Lawyers, Gunpowder, and Money: Lawfare in the Stuart Kingdom

A paper I am presenting at the Ohio Valley History Conference

I presented this paper at the Ohio Valley History Conference on 5 October 2024.

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ABSTRACT: The East India Company’s 1630 lawsuit against military entrepreneur John Fowke is contextualized as lawfare, broadly defined as the manipulation or exploitation of legal systems to achieve political and/or military objectives, such as damaging or delegitimizing opponents.

John Fowke became a political threat to Charles Stuart at the beginning of his reign by leading the agitation over tonnage and poundage rates.[1] Fowke’s Atlantic mercantile activities likewise threatened the royal gunpowder and saltpeter monopolies. Fowke had only just finished paying his way out of the first trouble when a royal ally of the court serving as Company counsel attacked Fowke’s illicit trade in gunpowder.

The Honorable Company sued John Fowke in Chancery Court, which had evolved out of the royal scriptorum.^[2] Religious courts were hostile to medieval merchants squabbling over the interest rates in their contracts, spurring the rise of secular courts in Europe as venues for men of high finance to sue one another, and the Chancery was one of these.^[3] Royal chancellors held the privy power over royal charters and commissions, so by Fowke’s era the merchants of London used the Chancery Court as their arena for business disputes.^[4] Sir Edward Coke, one of the most formative English legal minds of the age, set the course of English law towards a separation of powers in 1608 when he denied King James I “authority to participate in the judicial decisions of his own courts.”^[5] Businessmen wanted a judge who was free of royal interference, too.

Sir William Acton attended the case as Company counsel.^[6] Previously, as a sheriff of London, Acton had refused to recognize a parliamentary order to release Fowke and his fellow agitators from the Fleet.[7] Charles I rewarded Acton for this intransigence with a baronetcy, an unprecedented reward for a Londoner who had not served as an alderman yet.[8] Acton complained about the “impertinent discourse of Mr. Fowkes” during the case.^[9] In 1640, Acton became the first political victim of John Fowke’s political machine.[10] Fowke resumed his quarrel with the Company in the House of Lords as the siege of Oxford began in 1646.[11] The dispute was not resolved until 1657, when Action was still serving as Company counsel.[12]

According to the Bill of Complaint, “about the beginning of September [1630]” the Company had imported a load of saltpeter, “and after several treaties between” the parties, had “trusted” the defendants, Fowke and Daniel Bonnell, with their cargo.^[13] Saltpeter was a royal monopoly, as was gunpowder, the primary product made from it. Normally, saltpeter was a “ready cash” item. However, this saltpeter had been sold on credit, and the bill left unpaid.^[14]

Bonnell is accused of “having transported all or most part of his estate beyond the seas” in preparation “to leave this kingdom” and skip out on his obligations.^[15] Bonnell was dodging his debts in France at the time.[16] Fowke is responsible for Bonnell’s actions, the Company alleges, “this practice being purposely done by confederacy between them.”^[17] Bemoaning “the great trust and confidence they did repose in” the defendants, the Company asks the court to require both men “at a certain day and under a certain pain therein” to “make perfect answers to the premises, upon their corporal oaths” about the alleged agreement.^[18] The Company wanted to compel their testimony, preferably with a bit of torture.

Bonnell avoided arrest for four years until he was finally remanded to the Fleet by an order of the Lord Keeper dated 7 March 1634.^[19] It is unclear why he had returned to England. Joseph Carron was still representing both Fowke and Bonnell in February 1635.^[20] But then in June 1636, a new lawyer, Thomas Kynaston, represented Bonnell in the Company court as well as the privy council.^[21] Kynaston reappears in the Company court minutes during 1637 representing the Courteen cartel in their dispute with the East India Company over a piratical interloping venture.^[22] At the same time, Fowke fitted out a flagship, The Dragon, for the second Courteen interloping fleet.^[23] These are close business links.

