Charles’s government recognized Bankes’s learning and fairness not only from his behavior in parliament but also from advice he gave to the Privy Council about some land transactions in Ireland. Weston liked what he saw of Bankes’s practice and wanted him to replace Noy (who died in 1634) as Attorney General to help him and Charles’s other chief ministers, Cottington and Windebank, order the financial affairs of the king and his spendthrift queen.45 In putting Bankes forward, Weston had to do battle with Henrietta Maria, who favored John Finch, who served as her Attorney General and toadied to the king, and Laud, who feared that Bankes would not be as supportive of his activities as Noy had been. Bankes’s evenhandedness, or, as Wentworth interpreted it, indifference, “betwixt the Sow’s Ear and the Silken Purse,” puzzled the age. But Charles and Weston needed such a man. In Bankes they had not only an “uncorrupted lawyer ǀ Virtue’s great miracle,” but also one reputed to “exceed Bacon in eloquence, Chancellor Ellesmere in judgment, and William Noy in law.”46 To please Laud and the queen, the king replaced Heath by Finch as Chief Justice of Common Pleas.
Bankes’s promotion brought knighthood and a goodly income, reckoned at £7,000 by Coke and £6,000 “honestly” by Bacon, although the salary was only a little over £81.47 The large income from fees and retainers enabled Sir John to buy a castle for his growing family and to afford the servants (at least thirty) and the annual charges (at least £3,000) typical for a large country house.48 He had married, in 1618, the daughter of Ralph Hawtrey of Ruislip, who had been at Gray’s Inn a few years before him. Mary Hawtrey was a woman of mettle, quite able to defend Bankes’s castle from siege when it became necessary and fecund as well as strong, giving birth to fourteen children between 1621 and 1644 (Figure 14). The extended family kept close; and John cemented the tie by buying his graphite mine in partnership with his father-in-law. Mary’s three siblings who survived childhood included a younger Ralph Hawtrey, who, like Bankes, served in the parliament of 1628 and joined Gray’s Inn. Mary’s family on her mother’s side, the Althams of Essex, produced an artist, Edward Altham, who studied in Italy and turned Catholic; his striking portrait as a ragged hermit hangs in Kingston Lacy.49 Lady Mary celebrated the rise of her husband in the style of advancing lawyers by giving gold rings to her relatives.50
Figure 14 Henry Bone after John Hoskins, Lady Bankes, neé Mary Hawtry. Sir John Bankes’s doughty wife is holding the keys to Corfe Castle.
The Bankes bought their castle at Corfe in Dorsetshire from Lady Elizabeth Hatton, the widow of the then recently deceased champion common lawyer Sir Edward Coke. Lady Hatton had inherited the property from her first husband, Sir William Hatton, heir of Sir Christopher Hatton, Chancellor of Elizabeth I. None of them could put up with the castle’s discomfort and remoteness to live in it for any length of time. Apparently Sir John and Lady Mary were not bothered by the castle’s inconvenience and dark history, by the capital sins of bad King John, who immured some of his plentiful enemies in it and made it a stronghold for his brief failed attempt to force his barons to give up Magna carta. But it had the merits of fresh air and a defensible site; its reputation made it relatively cheap; and it was a perfect rotten borough. To encourage Christopher Hatton to prepare it for defense against the Spanish Armada, Queen Elizabeth had paid to equip Corfe Castle with cannon and given it and the hamlet that nestled at its feet the right to elect two members to parliament. As further inducements, she had endowed the little community with some jabberwocky privileges. It will be enough to mention soc and sac, toll and team, blodwit and fledwit, waives and strays, pillory and tumbrill, flotsam and jetsam, infangentheof and outfangentheof, to indicate the peculiar value of the Bankes’s estate.51
The spectacular view from the hilltop on which Corfe Castle stands extends to the sea. The closer prospect centers on St Edwards, the village church, whose patronage and advowson belonged to the Lord of Corfe Castle. Though somewhat remodeled, it still boasts its original tower and flagstones of Purbeck marble made from disused coffin lids.52 The site repaid improvement. Its new owners did what was required to make the castle the retreat that Sir John, who did not have an ambition for higher office that would keep him constantly in London, desired in the country. There were some notable paintings by Van Dyck and other fashionable masters, portraits of the very helpful Lord Treasurer Weston, of the royal family, and of Elizabeth of Bohemia’s sons Rupert and Maurice, all, except the Weston, gifts of King Charles. There were many rich hangings, including, we may imagine, tapestries made at Mortlake with borders designed by Cleyn especially for the new Attorney General.53 The castle had a notable library, for both Sir John and Lady Mary collected books, as would their eldest sons John and Ralph. Neither the library nor Corfe’s other amenities lasted long. Ten years after Bankes bought it, the unlucky castle was an irreversible ruin (Figure 15).
