Cromartie Alan. Sir Matthew Hale, 1609-1676: Law, Religion and Natural Philosophy (Cambridge Studies in Early Modern British History) (ENG)

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Interregnum 59

state. Its first constitutional step, in a bill rushed through on the day that

Charles was killed, was to prevent his heir claiming the throne: it published

an 'Act prohibiting the proclaiming of any person to be king of England or

Ireland or the dominions thereof, at least 'without the free consent of the

people in parliament first had and signified by a special Act or Ordinance

for that purpose'.

On 7 February, it resolved to abolish the 'office' of a

king, but postponed the evil moment of a full-scale parliamentary debate.

A rather more urgent constitutional need was to gain co-operation from

the bench. The parliament therefore engaged (on 8 February) 'to maintain

the fundamental laws of this nation for the good of the people'.

This was

at best a rather vague commitment, in the absence of agreement on the

nature of the fundamental laws. In a printed declaration (of 10 February)

the wording was much more precise:

they are fully resolved to maintain and shall and will uphold, preserve, and keep

the fundamental laws of this nation, for and concerning the preservation of the

lives,

properties and liberties of the people with all things incident thereunto; with

the alterations touching kings and House of

Lords,

already resolved in this present

parliament, for the good of the people, and what shall be further necessary for the

perfecting thereof.

They were promising, in fact, to respect individual rights, while retaining

unlimited scope for further constitutional alterations. The printed declara-

tion,

addressed to the public at large, was bolder than the message to the

judges. This pattern was repeated throughout the next ten years. The

Rump's extreme conservatism in dealing with the courts began with an

unquestioning acceptance of the legality of their proceedings. In 1461,

when the Yorkists were 'restored', a statute confirmed the decisions of the

previous three reigns.

In the 'first year of liberty restored'

the Rump

passed no such measure. The status of the courts, though open to some

doubt, was considerably less dubious than that of the regime. Its leaders

must have hoped, if they gave the matter thought, for an aura of legality

that only the bench could provide. They contented themselves, at all

events, with an 'Act for better settling of proceedings in courts of justice',

British Library, Thomason tracts, E1060(2); Commons Journal, vol. VI, p. 125.

Commons Journal, VI, 133.

Commons Journal, VI, 135. On the role of the bench in this period, see also Stephen

F. Black, 'Coram Protectore: The judges of Westminster Hall under the Protectorate of

Oliver CromwelF, American Journal of Legal History, 20 (1976) and 'The courts and

judges of Westminster Hall during the Great Rebellion, 1640-60', Journal of Legal

History, 7 (1986).

British Library, Thomason tracts, E1060(4).

The statutes of the realm, 11 vols., 1963, vol. II, p. 380.

The phrase on the Great Seal.

C. H. Firth and R. S. Rait, Acts and ordinances of the interregnum 1642-60, 1911, vol. II,

pp.

6-9.

60 Law

which passed into law on 17 February. The 'better settling of proceedings',

a trivial adjustment, inserted 'the Keepers of the liberties of England, by

authority of parliament' wherever, in a document, there had previously

been mention of the king.

'The Keepers of the liberties', a most suggestive title, epitomised the

problems that the legal system raised. The Common-Wealth existed to

secure the subject's rights. Among these rights, which were liberties rather

than freedom, was property dependent on the powers of the church or the

Crown. 'The king' as a legal expression was a part of great swathes of the

law. He was needed for everyday practice: for the issue of writs, the

granting of patents and pardons, the reception of fines and escheats.

tyrant like Charles Stuart, who defeated the purpose of laws, discredited

personal kingship and had to be removed. It was quite another thing, in the

absence of pressing incentives, to undertake wholesale revision of the

monarch's legitimate powers. The obvious way to proceed, the line of least

resistance, was to alter the names on the writs. 'The Commonwealth

would not put the executive power out of their hands', as the republican

Harry Vane (1613-62) recalled: 'for this reason they set up those shadows,

the Keepers of the liberties of England, as an executive power to distin-

guish it from the legislative'.

'The Keepers of the liberties of England, by

authority of parliament', a ludicrously cumbersome expression,

was the

home for the rights of the king.

