MEETING OF LONG PARLIAMENT AND TRIAL OF STRAFFORD.
1640-1641.
Had I but served my God with half the zeal
I served my king, he would not in mine age
Have left me naked to mine enemies.--HENRY VIII., iii. 2.
♦House of Commons.♦ Westminster Hall, in the year 1640, was just the
same building that we see to-day: but the house in which the Commons
sat was utterly different. At right angles to the hall, between it and
the river, stood a building which was once a chapel of the old palace
of Westminster, but was now fitted with tiers of horse-shoe benches for
the members of the Commons. The building itself was small, somewhat
dingy and gloomy; though sittings were generally by day, on winter
afternoons candles were placed on a table in the centre. The appearance
of the members, however, belied the meanness of their meeting-house;
for these were peers’ sons, country gentlemen, merchants, lawyers,
distinguished in their towns or counties for birth or wealth, or both;
their dress displayed their quality--the sword by the side, the velvet
coat, the large frilled linen collar to protect the lace and gold or
silver trimming from the long hair falling in curls upon the shoulders,
were sure signs that the House did not count among its members any
of the fanatics from the lower orders, who cut their hair close and
prided themselves upon the especial plainness of their attire.
♦Leading members.♦ Chief amongst the many notables of that assembly
were John Pym, John Hampden, Lord Falkland,[52] Edward Hyde, Oliver
Cromwell. Pym, the old opposer of tyranny in the previous reign;
Hampden, the ship-money hero, gentle and affable to all, and now
the most popular man in the House; Lord Falkland, whose truthful,
generous nature made him the declared enemy of injustice in high
places; Hyde, afterwards Earl of Clarendon, and the Royalist historian
of the Rebellion, now carried along with the stream, and as eager
as his friend Falkland to restore the old government of England by
Parliaments; Cromwell, member for the town of Cambridge, a country
gentleman, dressed in a plain cloth suit, and as yet little remarked,
save for his activity in defending the poor of his own neighbourhood
from oppression.
%MEETING OF LONG PARLIAMENT.%
The members of both Houses of Parliament, urged by a hundred different
motives, were almost unanimous in their determination to make the
agents of the government answer for their conduct, and above all,
the chief offender, Strafford.
♦Grievances, delinquents.♦ The noble ruinously fined in the Star
Chamber; the courtier of whom Strafford had used sharp words, as ‘that
the king would do well to cut off his head;’ the merchant, forced to
pay illegal customs; the patriot, indignant at the judges’ verdict
that ship-money was a just and legal tax; the Presbyterian fined and
insulted by the Court of High Commission, were all alike eager to
gratify, as the case might be, their desires for reform, or justice, or
revenge.
The House proceeded to business at once. Votes were passed that
all monopolists should be deprived of their seats (9th Nov.), that
ship-money was against the laws of the realm (7th Dec.),[53] that
all agents of the crown who had taken part in the collection of
ship-money, or had shared in any other acts condemned by the House,
were ‘delinquents,’ and might be proceeded against at any moment. This
made offenders of all ranks tremble, lords of the Council and Star
Chamber, lords-lieutenant of counties, sheriffs, judges, besides a host
of inferior officers. It was not so much the intention of the Commons
to proceed against all these delinquents, as to terrify them into
submission. The chief criminals alone had real cause to fear.
%STRAFFORD IMPEACHED.%
♦Strafford trusts in Charles.♦ Strafford[54] had seen the storm
gathering and was anxious to return to Ireland, but Charles wrote him
a positive command to come to London, assuring him, ‘as he was King of
England, he was able to secure him from any danger, and the Parliament
should not touch one hair of his head.’ The king was in fact afraid of
meeting his enraged Parliament unsupported. Accordingly Strafford came
prepared with charges of treason against some of the leading members,
for having encouraged the Scots in rebellion. They were aware of his
intention and determined to strike first. No time was lost. Their
feelings at this crisis are analyzed in Browning’s lines:
“Now, by Heaven,
They may be cool who can, silent who will--
Some have a gift that way! Wentworth is here;
Here, and the king’s safe closeted with him
Ere this. And when I think on all that’s past--
... how all this while
That man has set himself to one dear task,
The bringing Charles to relish more and more
Power--power without law, power and blood too--
Can I be still?”
♦Impeachment of Strafford.♦ Strafford had only been one day in London
when, on the 11th of November, Pym proposed in the House of Commons
to impeach of high treason the man who, “according to the nature
of apostates, had become the greatest enemy to the liberties of
his country, and the greatest promoter of tyranny that any age had
produced.”
