Defining a British State Treason and National Identity, 1608–1820
Lisa Steffen
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Defining a British State Treason and National Identity, 1608–1820
Lisa Steffen
Studies in Modern History General Editor: J. C. D. Clark, Joyce and Elizabeth Hall Distinguished Professor of British History, University of Kansas Titles include: Bernard Cottret (editor) BOLINGBROKE’S POLITICAL WRITINGS The Conservative Enlightenment Richard R. Follett EVANGELICALISM, PENAL THEORY AND THE POLITICS OF CRIMINAL LAW REFORM IN ENGLAND, 1808–30 Philip Hicks NEOCLASSICAL HISTORY AND ENGLISH CULTURE From Clarendon to Hume Mark Keay WILLIAM WORDSWORTH’S GOLDEN AGE THEORIES DURING THE INDUSTRIAL REVOLUTION IN ENGLAND, 1750–1850 William M. Kuhn DEMOCRATIC ROYALISM The Transformation of the British Monarchy, 1861–1914 Kim Lawes PATERNALISM AND POLITICS The Revival of Paternalism in Early Nineteenth-Century Britain Nancy D. LoPatin POLITICAL UNIONS, POPULAR POLITICS AND THE GREAT REFORM ACT OF 1832 Marjorie Morgan NATIONAL IDENTITIES AND TRAVEL IN VICTORIAN BRITAIN James Muldoon EMPIRE AND ORDER The Concept of Empire, 800–1800 W. D. Rubinstein and Hilary Rubinstein PHILOSEMITISM Admiration and Support for Jews in the English-Speaking World, 1840–1939 Lisa Steffen DEFINING A BRITISH STATE Treason and National Identity, 1608–1820 Lynne Taylor BETWEEN RESISTANCE AND COLLABORATION Popular Protest in Northern France, 1940–45
Studies in Modern History Series Standing Order ISBN 0–333–79328–5 (outside North America only) You can receive future titles in this series as they are published by placing a standing order. Please contact your bookseller or, in case of difficulty, write to us at the address below with your name and address, the title of the series and the ISBN quoted above. Customer Services Department, Macmillan Distribution Ltd, Houndmills, Basingstoke, Hampshire RG21 6XS, England
Defining a British State Treason and National Identity, 1608–1820 Lisa Steffen Assistant Professor University of South Carolina Spartanburg
© Lisa Steffen 2001 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 0LP. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted her right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2001 by PALGRAVE Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N. Y. 10010 Companies and representatives throughout the world PALGRAVE is the new global academic imprint of St. Martin’s Press LLC Scholarly and Reference Division and Palgrave Publishers Ltd (formerly Macmillan Press Ltd). ISBN 0–333–92034–1 This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Steffen, Lisa, 1969– Defining a British state : treason and national identity, 1608–1820 / Lisa Steffen. p. cm. — (Studies in modern history) Includes bibliographical references and index. ISBN 0–333–92034–1 1. Trials (Treason)—Great Britain—History. 2. Nationalism– –Great Britain—History. I. Title. II. Studies in modern history (Palgrave (Firm)) KD371.P6 S74 2001 345.41'0231—dc21 00–068674 10 10
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Printed and bound in Great Britain by Antony Rowe Ltd, Chippenham, Wiltshire
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For my parents, Richard and Sylvia Steffen
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Contents Author’s note and acknowledgements
ix
Introduction
1
1
Treason, allegiance and sovereignty in England, 1608–88 The law of treason from 1352 to 1640: an overview Calvin’s Case: a debate concerning allegiance Sovereignty, allegiance and treason in the 1640s Sovereignty, allegiance and treason in the Interregnum Sovereignty, allegiance and treason under the Restoration Conclusion
2
Dynastic treason: national identity after the Glorious Revolution The 1696 Treason Act Bills of Attainder: Sir John Fenwick and James Francis Edward Conclusion
3
A British law of treason, 1709–83 Creating a British law of treason Applying the British law of treason Interpreting the British law of treason The American Colonists: traitors or not? Conclusion
4
Republican treason and national identity in the 1790s The French influence The Edinburgh trials The London trials Authority secured in law: the Treason and Sedition Acts Irish republican treason Conclusion
vii
9 10 18 24 37 44 46
48 50 59 67 69 70 75 84 93 97 99 100 103 106 116 123 137
viii
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Contents
The ‘General Safety of the State’: Treason from 1816 to 1820 The idea of ‘treason against the king’ during a regency The Spa Fields riot and the Pentridge rebellion The Cato Street conspiracy of 1820 Conclusion
140 141 145 150 155
Conclusion
158
Notes
163
Bibliography
208
Index
241
Author’s Note and Acknowledgements
Please note that New Style dating is used throughout the text to adjust the Old Style dating that began the New Year on 25 March. For example, the medieval statute 25 Edw. III, Stat. 5, c. 2 passed in January 1351 Old Style and January 1352 New Style. Statutes dated according to the king’s reign remain unchanged. This book is my PhD dissertation revised. While all blame for error rests with myself alone, I have many with whom the credit of this book must be shared. I benefited from the fine eighteenthcentury British collection at the Spencer Research Library (Lawrence, Kansas) and the experienced, knowledgeable, and ever-cheerful Bill Mitchell. The learned assistance from the staff at the Public Record Office, the British Library, and the Bodleian Library made my time in London and Oxford pleasingly productive. I thank the Comptroller of Her Majesty’s Stationery Office for permitting reproduction of material found in the Law Commission Working Paper No. 72. Second Programme, Item XVII. A summer spent in Palo Alto introduced me to the Special Collections at Stanford, and I very much appreciate its helpful staff. I thank the University of Kansas for a Graduate Minority Fellowship and Graduate Summer Fellowship. I received a Young Scholar Fellowship from the P.E.O., which made the trip to the archives in England possible. To my Master’s thesis advisor John Kenyon, who sadly passed away in January 1996, I owe thanks for believing in my potential and for giving me the idea to investigate treason in the eighteenth century. I am forever grateful to my dissertation advisor and series editor, Jonathan Clark, for the countless hours he spent patiently reading and criticizing each chapter. Professor Victor Bailey has been a constant source of support and inspiration since I began graduate work in 1991. Other professors at the University of Kansas including Gail Bossenga, James Brundage and Michael Hoeflich also have read the work. They all offered thought-provoking suggestions and comments. David Liebermann read the partially revised dissertation and encouraged the Macmillan Press (now Palgrave) to accept the work for publication. My editors at Macmillan have been both ix
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Author’s Note and Acknowledgements
thorough and timely with their comments about the text. The cheerful and excellent copy editor, Janey Fisher, especially deserves praise. I also appreciate the support of my superb colleagues at the University of South Carolina Spartanburg. They have offered encouragement when needed most. Friends offered laughter, fun, and kindness that were a happy balance to the hours spent alone in the library and office – thank you! Judy Frana was brave enough to chaperone my first tour of England, and this experience confirmed my interest in the history of that kingdom. Drs Michael and Leslie Schrier encouraged me to enter graduate school and continue to support and advise me. I gratefully appreciate that Michael took the time to edit revisions of the book. Most of all I want to thank my family whose sincere and unconditional love keeps life in perspective. Thanks to my remarkable and beloved parents, Richard and Sylvia Steffen, my talented and extraordinary sister and brother-in-law, Angie and Steve and, of course, their fabulous trio: Evan, Morgan, and Alex. My final thanks is delivered from the heart to Siva Nadarajah, whose faithful and passionate belief in me evokes pure bliss and quiet peace.
Introduction
Treason was the most serious and extraordinary criminal offense in Britain. It was serious because it directly attacked the highest sovereign authority. It was extraordinary because not only was it cognizable in the law courts, but parliament itself had the power to impeach or, as an extreme measure, pass an act of attainder to declare a person guilty by statute. 1 Such a grievous and unique offense does not fit neatly into a general discussion of criminal law, and this may explain its exclusion from the recent scholarship focused on the ‘rule of law’ in eighteenth-century Britain. Or perhaps historians have been too eager to emphasize alienation from the state and, as a result, have ignored how the state succeeded in defining and defending itself. Even though John Brewer called for studies concerning ‘compliance and allegiance – about the mechanisms by which the state secured or lost the attachments of its subjects,’ no one has used treason as a means of probing this problem. 2 Neglecting the subject of treason discounts an important opportunity for exploring how the eighteenth-century state, in an age of empire and revolution, defined and defended itself internally. This approach therefore complements other recent emphases on a nation’s self-definition against an external ‘other.’ Historians have used a variety of sources to uncover the nature of the state and society in eighteenth-century Britain, including local and national newspapers, serials and philosophical tracts of sophisticated thinkers such as John Locke, David Hume, Adam Smith, Edmund Burke, Thomas Paine and Mary Wollstonecraft. They have explored state papers to explain the growth of the military and central administration, as well as changes in the industrial economy and labor force. They have scoured the collections of sermons 1
2
Introduction
delivered in Dissenting chapels and in Anglican cathedrals. Fascinated by religious, political and social tracts, many historians have overlooked treason trials and treason law. Even those historians who have explored the law often slight the innovatory nature of case law in favor of statute law. 3 This book investigates the trials for treason in order to explain the dynamics of sovereignty, allegiance and national identity in the eighteenth century. Even more than the changes in statute law, the debates in the treason trials and the decisions reached in them actively shaped how subjects perceived their relationship to the governing powers. When treason law was debated in parliament or applied in a court of law, it became a prism that refracted the various interpretations of the nature of the state. The way in which prosecutors interpreted and applied the law of treason, and the way the defense counsel and accused responded, reflected distinct understandings of ‘state’ identity. Because treason trials reveal contemporary debates about sovereign authority, the trials become a valuable source for depicting the development of the eighteenth-century state. This connection naturally draws this book into the current historiography surrounding the definition of the British state. Since the early 1980s, historians, political scientists and sociologists have recognized the importance of the concept of the state and have been striving to ‘bring the State back in.’4 Historians are divided between those who define the state as strong and centralized and those who define it as weak and decentralized. Cutting across this split over centralization is another major division between those historians who view the state in secular, functional terms and those who see it in denominational and ideological terms.5 Although historians have largely neglected the eighteenth-century law of treason and treason trials, they have assessed the law of treason in the medieval and early-modern periods. John Bellamy’s work on the medieval law of treason remains a standard reference.6 He sought to explain why the statute law clarified the common law in 1352 and considered the implications of this step. Bellamy pursued his work on treason into the sixteenth century, where other historians, such as Geoffrey Elton and Lacey Baldwin Smith, joined him.7 While Elton believed parliament passed new treason laws to confirm by statute law the Henrician settlement, the Marian Catholic regime, and the Elizabethan Protestant settlement, Smith described an extremely paranoid Tudor government using treason law to rid the country of opposition. To the great interest of many historians,
Introduction
3
men who gained power during the seventeenth century utilized treason law as a deadly weapon against their enemies. A variety of works have investigated such cases as the Gunpowder Plot (1605), the Popish Plot (1678) and Monmouth’s Rebellion (1685), as well as the famous trials of the Earl of Strafford (1641), Archbishop Laud (1644), Charles I (1649), the regicides (1660), William, Lord Russell (1683) and Algernon Sidney (1683).8 A few unpublished dissertations survey the entire seventeenth century.9 While seventeenth-century treason trials engaged the minds and pens of many historians, much less attention has been paid to treason after the Glorious Revolution. Jacobite historians have probed selected treason trials, and Alan Wharam has told the story of the 1794 Jacobin trials. 10 No one, however, has undertaken a survey of the application of treason law during the long sweep of the eighteenth century in order to gauge the changing definitions of sovereignty, allegiance and national identity. This work approaches the multifaceted problem of the state, sovereignty, allegiance and identity through its Janus face, treason. Treason, allegiance and sovereignty are inseparable concepts, and each of the following chapters explores these terms in the context of treason trials. Obviously, more treason trials occurred in the ‘long eighteenth century’ (1688–1820) than are examined here. Those selected for discussion are either the most famous or are trials which were used by commentators, such as Sir Michael Foster and Sir William Blackstone, to illustrate points of law. The following chapters focus specifically on high treason. Crimes of counterfeiting and petit treason must be considered in a comprehensive understanding of treason in the eighteenth century, but they are not explored here because they did not directly attack the central sovereign authority. Counterfeiters and those guilty of petit treason acted from a personal desperation for money or from hate and love, but these acts in themselves did not endanger the life of the king or the public and political institutions. This book engages in an exploration of how the king and parliament remained secure against internal political attack.11 A review of high treason supplements a recent book by David Martin Jones. Conscience and Allegiance in Seventeenth Century England: the Political Significance of Oaths and Engagements traces ‘the evolution of a casuistical discourse and its implication for the maintenance of an oath bound political community.’12 Jones concludes that a moral theology of conscience and religious principles shaped
4
Introduction
most Protestant Englishmen’s concept of allegiance by the 1620s and continued to do so until the mid-eighteenth century.13 The governing powers wrote and rewrote state oaths during the seventeenth century for the purpose of establishing legitimate rule. As a result, the state oath became the legal form of natural allegiance and English identity. While Jones approaches sovereignty, allegiance and identity through loyalty oaths, this book seeks to understand the same topics through cases of treason. The sources for this study include published accounts of the treason trials and the archives of the Treasury Solicitor, King’s Bench, and Home Office. The Treasury Solicitor’s papers are especially rich. This collection includes correspondence between the Attorney General, Solicitor General and Secretary of State, drafts of testimony from witnesses, scribbled notes for closing arguments, and clerks’ shorthand notes from the trials. T.S. 20, for example, is an essential archive for the Jacobite treason trials. As an agency of the Crown, however, the Treasury Solicitor’s papers do not provide a vast amount of material directly from the hands of the defense counsel. While we can gain excellent insights into the application of the treason law from this archive, we must recognize its limitations. Printed accounts of the trials and commentaries on the law balance the selected archival information. The first two chapters establish a context for discussing treason, allegiance, national identity and sovereign authority during the eighteenth century. Chapter 1 explains that parliament passed 25 Edw. III, Stat. 5, c. 2 in January 1352 to prevent insurrections, correct the vagueness of the common law of treason, and confirm the king’s authority over his subjects. This medieval statute protected the person of the king and his family and remained the basis for treason law throughout the eighteenth century. Sixteenth-century monarchs used statutory treason law to confirm the Tudor dynasty and their choice of religion. During Elizabeth’s reign treason law began protecting a Protestant state, and her successor continued her legacy. Representing a new dynasty and wearing a British crown, James VI/I also used treason law to promote a common Protestant identity. Calvin’s Case (1608) affirmed a common allegiance to him. In the tumultuous 1640s, however, some subjects themselves altered the meaning of the 1352 treason law to push through their denunciation of the king’s government. By forcing fact to suit the criteria for treason, in other words by constructing treason, those subjects arranged that such men as the Earl of Strafford, Archbishop Laud
