Virtual History: Alternatives and Counterfactuals (17 page)

Of course, the transmission of cultural memory depends on a far subtler and more extensive range of influences than age alone. The traditions of Calvinist spirituality and the belief that Parliaments were an essential part of a rightly ordered commonwealth were unlikely to be forgotten merely because those who had actually experienced Elizabeth’s and James’s reigns ceased to constitute the majority of the population. Even when Parliament was not in session, pamphlets and treatises circulated (often in manuscript), relating its history, customs and powers; and there is no reason to suppose this would have ceased, even if Charles had won in 1639.
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Yet, even so, the impact of age and generation on political perceptions cannot be lightly dismissed. At least part of Parliament’s success in rallying support in 1642 derived from its emotional appeal to those who had lived through the struggles for ‘the subject’s liberties’ in the Jacobean and early Caroline Parliaments - in particular, the acrimonious sessions of 1626 and 1628-9. In 1639, this group was already a minority, albeit still a substantial one (roughly 40 per cent of the population). Had the call to arms to defend Parliament come five or ten years later, it might well have been greeted with a far less enthusiastic response. For the likes of Pym and St John, Bedford and Saye, 1639-40 was the ‘real crisis of Parliaments’: it was, perhaps, a matter of acting now or never.

Thus, looking beyond a hypothetical royal victory in 1639, the chances of Charles I being coerced by domestic rebellion or being forced to summon Parliament against his will would have been small - and possibly getting smaller by the year. However, there still remains one forum in which the King could have been forced to alter his policies, and where the legitimacy of his actions could have been subjected to public scrutiny: the courts of law. The judiciary still retained the power to inflict heavy damage on the fiscal policies (and prestige) of the crown, as was demonstrated by the great test case of 1637-8 over the legality of ship money, Rex v.
Hampden.
Heard before the entire bench of judges, the case was determined in the King’s favour - upholding the legality of the levy, notwithstanding that it was imposed without parliamentary consent. But the strength of the dissenting judgements in the case left the crown with, at best, a Pyrrhic victory. The verdicts of Sir Richard Hutton and Sir George Croke - stating frankly that in point of law ship money was illegal - commanded wide authority, and left the legitimacy of ship money holed below the waterline.
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Hampden’s case
nevertheless provides a series of pointers to the way in which the law, and the role of the judges as its interpreters, might have developed had the Personal Rule extended into the 1640s. At stake was a question which had been canvassed in various forms during the early seventeenth century: did the common law guarantee the subject’s rights in his property by demanding that taxation could not be levied without Parliament’s consent?
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To Hampden’s counsel, and to a large swathe of legal opinion within the country at large, it clearly did. The subject’s property could not be alienated except with the authority of a Parliament; ship money lacked parliamentary assent;
ergo
, it was unlawful.
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Yet for Charles (as for his father) the purpose of the law was instrumental: it was the practical means to achieve the end of ‘good government’ as defined by the crown; not a discrete body of wisdom (
à la
Sir Edward Coke) defining the law in conformity to abstract precepts of immemorial antiquity. Common lawyers were themselves divided as to which of these two interpretations should prevail. Here the contest was not necessarily between ‘the common law’ (as some fixed body of constitutional principles) and monarchical ‘absolutism’; rather it was between two competing versions of what the common law should be. Already in James’s reign, the idea that the common law was effectively an instrument of royal government had been extensively canvassed by Coke’s arch-enemy, Lord Chancellor Ellesmere (d. 1617), and by Francis Bacon (later Viscount St Alban, d. 1626) - both men steeped in the common law. From their perspective, Coke’s insistence on the primacy of the subject’s rights was misplaced.
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The crown could argue, and with some plausibility, that when faced with the task of paying for the defence of the realm in the 1620s, the amounts raised by parliamentary taxation had proved pitiably inadequate to the task.
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The principal form of taxation, the subsidy, was beset by what amounted to institutionalised fraud, whereby the gentry rated themselves for the tax at a mere fraction of their real worth.
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And by the 1620s the subsidy had been reduced in value to the point where (as Laud once tartly pointed out) it was hardly worth a king bargaining with Parliament about it. Ship money, on the other hand, was at least equitably imposed; was based on the subject’s ability to pay; and brought in a realistic sum, commensurate with the actual cost of providing a fleet for the defence of the realm - the principal duty of government.
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Since conquest extinguished all the laws of the conquered (as was almost universally agreed), it followed that without the defence of the realm there would be no liberties in general, still less the subject’s individual liberties and property rights
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Hobbes, who was scarcely less impatient of Coke’s views than Charles himself, neatly summed up the direction in which this line of argument was leading: there were circumstances, he contended, where a king actually had a moral obligation to rescind a promise not to tax without the subject’s consent. ‘If a king find that by such a grant he be disabled to protect his subjects if he maintain his grant, he sins; and therefore may, and ought, to take no notice of the said grant.’
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During the 1630s, the judiciary’s refusal to provide unanimous approval for such an ‘instrumental’ view of the common law constituted one of the main obstacles to the creation of reliable, non-parliamentary sources of revenue for the crown. Altering the character of the bench was, however, a difficult and delicate matter. Judges held office until death; and, though they could be removed under exceptional circumstances, outright dismissal of a judge - as Charles had already learnt to his cost - was likely to be counterproductive, antagonising the bar and undermining the standing of the courts. If the courts were to work effectively as a buttress of the King’s Personal Rule, their adjudications needed to be - or at least seem to be - freely given, not coerced by Whitehall.

