Ageing lawyers are wont to bang on about their big cases. I plead guilty. If you listen to a gaggle of us often enough, you might wonder if any member of the Victorian Bar ever lost a case.
The other day, a history of the English parliament arrived. I have just read past a reference to the trial of the Earl of Strafford. It caused me to acquire again his biography by Miss C V Wedgwood, a writer I greatly admire. Then I recalled that I was so moved by her story that I wrote a note on it. which I later put out in a prologue to a book on the French Revolution. The prologue, and the inscriptions to the book, are set out below.
England has a long history of great trials They are an integral part of the history of the nation, and not just the common law. Oliver St John appeared in a leading role of two of them. The portraits of Stuart courtiers showed men born to rule. That of St John is regal – imperious even. He is lordly, tall and so calm. If you arrived at court and saw that he was your opponent, you would hasten to stifle the intake of breath.
With the possible exception of an exchange between a Boston attorney and Senator McCarthy, I know of no forensic process as riveting as that between the Earl of Strafford and Oliver St John.
No play or film has ever delivered drama like this.
And it was deadly – very literally, deadly.
And it was more than 150 years before the fall of the Bastille.
I warmly commend the Adamson book that is referred to. It is a great read. The BBC should really make a TV series on the great turning point in the story of England.
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I wish every Man would lay his Hand on his Heart, and consider seriously whether the beginning of the people’s Happiness should be written in Letters of Blood.
Thomas Wentworth, Earl of Strafford, 12 May 1641, shortly before his execution.
The Revolution would have carried me with it if only it had not begun with a series of crimes: I saw the first head carried on the end of a pike, and I recoiled. In my eyes, murder will never be an object of admiration or an argument for freedom; I know of nothing more servile, contemptible, cowardly and stupid than a terrorist. Have I not met in France the whole of this race of Brutus in the service of Caesar and his police? The levellers, regenerators and cut-throats had turned into valets, spies and sycophants, and even less naturally into dukes, counts and barons: how thoroughly medieval!
François René de Chateaubriand, a noble who was presented to King Louis XVI and who many years later helped to identify his severed head, and that of Queen Marie-Antoinette.
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Prologue
The words in the inscription were uttered by Thomas Wentworth, the Earl of Strafford, on 12 May 1641. They were uttered on the scaffold outside the Tower of London shortly before he was executed. His request was a very fair one – even if when he died, Strafford had become Public Enemy Number One, the most feared and loathed man in the history of his nation.
Thomas Wentworth had been one of those Protestant gentry on the side of those battling against a king who was determined to rule without parliament. But Wentworth had crossed over. He had supported the Petition of Right in 1628, but when the king accepted it, Wentworth thought that he had to support the king. As the great German historian Ranke said, the natural inclination of Wentworth was ‘to live not under the frown, but under the smile of his sovereign’. We all know people like that, and we rarely think much of them.
Wentworth was branded as a turncoat, but he prospered under the king. He became the Lord Lieutenant in Ireland and he raised an army there. He was the leading adviser to the king – the equivalent of our prime minister – at a time when the opponents of the king blamed not the king but his ‘evil counsellors’ for all the wrongs in the realm. He was promoted to the rank of the Earl of Strafford.
It looks like Strafford had an obvious and untreatable loathing for the people – if you prefer, the masses – of Coriolanus proportions. He also had a most forceful personality and a powerful intellect. He had thrown his weight around on the Irish – whom the English held in contempt – for years. He had raised an army there. He had counselled his king to make war on the Scots. He could obviously threaten the people of England if the king were to invoke him against his parliament – if he ever had to convene one again.
Then the king did have to call a parliament to fund his wars against the Scots – just as Louis XVI had to convene the Estates General to fund the deficit built up during the American war of independence. The parliament therefore moved immediately to bring Strafford down. For good reason, they thought that if they did not get him first, he would get them. In truth, the leaders of the parliament were involved in treason up to their necks in conspiring to promote their cause by getting the Scots to invade England.
The parliament impeached Strafford for treason and he was confined to the Tower. The Commons laid the charges which were then heard and determined by the Lords. But they had trouble bringing the conduct of Strafford within the accepted definition of treason, and it was of course fundamental to the English notion of the rule of law that you cannot convict and punish someone except for a breach of the law. So much had been clear since Magna Carta.
