James’s assertion that the King could do no wrong would never be tested during his reign. Judges were not minded to assert any power over him, even if (as Coke contended) they had it, because they lacked tenure of their office and could always be sacked if they displeased him. Coke himself was dismissed from the Chief Justiceship for that very reason in 1616: he had infuriated James once again, this time by refusing to concede that the King was entitled to summon the judges for a private ‘consultation’ about a case to which the King was a party. But Coke, despite his intellectual courage, was as corrupt as all other gifted commoners when it came to advancing his career or his wealth. He sought to worm his way back into royal favour by forcing his fourteen-year-old daughter to marry the Duke of Buckingham’s idiot brother, tying her to a bedpost and whipping her until she gave a sobbing consent, and battling, on the streets and in court, with his wife who opposed the match. Challenging the absolutist claim of royal power would require a different breed of men, with a faith firm enough to transcend trivial temptations of earthly wealth or privilege. Disappointed, Coke became a baleful anti-Stuart presence in Parliament, and wrote his justly famous Institutes, a textbook which taught John Cooke’s generation of law students to revere Magna Carta as the source of English liberty and that kings, for all their ‘natural reason’, could not be accepted as interpreters of the common law, since they lacked training in ‘the artificial reason and judgment’ by which the laws of the realm of England were to be understood and applied. Coke’s point – that ‘law is an art which requires long study and experience, before a man can attain to the cognizance of it’7 – was not just a denial of the theory of the monarch-judge, but a claim to a professional monopoly. The prospect was congenial to students slaving over tedious texts and precedents for the seven long years of study at the Inns of Court.
At the royal court, however, divine right doctrine was drummed into Charles the young Prince of Wales: he lived it in the lavishness of the surroundings and the sycophancy of the courtiers. The only ‘outsiders’ that he could be bothered to meet at a social level were artists like the tame playwright Ben Jonson and Inigo Jones the architect, happy to create private masques in which the royal family could join in the singing of their own praises. Significantly, these expensive and exclusive self-celebrations were Charles’s greatest delight: both as youth and man he played out idealised stage roles as sincerely as if he were living the fantasy of a prince adored alike by angels and subjects. He grew up in a narcissistic cocoon, unconcerned about the feelings and aspirations of other classes and citizens – merchants and land-owning squires and ambitious lawyers – who believed that their new-found prosperity, which had grown during the peace which was the greatest achievement of James’s reign, should give them some stake in national policy. Many of these hard-working, ambitious men were Puritans, a religious caste towards whom Charles had inherited his father’s uncomprehending distaste. Among them was Oliver Cromwell, born in 1599, the only son of wealthy and well-connected Puritan gentry in Huntingdon. He was a man whose massive talents any sensible regime would seek to harness. But in the 1630s Cromwell was so disillusioned about his prospects under Stuart rule that he seriously considered emigrating to America – a course which over 20,000 Puritans actually took, in the decade after Charles prorogued Parliament in 1629.
John Cooke was a generation behind Cromwell and from a different class entirely: a class of husbandmen who always had to worry about money. A census in 1619, when John was eleven, shows two younger brothers (James and William) and two baby sisters.8 Isaac, at thirty-five, had yet to acquire the land or the income of £40 per year that would entitle him to the status of ‘gent’,9 and he could not afford to provide his precocious eldest son with a university education at nearby Cambridge. In Oxford, however, a college had recently been founded ‘for poor and needy scholars’ by the will of a wealthy West Country Protestant, Nicholas Wadham. Cooke met its conditions for entry, having been born in wedlock to a family which could not provide him with an income of more than £8 per year. He was impressive enough for Wadham to accept him at fourteen, the youngest age possible. His class was recorded as ‘plebeian’, and he came as a ‘battellar’ who would reduce cost to the college by looking after himself as much as possible. College records show that he lived for his first year in a chamber underneath the chaplain’s lodgings, and his good behaviour may be inferred from the fact that his ‘caution money’, deposited in case of misconduct, was returned in full when he left Wadham in 1624. He had to attend the twice-daily chapel services, at 5 a.m. and 8 p.m., and eschew such pleasurable pursuits as might have been available (few were: to remove temptation, all servants had to be male except for the laundress, who was required to be elderly and of unblemished repute).10 Rhetoric, logic and moral philosophy were taught, along with Greek and Latin, but theology suffused all teaching. It was designed to prepare the students for a good life – by which was meant a life godly enough to continue after death.
