It was to be another mighty test of strength, a decade after the Five Knights’ Case, between the King and his government on the one hand and the prorogued parliamentarians and the landowning fraternity on the other, played out in courts where kings had no compunction about exploiting their influence over the judiciary. The test case involving John Hampden was heard in November 1637. His ship money levy had been a paltry 20 shillings, but there was a fundamental principle at stake, as his counsel, Oliver St John, explained to the twelve justices. It was the monarch’s right to declare war but Parliament alone was empowered – and best qualified – to decide whether and how to raise any tax to fight it. St John’s clinching argument was that the country was not at war, nor was any war in prospect: the writ recited only that the King had been told ‘that certain thieves, pirates and robbers of the sea, as well as Turks’ were abroad on the oceans. This might endanger some merchant shipping, but not the navy – let alone the kingdom. There was, in short, no national emergency of the kind that alone could justify a tax so urgent that its imposition could not wait the forty-day interval between the summoning of a new Parliament and its meeting – especially since it would take seven months to build a ship. This was the factual basis upon which the court should have quashed the writ for ship money.31 The Attorney-General could only reply that the argument was populist: ‘What would be the consequence of it, but the introducing of democratical government?’
Judgment was delayed for several months, until February 1638. It was not ‘handed down’ but read at length and by each of the twelve judges in turn, the junior ones first, over several days – which gave the ship-money decision something of the tension of a lengthy penalty shoot-out.32 ‘The King may dispense with any laws in case of necessity,’ declared Justice Vernon – obsequiously and wrongly. Sir Robert Berkeley accepted that in normal times the King could not take away property rights without Parliament’s consent, but it would be ‘utter ruin and subversion’ if the King could not exercise such a power urgently: ‘The law knows no such King-yoking policy. The law is of itself an old and trusty servant of the King’s; it is his instrument . . . it is common and most true that Rex is Lex . . . The King cannot do wrong.’ Three more judges then found for the King.
So far, so predictable. The King was ahead five–nil. But the sixth judge was Sir George Croke, a man remembered by his contemporaries at the bar for having ‘more piety, religiosity and zeal of justice’ than ordinary lawyers, and for leaving the Bible and Foxe’s Book of Martyrs open in his waiting-room for his clients to peruse.33 This closet Puritan was the first to declare in favour of the defendant – on the ground, in effect, of no taxation without representation. ‘Ship money’ was in reality a tax, for which the common law required parliamentary authorisation – no claim by the King of necessity or danger could override this inflexible rule. That night they joked at the Inns that the King would have his ship money ‘by hook, but not by Croke’ – and the next day Croke’s vote was followed by the eighth, ninth and tenth judges. With the score at six to four it fell to Chief Justice Finch to deliver the match to the King. Finch had been that spineless Speaker who in 1628 had to be held down in his chair so Eliot could speak: now he apologised for his dissident brethren and wrote that ‘none are more happy than we’ to live under a king who ‘is of God alone’. The King, he ruled, had unlimited discretion to act for what, in his unchallengeable subjective view, was the public good: his good faith had to be assumed on the question of whether the kingdom was in danger. Finch outraged Parliament and the common lawyers by his ruling that nothing had changed since the Five Knights’ Case: the King was above the law.
John Cooke had been abroad whilst these momentous events had taken place, but in 1639 he returned from Geneva, having stayed and prayed with a community of English Congregationalist exiles in the Netherlands on his journey back to London.34 His talent for disputation asserted itself with these fractious separatists, who (unlike mainstream Puritans) wanted no place in the Anglican Church. ‘I stood as stiffly as I could for episcopacy’, he recalled later, of his support for bishops at this time, but like every good advocate he was conscious of the flaws in his argument.
Back in London, affected by the criticism of Charles he had heard from fellow-Protestants on his travels, he quickly identified the flaw in the ship money ruling: ‘if the King may take what he please in cases of necessity, and be judge of that necessity, England must needs be a necessitous people – as Louis II said of France, it was a meadow he might mow or not as he judged it necessary’.35 The problem was that the judges were ‘pusillanimous’: their ambition to be ‘grandees at Court’ had caused them to betray their trust as guardians of the people’s liberty by acting as tools of the government and over-extending the royal prerogative.
