Page:English Historical Review Volume 37.djvu/286

 278 REVIEWS OF BOOKS April of parliament and therefore of parliamentary privilege, and although Dr. Wittke states that his book is intended to be ' not so much a history of privilege as an essay in the interpretation of the great principles under- lying parliamentary privilege ', yet great principles must be deduced from sound history, and an independent study of his subject, at least until the close of the sixteenth century, was needed. He has, however, been content in his earlier pages to accept without criticism the discredited interpreta- tions of such predecessors as May. Thus Dr. Wittke misconceives the constitutional role of the commons in medieval times and evidently thinks of parliament as composed of two more or less co-ordinate houses. As a result his view of the early history of freedom of speech is unhistorical. ' As early as the reign of Edward III,' he writes, ' it is reported, the House of Commons often discussed and agreed upon laws exactly contrary to the king's prerogative, " yet they were never interrupted in their consultations, nor received check for the same ".' In reality this report is simply the personal opinion of Henry Elsyng, who lived in what Maitland called the prehistoric age. The commons, it is essential to grasp, were not a ' house ' in the middle ages, their proceedings were not in parliament, and only their Speaker enjoyed the right to speak in the parliament chamber, a right which is reflected in his petition for the privilege of amending his speeches should the need arise. Freedom of speech in the assembly of the commons is, therefore, a distinct problem from freedom of speech in parliament, and the question of the privilege enjoyed by the lords in parliament during the middle ages should at least be raised, although perhaps it cannot be satisfactorily answered. So far as the commons are concerned the first entry in an official record of the inclusion of this privilege in the Speaker's petition at the opening of parliament occurs in 1542, although Dr. Wittke should have referred also to Koper's account of More's speech in 1523. But the difficulty is to elucidate the development of the privilege before the formal claim was made ; and lacking any commons' journal we are dependent upon a few celebrated cases that have been recorded in the Rolls of Parliament. Haxey's case is usually cited as involving first a breach of this privilege, and eventually confirmation of it ; and Dr. Wittke so cites it. But it may be questioned whether the conventional construction of the case is really sound. In the first place it should be clearly recognized that there is not a word in the Rolls of Parliament to suggest that Haxey was a member of parliament or a clerical proctor, and the latter suggestion has apparently no other basis than an unnecessary assumption by Stubbs and others that he must have been in parliament. There were two stages in the case ; the proceedings under Richard II, and the reversal of the judgement by Henry IV. In the first there is nothing to indicate that the commons considered any privilege of free speech to be involved : and indeed it would be amazing had they asserted a privilege to discuss the affairs of the king's household. Their submission to the king repudiates any such claim. 1 For the reversal of the judgement against Haxey there were two peti- 1 Rot. Part. Hi. 339 6.