L.H. Roper has established that the “new modelers,” the faction of merchants which set the terms of imperialism under the Restoration monarchy and included Fowke, got their model of colonization and plantation from the Anglo-Dutch merchant William Courteen. ^[24] Robert Brenner has also identified this same faction of London import merchants as the motive force of revolution in the City. Most notable of these merchants was Maurice Thompson, a neighbor and business partner of John Fowke. Thompson led the Courteen merchants of London, absorbed the surviving Courteen operations and interests, and took physical possession of Courteen’s papers after his death.^[25] The Honorable Company was existentially opposed to the Courteen group and resisted policy changes sought by the new modelers. The case of EIC v John Fowke was lawfare by the Old Guard of the London oligarchy, namely Levant Company merchants who were uninterested in overseas expansion, against the rise of the new modelers.[26] The outbreak of war would find Fowke and the “London merchants who were not members of the privileged inner ring” leading the takeover of the City and the rebellion against Charles.^[27]

Case documents reveal early signs of that split. Carron indicates that he met with hostility from other traders over his business relationship to Fowke. He writes that “some merchants free of the said Company meeting him upon [...] and chance persuaded him to break of the said bargain, threatening him that he should not enjoy it, or to that effect, it being then within this defendant’s power so to do, as he conceived.”^[28] Eight months after the verdict, an order of the Lord Keeper agreed to an extraordinary ex parte meeting with “Mr Alderman Perry and Mr Alderman Andrewes,” who “had been employed by the said Company in business touching the premises.”[29] The Aldermanic Court was a constant obstacle to reform. During the first year of the war, freshly minted Alderman Fowke and Lord Mayor Sir Isaac Pennington led the campaign to remove opponents of radical reform from the Court to replace them with radicals and new modelers.[30]

Carron states that “he bought of the said other defendant Fowke his the Fowke’s stock and adventures in and with the said company for a valuable consideration of money” before the original Bill of Complaint had been filed.^[31] Furthermore, both men say that the Company knew about the arrangement.^[32] Fowke “did notify and declare unto the Governor and committees of the said company” that he had made the deal with Carron, they claim.^[33] Offered £717 to settle the debt, “the Company had “refused to accept.”^[34] The defendants argue the East India Company lacks “sufficient authority by law to make such orders or constitutions” that would nullify their private contract.^[35] Fowke and Carron “were not privy or consenting to the making of any such orders or constitutions,” they argue, “nor do know that any such constant custom and usage have [been] put in execution” before this case.^[36]

Today, this kind of legal claim could fall under the heading of tortious interference, which the Cornell University School of Law defines as “a common law tort allowing a claim for damages against a defendant who wrongfully interferes with the plaintiff's contractual or business relationships.”^[37]

Fowke denies all knowledge or responsibility for any saltpeter imported from India.^[38] He disowns responsibility for any agreement involving the Company and Bonnell, or any consequences deriving from it.^[39] He denies receiving any profit or benefit from saltpeter, or even taking any risk “to undergo any hazard [...] at all in the transportation” thereof.^[40] No “confederacy” with Bonnell ever existed, he says.[41] “Neither has this defendant any cause or reason for to do selling of saltpeter,” Fowke insists.^[42] His denial is total.

It is also hard to believe, for the Company consulted Fowke in 1636 during its dispute with the royal court over permission to start up their own gunpowder mills at Chilworth.[43] Fowke succeeded as the fixer in this affair.[44] The clear implication is that Fowke had been involved in the underground gunpowder trade before 1630 and the case of the missing saltpeter.  

Contradicting Fowke, Bonnell says that they did enter an arrangement “to be joint partners therein both for profit and loss” by insuring (“policies of assurance”) a “vendible commodity” of saltpeter.^[45] Rather than a “conspiracy” or a “practice and confederacy” to abscond with the profits from a sale of saltpeter, “some accident whereby the said profit was diverted another way” has resulted in both men being charged for it.^[46] Neither of them, Bonnell insists, has sold the saltpeter to someone else, or made use of it themselves.^[47]

