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open to doubt. Such a man was Sir Henry Vane. Let
one question and its answer suffice.

" Did you hear my Lord of Strafford, tell the king,
that having tried the affections of his people, he was
absolved from all rules of government?" He answered,
" that to the general question he doth not remember —
but to these words which have been read, he shall, as
near as he can, ingenuously deliver what he did formerly
depose ; ever reserving to himself words to the same
effect. That he considers very well where he is, and the
presence before whom he speaks ; that he hath never in
the whole course of his life loved to tell an untruth, much
less in this honourable assembly. That he shall, as near
as he can, in this case, tell their lordships plainly and
truly the matter," and then proceeds to give his answer,
interweaving it with sundry " if he do not very much
mistake," — " to the best that he can remember," — " as he
conceives," and concluding with " he must be ingenuous,
— he must say all he hath deposed, or is required," and
that " if it were the last hour he is to speak, it is the truth
to his best remembrance."

If Sir Henry spoke the truth, never did any one so
completely succeed in making it appear like falsehood —

11 2



244 MEMOIRS OF

Never did any one ever appear more like a perjurer afraid
of the consequences of his attested perfidy*.

Against this charge the earl observed that it was main-
tained by one doubtful witness, which could not establish a
debt, much less a treason ; and eloquently argued against
the betrayal of private intercourse. " If words," said the earl,
" spoken to friends in familiar discourse, spoken in one's
chamber, spoken at one's table, spoken in one's sick bed,
spoken, perhaps, to gain better reason, to obtain more
clear light and judgment by reasoning; if these things
shall be brought against a man as treason, this, under
favour, takes away the comfort of all human society. By
this means we shall be debarred of speaking with wise and
good men, the principal joy and comfort of society, in
order to become wiser and better ourselves. If these
things be strained to take away life and honour and all
that is desirable, it will be a silent world ; a city will
become a hermitage, and sheep will be found amongst a
press of people. No man shall dare to impart his solitary
thoughts or opinion to his friend and neighbour, but
thereby be debarred consulting with wiser men than
himself, whereby he may understand the law wherewith
he ought to be governed."

* The earl, in his final address, did not fail to remark upon Sir
Henry's evidence. These professions of his speaking- clearly and
plainly, said his Lordship, and of his consideration before whom he
was, which are something- unusual clauses to men that come to give
evidence upon oath, make me conceive him but a dubious and uncertain
witness."



JOHN SELDEN. 245

He then argued convincingly, that the words attributed
to him were at the worst of doubtful import, and rising in
spirit as he won his way, he concluded by saying, " those
words charged upon me were not wantonly or unneces-
sarily spoken, or whispered in a corner, but were uttered
in full council, where I was by the duty of my oath, obliged
to speak according to my heart and conscience in all things
concerning the king's service. So that if I had forborne
to speak what I conceived for the benefit and advantage of
the king and the people, as I conceived this to be, I had
been perjured towards God ; and yet it seems that by the
utterance of them I am in danger of being adjudged a
traitor. If that n;icessity is put upon me, I thank God
that by his blessing I have learned not to stand in fear of
him that can kill the body ; but I must stand in fear of
him that can cast body and soul into eternal torment. If
that be the question, that I must be a traitor to man, or
perjured to God, I will be faithful to my creator ; and
whatsoever shall befal me from popular rage, or my owji
weakness, I must leave it to the Almighty, and to your
lordships' honour and justice."

On the 12th of April he was called upon to sum up his
defence. Upon that day he excelled all his former efforts,
and his children, who were that day in court, might
remember to their dying hour with pride, the talents, the
dignity, and pathetic eloquence that their father on that
day exhibited in their and his own behalf. Tiiat speech
occupies nearly thirty folio pages of Rush worth's work,



24:6 MEMOIRS OF

and is an admirable example of condensed reasoning, of
analysis of evidence, and of appeal to the feelings. A few-
extracts from it must be all that can be here related.

He commenced with this appeal to his judges, " My
lords, my memory is weak, my health hath been impaired
and I have not had such quiet thoughts as I desired to
have had in a business of so great and weighty importance
to me. Therefore I shall most humbly beseech your lord-
ships, that by your wisdom, your justice and goodness, I
may be so much bound to you, as to have my infirmities
supplied by your better abilities, better judgments, and
better memories."