Cooke set up chambers in Gray’s Inn and began to practise at the bar. It was through his association with Congregationalists in London that he acquired a celebrated client – ‘Doctor’ William Trigg, a herbalist famed for refusing to charge the poor and for staying in London to treat victims of the plague, at times when registered doctors – members of the College of Physicians – fled the city. The college was a royal monopoly that vigorously prosecuted unlicensed rivals, and had secured Trigg’s first conviction in 1631 (asked whether, like all approved practitioners, he was a servant of the King, he had defiantly replied ‘I am God’s’).36 Cooke defended Trigg in 1640, when he was tried before the King’s Bench. The college prosecutors called an elderly lady who testified that Trigg had some years before prescribed medicine that made her sick, but Cooke pointed out that ‘the woman has been well ever since – she is a lusty, merry old woman who possibly might, but for that medicine, be in her grave’.37 The young barrister showed skill in avoiding imprisonment for his incorrigible client, who had been sent to prison for the offence before: this time, he was fined £155.38 Cooke moved to appeal the conviction to the House of Lords, but to his annoyance the King (whose consent was necessary) refused permission. None the less, the case was a harbinger of success at the Bar, so long as his conscience, well-honed through his time in Geneva, could fit the fashion of the times.
Ironically, the very narrowness of the King’s victory in the ship money case had sent a contrary message throughout the kingdom that the tax was in truth unlawful: the fact that five judges, the most respected on the bench, had refused to buckle under the King’s demands was a signal that the dissenters must be correct. Before the case, most of the gentry had paid ship money without demur. But by 1640, it was estimated that only one third of the exactions had been paid.39 England was in the grip of widespread civil disobedience – so much so that Finch issued a practice direction from the Star Chamber to all English judges as they departed for Assizes later that year: ‘My lords, it is your part to break the insolence of the vulgar before it approaches too nigh the royal throne.’40 That insolence was already directed at the bishops – significant sections of the middle and upper classes were seriously upset at the way Laud was disciplining their preachers, and the London mob was reading ‘Freeborn John’ Lilburne, from whose prison cell there flowed a series of bishop-bashing pamphlets. To cap it all, there was soon a genuine emergency – a war, no less, with Scotland.
Exactly what mix of pride, arrogance and belief in his own divine inspiration made Charles interfere with the quiet but heartfelt devotional practices of his one and a half million Scottish subjects is difficult today to comprehend. At the time, when the doctrine that the King could do no wrong meant that all blame had to be borne by ministers, it was put down to the High Church obsessions of William Laud, his Archbishop of Canterbury. But the King as well as Laud found the Presbyterianism of the Scots offensive: it exuded an unreconstructed Calvinism, in spartan churches (kirks) in which local ministers were entrusted with expounding the literal meaning of the Bible. There were riots in the kirks in 1638 when the King and his bishops tried to foist upon them a book for uniform prayers: a national covenant was drawn up by Archibald Johnst
on, another radical lawyer (a breed that was to become the bane of Stuart monarchy) and rapidly subscribed to by many Scotsmen, high and low. What made this covenant so radical was the pledge to maintain the authority of Parliaments (i.e. the English and Scottish Parliaments) ‘without which neither any laws nor lawful judications can be established’. Otherwise, the covenanters protested that they had no intention to ‘diminish the King’s greatness and authority’. That was not how Charles read it: ‘I will rather die than yield to these impertinent and damnable divines.’ In anger, he made a rash plan to ‘reduce that people to obedience’ by force.
For a monarch to invade his own kingdom, to kill subjects loyal to him in all but their method of devotion, was irrational. To do so without a proper army or the money to furnish one was absurd. Ship money was not forthcoming, the nobility was unconvinced of the justice of the King’s cause whilst many of the gentry sympathised with the beliefs of the Kirk and were already upset at the King’s failure to assist Protestants fighting (and losing) the war with Catholic powers on the Continent. But in April 1639, Charles advanced on Scotland at the head of such forces as he could muster, by which time the Scots had put together a better trained and motivated army under banners which read ‘FOR CHRIST’S CROWN AND COVENANT.’ The King, recognising that in any pitched battle he would face certain defeat, saved as much face as he could by concluding this ‘First Bishops War’ – in which not a shot had been fired, despite the fury on both sides – by a deal in which he promised that before imposing uniformity in worship he would consult with the Scottish Parliament and the National Assembly of the Kirk. This was just one of many expedient promises that throughout his life Charles made without any sense of obligation and broke with no sense of shame. He returned to London angry and vengeful, determined to raise a force to destroy the Scots. It was for this purpose that he recalled Thomas Wentworth, who came to his side from Ireland in September 1640.
