Charles’s dishonourable escape had finally convinced the army leaders that he could never be trusted, especially after they intercepted his letters explaining to Henrietta Maria that he would not keep any agreements he might make with the army or with Parliament once ‘he had power enough to break them’.20 Charles implacably opposed the abolition of bishops and would insist upon his right to control the army and upon a blanket amnesty – an Act of Oblivion for all his cavaliers accused of war crimes. These were all sticking points: the Houses of Parliament prepared four bills that retrospectively authorised all acts of the Parliament during the civil war, deprived the King of his prerogative to create peerages, placed the army under parliamentary control for twenty years and refused amnesty to the main cavalier commanders, subject to an undertaking to execute no more than seven of them.21 On 28 December the King sent back from Carisbrooke a robust refusal to sign the four bills, although he still claimed to be committed to a peace treaty which would put his subjects out of their miseries. This response was another marvel of hypocrisy: two days before, Charles had pledged to increase their miseries, by a commitment not to peace, but to a new war. In utmost secrecy, he had reached an ‘engagement’ with the Scots commissioners that their army would invade England, destroy Fairfax and Cromwell and restore him to power. Once the Scots had mobilised a force under the Duke of Hamilton, and when the King gave the signal, the second civil war would begin.
6
The Poor Man’s Case
WHILE THE KING was plotting to restore his absolute rule over his English subjects at the point of Scottish swords, John Cooke was working out how Parliament might win public support by a new programme of social legislation. The problem that he feared would undo any constitutional settlement with the King was the sudden and alarming increase in the numbers of the poor, in the aftermath of war and a succession of bad harvests. The price of corn in 1648 reached a new high, and wheat averaged 85 shillings per quarter: since a labourer’s wage was but 8p a day, hunger gripped the working classes.1 For all Cooke’s increasing legal engagements, he could not remain silent. He had gone back to Leicestershire at Christmas to question the husbandmen and farm labourers he had known in his youth: they told him it was impossible to supply barley and hops in sufficient quantities for the bread and small beer necessary for the townships. He found out about profiteers, who had driven up the price of bread in this ‘dear year’ by hoarding grain. The war had loosened the paternalistic hold over local communities of country squire and Justice of the Peace: one result had been an explosion in the number of unlicensed alehouses. Drunkards were prone to gamble away the rest of their money, leaving wives and children famished in turn. Cooke realised the danger that the poor might follow the beat of the King’s drum and drunkards might cry down the new establishment. In February 1648, he published a passionate plea for social justice, as a means of staving off a new civil war.
The Poor Man’s Case begged Parliament to pass an ‘angelical ordinance’ to lower the price of corn, provide for the proper licensing of taverns, reform drunkards and punish food profiteers. This book, written in an urgent, breathless prose, is a fascinating mix of sociological research, political diatribe and ideas for legal reform, introduced by a philosophical (or at least biblical) commitment to serve the down-trodden. It is difficult to categorise the work – think of some seventeenth-century Michael Moore, citing Deuteronomy. Cooke believed that poverty was an evil allowed by God in order that the rich might have occasion to do good. It followed that doctors should treat poor people free of charge, under a form of national health service, and lawyers should donate one tenth of their time to work pro bono: the first time anyone had suggested a system of legal aid. The money for poor relief should come from forfeitures of the ill-gotten gains or goods of criminals, and from a tax on money won at cards (unlike other Puritans, Cooke did not want gambling prohibited – he saw the value in putting its proceeds to better use, as in a national lottery). Royalties from mines and minerals, and all lost property, should go to the poor and not to the King. Drunkards would be forgiven twice, and helped on each occasion towards sobriety, but treated harshly if they were to prove incorrigible. Hoarders and profiteers would be severely punished. In order to set an example of stringency in a time of crisis, Cooke urged his readers to give up drinking toasts – even to the success of the army – and to forbear from purchasing expensive mourning clothes for attendance at funerals.
