When Strafford was called over to England, he found every thing falling into such confusion, by the open rebellion of the Scots, and the secret discontents of the English, that, if he had counselled or executed any violent measure, he might perhaps have been able to apologize for his conduct from the great law of necessity, which admits not, while the necessity is extreme, of any scruple, ceremony, or delay.[**] But, in fact, no illegal advice or action was proved against him; and the whole amount of his guilt, during this period, was some peevish, or at most imperious expressions, which, amidst such desperate extremities, and during a bad state of health, had unhappily fallen from him.
* Rush. vol. iv. p. 187.
** Rush. vol. iv. p. 559.
If Strafford’s apology was in the main so satisfactory when he pleaded to each particular article of the charge, his victory was still more decisive when he brought the whole together, and repelled the imputation of treason; the crime which the commons would infer from the full view of his conduct and behavior. Of all species of guilt, the law of England had with the most scrupulous exactness defined that of treason; because on that side it was found most necessary to protect the subject against the violence of the king and of his ministers. In the famous statute of Edward III., all the kinds of treason are enumerated; and every other crime, besides such as are there expressly mentioned, is carefully excluded from that appellation. But with regard to this guilt, “an endeavor to subvert the fundamental laws,” the statute of treasons is totally silent: and arbitrarily to introduce it into the fatal catalogue, is itself a subversion of all law; and under color of defending liberty, reverses a statute the best calculated for the security of liberty that had ever been enacted by an English parliament.
As this species of treason, discovered by the commons, is entirely new and unknown to the laws, so is the species of proof by which they pretend to fix that guilt upon the prisoner. They have invented a kind of accumulative or constructive evidence, by which many actions either totally innocent in themselves, or criminal in a much inferior degree, shall, when united, amount to treason, and subject the person to the highest penalties inflicted by the law. A hasty and unguarded word, a rash and passionate action, assisted by the malevolent fancy of the accuser, and tortured by doubtful constructions, is transmuted into the deepest guilt; and the lives and fortunes of the whole nation, no longer protected by justice, are subjected to arbitrary will and pleasure.
“Where has this species of guilt lain so long concealed?” said Strafford in conclusion. “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, and by the maxims of cautious prudence to conform ourselves the best we can to the arbitrary will of a master, than fancy we have a law on which we can rely, and find at last, that this law shall inflict a punishment precedent to the promulgation, and try us by maxims unheard of till the very 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. Where is the mark set upon this crime? where the token by which I should discover it? It has lain concealed under water; and no human prudence, no human innocence, could save me from the destruction with which I am at present threatened.
“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 to the world: let us be content with what our fathers have left us.*let not our ambition carry us to be more learned than they were in these killing and destructive arts. Great wisdom it will be in your lordships, and just providence for yourselves, for your posterities, for the whole kingdom, to cast from you into the fire these bloody and mysterious volumes of arbitrary and constructive treasons, 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 to you the path by which you may avoid it.
“Let us not, to our own destruction, awake those sleeping lions, by rattling up a company of old records which have lain for so many ages by the wall, forgotten and neglected. To all my afflictions, add not this, my lords, the most severe of any; that I, for my other sins, not for my treasons, be the means of introducing a precedent so pernicious to the laws and liberties of my native country.
“However, these gentlemen at the bar say they speak for the commonwealth, and they believe so; yet, under favor, it is I who, in this particular, speak for the commonwealth. Precedents like those which are endeavored to be established against me, must draw along such inconveniencies and miseries, that in a few years the kingdom will be in the condition expressed in a statute of Henry IV.; and no man shall know by what rule to govern his words and actions.
“Impose not, my lords, difficulties insurmountable upon ministers of state, nor disable them from serving with cheerfulness their king and country. If you examine them, and under such severe penalties, by every grain, by every little weight, the scrutiny will be intolerable. The public affairs of the kingdom must be left waste; and no wise man, who has any honor or fortune to lose, will ever engage himself in such dreadful, such unknown perils.
“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 loath—” (Here he pointed to his children, and his weeping stopped him.) “What I forfeit for myself, it is nothing: but, I confess, that my indiscretion should forfeit for them, it wounds me very deeply. You will be pleased to pardon my infirmity: something I should have said; but I see I shall not be able, and therefore I shall leave it.