The advice that Charles sorely needed was to stop lying to the Scots – to withdraw the prayer book and grant them liberty to worship through the Kirk, and then to show a degree of regal humility by visiting the kingdom occasionally, bringing blessings rather than men in arms. But Charles was fixated on punishing the Scots, so Wentworth’s advice was suitably blood-thirsty: he should gather a superior army, and reduce the kingdom to the status of a colony – the status effectively of Ireland governed by a Deputy like Wentworth. So far so bad, but Wentworth followed up with advice that was to have momentous consequences. He was, after all, an old Parliamentary hand – a leader of the MPs in 1628 – and he had effortlessly managed to persuade Irish Parliaments to support the King. Since the royal coffers were empty, and ship money was uncollectable, there was nothing for it but to recall Parliament to vote the funds for the new war. Wentworth of course was out of touch (he thought his former MP comrades would vote the funds in gratitude for being recalled) and Charles still lived life as if performing in a masque. He issued the writ for a new Parliament and ennobled Wentworth. It was as Earl of Strafford that this hard man awaited what he imagined would be parliamentary spaniels, unaware that they would come back as hungry lions.
In April 1640 they mainly returned – his old colleagues from the Puritan gentry Parliament of 1628, who remembered him unfondly as the ‘grand apostate’. Pym and Hampden, Oliver St John and Denzil Holles, Essex and other wealthy lords of the Providence Company were in no mood to vote money until their grievances were expounded and redressed. Finch, once the cowardly Speaker they had assaulted and then the Chief Justice they despised for his ship-money decision, was now Lord Keeper (of the Great Seal of the State) who presided over the Star Chamber and was blamed for its excesses. He opened the Parliament, praising the King and demanding money to pay for war against the treasonable Scots. The House heard him with mounting contempt, and proceeded over the next three weeks to lambast the evils perpetrated by the government. MPs maintained the traditional fiction of the monarch misled by bad ministers, but this fooled nobody – and Strafford was nobody’s fool. He advised the King to dissolve this ‘Short Parliament’; that done, the Privy Council imprisoned several MPs, and ordered searches of homes and offices of Puritan leaders.
Charles now called his cabinet together for a council of war – with Scotland. Strafford was the war’s leading proponent, urging a forced loan from the City of London to fund it. His remarks were noted by old Sir Henry Vane whose son, young Henry, had returned from Massachusetts to sit as an MP and disclosed the notes to Pym. They were to the effect that having been let down by Parliament, this was a case of necessity and necessity knew no law – the King was ‘loose and absolved from all rules of government’. Strafford said he had an army in Ireland that ‘you may employ here to reduce this kingdom’. Did he mean Scotland, or by ‘this kingdom’ did he mean England – arguably a treasonable proposition, even though made to the King? It was an ambiguity that would soon cost Strafford his life.
War with the Scots was unpopular in London, where it meant forcible pressing of young men to be soldiers, as well as an enforced loan. This ‘Second Bishops’ War’ began, none the less, in August but ended the same month – ignominiously for the King, when the Scots invaded England and routed his forces. Charles made peace, on terms which once more he had no intention of keeping, although he realised that to get away with breaking this agreement he would need the support of the great Puritan peers, who were angrily petitioning for a new Parliament so that ‘the authors and counsellors of great grievances may be there brought to such legal trial and condign punishment as the nature of the several offences shall require’.41 Charles called another Parliament because defeat left him no alternative way of raising money to fight the Scots, but the threatening language of the peers’ petition should have given him due warning.