Exactly a month later, on 17 March, the so-called 'Kingly Office' had its

end. The 'Act for the abolishing the Kingly Office' had the restricted

purpose of putting an end to personal monarchy:

Whereas it is and hath been found by experience, that the office of a king in this

nation and Ireland, and to have the power thereof in any single person, is

unnecessary, burthensome, and dangerous to the liberty, safety, and public interest

of the people of this nation ... and that, for the most part, use hath been made of

the regal power and prerogative to oppress, and impoverish, and enslave the

subject; and that usually and naturally any one person in such power, makes it his

interest to encroach upon the just freedom and liberty of the people, and to

promote the setting up of their own will and power above the laws, that so they

might enslave these kingdoms to their own lust; be it therefore enacted and

ordained by this present parliament, and by authority of

the

same, that the office of

a king in this nation, shall not henceforth reside in, or be exercised by, any one

single person.

See the report of the great pardons case, Custodes v. Riccaby, in Folger Shakespeare

Library MS V.b.6, fo. 45.

Burton, Diary, III, 178.

In The jovial crew

or the devil turned ranter, 1651, p. 11, a constable has an unfortunate

slip of the tongue: 'I charge you my friends in the king's name, cry mercy in the name of

the Keepers of the liberties ...' (original emphasis).

Firth and Rait, Acts and ordinances, II, 19.

Interregnum 61

The burden of this sentence, as a careful reading shows, was that there

were great dangers in a single person's rule. The 'regal power'

itself,

which

monarchs had misused, was not so much abolished as transferred.

The Commonwealth's supporters, a miscellaneous group, defended it in

many different ways. It presented itself to the courts as a 'common law

republic', as an interpretation of existing constitutional arrangements,

with all the legal sanction such arrangements could provide. This view was

made explicit, on 20 March, by the charge at the York Assizes, the work of

one Serjeant Thorpe (1595-1665). Thorpe set out to explain 'the style and

title of our commissions, under which we are now to act, being changed

from Carolus Rex Angliae to Custodes libertatis Angliae authoritate

parliamento'.

The rule of a 'single person' had led to repeated abuses, so

the people had resolved to do without one. It was nonetheless unnecessary

to change the Treason Act. 'The name and word king' applied to 'the

supreme authority', whatever that happened to be, because 'it was fre-

quently used to set forth the public interest of the people', as in the phrase

'the king's peace'.

A perfect legality beckoned, a realised common law,

shorn of the casual tyrannies of actual Stuart kings.

It can be seen, with hindsight, that this was at least compatible with

Coke. Coke's law was based on 'reason', which promoted the general

good. The 'honour' of the king, as Ellesmere had complained, was pre-

ferred to his personal 'profit'; he was always presumed to be guided by the

thought of 'common weal'. His role was thus exhausted by the law's view

of the good. Thorpe drew a submerged implication: when kings turned

into tyrants, converting 'the people's rem publicam' into 'the governor's

rem privatam', they defeated the purpose of kingship, and lost their right

to claim obedience.

The Stuarts were removed in the name of the

common law values for the sake of which their 'office' was ordained.

The process was concluded, though not before 19 May, by an 'Act

declaring and constituting the people of England to be a Commonwealth

and free-state'. The measure's ambiguous wording, as much 'declarative'

as 'introductive', could easily suggest that there had been no legal

change.

The official explanation was at pains to encourage this view. It

The Harleian miscellany, ed. J. Malham, 12 vols., 1808-11, vol. VI, p. 106. This was

called to my attention by M. A. Judson's Whiggishly-entitled From tradition to political

reality: a study of the ideas set forth in support of the Commonwealth government in

England 1649-53, Hamden, Connecticut, 1980, p. 44.

Harleian miscellany, VI, 114.

Ibid.,

108.

*Be it declared and enacted by this present parliament and by the authority of the same,

that the people of England, and of all the dominions and territories thereunto belonging,

are and shall be and are hereby constituted, made, established, and confirmed to be a

Commonwealth and free-state. And shall from henceforth be governed as a Common-

wealth and free-state by the supreme authority of this nation, the representatives of the

people in Parliament, and by such as they shall appoint and constitute as officers and

62 Law

asserted 'the clear consistency of [the law practised in the courts] with the

present government of a republic, upon some easy alterations of form

only, leaving entire the substance; the name of a king being used in them

for form only .. ,'

A rather later essay corroborates this claim. It was

written in May 1660, on the eve of the royal return, and contained a

dispiriting picture of affairs in church and state. There was, the author

acknowledged, an exception to the rule: 'the fragment or broken piece of

our old government that seems yet left us in form of administration of

justice in the courts of justice which by divine providence hath kept

somewhat of the resemble of former government.'

