Critical and Historical Essays. Volume 1

How persecution protects churches and thrones was soon made manifest. A systematic political opposition, vehement, daring, and inflexible, sprang from a schism about trifles, altogether unconnected with the real interests of religion or of the state. Before the close of the reign of Elizabeth this opposition began to show itself. It broke forth on the question of the monopolies. Even the imperial Lioness was compelled to abandon her prey, and slowly and fiercely to recede before the assailants. The spirit of liberty grew with the growing wealth and intelligence of the people. The feeble struggles and insults of James irritated instead of suppressing it; and the events which immediately followed the accession of his son portended a contest of no common severity, between a king resolved to be absolute, and a people resolved to be free.

The famous proceedings of the third Parliament of Charles, and the tyrannical measures which followed its dissolution, are extremely well described by Mr. Hallam. No writer, we think, has shown, in so clear and satisfactory a manner, that the Government then entertained a fixed purpose of destroying the old parliamentary constitution of England, or at least of reducing it to a mere shadow. We hasten, however, to a part of his work which, though it abounds in valuable information and in remarks well deserving to be attentively considered, and though it is, like the rest, evidently written in a spirit of perfect impartiality, appears to us, in many points, objectionable.

We pass to the year 1640. The fate of the short Parliament held in that year clearly indicated the views of the king. That a Parliament so moderate in feeling should have met after so many years of oppression is truly wonderful. Hyde extols its loyal and conciliatory spirit. Its conduct, we are told, made the excellent Falkland in love with the very name of Parliament. We think, indeed, with Oliver St. John, that its moderation was carried too far, and that the times required sharper and more decided councils. It was fortunate, however, that the king had another opportunity of showing that hatred of the liberties of his subjects which was the ruling principle of all his conduct. The sole crime of the Commons was that, meeting after a long intermission of parliaments, and after a long series of cruelties and illegal imposts, they seemed inclined to examine grievances before they would vote supplies. For this insolence they were dissolved almost as soon as they met.

Defeat, universal agitation, financial embarrassments, disorganisation in every part of the government, compelled Charles again to convene the Houses before the close of the same year. Their meeting was one of the great eras in the history of the civilised world. Whatever of political freedom exists either in Europe or in America has sprung, directly or indirectly, from those institutions which they secured and reformed. We never turn to the annals of those times without feeling increased admiration of the patriotism, the energy, the decision, the consummate wisdom, which marked the measures of that great Parliament, from the day on which it met to the commencement of civil hostilities.

The impeachment of Strafford was the first, and perhaps the greatest blow. The whole conduct of that celebrated man proved that he had formed a deliberate scheme to subvert the fundamental laws of England. Those parts of his correspondence which have been brought to light since his death, place the matter beyond a doubt. One of his admirers has, indeed, offered to show “that the passages which Mr. Hallam has invidiously extracted from the correspondence between Laud and Strafford, as proving their design to introduce a thorough tyranny, refer not to any such design, but to a thorough reform in the affairs of state, and the thorough maintenance of just authority.” We will recommend two or three of these passages to the especial notice of our readers.

All who know anything of those times, know that the conduct of Hampden in the affair of the ship-money met with the warm approbation of every respectable Royalist in England. It drew forth the ardent eulogies of the champions of the prerogative and even of the Crown lawyers themselves. Clarendon allows Hampden’s demeanour through the whole proceeding to have been such, that even those who watched for an occasion against the defender of the people, were compelled to acknowledge themselves unable to find any fault in him. That he was right in the point of law is now universally admitted. Even had it been otherwise, he had a fair case. Five of the judges, servile as our Courts then were, pronounced in his favour. The majority against him was the smallest possible. In no country retaining the slightest vestige of constitutional liberty can a modest and decent appeal to the laws be treated as a crime. Strafford, however, recommends that, for taking the sense of a legal tribunal on a legal question, Hampden should be punished, and punished severely, “whipt,” says the insolent apostate, “whipt into his senses. If the rod,” he adds, “be so used that it smarts not, I am the more sorry.” This is the maintenance of just authority.

