Age of Invention: The Great Contract

1610: the most under-rated year in British history

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The year 1610 might by the most under-rated year in British history. It was the year in which England almost became a more permanent absolutist monarchy. Had things gone only a little differently, king James I might have obtained a substantial annual income — enough to pay off his debts within just a few years, to run a substantial surplus, and perhaps even to never have to summon a Parliament ever again. Over the course of a few decades, so long as they didn’t require too many extraordinary taxes to pay for one-off wars, the Stuart kings could have ruled without challenge, issuing proclamations that would have gradually taken on the force of laws.

Who knows how differently the seventeenth and eighteenth centuries would have gone. We probably have to imagine an England without its Civil War, without the Crown’s financial dependence in the 1670s on France, without the 1689 Bill of Rights, and possibly even without its Protestant succession. Although I doubt that it would have made much difference to the rate of invention in Britain — the country’s economic transformation was already well underway — the events of 1610 might well have meant no Parliament in the eighteenth century calling the shots, raising unprecedented loans and taxes as it pleased. Eighteenth-century Britain might have ended up with a wealthy monarch, and a state probably unable to defend a growing empire overseas, let alone to become the nineteenth century’s superpower. Had things gone just a little differently, the whole map of the world might have been redrawn.

So what happened in 1610?

As we saw in the last instalment of this series, James I’s finances were desperate. His predecessor had left him substantial war debts, and he was running a large deficit, so the chances of repaying them anytime soon were slim. So in 1604 he had summoned a Parliament with the aim of making a financial deal. Parliaments were typically called in order for the monarch to raise one-off, extraordinary taxes, usually in times of rebellion or war. Rather confusingly from today’s perspective, these taxes were known as “subsidies”, because they were a subsidy to the Crown. Yet James and his ministers wanted Parliament to instead establish peacetime taxes that would be both ongoing and ordinary — what came to be known as “support”. The deal was that he would give up some of his least popular feudal prerogative rights in return.

The House of Commons did not go for the deal in 1604, as we saw. They may have hated feudal obligations like purveyance or wardship — the requisitioning of goods for the court, and the Crown’s control of noble heirs whose fathers had died before they came of age — but they also saw some major risks in trying to make a deal with the king.

When it came to the matter of purveyance, for example, many members of Parliament wanted to stamp out the abuses rather than see the institution abolished. They thought it perfectly legal for the Crown to compulsorily purchase goods, and even to requisition the carts to carry them. What they complained of was that many purveyors were failing to give compensation immediately, and that corrupt purveyors were sometimes taking more than was required, pocketing the difference for themselves. Many MPs also argued that there was no legal basis for purveyors to determine their own prices for the provisions that they seized — a privilege that the Crown adamantly insisted upon.

Underlying this difference was a much deeper dispute about the rule of law — or rather, of a particular kind of law. Just as with monopoly patents a few years earlier, disputes over purveyance were being tried in prerogative courts, rather than according to common law. Although prerogative courts were often more efficient, using simpler procedures and reaching much faster decisions, they were deeply unpopular. In prerogative courts the facts of the case were decided by judges, rather than by juries. They used written evidence, rather than cross-examination. And most importantly, in prerogative courts the presumption was against the defendants, not with them. (This was, presumably, why they generally could not sentence someone to death, although punishments like fines, imprisonment, and torture were still hardly light.)¹

As we saw a few weeks ago, radical MPs like Lawrence Hyde had in 1601 succeeded in wringing a major concession from Elizabeth I — she had agreed to allow cases arising from the exercise of her monopoly patents to be tried in the common-law courts. Decisions about whether patents were valid were thus taken away from just the judges, whom the monarch had appointed, and who so often decided in the patentees’ favour. Those who refused to accept a patent, rather than being presumed to be infringers, now had a much better chance of having their case fairly heard.

Yet by extending the jurisdiction of the common-law courts to monopolies, Elizabeth opened the floodgates of complaints against all prerogative courts — especially against the court of royal household officials responsible for commissioning the purveyors, known as the Board of Green Cloth.

To Hyde and his followers, this court was especially corrupt. Whereas the trying of monopoly patents had at least been done in the more general prerogative courts, anyone hauled before the Green Cloth for denying the purveyors was effectively being tried, judged, fined, and even imprisoned, by the very organisation that was accusing them. Even if purveyors really were acting illegally by naming their own prices, as opponents maintained, there would be no justice so long as the purveyors effectively judged themselves. For Hyde and his allies then, they wished to do to purveyance what they had done to monopolies — to subject them to the common law.

