3

The King and his Lawyer

The English “constitution” had no logical space for the Stuart kings to exercise all the prerogatives they claimed by divine right. Their income scarcely covered their extravagant household expenses and gifts to courtiers; and for defense of the realm they depended on occasional parliaments. Parliamentary grants and military expenditures usually stayed well below £500,000, about 10,000 times the annual income of a building craftsman in London, 1,000 times a successful lawyer’s, 100 times a billionaire’s, and 10 times a prince’s. At his accession, Charles’s family debts—his own, his father’s, and the still encumbered estate of his mother—stood at well over £1m.¹

The Commons usually demanded in return for its grants that the sovereign confirm its “privileges” and redress its “grievances.” Since parliaments existed only at the call of the king, and the king could meet his obligations legally only by grants from parliaments, governing required compromises on both sides. When either refused to budge, the king dismissed his sitting parliament and went away empty handed. To encourage a more cooperative spirit in the next inevitable session, he might send a few dissident members of the dissolved parliament to one of his better prisons for a period of reflection.

James had not played this game very well. Under the leadership of Edwin Sandys, the Commons of his first English parliament (1604) demanded the abolition of wardships (imposed custodianships) and purveyance (provision of goods under market value), opposed proposals for the unification of Scotland and England, and insisted that the Privileges of Parliament anteceded the Prerogatives of Kings. James dismissed it before it had accomplished anything. He did better on his second try, in 1606–7; he received £450,000, probably more in gratitude that the state had survived the Gunpowder Plot than in admiration of his stewardship. He spent much of it on court favorites and other hunting dogs. In 1608, with a debt of £538,000, the Crown was running at an annual deficit of around £100,000. Another try, in 1610, almost reached a “Grand Contract” by which the Crown would surrender wardship, purveyance, and other perquisites in exchange for £600,000 down and an annual grant of £200,000. But disagreement over impositions (duties on goods assessed without parliamentary consent) forced dissolution without decision. And so it went. James demanded subsidies without haggling from his fourth parliament (1614); it refused; he sent it packing and imprisoned four of its former members whose speeches he regarded as seditious.²

The plain speaking in parliament in 1614 was not the English way. As Wotton observed, outspoken opposition was “better becoming a Senate of Venice, where the treaters are perpetual princes, than where those that speak so irreverently are so soon to return (which they should remember) to the natural capacity of subjects.”³ Again the fatal metaphor: for if the Commons were the Senate, the king was the doge. James did not call another parliament for seven years. To its advice that he desist from the Spanish match and intervene in Bohemia he replied that such questions touched inviolable arcana imperii, the “forbidden Arke of Our absolute and indisputable Prerogative,” and prohibited their discussion. The parliament of 1621 claimed free speech as an “ancient and undoubted right;” James regarded it and all other rights he acknowledged as generous gifts from himself and his predecessors.⁴ The Commons secured the removal of certain monopolies for the modest grant of £160,000 and its own removal for pressing execution of the recusancy laws while James was trying to make his Spanish match.⁵

To make do with what he had, James required effective ministers. During his first decade as King of England, he had the service of the experienced Salisbury and two of the Howard family, which he had restored to the influence it had lost for supporting his mother. James’s Howard ministers were Henry, Earl of Northampton, who “spare[d] not to conjure both priests and devils for his master’s service,” and Northampton’s nephew Thomas, Earl of Suffolk, who conjured for his master while generously helping himself. One succeeded the other as Lord Treasurer after Salisbury’s death in 1612.⁶ Howard power peaked the following year with the marriage of Suffolk’s beautiful and unscrupulous daughter Frances to the royal favorite Robert Carr, by then advanced to Earl of Somerset.

Their fall came more swiftly than their resurrection. Northampton died in 1614; Somerset and his wife were banished for murder; and Frances’s father Suffolk, who pillaged the Treasury to pay for his vast mansion of Audley End, was cashiered in 1618.⁷ The only Howard remaining close to power was the Earl of Arundel, made a Privy Councilor in 1616. Perhaps by chance, on Christmas Day 1615, he had repudiated “the worthy example of his blessed father,” St Philip Howard, who had died a martyr in the Tower, and converted to the Church of England.⁸ The Howards’ fall created the vacuum filled by George Villiers, who rose quickly from an untitled gentleman of the Bedchamber (with duties as assigned) to member of the Privy Council and Earl of Buckingham, and, in 1619, with no knowledge of the Navy, to Lord Admiral of England.⁹ He was the worst of the political liabilities that James left his son.

Member of Parliament

John Bankes’s first parliament was James’s last. The neophyte represented Wotton Basset in Wiltshire, which tended to return strangers, particularly courtiers and lawyers, who did not need local financing.¹⁰ The session of 1624 offered an unusual opportunity for a newcomer to shine owing to the king’s invitation to its members to speak freely. That they did, particularly about James’s Spanish policy, still supported, in February 1624, by Catholic sympathizers such as Arundel, Cottington, Richard Weston (Chancellor of the Exchequer), and Lionel Cranfield (Lord Treasurer). Parliament demanded that James break with Spain. Being broke, James broke.¹¹ The prince and the duke then purged the government of opponents to a Spanish war and charged the Earl of Bristol (the ambassador to Spain) with disobeying instructions from London. Bankes witnessed at first hand the working of a system with no space for reasoned dissent. Officials whose advice displeased went to the wall. Sometimes, like Cottington, Arundel, and Bristol, they bounced back. Or, like Cranfield, did not. He spiraled away from the royal sun like a “strange and prodigious comet.” What he possessed of the earth passed to Buckingham.¹²

On the great question, war or peace, the parliament of 1624 favored war. But against whom? As we know, it granted the inadequate sum of £300,000 for warlike purposes, including defense of the “true religion of Almighty God.” James accepted the money but declined to name the enemy. No wonder! He wanted a coalition against the Austrian Habsburgs; his son and favorite wanted a direct attack on Spain; the Commons preferred piracy. At James’s insistence, parliament removed the phrase about true religion lest it hamper his efforts to bring Catholic powers into his imaginary coalition. In domestic matters, the Commons grieved as usual over illegal exactions, impositions, monopolies, and arbitrary imprisonment.¹³

Bankes made himself known to parliamentary leaders during the first few days of the session. He gave seven recorded speeches and earned thirty-two committee nominations. His first speech advocated benefits for the impoverished northern counties from which he sprang. Less parochially he worked to correct abuses in the application of habeas corpus, which he took to be the foundation of English liberties. The common law is the common foundation of law! Bankes advised, and sometimes chaired, committees on financial matters of national importance. He attacked big monopolists like the Merchant Adventurers, declaring their charters illegal and their corner on cloth exports a grievance. “[T]rade should not be left to be governed by a few private men who seek but their profit.” Evenhandedly, he denounced the Crown for taxing cloth exports. He did not succeed, however, in delaying proceedings against Cranfield—not because he objected to going after a royal official, but because he judged the case too weak. And, if he behaved as other lawyers, he opposed the Crown over foreign policy and dynastic wars.¹⁴