Figure 15 The ruins of the Bankes’s seat at Corfe Castle, Dorset.
An autograph “Precedent Book” preserved among the new Attorney General’s papers suggests how he viewed his position and loyalty after joining the government. He noted that royal sovereignty rested on a strict construction of the Act of Supremacy (which made the monarch the Supreme Governor of the church) and a firm division between the spheres of civil and ecclesiastical authority: England was “an absolute empire” consisting of one head and two bodies, clergy and laity, obedient to the king under God. The king had almost unlimited power over both. The bishops, appointed by the king, governed the church by delegation; in civil matters, the Privy Council advised, the king decided, and his chosen ministers executed his policies. Bankes wrote out these views for a speech to the serjeants-at-law, probably with theory rather than practice in mind.54 He would be as loyal a defender of the royal prerogative as he had been of parliamentary privilege. But he did not believe that his master stood above the law. In government Bankes would suffer more from the contradictions of the English constitution than he had in opposition.
Big Cases
As Attorney General, Bankes appeared prominently in the two most significant cases brought before the Court of Star Chamber during the decade of Charles’s personal rule. One of these was the trial of the tiresome triumvirs Bastwick, Burton, and Prynne. Bankes opened the proceedings against Bastwick, but he did not play the part of prosecutor, which was performed by Laud acting as the chief bishop libelously and seditiously attacked for claiming to hold his office jure divino. The Puritan martyrs had argued that in so claiming the bishops committed lèse-majesté, since two parties could not rule independently by divine right; and that Laud had exploited this usurpation to license popish and Arminian books, alter the liturgy, and introduce other “innovations” sanctioned neither by God nor, they hoped, by the king.55 Although Bankes received lengthy petitions from the three, he could not alter the course of injustice.
The second case concerned ship money, a tax previously levied only against seaports to provide for defense during demonstrated emergencies. Noy had suggested imposing it throughout the country whenever the king determined its necessity. In October 1634, the government demanded ship money from ports only, for defense against pirates and poachers. It was paid without much protest. A second call, in July 1635, applied everywhere; Charles’s chief judges assured him that the extension would be legal if needed for defense and allowed that a qualifying emergency would exist if he said so. The second call brought in £150,000 of an expected £200,000 by March 1636; a third, launched in October 1636, raised under £10,000 in its first year.56
Among those who refused to pay was a wealthy country gentleman, John Hampden, who acted on principle against his assessment of £1. Charles responded by ordering Bankes to ask senior judges whether his principle—that the king had the right to command his subjects to furnish “ships, men, victual, and munition…for the defense and safeguard of the Kingdom” whenever, in his sole judgment, it was in peril—held unquestionably. The bench, leaned on by Finch, unanimously responded “yes.”57 With this assurance, Charles let Ham
pden, “a very wise man, and of great parts, and possessed with the most absolute spirit of popularity…a head to contrive, and a tongue to persuade, and a head to execute, any mischief,” try his case. Hamden argued that the king had not demonstrated or even mentioned an immediate threat in calling up ship money.58 The Crown already had a permanent (if illegally collected) excise tax, T&P, then worth £300,000 a year, and other fees and taxes to defray the ordinary expenses of defense in English waters.59
The Solicitor General Edward Littleton replied that the other fees and taxes had not been granted for defense. Hampden’s lawyers insisted: “the King out of Parliament cannot charge the subject.” With this exchange, “one of the greatest cases that ever came to judgment before the judges of the law” (as Sir Edward Crawley, a Justice of Common Pleas, reckoned it) was joined, pitting “the King’s right and sovereignty…and the honour and safety of the kingdom” against “the liberty of the subject in the property of his goods.”60 Bankes, who was by no means indifferent in the matter, having helped Noy draft the original proposal, rose on the king’s side. An emergency exists, he said, for pirates and Turks are attacking English shipping, and a power to meet the emergency also exists, a power and obligation, innate in the king’s person, to do his utmost to defend his realm. He is the sole judge of the degree and imminence of danger and of the means needed to meet it; in this respect he is, and must be, “an absolute monarch.”61
It is unnecessary and uncharitable (Bankes continued) to worry that the monarch might abuse this power. “The King, as appeareth from all our books, is the fountain of justice…The King can do no wrong.” He is God’s lieutenant. “If the law trust him, we ought to trust him.” (An argument reminiscent of Bankes’s view, even in opposition, of the power of arbitrary arrest.) King Charles says he needs the money; let us give it to him; we are not capable of searching into the mysteries of royal finances.62 No doubt conscious of the weakness of his case, Mr Attorney relied on what a modern critic has called “devious techniques.” He did not attempt to prove the existence of an ongoing emergency that required extraordinary annual levies without the consent of parliament.