In civilised nations, the most arbitrary governments have generally suffered justice to have a free course in private suits. Strafford wished to make every cause in every court subject to the royal prerogative. He complained that in Ireland he was not permitted to meddle in cases between party and party. “I know very well,” says he, “that the common lawyers will be passionately against it, who are wont to put such a prejudice upon all other professions, as if none were to be trusted, or capable to administer justice, but themselves: yet how well this suits with monarchy, when they monopolise all to be governed by their year-books, you in England have a costly example.” We are really curious to know by what arguments it is to be proved, that the power of interfering in the law-suits of individuals is part of the just authority of the executive government.

It is not strange that a man so careless of the common civil rights, which even despots have generally respected, should treat with scorn the limitations which the constitution imposes on the royal prerogative. We might quote pages: but we will content ourselves with a single specimen: “The debts of the Crown being taken off, you may govern as you please: and most resolute I am that may be done without borrowing any help forth of the King’s lodgings.”

Such was the theory of that thorough reform in the state which Strafford meditated. His whole practice, from the day on which he sold himself to the court, was in strict conformity to his theory. For his accomplices various excuses may be urged; ignorance, imbecility, religious bigotry. But Wentworth had no such plea. His intellect was capacious. His early prepossessions were on the side of popular rights. He knew the whole beauty and value of the system which he attempted to deface. He was the first of the Rats, the first of those statesmen whose patriotism has been only the coquetry of political prostitution, and whose profligacy has taught governments to adopt the old maxim of the slave-market, that it is cheaper to buy than to breed, to import defenders from an Opposition than to rear them in a Ministry. He was the first Englishman to whom a peerage was a sacrament of infamy, a baptism into the communion of corruption. As he was the earliest of the hateful list, so was he also by far the greatest; eloquent, sagacious, adventurous, intrepid, ready of invention, immutable of purpose, in every talent which exalts or destroys nations pre-eminent, the lost Archangel, the Satan of the apostasy. The title for which, at the time of his desertion, he exchanged a name honourably distinguished in the cause of the people, reminds us of the appellation which, from the moment of the first treason, fixed itself on the fallen Son of the Morning,

“Satan;—so call him now—His former nameIs heard no more in heaven.”

The defection of Strafford from the popular party contributed mainly to draw on him the hatred of his contemporaries. It has since made him an object of peculiar interest to those whose lives have been spent, like his, in proving that there is no malice like the malice of a renegade; Nothing can be more natural or becoming than that one turncoat should eulogize another.

Many enemies of public liberty have been distinguished by their private virtues. But Strafford was the same throughout. As was the statesman, such was the kinsman and such the lover. His conduct towards Lord Mountmorris is recorded by Clarendon. For a word which can scarcely be called rash, which could not have been made the subject of an ordinary civil action, the Lord Lieutenant dragged a man of high rank, married to a relative of that saint about whom he whimpered to the peers, before a tribunal of slaves. Sentence of death was passed. Everything but death was inflicted. Yet the treatment which Lord Ely experienced was still more scandalous. That nobleman was thrown into prison, in order to compel him to settle his estate in a manner agreeable to his daughter-in-law, whom, as there is every reason to believe, Strafford had debauched. These stories do not rest on vague report. The historians most partial to the minister admit their truth, and censure them in terms which, though too lenient for the occasion, was too severe. These facts are alone sufficient to justify the appellation with which Pym branded him “the wicked Earl.”

In spite of all Strafford’s vices, in spite of all his dangerous projects, he was certainly entitled to the benefit of the law; but of the law in all its rigour; of the law according to the utmost strictness of the letter, which killeth. He was not to be torn in pieces by a mob, or stabbed in the back by an assassin. He was not to have punishment meted out to him from his own iniquitous measure. But if justice, in the whole range of its wide armoury, contained one weapon which could pierce him, that weapon his pursuers were bound, before God and man, to employ.

“If he mayFind mercy in the law, ‘tis his: if none,Let him not seek’t of us.”

Such was the language which the Commons might justly use.

