Critical and Historical Essays. Volume 1

As soon as Elizabeth ascended the throne, and before the least hostility to her government had been shown by the Catholic population, an act passed prohibiting the celebration of the rites of the Romish Church on pain of forfeiture for the first offence, of a year’s imprisonment for the second, and of perpetual imprisonment for the third.

A law was next made in 1562, enacting, that all who had ever graduated at the Universities or received holy orders, all lawyers, and all magistrates, should take the oath of supremacy when tendered to them, on pain of forfeiture and imprisonment during the royal pleasure. After the lapse of three mouths, the oath might again be tendered to them; and if it were again refused, the recusant was guilty of high treason. A prospective law, however severe, framed to exclude Catholics from the liberal professions, would have been mercy itself compared with this odious act. It is a retrospective statute; it is a retrospective penal statute; it is a retrospective penal statute against a large class. We will not positively affirm that a law of this description must always, and under all circumstances, be unjustifiable. But the presumption against it is most violent; nor do we remember any crisis either in our own history, or in the history of any other country, which would have rendered such a provision necessary. In the present case, what circumstances called for extraordinary rigour? There might be disaffection among the Catholics. The prohibition of their worship would naturally produce it. But it is from their situation, not from their conduct, from the wrongs which they had suffered, not from those which they had committed, that the existence of discontent among them must be inferred. There were libels, no doubt, and prophecies, and rumours and suspicions, strange grounds for a law inflicting capital penalties, ex post facto, on a large body of men.

Eight years later, the bull of Pius deposing Elizabeth produced a third law. This law, to which alone, as we conceive, the defence now under our consideration can apply, provides that, if any Catholic shall convert a Protestant to the Romish Church, they shall both suffer death as for high treason.

We believe that we might safely content ourselves with stating the fact, and leaving it to the judgment of every plain Englishman. Recent controversies have, however, given so much importance to this subject, that we will offer a few remarks on it.

In the first place, the arguments which are urged in favour of Elizabeth apply with much greater force to the case of her sister Mary. The Catholics did not, at the time of Elizabeth’s accession, rise in arms to seat a Pretender on her throne. But before Mary had given, or could give, provocation, the most distinguished Protestants attempted to set aside her rights in favour of the Lady Jane. That attempt, and the subsequent insurrection of Wyatt, furnished at least as good a plea for the burning of Protestants, as the conspiracies against Elizabeth furnish for the hanging and embowelling of Papists.

The fact is that both pleas are worthless alike. If such arguments are to pass current, it will be easy to prove that there was never such a thing as religious persecution since the creation. For there never was a religious persecution in which some odious crime was not, justly or unjustly, said to be obviously deducible from the doctrines of the persecuted party. We might say, that the Caesars did not persecute the Christians; that they only punished men who were charged, rightly or wrongly, with burning Rome, and with committing the foulest abominations in secret assemblies; and that the refusal to throw frankincense on the altar of Jupiter was not the crime, but only evidence of the crime. We might say, that the massacre of St. Bartholomew was intended to extirpate, not a religious sect, but a political party. For, beyond all doubt, the proceedings of the Huguenots, from the conspiracy of Amboise to the battle of Moncontour, had given much more trouble to the French monarchy than the Catholics have ever given to the English monarchy since the Reformation; and that too with much less excuse.

The true distinction is perfectly obvious. To punish a man because he has committed a crime, or because he is believed, though unjustly, to have committed a crime, is not persecution. To punish a man, because we infer from the nature of some doctrine which he holds, or from the conduct of other persons who hold the same doctrines with him, that he will commit a crime is persecution, and is, in every case, foolish and wicked.

When Elizabeth put Ballard and Babington to death, she was not persecuting. Nor should we have accused her government of persecution for passing any law, however severe, against overt acts of sedition. But to argue that, because a man is a Catholic, he must think it right to murder a heretical sovereign, and that because he thinks it right, he will attempt to do it, and then, to found on this conclusion a law for punishing him as if he had done it, is plain persecution.

