These days, the parliamentary privilege of free speech is regarded as deriving from the assertion in Article IX of the 1689 Bill of Rights that ‘Freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament’. That it is considerably older than that is certain, but how old, very much not so. One of the key problems with seeing freedom of speech as being embedded in medieval parliaments is the fact that the surviving texts of the speaker’s customary request for various privileges, made at the beginning of each parliament on the presentation of the newly elected speaker to the monarch or his or her commissioners in the house of lords, make no mention of it. The current form of the request (as used in 2017) goes like this:
My Lords, I submit myself with all humility and gratitude to Her Majesty’s gracious Commands. It is now my duty, in the name of and on behalf of the Commons of the United Kingdom, to lay claim, by humble petition to Her Majesty, to all their ancient and undoubted rights and privileges, especially to freedom of speech in debate, to freedom from arrest, and to free access to Her Majesty whenever occasion shall arise, and that the most favourable construction shall be put upon all their proceedings. With regard to myself, I pray that, if in the discharge of my duties I shall inadvertently fall into any error, it may be imputed to myself alone, and not to Her Majesty’s most faithful Commons.
In the earliest formulation of this request, there is usually no reference to the rights and privileges of the commons, and it is the final element that is predominant: the apology in anticipation that any words spoken by the speaker in representing the Commons that were taken amiss by the crown. Only in 1399 and 1401 (in the unusual circumstances of the period immediately after Richard II’s parliamentary deposition) did the Speaker ask that the commons should have their liberty in parliament – though without specifying what this meant. In 1460 and 1467 there are references again to liberties and free customs, privileges and liberties, again without being clear what is meant. It is not until 1523 that a text exists that makes explicit the request for freedom of speech. William Roper’s biography of his father-in-law, Sir Thomas More, quotes More’s speech as Speaker at the beginning of the 1523 parliament, including:
It may therefore like your most abundant grace, our most benign and godly king, to give to all your commons here assembled your most gracious license and pardon, freely, without oubt of your dreadful displeasure, every man to discharge his conscience, and boldly, in any thing incident among us, to declare his advice; and whatsoever happen any many to say, that it may like your noble majesty, of your inestimable goodness, to take all in good part, interpreting every many’s words, how uncomely [inelegantly] soever they be couched, to proceed yet of good zeal towards the profit of your realm and honour of your royal person.
It was another twenty years, though, before there is any more or any more formal evidence of the request of the privilege by the speaker and its concession by the crown. The Lords Journal in January 1542 provides full details of the exchanges between the speaker and the lord chancellor, though there is much ambiguity both in the request (he in expressing their views may speak freely and unpunished whatever sentiments and whatever counsels/ ut in dicendis Sententiis quivis libere et impune eloqui posset quid Animi haberet, et quid Consilii) and in the reply (his royal majesty does not deny liberty of honest speech / honestam dicendi Libertatem non negare Regiam Majestatem); and it is a long time before these exchanges are routinely recorded in the journal.
Does this mean that before 1523 or even 1542 there was no assumption of freedom of speech, and the idea is essentially a Tudor development? There are two other, much pored-over, pieces of evidence which suggest that the idea was in fact well established in the late middle ages. The first comes from the parliament of January 1397, in the context of a confrontation between Richard II and a section of his parliament over his plans for a joint Anglo-French campaign against the Duke of Milan, and his expectation that the commons would pay for it. In the course of the argument, the king took offence when he was told that the commons had received a series of complaints on various matters, including the cost of the royal household. He demanded to know who had been responsible for putting these forward as grievances; the Speaker of the commons, John Bussy, provided him with the name, one Thomas Haxey – not a member of the commons, but a clerk in the royal service. A few days later the Lords announced that anyone who encouraged the commons or anyone else to propose reform of the person, rule or regality of the king should be treated as a traitor. Accordingly Haxey was brought into parliament and condemned to death as a traitor.