Although Bankes’s experience in the frank parliament of 1624 left him with a taste and ambition for public service, he did not return for the session that Charles called almost immediately after his accession. The king needed money desperately to carry on no fewer than three simultaneous wars: one, against his was-to-be brother-in-law Philip, for insults received in Spain and other mischief; another, against his new brother-in-law Louis, for persecution of Huguenots in France; and still another, in favor of his old brother-in-law Frederick, for recovery of the Palatinate. As parliament declined to be drawn further into warfare, the warrior king killed it, after eight weeks of life.¹⁵ Without adequate means or preparation, Lord Admiral Buckingham’s Navy attacked Cadiz and La Rochelle, disasters both. They added to Charles’s burdens a swarm of disgruntled, unpaid veterans. He had no choice but to call another parliament.¹⁶ It assembled in February 1626, with Bankes sitting for Morpeth in Northumberland, where Lord William held the manor. The inaugural session began with prayers and an uncompromising sermon by the new Bishop of Bath and Wells, William Laud, who declared that “all inferior powers of nobles, judges, and magistrates” derived from the king.¹⁷ Bankes’s political ideas did not include subordination of judges to kings. Nor did the leader of his faction, Lord Arundel, accept that he owed his status to the reigning monarch. He did not have to listen to Laud, however, as he had been sent to the Tower for opposing continental wars and marrying his son against royal wishes.¹⁸

On the second day, after the Speaker of the Commons had praised the English constitution and the Chancellor had advised that it exercise the privileges graciously extended to it with discretion, the king asked parliament to authorize £1,067, 221, plus 13 shillings and tuppence, for the year’s military and naval operations.¹⁹ The staggered Commons offered subsidies amounting to about a fifth of it and turned to impeaching Buckingham for mishandling his many offices. The Lord Admiral had become the loudest voice in the Privy Council and the Bedchamber, Master of the Horse, Stewart-Constable of several castles, Lord Warden of the Cinque Ports, Chief Magistrate of all royal forests south of the Trent, and the main and most expensive route to royal patronage.

Bankes spoke to all these matters. Against Buckingham he criticized the state of the Navy, sought the cause of the Cadiz disaster, and advised, if the impeachment succeeded, that the duke be expelled from the Lords and imprisoned indefinitely. Against the Chancellor’s implicit claim that parliament’s privileges derived from the Crown, he insisted that, as the highest court in the land, it had aboriginal authority and liberties; “as ancient as is our Commonwealth are our privileges.” In other speeches (of fifteen recorded) he attacked restraints on trade (making common cause with Edwin Sandys) and discussed bills of grievance.²⁰ He might have said more had the king not dissolved parliament in June. Unable even to contemplate Buckingham’s impeachment, he forfeited the grant, even to the tuppence, he needed. That was to do himself and the Commons serious injury. “Infinite almost was the sadness of each man’s heart and the dejection of his countenance that truly loved the church and commonwealth at the sudden and abortive breach of the present Parliament.”²¹ Thus did the Calvinist member Simonds D’Ewes, taking time from blasting the “blasphemies of Arminius” and other “brazen-faced…Popish points,” lament the break with his king.²² Charles defiantly added the Chancellorship of Cambridge University to the employments of his Pooh Bah and sent two leaders of the Commons, John Eliot and Dudley Digges, to the Tower for orchestrating the impeachment.

To carry on, Charles continued to collect the custom duties (Tonnage and Poundage (T&P)) that his first parliament had given for a year only and its successor had not extended; and he asked for voluntary loans from his loving people, who did not prove spontaneously generous. By adding some force to his requests, he extorted the large sum of £236,000. Some merchants refused to pay on principle. Charles jailed five of these knights without specifying a charge. An important legal battle ensued. Bankes’s colleague Selden argued that the imprisonment of the Five Knights without charge violated Magna carta; the Attorney General, Robert Heath, replied that secret reasons of state required their detention; the Court of King’s Bench, purged of its chief justice, who had refused to declare the forced loan legal, decided for the Crown. In the opinion of the greatest of common lawyers, Edward Coke, the cowardly verdict in the Five Knights’ Case was the gravest threat ever to the liberties of Englishmen. It set up a showdown in which Bankes took part when parliament assembled again in March 1628.²³

Charles’s methods of extra-parliamentary finance occupied the background. He had continued to collect T&P, recusancy fines, and impositions while raising one-time money from the sale of Crown lands and jewels, empty titles, and monopolies.²⁴ He continued to fantasize about relieving La Rochelle and fulfilling his promise to support his uncle Christian, who had suffered a major defeat in August 1626. Charles could do nothing. Christian was able to make an advantageous peace with the emperor, by which he lost little beyond any respect or affection he had had for his nephew.²⁵ The nephew was still bent on bending France, Spain, and the empire to his will. The resources? Charles asked the parliament he called in 1628 for the unrealistically large sums of £700,000 immediately and £600,000 a year subsequently. The Commons preferred to discuss grievances. John Bankes, again representing Morpeth, again spoke to all the main ones, thirteen speeches in all. His earlier performance and capacity for business earned him appointment to the committee on T&P, of which he became chairman. Its deliberations sometimes ascended to the full House under Bankes’s gavel; but, as parliament could not decide whether to punish the custom agents (and so exonerate the king) or take up the general revenue problem (and so confront the king), it managed to do nothing useful about either.

Bankes also sat on the key committee charged with drawing up a bill of grievances and occasionally chaired it too. He spoke out against the royal practice of granting monopolies; against arbitrary arrest and confiscation of property; and against the quartering of troops and the unilateral declaration of martial law. To ensure the liberties of the subject, he presented a bill to confirm Magna carta and similar statutes.²⁶ Against Bankes’s bill, Attorney General Heath argued that common lawyers were too inflexible (too “mathematical,” as Mr Attorney put it) in refusing exceptions to Magna carta for reasons of state. Bankes and other common lawyers replied that Magna carta was the bulwark of English liberties and permitted no exceptions. The Lords hesitated. The king resolved the impasse by asking whether parliament would not “rest upon his royal word and promise.” The Lords thought it safer to follow the mathematical way of the Commons, thus almost exposing the fiction that blamed ministers, never their master, for breaches of trust.²⁷

Although he placed the common law above the royal will, Bankes took care not to press its priority so far as to uncover the fiction of divine-right prerogative. “I will not derogate from the power of kings. Subjects have their rights, and kings their prerogatives…Liberties and prerogatives have many hundred years gone together in sweet harmony.” But, then, what happens when the king imprisons without charge and the courts refuse habeas corpus? The question took Bankes to an uncomfortable position. He advised that arbitrary arrest not be asserted as a grievance; rather, parliament should condemn the practice and expect the king to refrain from it. And so back to the good old times: “We will not be authors of new opinions, but maintain the old.” To insure our rights and pass them on we must look backward, seek precedent, become antiquaries.²⁸ Above all, let us have nothing new: “We possess laws providing first in general against all forms of innovation.”²⁹ The doctrine that all changes are for the worst had defeated John Dee’s advice to Elizabeth to adopt the Gregorian calendar.³⁰ The leader of the Commons of 1628 asserted the same stultifying principle: “[T]ime must needs bring about some alterations, and every alteration is a step and a degree towards a dissolution.”³¹

