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If there be any universal objection to retrospective punishment, there is no
more to be said. But such is not the opinion of Mr. Hallam. He approves of the
mode of proceeding. He thinks that a punishment, not previously affixed by law
to the offences of Strafford, should have been inflicted; that Strafford should
have been, by act of Parliament, degraded from his rank, and condemned to
perpetual banishment. Our difficulty would have been at the first step, and
there only. Indeed we can scarcely conceive that any case which does not call
for capital punishment can call for punishment by a retrospective act. We can
scarcely conceive a man so wicked and so dangerous that the whole course of law
must be disturbed in order to reach him, yet not so wicked as to deserve the
severest sentence, nor so dangerous as to require the last and surest custody,
that of the grave. If we had thought that Strafford might be safely suffered to
live in France, we should have thought it better that he should continue to live
in England, than that he should be exiled by a special act. As to degradation,
it was not the Earl, but the general and the statesman, whom the people had to
fear. Essex said, on that occasion, with more truth than elegance, "Stone dead
hath no fellow." And often during the civil wars the Parliament had reason to
rejoice that an irreversible law and an impassable barrier protected them from
the valor and capacity of Wentworth.
It is remarkable that neither Hyde nor Falkland voted against the bill of
attainder. There is, indeed, reason to believe that Falkland spoke in favor of
it. In one respect, as Mr. Hallam has observed, the proceeding was honorably
distinguished from others of the same kind. An act was passed to relieve the
children of Strafford from the forfeiture and corruption of blood which were the
legal consequences of the sentence. The Crown had never shown equal generosity
in a case of treason. The liberal conduct of the Commons has been fully and most
appropriately repaid. The House of Wentworth has since that time been as much
distinguished by public spirit as by power and splendor, and may at the present
moment boast of members with whom Say and Hampden would have been proud to act.
It is somewhat curious that the admirers of Strafford should also be, without a
single exception, the admirers of Charles; for, whatever we may think of the
conduct of the Parliament towards the unhappy favorite, there can be no doubt
that the treatment which he received from his master was disgraceful. Faithless
alike to his people and to his tools, the King did not scruple to play the part
of the cowardly approver, who hangs his accomplice. It is good that there should
be such men as Charles in every league of villainy. It is for such men that the
offer of pardon and reward which appears after a murder is intended. They are
indemnified, remunerated and despised. The very magistrate who avails himself of
their assistance looks on them as more contemptible than the criminal whom they
betray. Was Strafford innocent? Was he a meritorious servant of the Crown? If
so, what shall we think of the Prince, who having solemnly promised him that not
a hair of his head should be hurt, and possessing an unquestioned constitutional
right to save him, gave him up to the vengeance of his enemies? There were some
points which we know that Charles would not concede, and for which he was
willing to risk the chances of the civil war. Ought not a King, who will make a
stand for anything, to make a stand for the innocent blood? Was Strafford
guilty? Even on this supposition, it is difficult not to feel disdain for the
partner of his guilt, the tempter turned punisher. If, indeed, from that time
forth, the conduct of Charles had been blameless, it might have been said that
his eyes were at last opened to the errors of his former conduct, and that, in
sacrificing to the wishes of his Parliament a minister whose crime had been a
devotion too zealous to the interests of his prerogative, he gave a painful and
deeply humiliating proof of the sincerity of his repentance. We may describe the
King's behavior on this occasion in terms resembling those which Hume has
employed when speaking of the conduct of Churchill at the Revolution. It
required ever after the most rigid justice and sincerity in the dealings of
Charles with his people to vindicate his conduct towards his friend. His
subsequent dealings with his people, however, clearly showed, that it was not
from any respect for the Constitution, or from any sense of the deep criminality
of the plans in which Strafford and himself had been engaged, that he gave up
his minister to the axe. It became evident that he had abandoned a servant who,
deeply guilty as to all others, was guiltless to him alone, solely in order to
gain time for maturing other schemes of tyranny, and purchasing the aid of the
other Wentworths. He, who would not avail himself of the power which the laws
gave him to save an adherent to whom his honor was pledged, soon showed that he
did not scruple to break every law and forfeit every pledge, in order to work
the ruin of his opponents.
