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ter were it to live by no laws at all; but to be had given a testimony of my integrity to my governed by those characters of virtue and dis-God, my King, and my country. I thank God, cretion, which Nature hath stamped upon us, I count not the afflictions of the present life to than to put this necessity of divination upon a be compared to that glory which is to be revealman, and to accuse him of a breach of law be- ed in the time to come! fore it is a law at all! If a waterman upon My Lords ! my Lords ! my Lords ! something the Thames split his boat by grating upon an more I had intended to say, but my voice and anchor, and the same have no buoy appended to my spirit fail me. Only I do in all humility and it, the owner of the anchor is to pay the loss; submission cast myself down at your Lordships' but if a buoy be set there, every man passeth feet, and desire that I may be a beacon to keep upon his own peril. Now where is the mark, you from shipwreck. Do not put such rocks in where is the token set upon the crime, to de- your own way, which no prudence, no circumclare it to be high treason ?
spection can eschew or satisfy, but by your utter My Lords, be pleased to give that regard to ruin ! the peerage of England as never to expose your- And so, my Lords, even so, with all tranquilselves to such moot points, such constructive in-lity of mind, I submit myself to your decision. terpretations of law. If there must be a trial And whether your judgment in my case-I wish of wits, let the subject matter be something else it were not the case of you all-be for life or for than the lives and honor of peers! It will be death, it shall be righteous in my eyes, and shall wisdom for yourselves and your posterity to cast be received with a Te Deum laudamus, we give into the fire these bloody and mysterious vol- God the praise. umes of constructive and arbitrary treason, as the primitive Christians did their books of curi- The House of Lords, after due deliberation, ous arts; and betake yourselves to the plain let- voted that the main facts alleged in the impeachter of the law and statute, which telleth what is ment had been proved in evidence; and referred and what is not treason, without being ambitious the question whether they involved the crime of to be more learned in the art of killing than our treason, to the decision of the judges of the Court forefathers. These gentlemen tell us that they of the King's Bench. Previous to this, howev. speak in defense of the Commonwealth against er, and even before the Earl had made his closmy arbitrary laws. Give me leave to say it, I ing argument, a new course of proceedings was speak in defense of the Commonwealth against adopted in the House of Commons. When the their arbitrary treason !
managers had finished their evidence and arguIt is now full two hundred and forty years ments as to the facts. alleged, a bill of attainder since any man was touched for this alleged crime against the Earl was brought into the House by to this height before myself. Let us not awa- Sir Arthur Haselrig. The reason for this proken those sleeping lions to our destruction, by cedure can not now be ascertained with any detaking up a few musty records that have lain gree of certainty. The friends of Strafford have by the walls for so many ages, forgotten or neg- always maintained, that such an impression had lected.
been made on the minds of the judges and audiMy Lords, what is my present misfortune ence during the progress of the trial, as to turn may be forever yours! It is not the smallest the tide in his favor; and that his accusers, fearpart of my grief that not the crime of treason, ing he might be acquitted, resorted to this measbut my other sins, which are exceeding many, ure for the purpose of securing his condemnahave brought me to this bar; and, except your tion. Such may have been the fact; but the Lordships' wisdom provide against it, the shed- Commons, in their conference with the Lords, ding of
way for the tracing April 15, declared that this was the course they out of yours. You, your ESTATES, Your pos- had originally intended to pursue, "that the evTERITY, LIE AT THE STAKE!
idences of the fact being given, it was proposed For my poor self, if it were not for your Lord- from the beginning to go by way of bill, and ships' interest, and the interest of a saint in that they had accordingly brought in a bill for heaven, who hath left me here two pledges on his attainder.” St. John, their legal manager, earth—[at this his breath stopped, and he shed positively denied that they were seeking to avoid tears abundantly in mentioning his wife]—I the judicial mode of proceeding; and, "what is should never take the pains to keep up this ru- stronger," as Hallam remarks, "the Lords voted inous cottage of mine. It is loaded with such on the articles judicially, and not as if they were infirmities, that in truth I have no great pleas- enacting a legislative measure." Still the bill ure to carry it about with me any longer. Nor of attainder was strenuously opposed by a few could I ever leave it at a fitter time than this, individuals in the House, and especially by Lord when I hope that the better part of the world Digby, in his celebrated speech on the subject, would perhaps think that by my misfortunes Il which will next be given.
