The Ghost of Galileo

by J. L. Heilbron

  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 a
pproval, 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