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Critical and Historical Essays Volume 1

T >> Thomas Babington Macaulay >> Critical and Historical Essays Volume 1




How persecution protects churches and thrones was soon made
manifest. A systematic political opposition, vehement, daring,
and inflexible, sprang from a schism about trifles, altogether
unconnected with the real interests of religion or of the state.
Before the close of the reign of Elizabeth this opposition began
to show itself. It broke forth on the question of the monopolies.
Even the imperial Lioness was compelled to abandon her prey, and
slowly and fiercely to recede before the assailants. The spirit
of liberty grew with the growing wealth and intelligence of the
people. The feeble struggles and insults of James irritated
instead of suppressing it; and the events which immediately
followed the accession of his son portended a contest of no
common severity, between a king resolved to be absolute, and a
people resolved to be free.

The famous proceedings of the third Parliament of Charles, and
the tyrannical measures which followed its dissolution, are
extremely well described by Mr. Hallam. No writer, we think, has
shown, in so clear and satisfactory a manner, that the Government
then entertained a fixed purpose of destroying the old
parliamentary constitution of England, or at least of reducing it
to a mere shadow. We hasten, however, to a part of his work
which, though it abounds in valuable information and in remarks
well deserving to be attentively considered, and though it is,
like the rest, evidently written in a spirit of perfect
impartiality, appears to us, in many points, objectionable.

We pass to the year 1640. The fate of the short Parliament held
in that year clearly indicated the views of the king. That a
Parliament so moderate in feeling should have met after so many
years of oppression is truly wonderful. Hyde extols its loyal and
conciliatory spirit. Its conduct, we are told, made the excellent
Falkland in love with the very name of Parliament. We think,
indeed, with Oliver St. John, that its moderation was carried too
far, and that the times required sharper and more decided
councils. It was fortunate, however, that the king had another
opportunity of showing that hatred of the liberties of his
subjects which was the ruling principle of all his conduct. The
sole crime of the Commons was that, meeting after a long
intermission of parliaments, and after a long series of cruelties
and illegal imposts, they seemed inclined to examine grievances
before they would vote supplies. For this insolence they were
dissolved almost as soon as they met.

Defeat, universal agitation, financial embarrassments,
disorganisation in every part of the government, compelled
Charles again to convene the Houses before the close of the same
year. Their meeting was one of the great eras in the history of
the civilised world. Whatever of political freedom exists either
in Europe or in America has sprung, directly or indirectly, from
those institutions which they secured and reformed. We never turn
to the annals of those times without feeling increased admiration
of the patriotism, the energy, the decision, the consummate
wisdom, which marked the measures of that great Parliament, from
the day on which it met to the commencement of civil hostilities.

The impeachment of Strafford was the first, and perhaps the
greatest blow. The whole conduct of that celebrated man proved
that he had formed a deliberate scheme to subvert the fundamental
laws of England. Those parts of his correspondence which have
been brought to light since his death, place the matter beyond a
doubt. One of his admirers has, indeed, offered to show "that the
passages which Mr. Hallam has invidiously extracted from the
correspondence between Laud and Strafford, as proving their
design to introduce a thorough tyranny, refer not to any such
design, but to a thorough reform in the affairs of state, and the
thorough maintenance of just authority." We will recommend two or
three of these passages to the especial notice of our readers.

All who know anything of those times, know that the conduct of
Hampden in the affair of the ship-money met with the warm
approbation of every respectable Royalist in England. It drew
forth the ardent eulogies of the champions of the prerogative and
even of the Crown lawyers themselves. Clarendon allows Hampden's
demeanour through the whole proceeding to have been such, that
even those who watched for an occasion against the defender of
the people, were compelled to acknowledge themselves unable to
find any fault in him. That he was right in the point of law is
now universally admitted. Even had it been otherwise, he had a
fair case. Five of the judges, servile as our Courts then were,
pronounced in his favour. The majority against him was the
smallest possible. In no country retaining the slightest vestige
of constitutional liberty can a modest and decent appeal to the
laws be treated as a crime. Strafford, however, recommends that,
for taking the sense of a legal tribunal on a legal question,
Hampden should be punished, and punished severely, "whipt," says
the insolent apostate, "whipt into his senses. If the rod," he
adds, "be so used that it smarts not, I am the more sorry." This
is the maintenance of just authority.