If, indeed, all men reasoned in the same manner on the same data, and always did what they thought it their duty to do, this mode of dispensing punishment might be extremely judicious. But as people who agree about premises often disagree about conclusions, and as no man in the world acts up to his own standard of right, there are two enormous gaps in the logic by which alone penalties for opinions can be defended. The doctrine of reprobation, in the judgment of many very able men, follows by syllogistic necessity from the doctrine of election. Others conceive that the Antinomian heresy directly follows from the doctrine of reprobation; and it is very generally thought that licentiousness and cruelty of the worst description are likely to be the fruits, as they often have been the fruits, of Antinomian opinions. This chain of reasoning, we think, is as perfect in all its parts as that which makes out a Papist to be necessarily a traitor. Yet it would be rather a strong measure to hang all the Calvinists, on the ground that if they were spared, they would infallibly commit all the atrocities of Matthias and Knipperdoling. For, reason the matter as we may, experience shows us that a man may believe in election without believing in reprobation, that he may believe in reprobation without being an Antinomian, and that he may be an Antinomian without being a bad citizen. Man, in short, is so inconsistent a creature that it is impossible to reason from his belief to his conduct, or from one part of his belief to another.

We do not believe that every Englishman who was reconciled to the Catholic Church would, as a necessary consequence, have thought himself justified in deposing or assassinating Elizabeth. It is not sufficient to say that the convert must have acknowledged the authority of the Pope, and that the Pope had issued a bull against the Queen. We know through what strange loopholes the human mind contrives to escape, when it wishes to avoid a disagreeable inference from an admitted proposition. We know how long the Jansenists contrived to believe the Pope infallible in matters of doctrine, and at the same time to believe doctrines which he pronounced to be heretical. Let it pass, however, that every Catholic in the kingdom thought that Elizabeth might be lawfully murdered. Still the old maxim, that what is the business of everybody is the business of nobody, is particularly likely to hold good in a case in which a cruel death is the almost inevitable consequence of making any attempt.

Of the ten thousand clergymen of the Church of England, there is scarcely one who would not say that a man who should leave his country and friends to preach the Gospel among savages, and who should, after labouring indefatigably without any hope of reward, terminate his life by martyrdom, would deserve the warmest admiration. Yet we can doubt whether ten of the ten thousand ever thought of going on such an expedition. Why should we suppose that conscientious motives, feeble as they are constantly found to be in a good cause, should be omnipotent for evil? Doubtless there was many a jolly Popish priest in the old manor-houses of the northern counties, who would have admitted, in theory, the deposing power of the Pope, but who would not have been ambitious to be stretched on the rack, even though it were to be used, according to the benevolent proviso of Lord Burleigh, “as charitably as such a thing can be,” or to be hanged, drawn, and quartered, even though, by that rare indulgence which the Queen, of her special grace, certain knowledge, and mere motion, sometimes extended to very mitigated cases, he were allowed a fair time to choke before the hangman began to grabble in his entrails.

But the laws passed against the Puritans had not even the wretched excuse which we have been considering. In this case, the cruelty was equal, the danger, infinitely less. In fact, the danger was created solely by the cruelty. But it is superfluous to press the argument. By no artifice of ingenuity can the stigma of persecution, the worst blemish of the English Church, be effaced or patched over. Her doctrines, we well know, do not tend to intolerance. She admits the possibility of salvation out of her own pale. But this circumstance, in itself honourable to her, aggravates the sin and the shame of those who persecuted in her name. Dominic and De Montfort did not, at least, murder and torture for differences of opinion which they considered as trifling. It was to stop an infection which, as they believed, hurried to certain perdition every soul which it seized, that they employed their fire and steel. The measures of the English government with respect to the Papists and Puritans sprang from a widely different principle. If those who deny that the founders of the Church were guilty of religious persecution mean only that the founders of the Church were not influenced by any religious motive, we perfectly agree with them. Neither the penal code of Elizabeth, nor the more hateful system by which Charles the Second attempted to force Episcopacy on the Scotch, had an origin so noble. The cause is to be sought in some circumstances which attended the Reformation in England, circumstances of which the effects long continued to be felt, and may in some degree be traced even at the present day.