"Put not your trust in princes!" was the expression of the fallen minister, when
he heard that Charles had consented to his death. The whole history of the times
is a sermon on that bitter text. The defense of the Long Parliament is comprised
in the dying words of its victim.
The early measures of that Parliament Mr. Hallam in general approves. But he
considers the proceedings which took place after the recess in the summer of
1641 as mischievous and violent. He thinks that, from that time, the demands of
the Houses were not warranted by any imminent danger to the Constitution and
that in the war which ensued they were clearly the aggressors. As this is one of
the most interesting questions in our history, we will venture to state, at some
length, the reasons which have led us to form an opinion on it contrary to that
of a writer whose judgment we so highly respect.
We will premise that we think worse of King Charles the First than even Mr.
Hallam appears to do. The fixed hatred of liberty which was the principle of the
King's public conduct the unscrupulousness with which he adopted any means which
might enable him to attain his ends, the readiness with which he gave promises,
the impudence with which he broke them, the cruel indifference with which he
threw away his useless or damaged tools, made him, at least till his character
was fully exposed, and his power shaken to its foundations, a more dangerous
enemy to the Constitution than a man of far greater talents and resolution might
have been. Such princes may still be seen, the scandals of the southern thrones
of Europe, princes false alike to the accomplices who have served them and to
the opponents who have spared them, princes who, in the hour of danger, concede
everything, swear everything, hold out their cheeks to every smiter, give up to
punishment every instrument of their tyranny, and await with meek and smiling
implacability the blessed day of perjury and revenge.
We will pass by the instances of oppression and falsehood which disgraced the
early part of the reign of Charles. We will leave out of the question the whole
history of his third Parliament, the price which he exacted for assenting to the
Petition of Right, the perfidy with which he violated his engagements, the death
of Eliot, the barbarous punishments inflicted by the Star-Chamber, the
ship-money, and all the measures now universally condemned, which disgraced his
administration from 1630 to 1640. We will admit that it might be the duty of the
Parliament after punishing the most guilty of his creatures, after abolishing
the inquisitorial tribunals which had been the instruments of his tyranny, after
reversing the unjust sentences of his victims to pause in its course. The
concessions which had been made were great, the evil of civil war obvious, the
advantages even of victory doubtful. The former errors of the King might be
imputed to youth, to the pressure of circumstances, to the influence of evil
counsel, to the undefined state of the law. We firmly believe that if, even at
this eleventh hour, Charles had acted fairly towards his people, if he had even
acted fairly towards his own partisans, the House of Commons would have given
him a fair chance of retrieving the public confidence. Such was the opinion of
Clarendon. He distinctly states that the fury of opposition had abated, that a
reaction had begun to take place, that the majority of those who had taken part
against the King were desirous of an honorable and complete reconciliation and
that the more violent or, as it soon appeared, the more judicious members of the
popular party were fast declining in credit. The Remonstrance had been carried
with great difficulty. The uncompromising antagonists of the court such as
Cromwell, had begun to talk of selling their estates and leaving England. The
event soon showed that they were the only men who really understood how much
inhumanity and fraud lay hid under the constitutional language and gracious
demeanor of the King.
The attempt to seize the five members was undoubtedly the real cause of the war.
From that moment, the loyal confidence with which most of the popular party were
beginning to regard the King was turned into hatred and incurable suspicion.
From that moment, the Parliament was compelled to surround itself with defensive
arms. From that moment, the city assumed the appearance of a garrison. From that
moment, in the phrase of Clarendon, the carriage of Hampden became fiercer, that
he drew the sword and threw away the scabbard. For, from that moment, it must
have been evident to every impartial observer, that, in the midst of
professions, oaths, and smiles, the tyrant was constantly looking forward to an
absolute sway, and to a bloody revenge.
The advocates of Charles have very dexterously contrived to conceal from their
readers the real nature of this transaction. By making concessions apparently
candid and ample, they elude the great accusation. They allow that the measure
was weak and even frantic, an absurd caprice of Lord Digby, absurdly adopted by
the King. And thus they save their client from the full penalty of his
transgression, by entering a plea of guilty to the minor offence. To us his
conduct appears at this day as at the time it appeared to the Parliament and the
city. We think it by no means so foolish as it pleases his friends to represent
it, and far more wicked.