The process by impeachment has been described in Buckingham’s case,[55]
it is still more familiar to us from the trial of Warren Hastings
in the following century (1788). The king having no part in an
impeachment, and the House of Lords being judge, the only preliminary
required is a resolution of the Commons to prosecute. The Commons now
agreed to the proposal without a dissenting voice, and Pym, followed by
a train of three hundred members, went up straight to the Lords’ house,
and there accused the earl of high treason, desiring that he might be
lodged a prisoner in the Tower, until the time of his trial came on.
%STRAFFORD AND LAUD IN TOWER.%
Thus, at one blow, was the king deprived of his ablest adviser, and
Strafford himself of the awe with which power had previously invested
him. Strafford was in consultation with the king when the news came.
Hastening to the Lords’ house with a “proud, glooming countenance, he
makes towards his place at the board-head. But at once many bid him
void the house.
♦Strafford sent to Tower.♦ After consultation, being called in, he
stands, but is commanded to kneel, and on his knees, is delivered to
the keeper of the black rod, to be prisoner until he was cleared of
those crimes the House of Commons had charged him with. As he passed
through the gazing crowd outside to find his coach, no man capped to
him, before whom that morning the greatest of England would have stood
discovered, all crying, ‘What is the matter?’ He said, ‘A small matter,
I warrant you.’ They replied, ‘Yes, indeed, high treason is a small
matter.’”
♦Other ‘delinquents.’♦ The next month Laud was impeached too (18th
Dec.), and followed his friend to the Tower, amid the curses and
howlings of the populace. Windebank, the king’s secretary, wise in
time, jumped into an open boat, and, steering through the mist,
succeeded in putting the Channel between him and his foes. Finch,
though known as the first adviser of imposing ship-money on the inland
counties, hoped much from the graceful defence he made before the
Commons. But the temper of his hearers was too stern; “There be birds,”
said one, “that in the summer of Parliament will sing sweetly, that in
winter turn into birds of prey!” The most he could effect was to be
allowed, like others, to escape into exile.
Judge Berkeley, the principal supporter of ship-money, was also a
marked man. The messenger of the Lords entered Westminster Hall, while
the courts of justice were sitting, and then and there carried him off
to the Tower, impeached by the Commons of high treason. The gazing
crowd felt awe-struck, while the consciences of some of Berkeley’s
brethren gave them uneasy qualms.
♦Reparation to sufferers.♦ Hand in hand with justice went reparation.
The prison doors were opened to men shut up for five or eight or ten
years, as the case might be. Chambers, the merchant, came out ruined;
Leighton, a minister, unable to walk or stand or see; Lilburne, with
a tale to tell of starvation, irons, and the scourge. Prynne, Burton,
and Bastwick came from their distant prisons in Jersey, Guernsey,
and Scilly, to forget the shame of the pillory and the loss of their
ears, in the triumph of the day when they were welcomed back to London
by thousands of men and women decked with white rosemary and bay and
filling the air with their acclamations.[56] Large numbers of sufferers
brought their cases before committees of Parliament, and had the
satisfaction of hearing their sentences declared illegal, while many
received compensation in money for their losses.
%TRIAL OF STRAFFORD.%
But the event which above all others excited men’s minds, was the trial
of Strafford. Until March, a committee of Parliament was engaged in
examining witnesses and preparing the case. The Scots joined in the
prosecution, accusing Strafford of having been the cause of the war,
and even the Irish, lately so submissive, now sent over charges against
the deputy. On the 22nd of March the trial began.
♦Scene of trial.♦ In the cold spring morning, as early as five o’clock,
crowds might be seen gathering about Westminster. A stage was erected,
reaching right across the end of the hall. Here sat the judges, the
members of the House of Lords, about eighty in number, ‘wearing their
red robes lined with white ermine.’ The lawn of the bishops was not
seen at trials for life. At one end of the stage sat the committee of
the Commons who conducted the impeachment, at the other Strafford’s
secretaries and counsel. Behind the lords’ seats was the empty throne;
the king and queen, though present, sat in a gallery concealed by
curtains. On both sides of the hall, east and west, the forms rising
one above another to the roof were occupied by the members of the
Commons, with the Scottish commissioners, and some favoured friends.
Ladies paid high prices for seats in galleries, and diligently took
notes of the proceedings.
About eight Strafford was brought from the Tower by water. All were
struck with his appearance. Clad in black, his countenance pale through
suffering, his body bent by illness, he bore himself with a proud
humility, implying excess of courtesy, and not defect of confidence.