In Germany, in France, in Switzerland, and in Scotland, the contest against the Papal power was essentially a religious contest. In all those countries, indeed, the cause of the Reformation, like every other great cause, attracted to itself many supporters influenced by no conscientious principle, many who quitted the Established Church only because they thought her in danger, many who were weary of her restraints, and many who were greedy for her spoils. But it was not by these adherents that the separation was there conducted. They were welcome auxiliaries; their support was too often purchased by unworthy compliances; but, however exalted in rank or power, they were not the leaders in the enterprise. Men of a widely different description, men who redeemed great infirmities and errors by sincerity, disinterestedness, energy and courage, men who, with many of the vices of revolutionary chiefs and of polemic divines, united some of the highest qualities of apostles, were the real directors. They might be violent in innovation and scurrilous in controversy. They might sometimes act with inexcusable severity towards opponents, and sometimes connive disreputably at the vices of powerful allies. But fear was not in them, nor hypocrisy, nor avarice, nor any petty selfishness. Their one great object was the demolition of the idols and the purification of the sanctuary. If they were too indulgent to the failings of eminent men from whose patronage they expected advantage to the church, they never flinched before persecuting tyrants and hostile armies. For that theological system to which they sacrificed the lives of others without scruple, they were ready to throw away their own lives without fear. Such were the authors of the great schism on the Continent and in the northern part of this island. The Elector of Saxony and the Landgrave of Hesse, the Prince of Conde and the King of Navarre, the Earl of Moray and the Earl of Morton, might espouse the Protestant opinions, or might pretend to espouse them; but it was from Luther, from Calvin, from Knox, that the Reformation took its character.

England has no such names to show; not that she wanted men of sincere piety, of deep learning, of steady and adventurous courage. But these were thrown into the background. Elsewhere men of this character were the principals. Here they acted a secondary part. Elsewhere worldliness was the tool of zeal. Here zeal was the tool of worldliness. A King, whose character may be best described by saying that he was despotism itself personified, unprincipled ministers, a rapacious aristocracy, a servile Parliament, such were the instruments by which England was delivered from the yoke of Rome. The work which had been begun by Henry, the murderer of his wives, was continued by Somerset, the murderer of his brother, and completed by Elizabeth, the murderer of her guest. Sprung from brutal passion, nurtured by selfish policy, the Reformation in England displayed little of what had, in other countries, distinguished it; unflinching and unsparing devotion, boldness of speech, and singleness of eye. These were indeed to be found; but it was in the lower ranks of the party which opposed the authority of Rome, in such men as Hooper, Latimer, Rogers, and Taylor. Of those who had any important share in bringing the Reformation about, Ridley was perhaps the only person who did not consider it as a mere political job. Even Ridley did not play a very prominent part. Among the statesmen and prelates who principally gave the tone to the religious changes, there is one, and one only, whose conduct partiality itself can attribute to any other than interested motives. It is not strange, therefore, that his character should have been the subject of fierce controversy. We need not say that we speak of Cranmer.

Mr. Hallam has been severely censured for saying with his usual placid severity, that, “if we weigh the character of this prelate in an equal balance, he will appear far indeed removed from the turpitude imputed to him, by his enemies; yet not entitled to any extraordinary veneration.” We will venture to expand the sense of Mr. Hallam, and to comment on it thus:—If we consider Cranmer merely as a statesman, he will not appear a much worse man than Wolsey, Gardiner, Cromwell, or Somerset. But, when an attempt is made to set him up as a saint, it is scarcely possible for any man of sense who knows the history of the times to preserve his gravity. If the memory of the archbishop had been left to find its own place, he would have soon been lost among the crowd which is mingled

“A quel cattivo coro
Degli angeli, che non furon ribelli,
Ne fur fedelia Dio, per se foro.”

And the only notice which it would have been necessary to take of his name would have been

“Non ragioniam di lui; ma guarda, e passa.”

But, since his admirers challenge for him a place in the noble army of martyrs, his claims require fuller discussion.

The origin of his greatness, common enough in the scandalous chronicles of courts, seems strangely out of place in a hagiology. Cranmer rose into favour by serving Henry in the disgraceful affair of his first divorce. He promoted the marriage of Anne Boleyn with the King. On a frivolous pretence he pronounced that marriage null and void. On a pretence, if possible still more frivolous, he dissolved the ties which bound the shameless tyrant to Anne of Cleves. He attached himself to Cromwell while the fortunes of Cromwell flourished. He voted for cutting off Cromwell’s head without a trial, when the tide of royal favour turned. He conformed backwards and forwards as the King changed his mind. He assisted, while Henry lived, in condemning to the flames those who denied the doctrine of transubstantiation. He found out, as soon as Henry was dead, that the doctrine was false. He was, however, not at a loss for people to burn. The authority of his station and of his grey hairs was employed to overcome the disgust with which an intelligent and virtuous child regarded persecution. Intolerance is always bad. But the sanguinary intolerance of a man who thus wavered in his creed excites a loathing, to which it is difficult to give vent without calling foul names. Equally false to political and to religious obligations, the primate was first the tool of Somerset, and then the tool of Northumberland. When the Protector wished to put his own brother to death, without even the semblance of a trial, he found a ready instrument in Cranmer. In spite of the canon law, which forbade a churchman to take any part in matters of blood, the archbishop signed the warrant for the atrocious sentence. When Somerset had been in his turn destroyed, his destroyer received the support of Cranmer in a wicked attempt to change the course of the succession.

