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The Basis of the Lord's Decision in the Trial of Strafford: Contravention of the Two-Witness Rule
Published online by Cambridge University Press: 11 July 2014
Extract
“Resolved by the majority that the Bill of Attainder against the Earl of Strafford should pass as a law.” Thus, on May 7, 1641, the House of Lords enacted that Thomas, Earl of Strafford, should “undergo the pains and forfeitures of high treason by law.”
The passage of the Bill of Attainder against Strafford has subsequently engendered one of the perennial controversies of English political and legal history. On one side of the issue, it is claimed that the answer of the judges and the decision of the Lords were warranted by generally-accepted doctrines of law and constitutional theory. The other side claims that the charges against Strafford had no basis in statute or common law, that the abandonment of the impeachment proves the weakness of the case against the accused, and that in going by way of the Bill, the Commons “slaughtered a man they could not convict.”
Resolution of the controversy over Strafford's case has been hampered by a lack of historical data because at the restoration Charles II ordered all proceedings of the trial to be stricken from the Journals of the House of Lords. The Journal Manuscripts were rendered almost totally unreadable and, as a result, the official record of the trial has been missing for over three hundred years. Until recently, Rushworth has been the main source for histories of the Strafford trial. However, the usefulness of Rushworth has been marred by many lapses and errors, the most significant being that he was absent for several days at the climax of the trial. Consequently, the conclusion of the trial, the proceedings of which would help to resolve the legal controversy, has been reconstructed from fragmentary sources.
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- Copyright © North American Conference on British Studies 1976
References
1 House of Lords, Braye MSS, fo. 142b, May 7, 1641.
2 Ibid.
3 For the text of the questions to the judges, see Lords MSS, May, 1641. For their answer, see Braye MSS, fo. 142b, May 7, 1641. The best argument that I have seen in favor of a sound basis in law for the Lords' decision is Russell, Conrad, “The Theory of Treason in the Trial of Strafford,” English Historical Review, LXXX, (Jan., 1965): 30–50CrossRefGoogle Scholar. In the end, however, Russell's excellent position is not statutable ad litteram.
4 For an excellent statement of this position, see Wedgwood, C.V., Thomas Wentworth, First Earl of Strafford, 1593-1641: A Revaluation (New York, 1962), pp. 357–378Google Scholar. See also Timmis, John H. III, Thine Is The Kingdom: The Trial for Treason of Thomas Wentworth, Earl of Strafford (University, Alabama, 1974), pp. 165–169.Google Scholar
5 The Braye MSS are a nearly complete set of notes taken down at the trial by the official recorders and stenographers of the House of Lords. From these minutes, the Lords Journals were written. John Browne was the Clerk of the Parliaments, 1638-1691, and many of his papers, including official and semi-official records of the House of Lords, passed on his death to his daughter and from her ultimately to Lord Braye. The most important of these have been bought or photographed for the House. They include Draft Journals (1621-1690), original Manuscript Minutes of the trial of Archbishop Laud (1644). Papers laid on the Table of the House, and Parliament Office Memoranda (1625-1691). Cf. the general description given in H.M.C. 10th Report, Appendix, PART VI, pp. 104-106, the Record Office List of Braye MSS., the Record Office Memoranda, Nos. 7, 11, and 24, and the Addenda 1514-1714 volume of the calendar. See also House of Lords Record Office Memorandum No. 24, The Braye Manuscripts bought by the Record Office on 26th January 1961.
6 Before the Braye MSS, the cardinal sources were Rushworth, A Brief and Perfect Relation, and Harleian MSS 6424.
7 See below, where I give in toto the preceedings in Lords during their votes on the Bill.
8 I mean no strong criticism here. Given the earlier gaps in the record, Miss Wedgwood came very close to what actually happened, and Mr. Russell has done an excellent job of showing how the making of a division between king and people might be interpreted as treason, if the law is extended and interpreted.
9 For the proceedings on the entire article, see Rushworth, John, The Tryal of Thomas, Earl of Strafford (London, 1721), pp. 427–459.Google Scholar
10 Scotland was in open rebellion at the time. Vane testified that Strafford had said in Council to the King, “You have an army in Ireland. You may employ it to reduce this kingdom” Whether “this kingdom” referred to Scotland or England was not clear. Vane testified to the words not the interpretation. Rushworth, , Tryal, p. 546Google Scholar. For the proceedings on the entire article, see pp. 520-581.
11 Russell, , “Theory of Treason,” p. 50.Google Scholar
12 I intend here legality under the strict letter of treason law by statute. A Bill of Attainder was unquestionably legal but it was a specific legislative act. It still is legal, or course, as a bill of pains and penalties.
13 The best descussion of the question by a legal historian that I know is by Stephen, J.F., History of the Common Law, II: 250–253Google Scholar. After a great deal of hesitation, he decides that the Commons' abandonment of the impeachment should be taken as a tacit admission that the salvo was no longer in force. Vaughan (Verney's Notes, p. 53) argues that 1 Mary 1, cap. 1 allows parliament to declare treasons but not to punish for them unless they are committed after the declaration. I don't understand this hesitation. 21 Rich. 2, cap. 20 was specifically repealed by 1 Hen. 4 and I find no ambiguity in the law. Further, the 1st Edw. 6, cap. 20 fixed treason to be 25 Edw. 3, as did 1 Mary 1. On this question, see also Elton, The Tudor Constitution and Rezneck, , “The Parliamentary Declaration of Treason,” Law Quarterly Review, XLVI (1930): 80.Google Scholar
14 The authority of Coke is against common law treasons. The House of Lords did consider treason at common law on May 7, 1641, but voted only that the matter of fact had been proved and not whether the general charges made treason. The question was then submitted to the judges, whose opinion simply held that Strafford was guilty of treason on the basis of what had been voted as proven. The judges did not divide the question and state which charges were to be taken under statute law and which under common law. Given the centrality of articles IS and 23, it seems clear that the main effort was to bring Strafford under the sway of statute law.
15 Braye MSS, fo. 142b, May 5, 1641. [Emphasis mine.]
16 The official recorders twice attribute the tactic to Arundel, once on May 3rd, when it was declared as policy, and again on the 10th, when it was “Ordered that the House did approve of the …Lo. Steward in his forming & managing of his plan at the trial of the E. of Strafford & gave him thanks for the same.” The ultimate compromise between the two Houses was apparently worked out by a joint committee which met several times between April 29 and May 3 in Westiminister Hall. The members from Lords were Lord Privy Seal, Lord Steward, Bath, Essex, Bristol, Saye, Warwick, Southampton, Robarts, and Seymour. Ibid., May 3 and 10, 1641.
17 Ibid., May 5, 1641.
18 Mr. Russell has already printed in the E.H.R. a partial text of the Braye MSS as an authentic record of the Lords' proceedings for May 5, 6, and 7, 1641. However, he left out approximately one-hundred words which are important to both my argument and the historical record. I have “italicized” these sentences and offer my reading of the Braye MSS as a slightly more authentic version of the proceedings.
19 Observe the careful wording of the question and the reply: “upon all your lordships have voted to be proved.” To have done otherwise would have been illegal.