The Commons wanted to say that Strafford had sought to subvert all the laws of England, but this was not within the accepted definition. The closest they got to a silver bullet was a disputed conversation in which Strafford was alleged to have said that the king could use his Irish army to subvert ‘this’ or ‘that’ kingdom. Which kingdom might ‘this’ or ‘that’ refer to – Ireland or England? Might Strafford’s head hang on the answer? Were they to execute a man on a puzzle? And the law said that in a case of treason, there had to be more than one witness. As the trial went on, in a huge auditorium especially set up for the purpose, Strafford was wiping the floor with his opponents with his oratory and wit. The problem was that treason was thought to involve acting against the king – and Strafford was acting on instructions from the king.
In something approaching desperation, the Commons revived an ancient process called attainder. The parliament could by one of its acts decree the death of a person thought to be an enemy of – an enemy of whom or what? Not the king – the king was the earl’s friend, and he had given Strafford his word as a king that no harm would come to him. No, Strafford was an enemy of the common weal or nation. This was new ground, and very dangerous ground. The parliament was expressly seeking to go against a man not for a breach of the law but for ‘reason of state’ – when the whole history of the common law had been to move away from any idea that the king or anyone else could claim to be above the law and just say that he was acting for ‘reason of state’. What the argument of the Commons boiled down to was that Strafford had to be killed for the good of the commonwealth. That is very dangerous ground, and it does not sound very English.
There was real evidence to fear what the king or Strafford might do if he were not put out of the way permanently. Some on the parliament side had sought to offer the life of Strafford to the king as a negotiating gambit in their struggle to vindicate the role of parliament, but they were to learn that this king did not have it within himself to negotiate. They would also learn that the king could not be trusted.
They then bent the rules even further. The Lords agreed that in deciding Strafford’s ‘guilt’ – that is, his liability to be executed – they could weigh his actions not just at law, but also by the power of parliament to create new reasons for legislative action. They then got rid of the rules of evidence – ‘in discussing the matter of fact of this whole cause, the rule shall only be the persuasion of everyman’s conscience.’ The Lords were therefore able to vote on the part of the charge relating to the use of the Irish army even though there was no corroboration. The French would repeat all of these deviations from prior procedure during the Terror.
If you look at the Act for the Attainder of Strafford on the statute books, you will see that it does not shrink from the scattergun. The act recites sundry acts of tyranny and treason – including advising his Majesty ‘that he was loose and absolved from rules of government.’ It also recites that ‘all of which offences hath been sufficiently proved against the said earl upon his impeachment.’ The truth was of course that the only reason the Commons resorted to attainder was that they thought they were losing on the impeachment. Acts of parliament are after all words written by politicians.
The people made their presence felt with loud and angry force. There were huge demonstrations outside Whitehall that told the king that his personal safety and that of his family would be in issue if he sought to use his kingly power to save his minister, Strafford. The parliament then passed the bill of attainder and the king, in mortal agony, gave his assent to it. The head of Strafford was cut off before what was thought to be the biggest crowd ever assembled in England, and a relieved nation exulted. Strafford bore himself with great dignity, and shortly before the axe fell, he made the observations set out above.
Strafford was a product Cambridge (St John’s) and the Inns of Court (the Inner Temple). That was the standard conditioning for these gentry that the Stuarts must have looked on as the king-breakers from Hell. Strafford’s opponents included Pym, the most astute manager of parliament ever, Hamden, Eliot, St John, and a little known exemplar of this cadre named Oliver Cromwell.
It is difficult for us now to follow the comings and goings over the impeachment and then the attainder, but this must have been one of the most highly charged pieces of political theatre that the world has ever seen. Strafford was ill throughout the proceedings that went for days into weeks. He was on trial for his life – his opponents thought that they and the nation were in just the same position.
We can form some idea of the powers of this man from the course of the argument. Strafford dealt with the manufactured theory of treason put forward by Pym by showing that he had committed no known treason by any existing law and protesting that he had acted throughout with integrity to his master, the king, and his care for the common weal, according to the laws and traditions of England. He spoke clearly and went through each article one by one. He was neither emotional nor rhetorical at first, but he held his audience with a quiet, cutting logic, and the occasional rebuke of irony – ‘he admired how himself who was an incendiary in the 23rd article against the Scots is become their Confederate in the 28th’. Miss CV Wedgwood said: ‘For more than two hours he continued, hardly a spectator stirring, all eyes fixed on that solitary, dominating figure, the white face lit with a consuming fire, the beautiful hands moving now and again in the dramatic and occasional gestures that he loved.’ ‘I hope I am clear before your lordships – in good faith and I am clear in my own poor judgement.’
