Thorpe, it seems, had only a general supersedeas for all actions, and the opinion of the judges being taken, that was held ill; he should have had a particular writ of supersedeas for each action. Thus a technical ground, however narrow, was laid for this tyranical proceeding. This explanation, moreover, is not inconsistent with the account afforded by Hakewill, a who says that Thorpe was arrested in vacation, and lays it down as the doctrine of his time, that parliament doth not give privilege tempore vacationis sed sedente curia, only. So Elsynge b is reduced to the supposition that the judgment proceeded on the ground that the expression" condempnation had before the parliament," is to be understood of such arrests as happen in the interval between the adjournment and the access. These considerations, if they do not remove all the suspicion that attaches to that case, will in some degree serve to explain the proceedings on it, and the judgment eventually given by the parliament. The lords, adopting the advice of the judges, disallow the privilege claimed, because Thorpe had only a general supersedeas, and not a particular supersedeas in that suit; and because the condemnation was "before the parliament began," being during a prorogation, not an adjournment. *

Clarke's case, 39 Hen. 6, and Hyde's case, 14 Ed. 4, resemble Lark's case in many particulars, all three members being taken in execution, and it being thought necessary, in each case respectively, to have an act of parliament to save to the plaintiff a new execution after the time of privilege: and they vary only, in its having been thought necessary or expedient in the latter cases to have the chancellor, sheriffs, and warden of the fleet indemnified; "Which," says Hatsell, "induces me to suspect that the right such persons had by law to writs of privilege and habeas corpus for their delivery, did not extend to cases of persons imprisoned under a writ of execution."

Two years previous to the last mentioned case of Hyde, occurred the case of Donne v. Walsh, c copied by Prynne from the records in the court of exchequer. It was a demurrer to a plea of writ of privilege. The writ recited an entire privilege of the lords a Hakewill, 63. b Elsynge, 247.

c 4 Register, 752.

It appears by the rolls of parliament, that it was then prorogued.

and commons not to be imprisoned or impleaded during the time of parliament. The barons, with the advice of the judges of both the other courts, formally declare their opinion that persons entitled to privilege, "ratione alicujus transgressionis, debiti, computi, conventionis, contractus conjuscunque, dum sic in parliamento Regis morentur, cadi aut arrestari non debent; sed nullum hujusmodi consuetudinem fore, quod quin implacitari debent, prout in brevi illo suponitur."

There is a similar decision of the same court of exchequer in Ryver v. Cosins, the same year, in which the barons repeated verbatim their opinion in Walsh v. Donne; yet, in Hyde's case a the king's bench remanded Mr. Hyde to Newgate, though arrested in a civil action; and the house of commons, in a subsequent case, renewed their claim to exemption from being impleaded. This was in Atwyll's case, 17 Ed. 4, b in which, however, the plaintiff's execution was expressly saved to him after the end of the parliament; which negatives in effect, this claim of exemption; "The inference c is strong. The act of parliament did allow the foundation, and proceeding, and judgment against Atwyll a member of parliament, during the parliament, though it discharged the execution."

The next claim, in Sadcliff's case, 1 Hen. 7, omits the privilege of not being impleaded in personal actions, which had been so often disallowed.

The last case which relates to a claim of privilege "not to be impleaded," is of much later date, 14 Car. 2, and is only stated here by anticipation, to prevent the necessity of a recurrence to the subject. In the case of Benyon v. Evelyn, 14 Car. 2, Sir Orlando Bridegman decided that the privilege of parliament which exempted members from arrest, did not prevent an original being sued out or prosecuted against a member during the sitting of parliament. This is the case in which Lord C. J. Bridgeman gave so learned and elaborate a judgment, worthy of his common law reputation; obscured, not extinguished, in chancery. It was an action of assumpsit for goods sold and delivered to a member of parliament; the defendant pleaded the statute of limitations: the

a 12 Ed. 4, Rot. 7.

b 17 Ed. 4, No. 35.

c Sir O. Bridgeman's judgment in Benyon v. Evelyn.

plaintiff replied that he could not sue the defendant sooner, because he was a member of parliament and privileged from suits, the defendant denied that position, and said that though members of parliament cannot be arrested, they may be sued. The learned judge considered himself bound to decide the question of privilege thus brought before him, lamenting the necessity. He says, "When in a common action, the privilege of parliament doth come to be part of the plea or justification, it is of necessity that the privilege, whether there be such, and what the extent of it is, come also into consideration. For as in the register it is said of the ecclesiastical court, which is inferior to the common law, if a common law point come in question there, non est consonum rationi, quod cognitio accessarii in cousa christianitatis impediatur, ubi cognitio cause principalis ad forum ecclesiasticum noscitur pertinere ; so I may say here, the privilege of parliament coming incidentally as part of the case, as a consequent, must, in this particular case, be also debated here." The decision was against the privilege claimed that is, that a member had no exemption from being sued; though such a privilege had been frequently claimed.

