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Parliament Protected from Wentworth

British Isles Genealogy | Critical And Historical Essays, Volume I

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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