This grudgingly

favourable verdict was that of Matthew Hale.

Retrospectively, at least, Hale trusted the resilience of existing English

law. His most complacent statement was buried in a short undated work,

the 'Observations moral and political' on his version of The life and death

of T. Pomponius Atticus (1677). This curious little book, a translation

from the Latin writer Nepos, had an obvious significance for Hale. Its

subject Atticus, a learned and virtuous Roman, was neutral in his country's

civil wars. Most of the 'Observations' were prompted by this fact. Hale

defended his forerunner's conduct (and presumably also his own) by

appealing to historical experience. This taught, he improbably claimed,

that 'factions in a state never long hold their ground'.

A 'faction', on Hale's definition, involved a departure from law:

'established government, or the adherence to it, was no faction'.

It was

factious, he strongly implied, to have obeyed King Charles in his excesses:

when any person entrusted by the sovereign power with a particular power or

authority shall endeavour by force or fraud to extend the power wherewith he is

entrusted beyond the bounds of it. ... [such people] are no more excused from a

faction by their authority that they had, than if they were without any such

authority; because herein they act beyond the bounds and without the warrant of

that authority, and consequently as private persons.

A slightly later passage explains the republic's collapse:

Factions in a state never long hold their ground. But if they are not suppressed by

the natural power of the state wherein they arise, yet by the same like means

whereby at any time they obtain, they are commonly broken and dissolved; and by

the same artifices whereby they gain the saddle, they are commonly unhorsed,

either by the adverse party, or by some distemper rising in their own party ...

when one faction hath suppressed another, the victorious party fall into divisions

ministers under them for the good of the people, and that without any king or House of

Lords.' (Firth and Rait, Acts and ordinances, II, 122).

A declaration of the parliament of England, expressing the grounds of their late proceed-

ings, and of settling the present government in the way of a free state, 1649, p. 24.

Lambeth 3475, 309.

Hale, Atticus, 64.

Ibid.,

64-66.

Interregnum 63

among themselves, some thinking they have too small a share in the acquest, and

others too much, and so weaken their party, and render it less and narrower.

The Army's internal divisions, Hale noted at the time, were the cause of the

king's restoration.

With the benefit of hindsight, a comforting conclusion

could be reached. Factious tyranny, factious rebellion were equally desti-

ned to fail. Political action was pointless, when a virtuous passivity

sufficed.

Hale's History of the common law of

England,

the greatest of his

Restoration works, explained the basis of his confidence. The kingdom's

'constitution' was the English common law, which was also its 'tempera-

ment' or its 'complexion'. The 'constitution' of the land (in this sense, a

medical term) was its natural state of health:

the common municipal law of England is ... by a long experience and use ... as it

were incorporated into [the English nation's] very temperament, and, in a manner,

become the complexion and constitution of the English commonwealth.

Insomuch that even as in the natural body the due temperament and constitution

does by degrees work out those accidental diseases which sometimes happen, and

do reduce the body to its just state and constitution, so when at any time through

errors, distempers, or inequities of men or times, the peace of the kingdom, and

right order of government, have received interruption, the common law has wasted

and wrought out those distempers, and reduced the kingdom to its just state and

temperament, as our present (and former) times can easily witness.

The body's 'constitution' is presented both as cause and as effect, as

normative and descriptive, as an underlying condition and as its super-

structural expression. A reciprocal relation is implied: the legal moulds the

social, to the point where common law is the 'complexion and constitution

of the commonwealth', and the social reinforces the grip of common law.

If the law was to 'waste out distempers', then it had to be applied. To

operate the system was to help restore the king. Whatever precisely his

motives, Hale never stopped work as a lawyer, not even in the early

months of 1649; some time in March, for instance, he prepared a marriage

settlement for General Cromwell's son.

He had 'declared and promised',

by the terms of the so-called Engagement, to be 'true and faithful to the

Commonwealth of England as it is now established, without a king or

House of Lords'.

Up until January 1654 he was one of the leading

barristers in court of King's (re-named the 'Upper') Bench; from 1654 until

Ibid.,

97-8.

Williams, Memoirs, 49-50.

Hale,

The

history

of the

common

law of

England,

ed.

Gray, Chicago 1971,

p. 30. An

earlier draft

this passage (Clark Library, identifiable

Selden-Hale Additional

MS 1,

fo.

omitted

the

words 'and former'.