Having proceeded then to discuss, compare, and rebut
the various evidences against him with admirable per-
spicuity, and argued that at the most the whole amounted
but to constructive treason, he thus concluded : —

" My lords, may your lordships be pleased to have that
regard to the peerage of England, as never to suffer
yourselves to be put upon those moot points, upon such
constructions and interpretations and strictness of law
as these are, when the law is not clear nor known. If
there must be a trial of wits, I do most humbly beseech
your lordships to consider that the subject should be of
something else than of your lives and of your honours.

" My lords, we find that in the primitive time, on the
sound and plain doctrine of the blessed apostles, they
brought in their books of curious arts and burnt them.
My lords, it will be likewise, under favour, wisdom and



JOHN SELDEN. 247

providence in your lordshijis, for yourselves and posterities,
and for the whole kingdom, to cast from you into the fire,
those bloody and mysterious volumes of constructive and
arbitrary treasons, and to betake yourselves to the plain
letter of the statute, that tells you where the crime is, that
so you may avoid it ; and let us not, my lords, be ambi-
tions to be more learned in those killing arts than our
forefathers were before us."

" My lords, I beseech you that you will be pleased to
consider, and let my particular case be so looked upon, as
that you do not, through me, wound the interest of the
commonwealth. For howsoever those gentlemen at the
bar say they speak for the commonwealth, and they believe
so ; yet, under favour, in this particular, I believe I speak
for the commonwealth too ; and that the inconveniences
and miseries that will follow upon this will be such as
that it will come, within a few years, to that which is
expressed in the statute of Henry the Fourth, it will be of
such a condition that no man shall know what to do, or
what to say.

" Do not, my lords, put greater difficulty upon the mi-
nisters of state, than that with cheerfulness they may serve
the king and the nation ; for if you will examine them by
every grain, it will be so heavy that the public affairs of the
kingdom will be left waste, and no man will meddle with
them that hath wisdom, and honour, and fortune to lose.

" My lords," he concluded pointing to his children, " I
have now troubled your lordships a great deal longer than



248 MEMOIRS OF

I sliould have done were it not for the interest of those
jiledges that a saint in heaven has left me. I should be

loath, my lords " but his feelings would not allow

him to complete the sentence. A pause for a short space
having restored his self command, he proceeded, "What
I forfeit for myself is nothing, but I confess that my
indiscretion should forfeit for them wounds me very
deeply. You will be pleased to pardon my infirmity ; —
something more I should have said ; but I see I shall not
be able, and therefore I will leave it.

" And now, my lords, for myself, I thank God I have
been taught by his good blessing towards me, that the
afflictions of this present life are not to be compared with
that eternal weight of glory that shall be revealed for us
hereafter : and so, my lords, even so with all humility,
and with all tranquillity of mind, I do submit myself
clearly and freely to your judgments ; and whether that
righteous judgment shall be to life, or to death, Te
Deum luudamus^ Te Dominum confitemurr

On Mr. Pym devolved the arduous task of recovering
to the cause of the parliament the calm attention of the
judges, which must have been hurried away by the
mingled feelings of admiration and pity which the earl's
address engendered in the heart of every auditor. Than
Pym no man knew how to succeed better in this task ;
he was fully conscious that it was for him to allay the
excitement, and with sober and didactic eloquence he
assayed to assuage the agitated element around him.



JOHN SELDEN. 249

He commenced by reminding the peers that he stood
there to advocate the safety of the people, the object of all
laws. " It is the law," he continued, " that puts a difference
between good and evil, between just and unjust ; if you
take away the law all things will fall into confusion,
every man will become a law to himself, which, in the
depraved condition of human nature, must needs produce
many great enormities ; lust will become a law ; and
envy will become a law ; covetousness and ambition will
become laws, and what dictates such laws will produce
may easily be discerned in the late government of Ireland.'