He said that what was alleged against him was not destructive treason but constructive treason. ‘For my part I have not the judgement to conceive that such a treason is either agreeable to the fundamental grounds of reason or law. Not of reason, for how can that be treason in the whole, which is not in any of the parts? Or how can that make a thing treasonable which in itself is nothing so? Nor of law, since neither statute, common law, nor practice from the beginning of this government ever mention such a thing. And where I pray you, my Lords, has this fire without the least token of smoke lien hid so many hundreds of years, and now breaks forth in a violent flame to destroy me and my posterity from the earth? My lords, do we not live by laws, and must we be punishable by them ere they be made? We are better to live by no law at all, but be governed by those characters of discretion and virtue stamped in us, than to put this necessity of divination upon a man and to accuse him of the breach a law ere it be a law at all. My Lords, if this crime which they call arbitrary treason had been marked by any discernment of the law, the ignorance of the same should not excuse me; but if it be no law at all, how can it in rigour, in strictness, condemn me?’
There was the basic legal argument, that he could only be convicted of a law that was in place at the time of the conduct complained of. But the Earl of Strafford knew that he was being tried by his peers, and his legal and parliamentary experience, and his formidable native wit, told him how to do it.
Beware you do not wake the sleeping lions by the raking up of some neglected, moth-eaten records – they may sometime tear you and your posterity in pieces. It was your ancestors’ care to chain them up within the barrier of a statute; be not you ambitious to be more skilful, more curious than your fathers were in the art of killing. My Lords, it is my present misfortune but forever yours… You, your estates, your posterities lie all at the stake if such learned gentlemen as these, whose lungs are well acquainted with such proceedings, shall be started out against you: if your friends, your counsel were denied access to you, if your professed enemies admitted to witness against you, if every word, intention, circumstance of yours be alleged as treasonable, not because of a statute, but a consequence, a construction of law heaved up in a high rhetorical strain, and a number of supposed probabilities. I leave it to your Lordships’ consideration to foresee what may be the issue of so dangerous, so recent precedencies. These gentlemen tell me they speak in defence of the common weal against my arbitrary laws; give me leave to say that I speak in defence of the common weal against their arbitrary treason.
According to Miss C V Wedgwood, Strafford then lowered his tone again and shortly after he recommenced, the tears streamed down his cheeks and he could not speak.
I have now troubled your Lordships a great deal longer than I should have done; were it not for the interest of those pledges, that a saint in heaven left me, I would be loth my Lords…… What I forfeit for myself is nothing; but I confess, that my indiscretion should forfeit for them, it wounds me very deeply…… Something I should have said; but I see I shall not be able and therefore I will leave it. So my Lords, even so with all humility, with all tranquillity of mind, I do submit myself clearly and freely to your judgements; and whether that righteous judgement shall be to Life or Death, Te Deum Laudamus, Te Dominum Confitemur.
By any standard, this was remarkable advocacy; it is humbling for a mortal advocate to recount it. And even by the standards of the English parliament then or later, it is hard to envisage more gripping theatre.
Oliver St John was a product of Cambridge (Queens’ College) and Lincoln’s Inn. He had been the leading counsel for Hamden in the Ship Money Case. Charles I had sought to avoid parliament by raising revenue himself. This case ruled on the validity of one form of royal tax, called ship money. The trial ran for days, and held the attention of the entire nation. So did the argument of St John. It covers many octavo pages in State Trials. It is a work of meticulous scholarship, going back to the Anglo-Saxons, and high juristic technique and logic. For many reasons, we will never see anything like it now.
St John lost that case, but the decision would be reversed by this Long Parliament, and those judges who had succumbed to the crown would have to suffer the judgment of the parliament. (Their leader had already crossed the Channel.) Before the Lords on the attainder of Strafford, St John also displayed deep scholarship and incisive logic. But he too remembered the purpose of the exercise and the character of his audience – both houses were present. He showed that he knew how to deliver the killer punch in what those behind him saw was mortal combat.
