Oliver St. John and the Legal Language of Revolution in

England: 1640-1 642 BY

WILLIAM PALMER*

IKE a play that opened the night after King Lear, the career of Oliver St. John in the early stages of the Long Parliament has been overshadowed by the performances L of his dynamic colleagues, Pym, Hampden and Holles.

Although historians have thoroughly researched St. John’s role after 1643, they have neglected his earlier contributions. Reasons for this neglect are easy to find. St. John was not a commanding speaker nor a master of the rhetorical arts in the manner of Sir John Eliot. His long and ponderous speeches contained copious citation of precedent and statute. Not a captivating personality, in the early days of the Long Parliament, St. John lacked the persuasive skills, deft sense of compromise and refined political artistry that made Pym such a formidable manager of men. In a famous passage Clarendon described St. John as “a man reserved, and of a dark and clouded countenance, and conversing with very few, and those, men of his own humour and inclination.” Clarendon also referred to St. John, along with Pym, Hampden, Holles and others, as the real governing body of the Long Parliament, the “engine which governed the rest.” He asserted that St. John invariably acted in “firm and entire conjunction” with Pym and Hampden.1

*The author is Associate Professor of History a t Marshall University. A shorterversion of this paper was delivered at the Carolinas Symposium on British Studies at Appalachian State University on October 19, 1986.

‘Edward Hyde, earl of Clarendon, History of the Great Rebellion in England, 6 vols., ed. W. D. Macray (Oxford, 1888), 1: 246-47. On St. John’s career after Pym’s death, see Valerie Pearl, “Oliver St. John and the Middle Group in the Long Parliament August 1643-May 1644,” English Historical Review 81 (July 1966): 490-519; and Pearl, “The Royal Independents in the English Civil War,” Trans- actions of the Royal Historical Society, 5th ser., 18 (1968), 69-96. Additional information on St. John’s later career may be found in David Underdown, Pride’s Purge: Politics in the Puritan Reuolution (Oxford, 1971) and Mark Kishlansky, The Rise of a New Model Army (Cambridge, 1979).

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The confident, sweeping tone of Clarendon’s pronouncement has tended to make historians view St. John as a mere echo of Pym, a stout seconder.* There is some justice in this appraisal. Like Pym, St. John believed in the need for a Godly Reformation and the implementation of safeguards to defend an imagined Ancient Constitution. The precise nature of St. John’s beliefs from 1640 through 1642, however, has never been examined. Close study of these beliefs reveals St. John developed a unique approach to restoring true religion and repairing the damaged constitution, thus departing markedly from the approach which Pym proposed.

St. John rose to prominence by defending Hampden in the Ship Money case of 1637 after Hampden had refused to pay a small amount for coastal defense because the tax had not been approved by Parliament. The ideas that St. John expressed in the Ship Money case formed the basis of his political thought, although he would refine and modify several of his principal contentions in light of political developments after 1640. St. John undertook the case with the knowledge that two judges had already rendered favorable judgments on Ship Money and awarded the king, in its imposition, powers of a vast new dimension. Accordingly, he commenced his defense by making a substantial concession, granting a t the outset the right of the king to be the sole judge of the presence of danger. The law, St. John admitted, gives the king the power “by the writ and the great seal of England to command the inhabitants of each county to provide shipping for the defense of the realm.’’ This point, he contended, was not in dispute. The real question involved the manner in which the king exercised this power. In St. John’s view the king did not have the power to set fines or deliver judgments, except through the judges. Thus, he was not empowered to raise money beyond his ordinary revenues, except through Parliament. A representative assembly was most qualified to guard the rights of liberty and property. If the king could levy any imposition he desired upon his subjects, St. John declared, it would come to pass that all property could be held at the “goodness and mercy of the king.” Englishmen would thus become dependent on the king, rather than the law, for their property and rights. With this argument St. John advanced the idea most basic to the case against Ship Money. By allowing the king to impose taxation

2For a recent example, see Paul Christianson, “The Peers, the People, and Parliamentary Management in the First Six Months of the Long Parliament,” Journal of Modern History 49 (December 1977): 575-99.

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without parliamentary consent, Ship Money threatened the foundation of property itself.3

Stripped of technicalities, the remainder of St. John’s argu- ments contained variations on the theme that Ship Money posed a serious threat to property rights. He made no attempt to deny the place of the king as supreme head of government. “His majesty is the foundation of justice,” St. John declared, “and all justice in this realm flows from this foundation.” But, he contin- ued, the validity of the king’s power depends on the observance of proper legal channels. St. John conceded that in the case of danger arriving so rapidly as to preclude application to Parlia- ment, the king could act according to his own wisdom. The rights of property would merely be in abeyance. In the present case, however, no such danger existed. The king had issued writs in August to equip a fleet which, by the Crown’s own admission, was not needed until March.4

St. John awoke the day after his speech to find himself famous. During his entire dissertation, rapt spectators crowded the courtroom and the episode aroused intense i n t e r e ~ t . ~ The following spring the judges began to return opinions on the Hampden case. Five judges found for Hampden, three on legal grounds, two on a technical error they discerned in the composition of the writ. The remaining three judges found for the king. Chief Justice Finch returned the most uncompromising decision, arguing that in every state some man or body of men must exist in authority over others. Sensible men conceded this power to the king, thus entitling him, in cases of supreme national emergency, to sweep aside checks and balances without appeal. Thus the king possessed the right to void any act of Parliament in the interest of defending the kingdom. In fact, declared Finch, no acts of Parliament intending to bind the king in any way “make any difference.”6

St. John offered no published response to the judges’ decision concerning Ship Money, but the summoning of the Short Parliament of 1640 gave him ample opportunity to express his views. St. John was chosen to stand for Totnes in Revonshire, his seat secured for him by the earl of Bedford, Pym’s political patron.