Mr. Pym proceeded much further in this, which has
always been considered an admirable eulogium upon the ad-
vantages of a just code of laws; and after expatiating upon
the earl's offences, and recurring to the punishment they
merited, he thus proceeded. " His death will not be a
new way of blood," — at that moment his eye involun-
tarily met the earnest gaze of the earl ; and he faltered
beneath the indignant glance of an eye that beaming with
all its accustomed fire, spoke more rebukingly when com-
pared with the otherwise wasted frame of his early friend.
Pym rallied and attempted to go on, but " to humble
the man," observed Baillie, " God let his memory fail him.
He looked on his papers, but they could not help him."
He hurried to close his address, and left Mr. Glynn to
reply more fully to the earl's summary ; and to Mr. St.
John to argue the points of law.

The House of Commons did not press for judgment



250 MEMOIRS OF

upon this impeachment, but two days previous to its close
introduced a Bill of Attainder against the earl. This
they professed was their intention from the beginning ; —
they wished to establish the facts in open court, and then
to found upon it a Bill of Attainder.

The reason for adopting such an irregular course
seems inexplicable — it could not be because they feared a
majority of the peers were in favour of the earl, because
the Bill of Attainder must come before the same judges.
It, perhaps, was a course adopted to give time for the work
of intimidation which might be necessary to obtain the
requisite assents — and if so, full advantage was taken of
the intervening time to bring that means into operation.
Rumours of plots, some real and others imaginary, were
circulated ; multitudes of people surrounded the houses
clamouring for " justice " upon the Earl of Strafford.
Intimidation effected what reason, honour, and Christianity
would not permit, and the earl died upon the scaffold on
the 12th of May, 1641.

Mr. Whitelocke, who was chairman of the committee
that prepared the charges against the earl, says of him,
*' certainly never any man acted such a part, on such a
theatre, with more wisdom, constancy, and eloquence;
with greater reason, judgment, and temper ; and with
a better grace in all his words and gestures, than this
great and excellent person did ; and he moved the hearts
of all his auditors, some few excepted, to remorse and
pity." Lord Digby, who had been one of the same



JOHN SELDEN. 251

committee, nobly stood forward to oppose the earl's
condemnation for treason. He said, " I believe his acts
in themselves as high, as tyrannical, as any subject ever
ventured on ; I do not say but others may represent him
as a man as worthy to die, and perhaps worthier, than
many a traitor ; I do not say but they may justly direct
us to enact that such acts shall be treason for the future ;
but God keep me from giving judgment of death upon any
man, and of ruin to his innocent offspring, upon a law
made a posteriorV'

The vote, however, was carried against the earl by a
majority of 204< opposed by 59-

Franklyn, expressly says, that Lord Digby and Selden
were convinced by the defence, and left the prosecution
when the Bill of Attainder was introduced*. They
were in the glorious minority above enumerated, and
their names were unintentionally honoured by the rabble,
when it posted them up in Palace Yard and other places,
as being " StrafTordians, and betrayers of their country t."

The merit of those who opposed the wishes of the
prevailing majority is more enhanced by the fact, that all
who so opposed them were liable to the violent and brutal
disapprobation of the populace, who the leaders of the
majority were weak and base enough to incite to violence

* Franklyn's Annals, 892.
t Parliament. History, ix. 257 — 288. Warwick's Memoirs, 161.
Rushworth's Trial of .Strufiford, 59, &c.



252 MEM OIKS OF

against those persons and measures of which they dis-
approved. In the instance before us, Sir John Strangeways
declared in a petition, that although he was at his house
in Dorsetshire, during the voting of Strafford's attainder
yet his name had been inserted among the Straffordians,"
and consequently his person had been rendered odious
and his life endangered*. Many of the peers, appre-
hensive of incurring popular displeasure, disgracefully
shrunk from their duty, for when the last great question
involving the earl's life was decided, only forty-five of
them were in the House of the eighty who had attended
his trial. Of these nineteen voted in his favour, and
twenty-six against him t.

The greatest known delinquent in this tragedy was the
king. The others who sat in judgment upon the earl
can never be ascertained to have acted against their con-
sciences, until the day when the secrets of all hearts will
be made manifest; but Charles the First has registered
to all posterity that he sacrificed his friend with the hope
of thereby benefiting himself. In the presence of all his
parliament, after every proof had been gone through, the
king declared , " in my conscience I cannot condemn him
of high treason. To satisfy my people I would do great

* Rushwortli's Collections, iv, 279. Warwick's Memoirs of Charles
the First, 6.

f Journal of the House of Lords. Whitelocke's Memorials. Nalson's
Collections, &c.