Suffusing The Poor Man’s Case is a new concept of the good neighbour – the ‘good Commonwealthsman’, not merely charitable to the poor but also considerate in business, acknowledging a duty to avoid consequences harmful to consumers or to society, notwithstanding that the business was lawful and profitable. Brewing strong beer was a topical example: it was ‘like putting a sword in the hands of a madman’. (Cooke reflected, sadly, that ‘Protestants are generally greater drunkards than papists, who are far more libidinous and unchaste’.) It was no sin, in Cooke’s book, to make a reasonable profit: his condemnation was reserved for the hoarder and profiteer, ‘caterpillars of the Commonwealth’. He argued, importantly, that in sale of goods the Roman law of ‘caveat emptor’ (buyer beware) was unsatisfactory: contracts should be avoidable if there was a hidden defect in the product. (Such unfair contracts could be set aside in courts of equity, but not in courts of law, hence Cooke’s obsessive crusade to fuse, or combine, law and equity in one court). The alehouses, where strong beer was sold and youth corrupted, should be closed down, and replaced by licensed taverns where landlords might be made responsible for the loss caused by any customer who became tipsy: moral responsibility entailed legal liability. Cooke was for moderation in all things rather than prohibition: a little wine might be healthy, and ale washed down bread, but strong beer conduced to drunkenness; even “that witch, tobacco” might be used “moderately and unlustfully”. Cooke was arguing for the opportunity to lead a well-ordered, well-governed life in a well-ordered, well-governed commonwealth, in which law would set the limits to men’s earnings so that they would not obsess about money: any wealth which exceeded a reasonable limit would go to the poor.2
In Cooke’s writings, we get the first sense that petty crime might be the product of social conditions – poverty, drink and famine. He was certainly the first to invoke international standards to condemn penal justice in England, even to require its reform. The conditions of London’s prisons shamed the government and the city ‘who must answer for the blood of every man that is famished in prison for want of bread, be his offence what it will, for by the law of nations no offender may be poisoned or famished to death, it being abhorred by the law of nature’.3 England had the most barbaric prisons in the world: the Turks might beat their galley slaves but ‘we cast men into a dungeon and suffer them to rot and famish – the most cruel and painful of all deaths’.4 In an age when theft above a shilling was punished on the gallows, Cooke’s lone voice argued for a defence of necessity to acquit a starving man of the charge of stealing bread from a baker or for stealing sheep from a rich man who owns a flock.5
Undeserved poverty moved Cooke more than any other contemporary evil: the cries of beggars for bread; the prisoners cast down the hole because they could not pay twopence for their lodging; the starving wife of a man made bankrupt by a vicious creditor; debtors given no time to pay but arrested and kept in prison without bail. These were common spectacles at the time and aroused no public concern: to Cooke they were cruelty and a denial of Christ’s example. He referred constantly to Matthew 18 (the parable of the compassionate lord who gave his servant time to pay a debt, only to despair when the servant then cast his own debtor into prison). He urged reform of prisons: improvement in nutrition; a minister in every gaol; weekend release so prisoners could attend Sunday sermons as well as see their families. There was a crying need to provide more poor relief to make begging unnecessary in London: the money ‘spent in pageant-like vanities on a Lord Mayor’s day would have fed all the mendicant poor about the c
ity’.6
Although it would be anachronistic to label Cooke a criminologist, there is real awareness in his writings of the social consequences of deprivation and of the connection between poverty and lawlessness. His analysis preceded by several years that of Gerald Winstanley, founder of the communal ‘Diggers’ movement, who argued that the temptation of private property was the cause of theft. Cooke concentrated on the effects of the 1647 famine on the behaviour of heads of poor households, who turned to crime in desperation to provide for starving children. He had ridden into the country to investigate their plight and was a familiar visitor to poor tenements and the plague-ridden narrow lanes of London. He was the first to argue that motivation for crime should be taken into account in sentencing and that poverty as a cause of crime should be a powerful mitigation. Judges should refrain from sentencing to death those who rustled sheep or cattle from wealthy estates ‘and enquire whether the prisoner was not necessitated to do it, to buy bread for his family or milk and clothes for his poor wife and children’. The judicial enquiry should be whether the prisoner stole ‘for want or for wantonness’; if the former, he should be given a second chance and only proceeded against if further thieving demonstrated incorrigibility. At a time when desperate men saw the logic in hanging for a sheep rather than a lamb, Cooke was almost alone in demanding the introduction of mercy into penal law.
