There was no mistaking the fact that the whole produced a great impression on the Lords: the general voice inclined to the side of Strafford. The skill and unconquerable energy with which he defended himself against a whole multitude of enemies had influenced in his favour the feelings of the women especially, some of whom copied down the heads of his defence. Stafford’s closing speech, in which he summed up all these, produced a deep impression on both friend and foe. It must in fact be reckoned as a remarkable piece of forensic eloquence, for its thorough discussion of single points, united with high and proud pathos. After it there seemed little probability of the accused being condemned by the Lords. The lawyers declared it to be unjustifiable, since nothing was treason except what was declared to be so by the express words of the Statute of 25 Edward III. They would not hear of a constructive proof, of which men spoke: even if it could be proved that Strafford had contemplated the overthrow of the law, that would after all be only felony and not treason.
Already it had been proposed in the Commons to try another way to their end. It was recollected that in earlier times men who had been impeached, and could not be convicted under the ordinary forms, had been declared guilty by the sentence of the legislative power, by a law in parliamentary form (Bill of Attainder). And this proceeding was deemed perfectly just, since Parliament was competent to make laws to meet every possible case, and could at all times define high treason[230]. On the introduction of the supplementary protocol, the Lords seemed inclined to accede to Strafford’s request that he on his side should be allowed to bring forward new points. But the Commons thought they saw in this undue favour to the accused: one morning they quitted Westminster Hall with shouts of stormy impatience. When they met in the afternoon for their sitting the proposal to try that other course, which had already been prepared, and was at once proceeded with, met with a favourable reception: the Bill of Attainder was read for the first time. They did not A.D. 1641 blind themselves to the danger of thus offending the Lords, and causing a breach between the two Houses; but the sense of their own strength was already so fully aroused that they did not shrink from this: they rather let it appear that though the Commons were not Strafford’s peers, but his accusers, they meant to pass sentence upon him; they would declare him and all his adherents to be traitors[231].
On Monday, the 12th, the debate on the second reading of the bill came on in the Lower House. On that occasion the initiative was taken by members of republican sentiments, like Haslerig and Martin. Neither Pym nor Hampden, the leaders hitherto, were as yet for this course; they were unwilling to break with the Upper House, which was very much irritated, and still trusted to its proving pliable. A final conclusion was not reached on this occasion. The second reading was agreed to, and took place at the next sitting two days later: but after further long and close debate it was resolved that the House, as committee, should be present to hear the arguments of Strafford’s counsel with respect to the applicability of the existing laws to his case.
These were delivered on April 17. Attorney-General Lane argued that the Statute of Edward III, by which all the cases that can be treated as high treason are defined, was not applicable to the present case, either in itself or constructively. The Commons had chiefly relied on the proviso appended to the statute, according to which everything which Parliament might hereafter pronounce to be treason was punishable as such. The Attorney-General pointed out that this definition, after having entailed very opposite consequences through changes of parliamentary faction, had been altogether repealed in the first year of Henry IV, every one having felt that it was like a sword hanging over his head. This last argument appeared to the Lords conclusive: they decided that they had no right whatever to go beyond the letter of the Statute of Edward III.
The Commons heard this in silence; but they derived A.D. 1641 from it the impression that if Strafford was to be condemned it must be by their own action. When they came back to their bill, they at once entered on the question whether in fact the intention to overthrow the laws could be regarded as treason. Selden observed that according to the statute there was only one intention, that namely of killing the king, which could be treated as high treason. Even the purpose of taking up arms against him was legally not high treason: how then could an attempt to overthrow the laws be so regarded? In reply it was urged, among other points, that the reason why the intention to kill the king was treason was that it implied the overthrow of the laws. Finally it was resolved that the attempt to overthrow the laws should be treated as treason. Once more the actual charges against Strafford were discussed. The Commons took as sufficiently proven his acts of violence in Ireland, his support of the war against the Scots, finally his expressions about the dissolution of the last Parliament. But in general they did not attach much importance to legal evidence on the separate points. As a member said, we do not ask how many inches are required that a man should be called big or little—the sight determines that: so it is in the present case, we do not enquire how many unlawful acts will establish a charge of high treason, we all know that it has been committed. Once more Lord Digby, at an earlier period one of Strafford’s bitterest opponents, rose to defend him. Once more he declared him to be the most dangerous man in England, and his intention to introduce arbitrary government into the country to be undoubted; but the intention imputed to him, of subjugating England with Irish troops, was unproved, and he could not fairly be condemned as a traitor. He ventured to say that this would be to commit a judicial murder. With all his eloquence he only succeeded in rendering himself an object of suspicion. By 204 votes against 59 the Bill of Attainder passed the Lower House[232].
Extremely remarkable are the grounds for this proceeding as put forward by Oliver St. John, on April 29, in a great conference with the Upper House, at which the King was A.D. 1641 present. He urged especially the absolute legislative power of Parliament, in virtue of which it was not bound, like inferior tribunals, by existing laws, but was justified in making new ones to suit circumstances: its only guide should be care for the public weal: it was the political body, embracing all, from the king to the beggar, and could deal with individuals for the good of the whole, could open a vein to let out the corrupted blood. It had been said that the law must precede the offence; that where no law was there could be no transgression: but that plea could not avail for the man who had desired to overthrow all laws: there might be rules for the hunting of hares, wolves were slain wherever they were found. Strafford had well known that the Lower House had the power of life and death[233]. Strafford had thought to be judged by the existing laws, and had always taken the most careful precautions to avoid acting towards them in such a manner that a capital charge could be brought against him. But now there was a power set in motion against him which did not consider itself bound by the letter of the statutes, and held itself fully justified in punishing not only his acts but his intentions.
When he heard St. John’s speech he saw that he was lost: he raised his hands above his head, as if to implore the mercy of heaven. His case was not yet finally decided, but in order that he might be rescued events must have happened, and courses have been tried, which lay outside all regular government. In the violent agitation produced by the great questions involved, there was actually once a moment in which such a turn of events might possibly have been expected: this arose from the inner complications of the state and court.
FOOTNOTES:
[223] ‘Many ministers used greater freedom than ever here was heard of.’ Baillie’s Letters i. 213.
[224] Baillie i. 275. ‘These [the separatists] and the rest, who are for the Scots’ discipline, do amicablie conspire in one, to overthrow bishops and ceremonies, hoping when these rudera are put away, that they shall well agree to build a new house.’ (Dec. 2, 1640.)