514 Constitutional History. [chap.
meddle. But some of the leading and most illustrative instances
of the prescription are found in medieval records. Some of
these have heen noticed already in relation to freedom of speech
and debate. In 1290 Edward I laid down the rule that it was
not becoming for a member of the king’s council to be distrained
Writsof in time of parliament1. In 1314 Edward II issued two general
supersedeas, wr^g guperse<Jing during the session all writs of taking assizes,
juries, and certificates touching any member of either house 2 ;
and in 1315 he marked the arrest of the prior of Malton on his
way from parliament as an act done in contempt of the king, in
prejudice of the crown, in damage of the prior and against the
king's peace.
Security of The immunity was held to extend to the servants of members,
members' , . _ . 1 7
servants. and a petition of the commons in 1404 declares that the custom
of the realm protects them as well as their masters from arrest
and imprisonment, although they pray that such custom may be
established by statute. The king’s answer is, that there is
sufficient remedy in such cases, which seems to amount to a
refusal of the petition 3.
Meansof The recognition of the right, however ancient and full the
thoθrɪght admission may have been, was a very different thing from the
power of enforcing it ; and the house of commons seems to have
had no means of doing this but by petition, or by obtaining
a writ of supersedeas. Besides the case of Thorpe, already
mentioned, the most prominent cases are those of William Lark
in 1429 4, and Walter Clerk, burgess for Chippenham, in 14605.
Lark⅛ саде. Lark was the servant of William Milrede, member for London,
arrd had been arrested at the suit of Margery Janyns, committed
to the Eleet prison by the court of King’s Bench, and there
detained for damages. The commons petitioned that, in con-
sideration of the privilege of members securing them against
arrest except for treason, felony, or breach of peace, Lark
might be liberated during the session of parliament ; and that
l See Hatsell, Precedents, ɪ. 3 ; Coke, 4th Inst. p. 24 ; Prynne, Reg. iv.
820, &c.
2 See Rot. Part. ɪ. 449, 450 ; Hatsell, Precedents, ɪ. 6, 7.
3 Rot. Pari. iii. 541 ; Hatsell, Precedents, i. 13.
1 Rot. Part. iv. 357. 3 Ibid. v. 374.
XX.] Privileges of Member». 515
the custom claimed for the commons might be established by
statute. The king rejected the last petition, but ordered the
release of Lark, securing to Margery her rights after the close of
the session1. In the case of Clerk, who had been arrested for CaseofWai.
a fine to the king and damages to two private suitors, and
afterwards imprisoned and outlawed, the commons petitioned
that the chancellor might order his release by a writ to the
warden of the Fleet, saving the rights of the parties after the
dissolution. This the king granted2. These however are only
two out of a large number of like precedents. Another famous Atwyiι⅛
case occurred in 1477 ; that of John Atwyll1 member for °asθ'
Exeter, against whom several writs of arrest had been obtained
at the instance of a private litigant. The commons petitioned
that writs of supersedeas should be issued in each case, saving
the rights of the suitor after the close of the session. In this
case it is observed that, although the commons cla’m a right to
the suspension of the writ of execution, they do not insist on
redress for the impleading of a member during the session as a
breach of privilege3. The condition of affairs at the end of the statement
reign of Edward IV is thus stated :—‘ When a member or his at the dose
servant has been imprisoned, the house of commons have never ° thβpeιlod,
proceeded to deliver such person out of custody by virtue of
their own authority ; but, if the member has been in execution,
have applied for an act of parliament to enable the chancellor to
issue his writ for his release, or, if the party was confined only
on mesne process, he has been delivered by his writ of privilege
to which he was entitled at common law 4∙, The privilege was
in no case extended to imprisonment for treason, felony, or for
security of the peace : it was loosely allowed to the servants in
attendance on members, and it was claimed for a period of time
preceding and following as ell as during the session. The
length of this period was variously stated, and has not been
legally decided. The general I elief or tradition has established
the rule of forty days before and after each session.
ɪ Hatsell, Precedents, i. 17-22. 2 ɪjɔid. i. 34-36.
3 Rot. Parl. vi. 191 ; Hatsell, Precedents, i. 48-50.
4 Hatsell, Precedents, i. 53.
L 1 2