The apology made for him by his admirers only renders his conduct more contemptible. He complied, it is said, against his better judgment, because he could not resist the entreaties of Edward. A holy prelate of sixty, one would think, might be better employed by the bedside of a dying child, than in committing crimes at the request of the young disciple. If Cranmer had shown half as much firmness when Edward requested him to commit treason as he had before shown when Edward requested him not to commit murder, he might have saved the country from one of the greatest misfortunes that it ever underwent. He became, from whatever motive, the accomplice of the worthless Dudley. The virtuous scruples of another young and amiable mind were to be overcome. As Edward had been forced into persecution, Jane was to be seduced into treason. No transaction in our annals is more unjustifiable than this. If a hereditary title were to be respected, Mary possessed it. If a parliamentary title were preferable, Mary possessed that also. If the interest of the Protestant religion required a departure from the ordinary rule of succession, that interest would have been best served by raising Elizabeth to the throne. If the foreign relations of the kingdom were considered, still stronger reasons might be found for preferring Elizabeth to Jane. There was great doubt whether Jane or the Queen of Scotland had the better claim; and that doubt would, in all probability, have produced a war both with Scotland and with France, if the project of Northumberland had not been blasted in its infancy. That Elizabeth had a better claim than the Queen of Scotland was indisputable. To the part which Cranmer, and unfortunately some better men than Cranmer, took in this most reprehensible scheme, much of the severity with which the Protestants were afterwards treated must in fairness be ascribed.

The plot failed; Popery triumphed; and Cranmer recanted. Most people look on his recantation as a single blemish on an honourable life, the frailty of an unguarded moment. But, in fact, his recantation was in strict accordance with the system on which he had constantly acted. It was part of a regular habit. It was not the first recantation that he had made; and, in all probability, if it had answered its purpose, it would not have been the last. We do not blame him for not choosing to be burned alive. It is no very severe reproach to any person that he does not possess heroic fortitude. But surely a man who liked the fire so little should have had some sympathy for others. A persecutor who inflicts nothing which he is not ready to endure deserves some respect. But when a man who loves his doctrines more than the lives of his neighbours, loves his own little finger better than his doctrines, a very simple argument a fortiori will enable us to estimate the amount of his benevolence.

But his martyrdom, it is said, redeemed everything. It is extraordinary that so much ignorance should exist on this subject. The fact is that, if a martyr be a man who chooses to die rather than to renounce his opinions, Cranmer was no more a martyr than Dr. Dodd. He died solely because he could not help it. He never retracted his recantation till he found he had made it in vain. The Queen was fully resolved that, Catholic or Protestant, he should burn. Then he spoke out, as people generally speak out when they are at the point of death and have nothing to hope or to fear on earth. If Mary had suffered him to live, we suspect that he would have heard mass and received absolution, like a good Catholic, till the accession of Elizabeth, and that he would then have purchased, by another apostasy, the power of burning men better and braver than himself.

We do not mean, however, to represent him as a monster of wickedness. He was not wantonly cruel or treacherous. He was merely a supple, timid, interested courtier, in times of frequent and violent change. That which has always been represented as his distinguishing virtue, the facility with which he forgave his enemies, belongs to the character. Slaves of his class are never vindictive, and never grateful. A present interest effaces past services and past injuries from their minds together. Their only object is self-preservation; and for this they conciliate those who wrong them, just as they abandon those who serve them. Before we extol a man for his forgiving temper, we should inquire whether he is above revenge, or below it.

