Speech against the attainder of Strafford
We are now upon the point of giving, as much as in us lies, the final sentence unto death or life, on a great minister of the state and peer of this kingdom, Thomas, Earl of Strafford, a name of hatred in the present age for his practices, and fit to be made a terror to future ages by his punishment.
I have had the honor to be employed by the House in this great business, from the first hour that it was taken into consideration. It was а matter of great trust; and I will say with confidence that I have served the House in it, not only with industry, according to my ability, but with most exact faithfulness and justice.
And as I have hitherto discharged my duty to this House and to my country in the progress of this great cause, so I trust I shall do now, in the last period of it, to God and to a good conscience. I do wish the peace of that to myself, and the blessing of Almighty God to me and my posterity, according as my judgment on the life of this man shall be consonant with my heart, and the best of my understanding in all integrity.
I know well that by some things I have said of late, while this bill was in agitation, I have raised some prejudices against me in the cause. Yea, some (I thank them for their plain dealing) have been so free as to tell me, that I have suffered much by the backwardness I have shown in the bill of attainder of the Earl of Strafford, against whom I have formerly been so keen, so active.
I beg of you, Mr. Speaker, and the rest, but a suspension of judgment concerning me, till I have opened my heart to you, clearly and freely, in this business. Truly, sir, I am still the same in my opinion and affections as to the Earl of Strafford. I confidently believe him to be the most dangerous minister, the most insupportable to free subjects, that can be charactered. I believe his practices in themselves to have been as high and tyrannical as any subject ever ventured on; and the malignity of them greatly aggravated by those rare abilities of his, whereof God hath given him the use, but the devil the application. In a word, I believe him to be still that grand apostate to the Commonwealth, who must not expect to be pardoned in this world till he be dispatched to the other.
And yet let me tell you, Mr. Speaker, my hand must not be to that dispatch. I protest, as my conscience stands informed, I had rather it were off.
Let me unfold to you the mystery, Mr. Speaker: I will not dwell much upon justifying to you my seeming variance at this time from what I was formerly, by putting you in mind of the difference between prosecutors and judges—how misbecoming that fervor would be in a judge which, perhaps, was commendable in a prosecutor. Judges we are now, and must, therefore, put on another personage. It is honest and noble to be earnest in order to the discovery of truth; but when that hath been brought so far as it can be to light, our judgment thereupon ought to be calm and cautious. In prosecution upon probable grounds, we are accountable only for our industry or remissness; but in judgment, we are deeply responsible to Almighty God for its rectitude or obliquity. In cases of life, the judge is God's steward of the party's blood, and must give a strict account for every drop.
But, as I told you, Mr. Speaker, I will not insist long upon this ground of difference in me now from what I was formerly. The truth of it is, sir, the same ground whereupon I with the rest of the few to whom you first committed the consideration of my Lord Strafford, brought down our opinion that it was fit he should be accused of treason—upon the same ground. I was engaged with earnestness in his prosecution: and had the same ground remained in that force of belief in me, which till very lately it did, I should not have been tender in his condemnation. But truly, sir, to deal plainly with you, that ground of our accusation—that which should be the basis of our judgment of the Earl of Strafford as to treason—is, to my understanding, quite vanished away.
This it was, Mr. Speaker—his advising the King to employ the army in Ireland to reduce England. This I was assured would be proved, before I gave my consent to his accusation. I was confirmed in the same belief during the prosecution, and fortified most of all in it, after Sir Henry Vane's preparatory examination, by assurances which that worthy member Mr. Pym gave me, that his testimony would be made convincing by some notes of what passed at the Junto [Privy Council] concurrent with it. This I ever understood would be of some other counselor; but you see now, it proves only to be a copy of the same secretary's notes, discovered and produced in the manner you have heard; and those such disjointed fragments of the venomous part of discourses—no results, no conclusions of councils, which are the only things that secretaries should register, there being no use of the other but to accuse and bring men into danger.
But, sir, this is not that which overthrows the evidence with me concerning the army in Ireland, nor yet that all the rest of the Junto remember nothing of it; but this, sir, which I shall tell you, is that which works with me, under favor, to an utter overthrow of his evidence as touching the army of Ireland. Before, while I was prosecutor, and under tie of secrecy, I might not discover [disclose] any weakness of the cause, which now, as judge, I must.
