Critical and Historical Essays. Volume 1. Томас Бабингтон Маколей
Hallam is of opinion that a bill of pains and penalties ought to have been passed; but he draws a distinction less just, we think, than his distinctions usually are. His opinion, so far as we can collect it, is this, that there are almost insurmountable objections to retrospective laws for capital punishment, but that, where the punishment stops short of death, the objections are comparatively trifling. Now the practice of taking the severity of the penalty into consideration, when the question is about the mode of procedure and the rules of evidence, is no doubt sufficiently common. We often see a man convicted of a simple larceny on evidence on which he would not be convicted of a burglary. It sometimes happens that a jury, when there is strong suspicion, but not absolute demonstration, that an act, unquestionably amounting to murder, was committed by the prisoner before them, will find him guilty of manslaughter. But this is surely very irrational. The rules of evidence no more depend on the magnitude of the interests at stake than the rules of arithmetic. We might as well say that we have a greater chance of throwing a size when we are playing for a penny than when we are playing for a thousand pounds, as that a form of trial which is sufficient for the purposes of justice, in a matter affecting liberty and property, is insufficient in a matter affecting life. Nay, if a mode of proceeding be too lax for capital cases, it is, a fortiori, too lax for all others; for in capital cases, the principles of human nature will always afford considerable security. No judge is so cruel as he who indemnifies himself for scrupulosity in cases of blood, by licence in affairs of smaller importance. The difference in tale on the one side far more than makes up for the difference in weight on the other.
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 valour 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 favour of it. In one respect, as Mr. Hallam has observed, the proceeding was honourably 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 splendour, 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 favourite, 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 behaviour 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 honour 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 defence 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