In the first place, the transaction was illegal from beginning to end. The
impeachment was illegal. The process was illegal. The service was illegal. If
Charles wished to prosecute the five members for treason, a bill against them
should have been sent to a grand jury. That a commoner cannot be tried for high
treason by the Lords at the suit of the Crown, is part of the very alphabet of
our law. That no man can be arrested by the King in person is equally clear.
This was an established maxim of our jurisprudence even in the time of Edward
the Fourth. "A subject," said Chief Justice Markham to that Prince, "may arrest
for treason: the King cannot; for, if the arrest be illegal, the party has no
remedy against the King."
The time at which Charles took his step also deserves consideration. We have
already said that the ardor which the Parliament had displayed at the time of
its first meeting had considerably abated, that the leading opponents of the
court were desponding, and that their followers were in general inclined to
milder and more temperate measures than those which had hitherto been pursued.
In every country, and in none more than in England, there is a disposition to
take the part of those who are unmercifully run down, and who seem destitute of
all means of defense. Every man who has observed the ebb and flow of public
feeling in our own time will easily recall examples to illustrate this remark.
An English statesman ought to pay assiduous worship to Nemesis, to be most
apprehensive of ruin when he is at the height of power and popularity, and to
dread his enemy most when most completely prostrated. The fate of the Coalition
Ministry in 1784 is perhaps the strongest instance in our history of the
operation of this principle. A few weeks turned the ablest and most extended
Ministry that ever existed into a feeble Opposition, and raised a King who was
talking of retiring to Hanover to a height of power which none of his
predecessors had enjoyed since the Revolution. A crisis of this description was
evidently approaching in 1642. At such a crisis, a Prince of a really honest and
generous nature, who had erred, who had seen his error, who had regretted the
lost affections of his people, who rejoiced in the dawning hope of regaining
them, would be peculiarly careful to take no step which could give occasion of
offence, even to the unreasonable. On the other hand, a tyrant, whose whole life
was a lie, who hated the Constitution the more because he had been compelled to
feign respect for it, and to whom his own honor and the love of his people were
as nothing, would select such a crisis for some appalling violation of the law,
for some stroke which might remove the chiefs of an Opposition, and intimidate
the herd. This Charles attempted. He missed his blow; but so narrowly, that it
would have been mere madness in those at whom it was aimed to trust him again.
It deserves to be remarked that the King had, a short time before, promised the
most respectable Royalists in the House of Commons, Falkland, Colepepper, and
Hyde, that he would take no measure in which that House was concerned, without
consulting them. On this occasion he did not consult them. His conduct
astonished them more than any other members of the Assembly. Clarendon says that
they were deeply hurt by this want of confidence, and the more hurt, because, if
they had been consulted, they would have done their utmost to dissuade Charles
from so improper a proceeding. Did it never occur to Clarendon, will it not at
least occur to men less partial, that there was good reason for this? When the
danger to the throne seemed imminent, the King was ready to put himself for a
time into the hands of those who, though they disapproved of his past conduct,
thought that the remedies had now become worse than the distempers. But we
believe that in his heart he regarded both the parties in the Parliament with
feelings of aversion which differed only in the degree of their intensity, and
that the awful warning which he proposed to give, by immolating the principal
supporters of the Remonstrance, was partly intended for the instruction of those
who had concurred in censuring the ship-money and in abolishing the
Star-Chamber.
The Commons informed the King that their members should be forthcoming to answer
any charge legally brought against them. The Lords refused to assume the
unconstitutional office with which he attempted to invest them. And what was
then his conduct? He went, attended by hundreds of armed men, to seize the
objects of his hatred in the House itself. The party opposed to him more than
insinuated that his purpose was of the most atrocious kind. We will not condemn
him merely on their suspicions. We will not hold him answerable for the
sanguinary expressions of the loose brawlers who composed his train. We will
judge of his act by itself alone. And we say, without hesitation, that it is
impossible to acquit him of having meditated violence, and violence which might
probably end in blood. He knew that the legality of his proceedings was denied.