LORD DIG BY. GEORGE DIGBY, oldest son of the Earl of Bristol, was born at Madrid in 1612, during the residence of his father in that city as English embassador to the Court of Spain. He was educated at Magdalen College, Oxford ; and entered into public life at the age of twenty-eight, being returned member of Parliament for the county of Dorset, in April, 1640. In common with his father, who had incurred the displeasure of the King by his impeachment of Buckingham in 1626, Lord Digby came forward at an early period of the session, as an open and determined enemy of the Court. Among the “Speeches relative to Grievances,” his, as representative of Dorsetshire, was one of the most bold and impassioned. His argument shortly after in favor of triennial Parliaments, was characterized by a still higher order of eloquence; and in the course of it he made a bitter attack upon Strafford, in showing the necessity of frequent Parliaments as a control upon ministers, declaring " he must not expect to be pardoned in this world till he is dispatched to the other."
From the ardor with which he expressed these sentiments, and the leading part he took in every measure for the defense of the people's rights, Lord Digby was appointed one of the managers for the impeachment of Strafford. Into this he entered, for a time, with the utmost zeal. He is described by Clarendon as a man of uncommon activity of mind and fertility of invention ; bold and impetuous in whatever designs he undertook ; but deficient in judgment, inordinately vain and ambitious, of a volatile and unquiet spirit, disposed to separate councils, and governed more by impulse than by fixed principles. Whether the course he took in respect to the attainder of Strafford ought to be referred in any degree to the last-mentioned traits of character, or solely to a sense of justice, a conviction forced upon him in the progress of the trial that the testimony had failed to sustain the charge of treason, can not, perhaps, be decided at the present day. The internal evidence afforded by the speech, is strongly in favor of his honesty and rectitude of intention. He appears throughout like one who was conscious of having gone too far; and who was determined to retrieve his error, at whatever expense of popular odium it might cost him. Had he stopped here, there would have been no ground for imputations on his character. But he almost instantly changed the whole tenor of his political life. He abandoned his former principles; he joined the Court party; and did more, as we learn from Clarendon, to ruin Charles by his rashness and pertinacity, than any other man. But, whatever may be thought of Digby, the speech is one of great manliness and force. It is plausible in its statements, just in its distinctions, and weighty in its reasonings. Without exhibiting any great superiority of genius, and especially any richness of imagination, it presents us with a rapid succession of striking and appropriate thoughts, clearly arranged and vividly expressed In one respect, the diction is worthy of being studied. It abounds in those direct and pointed forms of speech, which sink at once into the heart; and by their very plainness give an air of perfect sincerity to the speaker, which of all things is the most important to one who is contending (as he was) against the force of popular prejudic. Much of the celebrity attached to this speech is owing, no doubt, to the circumstances under which it was delivered. The House of Commons must have presented a scene of the most exciting nature when, at the moment of taking the final vote on the bill, one of the managers of the impeachment came forward to abandon his ground; to disclose the proceedings of the committee in secret session; and to denounce the condemnation of Strafford by a bill of attainder, as an act of murder.
OF LORD DIGBY ON THE BILL OF ATTAINDER AGAINST THE EARL OF
IN THE HOUSE OF COMMONS, APRIL 21, 1641.
We are now upon the point of giving, as much was formerly, by putting you in mind of the disas in us lies, the final sentence unto death or life, ference between prosecutors and judges—how on a great minister of state and peer of this king- misbecoming that fervor would be in a judge dom, Thomas, Earl of Strafford, a name of ha- which, perhaps, was commendable in a prosetred in the present age for his practices, and fit cutor. Judges we are now, and must, therefore, to be made a terror to future ages by his punish- put on another personage. It is honest and noment.