Strafford was said to have looked ‘merry’ when he came to the bar at Westminster Hall for the final day of argument on 29 April 1641. The king was in a good mood too. After all, St John was by now the king’s Solicitor–General. He could argue that Strafford was guilty of treason, but leave the penalty to be decided by the Lords. They had obviously been moved by what Strafford had said, and he was thought now to have had the numbers in the Lords. Those of the Commons who followed on for the prosecution after Strafford had lost their composure and fluffed their lines. Even the redoubtable Pym had got the wobbles. The valiant Strafford was entitled to be confident.
St John rose to speak just after nine in the morning, at his place in the front row of the right-hand ‘scaffold’ reserved for members of the Commons. Colleagues flanked him on either side ready to read relevant extracts from the authorities that St John might refer to. The Hall had daunted other prosecution counsel – there was the massive crowd on top of the people from parliament and a cavernous space that his voice had to fill. St John had got on top of the medieval history and legal precedent which he referred to with the flair of an orator.
St John spoke for nearly three hours. His legal argument endeavoured to show how the ‘crimes’ of Strafford came within the existing law of treason. He argued that subverting the law could itself be treason. He referred to the theory of the King’s Two Bodies – levying war against the king encompassed levying war against the abstract body of the king. He went further and said that that abstract body could be identified with the parliament. This was novel, perhaps even revolutionary, but counsel played to his audience. He flattered the Lords and played on their insecurity. He said that the treason of Strafford would bring in a pernicious egalitarianism. ‘My Lords, take away law, and there is no peerage but every swayne is equal.’ He argued that proceeding by attainder – that is by a statute of the parliament – was the most effective means of bringing the impeachment process to a legally safe conclusion. He referred to an observation of one of the judges of Richard II: ‘he could not judge treason in Westminster Hall, but he could in parliament.’ He may not be able to do it as a judge, but he could do it as a legislator.
That was the legal argument. Then came the argument that was the lethal thrust – the argument from political necessity. It was an argument for ‘reason of state’, the conviction that the preservation of the commonwealth made legitimate the contravention of standard moral and legal codes – a conviction that Strafford had certainly applied ruthlessly in Ireland. The Solicitor-General did not beat about the bush in addressing a tribunal constituted by people who loved to hunt, and who saw themselves as sportsmen.
He that would not have had others to have a law, why should he have any himself?
As ad hominem arguments go, that is par for the political course. Then we get:
It was never accounted either cruelty or foul play to knock foxes and wolves on the head as they can be found, because they be beasts of prey.
That submission might fairly be described as annihilating. At the end of this address, the Hall erupted in loud applause. Strafford and his king must have been dumbfounded. One source says that Strafford muttered: ‘What? Is this all he can say?’ Another says that he raised his eyes and hands in mute appeal to heaven. He and the king must both have realised that the axe was so much closer.
The Secretary of the Privy Council said of this electrifying address of St John:
Then the whole scene seemed to change. And I am told that the king himself as well as the Earl (who took notes with their own hands) gave over writing as soon as St John proved that the House of Commons sitting in parliament had absolute power to pronounce what was treason, though the same were not found or laid down by statutes or laws.
In his recent work The Noble Revolt, John Adamson said that ‘St John’s speech of 29 April 1641 is one of that handful of political speeches from the 1640s which can genuinely be said to have changed the course of events.’
Professional, or academic, historians have abstained from heavy comment on the deviations from due process or established procedure engaged in by those who were pursuing Strafford. Pym even ensured that evidence against Strafford reached the Lords allegedly on the footing that although they could not use it against Strafford, they should have the benefit of it anyway. (Those pursuing Dreyfus would resort to a similar tactic.)
Other commentators have not been backward. The Scots philosopher and historian David Hume said:
Thus perished, in the 49th year of his age, the Earl of Strafford, one of the most eminent personages that has appeared in England. Though his death was loudly demanded as a satisfaction to justice, and an atonement for the many violations of the constitution; it may be safely affirmed that the sentence by which he fell was an enormity greater than the worst of all those which his implacable enemies prosecuted with so much cruel industry.
Hume condemned the prosecutors not for failing to give due process but for punishing a man for doing his job.