More is at stake in these pleadings than mere reputation or profit. The Company charges Fowke and Bonnell with a complex scheme to defraud their Honorable accounts, and by implication, the Crown monopolies on saltpeter and the most common product made from it, gunpowder. For this reason, Fowke was compelled to deny knowledge of “whether his majesty were duly satisfied all or any moneys due for customs, subsidies, and imposts thereof, upon the importation thereof or no,” or whether the saltpeter “did remain in their hands or no, or whether the necessary occasions and stores of this kingdom were sufficiently furnished.”^[48]

Meanwhile, The Calendar of State Papers volume for 1633 and 1634 contains more than eighty entries regarding saltpeter, for the royal court was defending this monopoly from interlopers.^[49] Outside of cities, “the spread of nitre beds into the countryside meant that small-scale but enterprising gunpowder makers were able to make illicit purchases of saltpeter beyond the control of the Crown and its Patentees.”^[50] Beginning as “craftsmen working first in the urban environment and then in the countryside as the processes became water-powered,” the underground gunpowder industry was too widespread for the weak centralized authority of the Stuart kingdom to reign in.^[51] With unlicensed saltpeter and gunpowder producers coming under royal investigation and Star Chamber prosecution, Fowke’s utter negation of any contractual relationship to a cargo of saltpeter makes sense. He would have resisted being implicated in yet another potential crime against the state and royal authority. Furthermore, total denial would have strengthened the existing ties of trust with his merchant community. Fowke was the man who could get much-needed gunpowder, “just don’t ask too many questions about where it came from.”[52] Denying everything meant not naming names. No doubt Fowke’s suppliers and customers would have been grateful.

A colorful counter-narrative emerges. Fowke says that he heard “Bonnell confess that he had made some bargain for saltpeter with one Mr Thomas Stiles. who was one of the committees and trusted by the said complainant in that behalf.”^[53] This “familiarity was between the said Mr Stiles and the said Bonnell by occasion of a treaty of marriage that was between the said Bonnell and kinswoman of the said Mr Stiles.”^[54] Fowke avers that “the said Bonnell, to gain a good opinion with the said Mr Stiles, had sent him diverse presents of good value, and that by that means he became so inward with the [said Stiles] that by his means he obtained his freedom of the said company for a moderate fine.”^[55]

Having finagled this membership discount from Thomas Stiles, Bonnell negotiated alone “for a parcel of saltpeter at a price then propounded by the said company or some of them,” and Stiles thereafter acted as Bonnell’s agent “to get an abatement of the price demanded or a longer day of payment for the same, and that the said Thomas Stiles did agree to accept the sole security of the said saltpeter.”^[56]

“Thomas Stiles has also confessed the same to this defendant,” Fowke says.^[57] “And this the said Bonnell has also confessed to this defendant,” who has “also credibly heard that the said saltpeter was delivered to the [mills by] some or one of the servants officers or ministers to the said company, by direction of the said Stiles, and that an entry thereof was made in the Company’s books, by them to be sold [in the name of] the said Bonnell, without any mention of this defendants name,” the answer states.^[58] “And this defendant has seen the entry in the said book to be accordingly.”^[59]

Company minutes show that in November 1632 Fowke openly “scandalized Mr. Styles to all men he spoke with.”^[60] The East India Company stood by its man. On 6 January 1633 the Company solicitor reports that “John Fowke threatened to complain to the General Court that the proceedings against him for recovery of the Company's debt were without the Company’s allowance, and by instigation of his enemy Mr. Styles; the [Company] Court therefore declared that what [Styles] hath done was by their joint direction.”^[61]

Bonnell only mentions Stiles twice, admitting it is “true … that several treaties did pass between this defendant and the said master Stiles,” and that the deal for the “saltpeter was made by this defendant alone and by the said Master Thomas Stiles.”^[62]