ble to be earnest in order to the discovery of I have had the honor to be employed by the truth; but when that hath been brought so far as House in this great business, from the first hour it can be to light, our judgment thereupon ought that it was taken into consideration. It was a to be calm and cautious. In prosecution upon matter of great trust; and I will say with con- probable grounds, we are accountable only for fidence that I have served the House in it, not our industry or remissness; but in judgment, we only with industry, according to my ability, but are deeply responsible to Almighty God for its with most exact faithfulness and justice. rectitude or obliquity. In cases of life, the judge
And as I have hitherto discharged my duty is God's steward of the party's blood, and must to this House and to my country in the progress give a strict account for every drop. of this great cause, so I trust I shall do now, in But, as I told you, Mr. Speaker, I will not inthe last period of it, to God and to a good con- sist long upon this ground of difference in me science. I do wish the peace of that to myself, now from what I was formerly. The truth of and the blessing of Almighty God to me and it is, sir, the same ground whereupon I with the my posterity, according as my judgment on the rest of the few to whom you first committed the life of this man shall be consonant with my heart, consideration of my Lord Strafford, brought down and the best of my understanding in all integrity. our opinion that it was fit he should be accused
I know well that by some things I have said of treason—upon the same ground, I was enof late, while this bill was in agitation, I have gaged with earnestness in his prosecution ; and raised some prejudices against me in the cause. had the same ground remained in that force of Yea, some (I thank them for their plain dealing) belief in me, which till very lately it did, I should have been so free as to tell me, that I have suf- not have been tender in his condemnation. But fered much by the backwardness I have shown truly, sir, to deal plainly with you, that ground in the bill of attainder of the Earl of Strafford, of our accusation—that which should be the baagainst whom I have formerly been so keen, so sis of our judgment of the Earl of Strafford as to active.
treason-is, to my understanding, quite vanished I beg of you, Mr. Speaker, and the rest, but away. a suspension of judgment concerning me, till I This it was, Mr. Speaker-his advising the have opened my heart to you, clearly and freely, King to employ the army in Ireland to reduce in this business. Truly, sir, I am still the same England. This I was assured would be proved, in my opinion and affections as to the Earl of before I gave my consent to his accusation. I Strafford. I confidently believe him to be the was confirmed in the same belief during the prosmost dangerous minister, the most insupportable ecution, and fortified most of all in it, after Sir to free subjects, that can be charactered. I be- Henry Vane's preparatory examination, by aslieve his practices in themselves to have been as surances which that worthy member Mr. Pym high and tyrannical as any subject ever ventured gave me, that his testimony would be made conon; and the malignity of them greatly aggrava- vincing by some notes of what passed at the ted by those rare abilities of his, whereof God Junto (Privy Council) concurrent with it. This hath given him the use, but the devil the appli- I ever understood would be of some other councation. In a word, I believe him to be still that selor; but you see now, it proves only to be a grand apostate to the Commonwealth, who must copy of the same secretary's notes, discovered not expect to be pardoned in this world till he and produced in the manner you have heard ; be dispatched to the other.
and those such disjointed fragments of the venAnd yet let me tell you, Mr. Speaker, my hand omous part of discourses—no results, no conclumust not be to that dispatch. I protest, as my sions of councils, which are the only things that conscience stands informed, I had rather it were secretaries should register, there being no use Bat, sir, this is not that which overthrows the high with me. I can find a more easy and natevidence with me concerning the army in Ireland, ural spring from whence to derive all his other nor yet that all the rest of the Junto remember crimes, than from an intent to bring in tyranny, nothing of it; but this, sir, which I shall tell you, and make his own posterity, as well as us, slaves ; is that which works with me, under favor, to viz., from revenge, from pride, from passion, and an utter overthrow of his evidence as touching from insolence of nature. But had this of the the army of Ireland. Before, while I was pros- Irish army been proved, it would have diffused ecutor, and under tie of secrecy, I might not dis- a complexion of treason over all. It would have cover (disclose) any weakness of the cause, which been a withe indeed, to bind all those other scatnow, as judge, I must.
of the other but to accuse and bring men into Let me unfold to you the mystery, Mr. Speak- danger.' er: I will not dwell much upon justifying to you my seeming variance at this time from what I i See Strafford's reply on this subject, p. 12.