3John Rushworth, Historical Collections of Private Passages of State: The Second Part, 3 vols. (London, 1680), 2:484,520-24,527. Samuel Rawson Gardiner, History of England, 1603-42, 10 vols. (New York, 1965), 8:272.

“Rushworth, Historical Collections 2:485,527. 5Cicely V. Wedgwood, The King’s Peace 1637-1641 (New York, 1955), 192-23.

“Gardiner, History of England 8:279-80. Gardiner, History of England 8:273.

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In the Short Parliament St. John joined a disparate body of moderate and tractable men, many of them troubled by aspects of royal policy, but hopeful of reaching a n agreement with the king. By no means in accord on all issues, few of them held concrete ideas for reform, and their various political visions, consisting of vague and imprecise ideas of a reformed Church, a Godly Commonwealth, local particularism and the preservation of an imagined Ancient Constitution, often conflicted.

In the initial proceedings of the Short Parliament St. John addressed the Commons many times on constitutional matters. In a speech on April 17,1640 Pym detailed the basic grievances of the Commons by dividing these complaints into several broad categories: parliamentary liberties, religion and matters of property. On these matters St. John remained quiet, but when Solicitor Herbert stated that questioning the king’s right to dissolve Parliament in 1629 amounted to “trenching upon his prerogative,” St. John quickly rose to dispute him, denying that questioning the dissolution in any way touched the royal preroga- tive. Opposing the dissolution, said St. John, was a matter of right. The king called Parliament at the behest of the Great Seal of England, not by his command alone. Therefore, since he could not dissolve Parliament on his own, the dissolution of 1629 was illegal.7

On April 22 St. John made his first recorded comments about religion, concurring with Pym’s claim that acts passed by a convocation could not bind the laity or make canons universal. This proposition was designed to prevent imposition of religious innovations such as those imposed by Laud and a gathering of bishops in the 1630s. No canons should be binding, argued St. John and others, unless Parliament approved them.*

Though of lesser urgency than Laud or Scotland, Ship Money, as a parliamentary grievance, was still a burning issue in 1640. Thus, when Lord Keeper Finch defended the integrity of the king and the king’s right to Ship Money, and implored the Commons to vote supply before discussing grievances, St. John was quick to respond, asserting that Ship Money could be placed in the forefront of the problems confronting Parliament. In essence, said St. John, the king’s demand to be granted supply before

’Esther S. Cope, ed., Proceedings in the Short Parliament of 1640, Camden Society, 4th ser., vol. 19 (London, 1977), 163. Although St. John conceded the right of “summoning, continuing, and dissolving” Parliament to the king in his Ship Money speech of 1637, by 1641 he would deny the king the right to dissolve Parliament. See Rushworth, Historical Collections 2:485.

Wope, Proceedings, 168.

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discussing grievances amounted to the same thing as his collection of Ship Money. In the Ship Money case the king had requested money without parliamentary consent. Now he wanted parlia- mentary consent for the money he needed, but that consent was worthless if granted without a n assurance that the king would consider their grievances.9 St. John did not merely speak against Ship Money. On May 4,1640 he moved that the legality of Ship Money be put to question.10 Not surprisingly, this proposal produced a n uproar. In effect St. John was proposing that the Commons overturn a decision already rendered by the courts.

St. John may have pressed the issue of Ship Money too far. Even some of his friends appear to have been annoyed by his insistance on its crucial nature. Later, on May 4, John Hampden said that he thought other issues besides Ship Money warranted the Commons’ attention. In Hampden’s opinion the great burdens imposed upon the counties in religious affairs presented a far greater cause for alarm. But St. John, undaunted, replied again that Ship Money remained a fundamental concern. It was necessary to make provision against all similar exactions, such as religious innovations without parliamentary consent, in order to avoid another unfortunate judgment. St. John also reminded the Commons that in the fourteenth century Edward 111, threatened with the French coming by sea and the Scots coming by land, still found it possible to go to Parliament for money to resist the invading forces.ll

Parliament never voted on the legality of Ship Money since, on the next day, May 5, Charles dissolved tha t body. Reaction to the dissolution was mixed. Although many members became embit- tered, and Clarendon wrote of a “great damp” seizing members’ spirits at the time of Parliament’s dismissal, he also recalled that it didn’t bother St. John in the least. Within a n hour after the dissolution Clarendon encountered St. John and, in a famous passage, described his reaction. Clarendon observed that St. John, whom he had seldom seen smile, had maintained a cheerful aspect. When Clarendon expressed his own disappointment at the dissolution, St. John replied that “all was well, and that it must get worse before it could be better, and that this Parliament

SBritish Library [BL], Add. MSS 11045, fol. 115r. locope, Proceedings, 196. “Ibid., 209. Interestingly, on April 27 St. John admonished members that no

man should speak to the king or anyone else about what transpired in the House, and that anyone who “acquainted the king” with the intentions of the houses did not deserve to sit there. Ibid., 179.

