Cassell's History of England, Vol. 2 (of 8) / From the Wars of the Roses to the Great Rebellion

by Anonymous

On the 12th, charge was made against Strafford in court, who replied that old Vane was his most inveterate enemy; that, as was most probable, if he had delivered this paper to his son, he had been guilty of an unpardonable breach of his oath as a Privy Councillor, to preserve the king's secrets, and was therefore totally unworthy of credit; that he had been strictly examined on what passed at that Council, and at first denied all memory of any such words spoken by him, Strafford, on that occasion; and even on his third examination, after having been shown this paper, he had only recollected he had spoken these words, or some like them; that such words and such counsel were not likely to be soon forgotten; yet, of eight Privy Councillors then present, none of those whose evidence could be obtained could remember any such words, except the Earl of Northumberland, who thought he recollected such words as those—"of being absolved from all rules of government." The Archbishop of Canterbury and Windebank were not present to give their evidence; but the Marquis of Hamilton, Bishop Juxon, and Lord Cottington, could remember no such words. Even had he used the words, it depended much on whether the phrase "this kingdom" meant England or Scotland; that the country under debate was Scotland, and he had demanded of Vane, whether the word used was really "this" or "that." And further, could the authority of this paper be established, it would not establish a charge of treason, for the law demanded the evidence of two witnesses, and this was but the evidence of one.

Pym therefore put in the verified copy of the paper, for the paper itself having been laid on the table of the Committee of Commons, had been purloined, and was never afterwards recovered. That in the possession of Charles was in the handwriting of Digby, which brought him under suspicion. Pym contended that the evidence of the minute itself, and that of Sir Henry Vane, amounted to the required proofs of the law, being two witnesses against the earl. The Lord Steward, Arundel, then called on Strafford to say whether he had any observations to make on this additional proof, and he replied most eloquently:—

"Where has this species of guilt lain so long concealed? Where has this fire been so long buried during so many centuries, that no smoke should appear till it burst out at once, to consume me and my children? Better it were to live under no law at all, than to fancy we have a law on which we can rely, and find at last that this law preceded its promulgation, and try us by maxims unheard of till the moment of the prosecution. If I sail on the Thames, and split my vessel on an anchor, in case there be no buoy to give warning, the party shall pay me damages; but if the anchor be marked out, then is the striking on it at my own peril. But where is the mark set upon this crime? Where the token by which I should discover it?

"It is now full two hundred and forty years since treasons were defined, and so long has it been since any man was touched to this extent upon this crime before myself. We have lived, my lords, happily to ourselves at home; we have lived gloriously abroad in the world; let us be content with what our fathers have left us; let not an ambition carry us to be more learned than they were in these killing and destructive acts. My lords, be pleased to give that regard to the peerage of England, as never to expose yourselves to such moot points, such constructive interpretations of law. If there must be a trial of wits, let the subject matter be of somewhat else than the lives and honours of peers. It will be wisdom for yourselves, for your posterity, and for the whole kingdom, to cast into the fire these bloody and mysterious volumes of constructive and arbitrary treason, as the primitive Christians did their books of curious arts, and betake yourselves to the plain letter of the statute, which tells you where the crime is, and points out the path by which you may avoid it....

"My lords, I have now troubled your lordships a great deal longer than I should have done, were it not for the interest of these pledges which a saint in heaven left me. I should be loth——" here he pointed to his children, and his weeping stopped him. "What I forfeit for myself is nothing, but that my indiscretion should extend to my posterity, I confess, 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 shall leave it. And now, my lords, I thank God that I have been by His blessing sufficiently instructed in the vanity of all temporary enjoyments, compared to the importance of an eternal duration. And so, my lords, even so with all tranquillity of mind, I submit clearly and freely to your judgment; and whether that righteous doom shall be life or death, I shall repose myself, full of gratitude and confidence, in the arms of the great Author of my existence—'In te Domine confido: non confundar in æternum.'"

What the effect of this address must have been, may be inferred from the observations of Whitelock, the chairman of the Committee which was conducting the prosecution:—"Certainly, never any man acted such a part on such a theatre, with more wisdom, constancy, and eloquence; with greater reason, judgment, and temper; and with a better grace in all his words and actions, than did this great and excellent person, so that he moved the hearts of all his auditors, some few excepted, to remorse and pity."