Did then the articles against Strafford strictly amount to high treason? Many people, who know neither what the articles were, nor what high treason is, will answer in the negative, simply because the accused person, speaking for his life, took that ground of defence. The journals of the Lords show that the judges were consulted. They answered, with one accord, that the articles on which the earl was convicted amounted to high treason. This judicial opinion, even if we suppose it to have been erroneous, goes far to justify the Parliament. The judgment pronounced in the Exchequer Chamber has always been urged by the apologists of Charles in defence of his conduct respecting ship-money. Yet on that occasion there was but a bare majority in favour of the party at whose pleasure all the magistrates composing the tribunal were removable. The decision in the case of Strafford was unanimous; as far as we can judge, it was unbiassed; and, though there may be room for hesitation, we think, on the whole, that it was reasonable. “It may be remarked,” says Mr. Hallam, “that the fifteenth article of the impeachment, charging Strafford with raising money by his own authority, and quartering troops on the people of Ireland, in order to compel their obedience to his unlawful requisitions, upon which, and upon one other article, not upon the whole matter, the Peers voted him guilty, does, at least, approach very nearly, if we may not say more, to a substantive treason within the statute of Edward the Third, as a levying of war against the King.” This most sound and just exposition has provoked a very ridiculous reply. “It should seem to be an Irish construction this,” says, an assailant of Mr. Hallam, “which makes the raising money for the King’s service, with his knowledge, and by his approbation, to come under the head of levying war on the King, and therefore to be high treason.” Now, people who undertake to write on points of constitutional law should know, what every attorney’s clerk and every forward schoolboy on an upper form knows, that, by a fundamental maxim of our polity, the King can do no wrong; that every court is bound to suppose his conduct and his sentiments to be, on every occasion, such as they ought to be; and that no evidence can be received for the purpose of setting aside this loyal and salutary presumption. The Lords therefore, were bound to take it for granted that the King considered arms which were unlawfully directed against his people as directed against his own throne.

The remarks of Mr. Hallam on the bill of attainder, though, as usual, weighty and acute, do not perfectly satisfy us. He defends the principle, but objects to the severity of the punishment. That, on great emergencies, the State may justifiably pass a retrospective act against an offender, we have no doubt whatever. We are acquainted with only one argument on the other side, which has in it enough of reason to bear an answer. Warning, it is said, is the end of punishment. But a punishment inflicted, not by a general rule, but by an arbitrary discretion, cannot serve the purpose of a warning. It is therefore useless; and useless pain ought not to be inflicted. This sophism has found its way into several books on penal legislation. It admits however of a very simple refutation. In the first place, punishments ex post facto are not altogether useless even as warnings. They are warnings to a particular class which stand in great need of warnings to favourites and ministers. They remind persons of this description that there maybe a day of reckoning for those who ruin and enslave their country in all forms of the law. But this is not all. Warning is, in ordinary cases, the principal end of punishment; but it is not the only end. To remove the offender, to preserve society from those dangers which are to be apprehended from his incorrigible depravity, is often one of the ends. In the case of such a knave as Wild, or such a ruffian as Thurtell, it is a very important end. In the case of a powerful and wicked statesman, it is infinitely more important; so important, as alone to justify the utmost severity, even though it were certain that his fate would not deter others from imitating his example. At present, indeed, we should think it extremely pernicious to take such a course, even with a worse minister than Strafford, if a worse could exist; for, at present, Parliament has only to withhold its support from a Cabinet to produce an immediate change of hands. The case was widely different in the reign of Charles the First. That Prince had governed during eleven years without any Parliament; and, even when Parliament was sitting, had supported Buckingham against its most violent remonstrances.