At Wadham, Cooke’s contemporaries included Robert Blake, who grew up to become Cromwell’s mighty admiral, vanquisher of the Dutch and Spanish and French fleets, and Nicholas Love, later a lawyer MP who would serve as one of the judges at the King’s trial. Carew Ralegh, Sir Walter’s son, was there as well – he had been thrown out of the royal court for frightening the King, who took him for the ghost of his father. A friendship between Carew and Cooke led the latter to read Sir Walter’s banned History of the World, which emphasised the deceit and oppression of kings who ‘pulled the vengeance of God upon themselves’.11 Cooke would later salute the work as an example of the ‘application of those twin lode-stars, nature and right reason’.12 It must have staggered these boys as they came to realise how cruelly the life of the greatest living Englishman had been sacrificed, by order of a king who wanted to curry favour with a hostile power whose Armada had, within the memory of many of their tutors, been scattered by Ralegh’s ships and fellow captains.
Students at Wadham in the 1620s would have surveyed a Stuart court that was financially and morally bankrupt. James paid for his pleasures by selling knighthoods and preferments and by privatising royal monopolies like the collection of taxes and customs dues. The court continued its licentious ways. George Villiers, dashing but dim-witted, had been elevated to become the King’s leading minister and created Duke of Buckingham: James privately called this catamite courtier ‘my sweet child and wife’. Gossip at the colleges and the Inns of Court was more of Lot’s wife and the horrible punishment for sodomy ‘as we had probable cause to fear, a sin in the prince as well as the people’, recorded Simonds D’Ewes, a student at the Middle Temple, in his diary for 1622. He confided, in code, his concern about the King’s ‘base and cowardly nature’ and the sexual preference for which he was ‘laughed at by the vulgar.’13
Zealous young Puritans like D’Ewes and Cooke could level an even graver charge against James: he had betrayed the Protestant cause. He had refused to help the troops of the Protestant elector Frederick, under attack by Catholic forces of the Holy Roman Empire, despite the fact that Frederick was married to James’s own daughter Elizabeth. His foreign policy was set upon forging an alliance by marrying Charles to the King of Spain’s daughter, so he gave permission for a hare-brained scheme conceived by Buckingham and Charles, which made them the laughing stock of Europe. It involved their travelling incognito to Madrid, for Charles to woo the princess in person. Philip III took advice from the Pope, then kept them waiting while adding conditions to the match which would require toleration for Catholics – a policy anathema to most of the English and blasphemy to the Scots. The unsuccessful suitors returned home to public joy, more over their failure than over their return. Indeed, the insouciance with which James and Charles and the despised Buckingham could contemplate a Catholic alliance caused deep disquiet. When an alternative foreign alliance was forged, through Charles’s marriage to Princess Henrietta Maria, it was with France, the lesser of the two Catholic evils. But the priests w
ho attended on her, and the open Catholicism of her ‘court within a court’, would remain a grumbling provocation throughout her husband’s reign.
James died on 27 March 1625 after contracting a malaria-like fever. Buckingham had forcibly kept the royal doctors from his bedside and arranged for his own servants and his mother to treat the King with mysterious potions and poultices. Rumours swept the nation that Buckingham and Charles, fast friends after the Madrid escapade, had poisoned the old man. The following year one of the King’s doctors went public with this charge against Buckingham, and it was inconclusively investigated by a parliamentary committee. No allegation could be made against Charles, who was now King and hence above the law. But the evidence against him, of complicity in an unnatural plot to inherit the throne by hastening the death of his own father, was avidly discussed at the Inns of Court in Cooke’s first year. In that questioning but protected forum, it was possible to argue that the Lord’s commandment ‘Thou shalt not kill’ applied to kings, as well as to commoners.
