Family and Education

b. 1584/5, 2nd s. of Rowland Berkeley* (d.1611), clothier of Worcester, Worcs. and Spetchley and Katherine, da. of Thomas Heywood of Gloucester, Glos.1 educ. Queen’s, Oxf. 1597, aged 12; M. Temple 1601, called 1608.2 m. Elizabeth, da. and coh. of Thomas Conyers of East Barnet, Herts.3 kntd. 14 Apr. 1627.4 d. 5/6 Aug. 1656.5 sig. Ro[bert] Barkely.

Offices Held

Sheriff, Worcs. 1613-14;6 j.p. 1613-43;7 commr. subsidy, Worcs. and Worcester 1621-2, 1624, charitable uses, Worcester 1624, 1630, 1632, 1636-7;8 ?collector, Privy Seal loans, Worcester 1625-6;9 commr. Forced Loan, Worcs. 1626-7, sewers, Worcs./Glos. borders 1627-42, oyer and terminer, Oxf. circ. 1631-42, London 1632-42, the Verge 1634-42, Mdx. 1634-42, piracy, London and lower Thames 1633-42.10

Recorder, Worcester 1619-24;11 bencher, M. Temple 1625-7, autumn reader 1626;12 sjt.-at-law 1627;13 king’s sjt. 1627-32;14 j.k.b. 1632-43;15 judge of assize, Norf. circ. 1633-5, Northern circ. 1635-8, Midlands circ. 1639-40.16

Commr. decay of trade 1622;17 member, High Commission, Canterbury prov. 1633-41.18

Biography

Berkeley’s father, one of the wealthiest clothiers in Worcester, settled landed estates upon three of his sons at his death in 1611. However, he presumably reserved his highest aspirations for his second son, Robert, then a newly qualified barrister, to whom he granted his main estate at Spetchley, three miles east of Worcester.19 Robert subsequently cemented his local position by serving as sheriff, and was fortunate that the shire election of 1614, for which he was responsible, saw no repetition of the bitter contest of 1604. In 1619 he secured his first professional appointment as recorder of Worcester, probably with the backing of Thomas Chettle*. The latter was a member of the corporation and father-in-law to Berkeley’s elder brother, and his heir had been tutored at the Middle Temple by Berkeley. This relationship bore further fruit at the parliamentary election of December 1620, when Chettle, one of the city’s burgesses in 1614, stood aside to permit Berkeley’s return.20

The extent of Berkeley’s parliamentary activity is difficult to ascertain, as several Members with the same surname sat in both 1621 and 1624. One of these namesakes, the Shrewsbury lawyer Francis Berkeley, shared many of the Worcester man’s local and professional interests. However, the key issue which attracted Robert Berkeley’s attention in 1621 was the bill to allow free trade in wool, an important concern for a cloth-making town. This trade was theoretically regulated by an Act of 1552, which forbade the purchase of wool for domestic use by any but weavers and clothiers (such as Berkeley’s father). Enforcement had long been mitigated by a variety of licensing measures, but in 1615 all such exemptions were revoked. The resulting turmoil led to a fresh monopoly of the domestic wool trade being granted to the Merchant Staplers, who in 1617 were licensed to operate in 23 towns, including Worcester. Thereafter, any manufacturer who wished to remain in business was expected to pay the exorbitant sum of £110 to join the Staplers’ Company. Added to this, the Worcester clothiers harboured a private grudge against the Shrewsbury stapler Arthur Kynaston, who engrossed supplies of the March wool which provided their raw material.21

Under these circumstances, Worcester’s MPs naturally took a keen interest in the 1621 bill intended to revoke the 1552 Wool Act and bar the Staplers from the domestic trade. Berkeley is not known to have spoken at the committee hearing on 16 Feb., when his fellow Worcester MP, John Coucher, attacked the Staplers. However, one or other of the town’s MPs raised fresh protests a week later, and by the time the bill was reported on 13 Mar. Berkeley had been briefed to support Coucher’s motion to allow the clothiers of Worcestershire and Gloucestershire an annual monopoly of the local wool trade from shearing time to Michaelmas.22 Although no such proviso was forthcoming, at the bill’s third reading on 26 May Coucher offered a fresh amendment to restrict the purchase of wool to clothiers buying at market towns. Berkeley supported this new proviso, offered the Commons a detailed analysis of two centuries’ worth of legislation, and argued that ‘if this bill go on it repeals all former statutes’ and would ‘spoil the clothier’. Despite these warnings the proviso was not adopted. Coucher and Berkeley nevertheless received wages of 2s. 6d. a day each in recompense for their services.23

