Constitutional History of England, Henry VII to George II. Volume 2 of 3

by Henry Hallam

Impeachment of Strafford.—Those who know the conduct and character of the Earl of Strafford, his abuse of power in the north, his far more outrageous transgressions in Ireland, his dangerous influence over the king's counsels, cannot hesitate to admit, if indeed they profess any regard to the constitution of this kingdom, that to bring so great a delinquent to justice according to the known process of law was among the primary duties of the new parliament. It was that which all, with scarce an exception but among his own creatures (for most of the court were openly or in secret his enemies),[177] ardently desired; yet which the king's favour and his own commanding genius must have rendered a doubtful enterprise. He came to London, not unconscious of the danger, by his master's direct injunctions. The first days of the session were critical; and any vacillation or delay in the Commons might probably have given time for some strong exertion of power to frustrate their designs. We must therefore consider the bold suggestion of Pym, to carry up to the Lords an impeachment for high treason against Strafford, not only as a master-stroke of that policy which is fittest for revolutions, but as justifiable by the circumstances wherein they stood. Nothing short of a commitment to the Tower would have broken the spell that so many years of arbitrary dominion had been working. It was dissipated in the instant that the people saw him in the hands of the usher of the black rod; and with his power fell also that of his master; so that Charles, from the very hour of Strafford's impeachment, never once ventured to resume the high tone of command congenial to his disposition, or to speak to the Commons but as one complaining of a superior force.[178]

Discussion of its justice.—The articles of Strafford's impeachment relate principally to his conduct in Ireland. For though he had begun to act with violence in the court of York, as lord-president of the North, and was charged with having procured a commission investing him with exorbitant power, yet he had too soon left that sphere of dominion for the lieutenancy of Ireland, to give any wide scope for prosecution, but in Ireland it was sufficiently proved that he had arrogated an authority beyond what the Crown had ever lawfully enjoyed, and even beyond the example of former viceroys of that island, where the disordered state of society, the frequency of rebellions, and the distance from all control, had given rise to such a series of arbitrary precedents, as would have almost excused any ordinary stretch of power.[179] Notwithstanding this, however, when the managers came to state and substantiate their articles of accusation, though some were satisfied that there was enough to warrant the severest judgment, yet it appeared to many dispassionate men that, even supposing the evidence as to all of them to be legally convincing, they could not, except through a dangerous latitude of construction, be aggravated into treason. The law of England is silent as to conspiracies against itself. St. John and Maynard struggled in vain to prove that a scheme to overturn the fundamental laws and to govern by a standing army, though as infamous as any treason, could be brought within the words of the statute of Edward III., as a compassing of the king's death. Nor, in fact, was there any conclusive evidence against Strafford of such a design. The famous words imputed to him by Sir Henry Vane, though there can be little reason to question that some such were spoken, seem too imperfectly reported,[180] as well as uttered too much in the heat of passion, to furnish a substantive accusation; and I should rather found my conviction of Strafford's systematic hostility to our fundamental laws on his correspondence since brought to light, as well as on his general conduct in administration, than on any overt acts proved on his impeachment. The presumption of history, to whose mirror the scattered rays of moral evidence converge, may be irresistible, when the legal inference from insulated actions is not only technically, but substantially, inconclusive. Yet we are not to suppose that the charges against this minister appeared so evidently to fall short of high treason, according to the apprehension of that age, as in later times has usually been taken for granted. Accustomed to the unjust verdicts obtained in cases of treason by the court, the statute of Edward having been perpetually stretched by constructive interpretations, neither the people nor the lawyers annexed a definite sense to that crime. The judges themselves, on a solemn reference by the House of Lords for their opinion, whether some of the articles charged against Strafford amounted to treason, answered unanimously, that upon all which their lordships had voted to be proved, it was their opinion the Earl of Strafford did deserve to undergo the pains and penalties of high treason by law.[181] And, as an apology, at least, for this judicial opinion, it may be remarked that the fifteenth article of the impeachment, charging him 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 one other article, not on the whole matter, the peers voted him guilty), does in fact approach very nearly, if we may not say more, to a substantive treason within the statute of Edward III., as a levying war against the king, even without reference to some Irish acts of parliament upon which the managers of the impeachment relied. It cannot be extravagant to assert that if the colonel of a regiment were to issue an order commanding the inhabitants of the district where it is quartered to contribute certain sums of money, and were to compel the payment by quartering troops on the houses of those who refused, in a general and systematic manner, he would, according to a warrantable construction of the statutes, be guilty of the treason called levying war on the king; and that, if we could imagine him to do this by an order from the privy council or the war office, the case would not be at all altered. On the other hand, a single act of which violence might be (in technical language) trespass, misdemeanour, or felony, according to circumstances; but would want the generality, which, as the statute has been construed, determines its character to be treason. It is however manifest that Strafford's actual enforcement of his order, by quartering soldiers, was not by any means proved to be so frequently done as to bring it within the line of treason; and the evidence is also open to every sort of legal objection. But in that age, the rules of evidence, so scrupulously defined since, were either very imperfectly recognised, or continually transgressed. If then Strafford could be brought within the letter of the law, and was also deserving of death for his misdeeds towards the commonwealth, it might be thought enough to justify his condemnation, although he had not offended against what seemed to be the spirit and intention of the statute. This should, at least, restrain us from passing an unqualified censure on those who voted against him, comprehending undoubtedly the far more respectable portion of the Commons, though only twenty-six peers against nineteen formed the feeble majority on the bill of attainder.[182] It may be observed that the House of Commons acted in one respect with a generosity which the Crown had never shown in any case of treason, by immediately passing a bill to relieve his children from the penalties of forfeiture and corruption of blood.