Lord Keeper Thomas Coventry came down on the side of the Company on 21 November 1631, awarding them Fowke’s “adventures in their hands, by him alleged to be sixteen hundred pounds in their second joint stock, and twenty-one hundred pounds more in three of their voyages.”^[63] Bonnell is not named as a defendant in this second Bill of Complaint, for although he remains liable, he still is “not able to pay any part of the debt,” whereas Fowke is an investor in the East India Company with “£1,460 remaining in stock and adventure liable and subject to pay” it.^[64] This focus on Fowke as the deep pockets to sue began early in the case, for “Daniel Boneall” had petitioned the Honorable Company “concerning his debt to the Company for saltpeter, which he was utterly unable to pay and desired the Company would, like his other creditors, accept his estate and divide it amongst them.”^[65] In 17^th century England, “estate” referred to a person’s landed income and “constituted the barometer of social and political status.”^[66] Bonnell was flat broke. However, the Company “saw no reason to waive their suit, conceiving they had a good man (Mr. Fowkes) obliged with him to satisfy it.”^[67] Fowke lost this lawsuit in a process not wholly dissimilar from the Star Chamber, from his perspective. Experiences of arbitrary legal process were becoming a pattern to his life.

As 1633 began, the Chancery Court was focused on financial settlement.^[68] The plaintiffs agreed to hold an adventure of Fowke’s “towards satisfaction of the decree,” allowing him to sell it for “the best rate he can make it appear to be worth and assent that the same shall go towards satisfaction of the decree and supply what shall be wanting of the money decreed.”^[69] In exchange, Fowke would avoid prison.^[70] However, within reasonable limits, this settlement would also “permit and suffer the defendant to have view and take copies of the particular orders made by the company as concerned the detaining of the said adventure and the business now in question upon this bill as well those that are repealed [and] those that be in force.”^[71] Fowke was springing documents loose from the Company.

He had demanded transparency throughout, for example by compelling the Company to present him with “a copy not only of the oath administered to every free brother, but taken by Mr. Governor and other officers” as well.^[72] Carron and Fowke unveiled this strategy in their Joint and Several Answers, dated 20 October 1632. Fowke asserts that the Company has not “valued” his investment with them “as a true account were made.”^[73] Until he is able to “see and examine” the Company’s books, “he is not nor shall be able to [assess?] the true value thereof.”^[74] Fowke doubted “the stock of any freeman of the said company was ever detained for to satisfy a decree made in this honorable court, until now, by woeful experience, this defendant does find the same put in execution against him.”[75] Fowke claims he has “heard that in other cases, when freemen of the said company become indebted unto the said company by other means, there is former such custom and [usage?] in the said company as in the bill mentioned, and that the same has at some times been put in execution, but this defendant cannot now certainly depose of his own knowledge when and in what case” this happened ”because he cannot to this day obtain a sight of the said company’s written authentic acts and orders of their courts and other written books, though he often desired” to see them.[76]

In search of answers, Fowke says, he has asked “both of the said officers that have the keeping of their orders, and of the Governor and Committees at their public court, to see” the Company policies that allow this, “but could never be admitted thereunto, [and he has been] utterly denied a sight of them.”^[77] Instead, “a solicitor for the said company, diverse months after the said sale, and after notice given thereof as aforesaid, did deliver to him this defendant a note in [...] of paper, without any name subscribed thereunto, which he pretended to be a copy of one of their orders” that forbid “the transferring of adventures.”^[78] This alleged fraud involved “touching therein a printed book out of which the same was supposed to be copied, which book this defendant was promised a sight of.”^[79] Yet despite “having sundry times requested their bookkeeper” show him the book, neither the bookkeeper “nor any other in his presence at a court of committees affirmed it to be … the same” as what Fowke had been shown, and Fowke “could never obtain a sight” of it.^[80]

Armed with the Chancery Court’s order to provide documents as requested – what would today be called a discovery order – Fowke began to push back. On 23 January 1633, he requested “to have copies of the orders for detaining his adventure and concerning the saltpeter” delivered, as was his right.^[81] Although the Secretary agreed to let him copy anything, he would not let Fowke go through all the documents.^[82] Fowke alleged there had been “an extraordinary practice with the register” for calculating the Chancery Court verdict.^[83] He worried that the Company would “overbear him in their countenance and purse … because the Court and Mr. Fowkes could not understand each other concerning the copies desired.”^[84]