He must have known that some of the accused members were men not likely to
submit peaceably to an illegal arrest. There was every reason to expect that he
would find them in their places, that they would refuse to obey his summons, and
that the House would support them in their refusal. What course would then have
been left to him? Unless we suppose that he went on this expedition for the sole
purpose of making himself ridiculous, we must believe that he would have had
recourse to force. There would have been a scuffle; and it might not, under such
circumstances, have been in his power, even if it had been in his inclination,
to prevent a scuffle from ending in a massacre. Fortunately for his fame,
unfortunately perhaps for what he prized far more, the interests of his hatred
and his ambition, the affair ended differently. The birds, as he said, were
flown, and his plan was disconcerted. Posterity is not extreme to mark abortive
crimes; and thus the King's advocates have found it easy to represent a step,
which, but for a trivial accident, might have filled England with mourning and
dismay, as a mere error of judgment, wild and foolish, but perfectly innocent.
Such was not, however, at the time, the opinion of any party. The most zealous
Royalists were so much disgusted and ashamed that they suspended their
opposition to the popular party, and, silently at least, concurred in measures
of precaution so strong as almost to amount to resistance.
From that day, whatever of confidence and loyal attachment had survived the
misrule of seventeen years was, in the great body of the people, extinguished,
and extinguished for ever. As soon as the outrage had failed, the hypocrisy
recommenced. Down to the very eve of this flagitious attempt Charles had been
talking of his respect for the privileges of Parliament and the liberties of his
people. He began again in the same style on the morrow; but it was too late. To
trust him now would have been, not moderation, but insanity. What common
security would suffice against a Prince who was evidently watching his season
with that cold and patient hatred which, in the long-run, tires out every other
passion?
It is certainly from no admiration of Charles that Mr. Hallam disapproves of the
conduct of the Houses in resorting to arms. But he thinks that any attempt on
the part of that Prince to establish a despotism would have been as strongly
opposed by his adherents as by his enemies, and that therefore the Constitution
might be considered as out of danger, or, at least that it had more to apprehend
from the war than from the King. On this subject Mr. Hallam dilates at length,
and with conspicuous ability. We will offer a few considerations which lead us
to incline to a different opinion.
The Constitution of England was only one of a large family. In all the
monarchies of Western Europe, during the middle ages, there existed restraints
on the royal authority, fundamental laws, and representative assemblies. In the
fifteenth century, the government of Castile seems to have been as free as that
of our own country. That of Arragon was beyond all question more so. In France,
the sovereign was more absolute. Yet even in France, the States-General alone
could constitutionally impose taxes; and, at the very time when the authority of
those assemblies was beginning to languish, the Parliament of Paris received
such an accession of strength as enabled it, in some measure, to perform the
functions of a legislative assembly. Sweden and Denmark had constitutions of a
similar description.
Let us overleap two or three hundred years, and contemplate Europe at the
commencement of the eighteenth century. Every free constitution, save one, had
gone down. That of England had weathered the danger, and was riding in full
security. In Denmark and Sweden, the kings had availed themselves of the
disputes which raged between the nobles and the commons, to unite all the powers
of government in their own hands. In France the institution of the States was
only mentioned by lawyers as a part of the ancient theory of their government.
It slept a deep sleep, destined to be broken by a tremendous waking. No person
remembered the sittings of the three orders, or expected ever to see them
renewed. Louis the Fourteenth had imposed on his parliament a patient silence of
sixty years. His grandson, after the War of the Spanish Succession, assimilated
the constitution of Arragon to that of Castile, and extinguished the last feeble
remains of liberty in the Peninsula. In England, on the other hand, the
Parliament was infinitely more powerful than it had ever been. Not only was its
legislative authority fully established; but its right to interfere, by advice
almost equivalent to command, in every department of the executive government,
was recognized. The appointment of ministers, the relations with foreign powers,
the conduct of a war or a negotiation, depended less on the pleasure of the
Prince than on that of the two Houses.
What then made us to differ? Why was it that, in that epidemic malady of
constitutions, ours escaped the destroying influence; or rather that, at the
very crisis of the disease, a favorable turn took place in England, and in
England alone? It was not surely without a cause that so many kindred systems of
government, having flourished together so long, languished and expired at almost
the same time.
It is the fashion to say that the progress of civilization is favorable to
liberty. The maxim, though in some sense true, must be limited by many
qualifications and exceptions. Wherever a poor and rude nation, in which the
form of government is a limited monarchy, receives a great accession of wealth
and knowledge, it is in imminent danger of falling under arbitrary power.