Having first bowed to the court, he took his place in a small desk in
front of his judges, where he stood or sat at pleasure.
%LAW OF HIGH TREASON.%
Precedents of harsh procedure too often return to plague the inventors.
The difficulties put in the way of state criminals whom kings attacked,
were now all cast in the way of Strafford, whose life the people were
seeking.
♦Course of state trials in seventeenth century.♦ He had himself to
examine witnesses brought against him, and to speak as to the truth of
the facts of which he was accused. His counsel were only allowed at
the close of the trial to argue that the facts did not fall within the
legal definition of high treason. Though most of his witnesses were in
Ireland, he had not been allowed to summon them to attend, until three
days before the trial. He did not know from day to day what charges
would be brought against him, but after his accusers had spoken, was
allowed half an hour to sit down with his secretaries and prepare his
answer. The time given was not favourable for quiet thought. During
these intervals the whole hall rose to its feet, judges, prosecutors,
spectators, talking and laughing; bread and meat were handed about,
bottles of beer and wine ‘went thick from mouth to mouth,’ and all this
in the king’s eyes, who, in the excitement of the trial, with his own
hands tore down the curtains in front of his gallery, and there sat
visible to all, but as unregarded as if he had not been present.[57]
Thus unaided for seventeen days, from eight in the morning until three
or four in the afternoon, Strafford had to hear and answer his accusers
and their witnesses.
♦Law of high treason.♦ The crime of high treason was defined by a
statute of Edward III. (1351), to consist of seven offences. Five of
these did not touch Strafford. The two under which he was prosecuted
were those of ‘levying war upon the king,’ and ‘compassing the king’s
death.’ Of all legal procedure, prosecutions for high treason are
the most unintelligible to the ordinary mind.
♦Forced interpretation of judges.♦ The interpretations of the judges
had extended the meaning of ‘levying war,’ to mean any overt act which
was considered objectionable; that ‘of compassing or imagining the
king’s death,’ to mean any objectionable purpose which was not carried
into act. To understand this process it is necessary to recall the
origin of the act, and the fact of the dependence of the judges upon
the crown. The act was brought forward by the nobles as a safeguard to
themselves, by defining more clearly in what treason consisted. They
had found before that if the crown wished to confiscate their lands,
it could make out anything to be treason; but though they hoped much
from a clearer definition, they gained little; first, because the
judges extended the meaning of the words of the law; secondly, because
untrustworthy evidence was admitted as to the facts. As an instance of
the first, a rioter who had joined in an attack upon Laud’s palace at
Lambeth, was convicted of high treason for ‘having levied war upon the
king.’
♦Laxity of evidence.♦ Of the second, Sir Walter Raleigh’s case may
serve as an epitome.[58] The evidence on which he was convicted of
having intrigued with Spanish emissaries to set Arabella Stuart on the
throne, was the written accusation of one witness, who retracted, and
then retracted his retractation, and was never confronted with the
prisoner. A correspondent of the time wrote of Raleigh’s trial thus:
“The evidence was no more to be weighed than the barking of a dog. I
would not for much have been of the jury to have found him guilty.”[59]
These forced interpretations of the judges and their laxity about
evidence, were unjustifiable enough, but there was another process
at work, of a perfectly legitimate character, which had enlarged the
meaning of laws containing the king’s name. In England the constitution
has continually changed in fact, without changing in form, and the
fictions of the constitutional lawyers have been the regular means by
which, as liberty has advanced, new facts have been brought under old
forms.
♦Ideal king of English law.♦ It is on this principle, that from
the doctrine of the irresponsibility of the king, the constitutional
lawyers have justly treated the name of king as meaning not the mere
fallible being who wears the crown for the moment, but the true king
who acts in accordance with the constitution he represents. The
obvious plea, that Strafford had acted according to Charles’ wishes
and therefore could not have levied war upon the king, no lawyer would
have thought of urging in the earl’s defence. The king, the ideal king
of English law, ‘can do no wrong,’ and under all circumstances is the
maintainer of the rights and liberties of his subjects. Though illegal
acts are done by a king’s command, a court of justice is bound to set
this fact aside, and regard them as committed contrary to his wishes.
The minister, therefore, who attacks the liberties of the subject, is
also in the eye of the law attacking the authority of the king.
%TWO MAIN CHARGES.%
Yet the managers of the prosecution had a difficult task in trying
to bring Strafford’s acts within the definition of treason. As to
the question of law, there were two main charges, which must be kept
clearly distinct.