Introduction
5
and King Charles I met their death on the scaffold. 14 Though his father suffered through the doctrine of constructive treason, Charles II supported it after his restoration in 1660. Opposition to the Crown and government in the 1680s led to accusations of treason and the execution of several men involved in the 1683 Rye House Plot including two men of stature, Algernon Sidney and William, Lord Russell. Prosecutors egregiously bent the rules about witnesses in Algernon Sidney’s case, when his own writing substituted for one of the two witnesses necessary to prove treason.15 Because of these political treason trials, Englishmen in parliament after the 1688 Revolution sought to reform the procedure of treason trials to safeguard the rights of the accused. Chapter 2 investigates how the treason law responded to the sovereign king-in-parliament after 1688. For eight years parliament debated the treason law, before ultimately passing the Treason Act of 1696. The basis for treason remained attacks and designs against the king’s person and family. If the Glorious Revolution marked a triumphant date for the rise of parliamentary sovereignty at the expense of the powers of the king, such a victory was not reflected in the treason law. The 1696 Treason Act changed the procedures in treason trials, but it did not change the definition of treason. Treason remained an act against the person of the king, and treasonable acts continued to be expressed in dynastic terms. The Glorious Revolution created a crisis in allegiance, and the trial that encapsulated this was Dr Henry Sacheverell’s in 1710. 16 The sermon for which he was impeached suggested that the Church of England was in crisis, that the Glorious Revolution was invalid, and that the English law acknowledged no right of resistance. For this Queen Anne’s Whig government charged him with ‘high crimes and misdemeanours’ (not treason) against the crown. 17 His ideas gladdened the hearts of those remaining loyal to the heirs of James II. Though Sacheverell avoided accusations of treachery, Daniel Damaree and two others were charged with treason for rioting after the trial. Treasonous rioting was also the charge used to arrest Lord George Gordon in 1780 for his part in the anti-Catholic riots in London.18 The crisis of allegiance after 1688 prompted Englishmen at Westminster to put pressure on Scotsmen to form a union of parliaments. John Cairns noted that the first change in Scots law after the 1707 Union was in 1709 when ‘the English law of treason and English criminal procedure for prosecution of treason by commission of
6
Introduction
oyer and terminer were introduced.’19 An English (now called British) law of treason tried the captured Jacobites, the supporters of the exiled royal Stuarts. The third chapter of this book explores the creation, application and interpretation of the British treason law in the mid-eighteenth century. The treason trials reveal that judges, juries, prosecutors and counsel conceived of allegiance in personal terms, but this emphatic and definitive position soon altered. The 1745 Jacobite Rebellion was the last major uprising seeking dynastic change. After 1745 complaints against the government and men in parliament did not originate with the idea of replacing, deposing or killing a king. Parliament, especially the House of Commons, became central to the agenda of the opposition. The challenges from America in the 1760s and 1770s alerted members of the British government to the fact that sovereignty could be subverted without directly attacking the king’s person. After several years of tension between the colonies and Westminster and after more than a year of military skirmishes, the American patriots shifted their attention from parliament to the king. The Declaration of Independence transformed the United Colonies into ‘Free and Independent States.’ It denounced the king as a tyrant and absolved the new United States from allegiance to the British Crown. Despite the ‘ties of our common kindred,’ the patriots declared their independence and in doing so believed they were declaring war against an enemy rather than rebelling against a liege lord. Their open war obviously met the definition of treason as defined by 25 Edw. III, Stat. 5, c. 2, but, as shown in Chapter 3, attempts to use the British law of treason against American rebels failed miserably. The British government was reluctant to treat the American rebels as traitors: to execute captured rebels for treason would serve only to make the colonists retaliate against captured British soldiers in America. Of course, there was also a sizeable majority in Britain, including Edmund Burke, who believed the colonists were simply fighting for what Britons already had: the ‘rights of Englishmen.’ Chapter 4 discusses treason in Britain and Ireland against the backdrop of the French Revolution, examining the concepts of allegiance, national identity and notions of sovereignty as the treason trials in the 1790s reshaped them. Men in power believed an insidious threat jeopardized not just the House of Commons and House of Lords, but the entire structure of society. A new republican treason emerged. The British government arrested men for treasonable
Introduction
7
activities against the ‘parliament,’ ‘government’ and ‘state.’ Perhaps more than popular protest expressed in the press, it was the treason trials of the 1790s that led to a seminal change in sovereign identity. Treason subverted the legislature, not just the executive. Prosecutors and judges continued to express this idea in the three major trials related to events in Ireland: the trials of James O’Coigly (1798), John and Henry Sheares (1798), and Major Edward Despard (1803). In each trial, the prosecutors worried more about the possibility of the complete overthrow of the social and political establishment than about the safety of the king. The judge in John Sheares’ trial defined treason as an act against the political and constitutional system of the realm, and the prosecution at Despard’s trial defined treason as an offense against the ‘state.’ The treason trials of the 1790s, with the threat of France looming across the Channel, emphasized definitions of the government that expanded the idea of allegiance. While subjects continued to express allegiance to the king, who stirred deep feelings of patriotism, the prosecutors and ministry demanded that subjects safeguard and respect a sovereign parliament. After the war with France ended in 1815 and the troops returned home, Britain experienced a severe economic depression. Radicals, such as those belonging to the Spencean Society, offered an agenda of social reform that promised to provide food and jobs for the hungry and unemployed. Chapter 5 argues that the treason trials connected to the Spa Fields riot (1816), the Pentridge rebellion (1817), and the Cato Street conspiracy (1820) reveal a remarkable paradox. Innovations in the concept of ‘the state’ came from the Crown prosecutors, ostensibly the defenders of monarchical authority, not from the counsel for defense. After 1820 the use of treason law and the horrible sentence it imposed subsided. 20 Certain Chartists were arrested for treason in 1839, but those found guilty were transported or imprisoned, not executed. The demands of the treason trials had generated and established an alternative definition of sovereign authority by the 1820s. Treason, according to the prosecutors, was an act against all Britons and against the ‘general safety of the state.’ This definition of the state included the king, parliament and nation in its large embrace, but it did not echo the abstract idea of state as found, for example, in the American law of treason. Article III, Section 3 of the American Constitution states that
8
Introduction
Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted. The American law drew from the English law, but it excluded all references to the executive and any ministers who represented it. The British treason law never deleted the centrality of the monarch. Dynasty continued to secure a British national identity. Thus it was not surprising that if the prosecutors sought a guilty verdict through a more comprehensive understanding of the state, the defense lawyers protected their radical clients by appealing to tradition: as the prisoners never renounced allegiance to their sovereign king, the jurors must acquit them. This book demonstrates that treason trials and treason law helped to generate and confirm a common national identity as well as to instigate a refashioning of the British state after 1765.
1 Treason, Allegiance and Sovereignty in England, 1608–88
Political and social upheavals astonished and perplexed the English, Welsh, Scottish and Irish from 1603 when the Tudor royal scepter passed to a Scottish Stuart, through to 1689 when a Protestant Dutch prince claimed victory over the departed papist James II. During this time subjects contested sovereign authority in the black print of the press and in the red blood of the battlefield. Perhaps the most dramatic assertion of sovereignty displayed itself in the trials for treason. When James VI of Scotland became James I of England and Ireland in 1603, both he and the Westminster parliament accepted 25 Edw. III, Stat. 5, c. 2 as the law of treason. According to this 1352 statute, subjects committed treasonable acts against the king – not the Crown, not the commonweal, not the government, not an abstract state, but the person of the king. As such, the medieval treason law confirmed James’s understanding of sovereignty in England in 1603. Ideas of the Crown and commonweal existed and persisted, however, and within fifty years the High Court of parliament found Charles Stuart guilty of treason. Because of his trial and execution the definition of treason changed radically to accommodate a republican regime. Parliament passed new treason laws as early as the day of the king’s execution, and by 1656 it further revised treason law to safeguard the Lord Protector. Upon the Restoration in 1660, the law of treason reverted back to 25 Edw. III, and this endured as the foundation for all laws of treason despite continued questions over the proper location of sovereignty. Politicians and theorists debated and victors defined the concepts of sovereignty and state. This chapter briefly reviews the law of treason and highlights a select number of treason trials before 1689 to provide an historical context for debates over sovereignty and the state that continued through the eighteenth century. 9
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Defining a British State: Treason and National Identity
The law of treason from 1352 to 1640: an overview Sir Edward Coke (1552–1634) served as Lord Chief Justice of the Court of Common Pleas and then as Lord Chief Justice of the Court of King’s Bench. His Institutes of the Laws of England emphasized the importance of the 1352 law of treason. ‘For except it be Magna Charta, no other act of parliament hath had more honour given unto it by the king, lords spirituall and temporall, and the commons of the realme for the time being in full parliament, than this act concerning treason hath had.’1 Coke praised the men who shaped the treason statute and ignored the fact that Sir William Shareshall, Lord Chief Justice of the Court of King’s Bench, and Sir John Stonier, Lord Chief Justice of the Court of Common Pleas, took bribes and participated in the legal corruption the nobles protested against in the 1340s. Coke concluded that these judges had rightly codified specific acts of treason and clarified the common law, for ‘God forbid in cases so penal, law would not be certain.’2 Coke summarized the 1352 law by dividing it into six parts. 1 Death: by compassing and imagining the death of the king, queen and/or prince, or by killing and murdering the Chancellor, treasurer, Justices of one Bench or another in their places doing their offices; 2 Violation: carnally to know the king’s consort, or queen, the king’s eldest daughter unmarried, or the prince’s wife; 3 Levying war against the king; 4 Adhering to the king’s enemies within the realm, or without, and declaring the same by some overt act; 5 Counterfeiting of the Great Seal, the Privy Seal or the king’s coin; 6 Bringing into the realm counterfeit money to the likeness of the king’s coins. For all these offenses, the punishment had to be fearsome ‘that others by this example may Feare to offend.’ 3 The 1352 Treason Act intended to restrict the king’s right to inflate a felony charge to treason, and thus ostensibly to curb the prerogative power of the king. Before 1352 the common law defined treason vaguely, compared to the more precise criteria employed for felonies. The king and his judges decided treason according to the political implication of each case; for instance, in certain cases judges considered riot and highway robbery treasonable. But the 1352 Act created a statutory distinction between felony and treason. As a result, magnates secured a regulated application of treason law. Yet the Act of 1352 did not limit the authority of the mon-
Treason, Allegiance and Sovereignty in England, 1608–88
11
arch as the nobles desired. By defining treason as a direct attack upon the king, the treason law actually served to strengthen the king’s position of power. The statute 25 Edw. III emphasized the loyalty owed to the sovereign king. The king used this law not only to prove he was the being to whom all owed allegiance, but also to claim his personal power as liege lord. The 1352 Act described high treason as an offense against the king’s person and his regality, with torture, execution, forfeiture of estates and attainting of blood as the penalty. Petit treason occurred when a wife murdered her husband, a layman his cleric, and a servant his master. The 1352 law considered these acts parallel, but lesser, offenses to high treason. The statute 25 Edw. III aimed to prevent insurrections, correct the vagueness of the common law of treason, and assert the king’s authority over his subjects. The Act began by addressing the treachery of causing harm to the king’s person and his family: Whereas divers Opinions have been before this Time [in what Case Treason shall be said, and in what not;] the King, at the Request of the Lords and of the Commons, hath made a Declaration in the Manner as hereafter followeth, that is to say; When a Man doth compass or imagine the Death of our Lord the King, or of our Lady his Queen [wife] or of their eldest Son and heir 4 it was treason in law. To compass or imagine the death of the king, queen, and heir apparent even by simply declaring the same through some overt deed qualified as treason. To ‘compass and imagine’ simply meant ‘to plan.’ Likewise, the statute included killing or murdering the king’s Chancellor, treasurer, Justices of one Bench or other, Justices in Eyre, Justices of Assize, and Justices of Oyer and Terminer while in their places doing their offices. The law read: and if a Man slea the Chancellor, Treasurer, or the King’s Justices of the one Bench or the other, Justices in Eyre, or Justices of Assise, and all other Justices assigned to hear and determine, being in their Places, doing their Offices: And it is to be understood, that in the Cases above rehearsed, that ought to be judged Treason which extends to our Lord the King, and his Royal Majesty.5 The treason law did not explicitly protect parliament, but it did protect the king’s ministers in so far as they acted in his name.