In such a state of society as that which existed all over Europe during the
middle ages, very slight checks sufficed to keep the sovereign in order. His
means of corruption and intimidation were very scanty. He had little money,
little patronage, no military establishment. His armies resembled juries. They
were drawn out of the mass of the people: they soon returned to it again: and
the character which was habitual prevailed over that which was occasional. A
campaign of forty days was too short, the discipline of a national militia too
lax, to efface from their minds the feelings of civil life. As they carried to
the camp the sentiments and interests of the farm and the shop, so they carried
back to the farm and the shop the military accomplishments which they had
acquired in the camp. At home the soldier learned how to value his rights,
abroad how to defend them.
Such a military force as this was a far stronger restraint on the regal power
than any legislative assembly. The army, now the most formidable instrument of
the executive power, was then the most formidable check on that power.
Resistance to an established, government, in modern times so difficult and
perilous an enterprise, was in the fourteenth and fifteenth centuries the
simplest and easiest matter in the world. Indeed, it was far too simple and
easy. An insurrection was got up then almost as easily as a petition is got up
now. In a popular cause, or even in an unpopular cause favored by a few great
nobles, a force of ten thousand armed men was raised in a week. If the King
were, like our Edward the Second and Richard the Second, generally odious, he
could not procure a single bow or halbert. He fell at once and without an
effort. In such times a sovereign like Louis the Fifteenth or the Emperor Paul
would have been pulled down before his misgovernment had lasted for a month. We
find that all the fame and influence of our Edward the Third could not save his
Madame de Pompadour from the effects of the public hatred.
Hume and many other writers have hastily concluded, that, in the fifteenth
century, the English Parliament was altogether servile, because it recognized,
without opposition, every successful usurper. That it was not servile its
conduct on many occasions of inferior importance is sufficient to prove. But
surely it was not strange that the majority of the nobles, and of the deputies
chosen by the commons, should approve of revolutions which the nobles and
commons had effected. The Parliament did not blindly follow the event of war,
but participated in those changes of public sentiment on which the event of war
depended. The legal check was secondary and auxiliary to that which the nation
held in its own hands.
There have always been monarchies in Asia, in which the royal authority has been
tempered by fundamental laws, though no legislative body exists to watch over
them. The guarantee is the opinion of a community of which every individual is a
soldier. Thus, the king of Cabul, as Mr. Elphinstone informs us, cannot augment
the land revenue, or interfere with the jurisdiction of the ordinary tribunals.
In the European kingdoms of this description there were representative
assemblies. But it was not necessary that those assemblies should meet very
frequently, that they should interfere with all the operations of the executive
government, that they should watch with jealousy, and resent with prompt
indignation, every violation of the laws which the sovereign might commit. They
were so strong that they might safely be careless. He was so feeble that he
might safely be suffered to encroach. If he ventured too far, chastisement and
ruin were at hand. In fact, the people generally suffered more from his weakness
than from his authority. The tyranny of wealthy and powerful subjects was the
characteristic evil of the times. The royal prerogatives were not even
sufficient for the defense of property and the maintenance of police.
The progress of civilization introduced a great change. War became a science,
and, as a necessary consequence, a trade. The great body of the people grew
every day more reluctant to undergo the inconveniences of military service, and
better able to pay others for undergoing them. A new class of men, therefore,
dependent on the Crown alone, natural enemies of those popular rights which are
to them as the dew to the fleece of Gideon, slaves among freemen, freemen among
slaves, grew into importance. That physical force which in the dark ages had
belonged to the nobles and the commons, and had, far more than any charter, or
any assembly, been the safeguard of their privileges, was transferred entire to
the King. Monarchy gained in two ways. The sovereign was strengthened, the
subjects weakened. The great mass of the population, destitute of all military
discipline and organization, ceased to exercise any influence by force on
political transactions. There have, indeed, during the last hundred and fifty
years, been many popular insurrections in Europe: but all have failed except
those in which the regular army has been induced to join the disaffected.
Those legal checks which, while the sovereign remained dependent on his
subjects, had been adequate to the purpose for which they were designed, were
now found wanting. The dikes which had been sufficient while the waters were low
were not high enough to keep out the springtide. The deluge passed over them
and, according to the exquisite illustration of Butler, the formal boundaries,
which had excluded it, now held it in. The old constitutions fared like the old
shields and coats of mail. They were the defenses of a rude age; and they did
well enough against the weapons of a rude age. But new and more formidable means
of destruction were invented. The ancient panoply became useless; and it was
thrown aside, to rust in lumber-rooms, or exhibited only as part of an idle
pageant.