Macaulay had no time for King Charles I, and he loathed Strafford – ‘the first of the Rats… the first Englishman to whom a peerage was a sacrament of infamy, a baptism into the communion of corruption.’ On the legal justification, Macaulay is all over the place. He says that the proceedings against Strafford –
… are justified, in our opinion, by that which alone justifies capital punishment or any punishment, by that which alone justifies war, by the public danger. That there is a certain amount of public danger which will justify a legislature in sentencing a man to death by retrospective law, few people, we suppose, will deny. Few people, for example, will deny that the French convention was perfectly justified in placing Robespierre, Saint-Just, and Couthon under the ban of law, without a trial. This proceeding differed from the proceeding against Strafford only in being much more rapid and violent. Strafford was fully heard. Robespierre was not suffered to defend himself. Was there, then, in the case of Strafford, a danger sufficient to justify an Act of Attainder?… The attainder was, in truth, a revolutionary measure. It was part of a system of resistance which oppression had rendered necessary.…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.
Well, at least we have the concession that the process that resulted in the death of Strafford was ‘revolutionary’. But if ‘public danger’ is enough to warrant the killing of a man outside the law, where might it all end? And if killing might be part of a system of resistance rendered ‘necessary by oppression’, where might that all end?
It is ironic that Macaulay refers to the execution without trial rendered upon Robespierre and others. If their death was warranted by considerations of public danger, who is to say that they had not acted properly under the same principle in procuring the deaths of those considered a threat to France during the Terror – especially given that the sovereign body of that nation had proclaimed that ‘the fatherland is in danger’?
The German historian Ranke referred to the grounds put forward by St John as ‘extremely remarkable’. Ranke referred to the remark of a defender of Strafford that his opponents were intent on committing ‘a judicial murder.’ Ranke said:
His guilt was of a nature entirely political; he had done his best to guide the King in these complications, undoubtedly in the belief that he was right in so doing, but still with indiscreet zeal. So also his execution was a political act: it was the expression of the defeat which he had suffered and occasioned, of the triumph of the ideas against which he had contended to the death.
It may seem a truism to us that both the guilt and the execution of Strafford should be characterised as ‘political,’ but it is at least a reminder that we are talking about political decisions and procedures, and not judicial decisions or procedures.
Trevelyan was so carried away by the drama that he felt no need to enquire after legality.
An ancient custom of the constitution, much used by the Parliament–loving tyranny of the Tudors, allowed King, Lords, and Commons to pass, like any other Bill, an Act of Attainder to put any subject to death without trial. It was the last safeguard of the State, and now, if ever, was the moment for its just employment….All over England, the thought of Strafford still alive, and about to be placed at the head of a military force, raged in men’s blood beyond the medicine of words. The City closed its shops in panic, and masters and men, set free from business, came day after day to threaten the lives of the Straffordians, as they called the recalcitrant Lords, and the fifty-nine who had voted against the attainder in the Commons….The King’s assent, as everyone knew, could only be extorted by force……Dawn broke upon the pitiless siege, and all day long fresh congregations came up from the Sabbath gospellings in the City churches. Charles was in agony; he consulted the judges and bishops, who were divided in opinion. At nine on Sunday evening he gave way. Noise had conquered, as when the Bastille fell. Three days later 200,000 persons witnessed on Tower Hill the death of ‘Black Tom the Tyrant’.
It is as if Trevelyan were intent on proving that the London mob could be just as loud and just as violent as the Paris mob, and that English historians could be just as passionate as the French. It is curious how much nativism counts. Jules Michelet never thought that the Brits had it in them.
Let us then look at what was said about Strafford by a man who knew more about English history and the English Parliament than anyone else. Having ratted twice himself, Winston Churchill could be dispassionate about why Wentworth was regarded as ‘the Satan of the Apostasy’, ‘the lost Archangel’, or the ‘suborned traitor to the cause of Parliament.’ What then would happen when the king had to go to his parliament with his empty purse in his hand?
The Crown made no resistance now to the principle that redress of grievances should precede supply; but the grievances of the Commons could be satisfied only by vengeance. Strafford possessed convincing proofs of the correspondence carried on by Pym and others with the invading Scots. This was plain treason if the King’s writ ran. It was believed that Strafford meant to open this formidable case; but Pym struck first. All the rage of the Parliamentary party, all the rancour of old comradeship forsworn, all that self-preservation dictated, concentrated upon the ‘wicked Earl’ a blast of fury such as was never recorded in England before or since….The hostility of the populace was terrible. Such a downfall recalls, in its swiftness at least, the fate of Sejanus, the hated Minister of Tiberius.