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Defining a British State: Treason and National Identity
The kingdom’s identity and security derived from the safety of the king. The sovereign authority protected by treason suggested something intimate: the personal loyalty owed to the body and mind of the king. Other sections of the law of treason stressed personal loyalty as well. Treason was also rape or sexual relations with the king’s consort, the king’s eldest unmarried daughter, or the heir apparent’s wife: ‘or if a Man do violate the King’s Companion or the King’s eldest Daughter unmarried, or the Wife of the King’s eldest son and heir . . .’6 The pains and penalties of treason law safeguarded an untainted bloodline from the king to his heirs. The majesty of the king protected these women and in turn they protected his power by providing heirs. Immediately following this, the law asserted something new: or if a Man do levy War against our Lord the King in his Realm, or be adherent to the King’s Enemies in his Realm, giving to them Aid and Comfort in the Realm, or elsewhere, and thereof be proveably [probably] attainted of open Deed by [the People] of their Condition . . . 7 No longer could nobles simply renounce their allegiance to the king and proceed to battle free of the taint of treason. If proved by an overt act, such as the actual raising of a rebellion, levying war was treason. According to Coke’s interpretation, any war within the realm subverted the essential nature of the king’s power: ‘if any levie war to any end without warrant; this is levying war against the king; because they take upon them royall authority, which is against the king.’ 8 No subject could levy war within the realm without the king’s sanction, for his authoritative majesty had to be safeguarded. Even so, Coke believed there must be an overt act, an actual rebellion, to prove levying war. He disapproved of collapsing the two distinct forms of treason: conspiring to kill the king and conspiring to levy war. The first proved treason, but the second did not. Lastly, the treason law addressed the serious crimes of counterfeiting coin or the royal seals. The chaos that ensued from false claims in government or economics and the assumption that the integrity of both represented the integrity of the monarch made counterfeiting treason. So far as we know, no cases of counterfeiting the royal seals arose in the eighteenth century. Counterfeiters
Treason, Allegiance and Sovereignty in England, 1608–88
13
of coin did not raise constitutional questions, but rather acted from a personal need, usually a desperate one, for money. As a result, this book excludes these treasons from its scope of study. Nobles feared that the judges, acting independently, would persist in elevating random felonies to treason in order to seek harsher penalties, as they had done in the 1320s, 1330s and 1340s. To prevent this the peers added a proviso to the 1352 Act. The clause made it mandatory that if difficulties arose over the interpretation of what constituted an act of treason, the judges hearing the case would refer the matter to the king and his parliament. The proviso curbed the discretionary power of the judges. In the seventeenth century, members of parliament twisted the meaning of this clause to justify the constructive treason used in such famous trials as those of the Earl of Strafford, Archbishop Laud and King Charles I. In the fourteenth century, few signs of the doctrine of constructive treason existed. In the next century, however, constructive treason changed the original meaning of the statute.9 The 1352 treason law elevated the person of the king during an age of decentralized power. Until the mid-fourteenth century a subject offered voluntary, not absolute, loyalty. Levying war against the king was not considered treasonous if the rebels submitted a solemn notice that allegiance had been renounced.10 Men wronged by the king actually had a duty to seek justice through rebellion. Thus 25 Edw. III advantaged the king’s position, and monarchs used it to consolidate power. The later medieval English kings, accustomed to common law, sought to ‘bolster their political position’ through Roman law, especially when Roman law addressed the sanctity of the emperor.11 Not all Englishmen, however, favored using continental law to defend the personal power of the king. Contemporaries believed the English common law tradition deserved respect for its fairness and nearness to God’s justice, as opposed to law in France where they presumed the king legislated and taxed his subjects at will. Sir John Fortescue (d. 1475), writing in the fifteenth century, defined England as dominium politicum et regale; and in De Laudibus Legum Angliae, he asserted the unique character and superiority of English law. In England, the king made laws and levied taxes ‘only with the assent of subjects.’12 Law, parliament, and his own coronation oath limited the king. In the thirteenth and fourteenth centuries, nobles stressed the limited nature of the king’s power by promoting the concept of the ‘Crown,’ a term that implied the integrating of the king into the body of an older notion,
14
Defining a British State: Treason and National Identity
the community of the realm. When the king’s business touched the rights of subjects and their common welfare, it became in part the business of the universitas regni (whole realm). By the prevailing theory of consent, quod omnes tangit (what touches all shall be approved by all, or procedural consent) the king had to obtain the consent of all in common assembly, in other words in parliament.13 The medieval prince was not the state or sovereign; as the public status he was ‘included in the whole body of his realm and, therefore, subordinate to the end of the public welfare or commonweal of community as a whole.’ 14 The Crown remained distanced from the person of the king and ‘embodied the interests of the realm as a whole.’15 The king could act for and against the Crown’s interest. The idea of the ‘Crown’ and the arguments of Sir John Fortescue (first printed posthumously in 1537) endorsed an abstract notion of the bond between the king and the kingdom. While powerful nobles and theorists continued to draw upon this definition of sovereignty, the 1352 Treason Act offered another theory that gained ascendancy. This crucial statute did not include the abstract notion of the Crown. Instead, the judges followed Roman law and drafted a statute that endorsed the pre-eminence of the king. Therein lies the ultimate importance of 25 Edw. III for defining sovereignty and allegiance. Kings maintained their quest for centralization of power in the fifteenth century. Henry V’s high view of royal dignity coupled with his need to suppress the Lollard revolts of 1414 and an outbreak of counterfeiting extended the law of treason beyond the 1352 statute.16 Kings used the treason law to confirm their position as head of the body politic. Paradoxically, kingly superiority continued to rise during the Wars of the Roses, a conflict that amounted to ‘one would-be-monarch and his supporters versus another wouldbe-monarch and his.’17 The monarch’s strength grew because ‘the leader of neither faction wanted royal authority impugned since he had hopes of using it himself.’18 On 20 November 1459, for example, parliament focused on passing Acts of Attainder against York and his supporters. A propaganda tract, Somnium Vigilantis, justified these attainders by stating that the Yorkist lords encroached upon the power of the sovereign. Increasingly, however, the treason charge shifted from ‘accroaching’ to compassing and imagining the death of the king. Fifteenth-century judges construed many acts, including mere treasonable utterances, as constituting an overt deed within the meaning of the statute.19
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Henry VII introduced a new safeguard to the law of treason in the late-fifteenth century. To strengthen the Tudor King’s position and to protect those men who had fought on the losing side at Bosworth field in 1485, 11 Hen. VII (1495) declared the legal notion of a king de facto and a king de jure. Henry VII’s victorious regime did not judge and execute the supporters of Richard III, because Henry and his advisors acknowledged that subjects gave their allegiance to the king who ruled de facto. Coke, writing in the 1620s, endorsed Henry VII’s decision that if a king is in possession of the crown and kingdom, then ‘he is seignoir le roy within the purvieu of the statute.’20 The subjects of the realm served the ‘prince or sovereign lord for the time being.’ 21 This argument for the safety and protection of the king whether de facto or de jure illustrated Coke’s belief in the unbroken continuity of the ancient and tremendous lineage of the king. In his discussion of treason, he simply wrote, ‘If the crown descend to the rightful heir, he is rex before coronation, for by law of England there is no interregnum and the coronation is the solemnity of honor.’22 This statement, that treats the coronation oath as merely a ceremonial confirmation of powers already confirmed, was not seemingly in accord with the ancient tradition of consent found in common law.23 Coke strove to reconcile his belief in a strong, central and personal monarch with his desire to uphold the ancient power of the common law. His attempts of reconciliation, however, did not always provide consistent adherence to common law, natural law or positive law. Treason law became an especially useful recourse for the king during the Reformation. Recent scholarship has highlighted the 1533 Act in Restraint of Appeals. 24 The Act proclaimed the imperial status of the realm of England. The king became the highest authority in matters both ecclesiastical and secular. Not surprisingly, once parliament proclaimed Henry VIII’s supremacy, the government deliberately used the treason law to apprehend and indict those whom the Crown found threatening. To consolidate the Henrician Reformation and Henry VIII’s marriage to Anne Boleyn, the members and peers passed a treason act in 1534 declaring that anyone who by words, or writing, or by craft imagine, invent, practise or attempt any bodily harm . . . or slanderously and maliciously publish and pronounce, by express writing or words . . . that the King
16
Defining a British State: Treason and National Identity
our sovereign lord should be heretick, schismatick, tyrant, infidel or usurper of the crown,. . . shall be adjudged traitors,. . . . (p. 338).25 Concern for the king’s safety and changes in the official religion thus brought hostile propaganda within the range of treason law. Thomas More became the most famous man to suffer the penalties of treason because he did not recognize the supreme and imperial authority of the king. Because these treason statutes augmented the power of Henry VIII to the extent that some feared the potential for tyranny, in 1547 Edward VI’s ministers repealed the Henrician law of treason. So 1 Edw. VI, c. 12 defined treason as only those offenses deemed to ‘be Treason or Petit Treason, in or by the act of Parliament or Statute made in the five and twentieth year of the Reign of the most notable King of famous Memory, King Edward the Third.’26 But in the same law parliament found it necessary to safeguard the king’s supremacy as head of the Church of England over the Bishop of Rome. To deny this supremacy in deed or writing was treason at the first offense; spoken words at the third offense. Again the second treason act of 1552, 5 & 6 Edw. VI, made openly preaching or expressly calling the king a heretic treason. After her accession to the throne in 1553, Mary erased all treason laws save 25 Edw. III. By her ‘accustomed clemency and mercy,’ words alone were not considered treason, but soon she too found it necessary to maintain protection against written and spoken words. In 1554, 1 & 2 Philip and Mary, c. 10 established denying the rights of the king and queen by writing, printing and overt deed or act as treason on the first offense. If the court proved a man spoke hostile words, then on the first offense he forfeited all ‘Goods and Issues of his Lands for Life, and also shall have perpetual imprisonment.’27 More strict than 1 Edw. VI, c. 12, this law closely resembled the 1534 treason law of her father. Mary approved this severe treason law because she found it necessary to guard against hostility to her Spanish marriage and the restored Roman Catholic connection. Following the 1570 papal bull Regnans in excelsis excommunicating Queen Elizabeth, parliament passed a new treason law to control the current crisis of allegiance. The Treason Act of 1571 (13 Eliz. I, c. 1) drew together the statutes concerning treason passed by the earlier Tudors, added a clause making it treason to obtain a bull
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17
from the pope, and reiterated the main clauses of the 1352 Act – compassing the death, destruction or deposition of the queen, or levying war against Her Majesty within or without the realm or stirring any foreigners or strangers against her. Mostly, however, this legislation protected the monarch and Supreme Governor of the Church of England from challenges on religious grounds. 28 Treasonous acts now included naming the queen a heretic, schismatic, tyrant or usurper by writing, printing, preaching, or speaking.29 The series of statutes that extended treason ended rather early in her reign. Any subsequent changes in the interpretation of treason law came not through parliament but rather through the lawyers and law courts manipulating ‘compassing and imagining the death of the king’ to construct treason from felony. The Treason Act of 1571 was the last major statute on treason until 1696; though, in 1661–2, for the protection of King Charles II, parliament passed a Bill confirming that words, written or spoken, were proofs of overt acts of treason.30 The theory of constructive treason ran alongside changes in statute law during the sixteenth century. Under the Tudors treason law became a honed weapon, which, unfortunately for the Stuarts, parliament learned how to use to its own advantage. 31 By the end of the seventeenth century, constructive treason had made rapid progress because the lawyers paid close attention to the meaning of the two words, ‘levying war.’ 32 As the monarch’s legal and ecclesiastical presence undermined the power of the nobles and spread throughout the realm, subjects offered their allegiance directly to the king; 25 Edw. III ensured subjects honored this allegiance. Treason law and sovereignty neatly supported each other. In the sixteenth century the monarchs and their ministers especially used treason law to ensure religious conformity. National identity appeared to be premised on religious denomination, and treason law guaranteed that the English kingdom acknowledged Protestantism or Catholicism depending upon the monarch’s pleasure. Once James expressed a desire to be known as King of Great Britain in 1603, the definition of allegiance and identity became uncertain. Calvin’s Case (1608) established that both English and Scots owed allegiance to the king and that the ruling dynasty defined and shaped national identity.
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Defining a British State: Treason and National Identity
Calvin’s Case: a debate concerning allegiance Locating sovereignty in the seventeenth century at first seems a straightforward task. England had a monarch, and thus authority flowed down from God to the king who ruled over the subjects. Yet the recent work of such historians as J.G.A. Pocock, Linda Levy Peck, Johann Sommerville, Brian Levack, Glenn Burgess, John Morrill, Jonathan Scott, J.C.D. Clark and Howard Nenner demonstrates that pinpointing the source of paramount authority in the seventeenth century is not so easily accomplished. 33 Opposing the earlier work of John Kenyon, Conrad Russell and Pocock himself, which proposed that the men who were involved in and who thought about government in the early Stuart period essentially spoke the same language of constitutionalism, historians have recently argued that no consensus existed to support ‘limited’ monarchy.34 Englishmen proposed such diverse theories as monarchical absolutism, legal absolutism, parliamentary absolutism, mixed monarchy, limited monarchy and ‘irresistible’ constitutionalism. Sovereignty has thus become a stumbling block in the quest to understand political conflict and settlement in the age of the Stuarts. 35 If defining sovereignty preoccupies historians, defining allegiance was what concerned contemporaries. This desire for proper and godly loyalty first arose with the papacy’s excommunication of Henry VIII, and later of his daughter Elizabeth. The problem of allegiance grew after the Union of Crowns. Sir Edward Coke, the Lord Chief Justice, and Thomas Egerton, Lord Ellesmere, the Lord Chancellor (1603–17), for example, addressed the problem of allegiance after 1603.36 Ellesmere accommodated the common law even as he advanced the continental theories of Jean Bodin.37 Coke also emphasized the majesty and power of the monarch but worked even harder than Ellesmere to elevate the common law. Coke and Ellesmere cogently expressed their views on sovereignty and allegiance during the controversies over the subject status of the post-nati which culminated in the action on behalf of the three-year-old Robert Colvin (in English Robert Calvin). This trial questioned whether or not Scotsmen were aliens in England. The central problem became whether allegiance was owed to the king or to the laws. If to the king, then James’s accession to the English throne created a union between the two nations. But, if to the laws, held to be the body politic, then Scotsmen could not be considered naturalized English subjects.38
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The question of Scots’ alien status preoccupied members of parliament after the death of Queen Elizabeth. Debates over the legal position of post-nati and ante-nati coincided with an attempt to discuss the unification of the two separate legal systems. In late 1607 Francis Bacon produced a major examination of English law entitled, ‘Preparation Toward the Union of the Laws of England and Scotland.’ 39 By 1608, however, the possibility for legal union had died, and with it James’ desire for ‘perfect union.’ From February to April the naturalization debates occupied the attention of members of parliament. The debates generated two proposals: first, that English subject status should be extended to Scots born before the union of the crowns, the ante-nati; and second, that it should be recognized that Scots born after James’s accession to the English throne, the post-nati, already held de jure English subject status. The English members of the Commons, anxious to prevent the king from giving away riches and offices to Scots, sought to oppose the proposals by arguing for the ‘Two-Body’ theory of monarchy. This sort of argument might be classified as belonging to consent theorists, for it located sovereignty in the community. The members, however, avoided arguing directly against the rightful sovereignty of the king. Rather, they desired to guard their own power and estates. Because some members opposed granting the status of Englishness to both post-nati and ante-nati Scots, a Great Conference in Painted Chamber assembled on 25 February 1608 to consider further the problems of naturalization. The Commons asserted the theme of allegiance to the body politic and contended that the Scots post-nati obeyed Scottish laws, not English laws. Post-nati could not be naturalized. The members submitted the statute of 14 Edward III as evidence. This Act declared that ‘while Edward was also King of France, Englishmen were subject to him only as King of England.’ 40 Although the Commons stressed a different focus for allegiance, they did not deny the ultimate power of the king or promote resistance. Against these arguments from the Commons, Ellesmere vehemently protested that the Act of Recognition addressed ‘one Imperial crown.’ Coke, Fleming and Popham also opposed the Commons’ position and represented the 12 judges present: ‘Laws did not govern allegiance; the sovereignty of the king, itself an expression of allegiance, instead underlay the establishment of the law.’ The tenor of Coke’s theory supported the absolute authority of the king.