The Commons decided to put forward arbitrary commitment to prison together with forced loans, quartering of troops on civilians, and military rule in peacetime as grievances in a Petition of Right, which, of course, they advanced with the fiction that it contained no novelties. Of the four grievances, the most difficult for Charles to redress was just the power Bankes had identified as a locus of constitutional conflict, commitment without charge. Its loss, the king said, would “soon dissolve the foundation and frame of our monarchy.” For the rest, he was pleased to affirm the laws and statutes of the land. This response caused great lamentation in the Commons, “some weeping, some expostulating, some prophesying of the fatal ruin of our kingdom.” A little harassing of Buckingham brought his master around, almost. On 7 June 1628, Charles agreed to the petition with the tacit reservation, based on a secret poll of the judges of King’s Bench, that its provisions did not bind him.³² Parliament turned its attention to Bankes’s work on T&P. Charles prorogued it for four months and took the opportunity of its enforced vacation to promote Laud and other Arminian churchmen most offensive to the Calvinist Commons.³³

During the prorogation, Buckingham met his end at the hands of an unpaid veteran, John Felton, who knew that the admiral had lied about the extent of his military disasters. Unhealthily given to reading, Felton armed himself with the Petition of Right and a knife and killed Buckingham two weeks before Charles’s forced-loan fleet sailed for La Rochelle and another disaster.³⁴ The murder, perpetrated on 23 August 1628, delighted the crowd and devastated the king. It took from him his best friend and trusted adviser just as he faced a new session of an increasingly hostile parliament. He prepared for its return in January 1629 by appeasing Arundel, Wentworth, and other opposition leaders, and by raising Chancellor of the Exchequer Weston, who sat in a Howard seat in parliament, to Lord Treasurer.³⁵ Although as Treasurer Weston retrenched on household expenses and pensions and increased income from Crown lands, he could not hope to balance the royal books without T&P.³⁶ The Commons of 1629, led by the lawyers Selden and the future Attorney General William Noy, refused to hand it over. They had stiffened their backbones by reading Bankes’s report, which exposed unauthorized impositions as threats to parliament’s existence. A constitutional crisis loomed: “[We] take this as a highe point of priviledge, and his Majestie takes it as a highe point of a Soveragnety.”³⁷ Charles did not like the trend of events and ordered parliament to adjourn. That was a bad miscalculation.

When the Speaker John Finch—Bankes’s longtime colleague at Gray’s Inn—tried to follow the king’s order to end the session, several members pinned him to his chair while the House hurriedly passed resolutions put forward by Eliot: anyone pursuing T&P without the consent of parliament, or anyone countenancing Catholicism or Arminianism or other innovation in religion, would be “a capital enemy of the Commonwealth.”³⁸ Charles responded by sending nine members to the Tower, including Selden and the unfortunate Eliot, who, despite the Petition of Right, never saw freedom again. Charles explained that he dissolved parliament in 1629 because the “malevolent…vipers” who led the Commons had poked into royal policy on religion and trade and the conduct of his principal officers, to the “unsufferable disturbance and scandal of justice and government.” To sidestep these “innovations” (both sides used this gambit), to preclude parliament’s seizing a “universal over-swaying power to themselves, which belongs to us,” Charles would do without the Houses.³⁹ At first he did better that way. Weston continued to collect T&P, and even to increase it, without precipitating a revolution. Peace with France was achieved in April 1629 and with Spain, after lengthy negotiations, in November 1630. Without wars to pay for, Weston almost balanced the budget.

The common lawyers who had written the Petition of Right made every effort to free the nine members imprisoned without bail in violation of its terms. Charles claimed that the prisoners had no recourse by right but might be released by grace, if they asked for it. They refused: they had committed no crime. Nonetheless, the tame judges of King’s Bench would not grant bail, since, technically, they did not know the unspecified crime involved. Eventually all but Eliot found words with which to buy their freedom. For example, Selden regained full liberty by humbly requesting Charles to pardon him for any displeasure he had inflicted. He requested a grace for causing annoyance, not for committing a crime.⁴⁰

Until 1639, when he went to war again, Charles might have lived within his means. Over the five years preceding Weston’s death in 1635, the average ordinary annual expenses of the Crown, at £636,000, exceeded income by only £18,000. It would not have been difficult to remove it. Foreign visitors were amazed at the size of Charles’s household, which descended from a bedchamber of two dozen gentlemen who counseled and protected him through ushers, carvers, cupbearers, guards, wardrobe keepers, cleaners, and kitchen staff to the thirty falconers and forty huntsmen who catered to his hobbies. The combined households of Charles, Henrietta Maria, and the infant Prince of Wales occupied at least 2,000 people.⁴¹ The cost of wars and other extraordinary expenses amounted to £2.85m over the decade 1626–35 against an income of £2.60m. In 1635 the total debt stood at £1.17 million, some £340,000 less than when Weston took over as Treasurer. Although Weston managed to cut pensions, he could not quash lavish gifts to courtiers and absurd provisions for the infant Prince of Wales (born in 1630), whose household of 200 or 300 included two physicians, an apothecary, and an Attorney General.⁴² The first incumbent of this last office was John Bankes.

Mr Attorney

With the assassination of Buckingham and the beginning of personal rule without the cash and counsel of parliament, Charles found himself much in need of reliable advisers and clever lawyers able to devise ways of augmenting his income. He turned to men who had demonstrated their abilities in parliament by opposing him, Wentworth, Arundel, Noy, Digges, and others. They joined the government out of ambition sometimes moderated by a sincere desire to replace Buckingham’s erratic impetuosity with considered counsel.⁴³ John Bankes entered the lower ranks of the tergiversators as general counsel to the future Charles II, then, in 1631, a litigious infant a year old.⁴⁴ The easy duties gave Bankes the opportunity to free himself from a mathematical interpretation of Magna carta and Charles the opportunity to assess further a former opponent in parliament who had not wanted to raise arbitrary arrest to a grievance.

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 Hampden, “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

Bankes knew something about the perils and opportunities of monopolies from the experience of his in-laws the Heckstetters. To work the mines around Keswick under their grant from Elizabeth, they built a large enterprise that usually ran a deficit; by 1600, after thirty-seven years of digging, the Heckstetters and their investors had lost £27,000, including £4,000 paid as “royalties” to royal Elizabeth. But they made a good profit from sublicensing their rights and operating auxiliary services like taverns for their workers.⁸⁰ As Attorney General, Bankes dealt with several projects for which his knowledge of mining in Keswick would have been useful: extracting copper from Cornwall and salt from seawater, and improving mills, forges, and laundry houses. One of every five inventions patented between 1620 and 1640 dealt with pumping, drainage, and other technologies necessary in mining.⁸¹

A truly Bohemian inventor, Sir John Christopher van Berg, a refugee from Moravia, requested a monopoly to sell improved bellows, waterworks, mills, surveying instruments, wagons, carts, coaches, wheelbarrows, horse litters, corn threshers, and dredging machines. The Crown referred the petition to Bankes, who, having consulted “those who were better experienced in this faculty,” decided that Berg’s inventions might be “useful and beneficial to the Commonwealth.” He recommended a privilege for fourteen years, which was granted.⁸² Other technological projects that came across Bankes’s desk included manufacturing clay pipes, mathematical instruments, sword blades, beads and bangles, glass and glasses; distilling strong waters, manuring soil, cutting timber, digging turf, and, of course, draining fens.⁸³ Some of these measures resulted in the destruction of human habitat and drove people from the countryside. Fen dwellers appealed to Bankes because of his reputation for “faithful care, and vigilancy.”⁸⁴ They were disappointed. Bankes had to back the fen drainers, among them Sir John Monson of Lincolnshire, who acknowledged Bankes’s help with the gift of a dead buck, because “your worth hath forbid me presentinge you with any thinge of value.”⁸⁵