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could never have done what was necessary to be done.”12 If Clarendon’s retrospective account is correct and St. John feared that sterner measures would be necessary to restrain the monarchy, it could not have bolstered his confidence to see his Ship Money papers seized at the close of Parliament and a number of parliamentary leaders, including the earl of Warwick, Lord Say, Pym and Hampden arrested.I3

In the summer following the dissolution of the Short Parlia- ment, the war effort in Scotland continued to sputter. Laud, in defiance of tradition, kept the Convocation in session after the dissolution and guided the passage of a new series of canons, one of which instructed the clergy to preach the doctrine of the divine right of kings in the most uncompromising terms and another which pledged the clergy to accept the government as then established. The Convocation also granted the king a substantial benevolence. By August the Scots had again defeated the English, and they dictated a settlement which forced Charles to pay their army 2850 a day until the final peace was completed. This action shackled the king to Parliament and left him with no choice but to summon it to pay off the Scots. The new body, which came to be known as the Long Parliament, convened on November 3, 1640.14

When the Long Parliament finally assembled, it moved swiftly to impeach Strafford and Laud for treason. St. John made only a few brief comments, but he did say that the Commons should pursue Laud and Strafford even if the Lords refused. And on November 19, in a n action which would assume more signifi- cance later, St. John moved that the records of the King’s Bench be searched for precedents of attainder.15

12Clarendon, History of the Rebellion 1:183. St. John’s remarks, however, should not be interpreted as a call for revolution. St. John says nothing about rebellion, resistance, countenancing the use of force or even abandoning the legislative process. No justification of resistance appears in any of his speeches, nor can an ironclad identity between St. John and Pym be assumed. What he believed should be done is clear from his speeches: overturn the Ship Money decision and restore the judiciary to its proper state.

I3Wedgwood, King’s Peace, 330. Bodleian Library, Oxford, MSS Tanner 88*, fol. 117r.

ldSeveral recent works have cast new light upon the opeding of Long Parliament. See Anthony Fletcher, The Outbreak of the English Civil War (New York, 1981); Sheila Lambert, “The Opening of Long Parliament,” Historical Journal 27 (June 1984): 265-87; and Conrad Russell, “Why did Charles I Call the Lung Parliament?” History 69 (October 1984): 375-83.

I5Wallace Notestein, ed., The Journal of Sir Simonds D’Ewes from the Beginningof Long Parliament to the Openingof the Trialof the Earl of Strafford (New Haven, 1923), 45. See also A.H. Hamilton, ed., The Notebook of Sir John Northcote (London, 1877).

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The Commons sought St. John’s expertise when it began debating the legality of Ship Money. On November 27, Sir Walter Earle asked St. John to explain the stakes in the Ship Money question. St. John replied that the opinions of the judges, not Ship Money, were now the grievances, although in the next breath he continued, “Ship Money overthrows Magna Carta and all our liberties. If Ship Money stands, Parliaments have no power.”16 Appointed to a committee delegated to give an opinion on Ship Money, on December 7, he reported the committee’s opinion that the king could not, under any pretense of danger or necessity, levy a tax without parliamentary consent. The Commons then dis- patched St. John to inform the Lords of this de~isi0n.l~

Hot words were exchanged the next day between St. John and Sir John Finch. Finch had not only returned the most objection- able decision on Ship Money in 1637, he had become a n opprobrious symbol of royal oppression, refusing to put Sir John Eliot’s motion to the House during the final chaotic moments of the Parliament of 1629. In the 1630s he had urged rigorous enforcement of the forest laws and in 1640 he had written the king’s justification for the dissolution of the Short Parliament. Now St. John accused him of misrepresenting Justice Denham’s opinion on Ship Money to the king. After issuance of the first writs in 1635, Denham received a letter from Finch soliciting his opinion on the matter. When Denham became too ill to present it to the king in person, Finch delivered a summary. Denham later discovered that Finch had misrepresented his opinion in favor of Finch’s own view.18

At the conference of both houses the subject shifted to religion as Parliament debated whether the acts of synods could bind the subjects of England. Robert Holborne, St. John’s associate at Lincoln’s Inn and a partner in the Hampden case presented the arguments for synodical imposition. Holborne argued that canons which were not directly against the law and confirmed by the Crown should be considered binding. Canons pronounced in former ages under numerous monarchs, including Henry VIII, Elizabeth I and James I, had been instituted without parliamen- tary approval. Moreover, concluded Holborne, the church should govern itself and not be subject to the whims of laymen.lg

‘GNotestein, D’Ewes, 74. ’71bid., 113-15. See also Hamilton, Northcote Notebook, 36. ‘*Notestein, D’Ewes, 123. See also Hamilton, Northcote Notebook, 43,83434.

For additional information on Finch, see W. J. Jones, Politics and the Bench: The Judges and the Origins of the Civil War (London, 1971), 125,139,143.

IgNotestein, D’Ewes, 152-53.

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St. John spoke for those opposed to the canons and attacked synodical imposition on constitutional grounds, arguing that laws affecting the entire country must be approved by Parliament. Matters of religion, he said, had always been determined by repre- sentative bodies. Consent of the Reformation Parliament was necessary before Henry VIII could rebuild the English church and Elizabeth obtained parliamentary approval before imple- menting her religious settlement. When the matter came to a vote, the Commons resolved against the right of the clergy to make canons.2o

On December 19 St. John continued his campaign against Finch and introduced articles of impeachment against him, believing that Finch had sabotaged the judges’ decision in the Ship Money case. St. John suggested that Finch be allowed to defend himself, which he did in a long and elaborate speech on December 21. But before completion of the articles against him, Finch fled to Holland, arriving at The Hague on December 31. 21

This sudden flight, however, did not deter St. John from casti- gating both Finch and Ship Money. In a speech on January 14, 1641, addressed to a joint conference of Lords and Commons, he expressed some fresh ideas on the subject. The purpose of the conference, said St. John, was to advise the Lords how far the Commons had proceeded in the Ship Money matter, which St. John described as “a means by which the property of our goods and the liberty of our persons were not only taken away, but our very lives endangered.” Moreover, said St. John, the judges, who should have been vigilant for such trespasses against the rights of Englishmen, became “through the brocage and solicitation of the Lord Finch, the later keeper of the Great Seal of England, the destroyers of and subverters of the same.”22

‘OZbid., 154-55. ZlZbid., 175. Wt. John, “A Speech to the Lords Concerning Ship Money,” BL, Thomason