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By 2 May naturalization remained unresolved, and the debates came to an abrupt end. The question of naturalization became entangled with the Commons’ quest for ‘immediate and perfect union.’ James believed the members displayed ‘proof of bad faith, and a desire to frustrate naturalization.’41 He wanted a gradual union achieved through the willingness of both nations. His angry condemnation of the Commons halted the discussions of both naturalization and perfect union. Obviously, parliament achieved no solution to the problem of allegiance and sovereignty. The king and his councilors met with judges and the latter agreed that questions concerning the rights of Scotsmen in England must be resolved in a test case. To create this case, an English estate was conveyed to a Scots child born after 1603, Robert Calvin. Another person then forcibly possessed the land. Following this, the child’s guardian brought action in an English court for recovery. The defendant countered by arguing that the child could not plead owing to his alien status in England. Thus, in effect, Calvin’s Case presented the problem: ‘Whether Robert Calvin, plaintiff, (being born in Scotland since the Crown of England descended to his Majesty) be an Alien born, and consequently disabled to bring any real or personal Action for any Lands within the Realm of England.’42 The defense put forth three reasons why Robert Calvin was alien born. First, since he was born in Edinburgh, he owed allegiance to King James of Scotland but not to King James of England. Second, in the king’s person there ‘concur two distinct and several Kingdoms’ and ‘ligeance of each nation is due to the king’s several politick Capacities of the several Kingdoms.’ This defined allegiance as several and divided. Finally, because Calvin was born outside the law of England, he could not be a natural subject to the king. Although Calvin’s Case disputed titles to land, ‘its underlying purpose was to settle the nature of the union of the crowns of England and Scotland in the person of James.’43 Fourteen judges heard the case in June 1608. The case raised four significant issues: sovereignty, allegiance, national identity and treason. The reactions of Coke and Ellesmere demand our attention. Coke declared Calvin’s Case the ‘longest and weightiest that ever was argued in any Court.’44 Ellesmere agreed. As Lord Chancellor, the Crown entrusted him with administration of the royal powers. When he spoke in favor of Calvin, ‘he believed he had a major obligation to explain convincingly why allegiance was owed to the monarch as a natural man by all his subjects regardless of their place of birth.’45
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For Ellesmere, the law originated in the king. In turn, the king gave the law to his people, for ‘as God ordained kings, and hath given Lawes to kings themselves, so hee hath authorized and given power to kings to give Lawes to their subjects.’46 In defending his opinion in Calvin’s Case, Ellesmere put forth a concept of the king’s single natural body. Thus, he opposed another medieval notion heard in the Commons that the king had two separate bodies, politic and natural. For Ellesmere the natural body of the sovereign was the source of the king’s prerogative. The personal privileges stemmed from the body of the king and the legal privileges from laws. He firmly believed in the king’s divine right to rule, but because he separated the legal and personal aspects he tried to strike a compromise. The king’s legal privilege bound him to observe the laws he and his predecessors created. Later in his speech, Ellesmere addressed sovereignty and the AngloScots Union directly. He said: This bond of Allegeance whereof we dispute, is Vinculum fidei; it bindeth the soule and conscience of every subject, severally and respectively, to bee faithfull and obedient to the King: And as a Soul or Conscience can not bee framed by Policie; so Faith and Allegeance can not bee framed by Policie, nor put into a politike body. An oath must be sworne by a natural bodie; homage and fealtie must bee done by a naturall bodie, a politike body cannot doe it.47 Ellesmere had no doubts that subjects owed allegiance to the natural body of the sovereign. The king cannot be divided, ‘for hee is one intier king over all his subjects.’ 48 Just so, ‘hee that is borne an intier and perfect subject, ought by Reason and Law to have all the freedomes, privileges, and benefites pertaining to his birthright in all the Kinges Dominions; and such are all the Post-nati in England and Scotland.’49 For Ellesmere, the body politic, a mystical body, never died. Treason, ‘to intend or compass mortem et destructionem domini Regis, must needs be understood of his natural body, for his politic body is immortal, and not subject to death.’ Ellesmere concluded, ‘Robert Calvin, like other Post-nati in Scotland, ought by Lawe to be capable of lands in England: . . .’50 Coke agreed. Calvin owed allegiance as a true subject of the King of England, and as such he could file suit for lands within England. To explain why, Coke examined four crucial facets: legeantia,
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Defining a British State: Treason and National Identity
regnum, leges and alienigena. ‘Ligeance is the mutual Bond and Obligation between the King and his subjects, whereby Subjects once called his Liege subjects, because they are bound to obey and serve him, and he is called their Liege Lord, because he should maintain and defend them.’51 This sense of obligation implies consent, but Coke also considered Calvin a subject to the King of England by natural allegiance, or allegiance as birthright. Natural allegiance was the birthright of every subject, but the law also described allegiance as ligeantia acquisita (allegiance acquired by immigrants), ligeantia localis (local allegiance, owed by an alien within the king’s protection) and legal obedience. Breaking any one of these bonds of loyalty prompted a charge of treason. Coke provided the example of a Frenchman who might enter England under the guise of amity. If he then chose to incite rebellion, he would be indicted and tried for treason. The government, however, treated an alien fighting for a foreign army and captured in Britain as a prisoner of war. The king had never protected him, and thus that man had broken no allegiance. Coke understood allegiance to be a quality of the mind, not confined within any place, and maintained that the oath established legal obedience. He found it significant that one swore an oath of loyalty ‘to our sovereign lord King James and his Heirs’ not the King of England, Scotland and Wales. 52 After the Union of Crowns, four separations still existed: England and Scotland were separate kingdoms, with separate judicial laws, parliaments, and nobility. But, Coke argued, a significant union had occurred. Both kingdoms joined together under one natural ‘liege Sovereign King,’ who offered protection and one escutcheon. The Union of Crowns ‘in Substance is but a Unity of the Hearts of the Subjects of both Kingdoms one to another under one Head and Sovereign.’53 Essentially, Coke believed King James had one person but several capacities including the political capacity for the realm of England and another for the realm of Scotland. The subject swears to the natural person of the king and vice versa. For example, argued Coke, treason targeted the person of the king because the ‘body politick is invisible and cannot take Homage.’54 When confronted in court by two seminary priests, Watson and Clark, who asserted that their allegiance to King James stemmed not from the moment he inherited the throne but from his coronation oath, Coke argued that ‘Coronation is but a Royal Ornament and Solemnization of the Royal Descent, but no Part of the Title,’ for by the laws of England ‘there can be no interregnum within the same.’55 Such stress on
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23
personal sovereignty supported the patriarchal and authoritative hopes of the king within the boundaries of the ancient common law.56 Even so, Coke championed the law of nature. Ultimately, this eminent judge concluded that the ‘legiance or Faith of the Subject is due unto the King by the Law of Nature,’ which was the ‘eternal law of the Creator.’ 57 In cases of treason when the subject lost the king’s legal protection, he did not lose the protection accorded by the moral law of nature through which the king may yet protect and pardon him. By combining the importance of the law of nature with his conclusion that men and women owed allegiance to the person of the king, not his office, Coke argued that ‘Ligeance of the Subjects of both Kingdoms, is due to their Sovereign by one Law, and that is the Law of Nature.’58 Both kingdoms shared one sovereign king and all subjects owed allegiance to him. One could not be both alien born and subject born. Calvin could be a traitor, but he could never be an enemy to the realm, for enemies are alien by birth. As a natural-born subject, Calvin owed allegiance and obedience ‘by the Law of Nature to one Sovereign.’59 With the king’s power and protection, Calvin lived as a subject, not an alien. 60 Coke reached the most crucial conclusion last, the indelibility of the subject’s allegiance to the person of the king. Coke appealed to the natural law, and his praise of the common law did not preclude his recognition of the sovereign power of the king. The judges agreed and so settled Calvin’s case in his favor. As a subject of the King of England, though born in Scotland, he could claim his lands in England. According to David Martin Jones, the judges’ decision affirmed ‘that the natural allegiance owed by all subjects and confirmed by oath was not territorial in character, and thus could not be circumscribed by geography.’61 Calvin’s Case settled that both the Scots and English owed personal and faithful loyalty to the same king. This idea held firm until the 1640s when the tensions surrounding how best to define allegiance and sovereignty flared into heated combat. A variety of political theories – monarchical absolutism, legal absolutism, parliamentary absolutism, mixed monarchy, irresistible constitutionalism, limited monarchy, republicanism – arose in the unstable vacuum created during the Civil War. Englishmen in power asserted the medieval theory of the king having two bodies to justify destroying the person to whom they owed allegiance without consulting the Scots or the Irish. Sovereignty and national identity were contested, not settled.
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Defining a British State: Treason and National Identity
Sovereignty, allegiance and treason in the 1640s During the 1640s and 1650s the definition and use of the treason law and treason trials shifted to accommodate the creation of a new sovereign. Lawyers used constructive treason to convict and execute for high treason Thomas Wentworth, the Earl of Strafford, William Laud, the Archbishop of Canterbury, and Charles Stuart, King of England, Wales, Scotland and Ireland. These most famous cases starkly illustrate the need to understand the role played by power in the application of treason law. The republican government required that treason law change in order to safeguard the new sovereign ‘state.’ This change is seen in both the statute books and in the trials of the Duke of Hamilton (1649) and Colonel John Penruddock (1655). The regicide trials (1660) mark a return to the early-seventeenth-century understanding of treason against the king’s person. Students continue to investigate the treason trials of the midseventeenth century, and they follow historians before them such as Samuel Rezneck, Leon Kantorowicz, Conrad Russell, Antonia Fraser, Howard Nenner and others whose dissertations remain unpublished.62 As historians have assessed early-seventeenth-century treason in detail, here we simply seek to grasp the main arguments that emerged at these celebrated trials. The interrelationship so clearly demonstrated between treason, sovereignty and allegiance confirms the validity of searching for definitions of sovereignty in treason trials and the treason law. The Earl of Strafford and Archbishop Laud Humiliated by defeat in the Second Bishops’ War, England also had to defuse tension in Ireland. Failure to do this ultimately resulted in the Irish Catholic rebellion of October 1641. Charles expected monetary support from parliament, but parliament disappointed him. The members made reform a condition of granting supply to the king and began the process of impeaching the king’s most powerful military leader, Thomas Wentworth, recently created Earl of Strafford, and the most powerful ecclesiastical leader, William Laud, the Archbishop of Canterbury. Both stood accused of subverting the fundamental laws of the realm and causing discord between the kingdoms. The charges against Strafford and Laud and their subsequent treason trials in parliament encapsulated the tensions existing in the British Isles over religion, multiple kingdoms and sovereignty.
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Those in power executed the king’s top civil and ecclesiastical ministers because the administration of one had caused ferment in Ireland and that of the other had caused rebellion in Scotland. The trials of Strafford and Laud reflected the dual threat of popery and arbitrary government – the opposite of the loyal English values of Protestantism and the rule of law. The charges drawn up for Strafford’s impeachment in November 1640 echoed the Commons’ dissatisfaction with the king’s policies and practices. 63 Among the several and distinct accusations carried by John Pym to the Lords on 11 November four are crucial: that the Earl of Strafford had ‘traiterously endeavor’d to destroy the Constitution;’ that he had ‘traiterously assumed Regal Power in both kingdoms’ (Ireland and England); that in accomplishing these two crimes, he had created ‘hostilities between the subjects of England and Ireland;’ and, finally, that he generated ‘an irreconcilable quarrel with the Scots.’ 64 In sum, Strafford had incensed the king against parliament, and had therefore ‘created divisions between his Majesty and his People’ which would lead to the ruin and destruction of the Irish, Scottish and English kingdoms. Soon thereafter, the Commons added 19 more articles. The conclusion was that Strafford labored ‘to subvert the established Laws and Government, and instead of them, to introduce Arbitrary and Tyrannical Power.’ 65 This suggested the old argument of ‘the king’s evil ministers.’ Not surprisingly, we find in this trial and attainder discussions of how best to safeguard sovereignty. The closing testimonies of Strafford and Pym summarized the diverging ideas current concerning government. Strafford, who had been displaying a powerful self-control throughout, pleaded his innocence and became quite passionate in his closing statement: As to my designs about the state, I dare plead as much innocency here as in the matter of my religion. I have ever admired the wisdom of our ancestors, who have so fixed the pillars of this Monarchy that each of them keeps due measure and proportion with the other, and have so handsomely tied up the nerves and sinews of the State that the straining of the one may bring damage and sorrow to the whole economy . . . and as on the lute, if anything be too high or too low wound up, you have lost the harmony, so here the excess of a prerogative is oppression, of a pretended liberty in the subject, disorder and anarchy . . . I ever did inculcate this: – The happiness of a kingdom consists in the
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just poise of the King’s prerogative and the subject’s liberty, and that things should never be well till these went hand in hand together.66 He also, of course, argued against tyranny and arbitrary government and simultaneously supported the king’s absolute authority. His testimony continued: I have no great mind to be a Slave, but a Subject; nor could I wish the Cards to be shuffled over again, upon hopes to fall upon a better Set: nor did I ever nourish such base mercenary Thoughts, as to become a Pandar to the Tyranny and Ambition of the greatest Man living. No; I have, and ever shall aim at a fair, but a bounded Liberty; remembring always that I am a Freeman, yet a Subject; that I have a Right, but under a Monarch.67 Strafford’s bounded liberty reflected the idea of Sir Edward Coke, an absolute regal authority within the law. He did not assert a theory of the rule of law, but neither did he denounce a theory of government based on reciprocal obligation between the king and subject. Strafford did not view the law as omnipotent. The king ruled by the right of sovereignty given to him by God directly, while dutifully recognizing the law established. The law granted subjects freedom and liberty but not an excessive or demanding one, and subjects had rights only under the monarch. Although a subject can petition and request, he cannot demand or expect the monarch to grant his wishes. Strafford gave both the king and law respect as absolute authorities whose source of power came directly from God. While accepting the king’s prerogative, John Pym stressed the limitations of a king bound by the law. His was the language of rights, liberty and law, not bounded duty. Unlike Strafford, Pym insisted that the rational institution of law maintained a balanced government. The law protected the body politic. The king submitted to it. ‘If you take away the law all things will fall into a confusion, every man will become a law unto himself.’ He continued: The law is the boundary, the measure betwixt the king’s Prerogative and the People’s Liberty, whilst these move in their own Orbs, they are a support and a security to one another, the Prerogative a cover and defence to the Liberty of the People, and
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the people by their Liberty are enabled to be a foundation to the Prerogative; but if these bounds be so removed, that they enter into contestation and conflict, one of these mischiefs must ensue: if the Prerogative of the King overwhelme the Liberty of the People it will be turned into Tyranny; if Liberty undermine the Prerogative, it will grow into Anarchy . . . 68 The emphasis on the law illustrated his general belief that Charles I often forgot, as James VI/I had not, that the law limited his actions. Whereas Strafford emphasized the ‘bounded liberty’ of the subject, Pym emphasized the ‘Liberty of the People’ and the restricted authority of the king. Neither denied the necessity of both, but stressed different pillars supporting the same theory of government. Both feared disruption of government but differed on how best to safeguard it. Strafford believed its preservation rested in his devotion to the king and his directives; Pym opposed the king’s recent policies and sought to protect the government by dispensing with the king’s ministers. At this stage, he did not voice violent resistance as a viable option. Pym depersonalized the offense of treason by referring to the danger Strafford presented to the state and its people rather than a threat to the person of the king. Pym did not understand the ‘state’ as ‘the people’ but rather as the ‘king and parliament.’ Here Pym argued for a specific institutional sovereign. Strafford’s actions threatened to overthrow government, and therefore he committed treason against the state. The idea that treason could be against the state, the body politic, the Crown, and not just the person of the king remained partially concealed under the drama of the impeachment, the trial for high treason, and the attainder. Pym garnered strength from one medieval concept of the Crown, and thus for him, ‘government equalled the institution of the state, not the person of the governor.’ 69 The emphasis on the authority of the law, parliamentary participation in government, and the king’s right under law and traditional rule, meant that Pym could not simply discard the 1352 treason statute. The prosecutors had to construe treason to fit the written law. By arguing that the intent to levy war meant an intent to kill the king, they successfully (though dubiously) met the requirements of the treason law. An Act of Attainder passed by the Commons and Lords, and signed, albeit reluctantly, by the king found Strafford guilty of treason. Personal sovereign authority suffered a tremendous blow.
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As Strafford left his cell in the Tower of London for his execution, he paused by the window of his ecclesiastical counterpart, William Laud, the Archbishop of Canterbury, who offered a blessing and comfort. One had only hours to live, the other yet two years, for the Commons pressed on with its attempt to impeach Laud in spite of the turbulence of civil war. The lack of evidence for activities deemed treasonable by the 1352 statute meant that members of parliament again sought recourse in a Bill of Attainder. Laud’s actions were linked to Strafford’s. Together they represented the secular and ecclesiastical means of implementing thorough change in the constitution of the English realm. According to their enemies, they undermined both the true religion and civil liberties promised in law. Again in Laud’s trial, prosecutors and defense debated the idea of sovereignty, and ‘king in parliament’ won the day. John Pym read 14 articles of impeachment, the first of which stated that Laud had sought ‘to introduce into this Kingdom an arbitrary Power of Government, without any Limitations or Rules of Law. This (my Lords) is against the Safety of the King’s Person, the Honour of his Crown, and most destructive to his People.’70 Here Pym understood Laud’s actions as being directly offensive to Charles I himself, thus recognizing the sovereignty of the king as required by the statute. Laud had a chance to respond to these accusations, and he first acknowledged the grievous weight of the offense if indeed it were true. Laud then observed the lack of attention given to the king in the charge of treason against him. He said, And tho’ the King be little, if at all mentioned; yet I am bold to name him, because I have ever been of the Opinion, that the King and his People are so joined together in one Civil and Politick Body, as that it is not possible for any Man to be true to the King, as King, that shall be found treacherous to the State as established by Law, and work to the Subversion of the People: Tho’ perhaps everyone, that is so, is not able to see through all the Consequences, by which one depends upon the other.71 For Laud the state was the king and vice versa. Law did not separate them. In pledging allegiance to one, he pledged allegiance to the other. On 26 February 1641 the Commons heard the articles of impeachment. Similarly to accusations against Strafford, the first article claimed
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Laud ‘traiterously endeavoured to subvert the Fundamental Laws, and Government of the Kingdom; and instead thereof, to introduce an Arbitrary and Tyrannicall Government against Law.’ 72 Moreover, he also stirred up war and enmity between the two kingdoms of England and Scotland by introducing innovations in religion (popery) and government (arbitrary rule). He had produced sermons and discourses ‘in which the Authority of Parliaments, and the Force of Laws of this Kingdom are denied; and an absolute and unlimited Power over the Persons and Estates of his Majesty’s Subjects is maintained and defended, not only in the King, but also in himself, and other Bishops, above and against the Law.’73 The members accepted that the king had prerogative power as sovereign, but they questioned the abuse of that power by his ministers. The law restrained both the king’s government and subjects. Ignoring the law imperiled the realm. Laud remained in the Tower and pleaded for more time, but his accusers finally began the trial on 12 March 1644. On the first day Laud asked for clarification of the difference between treason and misdemeanor. Counsel did not respond because the distinction simply did not matter. They believed that all the Articles taken together, not each or any particular article by itself, made up the Treason wherewith he was charged: to wit His Endeavours to subvert and destroy the Realm and to bring in Popery and an arbitrary Tyrannical government against Law. 74 The prosecution found this construction entirely reasonable and, no doubt, necessary. Sergeant Wilde vehemently asserted that Laud had committed Treason in all and every Part: Treason in the highest Pitch and Altitude. For what greater Treason could there be, than to betray the whole Realm, and to subvert the very foundations, leaving nothing for posterity but a Course upon him that shall go about to build again?75 The idea that the king’s men disregarded the restraints of the law remained a predominant theme. Like Pym, Wilde focused on the tyranny that results from the dismissing the law. As had Strafford, Laud warned against the anarchy that follows if subjects forget the right of the king’s prerogative.