The Lord Keeper heard Fowke’s complaints of Company stonewalling and “ordered that the defendant shall set down a note of what orders and other writings he desires to see, of which the Plaintiff shall permit the defendant to have copies and for that purpose the defendant shall be admitted freely to come unto” Crosby House, where the East India Company kept its books.^[85] An order compelling the Honorable Company to give Fowke access to requested documents was issued on 1 May 1633.^[86]

As was to be his pattern, Fowke’s efforts ultimately bore fruit in an acrimonious dispute. During a meeting of the Company Court in February 1635, investors demanded that the books be opened for their review.^[87] One result of their demand for transparency is that Ethel Sainsbury’s multi-volume record of the East India Company court minutes begins in 1635. Fowke and Carron were not doing something particularly new. New merchant communities frequently challenged the Old Guard in City institutions through transparency demands like this.[88] Emerging from the chrysalis of an unpaid delivery bill, the activist investor John Fowke spreads his wings. His war with the Company was not just a contest of wills among hard-nosed men of business, or a dodgy deal in controlled substances, but a principled crusade against abuse of process. The author’s thesis explores how a strong belief in justice resulted from these experiences and shaped John Fowke’s politics.

Charles I tolerated a second-order business association with Fowke through his own friendship with the Courteens during 1636-1637, when the Company’s war with the late William Courteen and his son – by then a debt-dodger in France, like Bonnell before him – was at its most intense. Royal favor for the Courteens was the only alternative to the royal monopoly for East Indies trading and access to Gangetic saltpeter. Fowke’s ties to the Courteens were likely older than the Company’s saltpeter bill, as Fowke was already trading in sugar during 1629.[89] After 1638, however, the value of royal favor diminished for the new modelers as the Courteen cartel declined, war broke out in the three kingdoms, and the interests of the new modelers increasingly diverged from the policy of the king. Five Courteen ships delivered “3600 hundred weight of rough saltpeter or thereabouts” to London in January 1644, in the middle of the First English Civil War.[90] It was their final act as a corporation.

Before 1638, Fowke may have held out hope for an eventual reversal of the Chancery Court verdict by winning the king’s favor. By the end of 1641, however, he was an outspoken political enemy of the weakened king. During January 1643, when the shock of the first battles led to peace talks, Charles Stuart offered to return to London if he could have the heads of four revolutionary leaders, one of them being John Fowke, who was “notoriously guilty of schism and high treason.”[91] Victory instead enabled the new modelers to impose their trade policy on the East India Company as well as Britain’s new gunpowder empire. It also allowed Fowke to resume, and ultimately win, his legal dispute with the Company.

John Fowke engaged in lawfare with the East India Company for 28 years. The six years of war between Parliament and Charles I took place in the middle of that span. During the wars, Fowke personally agitated to create the New Model Army, oversaw its kit and financing, and became the mortal military threat that lawfare by friends of the royal court had failed to nullify. Fowke was a colleague and business partner to everyone who was anyone in London’s revolution during his political rise and he shrewdly thrived in the Restoration. Per the title of this writer’s thesis, East India Company v John Fowke and the Origins of the English Civil War, we may at last stand at the threshold of answering a question that has frustrated historians for centuries: Why? Perhaps the war happened because John Fowke chose a strategy of enlargement to win his lawfare conflict against the Company. History has missed this plot because Fowke did not advertise his gunpowder business. In the best tradition of shady business, he denied there was any business at all.

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[1] Popofsky, Linda S. “The Crisis over Tonnage and Poundage in Parliament in 1629.” Past & Present, Feb., 1990, No. 126 (Feb., 1990), pp. 44-75. 57

^[2] Baker, J. H. An Introduction to English Legal History. Butterworth & Co. Ltd., 1979. 84

[3] Tawney, R.H. Religion and the Rise of Capitalism. Harcourt, Brace, & Company, 1926. 51-52

^[4] Baker 89

^[5] Baker 83

^[6] Ibid

[7] Downs, Jordan S. Civil War London: Mobilizing for Parliament, 1641-5. Manchester University Press, 2021.  110-111

