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OF LORD DIGBY ON THE BILL OF ATTAINDER AGAINST THE EARL OF STRAFFORD, DELIVERED

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 difas 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 in. the 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 bave 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 off.

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.

But, 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.

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 ju. say “nothing to that." Here we thought we dicial power, and a legislative. The measure had done with bim, 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 dehave 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 legmy 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 hi 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 casward my Lord Strafford.

uists say, He who lies with his sister commits inThis was that whereupon 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, doubtand had it to my understanding been proved, less, he that commits murder with the sword of should have condemned him with innocence; l justice, heightens that crime to the utmost. whereas now I can not satisfy my conscience to

* This image was peculiarly appropriate and for. do it. I profess I can have no notion of any body's

cible at that time, when the plague bad recently 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 his other wicked practices can not amount so to enter.

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 his 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, if 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 his blood they may be incensed ! doctrine of constructive treason under an imAway 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 lise! 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 laking 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) bas, 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 bad 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, Sirafford.' 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."

John Hamilton, LORD BELHAVEN.

The author of this speech belonged to the Hamilton family. He was one of the old Presbyterian lords, of high education, especially in classical literature ; lofty in his demeanor; dauntless in spirit; and wholly devoted to the peculiar interests of his country. The speech owes much of its celebrity to the circumstances under which it was delivered. It embodies the feelings of a proud and jealous people, when called upon to surrender their national independence, and submit to the authority of the British Parliament.

A century had now elapsed since the union of the English and Scottish crowns in the person of James I., and Scotland still remained a distinct kingdom, with its own Parliament, its own judicial system, its own immemorial usages which had all the force of law. This state of things, though gratifying to the pride of the Scottish people, was the source of endless jealousies and contentions between the two countries; and, as commonly happens in such cases, the weaker party suffered most. Scotland was governed by alternate corruption and force. Her nobility and gentry were drawn to England in great numbers by the attractions of the Court, as the seat of fashion, honor, and power. The nation was thus drained of her wealth ; and the drain became greater, as her merchants and tradesmen were led to transfer their capital to the sister kingdom, in consequence of the superior facilities for trade which were there enjoyed.

It was now apparent that Scotland could never flourish until she was permitted to share in those commercial advantages, from which she was debarred as a distinct country, by the Navigation Act of England. The Scotch were, therefore, clamorous in their demands for some arrangement to this effect. But the English had always looked with jealousy upon any intermeddling with trade, on the part of Scotland. They had crushed her African and India Company by their selfish opposition, and had left her Darien settlement of twelve hundred souls to perish for want of support and protection; so that few families in the Lowlands had escaped the loss of a relative or friend. Exasperated by these injuries, and by the evident determination of the English to cut them off from all participation in the benefits of trade, the Scotch were hurried into a measure of alarming aspect for the safety of the empire. Noble and burgher, Jacobite and Presbyterian, were for once united. There was one point where England was vulnerable. It was the succession to the crown. This had been settled by the English Parliament on the Protestant line in the house of Hanover, and the fullest expectations were entertained that the Parliament of Scotland would readily unite in the same measure. Instead of this, the Scotch, in 1704, passed their famous Act of Security, in which they threw down the gauntlet to England, and enacted, that “the same person should be incapable of succeeding in both kingdoms, unless a free communication of trade, the benefits of the Navigation Act, and liberty of the Plantations (i. e., of trading with the British West Indies and North America) was first obtained.” They also provided conditionally for a separate successor, and passed laws for arming the whole kingdom in his defense.

It was now obvious that concessions must be made on both sides, or the contest be decided by the sword. The ministry of Queen Anne, therefore, proposed that commissioners from the two kingdoms should meet at London, to devise a plan of

Union, which should be mutually advantageous to the two countries. This was accordingly done, in the month of April, 1706 ; and, after long negotiations, it was agreed, that the two kingdoms should be united into one under the British Parliament, with the addition of sixteen Scottish peers to the House of Lords, and of forty-five Scottish members to the House of Commons; that the Scotch should be entitled to all the privileges of the English in respect to trade, and be subject to the same excise and duties; that Scotland should receive £398,000 as a compensation or “ equivalent" for the share of liability she assumed in the English debt of £20,000,000; and that the churches of England and Scotland respectively should be confirmed in all their rights and privileges, as a fundamental condition of the Union.

These arrangements were kept secret until October, 1706, when the Scottish Parliament met to consider and decide on the plan proposed. The moment the Articles were read in that body, and given to the public in print, they were met with a burst of indignant reprobation from every quarter. A federal union which should confer equal advantages for trade, was all that the Scotch in general had ever contemplated : an incorporating union, which should abolish their Parliament and extinguish their national existence, was what most Scotchmen had never dreamed of. Nor is it surprising, aside from all considerations of national honor, that such a union should have been regarded with jealousy and dread.."No past experience of history," says Hallam, “ was favorable to the absorption of a lesser state (at least where the government partook so much of a republican form) in one of superior power and ancient rivalry. The representation of Scotland in the united Legislature, was too feeble to give any thing like security against the English prejudices and animosities, if they should continue or revive. The Church of Scotland was exposed to the most apparent perils, brought thus within the power of a Legislature so frequently influenced by one which held her, not as a sister, but rather as a bastard usurper of a sister's inheritance; and though her permanence was guaranteed by the treaty, yet it was hard to say how far the legal competence of Parliament might hereafter be deemed to extend, or, at least, how far she might be abridged of her privileges and impaired in her dignity.”

It was with sentiments like these that, when the first article of the treaty was read, Lord Belhaven arose, and addressed the Parliament of Scotland in the following speech. It is obviously reported in a very imperfect manner, and was designed merely to open the discussion which was expected to follow, and not to enter at large into the argument. It was a simple burst of feeling, in which the great leader of the country party, who was equally distinguished for “the mighty sway of his talents and the resoluteness of his temper," poured out his emotions in view of that act of parricide, as he considered it, to which the Parliament was now called. He felt that no regard to consequences, no loss or advancement of trade, manufactures, or national wealth, ought to have the weight of a feather, when the honor and existence of his country were at stake. He felt that Scotland, if only united, was abundantly able to work out her own salvation. These two thoughts, thereforeNATIONAL HONOR and NATIONAL UNION-constitute the burden of his speech.

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