If he had a sense of humor, for which some unpersuasive evidence exists, Sir John must have smiled over the red herrings of Thomas Davys. The law required that barrels of white herrings be examined or gauged (at 2.25 pence/barrel) so that unscrupulous packers would not insert rotten fish in the middle of the container. Red herrings changed hands without gauging. “By neglect whereof [Davys observed] much deceit was daily used by the sellers of red herrings, by mingling and putting in shotten herrings, gorged herrings, plucks, stinking and corrupt herrings…among the good.” Bankes was ordered to stick his nose into the business. Davys got a monopoly to examine the red at the same rate as the white, for an annual payment of £4.⁸⁶ Other attractive schemes sent to Bankes for advice included collecting old bones (for an annual rent of £50), exporting used bones, shoes, leather, and horns (£30), gathering and selling cuttle shells (very useful to apothecaries), searching ships, shops, and warehouses for contraband or defective leather, and unplugging sewers.⁸⁷ Further evidence of Bankes’s exposure to technical matters other than the law exists in his notes on coinage, salt, tobacco, and brewing. Nor did he ignore the perennial problem of the calendar. He drew up a proclamation for beginning the year on 1 January, as did most of civilized Europe, rather than on 25 March, as in ancient times, but he failed. Many people still believed that calendar reform was a papal plot.⁸⁸

Requests for monopolies from courtiers seldom concerned products or processes as useful to the Commonwealth as policing red herrings. When that enterprising gentleman of the bedchamber Endymion Porter and his associates asked for a monopoly on making white writing paper, he was helping the public as well as himself, since, according to Solicitor General Littleton, who had filled up reams of it, “paper made in this country is very bad;” but when he asked for the farm of taxes, duties, and uncollected fines for half of whatever he could squeeze out of them, he was mainly helping himself.⁸⁹ The insatiable Porter obtained monopolies to inspect silk goods containing gold or silver threads; recover excess fees charged by insurers; hunt down misappropriated Irish livings; collect wine duties in several ports; and, public spirited at last, employ, at low wages, convicts reprieved from sentence of death. He also floated companies to compete with Dutch fishermen (in partnership with Tobie Matthew and Buckingham’s widow), with the East India Company, and with fen drainers. None of these last enterprises flourished. But Porter did very well from the wardship of his insane brother-in-law.⁹⁰

Royal servants further down the food chain also petitioned for a share of whatever fees, fines, unclaimed property, property of outlaws, and forfeits they could discover. The king’s surgeon and pastry cook teamed up to ask for the benefit of a bond forfeited by a lusty old yeoman of Gloucester, who, despite receiving canonical admonition not to “consort with” his wife’s son’s daughter, did so. In the same public spirit, a groom of the Privy Chamber petitioned for the authority to snatch the £4,000 he reckoned belonged to an expat recusant who had become a Jesuit, and to share the proceeds, after expenses, with the Crown, nine parts for him to one for it.⁹¹ The wet nurse of the infant Duke of York asked for a grant for thirty-one years to check the quality of silk stockings.⁹² Without a standing police force, the needy Crown had not only to tolerate, but even to encourage, greedy freelancers to collect fines and forfeits on terms unfavorable to it. Bankes deplored the use of these pursuivants, whose tendency to blackmail diminished the king’s dignity as well as his income. The multitude of vexatious little monopolies he sanctioned contributed modestly to the royal finances. In 1640 the total from wine, tobacco, soap, and playing cards was around £75,000, about an eighth of what the monopolists made.⁹³

Mr Attorney’s business extended to several people who appear in these pages. One early assignment was to devise means to enforce a monopoly on soap granted to Arundel, Weston, Cottington, Porter, and others. Because most of the projectors were crypto-Catholics, their product was known as papal soap. It was so bad it could not launder money. Ordinary people seeking the cleanliness next to godliness returned illegally to Puritan brands until, in 1637, the projectors had to sell up, for a comfortable £43,000. Glass monopolists offering spectacle lenses through which they could not see the way forward ended similarly.⁹⁴ The mad idea of limiting beer brewers in England to twenty did not advance far enough to fail. Vintners proved an easier target; Bankes extracted £30,000 a year from them to continue their business as usual.⁹⁵

The super-rich Earl of Arundel was always pushing for perks in his need for ready money. Around 1620 he had received a monopoly to collect a tax on currants, a bellwether to other excise duties the Crown imposed without the consent of parliament. Since the English consumed huge quantities of “Corinth grapes,” some £2m a year around 1610, when the duty fell from an exorbitant 5s. 6d. to 3s. 4d. a hundredweight (cwt). Under pressure from importers, James dropped the tax to 2s. 6d./cwt and sold the farm to Arundel for a rent of £1,100 p.a. That would have brought the earl some £2,500 less the expenses of collection were there not the curious difficulty that his monopoly, being of the product, conflicted with that of the Levant Company, which applied to the area of their production. Charles diminished the farm’s value further by reducing the tax to 1s. 3d. and the rent to £1,000. Bankes had to see to the details. He was also to draw up a grant to Arundel and others of eight large parcels of land in New England similar in form to one then recently issued for Mauritius and all adjacent islands east of Madagascar.⁹⁶

For the archbishop and the king, Bankes tried to abate the stench from breweries that drove them from their gardens. For Sir Kenelm Digby, he drew up a favorable contract for a new way to farm greenwax in places where the Crown was not harvesting its due—greenwax signifying nothing arable but certain fines and forfeitures.⁹⁷ For the royal physicians Theodore Mayerne and Thomas Candeman, he arranged a patent for distilling alcohol and vinegar.⁹⁸ As Attorney General, Bankes saw all the worst monopolistic practices and the corruption they caused. Although he may have tried to reduce them, he had perforce to draw up the charters that enabled them. As a former opposition MP who had sat in the parliament that passed the Statute of Monopolies, he must often have deplored the system that encouraged them.⁹⁹

Monopolies, farms, and the chartered companies presented Bankes with political as well as ethical difficulties. Relations among the Crown, City, and Commons provide an example. The last parliaments of James went after the City’s chartered companies (with Bankes’s approval), whereas the last of Charles’s cooperated with them (with Bankes’s help), in both cases over illegal exactions and impositions. The turnaround came during the Bishops’ Wars, when, to improve relations, Charles dismantled some monopolies the companies opposed. As the Long Parliament grew more radical, alarmed City fathers turned toward Charles’s cause without, however, raising his credit rating.¹⁰⁰ It required skill and tact to handle these shifting allegiances and also conflicts between the Crown and the City over recognition of new corporations and between the City and the Church over raising clerical salaries.¹⁰¹