Yet, when it came to his difficult judges, time seems once again to have been on Charles’s side. By the late 1630s, he was well on the way towards achieving his goal: a judicial bench composed of men who could command respect among their peers while at the same time being broadly sympathetic towards a ‘maximalist’ interpretation of the relation between the crown’s prerogatives
vis-à-vis
the common law. Of the five judges who found against the crown in the ship-money case of 1637-8, four were men in their seventies - Elizabethan survivors whose intellectual formation dated from the 1580s and 1590s. They were also at the end of their careers. The septuagenarian Sir John Denham (b. 1559), who found for Hampden, was dead within a year of handing down his judgement against the crown. Sir Richard Hutton (b.
c
.1561) died a month after Denham (on 26 February 1639).
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And Sir George Croke of the Court of Common Pleas (b. 1560), was compelled by declining health to seek permission to retire from the bench in 1641, and died on 16 February 1642. A fourth septuagenarian, Sir Humphrey Davenport (b. 1566), who found for Hampden on a technicality, lived on until 1645; but, as his judgement made clear, he was prepared to affirm the legality of this non-parliamentary levy.
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Hutton, Croke and perhaps Denham were the three most trenchant critics of the regime on the bench. By 1641, Charles was rid of all three.
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For critics of ship money, as for opponents of other aspects of the Caroline regime, the late 1630s were probably the last moment when an effective legal challenge to the regime could have been mounted.

By the early 1640s, in the absence of the parliamentary challenge, Charles would have been able to reconstitute the judiciary - without any rancorous purges or dismissals - so that the ‘lions under the throne’, when called upon to endorse novel fiscal exactions, would have purred their approbation from the bench. There would have been a price to pay for such subservience, in diminishing the judiciary’s prestige.
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Yet given a few more years,
Hampden’s case
(had it ever come to court) would probably have concluded, not with the half-hearted approval for ship money given by the bench in 1638, but with a ringing endorsement for the fiscal policies of the crown.
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The implications for the future development of the law after a royal victory in 1639 seem clear. Under a Caroline government in the 1640s, England would still have been governed under the common law; but it would have been a system of law which developed in the directions adumbrated by Bacon and Ellesmere - towards the greater concentration of political authority in the crown; not along the paths laid down by Coke. The way forward had already been announced by Sir Robert Berkeley, in his ship-money judgement of 1638. Repudiating the argument of Hampden’s counsel that the King could not ‘exact from his subjects’ without ‘common consent in Parliament‘, Berkeley had no doubts. ‘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 or means which he useth to govern his people by.’
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This was frankness that must have sent a chill through the hearts of all those who worshipped at the shrine of Sir Edward Coke.