Tracts, E 196 (l), 2,4. D’Ewes’ version of this speech may be found on pages 253-55. Both St. John and Falkland believed that the Ship Money decision had been contrived by Finch’s bullying tactics, although Falkland argued that Finch had been bribed (he did not specify by whom) to return a favorable judgment. In early December 1640 the Commons conducted a half-hearted investigation into Finch’s Ship Money activities by contacting as many judges as possible to ask them if they had been threatened by Finch. See Notestein, D’Ewes, 117-25. This investi- gation yielded no evidence of tampering. Despite the lack of evidence, St. John and Falkland continued to assert that Finch had manipulated the judges’ decision. A serious flaw existed in St. John’s argument however, for even if Finch had misrepresented the judges’ opinions to the king in 1635, the judges still found for the king in 1637. St. John corrected this flaw by arguing that the judges themselves were now culpable.

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Delivering another attack on Ship Money, St. John asserted that his complaint was not in the levying of Ship Money but the right by which it was claimed. If the recent manner of levying Ship Money was legal, said St. John, “our birthright, our ancestral right, our conditions of continuing free subjects is lost; that of late there has been an endeavor to reduce us to a state of villeinage, nay, to a lower.” St. John declared that none of these violations discredited the king. His Majesty’s justice remained, he said, “the fairest jewel of the Crown.” Responsibilities for the uproar over Ship Money must be placed with the judges and with Finch in particular.23

The ideas St. John expressed on Ship Money in January 1641 represented a considerable advance over those he held in 1637. In 1637 he questioned the king’s failure to observe proper legal channels. In 1641 St. John challenged the king’s right to levy Ship Money and the judges’ upholding of that right which, he claimed, threatened all the ancestral rights which allow English- men to exist as free citizens. St. John, expounding upon a new definition of treason, asserted that the judges’ votes in the Ship Money case were contrary to the laws of the realm, the rights of property, the liberties of subjects, and contrary to former resolu- tions passed in Parliament, such as the Petition of Right. He considered Ship Money a tax imposed without parliamentary consent although the Petition of Right had been passed to prevent such exactions. The judges, under oath to uphold the law and entrusted by the king to render accurate interpretations of the law, had knowingly violated their oaths of office and the trust conferred upon them.24

Historically, argued St. John, this was a heinous offense. In former ages other judges guilty of violating their oaths had received severe penalties. During the reign of Edward I, Sir Thomas Wayland was banished from the kingdom, forfeiting his estates, for violating his oath of office. In the time of Edward 111, Sir William Thorp was “adjudged to be hanged” for taking bribes. Still more telling, argued St. John, any attempt to overthrow parliamentary authority had been defined as treason during the time of Richard 11. In 1386, with one year remaining in Richard’s minority, Parliament established a commission to govern the realm until Richard came of age. A group of eighteen persons conspired to overthrow the commission by persuading Richard that its existence threatened the royal prerogative. A judgment of high treason was returned against them. Of the conspirators,

Z3St. John, “A Speech to the Lords,” BL, Thomason Tracts, E 196(1) 2,21,27. 24Ibid., 22.

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“eight were executed, three fled, and the remainder were banished with their lands forfeited.’Q5

The judgment that the conspirators circumvented a parliamen- tary decision by giving the king bad advice, enabled St. John to argue that precedent existed for a broader definition of treason. Previously treason could only be committed against the king. St. John now contended that in treasons which concerned king and kingdom, Parliament may overthrow common law and the inferior courts, if for the common good, and that attempting to overthrow parliamentary authority was treason as well. It did not matter, St. John concluded, that Richard’s reign later reversed these judgments. Held by force, the body which revoked them was “no free parliament.” Moreover, during the reign of Henry IV all its actions were declared “erroneous and wicked and contrary to all right and reason.”26

Though fortified by precedent, many of St. John’s arguments exceeded the law. At various times between 1640 and 1641 St. John had argued that Parliament could overturn a decision already rendered by the courts, that it possessed the power to

251bid., 29-31. In these arguments St. John seriously strained the evidence. Thomas Wayland (or Weyland) and William Thorp were judges who had been deprived of their offices. Wayland was removed in 1286 after Edward I invited all persons claiming to have been wronged by a royal officer to present their grievances a t Westminster, a t the same time threatening all judges with an audit. Thorp was removed for taking bribes. While both Wayland and Thorp had violated their oaths of office, each was removed for specific acts of corruption, not for the violation of a vague general principle. St. John also failed to mention that Ralph de Hengham, another target of Edward 1’s auditors, received a pardon in 1291, returned to public life in 1299 and became chief justice of the King’s Bench in 1301. For details on Wayland see Maurice Powicke, The Thirteenth Century (Oxford, 1962), 363. For Thorp, see May McKisack, The Fourteenth Century (Oxford, 1959), 205.

2fiSt. John, “ASpeech to theLords,”Thomason Tracts, E 196(1), 33. With this argument St. John plunged into another dense legal thicket. St. John was referring here to changes made during the Parliament of 1388 by the Lords Appellant against several of Richard 11’s advisors. The appellants secured the conviction of eighteen of Richard’s lieutenants, including the despised Michael de la Pole. But in 1397 Richard had recovered much ofhis lost political power, and he reversed the actions of the Parliament of 1388. These reversals were overturned again by Henry IV upon his accession. Thus, examining the period from 1388 to 1397, one could find precedents for almost any situation concerning treason. To clear up the confusion, statutes under both Edward VI and Mary had returned treason to that defined by 25 Edward 111. Although St. John’s argument about the contributions of the Parliament of 1388 was not compelling, he did not abandon the concept. In his speech on Strafford he continued to argue for the survival of common-law treasons, despite subsequent legislation.