Cooke was a student at Gray’s Inn from the outset of Charles’s reign. It was a long apprenticeship to become a barrister: seven years of study at an inn, followed by satisfactory performance of practical exercises under the direction of a senior barrister for three years after call to the bar. Cooke was ‘called’ (allowed to begin supervised practice) in 1631, at the age of twenty-three. Although James had ordered that no one should be admitted who was not a ‘gentleman by descent’, this was widely flouted, and Cooke took his place with other sons of plebeians – farmers and tradesmen who had scrimped and saved to clothe their sons in the velvet breeches and silken doublet of a law student. The Inns had provided a special education to the sons of English gentry for several hundred years. Most students did not in fact go on to practise law but the education gave them sufficient knowledge to operate as administrators of provincial government or of the large family estates that, if first-born sons, they would soon inherit. By 1625, however, the Inns had become more accessible to men from the lower middle classes, who saw the practice of law as a means of obtaining a measure of wealth and position.
After completing his seven years of legal study, Cooke did what is now termed ‘pupillage’ with a bencher of the Inn, Thomas Brickenden, who had to supervise his work for three years. Brickenden was a cautious and respected practitioner, of noted Puritan piety, who took over as dean of the chapel after the death of Richard Sibbes. That he was prepared to take Cooke as his apprentice was an indication of the youth’s religious intensity and capacity for grinding legal research. Brickenden advised him to study a tedious book by Justice Littleton on land tenure. It was ‘like a lump of beef after a grand dinner’, Cooke recalled, ‘Littleton being undoubtedly the most crabbed author to begin with any science in the world’.14 He read the more practical Doctor and Student with greater aptitude, because it dealt with actual cases, rather than ‘moot points and speculative conceits’. The seven-year bar course had been heavily loaded with theology, and Cooke was irritated by attempts to make legal science turn on biblical examples. Law was a man-made discipline: the first three years of the course should be spent on the study of divinity followed by four years on the unadulterated principles of the common law.15
The role of ‘divinity’ in law was to give it super-human strength. The Bible was a book of precedents, integrated into the common law with the help of preachers as well as professors, and the most influential in Gray’s Inn was Richard Sibbes – ‘heavenly Doctor Sibbes’ as Cooke described him – who would tell the young lawyer again and again to ‘study the law, but practise divinity’ because it was empty vanity for a barrister to advise a client unless he had himself been ‘a client at the throne of Grace’.16 Cooke was imbued with the teaching that God was no respecter of persons: ‘of all the men in hell, the torment of great men is most, because they had most comfort in this world. Mighty men shall be mightily tormented, that is all the privilege they shall have in hell.’17 There was only one Divine Right – and that was God’s right to rule kings: ‘Kings reign by Him . . . it is a treason against God to betray the Kingdoms that He has given them into the hands of his enemies.’18 The message from the Gray’s Inn pulpit was that kings might be held to account for leading their people astray and it was superstition, not true religion, that immunised them from punishment for breaching the law. Over such challenges to sovereign immunity, hostility between the new King and his Parliament would quickly develop.
Charles’s first mistake was to cling to his father’s favourite, the unpopular Duke of Buckingham. The two became inseparable: Charles, it was said, preferred Buckingham’s company to that of Henrietta Maria, his new wife. The young King appointed the inexperienced duke to lead a series of military excursions which ended disastrously. The first, to the fury of English Puritans, unintentionally helped the French attack fellow Protestants at La Rochelle. Then the English fleet, under Buckingham the Lord Admiral, failed ignominiously to take a small French garrison protecting the Ile de Rhé. Successive Parliaments attempted to impeach the duke, for offences ranging from misfeasance in office to the murder of James. But Charles always dissolved the House before it could lay hands on him, warning MPs ‘that Parliaments are altogether in my power for their calling, sitting and dissolution’. The King’s fatal loathing for the institution began in 1628, when Buckingham was murdered by a disaffected sailor named Felton, who claimed that his crime had been instigated by the accusations made against the duke in the House of Commons. Charles, distraught at the death of his best friend, was all too ready to believe him and to blame MPs, led by Sir John Eliot, for inciting the assassination. Buckingham’s death was celebrated throughout the land by bonfires and bell-ringings and ballads in Felton’s honour: these were mortal insults the grieving King would never forgive.