Among the most serious crimes in Bankes’s book was sedition. That explains the severity of his response to an appeal to set aside a high-court judgment engineered, so the appellants alleged, by the Lord Keeper of the Privy Seal. Bankes regarded the attack on his colleague the Keeper as a very grave offense, “of a high and transcendent nature.” Why was the crime so heinous? “[F]alse rumours and unjust accusations which concern great officers and peers of the realm trench upon the King himself in his royal government.” Perhaps mindful of Andrewes’s doctrine against “touching” the king, Mr Attorney recommended whipping as punishment.¹⁰² He remained on the same high ground when prosecuting one John Ray, accused of exporting a prohibited commodity, fuller’s earth, and avoiding customs by claiming to ship goods within England that were destined for Holland. Bankes threw the book at him. The cloth trade, “the adamant that draws all other trade and merchandising,” required fuller’s earth; selling it abroad advanced foreign interests and lowered the price of English goods. Hence Ray’s crimes amounted to sedition. “The King in his piety and goodness desires to advance the wealth of his people and comfort their labours.” Evading customs struck traitorously at the main source of royal revenue. Ray’s punishment was severe: a fine of £2,000 and exposure in the pillory.¹⁰³

Sedition included defamatory writings or spoken words directed at government officials, judges, and ministers of the established church. “Touch not my anointed!” It made no difference whether the allegations contained in the seditious acts were true or whether the party allegedly libeled had died. With some imagination, almost any non-conforming utterance could be deemed seditious, as, for example, the advice of a preacher that Christians should not eat pork, which scandalized James and his bishops, and earned the reformer a fine and imprisonment.¹⁰⁴

Bankes considered sedition to be particularly serious when urged with religious authority, as in the preaching of the reverend George Walker. Embroidering Genesis 3:17, in which God evicts Adam from Eden, Walker concluded that, since no one is perfect, “inferiors [have a right] to examine and dispute the commands of their superiors.” And, if examination revealed unjust orders, inferiors had the right to resist officers trying to carry them out. Countenancing this Puritan doctrine would turn the universe upside down. Bankes had no patience with Walker’s sort of Copernican revolution. He wanted exemplary punishment, which Walker escaped by denying that he had written the offending sermons.¹⁰⁵

Encouraged by the seriousness with which Crown officers regarded every whiff of sedition, sneaks made a living reporting small talk. An incautious statement at the pub overheard by one of these “caterpillars of the Republic” (as Bankes called them) could bring a loose talker into tight places. So one Gerard Wright found himself in court for observing, correctly, that the king wanted “a good headpiece, for he giveth too much creditt & beliefe to his Nobilitie & beleeveth any thing they speake.” Our old friend Archie the Fool was foolish indeed when in his cups he accused His Grace My Lord of Canterbury of being a “monk, a rogue, and a traitor.” Fools had more license than others to tell truths that might irritate the mighty. His Grace the Archbishop, feeling lenient, only had Archie banished from court.¹⁰⁶

Among Bankes’s papers is a request from a J. Mayne, dated Christchurch, 6 April 1636, for continuation of an allowance. Jasper Mayne, of Christ Church, Oxford, was a literary man and a poet. He could not depend on his family for financial support because their substantial wealth had melted away in recusancy fines; hence his appeal to Bankes and the interest of Bankes’s contribution to his upkeep. Mayne’s fortunes improved just as England’s declined, in 1639, when he received a benefice and staged a farce, The Citye Match, before the king and queen. They liked it, although its plot was but a scaffold on which to hang sacred cows: revels at the Inns of Court, “rank Puritans,” red herrings, Prynne. A character refers to Cleyn’s expensive tapestries (“some Dutch peece weaved at Mooreclack”); another jokes about the riches of barristers; a third makes free with T&P. They do not spare the king’s lascivious Titians.¹⁰⁷ Bankes’s patronage does not imply that he enjoyed Mayne’s foolery, which applied to him too, but it is possible.

Bankes had more independence as Attorney General than his obligations to follow ministerial orders and defend the royal prerogative would suggest. The king and Privy Council sent many of the quantities of petitions they received to him for settlement; and, even when asked only for advice, he could influence if not determine the outcome. Sometimes he pursued his own policy, as when he allowed the forbidden export of bullion in exchange for a large fine, which he put into the Treasury; a well-intentioned peccadillo for which Charles cheerfully exonerated him, “telling him that he was his friend, and although he had many enemies [the Queen’s coterie?] yet so long as he was his friend, they could do him no harm.” Nonetheless, Bankes had to be careful. As the government’s chief prosecutor, he had to adjust his diligence to the fluctuating royal will, which, as in the case of the recusancy laws, might place him between Charles’s orders and the law of the land. When not engaged on royal business, however, he might practice as he pleased; at which he did so well that by 1639 his estates in Dorset were yielding £5,000 a year. Against his income he had the expense of running his own staff and office, even for the king’s business. After seven years as Attorney General, he was wealthy and well regarded, tired of having to defend the king’s dubious actions, and ready for the highest standard step in his career path, to Lord Keeper or Chief Justice of Common Pleas.¹⁰⁸ The latter office was perhaps the most lucrative in the judicial system, as it brought not only fees (for example, a seventh part of the profits of the court’s paper work) but also control of clerkships saleable at high prices.¹⁰⁹

Chief Justice

A senior judicial appointee had to be a serjeant-at-law and leave his home Inn for the serjeants’.¹¹⁰ Bankes’s valedictory speech at his separation from Gray’s in January 1641 begins with the expected expression of inextinguishable affection for colleagues and gratitude to the Inn; Bankes will not be like Vespasian, who declined to know comrades from his humble past after taking over the Roman Empire. Like the emperor, the new Chief Justice had come far: “though my beginnings were but small, yet my latter end hath been greatlie increased” (Figure 16). This bit of biography Bankes had in common with Job, from whose story he took it (Job 8:7). Bankes had copied out part of Andrewes’s sermon on Job 19: 23–5, one of the bishop’s best, which rings many curious changes on Job’s desire to publish his later woes. “Oh that my words were now written! Oh that they were printed in a book! That they were graven with an iron pen and lead in the rock forever!” That Bankes wished to associate himself with the formerly prosperous Job is arresting. Did he foresee, in 1641, the dreadful consequences of the foolhardy policies of Charles and Laud that he had helped to put in place? And did he wish, as impotently as Job, that he could publish this warning in leaden letters embedded in stone?

Figure 16 Gilbert Jackson, Sir John Bankes (c.1640), “greatlie increased,” in the robes of Chief Justice.