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On the hearing’s last day, 29 July 1644, Laud protested against the use of constructive treason. It undermined the sanctity of the statute law and threatened the government and all people. Not only was the court’s action against the law, as created by parliament and approved by the king, but it trespassed against a higher moral and natural code, one ordained by God. For the main end of that excellent Statute of 25 Edw. III. was for the safety of the Subject, against the manifold Treasons which variously fell upon them by the Common Law; and bounded all Treasons, and limited them to the things expressed to be Treason in and by that Statute. 76 In 1644, however, counsel for both defense and prosecution claimed they actively safeguarded the highest sovereignty in the realm, the king. The practices of the prosecution, however, strongly suggest that the location of sovereignty had shifted away from Charles. On 17 December, with only 14 members present and threatened by ‘the multitude’, the Lords found Laud guilty of subverting the laws, overthrowing the Protestant religion, and being an enemy to parliaments. The Bill of Attainder passed, though the king never signed it. Further demonstrating the alienation of sovereignty from the king, the remaining members rejected a pardon received by Laud from Charles earlier, on 12 April 1644. The statute of Henry VII recognized the king’s de facto power to pardon, but not the king’s de jure power to do the same without de facto power as well. In 1644, his opponents already perceived Charles I as a de jure king without de facto power. The king’s person featured in none of the accusations. The parliamentarians could not follow the 1352 statute, although they claimed to have done so. Here, even more than in Strafford’s trial, protecting the law and the realm justified their actions. If anyone hesitated about separating the king from sovereign authority in Strafford’s trial, such concern dissolved in the practical reality of Laud’s trial. After ignoring the monarch and asserting that treason could be against the realm, the Commons accused Laud of ‘High-Treason against our Sovereign Lord the King, his Crown and Dignity.’ Strafford had not emphasized the rule of law, coronation or limited monarchy, but rather his ‘bounded liberty’ given to him from God through the king. Strafford feared anarchy from below, and
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Pym feared arbitrary government from above. Both sides abhorred anything that could disrupt the ancient constitution. Resistance theories became reality during the Civil War, and the theorists supporting the king’s absolute authority fell silent, shouted down by the roar of victorious republican guns. By 1648 a new vision of government emerged, and the experiment began with a trial for high treason. Charles Stuart In the extraordinary trial of King Charles I in January 1649 sovereignty was held to reside in ‘the people.’ This was an old idea, but invoking ‘the people’ in order to execute a king was radically new. The trial challenged two traditional English and European beliefs: the divine right of kings and the idea that the king could do no wrong. A king could not be held accountable in court for an infraction of the law, because he had no peers who could form a jury to try him fairly. The novelty in removing Charles I was the trial itself.77 Never before had an English king been held accountable to the law and placed on trial. In the past his lack of peers had implied that only God could judge his actions. In 1649, however, mere mortals judged him. But these mortals not only judged divine right, they also challenged the political theory defended so passionately, but from such opposing viewpoints, in the trials of Strafford and Laud. Charles steadfastly denied his culpability for the outbreak of the preceding civil wars. He had acted with just and legal authority, and he therefore refused to negotiate or grant any concessions to parliament that significantly limited his constitutionally based royal power. Perhaps he thought he had made himself clear in his Answer to the Nineteen Propositions in June 1642, where he had said that the king had the right to defend the people against parliamentarians and to protect the law against an aggressive parliament. He appropriated the ancient concept of ‘the people,’ and used the notion to justify a different interpretation of sovereign authority. As the king, Lords, and Commons together created the laws so too did the laws bind them. And this kind of regulated monarchy, having this power to preserve that authority without which it would be disabled to preserve the laws in their force and the subjects in their liberties and properties, is intended to draw to him such a respect and relation
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from the great ones, as may hinder the ills of division and faction, and such a fear and reverence from the people as may hinder tumults, violence and licentiousness.78 At his trial he further argued that he alone was the traditional upholder of law and order. In 1648 the Presbyterians who controlled parliament and opposed the king believed that Charles ‘hath not only maintained and carried on the said War . . . but also hath renewed, or caused to be renewed, the said war against the Parliament and good people of this nation.’79 Yet this parliamentary coalition, held together by the pressures of the civil war, slowly crumbled in the peace following the king’s surrender. The Presbyterian majority in the two Houses of parliament desired a settlement with the king. These men never wanted too decisive a victory for either side: in fact, they hoped the king would free them from the ‘heretical democracy’ of the army and keep his promise of imposing Presbyterianism in England for at least three years.80 The officers proposed that the king relinquish control of the armed forces, send a select few of his ardent supporters into exile, and submit to the reform of the Church according to parliamentary decree. They had no guarantee that the king might not merely acquiesce only to turn against public interest when opposition arose. 81 Since the king did not answer to parliament or law, and since the soldiers had not been paid, the army officers believed this Newport treaty to be potentially very dangerous. In their mind, the proposed settlement, which favored Charles, seemed to sacrifice the very aims for which they had fought the Civil War. For victory to last, a treaty must restrain the king’s executive prerogatives. In the end the leaders of the army found themselves incapable of controlling Charles except by deposing him. The recent years of conflict had demonstrated a paradox. However much Charles’s personal power declined, the office of king retained an aura of pre-eminent power in England. The people in both court and country still had respect for the monarchy as a traditional institution.82 The army’s demand for justice alarmed members of the House of Commons, because this subverted their quest for Presbyterianism and limited monarchy. The officers believed that in his attempt to establish tyranny Charles had forfeited all his power and absolved the people from the bonds of trust between them. The severing of these fundamental links freed them to bring the royal delinquent to justice.
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In reply to the army’s remonstrance, Charles reminded parliament and the army that the law he administered was the law to which they had consented. He declared that ‘there is nothing that can more obstruct the long-hoped for Peace of this Nation, than the illegal proceedings of them that presume from servants to become masters, and labour to bring in Democracy, and to abolish Monarchy,’ but the unified army held the balance of power in its favor. 83 In order to accomplish their goals according to traditional methods, in other words by securing parliamentary approval, parliamentary soldiers had seized members of the Commons who supported the peace settlement with the king and kept them in custody by special order from the general and council of the army. This purge, led by Colonel Thomas Pride on 6 December 1648, removed about half of the Commons and cleared the ground on which the army could maneuver. Furthermore, the House of Lords lacked effective power. After the peers refused an ordinance which would establish a High Court of Justice, the remaining members of the House of Commons simply ignored them and turned themselves into a grand committee to consider the power of the ‘Commons in England assembled.’ The newly shaped House proceeded to attaint the king of high treason on 28 December 1648.84 On Thursday, 4 January 1649, they voted the following resolution: Resolved, that the Commons of England in Parliament assembled do declare that the people are, under God, the original of all just Power; and do also declare that the Commons of England in Parliament assembled, being chosen by and representing the people, have the supreme power in this nation; and do also declare that whatsoever is enacted or declared for law by the Commons in Parliament assembled hath the force of law, and all the people of this nation are included thereby, although the consent and concurrence of King or House of Peers be not had thereunto. 85 Parliament and the army officers assumed control of the law and the right to bring the king to justice. This neither expressed the language of limited monarchy nor that of personal absolutism. Instead it conveyed the purged parliament’s control over the law. Men and women crowded into Westminster Hall on Saturday, 20 January 1649. They struggled to witness the court’s action through the human fence formed by three rows of armed soldiers standing
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shoulder to shoulder. The elite spectators sitting in the balconies had the best view of the scene below, where platforms had been erected in the east end of the Hall for the 80 jury members and a crimson-cushioned chair placed in the center for the Lord President, John Bradshaw. After Bradshaw had settled into his chair and adjusted his steel-lined hat, guards escorted Charles Stuart into the Hall through a side door. Charles regally took his seat facing the court with his back to the soldiers and people.86 John Cook, Solicitor General, soon read the charge and the audience close enough to do so heard him declare the king of England whose oaths bound him to protect the law should be guilty of a wicked design to subvert and destroy our Laws, and introduce an Arbitrary and Tyrranical Government, in Defiance of the Parliament and their Authority, and set up his Standard of War against his Parliament and People.87 Ignoring the walking-stick Charles used to poke him in order to try and halt his speech, Cook continued: ‘Parliament doth for the said treasons and crimes on the behalf of the said people of England impeach the said Charles Stuart as tyrant, traitor, murderer, and a public and implacable enemy to the Commonwealth of England.’ 88 Charles never addressed the charge. He refused to dignify the illegitimate court with a response. Defiant and composed he challenged the authority of the assembled High Court of Justice and pledged not to betray his Trust ‘committed to me by God, by old and lawful descent.’ Further, ‘England was never an Elective Kingdom, but an Hereditary Kingdom for neer these thousand years.89 Nature and heaven decreed his right to rule. He demanded to see a ‘legal authority warranted by the Word of God in the Scriptures, or warranted by the Constitutions of the Kingdom,’ for the ‘Commons of England was never a Court of Judicature.’90 Charles could not succumb to illegal rule in order to appease the parliament. He believed he had done this already when he signed Strafford’s attainder in 1641. The judges ignored his argument and accused him of treason in the name of the ‘people of England’ by the authority of the Commons of England assembled in parliament. The High Court controlled the law – no longer ‘the rule of law’ but ‘our rule of law.’ Law ruled the king. On trial was less the narrow charge of the treasonous actions of Charles Stuart and more the problem of who had the power to interpret the fundamental laws of the kingdom:
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Lord President: Sir, You are not to have liberty to use this language; How great a friend you have been to the Laws and Liberties of the People, let all England and the world judge. King: Sir, under favour it was the Liberty, Freedom and Laws of the subject that ever I took – defended my self with Arms, I never took up Arms against the People, but for the Laws.91 Because Charles refused to answer the charge against him, the court could not present all the proofs and arguments it compiled to convince the jury, or rather, to present the country with examples of the king’s treachery. The debate focused on the question of sovereignty and two interpretations emerged: a traditional theory of government, an absolute king bounded by laws, and a radically new interpretation of power, the absolute authority of the people who made the laws. Both Charles and his prosecutors asserted they acted in accord with ancient English law. Faith in legal tradition inspired and sustained both sides. Bradshaw stated: Sir, this is not a law of yesterday (since the time of the division betwixt you and the Parliament) but it is a law of old; and . . . the people of England could not have their remedy elsewhere but in Parliament . . . Your office is an Office of Trust, and indeed an office of the highest Trust that can be lodged in any single person.92 The court had authority to try even the king, because parliament ordered it and parliament represented ‘the people’ as the traditional controller of the law and government. Charles, however, argued that God, not parliament, entrusted the king with power. In the mean time I shall not betray my Trust; I have a Trust committed to me by God, by old and lawful descent, I will not betray it to answer a new unlawful Authority, therefore, resolve me that, and you shall hear no more of me. 93 Charles stood on the firm ground of statute laws that crumbled beneath him. He lost his sovereign power in a court that defined law as a creation of the ‘people’ and not as a divine creation which flowed from the king via God.
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On three separate days, the court called Charles to answer the charge, but he refused. For him to respond, Charles demanded that the court should ‘let me know by what authority I am called hither; I do stand more for the Liberty of my people then any here that come to be my pretended Judges.’94 As the court did not receive an answer from Charles, though it gave him ample opportunity, the Lord President declared that ‘the court hath considered of their jurisdiction; if you will not answer, we shall give order to record your default.’95 To stand mute at an arraignment of high treason ‘amounts to a confession of the crime and judgment passes after a regular conviction.’ 96 In order not to charge the king with treason on default alone, the court called in 32 witnesses to testify that the king did provoke war on the kingdom and sought to undermine the laws and liberties of his subjects.97 The judge read the final sentence on Saturday, 27 January 1649. In it the court declared itself ‘fully satisfied in their judgments and consciences that he hath been and is guilty of the wicked designs and endeavors in the said charge set forth; . . .’98 The High Court condemned Charles to death: For all which treasons and crimes this Court doth adjudge that the said Charles Stuart, is a tyrant, traytor, murtherer, and publicque enemy to the good people of this nation shall be put to death by the severing of his heade from his body.99 Charles desired to be heard after sentencing but the judges denied this privilege. Once a man heard his sentence of death, the court considered him legally dead. An armed guard ushered Charles from Westminster Hall to the palace of St James, and the court retired to the Painted Chamber to write and sign the death warrant. The trial challenged the whole notion of the traditional power. As in the attainders of Strafford and Laud, realism outweighed legalism. Ironically, Charles himself had approved the legality of declaratory treason in Strafford’s trial that allowed the parliament to expand on the basic treason statute of 1352. By signing the attainder against the Earl of Strafford, Charles implicitly acknowledged that 25 Edw. III was no longer the absolute standard for interpretation of treason. His acquiescence in 1641 led one historian to declare that ‘the way was opened for a series of treason trials directed by the politically dominant House of Commons and founded upon constructive treason.’100
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Although those in power might not understand how events led them to commit such an act, they did know that the day-to-day operations of government must proceed. After the initial political shock, European diplomats continued their relations with the new English government and most local county governments submitted to its authority. The new government had to take stock of the situation and endeavor to rule as closely as possible to the established law of the land and to the benefit of the people. Charles Stuart was defeated by those men who interpreted and created laws to justify the power they acquired through war.
Sovereignty, allegiance and treason in the Interregnum Nine days after the death of the king, the High Court of Justice tried the Scotsman James, Duke of Hamilton and Earl of Cambridge, for high treason. The prosecutors accused Hamilton of having levied war on behalf of the king against the kingdom and people of England. This case raised two intriguing points. It confirmed the sovereign authority of parliament, and it confronted the same problem of allegiance faced in Calvin’s Case (1608): was a Scotsman alien or subject within England? Hamilton entered a plea of not guilty and defended his actions based on three general principles. He explained that he ‘undertook command by authority of Parliament, the Supreme Power of the Kingdom of Scotland, for justifiable Ends, and not derogatory to the Peace and Happiness of these Dominions.’101 His counsel insisted that Hamilton’s ‘Subjection to the Kingdom of Scotland, was indispensable and indissoluble; and that he could no more refuse the Commands of that Kingdom, than a Native of England, living here, could disobey the Commands of this Parliament; . . .’102 In addition, he was born in Scotland before his father’s naturalization in England; therefore, he was an alien not subject of England. According to his counselors: no Treason could be without a Breach of Faith and Allegiance due to them against whom it was committed. Now these were two distinct Kingdoms; and though the Allegiance due to the King was the same in both Kingdoms, yet that due to the Kingdoms was distinct; and the actual Administration of the Kingdoms was not in the King when the Duke undertook [to oppose the parliamentary forces in battle]. 103
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Lastly, Hamilton claimed prisoner-of-war status as one whose ‘life had been granted by Acts of Capitulation.’ The English parliament had set a sum of £100,000 for his ransom ‘by which it appear’d that they looked on him not as a Traitor, but an Enemy.’104 As an enemy to the English kingdom, Hamilton believed it impossible in law to condemn him as a traitor. The prosecutors, however, presented several reasons for holding him accountable to the English treason law. A principal member of the Scottish parliament, Hamilton had acted as an ‘active and vigorous instrument’ leading the Scots to war.105 His enemies then presented two witnesses to prove that he had in fact been born after the accession of King James to the throne and thus was not alien to England. The prosecution proceeded to undermine the idea that subjects owed allegiance to the person of the king by emphasizing allegiance to the English realm: ‘by Construction of Law, he that is born in Scotland may have an Allegiance to England equivalent to the other, as was resolv’d in Calvin’s Case.’106 Distorting Calvin’s Case further they claimed that the ‘Obligation and Allegiance which was due to the King was due to the Kingdom also.’107 Hamilton owed allegiance to a place not a person. Even if the judges looked upon Hamilton as antenatus and foreign, yet ‘by virtue of his local Allegiance, both in England and Scotland, he was a Traytor.’108 Hamilton committed treason when he joined the English rebels led by the king while the two nations of England and Scotland were ‘in Amity.’ Broken trust defined treason, and trust had been established between friends and allies, England and Scotland. Lord President Bradshaw rejected Hamilton’s pleas, and his execution occurred on 9 March 1649. Hamilton’s case illustrated the changes in sovereignty and definitions of treason after the death of Charles I. The judge and prosecution dismissed the fundamental resolution of Calvin’s Case: allegiance as a personal bond. Both Coke and Ellesmere believed that subjects swore allegiance ‘to our sovereign lord King James and his Heirs’ not the King of England, Scotland and Wales.109 Since the king’s death, parliament alone generated the law. In keeping with the 1603 Union of Crowns, however, the members of the Rump Parliament in Westminster refrained from including Scotland within the new treason laws they passed. The new definitions for sovereignty and allegiance applied in England, Ireland (by right of conquest) and other dominions, but not in Scotland. Not until 12 April 1654 did parliament join Scotland into one commonwealth with England.
