23.Simon Schama, The British Wars, 1603–1776: A History of Britain, Vol II, (London, 2001), p76.
24.The King’s Declaration Showing the Causes of the Late Dissolution, 10th March, 1629, S. R. Gardiner, Constitutional Documents of the Puritan Revolution, (1625–1660), (Oxford) 3rd Edition, p83.
25.Eliot’s Case is reported at (1630) 3 State Trials 293.
26.Chief Baron John Walter, who was suspended and threatened with dismissal: Edward Foss, Judges of England, Vol VI, p372 (London, 1848–64). The threats to Walter were recalled in 1689 during the drafting of the Bill of Rights, which provided that judges cannot be removed except by a two-thirds majority in both Houses of Parliament (a provision which has yet to be invoked).
27.G. M. Trevelyan, England Under the Stuarts, (1904) (Folio Society ed, London, 1996). p124.
28.Clarendon’s History of the Rebellion and Civil Wars in England, (Oxford, 1888, repr 2001), Vol. I, p5.
Chapter 2: Strafford, Ship Money and a Search for Self
1.Lacey Baldwin Smith, Elizabeth Tudor: Portrait of a Queen (Boston, 1975), p105–6.
2.John Winthrop, A Modell of Christian Charity Written on Board the Arbella on the Atlantic Ocean, Winthrop Papers II, p282. As Frank Lambert puts it, ‘The Puritans viewed themselves as a chosen people, an American Israel, who had entered into a covenant with God to plant a Holy Commonwealth in the New England wilderness’: The Founding Fathers and the Place of Religion in America, (Princeton, 2003), p74.
3. David Hackett Fischer, Albion’s Seed, (Oxford, 1989), p17. The hardships of the first few years made Winthrop think that God had ‘stripped us of our vain confidence’. He gritted his teeth, and told his wife ‘It is enough that we shall have heaven, though we should pass through hell to it.’ See Francis J. Bremer, John Winthrop, America’s Forgotten Founding Father, (Oxford, 2003), p194. For Peters’ role at Harvard, see Samuel Eliot Morison, The Founding of Harvard College (Cambridge, 1935), p303–4.
4. Fischer, ibid, p112.
5. Vindication, p18.
6. John Adair, A Life of John Hampden, (London, 2003), p92.
7. George Wharton, Mercurius Elencticus, (No. 56), 6 February, 1649. Wharton was an astrologer and cavalier propagandist: his claim that by 1634 Cooke was an experienced litigator and crooked marriage-broker, who decamped to Ireland with a client’s money, is demonstrably false.
8. Irish judges routinely accepted lavish gifts from great landowners like the Earl of Cork. Judge Sarsfield, who had convicted an innocent man of murder in order to seize his land after his execution, was sent to the Star Chamber for punishment. See R. L. Rington-Ball, The Judges in Ireland (Dublin, 1993) p248.
9. See CV Wedgwood, Thomas Wentworth First Earl of Strafford, A Re-evaluation (London, 1961), p172–3.
10. Hugh F Kearney, Strafford in Ireland, (Manchester, 1959), pxii
11. Wedgwood, above note 9, p160.
12. The Poor Man’s Case, p21.
13. Wharton, Mercurius Elencticus 56, above note 7. This libel is false on two scores: the statutes were printed in 1635 while Cooke was in Strafford’s service, and the young lawyer was back in England in 1641, offering to help Strafford’s defence.
14. Cooke’s Letter to Strafford, in Papers Relating to Thomas Wentworth, First Earl of Strafford, ed. C. H. Firth, Camden Miscellany, ix, Camden Soc, NS/iii (1895), p19.
15. Vindication, p57.
16. ibid, p93.
17. Edward Chaney, The Grand Tour and the Great Rebellion, (Geneva, 1985), p276.
18. Paul Johnson, The Offshore Islanders (Penguin, 1972), p272.
19. Cooke’s two travelling companions were well-connected: Nicholas Weston (son of the Earl of Portland) and Edward Ironside, probably the son of the future Bishop of Bristol – Chaney; note 17 above), p276–7.