♦‘Levying war upon the king.’♦ The first and finally successful charge
was the billeting of soldiers upon the people of Ireland, _in order
to make them submit to illegal commands_, which was said to amount to
‘levying war upon the king,’ as it was really reducing the country by
conquest. It must be allowed that technically Strafford had broken the
law, and that what he had done amounted to treason within the meaning
of the statute. But his counsel could argue that like arbitrary acts
of power had been committed by previous deputies, and that he had not
committed the offence in a manner systematic enough to be found guilty
upon a liberal interpretation of the law.
♦‘Compassing the king’s death.’♦ The second and unsuccessful point
was the ‘compassing the death of the king,’ which they interpreted as
meaning an endeavour to subvert the laws of the realm represented by
the king. This accusation rested on Strafford’s having advised Charles
in council to bring over the Irish army to reduce ‘this kingdom,’
meaning England, to subjection. They had to prove both the question of
fact and the question of law.
As to the facts, Strafford could point to a straining of evidence, and
could show up some charges as absurd in themselves, others as breaking
down in proof. The prosecutors could retort, they were sufficiently
proved, the sufficiency being in the custom of the time, and the
usage of the courts which Strafford had administered. The fact that
was most stoutly contested was ‘the advising Charles to use the Irish
army to reduce this kingdom.’ The witness to this was no less than Sir
Henry Vane, the king’s secretary. Strafford’s answer was that ‘this
kingdom’ meant not England, but Scotland, which was then in rebellion,
and he brought other members of the council to swear that they had no
recollection of his advising Charles to use an army against English
liberty. The importance which the Commons attached to the proof of
this fact will be shown in the sequel.
♦Cumulative treason.♦ As to the question of law, the Commons argued
that it did not depend on this single article, but that the whole of
the charges, twenty-eight in all, mounted up to a sort of accumulative
treason, proving that Strafford had formed a scheme to subvert the
laws of the realm, and govern by means of a standing army. This design
of enforcing submission by means of an armed force was what moved the
Commons most deeply. If that was not high treason, the constitution
was a mockery indeed. If the law of high treason was to protect the
sovereign power of the State, and if this sovereign power was not
the king only, but the king acting through his Parliament, then to
destroy Parliament was to destroy the vitality of the king. Was it
‘compassing the king’s death?’ Well, would it not have been the death
of the constitution? It would, no doubt, and should certainly have
been included in a good law defining high treason against the State.
But it was not. Pym felt this himself when he made the following
grand rhetorical appeal to the earl’s judges. “Shall it be treason to
embase the king’s coin, though but a piece of twelvepence or sixpence?
and must it not needs be the effect of a greater treason to embase
the spirit of his subjects, and to set up a stamp and character of
servitude upon them, whereby they shall be disabled to do anything for
the service of the king and the commonwealth?” The king can indeed
have no interest but the good of his subjects, and Pym’s view was here
as ever that of the true constitutional statesman, but it lacked the
support of precedents to commend it to judges. Strafford’s plea of
moderation on the other hand was easily met. “His moderation! when you
find so many imprisoned of the nobility! so many men, some adjudged to
death, some executed without law! when you find so many public rapines
on the state, soldiers sent to make good his decrees, so many whippings
in defence of monopolies, so many gentlemen that were jurors, because
they would not apply themselves to give verdicts on his side, to be
fined in the Star Chamber, men of quality to be disgraced, set in the
pillory, and wearing papers and such things--can you, my lords, think
there was any moderation?”
%BILL OF ATTAINDER.%
On the 10th of April, additional evidence, hitherto kept back, was
read in the House of Commons, in support of the charge of advising
the king to use the Irish army against English liberty. Before the
meeting of the present Parliament, young Sir Henry Vane had found
in his father’s despatch box some notes made in council of the very
debate in which Strafford advised the king to use the Irish army to
reduce ‘this kingdom.’ He had shown them to Pym, who had made a copy,
now produced.
♦Bill of Attainder.♦ The double evidence upon the same article was
considered conclusive of Strafford’s guilt, and Sir Arthur Haslerig
proposed to proceed against him by Bill of Attainder,[60] in other
words to vote him guilty by act of Parliament. The motive for this
change in procedure was “to avoid delay, which was now of extreme
dangerous consequence.” The known faithlessness of the king, and the
peril impending from it, justified much informality. When a prisoner’s
friends threaten violence, they can hardly complain if his foes quicken
the slow processes of law.