Thus absolute monarchy was established on the Continent. England escaped; but
she escaped very narrowly. Happily our insular situation, and the pacific policy
of James, rendered standing armies unnecessary here, till they had been for some
time kept up in the neighboring kingdoms. Our public men, had therefore an
opportunity of watching the effects produced by this momentous change on
governments which bore a close analogy to that established in England.
Everywhere they saw the power of the monarch increasing, the resistance of
assemblies which were no longer supported by a national force gradually becoming
more and more feeble, and at length altogether ceasing. The friends and the
enemies of liberty perceived with equal clearness the causes of this general
decay. It is the favorite theme of Strafford. He advises the King to procure
from the judges a recognition of his right to raise an army at his pleasure.
"This place well fortified," says he, "for ever vindicates the monarchy at home
from under the conditions and restraints of subjects." We firmly believe that he
was in the right. Nay; we believe that, even if no deliberate scheme, of
arbitrary government had been formed, by the sovereign and his ministers, there
was great reason to apprehend a natural extinction of the Constitution. If, for
example, Charles had played the part of Gustavus Adolphus, if he had carried on
a popular war for the defense of the Protestant cause in Germany, if he had
gratified the national pride by a series of victories, if he had formed an army
of forty or fifty thousand devoted soldiers, we do not see what chance the
nation would have had of escaping from despotism. The judges would have given as
strong a decision in favor of camp-money as they gave in favor of ship-money. If
they had been scrupulous, it would have made little difference. An individual
who resisted would have been treated as Charles treated Eliot, and as Strafford
wished to treat Hampden. The Parliament might have been summoned once in twenty
years, to congratulate a King on his accession, or to give solemnity to some
great measure of state. Such had been the fate of legislative assemblies as
powerful, as much respected, as high-spirited, as the English Lords and Commons.
The two Houses, surrounded by the ruins of so many free constitutions overthrown
or sapped by the new military system, were required to entrust the command of an
army and the conduct of the Irish war to a King who had proposed to himself the
destruction of liberty as the great end of his policy. We are decidedly of
opinion that it would have been fatal to comply. Many of those who took the side
of the King on this question would have cursed their own loyalty, if they had
seen him return from war; at the head of twenty thousand troops, accustomed to
carriage and free quarters in Ireland.
We think with Mr. Hallam that many of the Royalist nobility and gentry were true
friends to the Constitution, and that, but for the solemn protestations by which
the King bound himself to govern according to the law for the future, they never
would have joined his standard. But surely they underrated the public danger.
Falkland is commonly selected as the most respectable specimen of this class. He
was indeed a man of great talents and of great virtues but, we apprehend,
infinitely too fastidious for public life. He did not perceive that, in such
times as those on which his lot had fallen, the duty of a statesman is to choose
the better cause and to stand by it, in spite of those excesses by which every
cause, however good in itself, will be disgraced. The present evil always seemed
to him the worst. He was always going backward and forward; but it should be
remembered to his honor that it was always from the stronger to the weaker side
that he deserted. While Charles was oppressing the people, Falkland was a
resolute champion of liberty. He attacked Strafford. He even concurred in strong
measures against Episcopacy. But the violence of his party annoyed him, and
drove him to the other party, to be equally annoyed there. Dreading the success
of the cause which he had espoused, disgusted by the courtiers of Oxford, as he
had been disgusted by the patriots of Westminster, yet bound by honor not to
abandon the cause, for which he was in arms, he pined away, neglected his
person, went about moaning for peace, and at last rushed desperately on death,
as the best refuge in such miserable times. If he had lived through the scenes
that followed, we have little doubt that he would have condemned himself to
share the exile and beggary of the royal family; that he would then have
returned to oppose all their measures; that he would have been sent to the Tower
by the Commons as a stifler of the Popish Plot, and by the King as an accomplice
in the Rye-House Plot; and that, if he had escaped being hanged, first by
Scroggs, and then by Jeffreys, he would, after manfully opposing James the
Second through years of tyranny, have been seized with a fit of compassion, at
the very moment of the Revolution, have voted for a regency, and died a
non-juror.
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