More prosaically, Bankes admonished the men of Gray’s Inn to work hard at their profession, as he had, for success comes only with “great labour and difficultie.” More pertinently, he warned that no one would prosper unless everyone cooperated in maintaining order and good government. Slipping easily from Job’s double to Charles’s lawyer, Bankes declared, “noe companie or multitude can subsist together without order and in order there must be a Superiour and an Inferiour.” The Commonwealth relied on men of law and reason to train learned judges for its service. “We ought by our good examples to give lawes of rules, order, and obedience.”¹¹¹

In calling on the men of Gray’s Inn to go forth and preserve law and order, Bankes was speaking to the times. Lawyers had been the prime instruments of Charles’s personal rule: the king acting through the judiciary having replaced the king acting with parliament. Judges had given verdicts, as in the Hampden case, against the liberties of the people, and prerogative courts like Star Chamber helped Charles impose his will. In dissolving parliament in 1629, Charles had condemned the Commons for its presumption in reviewing the behavior of his chief justices and accusing them of proffering “wicked counsel.” The climate when Bankes joined the judiciary at Common Pleas may be indicated by the articles of impeachment then raining down on Sir Robert Berkeley, a justice of King’s Bench, for his decisions on ship money and other impositions, for refusing to hear objections to Laudian practices, and so on, thus “traitorously and wickedly [intending] to alienate the hearts of his Majesty’s liege people from his Majesty…and to subvert the fundamental laws and established government of his Majesty’s realm of England.”¹¹²

More insightful people blamed higher legal officers. Bankes’s predecessor Noy and perennial colleague Finch had brought on all the miseries of the kingdom, the boldness of papists, the impoverishment of estates, the multiplication of illegal projects, ship money, forest fines. Unfortunately, Noy could not be impeached, being dead; but Finch, whose appointment as Keeper had opened the Chief Justiceship for Bankes, made an attractive and conspicuous target. To avoid being arrested he suddenly left town and the great seal he had held for under a year. Although Bankes had had a hand in ship money, monopolistic awards, and the trial of the triumvirs, parliament had raised no objection to his investiture as Chief Justice on 29 January 1641.¹¹³

Bankes owed his promotion to Common Pleas in part to the patronage of the Earl of Northumberland, the Lord High Admiral of England, whom he had served as counsel, and the Earl of Bedford, the leader of the moderate opposition to the king in parliament. They would have been able to judge him in action, since a chief obligation of the Attorney General was to attend the House of Lords to advise on legal questions, see to protocols, and transmit messages between the Houses.¹¹⁴ Bankes’s promotion in January 1641 came as Bedford neared the zenith of his influence as the man best placed to avert war. During January and February, he and John Pym were expected to join the government as Lord Treasurer and Chancellor, respectively, and the Privy Council talked seriously about a militia bill, triennial parliaments, and a modified episcopacy in return for guaranteed revenues. Placing Bankes as Chief Justice might well have been part of the negotiations. Bedford’s death from smallpox on 9 May left the new Chief Justice to try his own ways toward a compromise. His efforts would cost him dearly.

The toll began almost immediately when, the day before Bedford died, Bankes had to preside over the presentation for the king’s signature of parliament’s Bill of Attainder against the Earl of Strafford. Charles had then only recently created this earldom for Wentworth for his faithful and energetic service as Lord Deputy of Ireland. How Strafford came to be attainted and stood up to the charges with the help of his physician Maurice Williams will be described in its place. Here Bankes’s anguishing situation claims attention. As a common lawyer he could not have favored proceeding by attainder, which amounted to extra-legal judicial murder. And as Wentworth’s lawyer—he had defended the Lord Deputy against a murder charge and in other “troublesome businesse”—he knew that the redoubtable earl was not a traitor. Wentworth had come to trust him fully: “in better hands than [yours] I cannot be,” “by gods blessing and your assistance I trust my innocence shall at last carry me [through], however great a weight of calumny and malice soever presse upon me.”¹¹⁵ Calumny and malice had prevailed. Bankes had to ask Charles to assent to the bill that would kill their mutual friend.¹¹⁶

Charles tearfully assented to the sacrifice of Strafford after summoning his bishops to assist him in adjusting his conscience. Royal tears fell more plentifully as parliament pulled more teeth from the prerogative jaw without the anesthetic of denying innovation. In December 1640 it took up the problem of bishops. The Commons voted to eject them from the Lords; the Lords were willing to deprive them of their civil functions but not of their seats; the Commons upped its game to extermination.¹¹⁷ The London mob increased the persuasive power of the Commons; the bishops discontinued their attendance; and after October 1641 no more than four sat in the Lords at any one time before parliament formally abolished the episcopate in 1646. No bishops, no king, no law, no order. With the sanction of the Commons, lawless fanatics destroyed church ornaments, reoriented altars and communion tables, and did away with pictures, candles, basins, and vestments.¹¹⁸

There remained among old grievances ship money, forest fiddling, knighthood fees, and T&P. On 8 June 1641 Selden brought in a bill abolishing the first three and prohibiting the king from levying customs duty without the consent of parliament. The prerogative courts of Star Chamber and High Commission came next and on 5 July Charles acquiesced in their abolition.¹¹⁹ In the old days he would have sent parliament packing; he would never surrender his power (so he had said) to create and annihilate parliaments. But parliament took away that power too: the opposition party in the Lords made no secret of its intention to “Venetianize” the state and joined the Commons in prohibiting the king from dissolving a sitting parliament or governing without one for more than three years. Bankes again presided. The delegation from parliament that brought the Bill of Attainder against Strafford also carried the Triennial Act.¹²⁰

In August 1641, against the protest of parliament, Charles set off for the country of his forebears. He hoped to use two of his kingdoms, the Scottish and the Irish, to bring the third to heel. His intrigues in Ireland took on an additionally sinister cast when its Catholic population rose in rebellion in October and one of its leaders claimed to be acting under his orders. Other rebels asserted the queen’s authority.¹²¹ Rebellious Irish Catholics did not make promising allies in a fight for the allegiance of English Protestants. The Scots declined to be allies of any kind. Although soon after his arrival in Scotland Charles wrote to Henrietta Maria that his devoted northern subjects were sure to help, he quickly learned that they too desired to strip away his prerogatives. Charles returned from Edinburgh as empty handed as he had from Madrid, and, as then, to a warm welcome by the relieved aldermen of London.¹²²

The aldermen hoped that the king’s presence might subdue the increasing radicalism of the Commons, which was pressing for a new Remonstrance (first reading, November 7–8, 1641) and blaming, as of old, papists, bishops, and evil counselors for undermining the laws and religion of the state. The remonstrators cited Laudian liturgy, illegal taxes, hasty dissolutions of parliament, Buckingham’s government, tyranny of ecclesiastical courts, imposition of the Scottish prayer book, the Bishops’ Wars, all of which time or parliament had corrected. But security required more: curbing the influence of bishops and recusant lords, providing a new constitution for the Church, and choosing reliable government ministers.¹²³

Feeling increasingly constrained, Charles hesitatingly determined on a bold act: he would seize five members of the House of Commons, Pym, Hampden, and three others, for subverting all the laws, powers, liberties, estates, and officers of the land, and also for alienating the people’s affection from him, leaguing with foreign princes, trying to impeach the queen, and “traitorously conspir[ing] to levy…war upon the King.” It would go hard with them when he had them in his clutches! But he hesitated. The firmness of Henrietta Maria finally sent him off, on 4 January 1642, with an armed guard, but the forewarned delinquents had escaped, and Charles spluttered at another humiliation. The aldermen decided that he was not their savior, and Charles fled from his capital so precipitously on 10 January 1642 that the five members of the royal family suffered the indignity of sleeping in the same room when they arrived unexpectedly at Hampton Court.¹²⁴