It has generally been supposed that this measure was brought in by
the extreme patriots; but a member’s notes, made in Parliament at the
time, have revealed the fact that whereas it was warmly supported by
the moderates, such as Hyde,[61] Falkland, Culpepper, and others, who
took the Royalist side in the war; it was opposed by both Pym and
Hampden, who preferred to ask the Lords to give judgment on the trial
by impeachment. They had a quiet confidence in the goodness of their
case, and were anxious to avoid even the appearance of differing from
the Lords. However, on finding those who supported them were bent on
the measure, they acquiesced, sharing, as they did, the universal
conviction that, if Strafford escaped with his life, the king would
restore him to power. But others gave utterance to the criticism to
which such measures are undoubtedly open.
“I do not say,” said the Royalist, Lord Digby, “but the charges
may represent him as a man worthy to die, and perhaps worthier
than many a traitor. I do not say but they may justly direct
us to enact that they shall be treason for the future. But God
keep me from giving judgment of death on any man upon a law
made _à posteriori_. Let the mark be set on the door where the
plague is, and then let him that will enter, die. I believe his
practices in themselves as high, as tyrannical, as any subject
ever ventured on; and the malignity of them largely aggravated
by those rare abilities of his, whereof God has given him the
use, but the devil the application. In one word, I believe him to
be still that grand apostate to the commonwealth, who must not
expect to be pardoned in this world till he be despatched to the
other. And yet let me tell you, Mr. Speaker, my hand must not be
to that despatch.”
The bill, however, easily passed the Commons (21st April); only
fifty-nine members voted against it, whose names were posted up in the
streets of London, as ‘Straffordians, enemies to their country.’ The
trial by impeachment in Westminster Hall still continued. Strafford
made a brilliant defence, in which he carefully turned the attention
of his hearers away from the billeting or ‘levying war upon the king,’
the weak point of his case, to the weak point of the prosecution, the
charge of ‘compassing the king’s death.’ The highway, which brought him
to the Tower, furnished a simple illustration which seemed to demolish
their laboured construction.
♦Strafford’s defence.♦ “My lords,” he said, “I do not conceive
that there is either statute law, or common law, that hath
declared this--endeavouring to subvert the fundamental laws--to
be high treason. Jesu! my lords, where hath this fire lain all
this while, so many hundred years together that no smoke should
appear till it burst out now, to consume me and my children? Hard
it is, and extreme hard, in my opinion, that I should be punished
by a law subsequent to the act done.... If I pass down the Thames
in a boat, and run and split myself upon an anchor, if there be
not a buoy to give me warning, the party shall give me damages;
but if it be marked out, then it is at my own peril. Now, my
lords, where is the mark set upon this crime? where is the token
by which I should discover? if it be not marked, if it lie under
water and not above, there is no human providence can prevent the
destruction of a man instantly and presently. My lords, I have
troubled your lordships a great deal longer than I would have
done; were it not for the interest of those pledges, that a saint
in heaven left me, I should be loath, my lords [here his weeping
stopped him]--what I forfeit for myself is nothing; but I confess
that my indiscretion should forfeit for them, it wounds me very
deeply; you will be pleased to pardon my importunity, something I
should have said, but I see I shall not be able, and therefore I
will leave it....”[62]
%KING PROPOSES A COMPROMISE.%
And then lifting up his hands and eyes, he said, ‘In te, Domine,
confido ne confundar in æternum.’ Strafford’s defence had laid bare
the real principle at issue, as far as the court was concerned. A law
has a relation to the innocent as well as to the guilty. If the law of
high treason meant that those guilty of such and such crimes should
die, it meant just as much that those not guilty of them should have
their lives safe, as far as the crime of treason was concerned. Such
stretching of a law might be as dangerous to the liberty of the subject
as the offences with which Strafford was charged. For if the words,
‘compassing the king’s death’ should at one time be made to include
a scheme of subverting the laws, they might, he argued, at another
be made to include some other offence equally far from their literal
meaning, and thus men’s lives, finding no protection in the law, would
lie at the mercy of any party in power. Strafford carried his judges
with him in thus repelling the charge of compassing the king’s death.
Peers indeed had no wish to extend the responsibility of ministers
too far. The prosecutors, however, felt that the extension of this
principle was the only security for their lives; they considered that
the simple meaning of the words could not be trusted as a complete
exponent of the cases included, without implying a perfection of form
in English law which did not exist, and that the gist of his argument
was, that a malefactor who found a new way to break the principle of
a law should get the benefit of his ability at the expense of their
liberties, while, as to the possibility of future consequences from
such straining of law, they felt that their chief fear in that respect
was from Strafford himself. It had fallen to Pym to reply to the earl’s
defence. As he ended his speech, he caught the eye of his old friend
earnestly fixed upon him: he faltered, turned over his papers, and,
with difficulty recovering himself, asked their lordships to close the
proceedings for the day. Strafford’s friends, meanwhile, were not idle.
