Arrest of
Thorpe the
speaker.
Discussion
of privilege.
The ques-
tion shelved.
5 io Constitutional History. [chap.
Thorpe, the speaker of the parliament of 1453; who in con-
sequence of his opposition to the duke of York was prosecuted
on a private pretext, cast for damages on the verdict of a jury,
and sent to the Fleet during a prorogation of parliament. The
imprisonment of Thorpe, like that of Peter de la Mare, was the
act of a faction, legally carried into execution, but primarily
intended to silence a dangerous enemy. It differed from the
former case as occurring during the actual existence of parlia-
ment and not after its close. Thorpe was a member, and
speaker at the time of his imprisonment, and the privilege of
members was directly touched in two points, freedom of speech
and freedom from arrest. When the parliament met after
prorogation the commons demanded their speaker; they sent
to the king and the lords requesting that they might have and
enjoy their ancient and accustomed privilege, and in accordance
therewith that Thomas Thorpe and Walter Eayle, who were
then in prison, might be set free for the dispatch of the business
of parliament. The counsel of the duke appeared before the
lords to oppose the application ; he gave his account of the
circumstances of the arrest, and urged moreover that the arrest
had been made in vacation. The lords, not intending to ‘ im-
peach or hurt the liberties and privileges of the commons,’
asked the opinion of the justices, who said ζ that they ought
not to ansiver to that question, for it hath not been used afore-
time that the justices should in anywise determine the privilege
of this high court of parliament ; for it is so high and so mighty
in its nature that it may make law, and that that is law it
may make no law, and the determination and knowledge of
that privilege belongeth to the lords of the parliament and not
to the justices.’ They proceeded however to state that there
was no form of ‘ supersedeas ’ that could stop all processes
against privileged members, but that the custom was, if a
member were arrested for any less cause than treason, felony,
breach of the peace, and sentence of parliament, he should
make his attorney and be released to attend in parliament.
The lords declined to suggest this course ; they determined
that Thorpe should remain in prison; and the commons were
XX.] Freedom from Arrest. ʒɪɪ
ordered in the king’s name to elect a new speaker. The case
was treated as a simple case of arrest, political reasons were
kept out of sight, and the commons found that they had no
remedy1.
Besides these instances of arrest of the speaker, two other Arrest of
. _ jit particular
famous cases are found, in which a similar summary method offenders,
was adopted for the punishment of other offenders : the case of
Haxey in 1397 and that of Yonge in 1455. The former has Haxey’s
been frequently adverted to already. He had brought into the
house of commons a bill which reflected censure on the king and
court ; that bill had come to the king’s knowledge ; he de-
manded, and the commons with a humble apology gave up, the
name of the proposer ; how the bill got into the house we do not
know, for Haxey was a clergyman, not a member of the house,
and although, if he were a clerical proctor, he might have
demanded the same privilege as a member, no such claim was
raised for him. He was imprisoned, condemned, claimed by
the archbishop as a clerk, and pardoned. In this case there is
a direct interference of the Idng with freedom of debate in the
commons apart from the question of right of freedom from arrest.
The commons did not show, and probably did not see that
they ought to have shown, an independent spirit on the occasion.
The case of Thomas Yonge or Young, the member for Bristol, ⅛rf
who proposed in the parliament of 1451 that the duke of Yonge.
York should be declared heir to the crown, is not free from
obscurities of its own2. In the records of parliament it
appears oιdy in a petition presented by him to the commons in
1455, in which he reminds them of their right that all members
‘ ought to have their freedom to speak and say in the house of
their assembly as to them is thought convenient or reasonable
without any manner challenge, charge, or punition therefore
to be laid to them in anywise.’ Notwithstanding his privilege
he had, in consequence of untrue reports to the king, been im-
prisoned in the Tower, and endamaged to the amount of a
1 See above, pp. 169-171; Bot. Parl. v. 227, 240, 295, &c. ; Hatsell’s
Precedents, i. 31-34.
3 See above, pp. 163, 164, 179 ; Rot. Part. v. 337.