Bankes’s rhetoric ended in a burst of astronomical word play. “My lords, if there were no laws to compel this duty, yet nature and the inviolate laws of preservation ought to move us…Therefore let us obey the king’s command by his writ, and not dispute it. He is the first mover amongst these orbs of ours; and he is the circle of this circumference, and he is the center of us all, wherein we all, as the lines, should meet; he is the soul of this body whose proper act is to command.”63 Bankes’s imagery, which might have made several world systems, fired the imagination of Justice Crawley. “Now for the prerogatives royal of a monarch, they may be resembled to a sphere; the primus motor is the king. It is observed, that every planet but one has a little orb by itself, that moveth in its petty compass: so the center is the Commonwealth, the king is the first mover.”64 Bankes’s appeals to the solar system may not have helped him carry his case, but win it he did, although not unanimously.65 The decision so exasperated Hampden that he embarked with his cousin Oliver Cromwell for Puritan New England and would have sailed, had the Privy Council in a fatal misstep not stopped their ship.66
The opinion of the dissenting judges gave encouragement to those who wished to see the royal prerogative curbed, and king and parliament govern together. Public opinion favored Hampden. For Simons D’Ewes, bypassing parliament to raise ship money was a highroad to political and moral collapse. “Heresy, bribery, and oppression, and a world of other notorious crimes, will be ready to walk impudently at noon-day, when the good and godly are without hope, and the evil and wicked without fear of a Parliament.” The Venetian ambassador caught the intensity of feeling: “If sentence goes against the people, as seems likely, it is feared that the judges may fare badly from their fury.”67 Not being a judge, Bankes came away from ship money as he had from his prosecution of the Puritan triumvirs, with his reputation for judiciousness intact. Finch would not be so lucky.
By the end of October 1638, with all but £20,000 of ship money collected, the royal finances, though still in deficit, were not hopeless. Unauthorized T&P had increased, and grants of new monopolies were returning cash. Charles himself took on a promising monopoly in 1638.68 This was to drain the Great Level, the great project of the great projector, Francis Russell, fourth Earl of Bedford, whose improvements in London are commemorated in the names of Bedford Square and Great Russell Street. Bedford’s drainage, completed in 1636, had flaws that inspired riots and lawsuits. Charles’s courts pulled the plug, the earl’s contract went down his drain, and Bankes drew up a new one by which the king undertook to improve 400,000 acres of fenland in exchange for 152,000 of them. War put an end to his plan after the investment of £20,000, £3,000 of which Charles had borrowed from Bankes.69 Although Charles was still in debt and deficit in 1638, he might have muddled through if he had been able to control his desire to control the Scots.