Hitherto it has been seen, that when a member or his servant has been imprisoned, the house of commons have never 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, which he was entitled to at common law. The truth was, a says Hallam, that with a right pretty clearly recognized, as is admitted by the judges in Thorpe's case, the house of commons had no regular compulsory process at their command.

In 34 Hen. 8, Ferrer's case introduced a new mode of proceeding in this particular. Though in custody in execution for “a condemnation had before the parliament," the member arrested was delivered, "not in this case, by virtue of an act of parliament -not by any writ of privilege, but by the serjeant-at-arms, without any other warrant than his mace;" "Albeit the lord chancellor offered them to grant a writ." Secondly, the parties who opposed

a Middle Ages, vol. 2, c. 8.

his delivery in this novel and extraordinary manner, (as it then was,) were imprisoned by the house of commons, some in the tower, some in Newgate. Thirdly, the creditor himself, who procured the arrest, was also committed for his contempt of the privilege of parliament. As the matter is condensed in a sentence of Sir O. Bridgeman's judgment, "This case doth not only determine the law for the privilege against the execution, but also that the party ought to be discharged without writ, when the serjeant-at-arms comes for him." There was however, no slight aggravation in this case, in the violent and contemptuous manner in which the sheriffs and their officers treated the serjeant-at-arms bearing the ensign of his official authority, the mace; and there was another fact which may, at least in Hatsell's opinion, serve to explain the measure here adopted, and the doctrines now for the first time laid down, as to the extent of the privileges of the house of commons. Ferrers was an immediate servant of the king; so that the allowance of the privilege in this case was as well in respect of the claim of the king for his servant, as of the claim of the house for its members. Add to this, he was only a surety, and was arrested on his way to attend the parliament. An inferior court would liberate a person arrested under similar circumstances in his progress to attend the court in obedience to a lawful summons. When the vehement displeasure of the house had at length subsided, they acted equitably as usual, saving the plaintiff's execution against the principal debtor, (who would have been discharged if the taking of Ferrers were lawful,) and discharging Ferrers himself by a majority of only fourteen, and after a long debate of nine or ten days.

Lawyers, it is to be expected, would scarcely admit such innovations without finding room for difficulty and scruples. They would naturally feel some hesitation in saying that the sheriffs ought to have discharged the prisoner on their own responsibility, on the mere order of the serjeant bearing his mace. They would consider that if that should not be deemed a good authority at law for the discharge, the sheriffs would have made themselves liable for the debt. They might retain, too, for a time, their forner opinion, that privilege did not extend to arrest in execution on a judgment had before the time of privilege. Accordingly, we

find that afterwards, in 6 Queen Eliz., a Dyer, when chief justice, said, "That if a man is condemned in debt or trespass, and is elected a member of parliament, and then is taken in execution, he cannot have the privilege of parliament; and so it was held by the sages of the law in the case of Ferrers, in the time of Hen. 8, "Et coment que le privelege a ceo temps fuit a luy allow, ceo fuit minus just." Dyer b himself reports a case which occurred within two or three years after Ferrer's case, in 36 and 37 Hen. 8, videlicet:

Trewynnard's case, who c being a burgess of parliament, and taken in execution, and in custody at the commencement of the session on a judgment entered up during a very long prorogation, was freed, not by the mace or serjeant-at-arms, but by a writ of supersedeas of privilege; which writ was a security to the sheriffs against an action for an escape, whether the privilege were allowable or not. Such an action was brought, but no judgment given. There is also a peculiarity in the writ in this (Trewynnard's) case, hat the claim of privilege is for the first time extended, in point of duration, beyond the time of members going to parliament, residing there, or returning home-to persons venientes seu venire intendentes.

From Ferrer's case to 1575, for above thirty years, the house of commons, instead of adopting the mode of delivery by the mace, ordered writs of privilege to be issued in almost every instance. It appears from Hogan's case, in 1601, that it was still later before the house of lords exerted this privilege, and Hogan was a servant of the queen; as Ferrers, in whose case it was first adopted, has been seen to have been of the king. In Smalley's case, however, (the next that occurs,) the house proceeded with great deliberation, and adopted the course, after a long debate and consultation; and it was not till long after, that the practice became established.

Sir Thomas Shirley's d case, in 1603, in which the warden of the fleet, refusing to release the prisoner when demanded by the serjeant-at-arms, was committed to the tower, and there persisting in his obstinacy, to the dungeon of little ease, (a dismal hole in the tower,) seems at last to have rendered it apparent, that neither the law of parliament, nor any statute, had satisfactorily pointed

a Moore's Reports, 57.

• Prynne's Fourth Register, 784.

b Dyer, 61,

d Parl. Hist. Vol. 5, p. 118.