Although the wool bill was ultimately lost at the dissolution, the Crown conceded the principle of free trade in a Proclamation of 10 July 1621, which revoked numerous contentious patents, including that of 1615 for collection of the fines for ‘brogging of wool’. This offered no pre-emption to Worcester’s clothiers, but the town’s problems diminished over the following years, as Kynaston diverted his energies into an attempt to seize control of the Welsh cloth trade. Meanwhile, nomination to the Privy Council’s advisory committee for decay of trade in the spring of 1622 gave Berkeley a role in the negotiations which ultimately diverted the Staplers from the domestic wool trade into the cloth export trade.24

Berkeley clearly made a good impression on the 1622 commission, as he was chosen to pilot key legislation relating to wool and cloth through the following Parliament. When the revived bill for free trade in wool received its first reading on 2 Mar. 1624 he successfully moved that two others, one directed against the export of wool and the second a more general cloth bill, should be allowed to proceed alongside the free trade bill. These additional measures had both been debated in the Commons in 1621 and had received extensive scrutiny before the Privy Council committee in 1622. For all this preparation, the bills impinged upon many rival interests, and Berkeley showed great skill in charting a course between them in his reports (17-21 April).25 The bill for free trade in wool never got beyond its first reading, but on 26 Apr. the Commons secured an undertaking from the Merchant Adventurers to throw open the trade in dyed and dressed cloths to all comers. This concession allowed the Staplers to honour an earlier agreement to withdraw from the domestic wool trade, thus leaving clothiers at Worcester and elsewhere in complete control of their wool supply. When the Commons debated whether to accept this concession on 5 May, Coucher quickly signalled his assent. He was followed by Berkeley, who compared the Adventurers ‘to a great old tree which hath borne good fruit, yet now is grown mossy and too full of branches’. He moved ‘to pare and prune them, to add other traders to them [the Staplers]’, and ‘to ingraft other sciences into them [New Draperies]’.26

The other economic question to which Berkeley addressed himself in 1624 was the dispute over Edmund Nicholson’s patent for pretermitted customs. On 6 Apr. he gave the trade committee a cogent report on the origins of the levy, an allowance in lieu of the duty which would have come to the Crown upon the export of an equivalent amount of wool. After investigation by the Commons in 1621, Nicholson had protested that his grant was justified by the Tunnage and Poundage Act of 1604, which set the custom upon wool at £2 a sack. This assertion of the patent’s justification under statute law neatly sidestepped the question of the prerogative basis of impositions - which had hamstrung the parliamentary sessions of 1610 and 1614 - but the audacity of this approach was clearly regarded as an affront by the lawyers of the House, provoking Berkeley’s claim that the levy was ‘not custom nor subsidy, but is a composition’, an assertion endorsed by Sir Edward Coke.27 Berkeley returned to the same question a week later, demolishing Nicholson’s case with a detailed analysis of the text of the 1604 Act. He also examined the precedents which Nicholson had cited (but earlier monarchs had not used) to collect such a levy, and pointed out the inequity of imposing a duty measured by weight upon a commodity which varied considerably in cash value. These contributions eventually led to his inclusion on the committee appointed to set down in writing the House’s objections to Nicholson’s patent (5 May 1624).28

A modest amount of other parliamentary activity can tentatively be ascribed to the Worcester MP. At the second reading of the bill for free trade in Welsh butter on 10 Mar. 1621 it may have been this Member who moved for the relevant patent then in force to be brought before the House: most of the existing trade was channelled down the Severn to Bristol.29 He was probably also the ‘Mr. Bartlett, a lawyer’, who called for a vote on the electoral contest at Chippenham, Wiltshire on 15 Mar. 1624, and he was almost certainly the man ordered to draft a bill, intended for tabling in the autumn, to void the alnage patent following its censure on 22 May 1624.30 More surprisingly, he may have been the Berkeley who, on 7 May 1621, defended the patent which gave John Lepton a monopoly over the drafting of litigation at the Council in the North. Citing the legal maxim volunti non fit injuria [the prerogative cannot harm itself], he proceeded to argue that ‘the court being derived from the prerogative of the king, the king’s patent is a law to the court, both for the manner of proceeding and establishing of officers’.31 Unlike Coke, Berkeley, having established the dependence of a Nicholson or a Lepton upon royal power, was disinclined to pick a fight over the principle of monarchical authority, a reluctance which later informed his judgment in the Ship Money case. Given that Berkeley held such opinions, it is possible that he was the ‘Mr. Bartlett’ who moved to end the Commons’ cessation of business on 10 Dec. 1621, on the somewhat implausible grounds ‘that the king seeketh not to abridge our liberties, but [merely] to increase his prerogative’, an argument many Common lawyers would have considered absurd.32