Charles could survive financially during the first years of his personal rule because a sharp rise in customs dues after he had made peace with France and Spain, and improvements in his Irish income from recusant fines and higher leases, gave his competent administrators something to work with.70 Wine poured in, taxed at £2 a ton.71 Other trade increased too, and, with it and a crackdown on evasion, the revenue from customs rose dramatically; it amounted to almost half the royal income by 1640. Imaginative adaptation of disused medieval laws also augmented income in fees. One of these adaptations, suggested by Noy, who had the reputation of a humorist, was impressively inventive, despite his cleaving to the sound doctrine that “when wee goe in new wayes we are like to goe astray.” His playfulness widened the boundaries of royal forests to include houses and even towns that thereby became guilty of encroachment. The surprised landowner could “deaforrestate” his property for a fee.72 Fines for deafforestation would have had a very sizable yield had Charles had the courage to enforce them.73
Another way Charles prolonged his personal rule was to substitute talk for action in foreign affairs. He did not worry about consistency or religious affiliation. He worked on Spain and France to intercede in the Palatinate and to discipline the Dutch while urging German Protestant powers to help the Dutch against Spain.74 One of the emergencies for which Charles collected ship money was to strengthen his navy to weaken Spain’s hold on Flanders so that Spain would need his help to transfer men and money through the Channel to tighten its hold on Flanders. As he said, his foreign policy contained mysteries too deep for ordinary minds. Charles hoped to reverse the empire’s definitive assignment of the Palatine Electorate to the Duke of Bavaria (at the Peace of Prague, 20 May 1635) by putting his new fleet at the disposal of Spain, or the empire, or both. To ensure that this offer received proper consideration, he dispatched Arundel to Vienna to negotiate a restoration of the Electorate in return for fleet services. The Queen of Hungary, formerly the Infanta wooed by Charles, received Arundel warmly, the Jesuits of Austria entertained him, and the emperor gave him two albums of drawings; but he obtained not the slightest concession over the matter of his mission. He begged leave to return home. Charles ordered him to stay: his continuing presence in Vienna might worry the French enough to bring them to England’s bizarre bargaining table.75
What then to do with the new fleet? In the fall of 1635 Charles ordered the printing of a book Selden had written twenty years earlier disputing a little treatise arguing for the freedom of the oceans by the Dutch Lawyer Hugo Grotius. Against Grotius’s Mare liberum (1609), which dealt with taking prizes on the open seas, Selden compiled an inventory of historical claims of English rights over adjacent waters. James had refused permission to publish Selden’s Mare clausum lest it annoy Spain; Charles had it issued in 1636 to justify the uses to which he would put his ship-money fleets. These turned out to be chasing (without catching) the fleeter boats of the Dunkirk pirates, driving Turks from the Irish Sea, and compelling alien anglers
in English waters to buy fishing licenses. The Crown extracted £30,000 from the Estates General to free Dutch fisherman from fear of arrest by the Royal Navy.76
The financial picture at the end of the personal rule appears from a review Bankes drew up in May 1641 when Charles appointed him and four others to run the Treasury. Bankes found that the accumulated debt amounted to £1.76m (up from £1m at Weston’s death) against a normal income of £889,000 (up from £636,000). Interest at 8 percent, expenses for several royal households, pensions, annuities, support of Elizabeth of Bohemia and her sons, expenditures on art and entertainment, and so on, easily consumed the £889,000.77 So Charles, whose credit was not good enough to borrow commercially, turned to his friends, well-paid officers, and relatives for loans. Hence Bankes’s £3,000 for the fens. He and Laud were the only lenders who forewent their 8 percent.78
Small Pickings
Much of Bankes’s work as Attorney General concerned petitions for patents and monopolies. Most of them violated the covering law, the Statute of Monopolies of 1623–4, which prohibited grants, charters, licenses, commissions, and so on, “for the sole buying, selling, making, working, or using of anything.” This wholesome rule had many exceptions, however—for example, patents for new inventions and manufactures, grants by parliament or under privy seal, and monopolies on printing, armaments, drinking, glass, and alum. This last exception has the double interest that James owned the mines, and the major competitor was the pope; unfortunately, the papal product was the better, and the attempt to create a viable domestic alum industry failed. Although the failure cost James between £65,000 and £120,000, Charles repeated the error of imposing an industry disfavored by nature. He prohibited the importation of salt, granted a monopoly to domestic producers, and within a year or two could not obtain enough salt to supply his large household.79
The Ghost of Galileo Page 11