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prevent its own dissolution, that treason could be committed against Parliament as well as the king, and that Parliament had the limited right to supersede the common law and inferior courts. The man who had ferociously defended the law in 1637 and had anointed himself as the stalwart lion of the constitution now appeared willing to tamper with it. In recent years historians such as Caroline Hibbard and Anthony Fletcher have argued that fears of an insidious, pervasive conspiracy-fears which may have been legitimate-had driven many Englishmen towards resistan~e.~’ St. John’s relentless pursuit of Finch and repeated return to Rex u. Hampden suggests that he perceived an utterly different conspiracy. Like most seventeenth-century Englishmen, St. John believed the law to be immemorial. In this view statutes defined the law but did not create it. The law itself was sovereign and the judges alone could explain its mysteries. However, by the 1630s many Englishmen perceived the prerogative courts to be the instruments of royal tyranny. During Charles 1’s personal rule the courts enforced monopolies and rode unchallenged over the property rights of Englishmen. Charles I himself displayed a particular arrogance. In 1626 he dismissed Chief Justice Crew for refusing to admit the legality of the forced loan, and by 1637 he had apparently reduced the judges to a state where they were unable to restrict Laudian innovation or resist the perfidious manipulations of men like Finch.

With the judiciary intimidated, St. John regarded Parliament as the only organ of government that could be trusted. As long as the wisdom of the judges could be thwarted, none of England’s problems would be solved. The subversion of law and religion could be corrected by returning the Court’s powers to their proper level. St. John had thus arrived at a crude conception of parlia- mentary sovereignty, apparently designed as a temporary exped- ient until the courts regained their authority

On occasion St. John also disagreed with men opposing other aspects of royal policy. In his great history Clarendon contended that St. John acted in “firm and entire conjunction” with Pym, Hampden, Holles and several of the Lords, as one of the great “contrivers and designers,” the “engine which moved the rest.” Historians have generally accepted Clarendon’s place- ment of St. John with theothers. Yet St. John often appears as an anomaly, for the others do not seem to have regarded Ship Money with the same sense of urgency. St. John’s differences with

27Fletcher, Outbreak of the Civil War, and Caroline Hibbard, Charles Iand the Popish Plot (Chapel Hill, 1983). William Hunt stresses the dominating force of religion in The Puritan Moment: The Comingof Revolution in an English County (Cambridge, Mass., 1983).

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Hampden on this score, already mentioned, have become all the more striking because Hampden retained St. John in the first place. Important differences also existed between St. John and Pym. On one hand Pym believed that a massive papist conspiracy gripped England. On the other St. John stressed the enormity of the legal conspiracy and regarded it as far more serious and sinister than the popish plot. St. John never declared himself publicly on the finer points of church doctrine and structure, although he seems to have embraced clear, anti-episcopal, Erastian beliefs, framed around a perceptible but cloudy Puri- tanism.28 At a time when he had the opportunity, St. John never connected the legal and papist conspiracies. He never blamed the subversion of the judiciary on Catholic designs and made no allusion to them in his major speeches. At one point he even argued that “papists might be servants in ordinary court if they were li~ensed.”~g His other writings offer little assistance in elucidating his religious beliefs. A theological commonplace book in his possession, apparently compiled by members of his family, contained references to figures as diverse as John Preston (St. John’s tutor at Cambridge) and the Arminian Reeve as well as Foxe and Jewell. St. John also composed a lengthy commentary on the Epistle to the Ephesians but few concrete religious convictions, excepting his Erastianism and his hostility toward the bishops, emerge from any of his writings.g0

Moreover, while St. John regarded Finch as the principal instrument of the legal conspiracy, Pym, according to Clarendon and Sir Edward Nicholas, made several efforts to prevent the proceedings against Finch.31 Given his loathing for Finch, this

2*The best discussion of St. John’s religious beliefs may be found in Pearl,

2sNotestein, D’Ewes. 489. “OBL, Add. MSS 25285,25278. ”’Clarendon, History of the Rebellion 1:229-33. Sir Edward Nicholas, BL,

Add. MSS 4180, fol. 170v. Clarendon related that “they” (presumably meaning Pym) endeavored to

make the severity and rigour of the House as formidable as was possible and to make.. . many men apprehend themselvesobnoxious to the House.. . .When they had sufficiently startled men by these proceedings.. . they rested satisfied.. . without making haste to proceed against either things or persons being willing to keep men in suspense. For this reason they used their skill to keep off any debate of Ship Money, that the whole business mighthanglikeameteoroverthe headsofthosethatwerein anydegreefaulty init, and it was observable, when, notwithstanding all their diversions, that business was brought into debate and upon that (which could not be avoided) the lord Finch named as an avowed factor and procurer of that odius judgment . . .

Since St. John attacked Finch and Ship Money with feverish persistence, we may assume that he was opposed to Pym’s diversionary tactics.

“St. John and the Middle Group,” 500-504.