Although Charles was in certain respects an improvement on his father – he was sober and serious, and much more attentive to the duties of government – he had not inherited James’s street-wisdom and was hopelessly lacking in any ability to compromise with or to care about the aspirations of any section of his people. He had no empathy with the gentry. The landowning class was represented in the House of Lords (many because of the titles they had bought from James) and were now being elected to the Commons in large numbers, often defeating candidates who had the King’s support. After Buckingham’s death, Charles vowed that he would suffer Parliament to meet only for the purpose of voting him money; it would not be allowed to criticise his foreign policy or to speak up for the liberty of his subjects, either by objecting to his power to imprison them or by dissenting from the arrangements he chose to make for their Anglican worship. In this frame of mind, Charles denounced, deceived and dissolved successive Parliaments between 1625 and 1629 which refused (other than upon conditions he could not accept) to vote the loans and taxes he required. By so doing, he provoked the enmity of a class of powerful men who were ultimately to bring him down, with the help of doctrines forged by the generation of lawyers currently in training at the Inns. The MPs Cooke supported as a student – ‘Puritan squires’ like Eliot and Pym and Hampden – were sustained in their opposition to the King by Coke’s vision of the common law as the guarantor of liberty and by a more self-interested disinclination to suffer taxation without consent. But most crucially, the obstinacy they were to display in these first years of resistance to the King was a response to his challenge to their religious faith.
James had not carried out his threat to ‘harry Puritans out of the land’, but his son soon chose to promote, as bishops and court favourites, those Anglican divines who were keen to harry their ministers out of the Church. They were led by William Laud, an archbishop committed to hierarchical rule and to rituals (like the wearing of a surplice and signing the cross at baptism) and symbols (altar rails and stained glass) that most Puritans abominated. Laud and many of his supporters were ‘Arminians’ who doubted the Calvinist doctrine of predestination, believing (like Catholics) in the prospective sal
vation of sinners. They argued vehemently that it was mortal sin to disobey the sovereign’s command, and in consequence they preached obedience to one command that Parliament could never accept as lawful – the ‘forced loan’ that Charles decreed in order to raise money without its consent.
Charles had instructed his Privy Council in 1626 to order various taxes, like customs duties (‘tonnage and poundage’) without parliamentary approval. Some MPs who refused to pay were imprisoned, and five of them took out writs of habeas corpus requiring the King to justify their detention. Habeas corpus, ‘the great writ’, requires the state to show lawful cause for the applicant’s imprisonment. The MPs took their stand on that bedrock principle of English liberty, Clause 29 of Magna Carta, the Great Charter:
No free man shall be taken or imprisoned, or be deprived of his freehold, or liberties, or free customs, or be detained, or exiled, or any otherwise destroyed; nor will we pass upon him, or condemn him, but by the lawful judgement of his peers, or by the law of the land. To no man will we sell, to no man will we deny or delay, justice or right.
It was a crucial issue, the first in a succession of legal challenges by the parliamentary leaders to the royal prerogative. The King sacked the Chief Justice (Sir Randall Crewe) for expressing doubts about the legality of the forced loan, and his Privy Council directed the warden of the prison to answer the habeas corpus writ merely by stating that the orders to commit the MPs to prison without trial ‘were and are by His Majesty’s special command’. This was not a lawful answer, the barrister MP John Selden argued in The Five Knights’ Case which followed in 1627,19 because Magna Carta required that no person can lose his liberty except by due process of law: ‘His Majesty’s special command’ was not a law, let alone lawful reason for indefinite detention. On the contrary, replied the Attorney-General, the King’s command was the law: ‘the very essence of justice under God upon us is in him’. The order for indefinite imprisonment of the loan-refusers was an ‘act of state’, an exercise of the royal prerogative into which the courts could not enquire. The pliable new Chief Justice, Nicholas Hyde, agreed: he declined the MPs’ request to rule on the legality of non-parliamentary taxation, and ordered that they should stay in prison.
The Tyrannicide Brief Page 5