Page:English Historical Review Volume 37.djvu/288

280 REVIEWS OF BOOKS April must repeat those privilege claims, already made by his predecessor, which refer to the commons, or must confine himself to purely personal claims. Hatsell quotes the precedents of Onslow in 1566, Charlton in 1672, and Foley in 1694. In Foley's case the commons ordered the omission of the claims. Not only doos Dr. Wittke misdate Charlton and Foley as 1572 and 1594 a piinter's error gives this as 1549 but he evidently mistakes the point at issue, and takes the question to be whether privileges ought ever to be petitioned for or be merely assumed as ' undoubted rights '. He seems to make the house of commons take the latter view in 1594. Reference must be made to an aspect of the earlier history of privilege which throws invaluable light upon the obscure problem of the evolution of the house of commons, but of which Dr. Wittke does not realize the importance. This is the transference of jurisdiction over privilege cases affecting the commons, from the king in parliament or, as Dr. Wittke would write, the house of lords, to the commons themselves. It was inevitable that whilst the medieval and unitary conception of parliament persisted, jurisdiction should have been exercised in the parliament chamber ; and consequently the privilege cases of the middle ages are recorded in petitions for remedy addressed to the king or to the king and lords in parliament. This practice and the theory behind it are in striking contrast with the modern doctrine and practice which were being evolved during the sixteenth century and received classical expression in the writings of Coke : the high court of parliament, Coke maintained, con- sisted of two houses, each of which was itself a court. It was in the reign of Henry VIII, so far as we know, that the commons began to assert jurisdiction over their own privileges ; and Ferrer's case in 1543, when they sent their serjeant to release an imprisoned member, marks a new epoch. Then it should be noticed that in 1515 an act had authorized the Speaker and commons to license the departure of members before the close of parliament, so giving them a control over their own members which was to develop and ultimately to lead to the assertion of control over disputed elections in 1586. And it is in the same reign that freedom of speech first appears in the Speaker's repertory of petitions. Traces of the old sub- servience of the commons to the lords can be found under Elizabeth, and it required more than half a century's development after the death of Henry VIII to express the new constitutional position in so definite a theory as Coke's. Dr. Wittke's survey of the earlier history of parliamentary privilege is, however, brief. His main object is to develop ideas thrown out in a chapter of Professor Mcllwain's High Court of Parliament, and to show the relation of privilege to parliament's character as a court. Before the seventeenth century the history of privilege contributes comparatively little to this main study ; but a famous passage in Coke's Institutes became the creed of parliamentarians, and with the expansion of their claims and the increasing fullness of reports Dr. Wittke has a subject which he handles on the whole satisfactorily. He devotes chapters to the conflicts between lords and commons over privilege, to the conflict between Lex parliamenti and Lex terrae, and to privilege cases in the dependencies ; and he brings out the judicial basis of these later privilege claims with convincing fullness.