cious, adventurous, intrepid, ready of inven- | for his life, took that ground of defence. The tion, immutable of purpose, in every talent Journals of the Lords show that the Judges which exalts or destroys nations, pre-eminent, were consulted. They answered with one ac 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 "So call him now.-is former name Is heard no more in heaven." cord, 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 im 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 turn-coat should eulo-peachment charging Strafford with raising mo gize another. ney by his own authority, and quartering troops Many enemies of public liberty have been on the people of Ireland, in order to compel distinguished by their private virtues. But their obedience to his unlawful requisitions, Strafford was the same throughout. As was upon which, and upon one other article, not the statesman, such was the kinsman and such upon the whole matter, the Peers voted him the lover. His conduct towards Lord Mount guilty, does, at least, approach very nearly, if morris is recorded by Clarendon. For a word we may not say more, to a substantive treason which can scarcely be called rash, which within the statute of Edward III., as a levying could not have been made the subject of an of war against the king." This most sound cardinary civil action, he dragged a man of high and just exposition has provoked a very ridicurank, married to a relative of that saint about lous reply. "It should seem to be an Irish whom he whimpered to the Peers, before a tri-construction this," says an assailant of Mr. bunal of his slaves. Sentence of death was passed. Every thing but death was inflicted. Yet the treatment which Lord Ely experienced was still more disgusting. 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, are still severe. These facts are alone sufficient to justify the appellation with which Pym branded him-"the wicked earl." In spite of all his vices, in spite of all his dangerous projects, Strafford 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 armory, 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, Such was the language which the Parliament 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 argu ment 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 punish ment inflicted, not by a general rule, but by an arbitrary discretion, cannot serve the purpose of a warning; it is therefore useless, and use This SG. less pain ought not to be inflicted. Did then the articles against Strafford strictly amount to high treason? Many people who | phism has found its way into several books on know neither what the articles were, nor what penal legisiation. It admits, however, of a very high treason is, will answer in the negative, simple refutation. In the first place, punishsimpy because the accused person, speaking ments ex post facto are not altogether useless 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 he should have been degraded from his rank, and condemned to perpetual banishment, by act of Parliament; but he sees strong objections to the taking away of his life. 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 retrospective punishment. 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 danger. ous as to require the last and surest custodythat 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 elo even as warnings. They are warnings to a particular class, which stands in great need of warnings-to favourites and ministers. They remind persons of this description, that there may be a day of reckoning for those who ruin and enslave their country in all the forms of 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 statesmen, 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 for eleven years without any Parliament; and even when Parliament was sitting, had supported Bucking-quence, "Stone-dead hath no fellow." And ham against its most violent remonstrances. 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 Strafford. dour; and may at the present time boast of members, with whom Say and Hampden would have been proud to act. Mr. Hallam is of opinion that a bill of pains and penalties ought to have been passed against Strafford; but he draws a distinction less just, we think, than his distinctions usual- It is remarkable that neither Hyde nor Falkly are. His opinion, so far as we can collect land voted against the bill of attainder. There it, is this; that there are almost insurmounta- is, indeed, reason to believe that Falkland ble objections to retrospective laws for capital spoke in favour of it. In one respect, as Mr. punishment; but that where the punishment Hallam has observed, the proceeding was ho stops short of death, the objections are compa-nourably distinguished from others of the same ratively trifling. Now the practice of taking kind. An act was passed to relieve the childthe severity of the penalty into consideration, ren of Strafford from the forfeiture and corwhen the question is about the mode of proce- ruption of blood, which were the legal consedure and the rules of evidence, is no doubt suf- quences of the sentence. The crown had never ficiently common. We often see a man con- shown equal generosity in a case of treason. victed of a simple larceny, on evidence on The liberal conduct of the Commons has been which he would not be convicted of a burglary. fully and most appropriately repaid. The house It sometimes happens that a jury, when there of Wentworth has since been as much distin is strong suspicion, but not absolute demon-guished by public spirit as by power and splen stration, 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 depends 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, is, a for!iori, to 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 license in affairs cf smaller importance. The difference in tale on the one side far more than makes up for the difference in weight on the other. 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 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 villany. It is for such men that the offers of pardon and reward, which appear after a murder, are intended. They are indemnified, remunerated, and despised. The very magistrate who avails himself of their as sistance looks on them as wretches more degraded than the criminal whom they betray. Was Strafford innocent? was he a meritorious servant of the crown? If so, what shall we which he threw away his useless or damaged tools, rendered 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 every thing, swear every thing, hold out their every minister of their tyranny, and await with meek and smiling implacability the blessed day of perjury and proscription. think of the prince, who, having solemnly pro- | to attain his ends; the readiness with which mised him that not a hair of his head should he gave promises; the impudence with which be hurt, and possessing an unquestioned con- he broke them; the cruel indifference with stitutional 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 civil war. Ought not a king, who will make a stand for any thing, 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 open-cheeks to every smiter, give up to punishment ed 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 his 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 his dealings with his people to vindicate it. 