The ‘Long Parliament’ – it was to last for the next thirteen tumultuous years – first met in November 1640. Its initial act was to impeach the Earl of Strafford for high treason: the second most powerful man in the country was arrested and taken to the Tower. A few weeks later he was joined by the Archbishop of Canterbury, also accused of treason. The trifecta was narrowly missed: Finch was impeached after several of the ship-money judges confessed that he had improperly pressured them to give judgment for the King, but he escaped to exile in France. This was a heady time for the MPs and their supporters – the excitable ‘trained bands’ of London apprentices, the sober congregations of Puritan tradespeople, and the lawyers at the Inns of Court. Parliament kept flexing its muscles: it declared ship money unlawful and it ordered the release of the Puritan martyrs – Prynne, Burton and Bastwick – whose return to London from their provincial prisons was triumphal: they were accompanied by a hundred coaches and two thousand horsemen, and welcomed by a massive crowd. It was not long before a voice in Parliament demanded the release of John Lilburne.
That voice, ‘sharp and untunable’, came from an unknown MP. His plain cloth suit ‘seemed to have been made by an ill country tailor’. He had a ‘swollen and reddish countenance’ and there were specks of blood on his collar suggesting that he had cut himself while shaving.42 Thus did Oliver Cromwell strike one somewhat sniffy courtier at the time. That Cromwell should be the first to champion Lilburne would later become one of the minor ironies of the time. But it was a popular cause, which played well to the crowd – and from the very start of this Parliament there was a sense, certainly in the Commons, of the advantages in playing to the mob. In the streets of London there was a feeling that most of their grievances against the government were the fault of ‘Black Tom Tyrant’ – so the leaders of the House turned to devise ways and means of sacrificing Strafford.
Most of the leading MPs were lawyers, well aware that high treason, then as now, was conclusively defined by the Treason Act of 1351, as ‘compassing or imagining’ the death of the King, or levying war against the King or adhering to the King’s enemies. So their accusation against Strafford was that he had led the King astray. Other charges concerned his
actions as Deputy Lieutenant in Ireland, such as organising miscarriages of justice (e.g. punishing the Galway jury) and tolerating Catholic ‘mass-houses’ in Dublin. More serious were accusations that he had advised the King to wage war on the Scots and to bring the Irish army to the mainland ‘to reduce this Kingdom’.
The impeachment process was settled by long tradition. The House of Commons would vote to bring particular charges, then present them to the Lords for judgment at a trial in Westminster Hall. MPs would prosecute and would call witnesses against the defendant, who would be permitted to call defence witnesses and retain counsel to argue points of law. It would, in the case of the newly ennobled Strafford, literally be a judgment by his peers, or such of them as turned up to vote. He had the reassurance, at the end of the day, of the King’s power to pardon. But it was a trial of strength, and the House of Commons lawyers – led by Pym – spared no effort in preparing for the prosecution in the early months of 1641. There was plentiful evidence provided by Strafford’s enemies in Ireland, and the London crowd was kept at boiling point by pamphlets exaggerating his tyrannies. Strafford meanwhile was kept in close confinement in the Tower: his visitors and his correspondence were closely monitored and agents provocateurs were sent in vain efforts to entrap him. In this atmosphere, only a brave man would step forward to help the most hated prisoner in the realm.
John Cooke stepped forward. In a letter he must have known would be intercepted, he wrote to Strafford offering to testify for his defence. The Lord Deputy had never exceeded his powers in the two years that the barrister served in his administration. ‘I have known many that have felt the reviving heat of your Lordship’s speedy justice’, Cooke recalled, but this was not in subversion of the laws but rather in support of them: justice delayed was justice denied and his reforms had enabled poor suitors to contend equally with great ones. ‘Whilst I was in Ireland’, he wrote, ‘the poor cried there had never been so good a Lord Deputy before.’ When Strafford dispensed with jury trial it was only to avoid miscarriages of justice – ‘For I have known juries to go strangely against the evidence.’ Cooke volunteered to testify to Strafford’s reputation for religious orthodoxy. ‘That your Lordship should be over-indulgent to the Catholics more than what reason of state did require, I do not believe, for I knew your Lordship zealous to suppress mass-houses in Dublin.’43 What is remarkable, even at this remove, is that the young lawyer, who had nothing to gain, could take the risk of hitching his career to such a falling star.44
The Tyrannicide Brief Page 8