It is undoubtedly a very important problem in political ethics, whether great offences against the commonwealth may not justly incur the penalty of death by a retrospective act of the legislature, which a tribunal restrained by known laws is not competent to inflict. Bills of attainder had been by no means uncommon in England, especially under Henry VIII.; but generally when the crime charged might have been equally punished by law. They are less dangerous than to stretch the boundaries of a statute by arbitrary construction. Nor do they seem to differ at all in principle from those bills of pains and penalties, which, in times of comparative moderation and tranquillity, have sometimes been thought necessary to visit some unforeseen and anomalous transgression beyond the reach of our penal code. There are many, indeed, whose system absolutely rejects all such retrospective punishment, either from the danger of giving too much scope to vindictive passion, or on some more abstract principle of justice. Those who may incline to admit that the moral competence of the sovereign power to secure itself by the punishment of a heinous offender, even without the previous warning of law, is not to be denied, except by reasoning, which would shake the foundation of his right to inflict punishment in ordinary cases, will still be sensible of the mischief which any departure from stable rules, under the influence of the most public-spirited zeal, is likely to produce. The attainder of Strafford could not be justifiable, unless it were necessary; nor necessary, if a lighter penalty would have been sufficient for the public security.

This therefore becomes a preliminary question, upon which the whole mainly turns. It is one which does not seem to admit of a demonstrative answer; but with which we can perhaps deal better than those who lived at that time. Their distrust of the king, their apprehension that nothing less than the delinquent minister's death could ensure them from his return to power, rendered the leaders of parliament obstinate against any proposition of a mitigated penalty. Nor can it be denied that there are several instances in history, where the favourites of monarchs, after a transient exile or imprisonment, have returned, on some fresh wave of fortune, to mock or avenge themselves upon their adversaries. Yet the prosperous condition of the popular party, which nothing but intemperate passion was likely to impair, rendered this contingency by no means probable; and it is against probable dangers that nations should take precautions, without aiming at more complete security than the baffling uncertainties of events will permit. Such was Strafford's unpopularity, that he could never have gained any sympathy, but by the harshness of his condemnation and the magnanimity it enabled him to display. These have half redeemed his forfeit fame, and misled a generous posterity. It was agreed on all hands that any punishment which the law could award to the highest misdemeanours, duly proved on impeachment, must be justly inflicted. "I am still the same," said Lord Digby, in his famous speech against the bill of attainder, "in my opinions and affections, as unto the Earl of Strafford; I confidently believe him to be the most dangerous minister, the most insupportable of free subjects, that can be charactered. 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."[183] These sentiments, whatever we may think of the sincerity of him who uttered them, were common to many of those who desired most ardently to see that uniform course of known law, which neither the court's lust of power nor the clamorous indignation of a popular assembly might turn aside. The king, whose conscience was so deeply wounded by his acquiescence in this minister's death, would gladly have assented to a bill inflicting the penalty of perpetual banishment; and this, accompanied, as it ought to have been, by degradation from the rank for which he had sold his integrity, would surely have exhibited to Europe an example sufficiently conspicuous of just retribution. Though nothing perhaps could have restored a tolerable degree of confidence between Charles and the parliament, it is certain that his resentment and aversion were much aggravated by the painful compulsion they had put on him, and that the schism among the constitutional party began from this, among other causes, to grow more sensible, till it terminated in civil war.[184]