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 criminalty 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 other Wentworths. He who would not avail himself of the power which the laws gave him to save a friend, 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 neard 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 all his public conduct; the unscrupulousness with which he adopted any means which might enable him We will pass by the instances of oppression and falsehood which disgraced the early years 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 con demned, 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 ty ranny, after reversing the unjust sentences of his victims, to pause in its course. The concessions which had been made were great, the evils 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 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. 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 tr 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, it was that, 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, caths, and smiles, the tyrant was constantly looking forward to an absolute sway, and to bloody re venge. 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 af fections 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 unreason whole life was a lie, who hated the constitution the more because he had been compelled to feign respect for it, to whom his honour and the love of his people were as nothing, would select such a crisis for some appalling violation of 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. The advocates of Charles have very dex-able. On the other hand, a tyrant, whose terously 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. 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 ineasure in which that House was concerned, without consulting them. On this 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 pro-occasion he did not consult them. His consecute 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 a message or a verbal summons of the king, with or without a warrant from a responsible magistrate, is equally clear. This was an established maxim of our jurisprudence 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." duct 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 had disapproved of his past conduct, thought that the remedies had now become worse than the distempers. But we believe, that in heart The time at which Charles took this step he regarded both the parties in the Parliament also deserves consideration. We have already with feelings of aversion, which differed only said, that the ardour which the parliament had in the degree of their intensity; and that the displayed at the time of its first meeting had lawful warning which he proposed to give by considerably abated; that the leading oppo- immolating the principal supporters of the nents of the court were desponding, and that remonstrance, was partly intended for the intheir followers were in general inclined to mild-struction of those who had concurred in cener 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 defence. 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 rinciple. A few weeks turned the ablest and suring 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 offices with which he attempted to invest them. And what then was 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 conduct by itself alone. And we 1 སྙ 79 our own country. That of Arragon was beyond say, without hesitation, that it is impossible to | damental laws, and representative assemblies. acquit him of having meditated violence, and In the fifteenth century, the government of violence which might probably end in blood. Castile seems to have been as free as that of He knew that the legality of his proceedings was denied; he must have known that some of the accused members were not men 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 were 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 his 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 Such was not, however, at the time, innocent. 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 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 maintained 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 From that day, whatever of confidence and hand, the Parliament was infinitely more pow loyal attachment had survived the misrule of erful than it had ever been. Not only was its seventeen years, was, in the great body of the legislative authority fully established, but its people, extinguished, and extinguished forever. right to interfere, by advice almost equivalent As soon as the outrage had failed, the hypo-to command, in every department of the excrisy recommenced. Down to the very eve of his 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 sea-ther that, at the very crisis of the disease, a son with that cold and patient hatred which, in the long run, tires out every other pas to amount to resistance. sion? ecutive government, was recognised. 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 ra favourable 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 certainly from no admiration of Charles that Mr. Hallam disapproves of the conduct It is the fashion to say, that the progress of the House in resorting to arms. But he thinks, that any attempt on the part of that of civilization is favourable to liberty. The prince to establish a despotism would have maxim, though on the whole true, must be been as strongly opposed by his adherents as limited by many qualifications and exceptions. by his enemies; that the constitution might Wherever a poor and rude nation, in which be considered as out of danger; or, at least, the form of government is a limited monarchy, that it had more to apprehend from war than receives a great accession of wealth and from the king. On this subject Mr. Hallam knowledge, it is in imminent danger of falling dilates at length; and with conspicuous ability.under arbitrary power. 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, fun In such a state of society as that which existed all over Europe during the middle ages, it was not from the king, but from the nobles, that there was danger. Very slight checks sufficed to keep the sovereign in order. His means of corruption and intimidation ere |