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.
It is remarkable that neither Hyde nor Falkland voted against the bill of attainder. There is, indeed, reason to believe that Falkland spoke in favour of it. In one respect, as Mr. Hallam has observed, the proceeding was honourably distinguished from others of the same kind. An act was passed to relieve the children of Strafford from the forfeiture and corruption of blood which were the legal consequences of the sentence. The Crown had never shown equal generosity in a case of treason. The liberal conduct of the Commons has been fully and most appropriately repaid. The House of Wentworth has since that time been as much distinguished by public spirit as by power and splendour, and may at the present moment boast of members with whom Say and Hampden would have been proud to act.
It is somewhat curious that the admirers of Strafford should also be, without a single exception, the admirers of Charles; for, whatever we may think of the conduct of the Parliament towards the unhappy favourite, there can be no doubt that the treatment which he received from his master was disgraceful. Faithless alike to his people and to his tools, the King did not scruple to play the part of the cowardly approver, who hangs his accomplice.