tered and lesser branches, as it were, into a fagMr. Secretary Vane was examined thrice upon ot of treason. oath at the preparatory committee. The first I do not say but the rest of the things charged time he was questioned as to all the interrogato. may represent him a man as worthy to die, and ries; and to that part of the seventh which con- perhaps worthier than many a traitor. I do not cerns the army in Ireland, he said positively these say but they may justly direct us to enact that words: "I can not charge him with that;" but they shall be treason for the future. But God for the rest, he desired time to recollect himself
, keep me from giving judgment of death on any which was granted him. Some days after, he man, and of ruin to his innocent posterity, upon was examined a second time, and then deposed a law made à posteriori. Let the mark be set these words concerning the King's being absolv- on the door where the plague is, and then let ed from rules of government, and so forth, very him that will enter, die. clearly. But being pressed as to that part con- I know, Mr. Speaker, there is in Parliament cerning the Irish army, again he said he could a double power of life and death by bill; a jusay " nothing to that.” Here we thought we dicial power, and a legislative. The measure had done with him, till divers weeks after, my of the one is, what is legally just; of the other, Lord of Northumberland, and all others of the what is prudentially and politically fit for the Junto, denying to have heard any thing concern- good and preservation of the whole. But these ing those words of reducing England by the Irish two, under favor, are not to be confounded in army, it was thought fit to examine the secretary judgment. We must not piece out want of leonce more ; and then he deposed these words to gality with matter of convenience, nor the de. have been spoken by the Earl of Strafford to his failance of prudential fitness with a pretense of Majesty: “ You have an army in Ireland, which legal justice. you may employ here to reduce (or some word To condemn my Lord of Strafford judicially, to that sense) this kingdom.” Mr. Speaker, as for treason, my conscience is not assured that these are the circumstances which I confess with the matter will bear it; and to do it by the leg. my conscience, thrust quite out of doors that islative power, my reason consultively can not grand article of our charge concerning his des- agree to that, since I am persuaded that neither perate advice to the King of employing the Irish the Lords nor the King will pass this bill; and, army here.
consequently, that our passing it will be a cause Let not this, I beseech you, be driven to an of great divisions, and contentions in the state. aspersion upon Mr. Secretary, as if he should Therefore my humble advice is, that, laying have sworn otherwise than he knew or believed. aside this bill of attainder, we may think of anHe is too worthy to do that. Only let this much other, saving only life; such as may secure the be inferred from it, that he, who twice upon oath, state from my Lord of Strafford, without endanwith time of recollection, could not remember any gering it as much by division concerning his thing of such a business, might well, a third time, punishment, as he hath endangered it by his misremember somewhat; and in this business practices. the difference of one word “here" for "there," If this may not be hearkened unto, let me or "that” for “this," quite alters the case; the conclude in saying that to you all, which I have latter also being the more probable, since it is thoroughly inculcated upon mine own conconfessed on all hands that the debate then was science, on this occasion. Let every man lay concerning a war with Scotland. And you may his hand upon his own heart, and seriously conremember, that at the bar he once said "employ sider what we are going to do with a breath : there." And thus, Mr. Speaker, have I faithfully either justice or murder-justice on the one side, given you an account what it is that hath blunt- or murder, heightened and aggravated to its sued the edge of the hatchet, or bill, with me, to- premest extent, on the other! For, as the cas. ward my Lord Strafford.
uists say, He who lies with his sister commits inThis was that whereapon I accused him with cest; but he that marries his sister, sins higher, by a free heart; prosecuted him with earnestness ; applying God's ordinance to his crime; so, doubt. and had it to my understanding been proved, less, he that commits murder with the sword of should have condemned him with innocence; justice, heightens that crime to the utmost. whereas now I can not satisfy my conscience to do it. I profess I can have no notion of any body's cible at that time, when the plague had recently
* This image was peculiarly appropriate and for. intent to subvert the laws treasonably, but by prevailed in London, and a mark was placed by the force; and this design of force not appearing, all magistrates on infected dwellings as a warning not bis other wicked practices can not amount so to enter.