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On 30 January 1649, the day of the king’s execution, a new law declared that anyone who proclaimed that the Prince of Wales was the rightful and lawful king would be ‘adjudged a Traitor to the Commonwealth, and shall suffer pains of Death, and such other punishments as belong to the Crime of High Treason.’110 Parliament abolished the House of Lords and the monarchy on 6 and 7 February respectively. By 17 May parliament ordained That all the people of England and Ireland, and the Dominions and Territories thereunto belonging, of what degree or condition whatsoever, are discharged of all fealty, homage and Allegiance which is or shall be pretended to be due unto any of the Issue and Posterity of the said late king. That office of a king in this Nation, shall not henceforth reside in, or be exercised by any one single person; and that no one person whatsoever, shall or may have, or hold the Office, Stile, Dignity, Power or Authority of King of the said Kingdoms and Dominions, or any of them.111 All who violated this ordinance were traitors, for subjects now owed allegiance to the ‘Supream Authority hereby declared to reside in this and the successive Representatives of the people of this Nation, and in them only.’112 Parliament again asserted its sovereignty on 19 May 1649 when it declared that England was a Commonwealth and Free State, governed by ‘the Supreme Authority of this Nation, the Representatives of the People in Parliament.’113 Officers and soldiers swore oaths making themselves ‘justly accomptable to the State.’114 A few months later, on 24 October, the newly established authority in parliament accused the Leveller, Lt Col. John Lilburne, of treason and tried him before an extraordinary commission of oyer and terminer in the Guildhall, London. The precarious government sitting in Westminster found Lilburne a nuisance. He printed three books (Salva Libertate and two others) in which he described the present government as tyrannical and unlawful and claimed ‘that the Commons assembl’d in Parliament were not the Supreme Authority of this Nation.’ 115 Judge Jermin informed Lilburne: This Court is constituted by the Supreme and Publick Authority in England . . . You are to answer the Charge of opposing the Supreme Authority now settled in the House of Commons, not newly erected, but reviv’d; for ’twas so in the Saxons and Romans Time. 116
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The judge reminded the court that the ‘Law of England is the Law of God; ’tis no written Law, but pure, primitive Reason, uncorrupted by humane Wills, and has been maintain’d by our Ancestors.’117 Even when faced with the charge of treason, however, Lilburne refused to submit. He expressed his disgust with the government and saw little by way of humanity or purity in the supposed ‘Supreme Authority’s’ application of the law against him. He challenged the judge by asking: Is it just to allow Council to plead for an Estate, and deny it to enable me to plead for my Life? Sir, these were pretended to be arbitrary and tyrannical Prerogatives of the King’s Will; but if they are not taken away by those who took away his Life, then only the Name is gone, but the tyranny left.118 Encouraged by sympathetic denizens of London, the jury acquitted him. The new treason law prohibited correspondence with Charles Stuart or his party. This caught Christopher Love, who came before the High Court of Justice to face the charge of treason in 1651. The charge accused him, along with others, of contriving to raise a rebellion and communicating with Charles Stuart. But Love questioned why he had no jury as in Lilburne’s case: ‘if that was Law in GuildHall, why not Law likewise in Westminster hall?’ The Lord President Keble replied, ‘That Tryal was by the antient Laws, this by Statutes newly made, to proceed against such Persons as yourself.’119 Although the rebellion that Love allegedly plotted never happened, the prosecutors and judge condemned his treachery, for ‘if they must wait till the Rebellion was actually rais’d before the Conspirators were called to Account’ it would be too late.120 Those in power obviously found the medieval Treason Act of 1352 inconvenient. Love, however, had a very astute lawyer for his counsel, Matthew Hale, who addressed the necessity of an overt act to prove treason. He drew upon Coke’s interpretation of 25 Edw. III to prove that an overt act for rebellion required an actual levying of war and that ‘where there are several Species of Treason enumerated; one, the Compassing the King’s Death, another, Levying War &c., one Treason in an Indictment shall not be construed an Overt-Act of another; because all are made equally traiterous.’121 Hale cogently restated what had always been known in law. The Lord President simply overruled him: ‘Since Treasons were all of one Nature or Species, the Overt-Acts laid were Overt-Acts, or a Manifestation of every
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Charge laid, it is well enough; and the Overt-Acts laid in the subsequent charge might refer to them that went before.’ 122 Love was executed on 5 July 1651. Oliver Cromwell forcibly dissolved the Rump Parliament in 1653. The tattered remains of the Long Parliament had been the last link to legal and constitutional government. Cromwell knew this. From 1653 parliament itself was not ‘the supreme power, but that is the supreme power that calls it.’123 In 1655 a jury arraigned Colonel Penruddock and 26 other Cavaliers (including Hugh Grove, Richard Reeves, Robert Duke, George Duke, Thomas Fitz-James, Francis Jones, Edward Davis, Thomas Poulton and Francis Bennet) for high treason on account of attempted rebellion. Speaking on behalf of the other prisoners, Penruddock protested that as the indictment was not grounded in law, ‘there could be no Treason in this Nation but what was founded upon Common or Statute-Law.’124 He specifically appealed to the Parliament Roll no. 7 that said (11 Hen. VII, c. 1): Whosoever shall refuse Aid to the King when War is Levy’d against him, or against any that keep the King from his just rights, offends the Law, and is thereby guilty of Treason. And that all Men who adhere to the King in personal Service, are freed from Treason by Law.125 Although the judge warned the colonel that his opinion displeased the court, Penruddock continued his protest with very hard-hitting words. He remarked: That if he had seen a Crown upon the Head of any Person, he might have known what was Treason, and the Law might have taken hold of him as this Kingdom was a Monarchy; but here was not such Land-mark in this Case; and he did not know how he could be guilty of what he was charg’d with.126 Supporting monarchy and even the return of the Stuarts, Penruddock insisted on his being try’d by those Laws which had been establish’d by the Wisdom of their Ancestors, but he was try’d by a Law that was cut out by a rebellious Sword; and if they did no look well to it, the Sheets on which it was recorded might serve for some of their Shrouds: . . .127
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Perhaps such vehement disgust for a government in which sovereignty did not reside in parliament but in whoever or whatever called parliament prompted the men in government to enhance the power and respect of Lord Protector Cromwell. When the Second Protectorate Government assembled in 1656 it passed an Act For the Security of His Highness the Lord Protector His Person, and Continuance of the Nation in Peace and Safety.128 The Act listed ten specific species of treason. Five of them concerned proclaiming Charles Stuart, or any of his siblings, king, communicating with him, and giving him money; two addressed assisting any enemy in rebelling against or invading the nation; the other three related to the authority of the Lord Protector. Echoing the 1352 Treason Act, parliament declared that those who would ‘Attempt, Compass or Imagine the death of the Lord Protector’ were guilty of high treason.129 Traitors levied war or plotted to stir up forces against the Lord Protector or the government. The Act also identified as traitors any who plotted to withdraw any officer, soldier or ‘seaman from obedience to the Lord Protector.’ A judge assigned to conduct the treason trials took an oath [to] execute the several powers given unto me and others, by a Commission under the Great Seal of England, issued out in pursuance of an Act, Entituled, an Act for the Security of His Highness the Lord Protector His Person, and Continuance of the nation in Peace and Safety. 130 Given this, in 1658 counsel could accuse Sir Henry Slingsby, John Mordant and Dr John Hewet of each being a ‘false Traitor and Enemy to his Highness the Lord Protector’ for plotting to betray the town of Kingston-upon-Hull to Charles Stuart, ‘eldest Son of the late King Charles, now an Enemy to the Lord Protector, and to the Commonwealth.’ 131 The charge also included raising a mutiny in the garrison by encouraging the soldiers to withdraw their Obedience to His Highness the Lord Protector. That treason became an offense against the Lord Protector and Commonwealth perhaps reflects a traditional notion of loyalty owed to a personal sovereign rather than an elusive and unseen state. Before sentencing John Mordant and Henry Slingsby, the Lord President, John Lisle, made a speech in which he said,
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Who could be so much a Stranger to these Nations as to be ignorant what God had done among them by a Series of wonderful Providences so many Years together against a Party who were still hatching of Treasons and Rebellions amongst them? . . . every Man ow’d a natural Allegiance to the supreme Magistrate; and that his not owning the Government was in itself a great Offence, and far from being an Excuse or Justification for Treason.132 Mordant received a not guilty verdict, but the judge sentenced Sir Henry Slingsby and Dr Hewet to be drawn, hanged, beheaded and quartered. Cromwell had the power to remit all of the sentence but the beheading, and he did. But then Oliver Cromwell died, his son Richard resigned, the army expelled the Rump, a Committee of Safety was convened then dispersed, General Monck re-admitted the MPs purged in 1648, the Long Parliament was dissolved, Charles declared his intentions from Breda, a Convention Parliament decreed Charles II king since 30 January 1649, and the king entered London. The treason law changed yet again. The Declaration of Breda promised indemnity for all save those whom parliament would specifically exclude. Thus 29 regicides were not forgiven, and their trials began at the Old Bailey on 10 October 1660. The previous day, the Lord Chief Baron at the Grand Jury reconfirmed 25 Edw. III as the basis for all laws of treason. This law did not declare the actual killing of the king treason, but if imagination was Treason, what must they be guilty of who took upon them to judge, condemn and put their king to Death? It having been declared and enacted by Legislature, That no Authority, no single Person, no Community of Persons; neither the People collectively or representatively have any coercive Power over the King.133 To fit this act into the law of 1352, the indictment established treason as ‘the compassing and imagining the Death of the late King Charles.’ The overt acts of sitting in judgment and signing the warrant for the execution proved the indictment. The Restoration of 1660 reinstated the notion that sovereignty resided in the person of the king and that ‘the people’ had no coercive power over him. The regicide trials reminded English subjects that they must ‘declare and acknowledge an humble and natural Liege Obedience to the King as Supreme.’134 Within thirty years the final exclusion
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of James II once more challenged this interpretation of sovereignty and allegiance. Not surprisingly, men applied and amended the law of treason to defend the new regime and their own personal involvement in the creation of it.
Sovereignty, allegiance and treason under the Restoration After 1660 parliament reaffirmed 25 Edw. III as the cornerstone for all accusations of treason and protection of the personal sovereignty of the king. Charles II and his Anglican supporters strengthened the sovereign powers of the monarchy. But while the majority of Englishmen might have recognized the need for a legal monarchical government, as opposed to the 11 years of illegal rule they had just experienced, tensions rose as the honeymoon with Charles II ended. Fear and resentments returned as subjects realized that the king and the High Church Anglicans were refusing to offer safeguards against the succession of a Catholic, and resisting the extension of liberties to Dissenters. Timothy Harris has assessed the historiography of the years 1660 to 1688. 135 Historians are intrigued by three main events: the Restoration, the Exclusion Crisis, and the Glorious Revolution. These moments involved a discussion of sovereign authority and proper allegiance, and, not surprisingly, treason trials accompanied each.136 According to Harris many Englishmen became disillusioned because of an unsatisfactory religious settlement, and this shaped the dynamics of the reigns of Charles II and James II.137 He concluded that ‘What was important was not so much whether one was a Dissenter or an Anglican, but where one stood on the issue of Dissent.’ 138 Because the main issues remained religion and the appropriation of secular power, the language in debates after 1660 was the same as it had been before 1641. Unlike Jonathan Scott, however, Harris believes the post-Restoration tensions were not exact copies of the early Stuart period ‘when the threat of republicanism and religious fanaticism had yet to emerge.’ 139 The treason trials against papists and then republicans and Nonconformists were frequent and brutal from 1677 to 1683.140 The fears of popish plots sparked and spread by Titus Oates sent several men to their death while the royalist backlash against what the government perceived as the growth of republican extremism sent devotees of the Good Old Cause to the block. Crown prosecutors
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accused Algernon Sidney and William, Lord Russell, of imagining the king’s death in 1683. The proof rested on conspiracy to levy war. Although 25 Edw. III established levying war and imagining the king’s death as two separate acts of treason, the court allowed conspiracy to levy war to stand as proof for the other. Sidney’s foremost biographer, Jonathan Scott, naturally discusses the infamous treason trial held three months after those of Lord Russell and the more common members of the Rye House Plot (1683). The jury found Sidney guilty because Lord Chief Justice Jeffreys accepted a manuscript copy of Sidney’s Discourses as the second of two witnesses necessary to prove the overt act of treason. Scott finds no cause to doubt that Sidney’s political activity was treasonous. This allows him ‘to treat Sidney’s trial not as the judicial landmark it wasn’t but as the brutal piece of political theatre it was, played as such by both sides, and by the rules of an age by now well accustomed to them.’141 Charles and James desired ‘to bring Sidney to political, if not legal, “justice”.’142 Scott cautions, however, that If Sidney’s trial was technically speaking, a piece of most ‘enormous injustice’, it was no different in this respect from any of the other (popish) plot trials, upon which it was modelled. What was different was that it was the first to be ‘universally cryed out upon’, as such, at the time. After 1688, Sidney’s trial became the basis for a demand for new legislation to clarify the evidence necessary to prove guilt in treason trials.143 Parliament investigated treason trials in 1689, largely because of the numerous political treason trials in the 1680s. Yet across the political spectrum men de-emphasized and rejected the republican ideals of those Whig martyrs such as Algernon Sidney. Parliament reversed the attainders of Sidney and Russell in 1689, but those in parliament who supported the revolutionary settlement with William and Mary felt more comfortable claiming only Russell, the limited monarchist, as their martyr. They simply found Sidney too radical.144 They denounced resistance, and yet they had to justify the recent exit of James II and entrance of William and Mary. Consequently, not all the condemned traitors made useful martyrs. Protest against arbitrary government did not mean protest against absolutist government.145 Acknowledging a consensus against popery and
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arbitrary government after both the Restoration and the Revolution did not settle the problem of the location of sovereignty. The problems of sovereignty remained complex after 1660, and the challenge posed by men such as Sidney and Russell remained unresolved in 1689.