Despite having consistently striven to further Worcester’s interests in the Commons, Berkeley was replaced as the city’s recorder by attorney-general Sir Thomas Coventry* in August 1624. Berkeley may have been happy to trade local influence for Court patronage, and his career certainly accelerated rapidly thereafter: he was made a bencher of the Middle Temple in 1625, autumn reader in 1626, serjeant-at-law and king’s serjeant in 1627. Moreover, Coventry and the duke of Buckingham acted as his sponsors upon his elevation to the coif.33 Coventry nominated his own candidates at Worcester during the general elections of 1625-6, and in the following Parliament, from 4 Apr. 1628, Berkeley served as a legal assistant in the Lords. As king’s serjeant, he was called upon to present the Crown’s case against the writ of habeas corpus sued by William Strode, one of the MPs detained for his part in the tumult at the dissolution of 2 Mar. 1629. At Charles’s insistence, the return made in response to this writ had been deliberately evasive in order to conserve some fragment of the prerogative power of imprisonment at will, in defiance of the Petition of Right. Berkeley chose to argue upon the semantic grounds that the ‘notable contempts’ cited in the return could be construed as treason, and thus provide grounds for refusal of bail. His case was elegantly destroyed by Edward Littleton II*, and the king was forced to rely on procedural tricks to prevent the prisoners from being bailed.34

Berkeley’s failure to uphold a flawed brief could hardly be held against him: his efforts received due recognition with his appointment as a justice of King’s Bench in 1632, and he was a leading contender for promotion at the death of chief justice Sir Thomas Richardson* three years later. A signatory of the judges’ public endorsement of the legality of Ship Money in February 1637, he was perhaps one of those said to have been offered further preferment in return for his compliance.35 His verdict on John Hampden’s* test case, handed down a year later, unambiguously favoured the Crown:

when the good and safety of the kingdom in general is concerned, and the whole kingdom in danger, the king may by writ under the Great Seal command all the subjects of the kingdom at their charges to provide and furnish ships for the defence and safeguard of the kingdom, and may by law compel the doing thereof. And that in such case the king is the sole judge of the danger, and when and how the same is to be prevented.

This judgment relied upon the interpretation that the cash to be levied was merely the commutation of a service - the provision of a ship for coastal defence - and could not be construed as a tax, a legal technicality which evaded the multitude of precedents against taxation without consent. If this was so (and several of the judges argued the contrary case), Ship Money became a prerogative levy, and in Berkeley’s opinion, there could be no veto upon its collection: ‘the law knows no such king-yoking policy. The law is of itself an old and trusty servant of the king’s, it is an instrument or means which he useth to govern his people by’.36

Berkeley’s judgment comprised an attack on the fundamentals of the Common Law, and consequently he could expect little mercy from the Long Parliament. On 12 Feb. 1641 he experienced the particular humiliation of being arrested in his own court by Black Rod and carried before the Lords for committal to one of the sheriffs of London. Impeachment charges were filed in July, but when the remaining judges joined the king at the outbreak of the Civil War, Berkeley was brought out of prison to preside over King’s Bench for a term. Judgment was finally pronounced against him on 12 Sept. 1643, when he was fined £20,000, barred from public office and imprisoned during pleasure. Prompt payment of half his fine secured the waiver of the rest and release from gaol, a process which may have been assisted by the fact that his wife was cousin to John Pym*.37 He was briefly examined in connection with the impeachment of Archbishop Laud, offering a notably unhelpful testimony, but after the war he retired to his Worcestershire estates, dying at Spetchley in August 1656. His only son was certified as a lunatic after his death, and doubtless with this in mind, he had settled his estates on a group of trustees headed by his nephew Sir Rowland Berkeley in 1655.38 The latter was the next MP in the family, representing Worcester in the Cavalier Parliament.