Mr. Hallam is of opinion that a bill of pains and penalties ought to have been passed; but he draws a distinction less just, we think, than his distinctions usually are. His opinion, so far as we can collect it, is this, that there are almost insurmountable objections to retrospective laws for capital punishment, but that, where the punishment stops short of death, the objections are comparatively trifling. Now the practice of taking the severity of the penalty into consideration, when the question is about the mode of procedure and the rules of evidence, is no doubt sufficiently common. We often see a man convicted of a simple larceny on evidence on which he would not be convicted of a burglary. It sometimes happens that a jury, when there is strong suspicion, but not absolute demonstration, that an act, unquestionably amounting to murder, was committed by the prisoner before them, will find him guilty of manslaughter. But this is surely very irrational. The rules of evidence no more depend on the magnitude of the interests at stake than the rules of arithmetic. We might as well say that we have a greater chance of throwing a size when we are playing for a penny than when we are playing for a thousand pounds, as that a form of trial which is sufficient for the purposes of justice, in a matter affecting liberty and property, is insufficient in a matter affecting life. Nay, if a mode of proceeding be too lax for capital cases, it is, a fortiori, too lax for all others; for in capital cases, the principles of human nature will always afford considerable security. No judge is so cruel as he who indemnifies himself for scrupulosity in cases of blood, by licence in affairs of smaller importance. The difference in tale on the one side far more than makes up for the difference in weight on the other.

If there be any universal objection to retrospective punishment, there is no more to be said. But such is not the opinion of Mr. Hallam. He approves of the mode of proceeding. He thinks that a punishment, not previously affixed by law to the offences of Strafford, should have been inflicted; that Strafford should have been, by act of Parliament, degraded from his rank, and condemned to perpetual banishment. Our difficulty would have been at the first step, and there only. Indeed we can scarcely conceive that any case which does not call for capital punishment can call for punishment by a retrospective act. We can scarcely conceive a man so wicked and so dangerous that the whole course of law must be disturbed in order to reach him, yet not so wicked as to deserve the severest sentence, nor so dangerous as to require the last and surest custody, that of the grave. If we had thought that Strafford might be safely suffered to live in France, we should have thought it better that he should continue to live in England, than that he should be exiled by a special act. As to degradation, it was not the Earl, but the general and the statesman, whom the people had to fear. Essex said, on that occasion, with more truth than elegance, “Stone dead hath no fellow.” And often during the civil wars the Parliament had reason to rejoice that an irreversible law and an impassable barrier protected them from the valour and capacity of Wentworth.

It is remarkable that neither Hyde nor Falkland voted against the bill of attainder. There is, indeed, reason to believe that Falkland spoke in favour of it. In one respect, as Mr. Hallam has observed, the proceeding was honourably distinguished from others of the same kind. An act was passed to relieve the children of Strafford from the forfeiture and corruption of blood which were the legal consequences of the sentence. The Crown had never shown equal generosity in a case of treason. The liberal conduct of the Commons has been fully and most appropriately repaid. The House of Wentworth has since that time been as much distinguished by public spirit as by power and splendour, and may at the present moment boast of members with whom Say and Hampden would have been proud to act.

It is somewhat curious that the admirers of Strafford should also be, without a single exception, the admirers of Charles; for, whatever we may think of the conduct of the Parliament towards the unhappy favourite, there can be no doubt that the treatment which he received from his master was disgraceful. Faithless alike to his people and to his tools, the King did not scruple to play the part of the cowardly approver, who hangs his accomplice. It is good that there should be such men as Charles in every league of villainy. It is for such men that the offer of pardon and reward which appears after a murder is intended. They are indemnified, remunerated and despised. The very magistrate who avails himself of their assistance looks on them as more contemptible than the criminal whom they betray. Was Strafford innocent? Was he a meritorious servant of the Crown? If so, what shall we think of the Prince, who having solemnly promised him that not a hair of his head should be hurt, and possessing an unquestioned constitutional right to save him, gave him up to the vengeance of his enemies? There were some points which we know that Charles would not concede, and for which he was willing to risk the chances of the civil war. Ought not a King, who will make a stand for anything, to make a stand for the innocent blood? Was Strafford guilty? Even on this supposition, it is difficult not to feel disdain for the partner of his guilt, the tempter turned punisher. If, indeed, from that time forth, the conduct of Charles had been blameless, it might have been said that his eyes were at last opened to the errors of his former conduct, and that, in sacrificing to the wishes of his Parliament a minister whose crime had been a devotion too zealous to the interests of his prerogative, he gave a painful and deeply humiliating proof of the sincerity of his repentance. We may describe the King’s behaviour on this occasion in terms resembling those which Hume has employed when speaking of the conduct of Churchill at the Revolution. It required ever after the most rigid justice and sincerity in the dealings of Charles with his people to vindicate his conduct towards his friend. His subsequent dealings with his people, however, clearly showed, that it was not from any respect for the Constitution, or from any sense of the deep criminality of the plans in which Strafford and himself had been engaged, that he gave up his minister to the axe. It became evident that he had abandoned a servant who, deeply guilty as to all others, was guiltless to him alone, solely in order to gain time for maturing other schemes of tyranny, and purchasing the aid of the other Wentworths. He, who would not avail himself of the power which the laws gave him to save an adherent to whom his honour was pledged, soon showed that he did not scruple to break every law and forfeit every pledge, in order to work the ruin of his opponents.