Conclusion The law 25 Edw. III, Stat. 5, c. 2 confirmed the sovereign authority of the king. Although created during a time of relative decentralization, the treason law protected the monarch. His feudal estate and position as premier lord demanded allegiance from all subjects. Even so, sovereign authority changed locations in response to political contingencies. When subjects accepted the king’s sovereign authority, then the government used treason law against men and women who threatened the monarchical order. When, however, subjects rejected his sovereignty, then the presiding government construed the meaning of 25 Edw. III to protect the state from the king. While England and Scotland did not have a common legal or denominational heritage, the Union of Crowns (1603) and Calvin’s Case (1608) forced a common allegiance to the Stuart dynasty. Calvin’s Case established that subjects owed allegiance to the person of the king and not the separate institutions of the Crown of Scotland or Crown of England. This did not mean that Englishmen joyfully agreed with the law, but only that they submitted to it for the time being. English and Scottish subjects shared a common identity through their shared monarch. When a treason trial destroyed the person of the king in 1649, allegiance shifted to the militaryrepublican regime and threw national identity into question. Cromwell’s supporters defended a new understanding of sovereignty and national identity in treason trials, and by the mid-1650s lawmakers began to enforce allegiance to the man who convened parliament, Oliver Cromwell. The breakdown of allegiance to the king during the Civil War and Interregnum ended at the Restoration. The four kingdoms were once again bound to the same dynasty, and 25 Edw. III accompanied the return of the king. Although quarrels persisted concerning the nature of government, after the Glorious Revolution the authorities conceded that the trials of 1683 demonstrated egregious distortions of the law. The citations of judicial violations in the Declaration of Rights accepted on 12
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February 1689 demonstrated the hostility to the legal practices under the late monarchs: ‘And whereas, of late Years, partial, corrupt, and unqualified Persons have been returned and served on Juries in trials: and particularly divers Jurors in Trials for High Treason, which were not Freeholders’.146 To correct this problem of property qualifications for potential jurors, the Declaration of Rights asserted ‘That Jurors ought to be duly impaneled and returned, and Jurors which pass upon Men In trials for High Treason ought to be freeholders,’ and this clause remained unchanged in the Bill of Rights passed on 16 December 1689. But further changes were necessary. In February the Commons received reports from the Lords’ committees appointed to consider who advised and prosecuted the murders of Lord Russell, Algernon Sidney, Thomas Armstrong and Henry Cornish. MPs interviewed John Tillotson, Samuel Johnson, one Mr Normanfell, Peter Rich and Josiah Keeling, as part of their effort to regulate trials and to ensure proper jury qualifications. This process lasted for seven years. The next chapter explores parliamentary revisions to treason law after 1688. The Glorious Revolution changed who wore the crown, but it did not change the definition of treason.
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2 Dynastic Treason: National Identity after the Glorious Revolution
Few men in parliament desired the chaos and bloodshed of another civil war, and in spite of political differences they encouraged, or adjusted their consciences to preserve, the Glorious Revolution and a Protestant Succession. Even so, a crisis of allegiance loomed: should Englishmen be faithful to the dynasty claiming title by indefeasible hereditary right or loyal to a new king and queen promising protection against popery and arbitrary government and also claiming an hereditary title? As the events of 1688 and 1689 unfolded, Englishmen described their contingent actions in such a way as to avoid accusations of treason, and ultimately most chose to pledge loyalty to the de facto monarchs. Those taking the oath of allegiance to William and Mary found justification in 11 Hen.VII, c.1 (1495). This Treason Act sanctioned proper allegiance to a de facto king, or a king who reigns ‘for the time being.’1 Non-jurors either overtly or implicitly leveled accusations of treason against supporters of William and Mary. 2 To ward off this taint of treachery, men counterattacked with charges of treason against those who denied the legitimate authority of and allegiance to the Revolution Settlement. Those in power exonerated their behavior through the myth that James abdicated by his own volition and caused his own demise in law; James, not parliament, had betrayed the kingdom. Contemporaries faced three main questions: Why did James leave the throne? Who should rule in his place? and Where was legitimate sovereignty located? Given this general structure of problems, numerous historians have offered various interpretations of 1688–9 and its aftermath. The main planks of the Whig historians’ understanding 48
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of 1688 included a triumph of the Whig party and its values of a monarchy limited by parliamentary sovereignty, its Lockeian understanding of contract and its role as harbinger for the advancement of popular sovereignty. 3 Revisionist historians have since revived the activities of the Tories, the Jacobites, the Church of England and the Dissenters in shaping the Revolution Settlement.4 The meaning of the Revolution changed according to the questions the historians asked and the people they examined to answer them. 5 This chapter concludes that parliament did not redefine treason law in 1696 to protect a different source of sovereignty such as the king-in-parliament or ‘the people.’ After 1688 the treason law safeguarded the de facto monarchs and acted as a deterrent to those who refused to identify with them. National identity followed dynastic allegiance. Such a thesis naturally sympathizes with the interpretation of historians such as John Kenyon, J.C.D. Clark, and Glenn Burgess who believe that the Revolution did not reduce the effective powers of the monarch.6 Much remained unsettled, and much was unsettling, about the compromise reached in 1689. William and Mary became joint monarchs with the stipulation that Anne and her offspring would not ascend the throne until the death of both her sister and brotherin-law. After William and Mary’s coronation and until the Hanoverian succession in 1714, the location of sovereignty and the object of proper allegiance remained contentious. The years 1688–9 did not resolve the problem of de jure kingship. The avowed Jacobites refused to acknowledge the de jure and de facto power of William and Mary. Instead, they pledged allegiance to the rightful and lawful sovereign, James II. Others, while reluctant to accept the de jure powers of William and Mary, readily accepted their de facto sovereignty and offered allegiance to the monarchs who swore to protect them. Within this question of sovereign power was another, the relationship between the monarch and the two Houses of parliament. That the treason law protected a de facto monarch remained unchallenged. This chapter discusses two important issues. First, it considers the 1696 Treason Act, a statute for regulating treason trial procedure. Then it assesses the role of parliament in the application of the new treason law against those who failed to align their consciences with the new Protestant dynasty and openly acted against it. While parliament made alterations to the courtroom procedure in cases of treason, it made no attempt to redefine what it was that treason
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protected. We find that in the discussion of the 1696 treason law both Houses worked to protect the integrity of the king and his prerogative. They could do little else. To diminish the king’s power in relation to their own would only confirm the non-jurors’ belief that the Revolution Settlement undermined the ancient constitution. As a result, the 1696 treason law protected the king’s person and treason remained dynastic.
The 1696 Treason Act Debates over treason law and its application began in 1689, the year of James II’s alleged abdication from the throne of England and forfeiture of the throne of Scotland. Once loyal subjects had rescued property and Protestantism from popish and arbitrary government, they began to address other grievances. For instance, the great Williamite lawyer, Sir John Hawles, offered six reasons for disaffection to James II: exorbitant fines, cruel and illegal prosecutions, outrageous damages, seizing charters, dispensing with Test and Penal Laws, and undue prosecution in criminal and capital matters.7 His last point concerning trials most interested members of parliament. Parliament investigated treason trials largely because of the numerous political treason trials before 1688. The Commons reported on 13 January 1692: ‘That their Design, in passing this Bill, was, to prevent those Abuses in Tryals for Treason, in inferior Courts, for the future; by means of which, during the Violence of late Reigns, they had observed divers had lost their lives.’ 8 No longer would prisoners charged with high treason suffer procedural handicaps in the courtroom. Parliament stepped forward and refined the rules and regulations for treason trials. The language in debates concerning the trials reform Bill demonstrated the devotion to a strong sovereign king and the desire to maintain a balance between the Commons and the Lords. Within parliament itself, the debates over treason trial reform illuminated a power struggle between the Commons and the Lords on the one hand and the Court and Opposition on the other. Within the king-in-parliament formula, questions remained concerning the authority of each branch of government in relation to the others. While the correct distribution of authority continued to perplex, a general discussion of the abuse of treason trials appealed to men who agreed that the Stuart government had been arbitrary and inclined to popery and to those who wanted a
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legal safety net in case they fell to accusations of treason for communicating with the exiled James or for not taking the oaths. The several debates in parliament between 1689 and 1696 revealed a significant and general concern for protecting sovereignty through fair, but rigorous, treason trials. A rhetorical, or real, desire to preserve the king’s prerogative against the Lords, the Lords’ privileges against the Commons, and the Commons’ against both the king and the Lords illustrated the quest for order within the shifting contours of the Revolution Settlement. A central concern unifying both Houses, however, was parliament’s responsibility to prescribe legal procedures in courts of law. Although 25 Edw. III provided only that parliament could determine new forms and acts of treason, after the Revolution members of the Commons and Lords interpreted that clause as their lawful right to regulate the application of treason law. Such legislative control over judicial proceedings reduced opportunities for using treason law as a political weapon. Parliament also emphasized that treason did not protect James, but rather protected the de facto monarchs William and Mary. A proper, traditional and legal allegiance to de facto monarchs pushed hesitant subjects past the impasse of whether or not to pledge loyalty and service to the new regime. The majority in both Houses championed the sovereign monarchs. As the Attorney General George Treby said, ‘The lives of men are precious, but the lives of the king and queen are precious, in which all our lives are bound up; and it deserves the highest consideration.’9 Constitutionally the trials reform Bill remained significant. As the debate continued men illustrated their quest for a balance of power and prerogative between the Commons, Lords and Crown. The debates on the Bill heard the members of the Commons and the Lords defending the powers of their respective houses while simultaneously seeking to secure a strong monarchy. Historians’ arguments over whether the delays in passing the Bill hinged upon Whig-Tory, Commons-Lords, or Court-parliament animosity may never be satisfactorily resolved and such a focus might be misdirected.10 As with the revisionists of the Glorious Revolution, the historians who examined the 1696 Treason Act did not emphasize the continued strength of the monarch and remained concerned with the powers of the two houses of parliament. This balance must be reconsidered, for the members’ and peers’ eagerness to support a potent, irresistible executive monarch emerged from the debates with crystalline clarity.
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After the Restoration the Lords desired the elimination of the Court of the Lord High Steward, the tribunal which tried peers for treason and felony when parliament was not in session.11 Their attempts failed. After the 1688 Revolution, however, a majority in the upper house tried again. They feared two factors that threatened their privileges. First, they worried that proposals for new trial regulations, as discussed during the Convention, might lead members of the Commons to conduct the trials of peers. Second, they worried that the Crown’s discretionary power in appointing the Lord High Steward did not guarantee an impartial hearing. The Lord High Steward controlled the jury selection, and the peers feared that an angry king might induce the Lord High Steward to pack the jury in the Crown’s favor. A Bill introduced in the House of Lords on 26 February 1688–9, entitled An Act for the Better Regulating the Trial of the Peers of England, protected the ancient privileges of the peers on both fronts. Instead of the Lord High Steward selecting peers as jurors, the Lords wanted all peers of the realm to be called as jurors whether parliament was in session or not. As one Londoner wrote to his patron in the country, ‘its sayd the Lords voted a regulation in some points as to their own prerogatives viz . . . that in case of Tryalls per pares it may not bee by a Jury of 13 as then they are in a worser condition than Commoners for the King may call them out as hee pleases, but the tryall to be by the whole house.’ 12 The Bill for regulating trials was passed in the upper house, but not unanimously. The dissenting Lords remained anxious, even with the amendment concerning the Lord High Steward, that the honor of the peers be equated to that of the Commons.13 The Commons heard the Bill read for the first time on 20 March 1689. Sir Thomas Lee remarked that ‘[t]he end and design of the bill is, that the peers may have challenges, as the Commons have’ and that counsel would be offered to the defense in cases of treason.14 The right to challenges meant that the accused and prosecutors could dismiss a certain number of jurors without showing cause. According to the common law, treason trials granted the prisoner 35 peremptory challenges. If he challenged but one more, for a total of 36, then the judge automatically found the prisoner guilty of the charge of high treason. The peers simply wanted a similar privilege of challenging the jurors. Opponents to the Bill understood that more was at stake than the trial procedure in the Lord High Steward’s Court. William Williams,
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once a Solicitor-General for James II but now a supporter of the Revolution, believed that the Bill endangered the Commons and the Crown for ‘The whole design of the Bill is, that there may be a number of peers, that may judge against law and right.’15 A majority in the Commons objected to the Bill, because it placed no check on the peers; and the members argued that under the existing legal system the peers literally got away with murder. The peers had to remain accountable in law. Moreover, the strength of the Lords during the recent upheavals had never been jeopardized. The Commons ostensibly regarded the maintenance of the integrity of the monarch’s powers as parliament’s duty. As the Lords waited for a response, they passed an Act in April declaring it to be ‘Treason to keep any Intelligence, or maintaining any Correspondence, with the late King James the Second.’16 A summer full of rebellious threats followed, and they continued to find it imperative to secure allegiance to the new king and queen. On 13 July 1689 the Lords considered An Act for Attainting Several Persons now in Rebellion against Their Majesties which targeted those men in Ireland assisting James II. Men united behind the treason law to protect the new regime and urged William and Mary to wield the treason law as their legal shield. A month later, on 9 August, the Lords sent a message to the Commons ‘to put them in Mind of the Bill for regulating of Trials, and to desire they would give Expedition there-unto.’17 The response was only a reminder in turn to expedite the Bill of Attainder against the Jacobites who had accompanied James II to France. They approved an Act of Attainder against all save for Thomas, Lord Howard, the Lord of Dover, Lord Hunsdon, Roger Strickland, Edward Herbert, Hugh Sutherland and William Jennings, but the ‘prorogation of the parliament, which happened soon after, put a final stop to this Bill.’18 Unlike impeachments, Bills of Attainder could be halted by prorogation or dissolution of parliament. The disagreement between the two Houses continued for the next six years. William, his counselors and his supporters in parliament did not want to tamper with the traditionally useful and powerful law of treason in the light of the real threat to the stability of the Revolutionary regime, James II and his supporters. In December 1691, the Lords once again resumed the debates concerning trial reform, with the Bill retitled An Act for Regulating Trials in Cases of Treason. This Bill provided new guarantees for the defendant, such as a copy of the indictment, sworn witnesses for
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the prisoner, a defense counsel, and overt acts offered as proofs for only the treasons listed in the indictment. The law required none of this before 1696, although the prisoner received certain favors at the judge’s discretion.19 As Heneage Finch argued, ‘What is there in this, that makes it easier to commit Treason, or less tryable than before? All that is desired is a just and lawful defence, at a man’s trial.’20 Those against the trial reform Bill, such as the king’s attorney Sir George Treby, insisted that if parliament offered leniency in the defense of suspected traitors, then it would ‘weaken the hands of the government.’21 The Bill of Rights preserved them ‘from fickle judges,’ and the Commons must remember that during the 1680s ‘the fault was not in the law, but in the men.’ With William and Mary crowned king and queen, no one need fear future abuse in treason trials. But, as Sir Charles Sedley reminded his colleagues, ‘good kings, good lawyers, and good judges, are perishable commodities.’22 The Lords returned the Commons’ Bill with amendments, and the members considered them on 11 December 1691. Regardless of any momentum gained for reforming treason trial procedure, the Lords’ amendment, Clause A, met with firm resistance. The clause pertained to the court of the High Steward. Thomas Littleton, a committed Whig, expressed his concern that the peers would ‘clog proceedings’ with their family members replacing impartial juries. Furthermore, Littleton said ‘This Clause is not well timed, now the crown is in more danger than the peerage.’23 John Somers, Solicitor General and later Speaker of the House of Commons, agreed with Littleton and feared the peers would seize a royal prerogative. Here the central problem became the distribution of power within the king-in-parliament settlement. The Commons anxiously avoided promoting the ascendancy of the peers. Concurrently, however, the members believed it their own responsibility to reform the treason trials so that royally appointed judges could no longer manipulate the proceedings in the Crown’s favor. On 13 January the managers of the Commons said in a report of the free conference respecting the trials bill: That these are good times; and if they are unquiet or unsafe, it is in relation to the crown, and not to the peers: the peerage is in no danger; the peers have power enough; and the crown hath not too much, nor ought to be rendered less safe.24