The queen, fond of exercising power, and anxious to avert this blow
to royalty, now exerted herself in his behalf. Torch in hand, she was
nightly to be found holding conferences with popular lords, offering
them, as she thought, all they could desire, if only they would save
Strafford’s life.[63]
♦Opposition refuse office.♦ A compromise was proposed: Charles offered
to form a ministry out of the opposition leaders both in Lords and
Commons; the Earl of Bedford was to be treasurer; St. John, a member of
the Commons, had already been made solicitor-general; places were to
be found for the Earl of Essex, for Hampden, Pym, Hollis, and others.
The new ministry, on their side, were to allow Strafford to escape with
his life, and to ward off any attack made against the bishops by the
Presbyterians. The compromise, however, was never effected. Bedford
died, Essex was not to be persuaded: “Stone dead,” said the blunt,
plain-spoken earl, “hath no fellow;[64] if he be fined or imprisoned,
the king will grant him his pardon as soon as the Parliament is ended.”
Pym and Hampden were not less far-sighted than Essex, and had even
better reasons for distrusting any advances from the king.
%ARMY PLOT REVEALED.%
♦Army plot.♦ The Scottish and English armies were still in the northern
counties, awaiting the ratification of the treaty, after which the
one was to be disbanded and the other to return to Scotland. The
Parliament, looking upon the Scots as friends, who would, in case of
need, render assistance against the king, had voted them £300,000 as
a free gift. But the English army had no love for the Parliament,
which had no wish to do anything for them. The soldiers had become
discontented because their pay was in arrear, while of the officers,
many were Catholics, almost all devoted partisans of the king.
Ill-feeling towards the Parliament was so general, that some of the
leading officers in London ventured on talking over with the queen an
ill-matured plan of bringing up the army to coerce the Parliament.
Charles gave his assent, though at the very time he was negotiating
with the leaders of the Parliament. Naturally he would sooner have seen
Hampden, Pym, and Essex changing places with Strafford and Laud in the
Tower, than have had them sitting by his side in the council chamber.
Still, such a double-dealing game was a hazardous one to play, and Pym
was not an easy man to overreach: he had his spies abroad to tell him
the tavern discourse of too sanguine officers; he had his friends even
in the court circle; in fact, the whole plan had been betrayed by Lord
Goring, one of the conspirators, and Pym was only holding back his
knowledge from the Parliament until he should find the fittest moment
for revealing it. While these negotiations and army plots were going
on behind the scenes, the nation still had its attention fixed on the
Bill of Attainder, which did not easily make its way through the Lords.
Charles tried to intimidate by threatening to refuse his assent. He
summoned the two Houses, and told them that he did not consider the
earl fit to serve him even in the position of a constable, but that no
fear, no respect whatsoever should make him act against his conscience
in consenting to his death (1st May). But if the king threatened
on the one side, the people threatened on the other. The next day
was Sunday; the London pulpits preached the duty of justice upon a
great delinquent. By the Monday London was roused; some thousands of
apprentices and others, armed with swords and cudgels, gathered around
Westminster Hall, crying, ‘Justice on Strafford, justice on traitors,’
and demanding from every lord as he went into the house, ‘that they
might have speedy execution on the earl, or they were all undone, their
wives and children.’ The Lords, dismayed at their violence, spoke them
fair, and sent word to the Commons to demand aid in suppressing the
tumult. But the messenger could gain no admittance; the doors of the
Commons’ house had been locked since seven o’clock in the morning, and
remained locked until eight o’clock that evening. Within, fear, horror,
and amazement sat on the faces of the members, for Pym was revealing
to them, not only that grand idea of bringing up the army to crush the
Parliament, but various other desperate designs formed by the friends
of Strafford; how there was a plan of sending a hundred picked men into
the Tower, where Strafford was confined, under the name of a guard; how
bribery had been attempted on the governor to let his prisoner escape;
how, lastly, there was some dark design of bringing over a French force
into Portsmouth.
A protestation was drawn up on Pym’s motion, to defend the privileges
of Parliament and the lawful rights of the people, and signed by every
member present. Hyde, who had written his name second on the list, took
it up to the Lords himself to receive their signatures.[65] Great was
the panic in London when the doors of the Commons were unbarred. To
think of an army led by Royalist and Papist officers, marching into
their city, the stronghold of Presbyterian faith! Rumours of plots,
true and false, were in every man’s mouth, and easily found credence.