LORD DIGBY AGAINST THE ATTAINDER OF STRAFFORD. [1641. The danger being so great, and the case so that weakness, amounting to fatuity, which so doubtful, that I see the best lawyers in diamet- often marked his conduct, he nullified bis own rical opposition concerning it; let every man request by that celebrated postscript, “ If he wipe his heart as he does his eyes, when he must die, it were charity to reprieve him till would judge of a nice and subtle object. The Saturday !” As might have been expected, the eye, il it be pre-tinctured with any color, is vi- Earl was executed the next day, May 12th, tiated in its discerning. Let us take heed of a 1641. The House of Commons, however, with blood-shotten eye in judgment. Let every man a generosity never manifested before or since in purge his heart clear of all passions. I know such a case, immediately passed a bill to relieve this great and wise body politic can have none; his descendants from the penalties of forfeiture but I speak to individuals from the weakness and corruption of blood. which I find in myself. Away with personal It is now generally admitted that, in a moral animosities ! Away with all flatteries to the point of view, Strafford richly merited the punpeople, in being the sharper against him because ishment he received. On the question of legal he is odious to them! Away with all fears, lest right, it may be proper to say, that while the by sparing bis blood they may be incensed ! doctrine of constructive treason under an imA way with all such considerations, as that it is peachment can not be too strongly condemned, not fit for a Parliament that one accused by it of the proceedings under a bill of attainder were treason, should escape with life! Let not for- of a different nature. “Acts of Parliament," mer vehemence of any against him, nor fear from says Blackstone,“ to attaint particular persons thence that he can not be safe while that man of treason, are to all intents and purposes new lives, be an ingredient in the sentence of any laws made pro re nata, and by no means an exone of us.
ecution of such as are already in being." They of all these corruptives of judgment, Mr. are, from their very nature, ex post facto laws. Speaker, I do, before God, discharge myself to They proceed on the principle that while judicial the utmost of my power; and do now, with a courts are to be governed by the strict letter of clear conscience, wash my hands of this man's the law, as previously known and established, blood by this solemn protestation, that my vote Parliament, in exercising the high sovereignty goes not to the taking of the Earl of Strafford's of the state, may, on great and crying occalife.
sions,” arrest some enormous offender in the midst of his crimes, and inflict upon him the
punishment he so richly deserves, even in cases Notwithstanding this eloquent appeal, the bill where, owing to a defect in the law, or to the of attainder was carried the same day in the arts of successful evasion, it is impossible to House, by a vote of two hundred and four to fifty- reach him by means of impeachment, or through nine.
the ordinary tribunals of justice.
Such a power The Lords had already decided in their ju. is obviously liable to great abuses ; and it is
, dicial capacity that the main facts alleged in the therefore, expressly interdicted to Congress in indictment were proved, and referred the points the Constitution of the United States. But it of law to the decision of the judges of the Court has always belonged, and still belongs to the of the King's Bench. On the seventh of May, Parliament of Great Britain, though for many " the Lord Chief Justice of the King's Bench de- years it has ceased to be exercised in this form. livered in to the Lords the unanimous decision of The principle of retrospective punishment (the all the judges present, 'That they are of opin- only thing really objectionable in this case) has, ion upon all which their Lordships had voted to indeed, come down in a milder form to a very be proved, that the Earl of Strafford doth deserve late period of English history. We find it in to undergo the pains and forfeitures of high those bills of "pains and penalties," which, as treason by law.' '.—Parl. Hist., vol. ii., p. 757. Hallam observes, “have, in times of comparaThe Lords now yielded the point of form to the tive moderation and tranquillity, been sometimes Commons; and as the penal consequences were thought necessary to visit some unforeseen and the same, instead of giving sentence under the anomalous transgression, beyond the reach of impeachment, they passed the bill of attainder our penal code." Mr. Macaulay maintains that the next day, May 8th, by a vote of twenty-six the Earl's death, under existing circumstances, to nineteen.
was absolutely necessary; "that, during the civil It was still in the power of Charles to save wars, the Parliament had reason to rejoice that Strafford by refusing his assent to the bill; and an irreversible law and an impassable barrier he had made a solemn and written promise to de protected them from the valor and rapacity of liver him from his enemies in the last extremity, Strafford." Those who think differently on this by the exercise of the royal prerogative. But, point must at least agree with Hallam, that “he with his constitutional fickleness, he yielded; died justly before God and man; though we may and then, to pacify his conscience, he sent a let- deem the precedent dangerous, and the better ter to the Lords asking the consent of Parlia. course of a magnanimous lenity rejected; and ment, that he might "moderate the severity of in condemning the bill of attainder, we can not the law in so important a case." Still, with look upon it as a crime.”