Indeed, from time to time the Commons had reason to believe that Henry felt them to be actively hostile, and thus in danger of incurring his severe displeasure. Tale-bearing, too, could pose a problem, not least because some of the self-seekers responsible for making premature and unauthorized reports to the King were actually MPs, and their reports so ominous as to leave him extremely discontented with the conduct of the Lower House in general. This was certainly the case in 1401, 1404 and 1406; and on the last of these occasions the Commons were sufficiently perturbed to ask the King to express his confidence in their loyalty.RP, iii. 456, 523, 569, 658. Nor did their behaviour improve in the Parliaments of 1410 and 1411: on the dissolution of the latter, during which they had driven Henry firmly to object to their infringement of his prerogatives, they had good reason to join the Lords in requesting him to acknowledge the loyalty of everyone who had attended the two assemblies. Conversely, although Henry V met with a somewhat tart reception from the Commons in his first Parliament, he was soon to take their measure. Even so, the Parliaments of the preceding reign had witnessed so many ill-tempered exchanges between King and Commons as to suggest that if the latter did not as yet enjoy a formal privilege of free speech, they still managed to ‘discharge their conscience’ quite well without it.

Curiously, not one single medieval Parliament roll refers to the privilege of free speech as such, and on the solitary occasion when the privilege was actually claimed, it was not through a request initiated by the Commons, but in a private bill addressed and presented to them, during the Parliament of 1455-6. Presumably in the first session of July 1455, Thomas Young, a lawyer who for the past 20 years had all but once (in 1453) represented Bristol, complained that, despite exemplary behaviour in earlier Parliaments, he had, soon after his last previous appearance in May 1451, been arrested and then summarily imprisoned in the Tower.Ibid. v. 337. Young had been committed to the Tower on 11 June 1451 (HP ed. Wedgwood 1439-1509, Biogs.981). This was after the dissolution of Parliament (which occurred in the last week of May), so there was no question of his being able to invoke the Commons’ privilege of freedom from arrest or imprisonment. When precisely he was released is not known. This, his petition stated, was on account of ‘untrewe sinistre reports’ made to Henry VI regarding ‘matiers by him shewed in the Hous accustumed for the Comyns’; and it went on to say that, during the long time he had spent in the Tower, he had not only suffered bodily discomfort, but had incurred financial loss amounting to 1,000 marks ‘and muche more’ for which he now requested compensation. The case assumes a wider political interest because of the controversial proposal Young had made in the Commons in 1451 for the recognition of Richard, duke of York, as heir to the throne (Queen Margaret being then still childless). Moreover, less than two months before the Parliament of 1455 began, the Yorkists had routed the Lancastrians at the battle of St. Albans, and so were now in control of affairs, thus presenting Young with an ideal opportunity to seek redress.Regarding the proposal that York should be recognized as heir to the throne, a chronicler wrote that ‘alle the comoens were aggreed, and rightfully electe hym as heire apparent of England, [they] nought to procede in any other mattiers till that were graunted by the lordes, whereto the Kyng and lordes wold not consent nor graunte, but anon brake up the parliamente’ (Chron. London (1827), 137). Its institutional significance, on the other hand, lies in the theory by which he justified his claim, namely that all the Commons were, according to his petition, ‘by the olde liberte and fredom of the Comyns of this Lande’, whom they represented, entitled to ‘theire fredom to speke and sey in the Hous of their assemble, as to theym is thought convenyent or reasonable, withoute eny maner chalange, charge or punycion therefore to be leyde to theym in eny wyse’. All that is known of the Commons’ attitude to the petition is that they sent it up to the Lords (‘soit baille as Seigneurs’), thus indicating their approval; and since Young’s claim for remedy was finally left to the discretion of the King’s Council, the Lords too must have found it reasonable. However, the question then really at issue was that of Young’s compensation; and it does not follow that because some measure of provision for this was agreed, the claim for the privilege of free speech, which was subsidiary, met with general acceptance. Indeed, although the Commons themselves can hardly have doubted the validity of such a claim, it had still originated with Young, not them. And, as Sir John Neale once remarked, it was ‘a claim unique in the Middle Ages’.‘The Commons’ Privilege of Free Speech in Parliament’, Tudor Studies presented to Pollard ed. Seton-Watson, 264-5. Yet, however incomplete the evidence associated with its reception may be, Young’s petition was at any rate a formal document which was still extant two centuries ago (in about 1783), when it was printed in the Rotuli Parliamentorum.