Mr. Secretary Vane was examined thrice upon oath at the preparatory committee. The first time he was questioned as to all the interrogatories; and to that part of the seventh which concerns the army in Ireland, he said positively these words: "I can not charge him with that;" but for the rest, he desired time to recollect himself, which was granted him. Some days after, he was examined a second time, and then deposed these words concerning the King's being absolved from rules of government, and so forth, very clearly. But being pressed as to that part concerning the Irish army, again he said he could say "nothing to that." Here we thought we had done with him, till divers weeks after, my Lord of Northumberland, and all others of the Junto, denying to have heard any thing concerning those words of reducing England by the Irish army, it was thought fit to examine the secretary once more; and then he deposed these words to have been spoken by the Earl of Strafford to his Majesty: "You have an army in Ireland, which you may employ here to reduce (or some word to that sense) this kingdom." Mr. Speaker, these are the circumstances which I confess with my conscience, thrust quite out of doors that grand article of our charge concerning his desperate advice to the King of employing the Irish army here.
Let not this, I beseech you, be driven to an aspersion upon Mr. Secretary, as if he should have sworn otherwise than he knew or believed. He is too worthy to do that. Only let this much be inferred from it, that he, who twice upon oath, with time of recollection, could not remember any thing of such a business, might well, a third time, misremember somewhat; and in this business the difference of one word "here" for "there," or "that" for "this," quite alters the case; the latter also being the more probable, since it is confessed on all hands that the debate then was concerning a war with Scotland. And you may remember, that at the bar he once said "employ there." And thus, Mr. Speaker, have I faithfully given you an account what it is that hath blunted the edge of the hatchet, or bill, with me, toward my Lord Strafford.
This was that whereupon I accused him with a free heart; prosecuted him with earnestness; and had it to my understanding been proved, should have condemned him with innocence; whereas now I can not satisfy my conscience to do it. I profess I can have no notion of any body's intent to subvert the laws treasonably, but by force; and this design of force not appearing, all his other wicked practices can not amount so high with me. I can find a more easy and natural spring from whence to derive all his other crimes, than from an intent to bring in tyranny, and make his own posterity, as well as us, slaves; viz., from revenge, from pride, from passion, and from insolence of nature. But had this of the Irish army been proved, it would have diffused a complexion of treason over all. It would have been a withe indeed, to bind all those other scattered and lesser branches, as it were, into a fagot of treason.
I do not say but the rest of the things charged may represent him a man as worthy to die, and perhaps worthier than many a traitor. I do not say but they may justly direct us to enact that they shall be treason for the future. But God keep me from giving judgment of death on any man, and of ruin to his innocent posterity, upon a law made à posteriori. Let the mark be set on the door where the plague is, and then let him that will enter, die.
I know, Mr. Speaker, there is in Parliament a double power of life and death by bill; a judicial power, and a legislative. The measure of the one is, what is legally just; of the other, what is prudentially and politically fit for the good and preservation of the whole. But these two, under favor, are not to be confounded in judgment. We must not piece out want of legality with matter of convenience, nor the defailance of prudential fitness with a pretense of legal justice.
To condemn my Lord of Strafford judicially, as for treason, my conscience is not assured that the matter will bear it; and to do it by the legislative power, my reason consultively can not agree to that, since I am persuaded that neither the Lords nor the King will pass this bill; and, consequently, that our passing it will be a cause of great divisions, and contentions in the state.
Therefore my humble advice is, that, laying aside this bill of attainder, we may think of another, saving only life; such as may secure the state from my Lord of Strafford, without endangering it as much by division concerning his punishment, as he hath endangered it by his practices.
If this may not be hearkened unto, let me conclude in saying that to you all, which I have thoroughly inculcated upon mine own conscience, on this occasion. Let every man lay his hand upon his own heart, and seriously consider what we are going to do with a breath: either justice or murder—justice on the one side, or murder, heightened and aggravated to its supremest extent, on the other! For, as the casuists say, He who lies with his sister commits incest; but he that marries his sister, sins higher, by applying God's ordinance to his crime; so, doubtless, he that commits murder with the sword of justice, heightens that crime to the utmost.