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action must have appalled St. John. Pym and St. John clashed on other issues as well. On November 27,1640 Pym moved to obtain a premature grant of tonnage and poundage, only to have St. John and Walter Earle challenge him.32 Also St. John’s fierce opposition to episcopacy must have made Pym uneasy. Clarendon listed St. John as one of the authors of the Root and Branch petition and elsewhere St. John claimed to deplore bishops for being anti-monarchial and for plotting treason since the time of

. St. Augustine.33 By contrast Pym, whom Clarendon described as “not of those furious resolutions against the Church as the other leading men were,” withheld his support for Root and Branch until June 1641. Even in support of the bill, Pym sounded a conciliatory note, explaining that provisions would be made for the deposed ministers and that additional safeguards could be inserted into the bi11.s4

Differences between St. John and Pym also surfaced over the attainder of Thomas Wentworth, the earl of Strafford. Like many in the Commons, Pym perceived Strafford as the architect of the papist conspiracy, in Macaulay’s famous words, “the lost archangel, the dark satan of apostasy.” The Commons’ case against Strafford was based on the treason statute of 1352, which defined treason as compassing or imagining the death of the king or queen and levying war against the king or queen. The committee charged with drawing up the indictment assembled

Sir Edward Nicholas reported that as a result of his efforts to save Finch, Pym “is reported in the town to be grown cold in the business of the common wealth.” See also Clayton Roberts, The Growth of Responsible Government in Stuart England (Cambridge, 1966), 78-79, note 2; and Jones, Politics and the Bench, 139.

32Notestein, D’Ewes, 75-76. 33Thomason Tracts, E 200 (4); diary of Sir Simonds D’Ewes, BL, Harleian

[Harl.] MSS, 163, fol. 312. 34Fletcher, Outbreak of the Civil War, 100-101; Clarendon, History of the

Rebellion 1:245 and 3:156. The purpose of the.foregoing discussion is not to demonstrate that Pym and St. John were constantly at loggerheads. There is no record of a nasty or even tense exchange between them. They agreed on several pivotal issues, such as the need to remove evil ministers and restore a balanced constitution, and these points of agreement are more important than their disagreements. The point here is only that, despite repeated assertions by Clarendon and others that Pym and St. John invariably acted in “firm and entire conjunction,” we cannot assume that their views were identical or diverged only upon minor matters. The points of disagreement between Pym and St. John testify to the formidable problems Pym faced in trying to lead a body of men who could agree to some reform but who disagreed about how that reform should be accomplished and which reforms were most critical.

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nine general and twenty-eight particular charges. The critical charges were contained in articles fifteen and twenty-three. Article fifteen accused Strafford of issuing a warrant for the billeting of soldiers upon Irish householders. Article twenty-three charged him with advising Charles I that as king he was “loose and absolved from all rules of government’’ and that he might use a n Irish army to reduce England to 0bedience.3~ The core of the indictment conveyed the idea that while treason in the specific charges could not always be proven conclusively, Strafford’s accumulation of misdeeds amounted to a n endeavor to subvert law and divide the king and his people. The statute of 1352, however, did not discuss accumulative treason and subversion of law. But this weakness did not deter Strafford’s inquisitors. As Pym expressed it, Strafford’s treason went “beyond words.’’:16

The trial opened in Westminster Hall on March 22, 1641. Immediately the Commons’ case a t law and fact began to sputter as Strafford mustered a combative and resourceful defense. Ignoring the broader aspects of his indictment and refusing to be drawn into any general statement, Strafford tenaciously disputed the factual accuracy of the charges against him and cast serious doubts upon the competence and reliability of the prosecution’s witnesses against him. He also derided the Commons’ theory of

”Rushworth, The Tryal of Thomas, Earl of Strafford (London, 1680), 72. The entire charge may be found on pages 61-75. Perhaps the most puzzling episode in St. John’s career concerns his appointment as king’s solicitor on January 29,1641. According to Clarendon (History of the Rebellion 1:280-81) the earl of Bedford prevailed upon the king to appoint St. John and others to high offices in government as part of a larger compromise to save Strafford. For a detailed study of Bedford’s undertaking see Roberts, “The Earl of Bedford and the Coming of the English Revolution,” Journal of Modern History 49 (December 1977): 600-16. Bedford had been St. John’s close associate since 1629 as well as his political patron, but Bedford and Charles erred if they hoped that the appointment would deter St. John from his pursuit of Strafford. See Clarendon, History of the Rebeltion 1:246-47.

DWrafford’s trial has of course sparked a controversy among historians. Wedgwood’s Thomas Wentworth, First Earlof Strafford 1593-I641:A Reevaluation (New York, 1962) argued that Pym and his associates manufactured a new theory of treason to secure Strafford’s execution. Several historians have revised this thesis; see Russell, “The Theory of Treason in the Trial of Strafford, English Historical Review 80 (January 1965): 30-50, and J.H. Timmis, “Evidence and 1 Elizabeth I, cap, 6: The Basis of the Lord’s Decision in the Trial of Strafford,” Historical Journal 21 (September 1978): 677-83. For a lucid and convincing discussion of the subject, see William R. Stacey, “Matter of Fact, Matter of Law, and the Attainder of the Earl of Strafford,” American Journalof Legal History 39 (October 1985): 323-48.

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“accumulative” treason, asking if “a thousand misdemeanors will not make one felony, shall twenty-eight misdemeanors heighten it to treason?” Strafford also skillfully exploited a critical weakness in the Commmons’ case regarding article twenty-three. Pym insisted that Strafford’s alleged advice to Charles that an army in Ireland could be used to reduce subjects in “this kingdom” constituted treason by statute. But it was not clear by the phrase “this kingdom” whether Strafford intended Scotland or England. Morever, by the statute of 1 Edw. VI c. 12, two witnesses were required in treason cases. Pym could only produce one, the elder Vane, but several other witnesses contra- dicted his testimony.37

Thus Strafford had exposed several serious weaknesses in the Commons’ case, both in fact and law, and by early April he began to gain sympathy and support. Robert Baillie reported that Strafford acquired converts daily “among the more simple sort.”38 With the case against Strafford in disarray, the Commons began to consider abandoning impeachment and resorting to a bill of attainder. Impeachment proceedings required that Strafford’s conviction be based on charges sustained by law and proven to the statisfaction of the House of Lords. Attainder, on the other hand, was simply an act of Parliament declaring that the safety of the state necessitated Strafford’s death. Attainder could be passed without formal proof of Strafford’s guilt as long as the majority believed the presumption of guilt strong enough. Thus, attainder provided the perfect solution for those members who were convinced of Strafford’s treason but found it difficult to prove or did not wish to have the law distorted too severely to secure the conviction.