But, if we pay such regard to the principles of clemency and moderation, and of adherence to the fixed rules of law, as to pass some censure on this deviation from them in the attainder of Lord Strafford, we must not yield to the clamorous invectives of his admirers, or treat the prosecution as a scandalous and flagitious excess of party vengeance. Look round the nations of the globe, and say in what age or country would such a man have fallen into the hands of his enemies, without paying the forfeit of his offences against the commonwealth with his life. They who grasp at arbitrary power, they who make their fellow-citizens tremble before them, they who gratify a selfish pride by the humiliation and servitude of mankind, have always played a deep stake; and the more invidious and intolerable has been their pre-eminence, their fall has been more destructive, and their punishment more exemplary. Something beyond the retirement or the dismissal of such ministers has seemed necessary to "absolve the gods," and furnish history with an awful lesson of retribution. The spontaneous instinct of nature has called for the axe and the gibbet against such capital delinquents. If then we blame, in some measure, the sentence against Strafford, it is not for his sake, but for that of the laws on which he trampled, and of the liberty which he betrayed. He died justly before God and man, though we may deem the precedent dangerous, and the better course of a magnanimous lenity unwisely rejected; and in condemning the bill of attainder, we cannot look upon it as a crime.

Act against dissolution of parliament without its consent.—The same distrustful temper, blamable in nothing but its excess, drew the House of Commons into a measure more unconstitutional than the attainder of Strafford, the bill enacting that they should not be dissolved without their own consent. Whether or not this had been previously meditated by the leaders is uncertain; but the circumstances under which it was adopted display all the blind precipitancy of fear. A scheme for bringing up the army from the north of England to overawe parliament had been discoursed of, or rather in a great measure concerted, by some young courtiers and military men. The imperfection and indefiniteness of the evidence obtained respecting this plot increased, as often happens, the apprehensions of the Commons. Yet, difficult as it might be to fix its proper character between a loose project and a deliberate conspiracy, this at least was hardly to be denied, that the king had listened to and approved a proposal of appealing from the representatives of his people to a military force.[185] Their greatest danger was a sudden dissolution. The triennial bill afforded indeed a valuable security for the future. Yet if the present parliament had been broken with any circumstances of violence, it might justly seem very hazardous to confide in the right of spontaneous election reserved to the people by that statute, which the Crown would have three years to defeat. A rapid impulse, rather than any concerted resolution, appears to have dictated this hardy encroachment on the prerogative. The bill against the dissolution of the present parliament without its own consent was resolved in a committee on the fifth of May, brought in the next day, and sent to the Lords on the seventh. The upper house, in a conference the same day, urged a very wise and constitutional amendment, limiting its duration to the term of two years. But the Commons adhering to their original provisions, the bill was passed by both houses on the eighth.[186] Thus, in the space of three days from the first suggestion, an alteration was made in the frame of our polity, which rendered the House of Commons equally independent of their sovereign and their constituents; and, if it could be supposed capable of being maintained in more tranquil times, would, in the theory at least of speculative politics, have gradually converted the government into something like a Dutch aristocracy. The ostensible pretext was, that money could not be borrowed on the authority of resolutions of parliament, until some security was furnished to the creditors, that those whom they were to trust should have a permanent existence. This argument would have gone a great way, and was capable of an answer; since the money might have been borrowed on the authority of the whole legislature. But the chief motive, unquestionably, was a just apprehension of the king's intention to overthrow the parliament, and of personal danger to those who had stood most forward from his resentment after a dissolution. His ready acquiescence in this bill, far more dangerous than any of those at which he demurred, can only be ascribed to his own shame and the queen's consternation at the discovery of the late plot; and thus we trace again the calamities of Charles to their two great sources; his want of judgment in affairs, and of good faith towards his people.

Innovations meditated in the church.—The parliament had met with as ardent and just an indignation against ecclesiastical as temporal grievances. The tyranny, the folly, and rashness of Charles's bishops were still greater than his own. It was evidently an indispensable duty to reduce the overbearing ascendancy of that order, which had rendered the nation, in regard to spiritual dominion, a great loser by the Reformation. They had been so blindly infatuated, as even in the year 1640, amidst all the perils of the times, to fill up the measure of public wrath by enacting a series of canons in convocation. These enjoined, or at least recommended, some of the modern innovations, which, though many excellent men had been persecuted for want of compliance with them, had not got the sanction of authority. They imposed an oath on the clergy, commonly called the et cætera oath, binding them to attempt no alteration in the government of the church by bishops, deans, archdeacons, etc. This oath was by the same authority enjoined to such of the laity as held ecclesiastical offices.[187] The king, however, on the petition of the council of peers at York, directed it not to be taken. The House of Commons rescinded these canons with some degree of excess on the other side; not only denying the right of convocation to bind the clergy, which had certainly been exercised in all periods, but actually impeaching the bishops for a high misdemeanour on that account.[188] The Lords, in the month of March, appointed a committee of ten earls, ten bishops, and ten barons, to report upon the innovations lately brought into the church. Of this committee Williams was chairman. But the spirit which now possessed the Commons was not to be exorcised by the sacrifice of Laud and Wren, or even by such inconsiderable alterations as the moderate bishops were ready to suggest.[189]

