is conclusive.[234] But in those rude times members of
parliament were not always respected by the officers executing legal
process, and still less by the violators of law. After several
remonstrances, which the crown had evaded,[235] the commons obtained the
statute 11 Henry VI. c. 11, for the punishment of such as assault any on
their way to the parliament, giving double damages to the party.[236]
They had more difficulty in establishing, notwithstanding the old
precedents in their favour, an immunity from all criminal process except
in charges of treason, felony, and breach of the peace, which is their
present measure of privilege. The truth was, that, with a right pretty
clearly recognised, as is admitted by the judges in Thorp's case, the
house of commons had no regular compulsory process at their command. In
the cases of Lark, servant of a member, in the 8th of Henry VI.,[237]
and of Clerke, himself a burgess, in the 39th of the same king,[238] it
was thought necessary to effect their release from a civil execution by
special acts of parliament. The commons, in a former instance,
endeavoured to make the law general that no members nor their servants
might be taken except for treason, felony, and breach of peace; but the
king put a negative upon this part of their petition.

The most celebrated, however, of these early cases of privilege is that
of Thomas Thorp, speaker of the commons in 31 Henry VI. This person, who
was moreover a baron of the exchequer, had been imprisoned on an
execution at suit of the duke of York. The commons sent some of their
members to complain of a violation of privilege to the king and lords in
parliament, and to demand Thorp's release. It was alleged by the duke of
York's counsel that the trespass done by Thorp was since the beginning
of the parliament, and the judgment thereon given in time of vacation,
and not during the sitting. The lords referred the question to the
judges, who said, after deliberation, that "they ought not to answer to
that question, for it hath not be used aforetyme that the judges should
in any wise determine the privilege of this high court of parliament;
for it is so high and so mighty in his nature that it may make law, and
that that is law it may make no law; and the determination and knowledge
of that privilege belongeth to the lords of the parliament, and not to
the justices." They went on, however, after observing that a general
writ of supersedeas of all pr