The Lords began to think their own lives in danger from the populace,
if they delayed the trial any longer. Having already voted the facts
of some of the articles of impeachment proved, they now appealed to the
judges on the question of law. The judges unanimously declared ‘that
upon all their lordships had voted to be proved, the earl was guilty
of high treason.’
♦Lords pass Bill of Attainder.♦ On this the Lords passed the Bill of
Attainder, voting the earl guilty, not upon all the articles, but
only upon the fifteenth, the quartering of troops upon the people of
Ireland, and the nineteenth, the imposing an unlawful oath upon the
Scots in Ireland. In voting on the bill, it is important to observe,
that they acted as nearly as possible as if they had been giving
judgment on the impeachment, for they used the forms in which they were
accustomed to vote as judges, not as legislators.[66] Thirty-four lords
stayed away; twenty-six voted for the bill, nineteen against it (7th
May).
Strafford’s warning that the precedent of the case might be used
against others no doubt had weight with many who had supported the
king in unconstitutional acts, but these only succeeded in protecting
themselves so far as to insert a clause in the bill, to the effect that
the judges should count nothing as treason in consequence of this bill
which was not treason before. As the judges had pronounced the acts
were treason, the clause was unmeaning. But now Charles’ turn was come.
If he had in him the courage to resist, if not to resent, intimidation,
in these desperate circumstances he had still the opportunity of
securing one of two triumphs, either of saving the life of the earl,
or of throwing on Parliament the reproach of executing him against
law, for that he possessed the legal right to refuse his consent to
any bill was at that time undisputed. It might have been thought,
therefore, that the king would have been glad of the substitution of
the bill for the impeachment, since the change gave him an opportunity
of making good his promises to Strafford. But these were not Charles’
feelings. His chief misery lay not in the fact that Strafford must
die, but that his own hand must consent to his death. The angry rabble
followed him to Whitehall, with their shouts of “justice, justice, we
will have justice.” The queen wept bitterly, in fear, it seems, for her
own safety, as she began to make preparations to leave the country.
♦Charles passes Bill of Attainder.♦ In anguish of soul Charles asked
his councillors how the rioters were to be suppressed; they bade him
please his Parliament and pass the Bill of Attainder: he asked five
bishops how he was to remove his scruples of conscience; all but one
told him he had both a public and a private conscience, and that the
duty of saving the life of a friend or servant was as nothing compared
with that of preserving his kingdom. The same day a letter was handed
him from the earl bidding him pass the bill--“Sire, my consent shall
more acquit you herein to God than all the world can do besides; to a
willing man there is no injury done.”
“My Lord of Strafford’s condition,” said Charles, “is more happy than
mine.”[67] He shed tears, but sent a commission for others to sign
the bill, a mode of relieving his conscience suggested to him by his
council. ‘Put not your trust in princes, nor in the sons of men, for
in them there is no salvation,’ Strafford exclaimed when told that the
king had consented to his death. After passing the bill, Charles sent
a letter to the House of Lords by the hands of the Prince of Wales,
requesting the Parliament to commute the punishment of death into that
of perpetual imprisonment; the letter, however, had a postscript:
‘If he must die, it were charity to reprieve him till Saturday.’ But
the discovery of the plot for Strafford’s release had made longer
imprisonment impossible, and the House ordered the execution for the
next day (12th May).
♦Question of justice of Strafford’s conviction♦ In forming a judgment
on the justice of the conviction upon which Strafford suffered, we
must recall the various points--that the lawyers and judges in serving
the interests of the crown, had really enlarged the statute; that
undoubtedly the earl had technically offended against the law, by
quartering troops to coerce the people; that the Commons heard the
points of law argued at length in their house, and decided that his
acts fell within the provision of the statute, before they passed the
third reading of the bill; that after this the judges declared that
the facts voted to be proved amounted to high treason by law; that
the Lords, by voting judicially upon the bill, were acting as supreme
judges when they also declared that in their view the offences came
within the statute; and lastly, that proceeding by bill only gave the
king a chance of exercising his prerogative of mercy, which he would
not otherwise have had. Briefly put, the case would amount to this,
that the judicial competence of the House of Lords was unquestioned,
but in this case Strafford’s peers, acting simply as a jury, declared
certain facts proved, the judges of the land declared the law on these
facts against him, and the peers then pronounced the verdict; and
though the fact that the conviction itself was on small and technical
grounds might well be pleaded as an extenuating circumstance to
reprieve him from the full punishment of death, yet his own conduct
towards others deprived him of any such claim to exceptional mercy. It
has hardly been sufficiently observed that, whatever the contemplated
object of the bill, its actual effect was not to enlarge the statute
retrospectively, but only to alter the procedure. If we apply the
standard of the nineteenth century to judge of the procedure of the
seventeenth, we shall say that this conviction of treason was not just,
though it was far more just than any other of that day.