In civilised nations, the most arbitrary governments have
generally suffered justice to have a free course in private
suits. Stratford wished to make every cause in every court
subject to the royal prerogative. He complained that in Ireland
he was not permitted to meddle in cases between party and party.
"I know very well," says he, "that the common lawyers will be
passionately against it, who are wont to put such a prejudice
upon all other professions, as if none were to be trusted, or
capable to administer justice, but themselves: yet how well this
suits with monarchy, when they monopolise all to be governed by
their year-books, you in England have a costly example." We are
really curious to know by what arguments it is to be proved, that
the power of interfering in the law-suits of individuals is part
of the just authority of the executive government.

It is not strange that a man so careless of the common civil
rights, which even despots have generally respected, should treat
with scorn the limitations which the constitution imposes on the
royal prerogative. We might quote pages: but we will content
ourselves with a single specimen: "The debts of the Crown being
taken off, you may govern as you please: and most resolute I am
that may be done without borrowing any help forth of the King's
lodgings."

Such was the theory of that thorough reform in the state which
Strafford meditated. His whole practice, from the day on which he
sold himself to the court, was in strict conformity to his
theory. For his accomplices various excuses may be urged;
ignorance, imbecility, religious bigotry. But Wentworth had no
such plea. His intellect was capacious. His early prepossessions
were on the side of popular rights. He knew the whole beauty and
value of the system which he attempted to deface. He was the
first of the Rats, the first of those statesmen whose patriotism
has been only the coquetry of political prostitution, and whose
profligacy has taught governments to adopt the old maxim of the
slave-market, that it is cheaper to buy than to breed, to import
defenders from an Opposition than to rear them in a Ministry. He
was the first Englishman to whom a peerage was a sacrament of
infamy, a baptism into the communion of corruption. As he was the
earliest of the hateful list, so was he also by far the greatest;
eloquent, sagacious, adventurous, intrepid, ready of invention,
immutable of purpose, in every talent which exalts or destroys
nations pre-eminent, the lost Archangel, the Satan of the
apostasy. The title for which, at the time of his desertion, he
exchanged a name honourably distinguished in the cause of the
people, reminds us of the appellation which, from the moment of
the first treason, fixed itself on the fallen Son of the Morning,

"Satan;--so call him now--His former name
Is heard no more in heaven."

The defection of Strafford from the popular party contributed
mainly to draw on him the hatred of his contemporaries. It has
since made him an object of peculiar interest to those whose
lives have been spent, like his, in proving that there is no
malice like the malice of a renegade; Nothing can be more natural
or becoming than that one turncoat should eulogize another.

Many enemies of public liberty have been distinguished by their
private virtues. But Strafford was the same throughout. As was
the statesman, such was the kinsman and such the lover. His
conduct towards Lord Mountmorris is recorded by Clarendon. For a
word which can scarcely be called rash, which could not have been
made the subject of an ordinary civil action, the Lord Lieutenant
dragged a man of high rank, married to a relative of that saint
about whom he whimpered to the peers, before a tribunal of
slaves. Sentence of death was passed. Everything but death was
inflicted. Yet the treatment which Lord Ely experienced was still
more scandalous. That nobleman was thrown into prison, in order
to compel him to settle his estate in a manner agreeable to his
daughter-in-law, whom, as there is every reason to believe,
Strafford had debauched. These stories do not rest on vague
report. The historians most partial to the minister admit their
truth, and censure them in terms which, though too lenient for
the occasion, axe still severe. These facts are alone sufficient
to justify the appellation with which Pym branded him "the wicked
Earl."

In spite of all Strafford's vices, in spite of all his dangerous
projects, he was certainly entitled to the benefit of the law;
but of the law in all its rigour; of the law according to the
utmost strictness of the letter, which killeth. He was not to be
torn in pieces by a mob, or stabbed in the back by an assassin.
He was not to have punishment meted out to him from his own
iniquitous measure. But if justice, in the whole range of its
wide armoury, contained one weapon which could pierce him, that
weapon his pursuers were bound, before God and man, to employ.