Of the proceedings on the impeachment:
That he was the arch enemy of all that the majority championed, and indeed of the rights and liberties of the nation, was apparent. But to prove him guilty of the capital offence of treason was not possible…Was this enemy of English rights to escape by legal processes? They knew he was their foe, and they meant to have his blood. They would dispense with a trial and have him declared guilty by Act of Parliament…When Oliver St John urged the case for the Attainder in a great conference between the Houses, he used arguments not of law but of revolution.
Well, there is the same concession as that made by Macaulay – the proceeding was by ‘revolution’ rather than by law, but not apparently by a ‘revolution’ in the generally accepted sense of that term. What was Churchill’s conclusion?
He had sought power by the path of Parliament. He found it in the favour of the Crown. He adopted a system which suited his interests, and it became interwoven with his strong character. The circumstances of his trial and of the Attainder threw odium upon his pursuers. They slaughtered a man they could not convict. But that man, if given his full career, would have closed perhaps for generations the windows of civic freedom upon the English people.
That was the opinion of a man who knew more about the English parliament and constitution than anyone reading this.
What is the point of this small part of English history in a book about events in France?
We have been and we will be talking about conflict between people, between the governors and the governed. We did not need the great Ranke to tell us that these conflicts are political. They are as political as you can get. The relevant opinions involve drawing inferences from evidence and making judgements based on standards or customs by criteria that we devise as best we can. We are talking of political issues that involve questions of degree. For all those reasons, we are talking of questions to which there is no prescribed answer. We are talking of issues on which reasonable minds have disagreed and will continue to do so. A failure to accept these limitations involves both intellectual and political immaturity.
We are also discussing questions which those who lived at the relevant times and in the relevant places were far, far better equipped to deal with than us. They knew what their customs and standards were; we can only feel for them. Their access to the evidence was so much fuller than ours. Even our logic has been corrupted by the unavoidable force of hindsight. We know what happened in the end, and we have to resist the temptation to describe events as if they had to happen. History should have no truck with Calvinism.
So, we are dealing with political matters for judgment where we have to feel our way with most of the lights turned off. And although the actors in these parts of our story saw these issues as basically political, we tend to do so by criteria that are substantially moral. There is no magic in labels, especially where they overlap as they do here, but it is hard to avoid seeing a big difference in the two points of view.
The story of Strafford reads like a morality play about the death of an ambitious courtier. The tragedy of Richard II is a passion play about the deposition of a wayward king. It is the first of four plays that reflect on the morality of that deposition and the guilt felt by its beneficiaries and their descendants. Violent overthrows may resound for generations. Can a whole regime be cursed by Original Sin? Did not the Soviet Union suffer and then expire under just such a curse put upon it by the pride of Lenin?
A revolution is a violent overthrow of a political system. If you seize power unlawfully, how do you stop someone doing the same to you? If you overturn a whole system of government by a revolution, how do you stop the process – how do you stop events continuing to revolve? This is the question at the heart of the tragedy of the events in France that we will come to. If violence begets violence, how do you justify violence in self-defence? Who makes that decision? Apart from God, who judges that decision?
All of the justifications that we have referred to for obtaining an act of parliament to warrant the killing of Strafford boil down to the proposition that the ends justify the means. How then do you forestall the cataract of crimes against humanity by people like Lenin, Hitler, Stalin and Mao?
The English position on Strafford was that national self-defence called for his death. The evidence suggests that, to put it at its lowest, their fear for the harm that Strafford might do to them was not irrational. The Romans had a maxim for actions of national self-defence. Salus populi lex suprema est. The safety of the people is the supreme law. That was very much the principle invoked in the French Terror.
Of course I have the right to defend myself if someone is trying to kill me. Our common law goes further. If Jack calls Bob a coward, Bob can defend himself. If in doing so, he calls Jack liar, and he gets sued for libel, the law protects him with a privilege against that suit because he has acted in self-defence. He only loses that privilege if Jack proves that Bob was out to wound him rather than to protect himself. (The law puts the label of ‘malice’ on this issue.) But again we see that there are issues of degree and that there is no hard or fast answer.
A revolution is a revolt that succeeds. If those revolting fail, they get executed. If they succeed, they are the new form of government. Nelson Mandela went from being a terrorist to freedom-fighter, liberator, and founder of the nation. But that is not the end of the story for those who are governed. How and when will the new system of government bed down? Will those who have taken to violence forsake it? Is it as easy as giving up on heroin? Just how vulnerable are they to the unavoidable rule that all power corrupts?