JOHN SEI.DEX. 253

matters; but in this of conscience, no fear, no respect
whatsoever shall ever make me go against it*." Yet in
eight days after the king consented to his execution !

If a reference is made to what his best apologists have
written upon this criminal consent, we shall find with
regret that all the palliating circumstances they adduce,
amount to no more than that Charles permitted death to
be inflicted on one who he was convinced was innocent,
because that death might benefit himself and his family.
When we reflect that the sufferer was his friend, and
remember the noble yet pathetic letter the earl wrote to
him, whilst he yet balanced the decision of his fate ; and
that he was not without a mentor at the time, for
Dr. Juxon to the last warned him, " that if he were not
satisfied in his conscience he ought not to do it whatsoever
happened f," we must feel that Charles had left none but
the tyrant's plea, that he did it from policy ; a plea of
which he must have observed the universal applicability
when some few years subsequently he bowed down him-
self before the headsman. Charles was bitterly punished
for this and all his errors, and in further mitigation of our
indignant feeling towards him, it should be remembered
that the struggle of his heart against consenting was long

* Journal of the House of Lords. Parliament. Hist., ix. 287.

t Charles from experience ought to have confided in the advice of the
irreproachable Dr. Juxon, for ho told Sir Philip Warwick, " I never got
his opinion freely in my life, but when I had it, I was ever the better
for it." (Warwick's Memoirs, 96.)



254 MEMOIRS OF

and anguishing; that the hope to appease the clamour
against those most dear to him was a powerful temptation ;
that the advice of some of his council was most base ; and
that his repentance was sincere and permanent.

No event in history more powerfully demonstrates the
futility of that policy, which has recourse to criminal
measures for support, than this consenting of Charles to
the execution of the Earl of Strafford. The effects were
totally the reverse of those intended to be produced.

Its first marked result was that it destroyed the con-
fidence of the king's friends ; for when they saw that
there was no faith to be founded upon his promises, and
that his word and his conscience were disregarded when
his interests required, they naturally concluded that there
was no assured safety to themselves. Consequently Lord
Cottington resigned the mastership of the wards ; Bishop
Juxon his post of lord treasurer : the Earl of Newcastle
declined the preceptorship of the prince, and the Earl of
Pembroke retired from the lord chamberlainship *."

Instead of conciliating the people it undoubtedly drew
upon the king their contempt ; and we may be proud to
know, that there never yet was an individual who shrank
from the suffering necessary to preserve his innocence that
obtained the approbation of Englishmen. " That the
king should be induced to consent to the execution of the
earl," says Whitelocke, " was admired by most of his
subjects, as well as by foreigners."

* Whitelocke's Memorial, &c.



.lOHN SELDEX. 255

From the moment Charles consented to sign the
warrant of death, he must have lost his self respect, and
stung by the " still small voice," that would be ever
whispering his self-condemnation, have viewed with
distaste, not to say hatred, the parliament which had
urged him to the deed. Charles also speedily found by
a woeful experience that to acquiesce to an unreasonable
demand will never satisfy the demander. By asking it
he incurs a degree of guilt ; each addition of guilt brings
its addition of fear, and every such fear is restless until
the injured person is deprived of the power either to
recover his right or to revenge his injury*.

The parliament continued to require greater measures
of reform, and greater securities against the recurrence of
misrule : these, whether reasonable or supererogatory were
usually obstinately opposed and then weakly assented to.
One false step followed close upon the heels of another,
and Charles very early renounced the possibility of re-
trocession, and laid the foundation of his own ruin by
passing the act that made the parliament undissolvable
without its own consent. This consent blindly weakened
his power, as well as basely subverted the constitution he
had sworn to preserve t.

