Constitutional History of England, Henry VII to George II. Volume 2 of 3Hallam, Henry
History
Constitutional History of England, Henry VII to George II. Volume 2 of 3
Hallam, Henry
Constitutional history -- Great Britain
charged against Strafford amounted to treason, answered unanimously,
that upon all which their lordships had voted to be proved, it was
their opinion the Earl of Strafford did deserve to undergo the pains
and penalties of high treason by law.[181] And, as an apology, at
least, for this judicial opinion, it may be remarked that the
fifteenth article of the impeachment, charging him 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 one other article, not on the whole matter, the peers voted
him guilty), does in fact approach very nearly, if we may not say
more, to a substantive treason within the statute of Edward III., as
a levying war against the king, even without reference to some Irish
acts of parliament upon which the managers of the impeachment relied.
It cannot be extravagant to assert that if the colonel of a regiment
were to issue an order commanding the inhabitants of the district
where it is quartered to contribute certain sums of money, and were to
compel the payment by quartering troops on the houses of those who
refused, in a general and systematic manner, he would, according to a
warrantable construction of the statutes, be guilty of the treason
called levying war on the king; and that, if we could imagine him to
do this by an order from the privy council or the war office, the case
would not be at all altered. On the other hand, a single act of which
violence might be (in technical language) trespass, misdemeanour, or
felony, according to circumstances; but would want the generality,
which, as the statute has been construed, determines its character to
be treason. It is however manifest that Strafford's actual enforcement
of his order, by quartering soldiers, was not by any means proved to
be so frequently done as to bring it within the line of treason; and
the evidence is also open to every sort of legal objection. But in
that age, the rules of evidence, so scrupulously defined since, were
either very imperfectly recognised, or continually transgressed. If
then Strafford could be brought within the letter of the law, and was
also deserving of death for his misdeeds towards the commonwealth, it
might be thought enough to justify his condemnation, although he had
not offended against what seemed to be the spirit and intention of the
statute. This should, at least, restrain us from passing an
unqualified censure on those who voted against him, comprehending
undoubtedly the far more respectable portion of the Commons, though
only twenty-six peers against nineteen formed the feeble majority on
the bill of attainder.[182] It may be observed that the House of
Commons acted in one respect with a generosity which the Crown had
never shown in any case of treason, by immediately passing a bill to
relieve his children from the penalties of forfeiture and corruption
of blood.
Public-domain text, read in full here on John Shaqi.
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