There had always existed a party, though by no means co-extensive with that bearing the general name of puritan, who retained an insuperable aversion to the whole scheme of episcopal discipline, as inconsistent with the ecclesiastical parity they believed to be enjoined by the apostles. It is not easy to determine what proportion these bore to the community. They were certainly at the opening of the parliament by far the less numerous, though an active and increasing party. Few of the House of Commons, according to Clarendon and the best contemporary writers, looked to a destruction of the existing hierarchy.[190] The more plausible scheme was one which had the sanction of Usher's learned judgment, and which Williams was said to favour, for what was called a moderate episcopacy; wherein the bishop, reduced to a sort of president of his college of presbyters, and differing from them only in rank, not in species (gradu, non ordine), should act, whether in ordination or jurisdiction, by their concurrence.[191] This intermediate form of church-government would probably have contented the popular leaders of the Commons, except two or three, and have proved acceptable to the nation. But it was hardly less offensive to the Scottish presbyterians, intolerant of the smallest deviation from their own model, than to the high-church episcopalians; and the necessity of humouring that proud and prejudiced race of people, who began already to show that an alteration in the church of England would be their stipulated condition for any assistance they might afford to the popular party, led the majority of the House of Commons to give more countenance than they sincerely intended to a bill, preferred by what was then called the root and branch party, for the entire abolition of episcopacy. This party, composed chiefly of presbyterians, but with no small admixture of other sectaries, predominated in the city of London. At the instigation of the Scots commissioners, a petition against episcopal government with 15,000 signatures was presented early in the session (Dec. 11, 1640), and received so favourably as to startle those who bore a good affection to the church.[192] This gave rise to the first difference that was expressed in parliament: Digby speaking warmly against the reference of this petition to a committee, and Falkland, though strenuous for reducing the prelates' authority, showing much reluctance to abolish their order.[193] A bill was however brought in by Sir Edward Dering, an honest but not very enlightened or consistent man, for the utter extirpation of episcopacy, and its second reading carried on a division by 139 to 108.[194] This, no doubt, seems to show the anti-episcopal party to have been stronger than Clarendon admits. Yet I suspect that the greater part of those who voted for it did not intend more than to intimidate the bishops. Petitions very numerously signed, for the maintenance of episcopal government, were presented from several counties;[195] nor is it, I think, possible to doubt that the nation sought only the abridgment of that coercive jurisdiction and temporal power, by which the bishops had forfeited the reverence due to their function, as well as that absolute authority over presbyters, which could not be reconciled to the customs of the primitive church.[196] This was the object both of the act abolishing the high commission, which, by the largeness of its expressions, seemed to take away all coercive jurisdiction from the ecclesiastical courts, and of that for depriving the bishops of their suffrages among the peers; which, after being once rejected by a large majority of the Lords in June 1641, passed into a law in the month of February following, and was the latest concession that the king made before his final appeal to arms.[197]

This was hardly perhaps a greater alteration of the established constitution than had resulted from the suppression of the monasteries under Henry; when, by the fall of the mitred abbots, the secular peers acquired a preponderance in number over the spiritual which they had not previously enjoyed. It was supported by several persons, especially Lord Falkland, by no means inclined to subvert the episcopal discipline; whether from a hope to compromise better with the opposite party by this concession, or from a sincere belief that the bishops might be kept better to the duties of their function by excluding them from civil power. Considered generally, it may be reckoned a doubtful question in the theory of our government, whether the mixture of this ecclesiastical aristocracy with the House of Lords is advantageous or otherwise to the public interests, or to those of religion. Their great revenues, and the precedence allotted them, seem naturally to place them on this level; and the general property of the clergy, less protected than that of other classes against the cupidity of an administration or a faction, may perhaps require this peculiar security. In fact, the disposition of the English to honour the ministers of the church, as well as to respect the ancient institutions of their country, has usually been so powerful, that the question would hardly have been esteemed dubious, if the bishops themselves (I speak of course with such limitations as the nature of the case requires) had been at all times sufficiently studious to maintain a character of political independence, or even to conceal a spirit of servility, which the pernicious usage of continual translations from one see to another, borrowed, like many other parts of our ecclesiastical law, from the most corrupt period of the church of Rome, has had so manifest a tendency to engender.