Unfortunately, when the Commons’ privilege of free speech seems next to have been defined and then significantly developed, we are obliged to rely not upon a formal record or document which refers to it at the time, but a literary source, The Lyfe of Sir Thomas Moore Knighte, written by William Roper†, More’s son-in-law.W. Roper, Life of More (EETS, cxcvii). The earliest mss of the Lyfe are of late 16th century date; and it did not appear in print until 1626. For details of Roper’s career, see House of Commons, 1509-58 ed. Bindoff, iii. 215-17. The event in question undoubtedly took place on 18 Apr. 1523 when, three days after the start of Henry VIII’s fourth Parliament, More’s election as Speaker was announced in the Upper House, and he, after the refusal of his preliminary request to be discharged, made the Speaker’s traditional protestation, which was accepted. According to The Lyfe, he then asked, most respectfully, that Henry would allow the Commons freedom of speech in their own deliberations. According to Roper, his request took this form:

It may therefore like your most aboundant grace, our most benigne and godly kinge, to give all your comons heare assembled your most gracious licens and pardon, freely, withoute doubte of your dreadful displeasure, every man to discharge his consciens, and boldlye in every thinge incident among [us] to declare his advise; and whatsoever happen any man to say, [that] it may like your noble maiestye, of your inestimable goodnes, to take all in goode parte, interpreting every mans wordes, howe unconingly soever they be couched, to proceed yeat of good zeale towards the profit of your realme and honor of your royall persone, the prosperous estate and preservation whereof, most excellent soveraigne, is the thinge which we all, your most loving subiectes, according to the most bounden duty of our naturall alleageans, moste highlye desire and pray for.Roper, 14-16.

This is a remarkably eloquent passage, but one which has sometimes perhaps too readily been accepted as an exact, literal rendering of More’s request for free speech.As, for example, by Neale (Tudor Studies, 267) who wrote, ‘Roper seems to have had by him a draft of the speech which More made as Speaker in 1523, and this he quotes verbatim’; by T.F.T. Plucknett in T.P. Taswell-Langmead, Eng. Const. Hist. (10th edn. 1946), 277; and by G.R. Elton, Eng. under Tudors, 268, where he stated ‘The first reliable instance of the genuine privilege — the right of members to speak freely in the house — seems to date from Sir Thomas More’s speakership in 1523’. When considering the question of authenticity, it is important to remember that The Lyfe was not written by Roper until some 20 years after More’s execution in 1535, and certainly not before Mary’s reign; and that, in his introduction to the text of this particular speech, he actually describes it as being not now extant.Roper, 12. The original text of More’s request had evidently been destroyed or lost. But no doubt Roper had previously made a copy of it, and was now using that. However this may be, the very words of the request, so mellifluous are they, and of course its substance, can confidently be attributed to Sir Thomas. One aspect of the request for freedom of speech made in 1523 which merits particular emphasis is that it was presented formally by the Speaker on behalf of the Commons in the most public manner possible, not in support of a private petition submitted by an ordinary Member of the Lower House in his own personal interest, as in the case of Thomas Young. In this context it is worth noting also Roper’s account of the second of two visits subsequently paid by the lord chancellor, Cardinal Wolsey, to the Commons, in order to overcome their resistance to the King’s demand for the whole of a huge grant of taxation. On this occasion, the Members, far from exercising their privilege of free speech, preferred to answer him with ‘a mervailous, obstinate silens’ (which, in the circumstances, was all the more eloquent). Here Roper refers to yet another important privilege of the Commons, albeit of a more general nature: when More was then told by the cardinal to answer for them as their Speaker, he excused their silence on the ground that for anyone of them to have answered would not only have been inexpedient, but also contrary to their ancient liberty of debating in private, adding, for good measure, that he himself could not respond without further instruction from them. Neither More’s speech to the King nor his exchange with Wolsey are noted on the Parliament roll, which simply records his protestation.Ibid. 16-19.