On April 10, 1641 Sir Arthur Haselrig introduced into the House of Commons a bill of attainder against Strafford. The decision to implement attainder, however, was not unanimous. John Pym had been its most formidable opponent. Reluctant to offend the Lords and determined to preserve the harmony between the houses, Pym, along with Hampden, Strode and Earle, favored a continuation of the trial. Summoning his full powers of persuasion and political dexterity, Pym convinced the House to postpone the bill’s second reading.3g

370n the importance of the two-witness rule, see Wedgwood, Strafford, 301- 305,311-12; Stacey, “Matter of Fact, Matter of Law,” 328-29.

38Robert Baillie, The Letters and Journals of Robert Baillie, 3 vols. (Edinburgh, 1841-42), 1:330.

39Evidence of Pym’s initial opposition to attainder may be found in Harl. MSS, 163, fols. 47a-8a. and 164, fols. 165a, 165b.

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Postponement, however, did not yield any advantage for Pym. While the case for Strafford’s impeachment continued to erode, Oliver St. John vigorously took up the cause of attainder. D’Ewes and others detected a growing shift toward Strafford by mid- April.4o On April 13, Strafford delivered a moving summary of his defense. Between April 14 and April 17 Robert Holborne, Sir John Culpepper and Strafford’s counsel, Richard Lane, advanced further arguments on the earl’s behalf. In regard to Strafford’s alleged subversion of fundamental laws, Edmund Waller demanded that these fundamental laws be defined before Strafford could be convicted of breaking them. Although shouted down, the consternation Waller provoked convinced Strafford that deliver- ance was at hand, and he returned to the Tower singing hymns of thanksgiving.41

Faced with serious problems in proving his case at law and in fact, Pym finally recognized that impeachment proceedings would most likely fail and that attainder would make the most practical alternative. On the Monday following Lane’s speech, Pym a t last joined St. John in a determined attempt to seal Strafford’s fate by attainder.42 On April 21 the Commons approved the attainder by a margin of 204-59.

Next, attainder had to be justified to the Lords, and St. John undertook this task on April 29,1641 in his famous speech to the Lords. He began by assuring the Lords that attainder was not a last resort or a desperate measure. Rather, it served as the proper procedure for deciding doubtful cases, and he contended that in all former ages Parliament had been consulted if doubts of law arose. Parliamentary scrutiny served to remove doubts and

?“Ibid., 163, fols. 27r, 28r, 43-53r and 4s. D’Ewes was “amazed to see so many speak on Strafford’s side.” See also Perez Zagorin, The Court and the Country (New York, 1969), 220-22, and Rushworth, Tryal of Strafford, 50-63.

41Historical Manuscripts Commission, Cowper MSS, 2 vols. (London, 1888), 2: 279. Harl. MSS, 476, fol. 180r.

42Harl. MSS, 476, fol. 59813. We can only speculate on St. John’s reasons for supporting attainder over impeachment. St. John, as a member of the committee which prepared the case against Strafford (Commons Journals, 2:26-27), had undoubtedly examined the available evidence. Although he devoted much attention to treason theory the record shows that St. John supported attainder from a n early date and did not participate in the impeachment proceedings which Pym, Glynn, Maynard and Whitelocke conducted. (St. John did try to prevent Strafford from using counsel and he tried to have the bishops excluded from the proceedings.) St. John entered the proceedings against Strafford when attainder was introduced, suggesting that with his knowledge of the case against Strafford and of treason statutes, he had discerned the problem of the two-witness rule and concluded that impeachment would fail.

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would allow members to arrive at a decision based upon “the private satisfaction of each man’s con~cience .”~~ St. John also challenged Strafford’s claim that the act of 1 Henry IV had repealed the declaratory power regarding treason which 25 Edw. I11 had conferred upon Parliament. The act of 1 Henry IV, St. John claimed, had only been invoked to reverse the illegal acts of Richard 11, not to repeal the declaratory power of Parliament. Moreover, subsequent legislation, under both Edward VI and Mary restored the definition of treason propounded by 25 Edw.

For most of the remainder of his three-hour speech St. John wrestled with the thornier problems of the Commons’ case. Like the trial managers, St. John could demonstrate with ease the treachery of levying war against the king. It was more difficult to prove that Strafford’s actions amounted to such. St. John’s reliance upon attainder enabled him to claim that Strafford’s advice to Charles that he was “loose and absolved from the rules of government” and that he could use an army from Ireland to “reduce this kingdom” constituted treason even though only one witness came forward. But Strafford and Lane continued to question how the use of a handful of soldiers in Ireland amounted to treason and pointed out that Strafford had never advised anyone to oppose the king.

St. John responded to this defense in two ways. First, he reiterated the Commons’ earlier arguments of accumulative treason and that the overthrow of any statute constituted a war against the king, adding that Strafford had assumed an “arbitrary power over the lives, liberties, and estates of his majesties’

St. John then introduced his own subtle refinement by advancing the doctrine of constructively compassing the king’s death. By this St. John meant that Strafford, through his arbitrary actions and by his advice to the king to exercise arbitrary power, attempted to make the king so odious that his people would rise against him. Strafford thus became guilty of endangering the king’s life in a possible rebellion, thereby compassing his death. St. John argued that the earl’s advice to Charles about the exercise of arbitrary authority amounted to offering the king a “poisoned drink while telling him it is a cordial.” It would not matter that the poison was repelled; the

111.44

43St. John, “An Argument of Law Concerning the Bill of Attainder of High

441bid. 45Ibid., 18.