Haxey was not executed; he was in fact pardoned at the request of senior lords almost as soon as he had been condemned, and there was clearly something artificial and symbolic about the whole performance. Richard’s determination to stamp out potentially embarrassing debate, and the rapid compliance of both the lords and the commons might imply that no privilege of free speech was either offered or expected, and the rapid intervention of the king was designed to clear up an awkward political accident. But the sequel suggests otherwise. After Richard II’s deposition in 1399, the commons supported Haxey’s petition to Richard’s nemesis, Henry IV, for a reversal of the 1397 judgment: it was, they said, against law and the normal practice in parliament, and the customs of the commons (‘la course quel avoit este use devant en parlement’, en anientisment des custumes de lez communes’). Henry IV accepted, he said, both for the proper administration of justice, and for the protection of the liberties of the commons (‘Sibien en accomplissement de droit, come pur salvacioun des libertes de lez ditz communes’).
Much has been written about Haxey’s case and what it says about the existence or otherwise of parliamentary privilege. It appears to suggest that there was an assumption before 1397 that proceedings in parliament would, broadly speaking, be free from interference by the crown. There is room for scepticism: in a classic article, the Tudor historian Sir John Neale dismissed its relevance quickly (‘first it is as well to lay the ghost of Haxey’s case, which has troubled us too long’). Neale argued that the case concerned someone who was not a member of the house of commons, and the privilege of free speech ‘covers members alone’; that privilege was not a plea against a charge of treason, and Haxey had been charged with treason, so the whole discussion was beside the point; that the reversal of the condemnation was of a piece with the reversal of many similar claims in the reign of Richard II, and was not really about the special privileges of the commons; and that the references to the ‘liberties’ of the ‘commons’ were to common liberties in general, rather than to anything particularly belonging to the parliamentary commons.
The other case is that of Thomas Yonge. Yonge was a prominent Bristol lawyer and merchant, who was elected the city’s representative ten times (and once for Gloucestershire as well) between 1435 and 1460: he was, therefore, among the most experienced of parliamentarians, and by virtue of representing one of the great cities of the kingdom, one of its most senior. He was closely connected to Richard, Duke of York, who tried to put himself in a position in 1450 to take over the leadership of the court and government of Henry VI and to have himself recognised as Henry’s heir. It was Yonge who in the parliament of 1451 formally proposed that York should be made Henry VI’s heir, a key moment in the road towards the civil strife known as the wars of the Roses. York’s, and Yonge’s, manoeuvre failed at the time, and Yonge was imprisoned in the Tower as a result. Yonge was probably held for less than a year, though he later complained of a long imprisonment. In the wake of the Yorkist takeover of government in 1455, in the parliament of July 1455, Yonge petitioned the Commons to support his request for redress and compensation for his losses. His petition referred to ‘the old liberty and freedom of the Commons of this land had, enjoyed and prescribed, from the time that no mind is, all such persons as for the time being assembled in any parliament for the same Commons, ought to have their freedom to speak and say in the House of their assembly, as to them is thought convenient or reasonable, without any manner challenge, charge or punition therefore to be laid to them in any wise’ (Rotuli Parliamentorum, v. 337a). The Commons did forward it to the Lords, the Lords to the king, who referred it back to his council to provide for Yonge as they thought convenient and reasonable.
There is much to argue about this case too. There was no formal acknowledgment of the claim Yonge made in the petition, by either Commons, Lords or King (though none of them contested it either), and the circumstances of the case – shortly after the opening of a Civil War – render it just as odd as Haxey’s. Neale wrote that the claim was ‘unique in the middle ages’, though he conceded that it was evidence that ‘a certain, or more probably a very uncertain, freedom of speech had evidently come to be regarded as a customary right’ in the fifteenth century.