At the same time, other prerogative courts in 1604 also came under more sustained attack. The four English counties of Herefordshire, Shropshire, Gloucestershire, and Worcestershire, all former marches along the Welsh border, were still under the jurisdiction of a Council of Wales and the Marches.² The local gentry of these four English shires, led by the MP Sir Herbert Croft, were increasingly angry that a court traditionally meant to dispense rapid justice to the Welsh, was instead mainly being used to prosecute them. This was because the Council was itself based in Ludlow, in Shropshire, with professional informers finding it easier to stir up litigation in the nearby English counties than to go over the hills and mountains into Wales. Croft called for the four shires to be freed of the Council, and wholly placed under the jurisdiction of English common law.³ Croft wanted for the Council of Wales and the Marches, what Hyde wanted for the court of Green Cloth. They were natural allies.

And then there were the puritans — a loose coalition of people still largely within the Church of England, but who hoped to reform it. Although they often disagreed on the specifics, puritan clergymen generally opposed Catholic-seeming practices like wearing a surplice, giving confirmation, and kneeling for the sacrament. They were especially hostile to the hierarchy of bishops. But the bishops were using the Court of High Commission, an ecclesiastical prerogative court, to stamp them out. Using this court, the bishops systematically deprived the puritans of benefices — that is, removing them as vicars, rectors, and curates — banned them from preaching, and sometimes even put them in prison. Merely summoning the puritans before the court could be enough to find them guilty, as the High Commission required all defendants to take an oath to tell the truth — something that the puritans felt compelled to honour, or which they dared not take at all. Refusing to take this “ex officio oath”, or failing to answer any of the questions after taking it, was sufficient grounds for punishment. The bishops thereby turned the puritans’ honesty against them, without even having to name an offence. And so, for the puritans, just like with the four shires and the anti-purveyors, the only hope was to appeal to the common law: t was a fundamental common-law principle that a court could not force a person to testify against themselves.⁴

The biggest opponent of the High Commission in Parliament was the London MP and puritanical lawyer Nicholas Fuller. He had been the most radical of the lawyers to openly argue against the royal prerogative in the Case of Monopolies, and was a key ally of Hyde’s and Croft’s against both purveyance and the Council in Wales. At one point his vocal opposition to the High Commission even landed him briefly in prison. But by 1610 he seems to have emerged as a de facto leader of the coalition of opponents to the prerogative courts — what we might call a kind of Common Law Party.⁵ This may sound a little anachronistic, as political parties in the modern sense would not emerge until the mid-nineteenth century. It certainly had no single manifesto or election-winning infrastructure.⁶

But government ministers were astounded at the faction’s coordination, complaining of its “secret and privy conventicles and conferences, wherein they devised and set down special plots, for the carrying of business in the House”.⁷ Even James I called them “a confederacy”, and their championing of the common law earned them the label “the Patriots”.⁸ The faction paid especial attention to the procedures of the Commons to ensure they could present a united front when it came to negotiating any kind of deal with the king. At one point, when a group of MPs met privately with the king, other members of the coalition called for them to be reprimanded for having “not kept their rank”. Such private meetings were thenceforth forbidden.⁹ And whenever the Commons sent a delegation to meet with the Lords — in practice, the king’s ministers led by Robert Cecil, the Earl of Salisbury — they settled on a tactic of only allowing the delegations to convey messages, listen, and report back. They didn’t want members of the delegations to accidentally concede anything during negotiations, without proper planning and approval.

Because of the faction’s coordination, it’s striking that any kind of financial deal came close to being made.¹⁰ (Here it’s worth me apologising for not posting last week — researching an answer to this mystery took a lot longer than expected.) When it came to making a bargain, to “buy” the abolition of purveyance, many members of the faction thought it might start a dangerous precedent. If they paid the king off now, Hyde pointed out, what was to stop him creating even more abuses of his prerogative, to then ask for cash to abolish them too? If you paid for abuses, you incentivised them. Like paying off the Vikings with a Danegeld (or the Ottomans with the Türkenverehrung of money and clocks), a spendthrift king would just keep coming back for more. It would be better for grievances to be eliminated either through legislation or by petitioning the king, appealing to his magnanimity and love of his subjects. Pay once, and instead of love there would ever after always come a price.

MPs were, however, more keen to reach a deal to abolish wardship. Unlike the perceived abuses of purveyance, there was no disputing the legality of the practice; it was simply horrid. The Crown’s selling off of wards to the highest bidder was not an unconstitutional abuse of the royal prerogative; separating the noble children from their mothers and kin, and having the paying guardians control their property and marry them off, was merely abusive to the poor wards.