20. Wharton, Mercurius Elencticus 56, 6 February 1649.
21. A Union of Hearts, (London, 1647), p50–51.
22. Edmond Ludlow: A Voyce From the Watch Tower, part 5 (1660–62), edited by A. B. Worden (Camden Fourth Series, Volume 21), p229. The Memoirs of Edmond Ludlow, first published in 1702, state that Cooke ‘at Rome had spoken with such liberty and ability against the corruptions of that court and church, that great endeavours were used there to bring him into that interest. But he, being resolved not to yield to their solicitations, thought it no longer safe to continue among them; and therefore departed to Geneva where he resided some months in the house of Signor John Diodati, Minister of the Italian church in that city’ (Vol. III, Sands Edition, Edinburgh, 1751, p57). Blair Worden argues persuasively (see his ‘Roundhead Reputations’, London, 2001) that Ludlow’s authentic ‘Voyce’ and its earlier lost parts were heavily edited by John Toland in the interests of the Whig revival. (This passage is part of his evidence, on the basis that Toland added biographical detail about Diodati which he knew from researching his ‘Life of Milton’).
23. ibid. The fact that Cooke conducted himself as a pious Calvinist is omitted by Toland from Ludlow’s ‘Memoirs’.
24. John Milton, Second Defence of the English People, see Milton, Works (Oxford 1991), p322. Milton’s close friend from his Cambridge days, Charles Deodati, was the theologian’s nephew.
25. Vindication, p89.
26. See J Cooke, King Charles: His Case, in J. G. Muddiman, The Trial of Charles I (Notable British Trials, London 1928), p251–2.
27. See Cooke’s letter to Strafford, note 14 above.
28. Obvious, after watching ‘Celebrity Big Brother’. The original Latin is: ‘Qui nimis notus omnibus ignotus deoritur sibi’. This fear of popularity seems to have obsessed the youthful Wentworth: he scribbled it on the flyleaf of a devotional book, changing ‘deoritur’ to ‘moritur’ (‘he who is too well known to everyone, dies without knowing himself.’), C. V. Wedgwood (above note 9), p25.
29. Act of the Privy Council on the Position of the Communion Table at St Gregory’s. S. R. Gardiner, Constitutional Documents (Oxford, 3rd edition, 1906), p103.
30. Wedgwood, Thomas Wentworth, above, note 10, p236.
31. But see D. L. Keir, The Case of Ship Money (1936) 52 LQR 546, who argues that Hampden’s legal tactic of ‘demurring’ to the writ meant that the King’s claim that the realm was in danger had to be taken at face value. But the face of the writ did not at first make such a claim, and a national emergency could not rationally be deduced from the occasional depredations of pirates. That the King’s factual claim was so obviously bogus was grist to those (like Cooke) who interpreted the majority judgements as a blank cheque for the King to override the law whenever he might whimsically think it ‘necessary’.
32. R v Hampden is reported at (1637) 3 State Trials 825–1316.
33. Wilfrid Prest, The Rise of the Barristers, (Oxford 1986), p229, citing Augustine Baker’s Memorials.
34. Cooke writes in What the Independents Would Have (1647), p1 that at this time he ‘read with a single eye’ (i.e. critically) the writings of dissenters like Ainsworth, Jacob, Robinson and Johnson – separatists who had set up their church for Anglican exiles in Holland early in the century. The pilgrim fathers on The May Flower had been separatists, not mainstream puritans of the kind who followed Winthrop to Massachusetts.
35. Vindication, p49.
36. Margaret Pelling, Medical Conflicts in Early Modern London: Patronage, Physicians and Irregular Practitioners (Oxford, 2003) p150.
37. The Poor Man’s Case, p62.
38. Harold J Cook, The Decline of the Old Medical Regime in Stuart London. (Cornell, 1986), p130.
39. Adair, above note 6, p124.
40. Prest, Barristers, (above note 33), p253.
41. Petition of Twelve Peers for summoning a New Parliament: S. R. Gardiner, Constitutional Documents, (above, note 29), p134.
42. Sir Philip Warwick, Memoirs, quoted in Pauline Gregg, Freeborn John: The Biography of John Lilburne (London, 1961, repr Phoenix), p34.
43. Cooke’s letter is found in Papers relating to Thomas Wentworth, first Earl of Strafford, ed. C H Fi
rth, Camden Miscellany IX, Camden Soc, N S Liii (1895). It was transcribed by William Knowler – the original has disappeared.
44. It demonstrates the falsity of Wharton’s allegation (See note 13 above) that Cooke had absconded with money given him by Strafford and only dared to return to England after the Earl’s execution. On the contrary, Cooke was back in England well before that event, daring to help his old employer in his hour of need.
45. Tryal of Thomas Earl of Strafford, Complete State Trials, (London, 1719), Vol. I, p361.
46. ibid, p372.