“Put not your trust in princes!” was the expression of the fallen minister, when he heard that Charles had consented to his death. The whole history of the times is a sermon on that bitter text. The defence of the Long Parliament is comprised in the dying words of its victim.

The early measures of that Parliament Mr. Hallam in general approves. But he considers the proceedings which took place after the recess in the summer of 1641 as mischievous and violent. He thinks that, from that time, the demands of the Houses were not warranted by any imminent danger to the Constitution and that in the war which ensued they were clearly the aggressors. As this is one of the most interesting questions in our history, we will venture to state, at some length, the reasons which have led us to form an opinion on it contrary to that of a writer whose judgment we so highly respect.

We will premise that we think worse of King Charles the First than even Mr. Hallam appears to do. The fixed hatred of liberty which was the principle of the King’s public conduct the unscrupulousness with which he adopted any means which might enable him to attain his ends, the readiness with which he gave promises, the impudence with which he broke them, the cruel indifference with which he threw away his useless or damaged tools, made him, at least till his character was fully exposed, and his power shaken to its foundations, a more dangerous enemy to the Constitution than a man of far greater talents and resolution might have been. Such princes may still be seen, the scandals of the southern thrones of Europe, princes false alike to the accomplices who have served them and to the opponents who have spared them, princes who, in the hour of danger, concede everything, swear everything, hold out their cheeks to every smiter, give up to punishment every instrument of their tyranny, and await with meek and smiling implacability the blessed day of perjury and revenge.

We will pass by the instances of oppression and falsehood which disgraced the early part of the reign of Charles. We will leave out of the question the whole history of his third Parliament, the price which he exacted for assenting to the Petition of Right, the perfidy with which he violated his engagements, the death of Eliot, the barbarous punishments inflicted by the Star-Chamber, the ship-money, and all the measures now universally condemned, which disgraced his administration from 1630 to 1640. We will admit that it might be the duty of the Parliament after punishing the most guilty of his creatures, after abolishing the inquisitorial tribunals which had been the instruments of his tyranny, after reversing the unjust sentences of his victims to pause in its course. The concessions which had been made were great, the evil of civil war obvious, the advantages even of victory doubtful. The former errors of the King might be imputed to youth, to the pressure of circumstances, to the influence of evil counsel, to the undefined state of the law. We firmly believe that if, even at this eleventh hour, Charles had acted fairly towards his people, if he had even acted fairly towards his own partisans, the House of Commons would have given him a fair chance of retrieving the public confidence. Such was the opinion of Clarendon. He distinctly states that the fury of opposition had abated, that a reaction had begun to take place, that the majority of those who had taken part against the King were desirous of an honourable and complete reconciliation and that the more violent or, as it soon appeared, the more judicious members of the popular party were fast declining in credit. The Remonstrance had been carried with great difficulty. The uncompromising antagonists of the court such as Cromwell, had begun to talk of selling their estates and leaving England. The event soon showed that they were the only men who really understood how much inhumanity and fraud lay hid under the constitutional language and gracious demeanour of the King.