The Poor Man’s Case maintained Cooke’s rage against the profession of medicine, by reference to the case of William Trigg, whom he had been called upon to defend yet again in 1647. Never before had a barrister written for publication about a cause in which he was still acting for a client: Cooke pointed out that he was not taking any fee and ‘I know no hurt in it, but so far as it concerns the poor this hard year, I would not gladly omit anything for their advantage: extraordinary diseases must have extraordinary cures’. Bar associations throughout the world still try to stop members writing about their cases, but at a time when barristers were making their professional rules as they went along, this was a reasonable position: Trigg’s case was not before a jury so Cooke’s writings could not prejudice a trial, and they provided an informative counter-blast to a powerful professional monopoly, which was prosecuting apothecaries and herbalists for using traditional cures which worked much more often than the bloodletting and purging prescribed for ‘humours’ of the body by physicians who followed the ancient and erroneous Galenic system.
Besides, he was able to generalise from what he had learnt in defending Trigg: that the medical profession was just as covetous and selfish and lacking in courage as the legal profession, albeit by no means as numerous – especially at times of plague, when they were really needed. In order to afford their country estates, city doctors charged heavily for visits (‘People in London would rather die than see an apothecary’s bill,’ said Cooke sarcastically) and they refused to visit the poor. Cooke’s proposed reforms were breathtaking in their prescience: he called for something akin to a National Health Service, in which doctors would be assigned free of charge to poor patients. Monopoly licensing by the college should be ended, so as to increase the supply of doctors amongst the City poor. Use of Latin to label apothecaries’ bottles must stop: the purchaser must know what he buys and a public health campaign should inform the public about the most tried and trusted herbal medicines and how to make them without having to go to a doctor for a prescription.7
In urging such reforms, Cooke was turning his sardonic, rationalising eye on a profession not far removed from quackery. Medical science was hit or miss, but legal science was well developed – already the common law had too many precedents, and publication of Coke’s Institutes provided more fodder for expensive argument. In The Poor Man’s Case, Cooke returned once again to the theme of the Vindication: high-profile practice now gave him the confidence to advance a more radical prescription for his own covetous colleagues and especially for ‘the great practitioners’ – the sergeants and barrister ‘favourites’. They should donate 10 per cent of their earnings to the poor or else should act pro bono in that percentage of their cases. In a passionate appeal to ‘all ye who live by the law, whom I may without presumption call brothers’ he observed how all the jeremiads rolling off the presses made use of that ‘scriptuary weapon’ from St Luke, ‘Woe unto you, lawyers’, and he warned:
All this smoke is not without some fire. He that knows anything about politics may easily foresee there is a great storm gathering in the Kingdom against us lawyers. The only way to prevent it is to keep hold of the principles of right reason and to dispatch poor men’s causes free of charge this hard year. In doubtful matters let us dissuade our clients from going to law, and tell them the danger of it, advise them to do as they would be done unto. Let us contend earnestly for the truth rather than for victory. As soon as we discover the cause is unjust let us drop it and advise our clients to make their peace. Let us never utter in court a word we believe untrue. If clients tell us they have no money, let us act for them for their thanks. Then, I warrant you, we will be Parliament-proof and Kingdom-proof: the people will quickly recognise our usefulness, and an honest lawyer will be a necessary member of the Kingdom and the wisdom of the common law will be admired and honoured. But if we make disquiet and trouble for the poor, then believe me the Kingdom will be as weary of us as they ever were of bishops or arbitrary courts.8
John Cooke’s ‘dear father’, Isaac, had come to stay with him at Gray’s Inn, following John around the courts and criticising the delays and injustices that he witnessed.9 His dear father was not the only critic – his ‘dear friend’ Hugh Peters, by now a power in the land as Cromwell’s favourite preacher, had turned his righteous rhetoric against the lawyers, and the two friends would meet and dispute long into the night, with Isaac often taking the clergyman’s side. Litigants should plead for themselves, argued Peters: in Holland, where lawyers were few, ‘You may get justice as often and as naturally as their cows give milk’.10 Cooke tried to disabuse him of the jejune notion that justice could ever flow so naturally. Peters was all for denuding barristers of their gowns – attachment to which was a mark of the public’s enslavement to their monopoly. Cooke replied: ‘Were I convinced that my wearing of a gown at Westminster tended to countenance in the least measure the slavery of this nation, I would hang it up in Long Lane and burn all my books but the Bible.’