So far as to the technical issue. At the bar of history, Strafford is
arraigned as a traitor to the constitution. He is proved guilty by the
undoubted evidence of his own correspondence. The two restraints on
the executive are, the freedom of Parliament and the independence of
the judges. According to Strafford’s scheme, judges were to receive
percentages on verdicts for the crown, and dismissal for verdicts
against it. Parliament was only to vote subsidies, and not inquire into
grievances. Discontent at grievances unredressed was to be quelled by a
standing army. This standing army was to be supported by taxes levied,
like ship-money, on the sole authority of the crown. If we turn now to
Pym’s ideal, since realized, and look upon this picture and on that,
we shall with Hallam ‘distrust any one’s attachment to the English
constitution, who reveres the name of the Earl of Strafford.’
FOOTNOTES:
[52] He had succeeded his father (Sir H. Cary, Deputy of Ireland), as
second Viscount of Falkland, in the county of Fife, in Scotland. He sat
as burgess for Newport, Scotch peers being eligible before the Act of
Union (1707).
[53] Lord Falkland felt and spoke strongly on the extra-judicial
opinion the judges had given at Charles’ request, on the king’s right
to ship-money. “No meal undigested,” he said, “can lie heavier upon
the stomach than that unsaid would have lain upon my conscience.”
He complained that the judges, “the persons who should have been as
dogs to defend the flock, have become the wolves to devour it;” that
they had exceeded their functions, “being judges of law and not of
necessity, that is, being judges and not philosophers or politicians;”
that to justify the plea of necessity, they have “supposed mighty
and eminent dangers in the most quiet and halcyon days, but a few
contemptible pirates being our most formidable enemies;” they also
“supposing the supposed doings to be so sudden that it could not stay
for a Parliament which required but a forty days’ stay, allowed to
the king the sole power in necessity, the sole judgment of necessity,
and by that enabled him to take from us what he would, when he would,
and how he would.” He especially declaimed against the Chief Justice
(at this time Lord Keeper) Finch, who importuned the other judges “as
a most admirable solicitor, but a most abominable judge.”... “He it
was who gave away with his breath what our ancestors have purchased
with so long expense of their time, their care, their treasures, and
their bloods, and strove to make our grievances mortal and our slavery
irreparable,” ... “he who hath already undone us by wholesale [and now
as chancellor] hath the power of undoing us by retail.”--MSS. Clarendon
Papers, No. 1464, and Rushworth.
[54] Wentworth created Earl of Strafford, 12 Jan. 1640.
[55] See page 34.
[56] May, Long Parl., 54; Baillie, i. 222.
[57] Baillie, i. 259, 265.
[58] See page 23.
[59] Jardine: Criminal Trials.
[60] Bills of Attainder were first introduced by Henry VIII. The last
instance of the legislature’s passing a Bill of Attainder, was in the
case of Sir John Fenwick, in the reign of William III. See a remarkably
clear statement of the character of such bills in Macaulay’s Hist., c.
22 and 23.
[61] It is a significant fact that, among the Clarendon State Papers at
Oxford, none are to be found relating to Strafford’s trial. As there
must have been such, it is presumed that Hyde destroyed them, wishing
to conceal that he had acted on the popular side. His name is not in
the list of ‘Straffordians.’
[62] Nalson, ii. 123.
[63] De Motteville, i.
[64] Clar. Hist., i. 395.
[65] Forster: Lives of British Statesmen, iii. 185. Grand Remonstrance.
[66] The difference between voting on a Bill of Attainder and an
impeachment is, that in giving judgment on the latter a peer professed
to be bound by the letter of the jaw and of the rules of evidence;
in voting for the former, though bound by the spirit, he professedly
held himself emancipated from the letter. Further, there was a great
difference in form. In voting for a bill a peer says ‘aye’ in his seat,
and if a division is called, walks in silence past the teller of his
side; in voting on an impeachment each peer stands up in his place,
puts his hand on his breast, and says, ‘Guilty (or not) on my honour.’
[67] Radcliffe’s Life in Straff. Despatches.