Whether the Parliament of 1523 had witnessed an enlargement of the Commons’ liberty of freedom of speech, or no more than its re-assertion, it was not until later still in Henry VIII’s reign that a formal concession of the privilege was, for the first time ever, registered in an official parliamentary record, namely, in the Lords Journal, for the opening session of the Parliament of 1542-4.Lords Journals, i. 167. On 20 Jan. 1542 Sir Thomas Moyle made his oration before the King after his acceptance as Speaker, and asked that anyone (‘quivis’) who spoke according to the dictate of his conscience (‘quid Animi haberet’), and by way of counsel, should do so freely and with impunity. In reply, the chancellor (Sir Thomas Audley, who had himself been the first Speaker of the Reformation Parliament in 1529-33), confirmed that the King would not deny true liberty of speech (‘honestam dicendi libertatem’).Speaker Moyle’s additional request for freedom of access to the King was also allowed, but on the understanding that when the Commons needed to inform Henry of very difficult matters (‘perplexae cause’), they should do so through a few men of discretion, not ‘per universam multitudinem’, that is not all going together in a body. Although no further reference to the Speaker’s protestation occurs until the Lords Journal for Mary’s last Parliament records it in 1558, but contains no specific mention of free speech, a request for this privilege had previously been made in the Queen’s second Parliament (1554). It was renewed in Elizabeth I’s first Parliament of 1559, after which such requests were always recorded as a matter of course.Neale, 267. Clearly, however, the Commons had still ‘to translate the claim into the peaceful enjoyment of a privilege’; and under Elizabeth and well into Stuart times, this privilege remained precarious and, as actually exercised, full of problems for both Crown and Commons.Taswell-Langmead, 278. For a brief discussion of the problems arising from what Elizabeth I, James I and Charles I considered abuses of the privilege, see J.S. Roskell, Parl. and Pol. in Late Med. Eng. i. 461-4. In fact, not until 1689, with the Bill of Rights, did ‘freedome of speech’ become an assured privilege, protection being then guaranteed by the proviso that any ensuing disputes would be reserved for Parliament to settle.Taswell-Langmead, 505.

The allowance to the Commons of the services of certain crown employees was not, of course, a privilege of the kind discussed above, but a royal concession which in effect amounted to a privilege. It is especially notable that by 1363 (even before they were first allowed an elected Speaker), they had been assigned a particular Chancery clerk called their ‘common clerk’ (sub-clericus parliamenti), whose duty was doubtless to help with the drafting of common petitions and subsidy indentures. Eventually, a century later, the Commons had sufficiently strengthened their position to merit the appointment of a royal serjeant-at-arms, who normally waited upon the King, to attend upon them when Parliament was in session, and especially upon the Speaker. This concession apparently originated with Edward IV, at the very outset of his reign and in anticipation of his first Parliament. Enjoying a fee of 1s. a day and a grant of the livery of the suit of an esquire of the Household, John Bury is the first known of four such serjeants-at-arms who served the Commons and the Speaker in Yorkist Parliaments; and at the beginning of Henry VII’s reign the office was continued with the appointment of John Harper, yeoman and harbinger of the Household. When Bury was exempted from the Act of Resumption of 1467, and Harper from that of 1485, both were said to have been ‘chosen’ by the Commons themselves.RP, v. 574; vi. 339, 344. This, however, can hardly have meant more than a ready acceptance by the Commons of a straightforward royal appointment in each case. For Parliament was not actually sitting when first Bury and then Harper were granted the office, each in letters patent which passed the great seal. Bury’s letters, warranted ‘by word of mouth’ of Edward IV, were dated 16 July 1461, several months before the first Yorkist Parliament met; and Harper’s 28 Sept. 1485, pending the assembly of the first Parliament of Henry VII’s reign in November. The fact that Maurice Gethyn, Bury’s immediate successor, was nominated by Edward IV in letters patent of 29 July 1471 (again therefore between Parliaments) expressly ‘for his good service in attending upon the King beyond seas and in all his conflicts and journeys in England’, and John Harper by Henry VII in recognition of the services he had rendered the King in Brittany and France and at the battle of Bosworth, surely connotes royal nomination.CPR, 1461-7, p. 125; 1467-77, p. 265; 1485-94, p. 6. But however the appointments of royal serjeants-at-arms serving the Lower House were initiated, the establishment of such an office was bound, if only symbolically, to enhance the self-respect of the Commons, and, especially, to exalt and protect the personal dignity of the Speaker.