With the Covenanter rebellion checked, an ever more compliant judiciary and the dwindling international ‘Catholic threat’, how would the three Stuart kingdoms have looked? Much depended on how a victory in 1639 would have affected the balance of power and influence at court. Undoubtedly, the figure who stood to gain most, in personal esteem and reputation, was the King himself. Kings victorious in war could normally expect the plaudits of the nation; and, notwithstanding the effective Scottish propaganda campaign directed to winning hearts and minds in England, there seems little doubt that a victory over the Covenanters would have been widely popular, and have done much to silence domestic criticism of the regime. Military success would have offered Charles I the opportunity to realise his ambition to create an ‘imperial’ unity between the three kingdoms - in effect to make Scotland and Ireland yet further subservient to the English state. In government and law (as already in religion), England would have provided the models for the ‘order and decency’ to which the Celtic kingdoms were to be made to conform. Victory would have given the King the opportunity to press on with the agenda of his Personal Rule upon which, as he saw it, his subjects’ welfare depended - in the somewhat sinister phrase the King was to use several years later: ‘If any shall be so foolishly unnatural as to oppose their king, their country and their own good, we will make them happy, by God’s blessing - even against their wills.’
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For Archbishop Laud, one of the chief enthusiasts in the Council for the decision to impose the English liturgy on Scotland in 1637, a royal victory in 1639 would have been more than just a personal triumph; it would have been a vindication by providence of the justness of his cause. His influence over the English church would have been powerfully consolidated, and the implementation of the ecclesiastical policies of the 1630s, interrupted by the war, would, it seems likely, have been vigorously resumed: the placement and railing of the communion-table ‘altar-wise’ in the east end of parish churches, the emphasis on catechising over preaching, the insistence on doctrinal and ceremonial conformity, and the enhancement of the wealth and social standing of the clergy. Had a modified version of English liturgy been successfully exported to Scotland in the late 1630s, other elements of the Laudian programme would likely have followed. In Ireland, Strafford and John Bramhall, Bishop of Derry, were already advanced in their plans to achieve liturgical conformity with England. And in all three kingdoms, the trend towards the clericalisation of government - epitomized by the appointment (engineered by Laud) of the Bishop of London to the lord treasurership in 1636 - was likely to have been further advanced. With Puritan celebrities such as Burton, Bastwick and Prynne languishing in their distant and chilly dungeons, Non-Conformists would have continued to smart under the Archbishop’s ever vigilant (and at times vindictive) rule. Inigo Jones’s remodelling of St Paul’s, with the entablature of its sixty-foot-high Corinthian colonnade proclaiming Charles as the ‘re-edifier’ of the church, would have continued into the 1640s: the visible monument to the triumph of the Laudian church.
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Catholics, too, stood to gain. Their timely subscriptions to the 1639 war-effort (which raised some £10,000) promised to yield a handsome dividend in the event of victory. On 17 April 1639, Queen Henrietta Maria had written to her principal secretary, the Catholic Sir John Wintour, undertaking to secure Catholics who assisted the King financially ‘from all ... objected inconveniences’ - a coded phrase for limited toleration.
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Catholics would have stood to gain a further slackening of recusancy laws (much to the disgust of Laud, who remained, despite his public reputation, strongly anti-Papist) and a further opening of court office to Papists. The Catholic Earl of Nithsdale - one of the inner ring of counsellors with whom Charles took the decision to go to war in 1639 - stood to gain a major position of influence in Scotland;
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so did the pro-Catholic Secretary of State and member of the King’s Council of War, Sir Francis Windebanke, at Whitehall. Whether such moves would have created a further reaction against Roman Catholics or, in time, permitted the emergence of a de
facto
toleration (such as developed contemporaneously in the United Provinces) is difficult to gauge.
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But there certainly would have been none of the vicious persecutions of Catholics which attended the Long Parliament’s rule during the 1640s, when over twenty Catholic priests went to gruesome deaths by hanging, drawing and quartering. In comparison with the grisly penalties inflicted on religious dissidents by Parliament during the 1640s, the most rigorous of the punishments imposed under the Personal Rule (even those on Burton, Bastwick and Prynne) seem relatively benign.
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