Somerset had as little principle as his coadjutor. Of Henry, an orthodox Catholic, except that he chose to be his own Pope, and of Elizabeth, who certainly had no objection to the theology of Rome, we need say nothing. These four persons were the great authors of the English Reformation. Three of them had a direct interest in the extension of the royal prerogative. The fourth was the ready tool of any who could frighten him. It is not difficult to see from what motives, and on what plan, such persons would be inclined to remodel the Church. The scheme was merely to transfer the full cup of sorceries from the Babylonian enchantress to other hands, spilling as little as possible by the way. The Catholic doctrines and rites were to be retained in the Church of England. But the King was to exercise the control which had formerly belonged to the Roman Pontiff. In this Henry for a time succeeded. The extraordinary force of his character, the fortunate situation in which he stood with respect to foreign powers, and the vast resources which the suppression of the monasteries placed at his disposal, enabled him to oppress both the religious factions equally. He punished with impartial severity those who renounced the doctrines of Rome, and those who acknowledged her jurisdiction. The basis, however, on which he attempted to establish his power was too narrow to be durable. It would have been impossible even for him long to persecute both persuasions. Even under his reign there had been insurrections on the part of the Catholics, and signs of a spirit which was likely soon to produce insurrection on the part of the Protestants. It was plainly necessary, therefore, that the Crown should form an alliance with one or with the other side. To recognise the Papal supremacy, would have been to abandon the whole design. Reluctantly and sullenly the government at last joined the Protestants. In forming this junction, its object was to procure as much aid as possible for its selfish undertaking, and to make the smallest possible concessions to the spirit of religious innovation.

From this compromise the Church of England sprang. In many respects, indeed, it has been well for her that, in an age of exuberant zeal, her principal founders were mere politicians. To this circumstance she owes her moderate articles, her decent ceremonies, her noble and pathetic liturgy. Her worship is not disfigured by mummery. Yet she has preserved, in a far greater degree than any of her Protestant sisters, that art of striking the senses and filling the imagination in which the Catholic Church so eminently excels. But, on the other hand, she continued to be, for more than a hundred and fifty years, the servile handmaid of monarchy, the steady enemy of public liberty. The divine right of kings, and the duty of passively obeying all their commands, were her favourite tenets. She held those tenets firmly through times of oppression, persecution, and licentiousness; while law was trampled down; while judgment was perverted; while the people were eaten as though they were bread. Once, and but once, for a moment, and but for a moment, when her own dignity and property were touched, she forgot to practise the submission which she had taught.

Elizabeth clearly discerned the advantages which were to be derived from a close connection between the monarchy and the priesthood. At the time of her accession, indeed, she evidently meditated a partial reconciliation with Rome; and, throughout her whole life, she leaned strongly to some of the most obnoxious parts of the Catholic system. But her imperious temper, her keen sagacity, and her peculiar situation, soon led her to attach herself completely to a church which was all her own. On the same principle on which she joined it, she attempted to drive all her people within its pale by persecution. She supported it by severe penal laws, not because she thought conformity to its discipline necessary to salvation; but because it was the fastness which arbitrary power was making strong for itself, because she expected a more profound obedience from those who saw in her both their civil and their ecclesiastical chief than from those who, like the Papists, ascribed spiritual authority to the Pope, or from those who, like some of the Puritans, ascribed it only to Heaven. To dissent from her establishment was to dissent from an institution founded with an express view to the maintenance and extension of the royal prerogative.

This great Queen and her successors, by considering conformity and loyalty as identical at length made them so. With respect to the Catholics, indeed, the rigour of persecution abated after her death. James soon found that they were unable to injure him, and that the animosity which the Puritan party felt towards them drove them of necessity to take refuge under his throne. During the subsequent conflict, their fault was anything but disloyalty. On the other hand, James hated the Puritans with more than the hatred of Elizabeth. Her aversion to them was political; his was personal. The sect had plagued him in Scotland, where he was weak; and he was determined to be even with them in England, where he was powerful. Persecution gradually changed a sect into a faction. That there was anything in the religious opinions of the Puritans which rendered them hostile to monarchy has never been proved to our satisfaction. After our civil contests, it became the fashion to say that Presbyterianism was connected with Republicanism; just as it has been the fashion to say, since the time of the French Revolution, that Infidelity is connected with Republicanism. It is perfectly true that a church constituted on the Calvinistic model will not strengthen the hands of the sovereign so much as a hierarchy which consists of several ranks, differing in dignity and emolument, and of which all the members are constantly looking to the Government for promotion. But experience has clearly shown that a Calvinistic church, like every other church, is disaffected when it is persecuted, quiet when it is tolerated, and actively loyal when it is favoured and cherished. Scotland has had a Presbyterian establishment during a century and a half. Yet her General Assembly has not, during that period, given half so much trouble to the government as the Convocation of the Church of England gave during the thirty years which followed the Revolution. That James and Charles should have been mistaken in this point is not surprising. But we are astonished, we must confess, that men of our own time, men who have before them the proof of what toleration can effect, men who may see with their own eyes that the Presbyterians are no such monsters when government is wise enough to let them alone, should defend the persecutions of the sixteenth and seventeenth centuries as indispensable to the safety of the church and the throne.

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. Strafford 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, was too 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.