"If he may
Find mercy in the law, 'tis his: if none,
Let him not seek't of us."

Such was the language which the Commons might justly use.

Did then the articles against Strafford strictly amount to high
treason? Many people, who know neither what the articles were,
nor what high treason is, will answer in the negative, simply
because the accused person, speaking for his life, took that
ground of defence. The journals of the Lords show that the judges
were consulted. They answered, with one accord, that the articles
on which the earl was convicted amounted to high treason. This
judicial opinion, even if we suppose it to have been erroneous,
goes far to justify the Parliament. The judgment pronounced in
the Exchequer Chamber has always been urged by the apologists of
Charles in defence of his conduct respecting ship-money. Yet on
that occasion there was but a bare majority in favour of the
party at whose pleasure all the magistrates composing the
tribunal were removable. The decision in the case of Strafford
was unanimous; as far as we can judge, it was unbiassed; and,
though there may be room for hesitation, we think, on the whole,
that it was reasonable. "It may be remarked," says Mr. Hallam,
"that the fifteenth article of the impeachment, charging
Strafford with raising money by his own authority, and quartering
troops on the people of Ireland, in order to compel their
obedience to his unlawful requisitions, upon which, and upon one
other article, not upon the whole matter, the Peers voted him
guilty, does, at least, approach very nearly, if we may not say
more, to a substantive treason within the statute of Edward the
Third, as a levying of war against the King." This most sound and
just exposition has provoked a very ridiculous reply. "It should
seem to be an Irish construction this," says, an assailant of Mr.
Hallam, "which makes the raising money for the King's service,
with his knowledge, and by his approbation, to come under the
head of levying war on the King, and therefore to be high
treason." Now, people who undertake to write on points of
constitutional law should know, what every attorney's clerk and
every forward schoolboy on an upper form knows, that, by a
fundamental maxim of our polity, the King can do no wrong; that
every court is bound to suppose his conduct and his sentiments to
be, on every occasion, such as they ought to be; and that no
evidence can be received for the purpose of setting aside this
loyal and salutary presumption. The Lords therefore, were bound
to take it for granted that the King considered arms which were
unlawfully directed against his people as directed against his
own throne.

The remarks of Mr. Hallam on the bill of attainder, though, as
usual, weighty and acute, do not perfectly satisfy us. He defends
the principle, but objects to the severity of the punishment.
That, on great emergencies, the State may justifiably pass a
retrospective act against an offender, we have no doubt whatever.
We are acquainted with only one argument on the other side, which
has in it enough of reason to bear an answer. Warning, it is
said, is the end of punishment. But a punishment inflicted, not
by a general rule, but by an arbitrary discretion, cannot serve
the purpose of a warning. It is therefore useless; and useless
pain ought not to be inflicted. This sophism has found its way
into several books on penal legislation. It admits however of a
very simple refutation. In the first place, punishments ex post
facto are not altogether useless even as warnings. They are
warnings to a particular class which stand in great need of
warnings to favourites and ministers. They remind persons of this
description that there maybe a day of reckoning for those who
ruin and enslave their country in all forms of the law. But this
is not all. Warning is, in ordinary cases, the principal end of
punishment; but it is not the only end. To remove the offender,
to preserve society from those dangers which are to be
apprehended from his incorrigible depravity, is often one of the
ends. In the case of such a knave as Wild, or such a ruffian as
Thurtell, it is a very important end. In the case of a powerful
and wicked statesman, it is infinitely more important; so
important, as alone to justify the utmost severity, even though
it were certain that his fate would not deter others from
imitating his example. At present, indeed, we should think it
extremely pernicious to take such a course, even with a worse
minister than Strafford, if a worse could exist; for, at present,
Parliament has only to withhold its support from a Cabinet to
produce an immediate change of hands. The case was widely
different in the reign of Charles the First. That Prince had
governed during eleven years without any Parliament; and, even
when Parliament was sitting, had supported Buckingham against
its most violent remonstrances.

Mr. 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 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 honourable 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 demeanour of the King.

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