The Commons were alarmed at the effect of the trial. The production of Vane's paper had been a blow enough to have sunk another man, but the extraordinary eloquence and address of Strafford seemed to have effaced even that; they had little faith in procuring a verdict from the Lords in their present course, and they resolved to change their plan, and proceed against the offender by a Bill of Attainder. They have been accused of adopting the arbitrary measures of Henry VIII. in so doing, and of depriving Strafford of the fair influence of his trial; but we, who enjoy the benefit of their deed, ought not to join in that cry. Strafford was guilty, if ever man was, of the most atrocious attempt that a man can entertain—that of destroying the liberties of his country. The laws had been so framed, from royal bias, as not duly to designate his crime; but not for that, nor for any temporary feeling of pity raised by his admirable defence, did these patriots mean to allow of his escape. But in the House of Commons the Bill of Attainder met with unexpected opposition from one of the most zealous of the Reformers, Lord Digby. He saw, like the rest, that technically they could not condemn Strafford for high treason as the law then stood, and he feared the precedent of condemning men under a show of law that did not exist. It was, in fact, too much imitating the king. It was a real difficulty, which the patriots had not sufficiently foreseen. Instead of charging him with treason, as it was then defined, they should first have remodelled the law, or have charged Strafford with the violation of the national guarantee of Magna Charta, on which there could be no doubt, and for which he was well worthy of death; but it was too late to retrace their steps, and they were obliged to condemn him for the unquestionable crime of treason against the nation, making the act of the Legislature in all its branches an extension of the law. Digby himself did not question his guilt. He said "he believed him still that grand apostate to the commonwealth, who must not expect to be pardoned in this world till he be despatched to the other;" but he pleaded that on the ground of law he should have his life spared. But the Commons knew that while he lived there was no security. On the first occasion the king would pardon and restore him, and all their labour would be thrown away. They sought, therefore, to erect Parliament in so great an emergency into a court of equity as well as of law, believing that what was decreed by both Houses, and had the sanction of the Crown, was and would be a law of itself. They did not, like the Tudors and the Stuarts, seek to condemn him by setting aside the established courts and trial by jury; they gave him the highest court in the realm, and a full trial by his peers, and by their Bill they now called for a verdict.

But that verdict was not obtained without a great struggle. In the Commons it was warmly debated, and it was not till the eleventh day, the 21st of April, that it was carried by a vast majority. Only fifty-four, or, according to Whitelock, fifty-nine members voted against the Bill, and the next morning the names of these were placarded in the streets as "Straffordians," who, to allow a traitor to escape, would betray their country. The Lords, who had been greatly influenced by Strafford's speeches, and his confident exposition of the law, displayed no alacrity to pass the Bill of Attainder through their House; but they soon found themselves exposed to the pressure from without. The nation had made up its mind to the punishment of the man who had advised the king to reduce them to the condition of serfs; and the Lords could not appear anywhere without being pursued by cries of "Justice! justice on the traitor!" Vast crowds surrounded the Parliament House, uttering the same demands, and a petition was carried up from the City, signed by many thousands. The country was terrified by rumours of insurrections and invasions, which were made plausible by the lately discovered plot for marching the army of York on London, and the Court preparations for rescuing and getting away Strafford. There is also clear evidence from the despatches of Rosetti, who was in the confidence of the queen, that the king had ordered the fortifications of Portsmouth to be strengthened; and the command of the fortress was given to Goring, that Charles might have a place of retreat if he was obliged to quit London, and an opening for the landing of troops from France or Holland, whom he might prevail on to come to his assistance.

In carrying up the Bill to the Lords, the Attorney-General, St. John, had endeavoured to get rid of the legal objections to the death of Strafford, by saying that laws were made for the protection of the peaceable and the innocent, not for those who broke all law for the destruction of the people. This was a dangerous doctrine, and did not at all mend the matter; he did not see that the real strength and justification of the case lay in the three branches of the Legislature interpreting the law as extending to the State and Constitution altogether, and by their united act rendering it law.

In the meantime, the anxiety and perplexity of the king became excruciating. He had clearly, by his confident assertions of protection, drawn Strafford into the snare, and if the Lords passed the Bill, how was he, by his own decayed authority, to defend him? He had previously sought the aid of the Earl of Bedford, who was the most influential of the peers, and promised him the disposal of all the great offices of State, on condition that Strafford's life should be spared. Bedford had accepted it, but just at this crisis he fell sick and died. Clarendon says, of his own knowledge, that it was the plan of Bedford to give the king the excise as a settled source of income, and thus extricate him out of all his troubles,—the very thing which was afterwards granted to his son, Charles II. On Bedford's death, Lord Say accepted the same position on the same terms; and it is asserted by Clarendon that it was by his advice that Charles now took a step that proved very fatal. He proceeded to the House of Lords on the 1st of May, whilst the Bill of Attainder was still before it, and calling for the Commons, informed them that having, as they knew, been constantly present at the trial of Strafford, he was perfectly familiar with all that had been advanced on both sides, and that the serious conclusion at which he had arrived was that he was not guilty of treason, and, therefore, in his conscience, he could not condemn him if the Bill were passed and came to him. "It was not," he said, "for him to argue the matter with them; his place was to utter a single decision. But," he continued, "I must tell you three great truths:—First, I never had any intention of bringing over the Irish army into England, nor ever was advised by any one to do so. Second, there never was any debate before me, either in public council or private committee, of the disloyalty or disaffection of my English subjects. Third, I was never counselled by any to alter the least of any of the laws of England, much less alter all the laws."