F. A.

Inderwick,

The

interregnum

(AD

1648—1660): Studies of the commonwealth: legisla-

tive, social

and

legal,

1891,

215.

Kenyon, Stuart constitution, 307; Cobbett, State trials,

211.

64 Law

Cromwell's death in September 1658 he was a Justice of the Common

Bench; in the period just before the restoration he reverted to 'chamber

practice', writing legal opinions but staying out of court.

He kept the title

'serjeant' which Cromwell had conferred.

This was collaboration of an important kind, but such assistance ham-

pered the Republic, and probably hastened its ultimate collapse. To secure

co-operation from lawyers such as Hale the government was forced to

acquiesce, for a whole range of practical purposes, in the legal profession's

conception of the English polity. The legal history of the interregnum was

the history of the common law's survival, both as the guarantee of private

rights and as the natural language of English political thought. These

survivals were inter-connected, as the History of the common law implied,

if only because some property rights were highly politically charged. The

bishops might have vanished, but tithes were still enforced;

their

Lordships' House was abolished, but its membership was treated with

respect; and reform of the court system, perhaps the most persistent of the

radical demands, was repeatedly and skilfully averted.

These were not

insignificant successes, and in each of them Hale played at least a part.

One way in which he strengthened common law was by helping to

replace the bishops' courts. In Eeles v. Lambert (1648), for instance, one of

the points at issue was the power of common law in the enforcement of a

legacy (this was previously a function of the English canon law).

For any

disciple of Selden's the matter was simple. Hale showed, on behalf of his

client, that the common law had once had jurisdiction, and that the

authority of canon law (in this or any other legal question) was still

'supported' by the secular system. He therefore saw no reason why

common law should not resume the functions it had merely delegated.

Similar reasoning could be applied to any function of the canon law's, but

its greatest political relevance was to the collection of tithes. For Selden, in

his History of tithes (1618), the tithe was a secular right; for others,

especially the clergy, the payment of tithes was a duty that God had

ordained; at the radical end of the spectrum, it was a hated clerical

F. J.

Routlege (ed.), Calendar

of the

Clarendon State Papers preserved

in the

Bodleian

Library,

vol. IV,

Oxford 1932,

p. 160.

Ibid.

See the complaint about enforcement

tithes

John Jones* anti-lawyer tract,

The cry of

blood, 1651,

p. 67.

For specialised studies

law reform,

see

Stuart

Prall,

The

agitation

for law

reform

the puritan revolution 1640-60,

The

Hague, 1966; Donald Veall,

The

popular movement

for

law

reform 1640-60, Oxford 1970; Nancy Matthews, William Sheppard: Cromwell's

law reformer, Cambridge 1984.

The

best single discussion

is A. B.

Worden,

The

Rump

parliament, Cambridge 1974,

pp.

105-18.

For the

complex details

the case,

see

Style 37-8, 54-6, 73-^; Aleyn 38^2.

Aleyn

40. For the

later influence

this view

see

Hardres

65.

Interregnum 65

imposition. The interest of Harwood v. Paty (1649), another leading case

involving Hale, is that the law came down on Selden's side.

Hale's client was a parson's creditor, who sought to recover the money

he was owed by confiscation of the cleric's tithes. In the days when there

were bishops, there was a legal process which would have met his needs; he

could have applied to the bishop, who would have 'sequestered' the

income until the debt in question was paid off. One solution would have

been to give the bishop's function to the

sheriff,

who would 'levy the debt

of the clergy as the bishops use to do'.

The sheriff would collect the

tithes,

and pay them over to the creditor. Hale's client was not content with

this solution; he wanted to collect the tithes themselves, without resort to

such official meddling. There was a writ at common law, known as an

'elegit', which answered very neatly to his purpose; it gave the creditor

practical control of half his debtor's land. Hale therefore successfully

argued that tithes were something like real property: he asserted that 'the

tithes may be said to be tenements, and the parson hath a freehold in

them'.

On one possible reading, of course, this argument was anti-

clerical, treating tithes like any other legal right ('the court clearly held,

with Mr Selden, that tithes are not due jure divino').

On another, it

entrenched them legally, regarding them with just the same respect as any

layman's property in land.

