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

by Henry Hallam

It has been usually said that the Commons had recourse to the bill of attainder, because they found it impossible to support the impeachment for treason. But St. John positively denies that it was intended to avoid the judicial mode of proceeding. Nalson, ii. 162. And, what is stronger, the Lords themselves voted upon the articles judicially, and not as if they were enacting a legislative measure. As to the famous proviso in the bill of attainder, that the judges should determine nothing to be treason, by virtue of this bill, which they would not have determined to be treason otherwise (on which Hume and many others have relied, to show the consciousness of parliament that the measure was not warranted by the existing law), it seems to have been introduced in order to quiet the apprehensions of some among the peers, who had gone great lengths with the late government, and were astonished to find that their obedience to the king could be turned into treason against him.

[180] They were confirmed, in a considerable degree, by the evidence of Northumberland and Bristol, and even of Usher and Juxon. Rushw. Abr. iv. 455, 559, 586; Baillie, 284. But are they not also exactly according to the principles always avowed and acted upon by that minister, and by the whole phalanx of courtiers, that a king of England does very well to ask his people's consent in the first instance, but, if that is frowardly refused, he has a paramount right to maintain his government by any means?

It may be remarked, that Clarendon says: "the law was clear that less than two witnesses ought not to be received in a case of treason." Yet I doubt whether any one had been allowed the benefit of that law; and the contrary had been asserted repeatedly by the judges.

[181] Lords' Journals, May 6; Parl. Hist. 757. This opinion of the judges which is not mentioned by Clarendon, Hume, and other common historians, seems to have cost Strafford his life. It was relied on by some bishops, especially Usher, whom Charles consulted whether he should pass the bill of attainder, though Clarendon puts much worse casuistry into the mouth of Williams. Parr's Life of Usher, p. 45; Hacket's Life of Williams, p. 160. Juxon is said to have stood alone among five bishops, in advising the king to follow his conscience. Clarendon, indeed, does not mention this; though he glances at Usher with some reproach (p. 451); but the story is as old as the Icon Basilike, in which it is alluded to.

[182] The names of the fifty-nine members of the Commons, who voted against the bill of attainder, and which were placarded as Straffordians, may be found in the Parliamentary History, and several other books. It is remarkable that few of them are distinguished persons; none so much so as Selden, whose whole parliamentary career, notwithstanding the timidity not very fairly imputed to him, was eminently honourable and independent. But we look in vain for Hyde, Falkland, Colepepper, or Palmer. The first, probably, did not vote; the others may have been in the majority of 204, by whom the bill was passed. Indeed, I have seen a MS. account of the debate, where Falkland and Colepepper appear to have both spoken for it. As to the Lords, we have, so far as I know, no list of the nineteen who acquitted Strafford. It did not comprehend Hertford, Bristol, or Holland, who were absent (Nalson, 316), nor any of the popish lords, whether through fear or any private influence. Lord Clare, his brother-in-law, and Lord Saville, a man of the most changeable character, were his prominent advocates during the trial; though Bristol, Hertford, and even Say, desired to have had his life spared (Baillie, 243, 247, 271, 292); and the Earl of Bedford, according to Clarendon, would have come into this. But the sudden and ill-timed death of that eminent peer put an end to the negotiation for bringing the parliamentary leaders into office, wherein it was a main object with the king to save the life of Strafford; entirely, as I am inclined to believe, from motives of conscience and honour, without any views of ever again restoring him to power. Charles had no personal attachment to Strafford; and the queen's dislike of him (according to Clarendon and Burnet, though it must be owned, that Madame de Motteville does not confirm this), or at least his general unpopularity at court, would have determined the king to lay him aside.

It is said by Burnet that the queen prevailed on Charles to put that strange postscript to his letter to the Lords, in behalf of Strafford, "If he must die, it were charity to reprieve him till Saturday;" by which he manifestly surrendered him up, and gave cause to suspect his own sincerity. Doubts have been thrown out by Carte as to the genuineness of Strafford's celebrated letter, requesting the king to pass the bill of attainder. They do not appear to be founded on much evidence; but it is certain, by the manner in which he received the news, that he did not expect to be sacrificed by his master.