When Macaulay refers to the fate of Robespierre, we might ask why he should not apply the same criteria to those whose death Robespierre had procured. Those who administered the Terror in France said that they were doing so to save France. There is no doubt that the French nation was threatened from both inside and out.
But, were Pym or Robespierre defending the nation or themselves? Does that question involve a false dilemma? Pym knew that he could face a charge of treason that, to put it at its lowest, would not have been groundless, and that after a slight change of the political breeze, he might see his numbers go down, and he may then have suffered a fate at the hands of the law, let alone an adverse political judgement. How might Robespierre have responded to the allegation that at least at the end he was just getting rid of all those whose threat was not directed at France but to him as the de facto leader of the government of France then in office? Had he begun to feel the qualms about how he continued to hold office like those felt by Henry IV about how he had come by his crown?
And then – on what ground do we claim the right to sit in judgement? Or is it just the case that there are times in our affairs when the brute facts of life lead ineluctably to just one conclusion? The Athenian jury may or may not have been able to overlook the slap in the face that Socrates gave it on penalty. The Sanhedrin in Jerusalem may or may not have been able to acquit Jesus of Nazareth on the charge of blasphemy. But had Hitler not taken his own life, and if Osama had been taken alive, is it even conceivable that either would have been suffered to live? Would any discussion about the means have been any more than vain window dressing?
All these sorts of questions are literally as old as God. Let us take as an example a story that has driven young school students to distraction translating it. We go back to the time before the birth of Jesus of Nazareth. The high point of the career of the Roman politician called Cicero came when he uncovered the plot of Catiline – in a story that would just about mesmerise so many orators in France after 1789 who so desperately sought after some ancient heroes on which they might seek to mould themselves. The following comments derive from the History of Rome of Theodore Mommsen.
The plans of the conspirators were now laid bare, and their leaders arrested. In a well-ordered commonwealth, that would have been an end of the matter. The military and the legal tribunals would have done the rest. But the government of Rome was so disorganised that for the moment the most difficult question for settlement was the custody of the prisoners. Rome was not big on jails. The freed men of the prisoners were stirring and the air was full of rumour about schemes for liberating these people by force. (The same rumours were rife in London in 1741 and in Paris in 1793. Rumours of army plots to storm the Tower were fatal to Strafford.) Rome was full of desperadoes and the government had no efficient force of military or police. Catiline was near enough to attempt a coup de main. Accordingly, someone suggested that the prisoners be executed at once. But by the constitution of Rome, no citizen could be put to death except by a sentence of the whole body of citizens – those sentences had fallen into disuse and capital punishment was no longer carried out.
Cicero at first shrank from this course. He convoked the Senate and left the decision to it although it had even less title to act than the Consul and therefore could not possibly relieve him of the responsibility. Most of the Senate were in favour of execution. Caesar spoke against it in a speech full of covert threats. Cato responded by throwing suspicion upon those who were for milder measures. By driving the waverers into fresh alarm, he secured a majority for the immediate execution of the prisoners. (Robespierre and his followers would bring this technique of Cato to perfection.)
That night, the prisoners were conducted under strong guard to a dungeon at the foot of the Capitol. After the prisoners had been strangled, Cicero announced: ‘They have lived their lives’. Cato and others anointed Cicero with the title ‘Father of his Country.’
Never perhaps had a commonwealth more lamentably declared itself bankrupt than did Rome through this resolution… to put to death in all haste a few political prisoners, who were no doubt culpable according to the laws, but had not forfeited life; because forsooth, the security of prison was not to be trusted, and there was no sufficient police.
These are the stories that we are about to see replayed in France. They take us back to the words of Strafford on the scaffold. Is it right that the beginning of the happiness of people should be written in letters of blood? That is very much the same as the famous question put by Dostoevsky.
Rebellion? I don’t like hearing such a word from you…One cannot live by rebellion, and I want to live. Tell me straight out, I call on you – answer me: imagine that you yourself are building the edifice of human destiny with the object of making people happy in the finale, of giving them peace and rest at last, but for that you must inevitably and unavoidably torture just one tiny creature, that same child who was beating her chest with her little fist, and raise your edifice on the foundation of her unrequited tears – would you agree to be the architect on such conditions? Tell me the truth.
With Compliments 