Yet even in this case, reaching a deal to abolish wardships required confidence that the king would actually abide by a deal. Some MPs were concerned that even if they made agreements to abolish purveyance and wardship, and passed laws to that effect, the king still had the prerogative power to exempt himself from those laws. To paraphrase Darth Vader, if the king decided to alter the deal, what was there for his subjects to do but pray he didn’t alter it further? This even happened in 1606, when James suddenly seemed to give a little ground on purveyance. A bill to more or less abolish it passed the Commons, and the same day they narrowly voted him two one-off subsidies — something unprecedented in peacetime, which passed by just one vote. The understanding seems to have been that by being so generous, the Commons expected the king to be generous in return. But the House of Lords immediately shot the bill down. When the Commons tried to resuscitate the bill, the Lords refused to even consider it, and the king rebuked MPs for questioning purveyance at all. Although the king instituted a few minor reforms to purveyance, it was considered far too small an answer to MPs’ grievances. Having ruined all chances of getting any more subsidies out of them, the king simply ended the parliamentary session.

Matters worsened, however, as the king’s ministers tried to repair his finances without having to resort to Parliament again. To raise cash, they looked more closely into people’s land titles, cracked down on those evading various feudal dues, examined decades-old debts, and even introduced new taxes — increases in customs duties for various goods, like spices, silks, raisins and currants — known as “impositions”. MPs were certain that impositions were only legal if they had been approved by Parliament, but when a merchant resisted he was tried in a prerogative court, with the judges ruling that the king had every right to impose as he saw fit. This case, known as Bate’s Case, seemed to be a clear sign that prerogative courts, and the king’s prerogative itself, had spun completely out of control. As far as MPs were concerned, if the king could get away with introducing new taxes like this then their property was no longer secure. It could be taxed at the king’s whim. The only way to remedy the situation would be for MPs to use the highest court in the land — Parliament itself — to see the decision overturned. Fuller’s faction grew.

By 1610, the king’s ministers had failed to eliminate the deficit, and the Crown’s debts were still large — especially with a new rebellion to put down in Ireland. Robert Cecil persuaded James to reconvene Parliament. But this time the Commons were not going to just grant him money in return for nothing. They demanded an actual contract, with assurances and securities, and concrete demonstrations of good will. It was a radical step. Although Parliament had often granted subsidies on the understanding that the king would then grant them something in return, they had never demanded their grievances be dealt with first. The Lords were outraged. The Commons apparently wanted their king to haggle his prerogative away like a mere merchant!

Yet Fuller’s party held firm, immediately shooting down any discussion of an immediate subsidy. Cecil offered them various minor changes to the law, which would have secured their property rights a little against unscrupulous tax collectors. But the Commons insisted it would only pay an annual tax if they could get the abolition of wardship. When their suggested sum was insufficient, they added purveyance too. And then moved onto other grievances, including impositions. Having started to air their complaints, they could not be stopped. When James tried to forbid them from even discussing the impositions, the Commons was incensed. But because he needed the cash, he almost immediately gave way just to chivvy the negotiations along.

Many MPs were of course still sceptical about whether a deal was desirable. Some may have even recognised that if they granted a large enough annual financial support, they might inadvertently abolish themselves. It’s not entirely clear how they were brought around, but it seems that Robert Cecil gained an extraordinary amount of political capital by putting his own money on the line. As the Master of the Court of Wards himself, the abolition of wardship would result in him losing one of his chief sources of income, as well as an important source of patronage. Yet he told the Commons he would gladly see himself lose the post, without any compensation, if they could only reach a deal. After weeks of haggling, by the time Parliament had to break for the summer, the “Great Contract” had almost been reached.

Although the king had wanted £300,000 per year, the Commons had gradually ground him down to just £200,000 — and for a much greater curtailment of the royal prerogative than had originally been anticipated. Cecil compared the king’s early offers to falling down a flight of stairs, while the Commons had not risen a single step.¹¹ Wardships and purveyance were to be abolished, and even passing a law to prevent any new impositions looked like it would be on the cards. Issues like curtailing the court of High Commission and the Council of Wales and the Marches didn’t quite make it in the end. But as thanks for the flurry of concessions the Commons even granted the king another extraordinary peacetime subsidy. A little to plug the mounting debts, though nowhere near enough to tempt James into cutting negotiations short.

In the summer of 1610, England thus teetered on the brink of a secure absolutism — the Great Contract would in the short term restrain many of the monarch’s arbitrary impulses, because of all the concessions about governing within the law, but in the long term it could have allowed James and his successors to govern for decades without having to call a Parliament again. It would have given him extraordinary leeway to act as he pleased. MPs spent the summer break out in the country, trying to convince their constituents that it was a good deal — it would require an unprecedented increase in taxation after all. And to keep them sweet, James unilaterally dealt with some of their complaints. He even reduced some of the impositions, at great cost.