[183] Parliamentary History, ii. 750.

[184] See some judicious remarks on this by May (p. 64), who generally shows a good deal of impartiality at this period of history. The violence of individuals, especially when of considerable note, deserves to be remarked, as characteristic of the temper that influenced the house, and as accounting for the disgust of moderate men. "Why should he have law himself?" said St. John, in arguing the bill of attainder before the peers, "who would not that others should have any? We indeed give laws to hares and deer, because they are beasts of chase; but we give none to wolves and foxes, but knock them on the head wherever they are found, because they are beasts of prey." Nor was this a mere burst of passionate declamation, but urged as a serious argument for taking away Strafford's life without sufficient grounds of law or testimony. Rushworth Abr. iv. 61; Clarendon, i. 407. Strode told the house that, as they had charged Strafford with high treason, it concerned them to charge as conspirators in the same treason all who had before, or should hereafter, plead in that cause. Baillie, 252. This monstrous proposal seems to please the presbyterian bigot. "If this hold," he observes, "Strafford's council will be rare."

[185] Clarendon and Hume, of course, treat this as a very trifling affair, exaggerated for factious purposes. But those who judge from the evidence of persons unwilling to accuse themselves or the king, and from the natural probabilities of the case, will suspect, or, rather, be wholly convinced, that it had gone much farther than these writers admit. See the accounts of this plot in Rushworth and Nalson, or in the Parliamentary History. The strongest evidence, however, is furnished by Henrietta, whose relation of the circumstances to Madame de Motteville proves that the king and herself had the strongest hopes from the influence of Goring and Wilmot over the army, by means of which they aimed at saving Strafford's life; though the jealousy of those ambitious intriguers, who could not both enjoy the place to which each aspired, broke the whole plot. Mem. de Motteville, i. 253. Compare with this passage, Percy's letter, and Goring's deposition (Nalson, ii. 286, 294), for what is said of the king's privity by men who did not lose his favour by their evidence. Mr. Brodie has commented in a long note (iii. 189) on Clarendon's apparent misrepresentations of this business. But what has escaped the acuteness of this writer is, that the petition to the king and parliament drawn up for the army's subscription, and asserted by Clarendon to have been the only step taken by those engaged in the supposed conspiracy (though not, as Mr. Brodie too rashly conjectures, a fabrication of his own), is most carelessly referred by him to that period or to the agency of Wilmot and his coadjutors; having been, in fact, prepared about the July following, at the instigation of Daniel O'Neale, and some others of the royalist party. This is manifest, not only from the allusions it contains to events that had not occurred in the months of March and April, when the plot of Wilmot and Goring was on foot, especially the bill for triennial parliaments, but from evidence given before the House of Commons in October 1641, and which Mr. Brodie has published in the appendix to his third volume, though, with an inadvertence of which he is seldom guilty, overlooking its date and purport. This, however, is of itself sufficient to display the inaccurate character of Clarendon's history; for I can scarcely ascribe the present incorrectness to design. There are, indeed, so many mistakes as to dates and other matters in Clarendon's account of this plot, that, setting aside his manifest disposition to suppress the truth, we can place not the least reliance on his memory as to those points which we may not be well able to bring to a test.

[186] Journals; Parliamentary Hist. 784; May, 67; Clarendon. According to Mrs. Hutchinson (p. 97) this bill originated with Mr. Pierpoint. If we should draw any inference from the Journals, Sir John Colepepper seems to have been the most prominent of its supporters. Mr. Hyde and Lord Falkland were also managers of the conference with the Lords. But in Sir Ralph Verney's manuscript notes, I find Mr. Whitelock mentioned as being ordered by the house to prepare the bill; which seems to imply that he had moved it, or at least been very forward in it. Yet all these were moderate men.