Rights and Privileges
Implicit in the accounts of Neale, and others who have followed him, is that something did change in the sixteenth century. We certainly know much more about the battles of Queen Elizabeth I with members of the Commons over what they could and could not debate in parliament: her own marriage and the succession, the religious settlement, and other matters which she regarded to be part of her prerogative, including the royal right of purveyance (compulsory purchase of goods for the royal household) were all the cause of clashes over her reign (details are given in this History of Parliament website article). It is quite possible that such battles were more acute in Elizabeth’s reign than previously, if only because after the reformation opened very bitter divisions over the religion many more members than before were likely to believe that their consciences required them to challenge royal policy, and to be more aggressive in their defence of the right to express their opinions in parliament.
The earlier significance of a parliamentary tradition of free speech should not be dismissed too lightly, though. It was referred to on a number of occasions from the end of the fourteenth century as being an established liberty: cumulatively, these references suggest that many members believed that it existed. The absence of detailed evidence about any specific formal request or royal response before 1523 and 1542 need not mean that such a request was not made, just that it was not recorded – as many other things were not routinely recorded in the parliament roll. Other references from the 1540s onwards, including in the opening speeches and requests of the Speakers, strongly indicate the existence of an assumption of free speech, and a belief that it was an ancient custom. Even if the request was not made before 1523, the existence of some sort of tradition indicates that the crown tacitly accepted a wide latitude for parliamentary speaking. This may not have been the wide liberty allowed under Article IX of the Bill of Rights (and even now there are certain things – for example direct criticism of the monarch – which are regarded as unacceptable in the Commons); but it may well have been at least as broad as what was tolerated by Queen Elizabeth, and perhaps a little more so.
The debate about the existence, or otherwise, of a tradition of free speech is not a question of whether free speech was or was not valued. There is no doubt that it was assumed in the late fourteenth and early fifteenth century that there should be freedom of speech and complaint in parliament, and that there was acute anxiety about it. Famous satires such as Mum and the Sothsegger talk about the necessity of speaking truth to power, and ideas about the need to hear complaints and grievances, and the need for counsel to be honest and free and according to the conscience of the individual are all built into ancient, medieval and early modern doctrines about the conduct of princes.
What is really at stake in Neale’s dismissal of the Haxey and Yonge cases is the old question about the corporate status and institutional capital of the house of commons – whether it had the capacity and the tools to provide resistance against the power and authority of the crown. And the question that it begs is one about the nature of the rights and privileges of an institution, and how they are acquired, registered and protected. There are two rather different concepts of parliamentary freedom of speech that are articulated in these debates. One is that it is a privilege – a special concession, signalled in the request by the Speaker, and the acceptance by the crown. It might be similar to the corporate privileges enjoyed, under charter, by cities and civil associations such as guilds. Such privileges can be, and were, fairly easily withdrawn by their donors. The other is that it is a right, acquired by long practice and usage. A king might attempt to withdraw it, deny it, or ignore it; but it could be argued in response that he has no power to do so. Like the common law, it has a status beyond the right of the king to change it by himself. Historians have viewed More’s speech of 1523 and the Lords Journal entry of 1542 as a step forward in making clear and definite the idea that there was a privilege of freedom of speech. But it is possible that calling freedom of speech a privilege, and incorporating it explicitly into the requests made to the monarch at the beginning of a parliament was in some ways a step backwards.
The debate over free speech, such as it was, from the end of the fourteenth century to the sixteenth and seventeenth was in some ways a debate about the nature of the institution of the commons, the type of organisation that it was: whether more like a body whose rights were dependent on the gift of the crown, or a body whose rights were customary and immanent in its functions and processes. They were resolved, to some extent, by the 1689 Bill of Rights. Although the request for privilege is still made by the Speaker at the beginning of each parliament, it was the Bill of Rights that gave freedom of speech in parliament statutory status – the same sort of protection as the 1215 Magna Carta gave to the requirement for parliamentary consent to taxation. Though even then, what statute can provide can also be taken away – as it was, to the concern of many, in the Defamation Act 1996 (now reversed by the Deregulation Act 2015). But that’s another story.