These differences did not affect their relationship. Cooke admired Peters for his public service and was happy to brief this influential reformer in an effort to make his criticisms more informed, believing, quite correctly, that lawyers would not reform themselves until forced to do so by public clamour or by Parliament. Cooke insisted that he was for ‘reformation, not extirpation’ and he practised what he preached, announcing publicly that ‘for my own part, if any man wants any assistance, I shall freely give him my best advice as cordially without a fee as with it’. He became a one-man legal aid clinic, the first in Britain. But the criticisms from his colleagues weighed him down: ‘I must either quit the profession or answer every objection that is made against it’ was his response. Since ‘justice is as necessary as the sun in the firmament’ and there can be no laws without lawyers to explain their clients’ rights, then the profession was necessary to the peace of what he still described without irony as ‘the Kingdom’. But this was 1648 and Cooke detected trouble ahead: ‘All the malignant blood is not as yet drawn out of the Kingdom, there are those that are negotiating to engage us in a second and more bloody and destructive war.’ There were indeed, and the chief of these negotiators was the King himself, the ‘Man of Blood’ obsessed with spilling more of it to regain his own bloodline’s supremacy over Parliament.
7
Malignant Blood
THE SECRET ‘ENGAGEMENT’ between Charles and the Scots commissioners had been wrapped in lead and buried in the yard of Carisbrooke Castle. By the terms of their treaty, the Scots agreed ‘to hazard our lives and fortunes’ by invading England to restore Charles ‘to his
government, to the just rights of the Crown and his full revenues’ in return for his undertaking to confirm the solemn League and Covenant (subject to an accommodation with the Church of England and its bishops) and to suppress ‘the opinions and practices of Anti-Trinitarians, Anabaptists, Antinomians, Arminians, Familists, Brownists, Separatists, Independents, Libertines and Seekers’ and, generally, ‘all blasphemies, heresy, schism and all such scandalous doctrines and practices as are contrary to the light of nature or to the known principles of Christianity’. In other words, the Scots ‘engaged’ to fight for the King, to restore his prerogative rights to control the army, select ministers, appoint bishops, bestow honours and to maintain a ‘negative voice’ (the royal veto over any parliamentary legislation), in return merely for Charles’s promise to advance the Covenant and to suppress some minor sects whose behaviour outraged their Calvinist sensibilities. All they asked in addition was to recoup the sum of £200,000 which Parliament still owed them for handing over the King after the first civil war – and Charles cheerfully assented to back-payment of his own ransom.
So the King had once again declared war, silently but irrevocably, on ‘his’ people and ‘his’ Parliament. On the day that he rejected the four bills he arranged to leave the Isle of Wight on a ship that might have taken him to Scotland or to France – had an ill wind not blown for several days, by which time orders had arrived from Parliament to keep him under closer guard. Its debates in the early days of 1648 showed how the wind had changed in Westminster as well: for the first time, MPs discussed the possibility of impeaching the King, although as a means of deposing rather than decapitating him. In January, even before the ‘Engagement’ became public knowledge, the House of Commons debated again the ‘Vote of No Addresses’, which had been so soundly defeated the previous year: this time it passed, with Cromwell as its main protagonist.
The Tyrannicide Brief Page 15