But then, for some reason, the contract suddenly failed. It mystified even those who were intimately involved. A key negotiator for the Commons, Sir George More, exclaimed that “I will not examine the cause, because I protest I am utterly ignorant of it.”¹² Some historians suspect that an agreement could not be reached on how to levy the new tax. Cecil certainly wanted it mostly levied on land, as the surest source of a stable income, but the gentry thought it would be too severe to all fall on them. Others blame courtiers for having gained the king’s ear — they stood the most to lose from the deal, as purveyors, tax collectors, and informers themselves. These self-interested officials appear to have convinced the king that he had settled on too low a price, and that he might repair his finances by simply being even more ruthless at exploiting his prerogative.¹³ Or perhaps, as is most likely, the king just got carried away by making his expectations too explicit.

Soon after Parliament reconvened in the autumn of 1610, James suddenly seemed to demand more. He stipulated that the Commons should pay extra to compensate the officials who would have to be sacked (something that had not been finalised before the summer recess). He demanded a truly massive one-off subsidy of £500,000 to clear his accumulated debts (something that Cecil had actually raised at the very start of negotiations, but which MPs probably forgot about, or thought more proper to vote voluntarily only after everything was agreed). And he appeared to demand that the annual support should be levied on land (almost certainly just a misunderstood suggestion). Regardless, the Commons could not believe their ears, and amid mutual recriminations the whole thing collapsed.

As we’ll see next time, James’s overplaying of his hand would have catastrophic results. It would lead to decades of absolutist rule, but on insecure financial foundations. And would lead, finally, to the famous Statute of Monopolies.

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1. P. B. Waite, ‘The Struggle of Prerogative and Common Law in the Reign of James I’, The Canadian Journal of Economics and Political Science / Revue Canadienne d’Economique et de Science Politique 25, no. 2 (1959), p.145

2. Cheshire had managed to escape the Council’s jurisdiction in 1569.

3. R. E. Ham, ‘The Four Shire Controversy’, Welsh History Review / Cylchgrawn Hanes Cymru 8, no. 4 (December 1977): 381–400.

4. Ethan H. Shagan, ‘The English Inquisition: Constitutional Conflict and Ecclesiastical Law in the 1590s’, The Historical Journal 47, no. 3 (2004), p.546; see also: John M. Lund, ‘Fear of an Oath: Piety, Hypocrisy, and the Dilemma of Puritan Identity’ (PhD thesis, University of Massachusetts Amherst, 2001)

5. He wasn’t the only one. The ringleaders of this party alongside Fuller, Hyde, and Croft, appear to have been Sir Edwin Sandys, Sir Maurice Berkeley, Richard Gore, and Richard Martin, along with Sir Henry Neville, Edward Alford, William Hakewill, Sir John Scott, Sir Nathaniel Bacon, Sir Francis Hastings, Sir Robert Wroth, James Whitelocke, John Hare, John Hoskins, and many others.

6. Although many individual MPs in the group enjoyed the patronage of the Earl of Southampton, any role he had in organising them or getting them elected is speculative.

7. Quotation by Chancellor Ellesmere, in particular regarding the faction’s role in negotiating the Great Contract. Reproduced in: Stephen Wright, ‘Nicholas Fuller and the Liberties of the Subject’, Parliamentary History 25, no. 2 (2006), p.209

8. See the entry for Sir Henry Neville at History of Parliament Online for the use of “patriots”, and the very helpful survey on managing the Commons for the charge of a confederacy..

9. Gardiner, pp.139-40.

10. From now on, unless otherwise specified, details of the king’s and Parliament’s negotiations are taken from Raymond J Teichman, ‘King James I, Parliament and the Great Contract, 1603-1610’ (Ph.D., Loyola University Chicago, 1973).

11. Elizabeth Read Foster, ed., Proceedings in Parliament, 1610, vol. 1 (Yale University Press, 1966), p.120

12. Elizabeth Read Foster, ed., Proceedings in Parliament, 1610, vol. 2 (Yale University Press, 1966), p.335

13. This argument largely hinges on a memorandum of objections to the Great Contract, with answers, penned by Sir Julius Caesar. It’s probably an accurate report of courtiers’ objections, but was most likely an internal document to help Cecil overcome them. Eric Lindquist, ‘The Failure of the Great Contract’, The Journal of Modern History 57, no. 4 (1985), p.639