47. The Solicitor General, Oliver St John, frankly accepted that legislation – the Act of Attainder – was necessary for declaring doubtful cases of treason. Recent academic studies argue that the Act extended the definition of treason to make it a crime against the government of the realm rather than specifically against the King: see Roberts, C., The Growth of Responsible Government in Stuart England (Cambridge, 1966); W R Stacey, ‘Matter of Fact, Matter of Law and the Attainder of the Earl of Strafford’ (1995) 29 American Journal of Legal History 323, at 325, 328; Conrad Russell, ‘The Theory of Treason in the Trial of Strafford’ (1965) 80 English Historical Review 30, 31, 45–7; Allan Orr, Treason and the State (Cambridge, 2002), p61 et seq. But it was still the King’s realm: in 1641, the notion of Strafford’s attainder as a jurisprudential bridge between treason against the King and treason by the King would have been a bridge too far.
48. One of them, Richard Starkey, claimed that Cooke was actually ‘accused for debt’ at this time. Although this was prejudicial evidence given at Cooke’s trial in 1660, Cooke did not dispute that he scraped a living in this period by giving tutorials.
49. As Ludlow remarked, ‘This choice man, when propounded to the Parliament for employment, was represented a light person, and incapable thereof.’ Voyce, above note 22, p239.
Chapter 3: A King in Check
1. The most recent estimate suggests that about 800,000 died in the British Isles as a result of the civil wars. The heaviest casualties were in Ireland. See Diane Purkiss, The English Civil Wars: A Peoples History (HarperPress, London, 2006).
2.Act for the Abolition of the Court of Star Chamber, S. R. Gardiner, Constitutional Documents, (Oxford, 3rd Edition, 1906), p179. Act Declaring the Illegality of Ship Money, ibid, p191. For the continuing potency of the abolition of Star Chamber, see the House of Lords decision in A v Home Secretary (2006) 1 All ER 575, which refused to countenance the admission in UK tribunals of evidence obtained by torture.
3. Nicholas Canny, Making Ireland British 1580–1620 (2001) p469–492.
4. S. R. Gardiner, History of England from the Accession of James I to the Outbreak of the Civil War, 10 Volumes (Oxford, 1883/4), Vol. X, p140.
5. Marten said in a House of Commons debate that ‘it was better that one family should be destroyed than many’ and was sent to the Tower when he admitted he was speaking of the royal family. He was soon released, but expelled from the House and not allowed back until 1647. Mark Noble, The English Regicides (London, 1798) Vol. II, p41.
6. Cromwell penned this telling metaphor in a private letter consoling his brother-in-law for the loss of his son: Abbott, Letters and Speeches (1904) letter 21, 5 July 1644.
7. This was true of other Presbyterians, but not of Manchester, who had fought bravely at Marston Moor but suffered shell-shock from the carnage. He soon retired from public life, re-emerging in 1660 to welcome Charles II and, as Lord Chamberlain, to organize his coronation.
8. Where the King’s gay cavaliers were not as gentlemanly as legend would have it. Anthony Wood provides a less romantic snapshot of their occupation of Oxford: ‘though they were neat and gay in their apparel, yet they were very nasty and beastly, leaving at their departures their excrements in every corner, in chimneys, studies, coal-houses and cellars. Rude, rough, whoremongers; vain, empty, careless.’ Paul Johnson, The Offshore Islanders, (Harmondsworth, 1975), p296.
9. But the religious fanaticism of their forces took iconoclastic toll of churches left with stain glass shattered and baptismal fonts full of urine. Their worst atrocity was committed on the night that Naseby was won, when a party of roundheads massacred a group of Welsh prostitutes found with the royalist baggage train. The true shame of this episode is not so much that it occurred (the women had attacked them with kitchen knives) but that it was never investigated, leaving the suspicion that they were executed as whores rather than suppressed as rioters.
10. Vindication, p75.
11. See Francis J. Bremer, John Winthrop – America’s Forgotten Founding Father, (New York, 2003), pp335–6.
12. A Union of Hearts, p17.
13. State Trials, Vol. 5, p1074.
14. See John Lilburne, The Legal Fundamental Liberties of the People of England (1649), Thomason E560, p62.
15. Vindication, p26. This case may have been the basis of Wharton’s false allegation in Mercurius Elencticus No 56 that in 1633 Cooke was a marriage broker who pocketed £1,500 from a client then decamped to join Strafford.
Chapter 4: The Breath of an Unfee’d Lawyer
1. Cooke, Letter to the Lord Deputy, August 1655, printed in E Maclysart, Irish Life in the Seventeenth Century, (Cork, 1950), p442.