Charles’s continuing threat to deal with the delinquents he had tried to arrest, the need for an army to put down the Irish rebels, the endemic fear of papal plots, and general insecurity caused parliament to pass a Militia Bill demanding that the king sign away his right to command armed forces. If he had done so, his queen said, improving on the frightful image, he would be less even than a doge. That was in February 1642. On 1 February, parliament asked that only persons agreeable to it should be placed in command of fortresses and militias. On the 12th, it named candidates to replace the king’s lord-lieutenants, who had responsibility for raising trained bands and militias in their several jurisdictions. In June, parliament proposed a compromise. Still blaming the state of affairs on the “subtill Insinuations, mischievous Practices, and evill Councels of Men disaffected to God’s true Religion, your Majestie’s Honour and Safetie, and the publike Peace and Prosperitie of your people,” it demanded the vigorous prosecution of laws against papists, disenfranchisement of Catholic peers, closer alliance with foreign powers opposed to the pope, submission of nominations of high officials and royal tutors for parliamentary approval, the right to advise on liturgy, and so on. In return, “these our humble desires being granted by your Majestie, we shall forthwith apply ourselves to regulate your present Revenue.”¹²⁵

Charles declined the offer. The mischievous advisers were parliament’s; the bargain proposed to him resembled Esau’s; accepting it, he would abandon “the power and right Our Predecessors have had,” and be nothing “but the Picture, but the Signe of a King.” In the mixed government of England, parliament guards liberties, but never did or should share in governing, which is the king’s business; whereas the Lords, with judicial powers, “are an excellent Screen and Bank between the Prince and the People, to assist each against any Inchroachments of the other.”¹²⁶

Charles promised Henrietta Maria to remain firm about the Militia Bill while she went to the Continent to raise money for their cause from fellow monarchs and pawnbrokers. Following her advice, he agreed to eject the bishops (who were so many heretics to her) from the Lords. Where were the innovations to end? A leading parliamentary pamphleteer, Henry Parker, had a good and fearful answer: look to Venice! Parker envisaged a constitution that would escape domination by nobility, commonality, and monarchy, which the constitutions of Denmark, Holland, and France, respectively, had allowed. The best way to achieve an “equal, sweetly-moderate sovereignty” was to introduce the “coordinate and restrained forms of government” recommended by such European “republicists” as old Fra Paolo.¹²⁷

Parker quoted long passages from Sarpi’s History of the Inquisition (1639) to prove that the popes had usurped the power Christ had delegated to princes and had constructed an ecclesiastical apparatus to prosecute a worldly policy under the cloak of religion. Parker called on Sarpi, “egregious Politician…learnedst of Papists,” to testify how easily Rome had hoodwinked princes. England take note! “[O]ur Prelates in England at this day assume to themselves almost as vast and unquestionable a power of stifling and repressing adverse disputes, and of authorizing and publishing all arguments whatsoever favouring their cause, as the Court of Rome does.” Parker gave as the main method Rome used to stifle other opinions the censorship, from which “wee are sure to have no book true.”¹²⁸ This lesson had the reinforcement of Galileo’s condemnation in 1633 and the reissue, in English, of Sarpi’s Trent in 1640.

The intrepid queen set sail on 23 February 1642 with the crown jewels, the well-traveled Arundel, and Princess Mary, whom she was to deliver to the girl’s teenage husband, William of Orange. Soon rumor spread in London that the queen would return with an army of Danes and Dutchmen inspired by her charms and paid by her jewels.¹²⁹ With his queen safely abroad, Charles again hastened north, where he supposed he still had friends, and found enough to remain intransigent. He gave his enemies this concession, however, that he hanged two inoffensive priests, one 90 years old, who had attended their flocks without trouble for years; simultaneously and contradictorily, he relied on money raised by Catholics alarmed at the progress of the Puritans and raised an army in which Catholics made up a sizable minority. A Catholic and his son raised £100,000 for Charles’s cause during June and July 1642. Without this contribution from the papists, he might not have been able to construct a royalist force.¹³⁰

The king came to rest in York, whence he summoned his court and musicians, displacing people who might have been more helpful elsewhere, as if (it is Selden’s image) a man needing a piece of wood could think of nothing better than pulling the bung from a barrel of beer.¹³¹ Faithful Endymion Porter was there, close enough to Charles to have no idea of his plans. “We have no certainty of our return for his Majesty’s business runs on the wonted channels, subtle designs of gaining the popular opinion and weak executions for upholding the monarchy.”¹³² Some great persons, consulting politics, declined to come, and some lesser ones, consulting their pocket books, stayed away. Charles had not troubled to pay his musicians, although he could manage to put on a lavish ceremony in York to welcome his son the Prince of Wales and his warlike nephew Prince Rupert into the Order of the Garter. Preparations for this ceremony occupied him for days. Realism was represented by the refusal of the governor of the arsenal at Hull to allow him entry. Charles might have gained control of the arsenal by diplomacy alone had he been capable of decisive action. His failure at Hull cost him a relatively safe route for troops and supplies from Europe.¹³³ When Christian at last decided to help his nephew, the money and munitions he sent were intercepted. Charles’s requests for loans with the Orkneys and Shetlands as collateral fell on deaf ears. Christian needed help himself in fighting his favorite enemy, the King of Sweden.¹³⁴

As a senior royal official, Bankes was one of the councilors Charles commanded to join him in York in May, on an “occasion of importance concerning Our person, honour and Service.” Bankes then resided in London, assisting the Lords as he had done the year before; for, like the Attorney General, senior judges had to make themselves available for consultation by parliament, especially over new legislation. Ever punctilious, Bankes asked permission of the Lords to leave London; it was freely given, as his record inspired confidence that he would “strictly pursue the genius of the Houses” in advising the king.¹³⁵ As we know, Lord Keeper Finch had good reason not to notify parliament about his travel plans. Charles sent an emissary to capture the Great Seal and thought to give it to Bankes or Selden; but his then chief advisers, who included Edward Hyde, the future Earl of Clarendon, decided for him that Selden was too old and fond of leisure and that the new Chief Justice was unequal to “the charge in a time of so much disorder, though, otherwise, he was a man of great abilities and unblemished integrity.”¹³⁶ No doubt they had in mind that the Keeper presided over the Lords in the absence of the Chancellor and feared that in such cases Bankes’s integrity would not allow him to assert the king’s policy slavishly.

A week or so after arriving in York, Bankes wrote to his patron Northumberland about the situation he confronted. “Heere be impressions and ffeares that there bee endeavours to alter the forme of the Government…That there be such intrusions upon his prerogative as cannot stand with monarchy.” There were complaints that parliament was not punishing seditious writings, or making peace in the church, or regulating the Crown’s finances. But Bankes did not despair: “I do not discerne that the differences between his Majesty and the Houses are so great in substance, but if there be a willingness on all parts, they may be reconciled.” Two days later, on 18 May, Bankes wrote to the opposition leaders Lord Saye and Sele in the Lords and Denzil Holles in the Commons that the king would not budge until parliament told him what it would do for him, in a few short propositions, “by calm and moderate, not by violent wayes.”¹³⁷

Bankes showed the way to compromise by the dangerous step of thwarting the royal will over the great issue of the Militia Ordinance. Charles ordered Bankes to declare it illegal. Bankes refused. The consequences for him and the country he laid out in a letter to Giles Green, one of the MPs for Corfe Castle, on 21 May 1642:

Good Mr Green…I have adventured farre to speak my mind freely according to my conscience and what hazards I have runne of the King’s indignation in a high measure you will have heard of others…I am heere in a very hard condition where I may be ruined both wayes, but I trust god will save my soule. The King is extremely offended with me touching the militia, saying that I should have performed the part of an honest man in professing against the illegalitie of the ordinance, commands me upon my allegiance yet to doe it. I have told him my opinion it is not safe for me to deliver anie opinion on things that are voted in the houses, you know how cautious I have been in this particular. I have studied all meanes which way matters may be brought to a good conclusion between the King and the houses…and [argued that] if we should have civill warrs, it would make us a miserable people and might introduce forraine powers…It hath been my daily endeavour and earnest solicitation with his Maiestie to induce business into this way. The King is pleased to have me, but how he will harken unto me and be persuaded by me I leave that to god.¹³⁸

In insisting that a judge should not meddle with the decisions of parliament, Bankes acted in accordance with a policy earlier declared by Coke: “Judges ought not to give any opinion of a matter in Parliament, because it is not to be decided by the Common Laws.”¹³⁹ The application of Coke’s rule to the Militia Ordinance made a conflict of interest for Bankes. Parliament had placed him on a list of persons “fit” to be “entrusted with the Militia of the Kingdom” in the territory around Corfe Castle. Bankes had accepted the honor, hoping that Charles might be reconciled to the Militia Bill if men he trusted raised the forces.¹⁴⁰ Charles evidently saw some merit in Bankes’s retaining his bona fides with parliament, for he directed him to certify that he had delivered “noe opinion touching the militia.”¹⁴¹

The Militia Bill perplexed lord lieutenants and other gentlemen who received orders under it to raise troops for parliament. The Bill lacked the force of the royal signature, which Charles placed on the “commissions of array” also received by the same people. These commissions empowered their recipients to raise troops for the king. Since no such summons had been issued for over a century, its legal status too was questioned. Here Bankes’s opinion comforted Charles. Earlier he had advised that the king could summon subjects to defend the Scottish borderlands; now he apparently allowed that the right extended to commissions of array. Struggles with consciences, loyalties, and laws developed into fights over control of troops, ammunitions, and fortifications. The division of allegiance precipitated by the Militia Bill and the commissions of array accelerated the drift to war.¹⁴²

Harkening to Bankes, Charles prepared to go to London to negotiate. But temporizing as usual, he consulted others and remained intransigent in York.¹⁴³ Meanwhile Bankes’s parliamentary correspondents willing to compromise continued to seek his intercession. Lord High Admiral Northumberland, on 19 May, answering Bankes’s letter of the 16th: “You being in a place where I hope your wise and moderate counsells may contribute toward the composure of the differences makes me desirous a little to expresses my sense unto your Lordship.” The sense was that, if the king would only assent to the “few humble desires” that parliament was drawing up, the Crown would retain its prerogatives, parliament its privileges, and the country its king. On 21 May Holles replied, assuring Bankes of his and parliament’s eagerness for accommodation, “upon the first indication of a change in his Maiestie, that he would [listen to Bankes and] forsake those counsells which carry him on so high a dislike and opposition to their proceedings by mispossessing himself of them.” On 31 May, the Earl of Essex, the Lord Chamberlain, soon to be the commanding general of parliament’s army, wrote in the same vein: “I know none but must abhor this difference between his Majestie and the Parlement, but delinquents, papists, and men that desiar to mack their fortunes by the troubles of the land.”¹⁴⁴ According to a contemporary observer, it was these bad actors, “malignant and dangerous spirits, who are near his Majestie’s person,” who frustrated Bankes’s attempts.¹⁴⁵ They included thoughtless Queen Henrietta, reckless Prince Rupert, cavaliers eager to fight, and privy councilors ignorant of the state of the country.

Parliament’s proposals, set forth in nineteen propositions, reached Charles on 2 June 1642. They were hardly humble; “overreaching,” rather, and “unreasonable.”¹⁴⁶ Parliament’s desiderata included appointments to all high offices of state; control of all forces and fortresses; management of affairs of state, direction of the education and marriage of the royal children, and jurisdiction over religious conflicts; and the power to enforce the laws against Catholics, to reform the Anglican Church, and to intervene effectively for the Protestant cause in Europe. Charles haughtily rejected these nineteen forms of castration. That caused Lord Saye to appeal to Bankes to bring the king to his senses. “I beseech you, use your best indeavour to prevaile with the King to trust his Parliament before private men, his great counsel, before men engaged and interested for their owne endes.” Northumberland besought Bankes to move the king to gentler language, which might yet (so he wrote on 14 June) avert the calamity of a civil war. “Let us but have our lawes, liberties, and privileges secured unto us, and lett him perish that seekes to deprive the King of any part of his prerogative or that authoritie that is due unto him.”¹⁴⁷

The same post brought a letter from the Puritan Lord Philip Wharton, who in a month’s time would lead a parliamentary raid on the magazine at Manchester in one of the first skirmishes of the Civil War. Wharton asked Bankes for an assignment to help arrest the slide toward armed conflict if the Chief Justice could diagnose the reason for it: “the wantonness of some few interested or unprovided people,” or “a judgment upon us immediately from the hand of God, for which no naturall or politique reason can be given”? He repeated his desire for an assignment on 13 July, which would have reached Bankes about the time of the skirmish in Manchester.¹⁴⁸

Each side hurriedly armed while assuring the other that it intended its army only for defense. The king’s Secretary of State, Lord Falkland, and his Chancellor of the Exchequer, Sir John Colepeper, both recently active among Charles’s opponents in parliament, joined with Lord Chief Justice Bankes and thirty-four peers in an engagement to defend the king and Crown against “all persons and powers.” They also promised to stand up for “the true Protestant religion established by law, the lawful liberties of subjects, just privileges of the Crown and of both Houses,” and to refuse to obey “any rule, order, or command concerning the militia without royal assent.” That was on 8 June.¹⁴⁹ In desperation Northumberland suggested that “an act of oblivion and generall pardon…would incline many to an accommodation.” Parliament sent one last set of propositions in mid-July. Charles peremptorily called on his Chief Justice for advice. The king’s mood, as Bankes relayed it to Lord Saye on 11 July, was truculent. He complained of parliament’s high-handedness in its several sets of propositions. Still, he seemed ready to grant “whatsoever is petitioned for or demanded of right either concerning the ecclesiastical or temporal state, etc. But that may not be extorted, and the King is now in a condition not to have anything inforced from him.” Charles would accept no more Venetianizing. Bankes urged him again to meet with the Houses. Charles ignored the advice and answered parliament in language regarded as harsh even in York, in order, he said, not to encourage new raids on his prerogatives and discourage his strongest supporters.¹⁵⁰

On 22 August the king set up his standard. Typically, he hesitated over details. At the last minute he decided to edit his declaration of war for style. The herald who was to read it stumbled over the corrections.¹⁵¹ What should have been a clarion call came out in toots. It is said that the wind promptly blew the standard down, a bad omen in that age of symbols. The first major clash occurred at Edgehill in Warwickshire on 23 October. The edge went to the king. But his losses too were great and he retired to Oxford. On 22 January 1643, Charles wrote to Bankes to attend him immediately. “We have speciall occasion to advise with you concerning some Affaire [that] will admit of no delay…[It] is of that importance as is neither fit to be imparted to you by letter nor will beare any delay or excuse.”¹⁵² Bankes rushed to his sovereign in Oxford.