Treason of Thomas, Earle of Stafford,” Thomason Tracts, E 208 (7), 6.

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malicious intent of the giver would still be clear.46 In this way St. John could argue that Strafford’s actions still constituted treason even though no opposition to the king existed.

St. John then dwelled at some length on the question of parliamentary jurisdiction in Ireland. The Irish statute of 18 Henry VI c. 3 made it treason to impose “hoblers, kearns, English rebels, and Irish enemies” on subjects in Ireland. Strafford’s issuance of a warrant to Robert Savile for billeting soldiers upon Irish subjects, according to Pym, violated that statute. During the trial Strafford countered this argument with the assertion that he could not be tried in England on a n Irish statute. St. John replied that as Parliament could make laws for Ireland and laws made in England applied to Ireland in omnibus, Parliament could exercise its power through a bill of attainder. “If Strafford is not triable here,” said St. John, “he is triable nowhere.”47

At the conclusion of his speech, St. John returned to the issue of Parliament’s legislative power to attaint Strafford. St. John first defended the concept of subversion of law as a common law treason. If Strafford’s actions were not treason, he said, “England’s but a piece of earth wherein so many men have their commorancy and abode, without ranks or distinction among men, without property in anything further than possessions, no law to punish the murdering or robbing of one another.” The idea of treason by subversion of law, St. John continued, provides security for the subject, and however ancient it might be, “like gold, it has lost little or nothing of its value.”48 Despite the many alterations of treason law since 1352, he reminded members that Parliament still retained one crucial right, specified in 25 Edw. 111. That statute provided that in cases not directly covered under it, the “judges shall not proceed until the case be judged in parlia- ment, whether it be treason or n0t.”49

To members still not convinced, St. John offered in almost scattergun fashion a barrage of other justifications as to why Strafford should be made as “miserable” as the law could make a man. Responding to the objection that the resort to attainder amounted to an ex post fucto indictment, St. John replied that since Strafford had denied law to others, “why should he have any himself; why should not that be done to him that himself would have done to others.” Moreover, said St. John, Strafford

““lid., 27. 47Ibid., 63. “&id., 64,65. 491bid., 65.

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knew that he had “offended” the law and that he should be prepared to suffer the consequences. “Errors in great things, as war and marriage,” St. John suggested, perhaps to inject some humor into a three-hour speech, “allow no time for r e p e n t a n ~ e . ” ~ ~ In his conclusion St. John also elaborated on his conception of parliamentary rights. Parliament, he insisted, possessed the power to convict Strafford, if all other arguments failed, because Parliament is

both the physician and the patient. If the body be distempered, it hath the power to open a vein, to let out the corrupt blood for curing itself; if one member be poisoned or gangred, it hath the power to cut it off for the preservation of the rest.51

The concept of Parliament as both physician and patient, developed by St. John in the Strafford speech, was the logical extension of his Ship Money doctrines. By his various attempts to recast and broaden the scope of parliamentary power, St. John moved beyond the trite and naive notion that Parliament was only protecting the king from the perfidious associates who had beguiled him and that removal of these errant ministers would restore the damaged constitution, St. John perceived the need for Parliament not only to restore its rights but to extend them. At various times between 1640 and 1642, he conferred upon Parlia- ment the right to challenge the king’s power of dissolution, the right to overturn decisions already rendered by the courts, the right to determine the nation’s religious settlement, and now the right to remove “poisoned and gangred” members of which it did not approve. He also attempted to extend Parliament’s authority by claiming tha t treason could be committed against it as well as the king.

St. John’s ideas emerged not from detached, theoretical reflection about the distribution of authority, but from specific objections to the exercise of that authority. To a certain extent, his ideas reflect a natural hardening (in one direction or another) which commonly occurs during times of political crisis. Neverthe- less, St. John’s doctrines represent a considerable modification of traditional views concerning the relationship between king and Parliament. In the traditional view Parliament assembled and dispersed at the king’s command, and it could not pass any law he refused to approve. It could not force a new policy on the king, nor

50Ibid., 72. Sllbid., 71-72. D’Ewes reported that St. John’s learned arguments gave high

satisfaction to all men generally. But he added that Strafford at the conclusion of the speech exclaimed, “What, is this all he can say?” See Harl. MSS, 164, fol. 193r.

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could it compel the king to remove a minister he wished to retain. Before 1641 the House of Commons achieved redress on only a few matters related to royal authority and only a few members expressed even the barest notions of parliamentary sovereignty. By 1641 St. John had challenged each of these precepts while exalting the virtues of parliamentary authority. The concept of Parliament as physician as well as patient, proclaimed by St. John in 1641, would enable Parliament to assume the role of protector of the nation’s rights and to act as final arbiter of its own authority.52 Faced with a government determined in his eyes to reduce free subjects “to a state lower than villeinage,” St. John proposed genuine changes in the system. Parliament, he concluded in his speech on Strafford, “is the great body politic, it compre- hends all from the king to the beggar.”s3 That his ideas were phrased in the traditional language of precedent and legal custom should not detract from their radical implications. St. John demanded that Parliament judge the king’s actions and ultimately rule the country by asserting that only it could legally determine how and by whom the country should be ruled.

5zHere was an issue on which Pym and St. John agreed. As early as 1640 Pym compared Parliament to the “soul of the body” and strongly implied that the soul was equivalent to the head when he described Parliament’s soul of “the intellectual part which ought to govern the rest.” See J. P. Kenyon, The Stuart Constitution (Cambridge, 1966), 198.

531n his Ship Money speech of 1637 St. John had said, “the king is the commonwealth entrusted with the good of the whole body of the realm.” He no longer believed that in 1641.

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