2. Ludlow, Memoirs, (Sands Edition, Edinburgh, 1751), Volume I, p246.
3. Wilfrid R Prest, The Rise of the Barristers, (Oxford, 1986), p2.
4. Donald Veall, The Popular Movement for Law Reform, 1640–60, (Oxford, 1970), p73.
5. St Luke, chapter 11, verses 46, 52.
6. C W Brooks, Pettyfoggers and Vipers of the Commonwealth, (Cambridge, 1986), p112–3.
7. Sergeants-at-law read for a special degree at the Inns and served (like modern recorders) as part-time judges of assize: see John H. Baker, An Introduction to English Legal History (4th edition. London, 2002), p157–8 and 21.
8. This benefit was intended for the gentry and clergy but was not, in practice, their preserve. Criminals able to read (or at least to memorise) the ‘neck verse’ might also be freed.
9. As in the case of the Gunpowder plotters. Common lawyers were reluctant to admit that torture could be justified in English law – as Fortesque said, it was something done by the French. Sir John Fortescue, On the Laws and Governance of England (Cambridge 1997, written in the mid-fifteenth century) Chapter 22, p31–4. Under civil law, torture of suspects was regularly ordered by continental magistrates.
10. Aubrey says of Bacon ‘He was a homosexual. His ganymedes and favourites took bribes, but his lordship always gave judgement according to justice and honesty’. Aubrey, Brief Lives (London, Folio Society, 1988), p38.
11. Gerald E. Aylmer, King’s Servants, p89, 93–94.
12. Prest, Barristers, (note 3 above), p311.
13. Vindication, p80 (although this reference may refer to Fairfax’s father).
14. Letter to the Lord Deputy, in Maclysart, above note 1, p445.
15. A Union of Hearts, p24.
16. See Prest, Barristers, (above, note 3), p123–4.
17. Letter to the Lord Deputy, in Maclysart, above note 1, 1655, p438–440.
18. Entitled Some Advertisements for the New Election of Burgesses for the House of Commons, this pamphlet was published in connection with the election of ‘recruiter’ MPs who replaced those who had defected to the King at Oxford. It was republished a few months later under the more sensational title.
19. Shakespeare, Henry IV, part 2, Act IV, Scene 2.
20. Vindication, p35.
21. Vindication, Epistle Dedicatory.
22. Vindication, p58.
23. ibid, p3.
24. ibid, p57.
25. Prest, Barristers, (note 3 above) p292.
26. Vindication, p13.
27. ibid, p19.
28. ibid, p23.
29. ibid, p22.
30. ibid, p25.
31. ibid, p33–4.
32. Prest, Barristers (note 3 above), p27.
33. Vindication, p40.
34. ibid,
p58–9.
35. ibid, p26.
36. Vindication, p66 and see Veall (above, note 4), p220–1.
37. ibid, p76, 96.
38. Veall, Law Reform (above, note 4), p73.
39. Benjamin Woolley, The Herbalist (London, 2004), p240.
40. Pauline Gregg, Freeborn John, (London, 1961), p102.
41. Margaret Pelling, Medical Conflicts in Early Modern London, (Oxford, 2003), p148.
42. Royal College of Physicians, B Hamey to Isaac Dorislaus, 20 August 1646 (copy supplied to author by Dr Prest).
Chapter 5: What the Independents Would Have
1. ‘The English Revolutionaries, because of the conservative nature of the English character and because of the pervasive influence of their legal education, had to find a precedent even for an innovation.’ Stuart E. Prall, The Agitation for Law Reform During the Puritan Revolution, 1640–60, (The Hague, 1966), p6.
2. Henry Parker, Observations Upon Some of His Majesty’s Late Answers and Expressions (1642), Thomason E 153 (62).
3. A. K. Kiralfy, Potter’s Introduction to English Law and its Institutions, (1958) 43; cited by Prest, Barristers, p235.
4. A Union of Hearts, p12.
5. ibid, p8.
6. Woolrych, Britain in Revolution, (Oxford, 2002), p335–6.
7. Cited in Tristram Hunt, The English Civil War at First Hand, (London, 2002), p151.
8. S. R. Gardiner, Constitutional Documents of the Puritan Revolution, 3rd Ed, (Oxford, 1903), p315.
9. John Cooke: What the Independents would have, or a character declaring some of their tenets, and their desires to disabuse those who speak ill of that they know not (London, 1647).
10. ibid, p3.
11. Union of Hearts, p37.
12. ibid, p68–9.
13. ibid, p8.
14. ibid, p10.
15. ibid, p14.
16. Gardiner, Constitutional Documents (above Note 8), p335.
17. The debate over the King went on for several days, and became so heated that William Clarke, the army stenographer, was ordered to stop recording it. The exchange between Harrison and Cromwell appears in his notes for November 11. See John Morrill, ‘Oliver Cromwell’, Oxford Dictionary of National Biography (Oxford 2004).
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