* Warwick's Memoirs, 163.

t " It is impossible to think," says Sir Philip Warwick, who was
(Charles's secretary, " how so intelligent a person as this king was,
should, by any persuasions, which were certainly great on the queen's
side, or treachery, which certainly was great on the side of many of
his great courtiers, be induced thus to divest himself of all majesty



256 MEMOIRS OF

From this time the spirit of the court party was
broken, and consequently less check being offered to
the advances of the parliament, it proceeded in its
career of political change with increased speed. It is
impossible to commend the policy of some of their en-
actments, yet the king enumerated a curious list of the
past sources of oppression, when he thus reminded the
parliament of some of the bills to which he had assented :
" Are the bills for triennial parliaments ; for relinquishing
our title of imposing upon merchandise, and power of
pressing soldiers ; for taking away the star-chamber, and
high-commission courts ; and for regulating the council-
table, but words ? Are the bills for the forests, the
stannary courts, the clerk of the market, and the taking
away the votes of the bishops out of the House of Lords,
but words ? Lastly, what greater earnest of our trust and
reliance on our parliament could, or can, we give than the
passing of the bill for the continuance of this present
parliament '*? "

If, as in the above instances, the parliament had
restrained itself to its appropriate office of legislation, the
king could have had little cause for complaint, but it
mistrusted him too much not to desire for its own safety
to take from him the execution as well as the enactment

and power ; or to be so overseen, as to think, he should avoid danger
by running- into the greatest hazards imag-inable. But wisdom often
quits a man, when misfortune hath led him into extremities,'" — (War-
wick's Memoirs, &c. 182.)
* ParHament. Hist. x. 383.



JOHN SELDEX. 257

of the laws. They were fatally jealous of each other, and
as he had at first opposed himself to all reformation, now
that he had been compelled to yield, the parliament
placed no confidence in the sincerity of his compliances.
It justly looked upon him as a receding enemy, that only
waited for a favourable opportunity again to advance, and
it consequently feared to stay its progress in the restric-
tions of his prerogative, whilst there remained with him
the power of an effectual regression.

One point is most clear ; the parliament greatly erred in
destroying the monarchy, but when a view is taken of the
whole of the rash, duplex conduct subsequently pursued
by Charles, it is perhaps imj^ossible to determine where it
could have stopped in restricting his power with a perfect
security, that the oppressions of an absolute monarchy
could not recur.

The conduct of the king naturally afforded grounds for
the suspicions of the parliament, many instances have
already been noticed, and others will hereafter, be men-
tioned, but here one fact only need be stated, which is,
that being obnoxious to the parliament was always a
recommendation to court favour. No sooner did Lord
Digby, Sir Philip Warwick, and Mr. Hyde become
opposed to the measures of the parliament, than they
immediately ranked among the king's favourites. Thus
the branches of the legislature practically declared they
were no longer acting in union for the public good, and
the enmity increased until they agreed but on one point,

s



258 MEMOIRS OF

and that unfortunately an error, namely that the preroga-
tive of the crown and the liberty of the people could not
be co-existent.

The part which Selden took during this exciting
period is not fully known. His name is found as one of
various committees, particularly that appointed to hold a
conference with the lords upon the disgraceful treaty
which the king had entered upon at Ripon with the
Scotch ; of another appointed to examine into the illegal
proceedings in the exchequer-chamber, respecting ship
money ; and of a third upon the appointment of a Custos
Regni during the king's absence in Scotland *. In these
he acted as a pioneer to prepare the ground for future
operations, but when the state of the established church
was brought before the legislature, he stood forward and
occupied a more prominent station in the contest.

The clergy of the period were men of extensive
literary acquirements ; " all confess," says Selden, " there
never was a more learned clergy : no man taxes them with
ignorance : — but they have worse faults.*' They were
especially notorious for being, in general, too inattentive to
their religious duties, and too interfering with political
affairs. Their enemies therefore consisted of those who
condemned them as inactive teachers ; those who objected
to their theological opinions ; and those who opposed their
state power : and all unfortunately united to subvert



* Parliament. Hist., ix. 503.



JOHN SELDEN. 259

rather than to correct them. It has ah'eady been re-
marked, that in the declarations of grievances, those


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Online LibraryGeorge William JohnsonMemoirs of John Selden : and notices of the political contest during his time → online text (page 16 of 23)