The most striking aspect of these leading cases, one of them very highly

politically charged, is that no one appears to have worried about usurping

parliamentary power. The common law was following its own logic,

without much regard for the fragile regimes which technically controlled

the English state. A promising intellectual strategy, for radicals opposed to

those regimes, was to frame their subversive arguments in strictly legal

form. A naive version of this strategy, applied to the law of England as a

whole, can be found in a number of John Lilburne's (c. 1614—57) works,

but Hale was faced with similar points in a curious local dispute. The issue

was the franchise. The London corporation (the Mayor and Aldermen),

were chosen by the livery company members (something over 10,000 adult

males), but a radical faction of Londoners, with Lilburne's friend John

Wildman (1623-93) at the fore, thought every freeman should enjoy a vote.

In December 1650, for reasons now unclear, the authorities conceded an

organised public debate. There is a pamphlet record, composed from the

Leveller perspective, entitled London's liberties, but sub-titled, more

tellingly, A learned argument of law and reason (1651).

The main question, in technical terms, was whether tithes could be made extendible on an

elegit by equitable interpretation of Westminster II.

Style 169.

Style 161.

Style 169.

66 Law

The significant sub-title was the heart of the radical case. Wildman

believed, as might have been expected, 'that all just subjection unto

governors ought to proceed from consent of parties'. He emphasised,

however, his willingness to waive this argument.

His claims were essen-

tially legal, and they were surprisingly strong, for the franchise confined to

the liverymen was less than two centuries old. In earlier times, by contrast,

all freemen had the vote. They held this right by common law, confirmed

in a grant of King John's, and also, as a consequence, by the highest

authority known to English law. No right could be more heavily

entrenched, 'according to the principles of the gentlemen of the long

robe',

because it was confirmed, among the other 'liberties of London', in

Magna Carta

itself:

'if I should believe Sir Edward Coke ... I must then

say, that an act of parliament made contrary to that part of the great

charter that was declarative of common law was null of

itself..

This

was a mild distortion of a passage in the Second institutes, though arguably

faithful to the spirit of Coke's thought.

But Wildman clearly grasped the

lesson that Coke taught in Bonham's case: that 'reason' was subversive, not

just of kings, but of parliament

itself:

'a statute made against that part of

the great charter which is declarative of the common law is null of

itself;

for the common law, being right reason, it cannot be supposed without a

contradiction that parliaments should of right have power to make a law

against right.'

The City had retained three different lawyers to justify its constitutional

form. One of the three was almost unreported; the other two, Hale and

John Maynard (1602-90), were rather unhappily yoked. John Maynard

was ubiquitous for more than forty years (he lived to greet William III),

and his argument was suited to a survivor's needs. His instinct was to

ridicule the Leveller's known views. He therefore hastened to point out

that 'there [are] but few governments but are established without assent.'

He went on to attack, with more panache than wisdom, the radical appeal

to Magna Carta. The supposedly sacred status of this law could not be

reconciled with the fact that 'we all know that there were bishops and

London's liberties,

or a

learned argument of law

and

reason, 1651,

p. 7.

Ibid.,

24.

Ibid.

The reference appears

to be to

Coke, Second institutes, 187:

'all

statutes made contrary

Magna Charta, which

is lex

terrae, from

the

making thereof until

Edward

III are

declared

and

enacted

to be

void,

and

therefore

this

act of

Westminster

I [3

Edward

concerning

the

extra-judicial commandment

of the

king

against Magna Charta,

it is

void

...'

Wildman's interpretation

these words

can

probably

traced

Nicholas

Fuller, The

argument

in the

case

Thomas

Lad, 1607, p. 5.

London's liberties,

8. «

Ibid.,

13.

Interregnum 67

kings by the common law and Magna Carta, and yet they are changed and

justly changed by the parliament'.

The frankness of his words must have

delighted Wildman, who seized on the remarks about consent: 'in the time

of the King it had been for his interest to have said that we ought to be

subject to the son and heir of a conqueror, because such.'

In Hale's more

subtle mind, with its complicated feelings about conquest, this must have

struck a chord. We find, at all events, that he took a most conciliatory line.

His argument is clearest from Wildman's brief reply:

[Hale] was pleased to confess very ingenuously that I waived those arguments that

might reduce government to an uncertainty, or to the first principles of general

common right. But, saith Mr Hales, if that principle be allowed amongst a free

people, that subjection to their governors ought to be by mere consent; saith he, we

must consider there is a personal and a virtual assent, and it shall be conceived to

be a virtual assent, where there hath been an usage time out of mind for the people

to be subject to any form of government.

