Parliamentary Privilege in the Middle Ages

Among the earliest of the privileges claimed by the Lords and Commons in Parliament was protection from arrest and imprisonment. A form of this protection had been enjoyed by those attending the councils of the Anglo-Saxon kings, but it did not find its way into formal statute law after the Norman Conquest. Initially, the protection pertained to the king rather than to Parliament: it was designed to ensure that the king’s interests were not damaged by the arrest of those who came to advise him, and a similar form of protection was extended to those who came to sue in the royal law courts at Westminster.

By the reign of Edward I the privilege was extended to the servants of peers attending Parliament, as well as magnates themselves, while the earliest known example of a Member of the Commons claiming immunity dates from 1340. From the early fifteenth century there were attempts by the Commons to have the privilege enshrined in statute, which were, however, successfully resisted by the crown. For much of the Middle Ages the privilege merely provided protection from arrest or imprisonment on charges of trespass, debt or broken contract, but in 1478 it was extended to keep MPs, peers and their servants safe from being sued for any of these causes while serving in Parliament.

Perhaps the most famous example of a claim to the privilege during the Middle Ages was the case of Thomas Thorpe, elected Speaker of the Commons in March 1453. By the autumn of that year Thorpe was engaged in an acrimonious dispute with the greatest nobleman in the land, Richard, duke of York, ostensibly over Thorpe’s seizure (in an official capacity) of some of York’s goods, but in reality probably also related to the rivalry between York and Thorpe’s patron, the duke of Somerset. It was Thorpe’s misfortune that that before the end of the year King Henry VI lost his mental and physical faculties, and York took control of the government as Protector. While the Commons were in recess over Christmas, Thorpe was arrested, ostensibly by due process of law. On this occasion, York’s influence prevailed over the Commons’ legitimate claim for Thorpe’s release on the flimsy grounds that the privilege did not apply, since the duke’s action had been filed during the prorogation of Parliament. This did not, however, negate the privilege, for another claim brought by the Devon MP Walter Raleigh at the same time was allowed.

The privilege of freedom from litigation and imprisonment was to enjoy a long post-medieval career. As Parliaments began to meet more regularly and for longer periods it became increasingly common for men to seek election to Parliament specifically to escape their adversaries’ law suits, and in later times the continued relevance of the privilege was highlighted by several celebrated cases. So, the attempted arrest of the Five Members by Charles I in January 1642 was accompanied by shouts of ‘Privilege!’ from the benches of the House.

Author: Hannes Kleineke