Ref Volumes: 1604-1629

Author: Simon Healy

Notes

• 1. Vis. Worcs. (Harl. Soc. xc), 11-12.
• 2. Al. Ox.; M. Temple Admiss.; MTR, 491.
• 3. Vis. Herts. (Harl. Soc. xxii), 139.
• 4. Shaw, Knights of Eng. ii. 192.
• 5. Diary of Henry Townshend ed. J.W. Willis Bund, i. 33; C142/718/155.
• 6. List of Sheriffs comp. A. Hughes (PRO, L. and I. ix), 159.
• 7. Cal. Worcs. Q.S. Pprs. ed. J.W. Willis Bund, i. pp. xxi, xxviii.
• 8. C212/22/21-3; C181/3, f. 114; C192/1, unfol.
• 9. SP16/44/9.
• 10. C193/12/2; C181/3, f. 220; 181/4, ff. 71v, 128, 138f, 158, 172.
• 11. Worcester Chamber Order Bk. 1602-50 ed. S. Bond (Worcs. Hist. Soc. n.s. viii), 157, 185, 192.
• 12. MTR, 701, 708.
• 13. Order of Sjts.-at-Law ed. J.H. Baker (Selden Soc. suppl. ser. v), 183.
• 14. List of English Law Officers ed. J. Sainty (Selden Soc. suppl. ser. vii), 18.
• 15. Sainty, Judges, 32.
• 16. J.S. Cockburn, Hist. Eng. Assizes, 271-2.
• 17. APC, 1621-3, p. 208.
• 18. CSP Dom. 1633-4, p. 326.
• 19. C142/325/181; PROB 11/117, ff. 435-7.
• 20. Vis. Worcs. 11-12; MTR, 520.
• 21. A. Dyer, Worcester in Sixteenth Cent. 93-104; P.J. Bowden, Wool Trade in Tudor and Stuart Eng. 115-72; APC, 1616-17, p. 35; Stuart Royal Procs. ed. J.F. Larkin and P.L. Hughes, i. 365-9.
• 22. CD 1621, ii. 214-17; iv. 150-2; v. 487, 501; vi. 60; CJ, i. 552b; Nicholas, Procs. 1621, i. 151-2; Kyle thesis, 87-90.
• 23. CD 1621, ii, 392-4; iii. 317-20; iv. 378-9; vi. 170-1 (quoted); CJ, i. 627b; Nicholas, Procs. 1621, ii. 105-6; Kyle thesis, 90-1; Worcester Chamber Order Bk. 175-6.
• 24. Stuart Royal Procs. i. 514; APC, 1621-3, pp. 201-2, 208; Bowden, 191-3; Kyle thesis, 91-3. For Kynaston’s problems, see SHREWSBURY.
• 25. Kyle thesis, 80-5, 101-6; CJ, i. 724b, 768b, 771b, 772a; ‘Pym 1624’, ff. 14v, 69-70, 73v-74v; ‘Holland 1624’, ii. ff. 37v, 40v, 42v.
• 26. Kyle thesis, 91-2; CJ, i. 698b, 774a, 783-4; ‘Earle 1624’, f. 170; ‘Holland 1624’ ii. ff. 77v-8.
• 27. ‘Lowther 1624’, f. 52r-v; ‘Nicholas 1624’, ff. 115v-17.
• 28. CJ, i. 698b, 765; ‘Holland 1624’, ii. ff. 17-18; ‘Spring 1624’, p. 215; ‘Earle 1624’, ff. 137v-8, 170v; ‘Pym 1624’, ff. 63, 88; ‘Lowther 1624’, f. 63.
• 29. CJ, i. 549a, 575b; CD 1621, ii. 204.
• 30. CJ, i. 686b, 709b; ‘Spring 1624’ p. 116; ‘Nicholas 1624’, f. 217v.
• 31. CD 1621, iii. 195; iv. 337; v. 152.
• 32. Nicholas, Procs. 1621, ii. 300-1; CJ, i. 661a; CD 1621, vi. 229-30.
• 33. Worcester Chamber Order Bk. 172, 192; MTR, 701, 708; Order of Sjts.-at-Law, 183, 438.
• 34. Procs. 1628, v. 151; State Trials ed. T.B. Howell, iii. 244-50; L.J. Reeve, Chas. I and the Road to Personal Rule, 124-5.
• 35. Strafforde Letters (1739) ed. W. Knowler, i. 373, 413; CSP Dom. 1636-7, pp. 416- 18; B. Whitelocke, Memorials of Eng. Affairs, i. 71-2.
• 36. State Trials, iii. 1087-1125; C. Russell, ‘Ship Money Judgements of Bramston and Davenport’, Unrevolutionary Eng., 137-77; K. Sharpe, Personal Rule of Chas. I, 717-30.
• 37. LJ, iv. 161a, 303a; vi. 214; Whitelocke, i. 117, 136, 212; Bramston Autobiog. ed. P. Braybrooke (Cam. Soc. xxxii), 77-81; Clarendon, Hist. of the Rebellion ed. W.D. Macray, iii. 209; Vis. Herts. 139.
• 38. CSP Dom. 1644, pp. 3-4; C142/718/155.