Hale rebutted the radical case with the weapons that Wildman had chosen;

he acknowledged the Leveller's claim to be talking about common law. As

a matter of law (as opposed to political theory) there was a right for

freemen to be governed by consent. The relatively narrow disagreement

was concerned with this great principle's fulfilment. Hale was happy to

agree, in spite of his royalist outlook, that agreement of the governed was

the basis of government power. But consent was often evidenced by usage,

and continual civic practice, a symptom of consent, outweighed the scat-

tered precedents against it.

Like a number of moderate speakers in the

earlier Putney debates,

Hale saw an absurd implication in the principles

that Wildman had advanced: 'will there not be the same reason for

apprentices and foreigners to plead for votes in your election?'

At a theoretical level, the difference from Maynard was marked, but on

points of legal substance they had almost identical views. They distin-

guished between 'virtual' and personal assent, and construed the London

charter by the practice of their time. They ignored the many precedents

against them, and feared the legal chaos that a radical triumph implied.

Hale differed from Maynard, however, in seeing the advantage in placing a

positive stress upon consent. The personal/virtual distinction was the key

to a conservative position, a position that focussed on usage as the sign of

the popular will. This could equally be turned, as Hale was quite aware, to

defending institutions like the king and House of Lords.

Ibid.,

14. The noted royalist author, David Jenkins, had quoted Magna Carta and

Edward III (see n. 38 above) in defence of the position of the bishops (Jenkins,

Lex

terrae,

1647, p. 34).

Ibid.,

23.

Ibid.,

33.

Ibid.,

20.

Woodhouse, Puritanism

and

liberty,

65,

80, 82.

London's liberties, 20.

68 Law

Although their House of parliament was gone, the Lords had a plausible

claim to other rights. They were sheltered, for example, from imprison-

ment for debt. The privilege was tested, in the course of 1650, in suits

against the Earl and Countess Rivers (the Countess, a little confusingly,

was a peer in her own right). It might be thought (and had indeed been

said)

that the privilege was founded on the duties they performed in

parliament. This was the view, it seems, of the great Chief Justice Rolle,

who inclined to the position that 'the dignity of their persons was in respect

of their voice in parliament'.

Hale argued (quoting Coke) that the right

was unconnected with their parliamentary votes; it was theirs on account

of their 'station', and the wealth they were deemed to possess.

To the

opposing counsel, the privilege was intrinsically unlawful: 'the king could

not create a Countess for life in derogation and to take away the liberty

and benefit of particular men. For the king could not grant such a privilege

to any as not to be arrested unless it were in case of public service.'

Hale

accepted the force of this reasoning, but nullified its practical effect:

agree that the king cannot grant such an exception as to be free from arrest nor to

imprison. But when the king creates a court, then the law gives power to arrest as a

consequent. So here the king does not give any privilege to be exempt from arrest,

but only confers this honour which he may do, and then the privilege to be free

from arrest is but a consequent of that honour, and to which the privilege is

annexed by custom.

This argument was a long way from Coke, or from any legal theory that

stressed the rationality of law. The king was obliged to act lawfully, but

custom had arbitrary power.

The matter was finally dropped, on the death of the Countess of Rivers,

but the story had an interesting postscript. As the years went by, the

peerage maintained its position.

In Trinity 1655, when Hale had become

a judge in Common Bench, a youthful peer had business that required him

to visit the court. The judges treated him with great respect; he was

placed in the middle of the bar between the two eldest Serjeants, the ushers gave

notice to the judges of the court of his coming, who put off their caps and bow to

him,

at his coming and departing, and all the time he is there all pleadings cease,

and the three prothonotaries sit with their round caps

off.

The

privileges

and

practice of parliaments

England, 1628,

p. 36.

*Le

dignity

leur persons fuit

respect

leur voice

parliament.* British Library,

Hargrave 42, 133.

See

also Folger Shakespeare Library, V.b.6,

fo. 4, 5.

British Library, Lansdowne 1066,

fo. 158.

British Library, Hargrave 42, 147v.

British Library, Hargrave 42,

148.

1656,

peer pleaded

his

freedom from arrest before Chief Justice Glyn (Style 454).

The

most notable exception

this rule was

untraced occasion when

peer was burned

the hand

for

manslaughter (Bridgeman

O.,

251; Hale, Historia,

II,

377).

British Library, Hargrave 49,

fo. 34.