The danger being so great, and the case so doubtful, that I see the best lawyers in diametrical opposition concerning it; let every man wipe his heart as he does his eyes, when he would judge of a nice and subtle object. The eye, if it be pre-tinctured with any color, is vitiated in its discerning. Let us take heed of a blood-shotten eye in judgment. Let every man purge his heart clear of all passions. I know this great and wise body politic can have none; but I speak to individuals from the weakness which I find in myself. Away with personal animosities! Away with all flatteries to the people, in being the sharper against him because he is odious to them! Away with all fears, lest by sparing his blood they may be incensed! Away with all such considerations, as that it is not fit for a Parliament that one accused by it of treason, should escape with life! Let not former vehemence of any against him, nor fear from thence that he can not be safe while that man lives, be an ingredient in the sentence of any one of us.
Of all these corruptives of judgment, Mr. Speaker, I do, before God, discharge myself to the utmost of my power; and do now, with a clear conscience, wash my hands of this man's blood by this solemn protestation, that my vote goes not to the taking of the Earl of Strafford's life.
Notwithstanding this eloquent appeal, the bill of attainder was carried the same day in the House, by a vote of two hundred and four to fifty-nine.
The Lords had already decided in their judicial capacity that the main facts alleged in the indictment were proved, and referred the points of law to the decision of the judges of the Court of the King's Bench. On the seventh of May, "the Lord Chief Justice of the King's Bench delivered in to the Lords the unanimous decision of all the judges present, 'That they are of opinion upon all which their Lordships had voted to be proved, that the Earl of Straffbrd doth deserve to undergo the pains and forfeitures of high treason by law.' "—Parl. Hist., vol. ii., p. 757. The Lords now yielded the point of form to the Commons; and as the penal consequences were the same, instead of giving sentence under the impeachment, they passed the bill of attainder the next day, May 8th, by a vote of twenty-six to nineteen.
It was still in the power of Charles to save Strafford by refusing his assent to the bill; and he had made a solemn and written promise to deliver him from his enemies in the last extremity, by the exercise of the royal prerogative. But, with his constitutional fickleness, he yielded; and then, to pacify his conscience, he sent a letter to the Lords asking the consent of Parliament, that he might "moderate the severity of law in so important a case." Still, with that weakness, amounting to fatuity, which so often marked his conduct, he nullified his own request by that celebrated postscript, "If he must die, it were charity to reprieve him till Saturday!" As might have been expected, the Earl was executed the next day, May 12th, 1641. The House of Commons, however, with a generosity never manifested before or since in such a case, immediately passed a bill to relieve his descendants from the penalties of forfeiture and corruption of blood.
It is now generally admitted that, in a moral point of view, Strafford richly merited the punishment he received. On the question of legal right, it may be proper to say, that while the doctrine of constructive treason under an impeachment can not be too strongly condemned, the proceedings under a bill of attainder were of a different nature. "Acts of Parliament," says Blackstone, "to attaint particular persons of treason, are to all intents and purposes new laws made pro re nata, and by no means an execution of such as are already in being." They are, from their very nature, ex post facto laws. They proceed on the principle that while judicial courts are to be governed by the strict letter of the law, as previously known and established, Parliament, in exercising the high sovereignty of the state, may, "on great and crying occasions," arrest some enormous offender in the midst of his crimes, and inflict upon him the punishment he so richly deserves, even in cases where, owing to a defect in the law, or to the arts of successful evasion, it is impossible to reach him by means of impeachment, or through the ordinary tribunals of justice. Such a power is obviously liable to great abuses; and it is, therefore, expressly interdicted to Congress in the Constitution of the United States. But it has always belonged, and still belongs, to the Parliament of Great Britain, though for many years it has ceased to be exercised in this form. The principle of retrospective punishment (the only thing really objectionable in this case) has, indeed, come down in a milder form to a very late period of English history. We find it in those bills of "pains and penalties," which, as Hallam observes, "have, in times of comparative moderation and tranquillity, been sometimes thought necessary to visit some unforeseen and anomalous transgression, beyond the reach of our penal code." Mr. Macaulay maintains that the Earl's death, under existing circumstances, was absolutely necessary; "that, during the civil wars, the Parliament had reason to rejoice that an irreversible law and an impassable barrier protected them from the valor and rapacity of Strafford." Those who think differently on this point must at least agree with Hallam, that "he died justly before God and man; though we may deem the precedent dangerous, and the better course of a magnanimous lenity rejected; and in condemning the bill of attainder, we can not look upon it as a crime."