[8] Ibid

^[9] Bruce, John. Calendar of State Papers, Domestic Series, of the Reign of Charles I, 1634-1635. Her Majesty’s Public Record Office, 1858. 387

[10] Downs 111

[11] Stephen, Leslie, editor. Oxford Dictionary of National Biography. Oxford University Press, 1921-22. 521 cit Journals of the House of Lords Vol. IX,185

[12] Sainsbury, Ethel Bruce, editor. Calendar of Court Minutes of the East India Company, 1655-1659. Press, 1907-1938. 145

[13] Bill of Complaint, Pleadings. Folio C 8/68/67

[14] Ibid

[15] Ibid

[16] Sainsbury, Ethel Bruce, editor. Calendar of Court Minutes of the East India Company, 1635-1639. Clarendon Press, 1907-1938. xxi

[17] Ibid

[18] Bill of Complaint

[19] Order C 33/165 folio 403d

[20] CCMEIC 1635-1639 14

[21] CCMEIC 1635-1639 181-182, CCMEIC 1635-1639, 190-191c

[22] CCMEIC 1635-1639 215

[23] Brenner, Robert. Merchants and Revolution: Commercial Change, Political Conflict, and London's Overseas Traders, 1550-1653. Verso Books, 1993.173

[24] Roper, L.H. Advancing Empire: English Interests and Overseas Expansion, 1613-1688. 111

[25] Ibid

[26] Brenner 386-387

^[27] Russell, Conrad. The Causes of the English Civil War. Oxford University Press, 1990. 30

[28] Ibid

[29] Order C 33/165 folio 875

[30] Pearl, Valerie. London and the Outbreak of the Puritan Revolution: City Government and National Politics, 1625-43. Oxford University Press, 1961. 120

[31] Ibid

[32] Ibid

[33] ibid

[34] Ibid

[35] Joint and Several Answers

[36] ibid

^[37] Tortious interference. Cornell Law School Legal Information Institute. https://www.law.cornell.edu/wex/tortious_interference Accessed 24 March 2024

[38] Answer of John Fowke, Pleadings. Folio C 8/68/67

[39] ibid

[40] Roper 111

[41] Answer of John Fowke

[42] Ibid

[43] CCMEIC 1630-1634 46

[44] CCMEIC 1630-1634 59,76

[45] Answer of Daniel Bonnell, Pleadings. Folio C 8/68/67

[46] Ibid

[47] Ibid

[48] Answer of John Fowke, Pleadings. Folio C 8/68/67

[49] CSPDS 1634-1635 passim

[50] Buchanan 2005 240

[51] Buchanan 2066 1

[52] Clarke, Alex. The Drydock - Episode 279 (Part 1). YouTube, uploaded by Drachinifel, 31 Dec 2023, LINK

[53] Answer of John Fowke

[54] Ibid

[55] Ibid

[56] Ibid

[57] Ibid

[58] ibid

[59] Ibid

^[60] CSPDS 1634-1635 274

^[61] CSPDS 1634-1635 349

[62] Ibid

[63] DNB 521

[64] Ibid

^[65] CSPDS 1643-1635 18

[66] Roper 17

[67] CSPDS 1634-1635 18

[68] Order C 33/163 folio 254

[69] Ibid

[70] Ibid

[71] Ibid

^[72] CSPDS 1634-1635, p. 274

[73] Joint and Several Answers of John Fowke and Joseph Carron, C 8/68/67

[74] Ibid

[75] The Further Joint and Several Answers of John Fowke and Joseph Carron, C 8/39/63

[76] Ibid

[77] Ibid

[78] Ibid

[79] Ibid

[80] Ibid

^[81] CSPDS 1634-1635 385

[82] Ibid

[83] Ibid

[84] Ibid

[85] Order C 33/165 folio 403d

[86] Order C 33/163 folio 446

^[87] Ibid

[88] Brenner 214

[89] DNB 521

[90] Roper 106

[91] King’s Letter and Declaration to the City, 17 Jan. 1642-3