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Apparently, the Commons wanted its fingers in both the royal and peerage pies. The MPs realized that a powerful government required a strong parliament and a strong king. If so, then this goes a long way to support the idea that the Glorious Revolution served to strengthen the monarch, and the Houses of Lords and Commons. The peers and members of the Commons defended or attacked with a varied arsenal of natural law, positive law, ancient rights and common law. The skill and dexterity with which they handled the weapons at their disposal demonstrated a willingness to embrace the most inclusive interpretation of law possible. The treason trials Bill reflected the ease with which peers supported either positive law or natural law to suit their cause, whether to protect the privileges of the peers or the safety and prerogative of the monarch. Each House endeavored to preserve its rights and the prerogative and strength of the king. By using Clause A as the issue of contention, both Houses could appear dedicated to the noble cause of establishing legal measures to safeguard innocent men from the gallows in matters of high politics. The debate lasted six years. Both sides in the Clause A debate agreed they backed a king who protected, not threatened, their political liberties. But if both Houses claimed confidence in the present monarch, the majority of members in Commons retained their doubts as to the integrity of the Lords. Sir Gilbert Dolben well expressed their fears: If this Amendment of the lords be agreed to, from that moment we date ourselves precarious. This will give the lords such power to endanger the government, that I cannot agree to it. They have a power of over-ruling the courts of Westminster; and you, by this Clause, will complete the work, to overthrow the king’s prerogative, and establish their own. Clause A truly offended because it opposed the idea ‘That our government is a monarchy: and it is a main part of the king’s authority to administer justice by officers of his own appointing.’ If parliament took away the Lord High Steward and then the sheriff, the decreased regal authority would render subjects independent of the Crown. The report asserted that the people of England could not rely on the continued integrity of the House of Lords. The members of the Commons preserved tradition and looked ‘upon the Method of Tryals, which the Lords would alter, to have been as ancient as
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the Constitution of the Government.’ Subjects looked to the Crown, not as a feared office, but as a trusted and impartial one. The executive monarch balanced the strength of parliament. The members of the Commons committed themselves to safeguarding the Crown’s interest against the Lords. In defining the government of England as monarchical, the report of the free conference did not say that the king had the power to make laws; rather that he could execute them. The king’s executive authority remained distinct from the boundaries of the two Houses. The opponents to Clause A argued that the Lords must not usurp the laws and customs of the realm which guaranteed the king’s prerogative to constitute the system of judicature. The law could not infringe the king’s prerogatives when it came to his right to administer justice.25 The members concluded That if all Power must be abolished, which is possible to be abused, there must be no Power left to the King, or Lords, or Commons: And perhaps there are not harder Cases to be found, than those wherein all three have been concerned: Of which the Attainting Cromwell Earl of Essex, without suffering him to come from the Tower to be heard, is an Instance.26 Eventually, however, the members of the Commons bent to the Lords’ demands. They agreed to an amended Clause A which required that in all cases at least 23 of all the peers be summoned and appear for each trial. The desire for reforming the procedure for treason trials forced a certain amount of compromise from the Commons, and this Bill returned to the Lords on 14 January 1692. After more discussion between the two Houses concerning the amended Clause A, the Lords voted to adhere to the original form of Clause A on 28 January 1692 and the Bill did not become law. The power of the Commons failed to influence the House of Lords, and the peers remained confident that the members of the lower House would eventually capitulate. The work on reforming treason law continued with similar discussions, complaints and committee meetings until December 1695.27 In the course of the debates members introduced a time limit. The suspected traitor had to be brought to trial within three years of the suspected activity. The time limit exempted offenses directly against the king.28 The Commons passed the engrossed Bill and returned it to the House of Lords on 18 December 1695. The Lords
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made a few minor amendments and after a third reading passed it back to the Commons on 27 December. Some historians believe an exchange took place: the Commons agreed to pass Clause A, and the Lords agreed to pass a recoinage Bill. James Phifer, however, found the cause for conciliation in domestic unrest. In 1694 the government contrived the Lancaster Plot to catch those in the North still loyal to James II. John Lunt informed the government of a plan for armed rebellion and with this flimsy evidence the government arrested suspects and tried them at Manchester in October. These trials alerted Englishmen of a dangerous return to the rigorous and politically contrived trials which had taken place before the Revolution. This situation eased the passage of the regulations for the Treason Trials Act. On 18 January the Commons returned the approved Bill with the clause ‘That all Peers who have the right to vote, shall be summoned Twenty Days, at least, to appear at such Tryal,’ and every peer vote in the trial. 29 The king signed An Act for Regulating of Trials, in Treason and Misprision of Treason on 21 January 1696. The Act took effect on 25 March 1696. The Lords received Clause A while the Commons removed the hardships for the defendant in trials for treason. The new Treason Trials Act, 7 & 8 Guil. III. c. 3, guaranteed securities for the prisoner. That all persons indicted for High Treason, or Misprision of it, shall have a copy of the indictment five days before their Trial, and shall be admitted to make their defense by councils learned in the law, not exceeding two. That no person shall be indicted or attainted but by the oaths of two lawful witnesses. That no person shall be prosecuted, unless the Indictment be found within three years after the offence committed. That all persons indicted shall have copies of the Jury two days before their trial; and shall have like process to compel their witnesses against them. This Act clarified a century’s worth of questions and challenges concerning the procedure of a trial for high treason. Now the person charged received a copy of the whole indictment at least five days before the trial and counsel advised that person before and during the trial. The accused could make his or her ‘full Defence by Counsel learned in the Law and to make any Proof that hee or they can produce by lawfull Witnesse or Witnesses who shall then bee upon Oath . . .’30 The indictment listed what treason the accused committed,
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and two witnesses were required to prove it. The law did not require witnesses to testify to the same overt act, but both overt acts had to prove the same treason. However, if Two or more distinct Treasons of diverse Heads or Kinds shall bee alledged in one Bill of Indictment one Witnesse produced to prove one of the said treasons and another Witnesse produced to prove another of the said Treasons shall not bee deemed or taken to bee Two Witnesses to the same treason.31 In that case prosecutors had to present a minimum of four witnesses, two per treason, to convict. The 1696 Treason Act addressed the application of the treason law and the procedures in the treason trials, but it failed to address the problem of the proper interpretation of 25 Edw. III. While historians accept that sovereignty after 1689 officially resided in the king-in-parliament, the absence of any attempts to reinterpret 25 Edw. III stands as evidence against there having been a fundamental redefinition of the monarch’s sovereign authority. The king remained the central figure to whom subjects gave allegiance. Even so, the 1696 treason law did not properly clarify itself. To levy war and to imagine the king’s death remained ill defined. Lawyers could still argue the law in their client’s favor. As the houses of parliament became stronger and political parties evolved, however, the use of the treason law as a political expression of power gradually declined. If men spanning the political spectrum had to engage in overt resistance against the sovereign king in 1688, then all, once victorious, had to come to terms with toleration of a loyal opposition in the new regime they had helped establish. Shortly after approving the new Treason Act, parliament passed An Act of the Security of his Majesty’s Person. This made it treason to write or declare William an unlawful king, ‘or that late King James, or the pretended prince of Wales, or any other person, than according to the act of settlement of the crown, hath any right to the crown of these realms.’32 The sovereign king remained an essential and active force after 1688 and throughout the eighteenth century. If the monarch’s position shifted by the end of that century, this had little to do with the legal establishment and definition of his powers after 1688. In light of the debates concerning the 1696 Treason Act, the Revolution Settlement promoted and protected a strong monarchy and did not diminish its executive powers. Treason
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remained a dynastic challenge and national identity remained bound up with the king.
Bills of Attainder: Sir John Fenwick and James Francis Edward As early as 1690/1 when the Jacobites Sir Richard Grahame, Viscount Preston, and John Ashtoun were tried for high treason, questions had arisen concerning proper legal procedure in treason trials. Preston asked for a copy of the indictment, but Lord Chief Justice Holt denied his request on precedent. Preston, however, reasonably argued that parliament had reversed Henry Cornish’s attainder on the grounds that his trial was not legal because he did not have a copy of the indictment.33 Holt dismissed this. ‘Truly, my Lord, I do not know how that matter stands: That Reversal of Mr Cornishes Attainder is but a private Act of Parliament. I never saw it, nor heard it read, nor can we take notice of it.’34 Holt had to judge according to the public Acts of Parliament, and as Algernon Sidney, Henry Vane and William, Lord Russell, had been denied, so too did the judge deny Preston a copy of the indictment. The 1696 Treason Act, of course, rectified this procedural question, but parliament’s role in creating and even applying treason law to suit current political needs continued. Although the 1696 Act provided security against men employing the treason law as a political weapon, members of parliament continued to guard themselves with treason law when politically necessary. Such was parliament’s desire to uphold the Protestant regime, for instance, that it twice passed Bills of Attainder to condemn men without trial. First, against Sir John Fenwick for his involvement in the assassination plot of 1696. Second, against James Francis Edward Stuart after the death of James II in 1701. A guilty sentence for treason in a court of common law included the spoiling, or attainting, of blood: ‘the law sets a note of infamy upon [the traitor], puts him out of it’s [sic] protection, and takes no farther care of him than barely to see him executed.’35 Although the traitor alone faced the executioner, his family suffered as well. Attainder for treason carried the penalty of forfeiture because the law believed a traitor’s blood ‘so corrupted as to be rendered no longer inheritable.’36 In addition to physical torture, death, and the loss of all goods, punishment included ‘the perpetual disinheriting of the traitor’s heirs.’ 37
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Heightened political tension induced parliament to use an Act of Attainder to convict a person of treason without trial. An Act of Attainder simply declared the accused to be a traitor to the realm. Whereas usually the Crown-in-parliament created law and the judiciary enforced it, the government simultaneously enacted and applied an attainder. The clause in the 1352 Treason Act testified to the attainder’s legitimacy by stipulating that when a question arose over treason the judges should not pass judgment but refer the case to parliament. Although a lawful maneuver, the idea of finding anyone guilty without the ancient right of a trial before his peers made the members of parliament involved in the procedure uneasy about setting dangerous precedents. In the parliamentary debates concerning the Bills of Attainder in 1696 and 1701, the members believed they acted in a legislative capacity.38 The Commons and the Lords participated as both accusers and judges, and each man followed his conscience. As with other private Bills, the Bill of Attainder passed through three readings in both Houses prior to coming before the king for his signature or veto. As private Bills, Bills of Attainder could begin in either house. If introduced in the Commons, the members reviewed the witnesses and determined guilt or innocence by a majority vote. If a guilty verdict passed, they delivered a Bill of Attainder to the Lords. In other words, members of the Commons became accusers, jury and judge. The drawbacks of this were threefold. First, the witnesses testified in the Commons without swearing an oath. Second, the House of Lords did not guarantee the Commons the right to plead its case. Third, when the political climate changed, the accusers could quite readily be transformed into the accused. Indeed, to avoid the first two problems, parliament in the 1620s turned to impeachment. In an impeachment, witnesses before the Lords were sworn, and the Commons pleaded the case. The Commons accused and the Lords judged. Additionally, as the Lords offered final judgment, the king had power only to show mercy and pardon the condemned man, or not.39 Parliament acted in its judicial capacity during an impeachment, but legislated during an attainder. Attainder for high treason had evolved to serve the politicians in power. Late in the year 1695 information of a plot to assassinate the king flowed into Whitehall, but it was not until 24 February 1696 that William went before parliament and officially informed the peers and Commons of it. With this confirmation of Jacobite intrigue against the Revolution Settlement, both Houses approved
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Somers’ proposed association in which they offered oath-bound loyalty to William. The House of Commons’ oath included the phrase ‘King William is Rightful and Lawful King,’ but the Lords’ oath read ‘That His present Majesty King William had A RIGHT BY LAW to the Crown of this Realm, and that neither the late King James, nor the pretended Prince of Wales, nor any other Person hath any Right whatsoever to the same, &c.’ 40 The association of the House of Commons essentially abjured the Stuart line, but the Lords’ did not.41 While the sensitive issue of ‘rightful and lawful’ remained yet unresolved, members of both Houses agreed that those involved in the recent plot had to be arrested and charged with high treason. William issued a proclamation for the arrest of 29 men, and within the next two months at least eight were hanged at Tyburn.42 The 1696 Jacobite trials raised three important issues: fairness versus law, levying war versus riot, and the necessity of two witnesses. The lawyers continued to debate and contest these ideas in the eighteenth century. In 1696, however, the general aim remained protecting and strengthening the Revolution Settlement and punishing those who subverted it. Robert Charnock, Edward King, Thomas Keyes, Sir John Friend and Sir William Parkyns were tried prior to 25 March 1696, the day when the new 1696 Treason Act became effective. In the trial of Charnock, King and Keyes, Lord Chief Justice Holt explained that the indictment was not provided ‘as the act of this session is not in effect until the 25th of this month.’43 When Charnock protested that ‘the equity of this act is now in force,’ Holt replied ‘Equity is nothing in these cases; you are tryed here by the Law, and we are bound to go in all such Cases according to the Rules of Law, and are not to be guided by any Equitable Consideration, further than the Law it self does allow us.’ 44 After further debate Holt repeated that it did not follow ‘that because the Wisdom of the Law makers has thought it to be Equitable de futuro, therefore it should be Law now.’45 After the sentencing of all three men, Charnock protested he had not received an equal and fair trial for ‘tho’ as to the time of Commencement, there is a certain day prefix’d, yet the Equity of the Act is always the same, and that Equity I take my self to be entitled unto: and therefore being denied the benefit of it, I think I had not a fair Tryal.’46 Sir John Friend offered a similar complaint. The indictment charged Friend with the treason of imagining the death of the king. This was proved by two overt acts. The first was
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that Friend encouraged Charnock to travel to France and persuade Louis XIV to invade England; the second, that Friend prepared Englishmen to rise in rebellion the moment the French landed. Friend committed both acts with the intention of restoring James II. During his trial, Friend attempted to discredit the Roman Catholic witnesses. He failed, however, and the judge informed him that the witnesses were quite capable of taking the stand because ‘Papists are Christians, and they do swear by the same Evangelists, as we do.’ Moreover, the court also dismissed Friend’s argument that conspiring to levy war was not treason. Because he intended to kill or depose the king through the method of levying war, conspiring to raise war was treason. If a conspiracy to levy war existed without the intent to depose or kill the king, then such a conspiracy was not high treason. Such was the case when men designed for ‘a general Reformation of the State, and to have better Laws, and to prevent those Abuses that they are offended at.’ 47 Condemned by the jury, Sir John Friend stubbornly submitted an arrest of judgment claiming two witnesses had not found him guilty, but Holt denied it. Witnesses did not impede Friend’s conviction, but the disappearance of one of the two witnesses against another suspect, Sir John Fenwick, did prevent his conviction at a regular session of oyer and terminer. Sir John Fenwick was a general under James II and connected to the Howard clan by marriage. When arrested in June, Fenwick offered to give evidence. Rather than revealing his own accomplices, however, he spoke against Shrewsbury, Russell, Godolphin, Marlborough and a number of others.48 His attitude appalled the king. When threatened with a trial, Fenwick accused a known but unconvicted Jacobite, the Earl of Ailesbury. Monmouth, a peer, believing Fenwick might implicate him, forestalled this possibility by urging a full parliamentary investigation of the assassination plot.49 At a Grand Jury hearing in London on 28 May, Cardell Goodman and George Porter testified on oath to an indictment charging Fenwick with high treason. After Fenwick’s arrest in June, he and his family arranged to bribe one of the two witnesses against Fenwick to flee the country. Cardell Goodman accepted the bribe and left England. Because the new Treason Act required two witnesses, Fenwick believed himself safe. The necessity for an Act of Attainder became as clear as Fenwick’s guilt. The MPs opted for attainder, ‘a method which scarcely any leader of the Tory party could condemn without condemning himself.’50 Lord Russell initiated a Bill of Attainder
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on 6 November 1696 that the members approved 179 to 61.51 At this time, in autumn 1696, William wanted to secure funds for his military campaigns and feared that parliament would ignore this need if preoccupied with condemning Fenwick. Little did parliament realize how much of its time would be consumed by publicly refuting Fenwick’s accusations. When Fenwick first came before the House of Commons to offer a confession, the members considered using ‘threatening words’ but decided not to do so, as his confession ought to be free and natural. Counsel assisted Fenwick, but the members told them not to question the power of parliament to pass Bills of Attainder.52 Sergeants Gould and Lovel presented the case against Fenwick and thus began the lengthy consideration of whether or not to condemn Fenwick’s treason by a legislative Act of Parliament. Many pressed to abandon the Bill. Their consciences were quieted, however, due to political expediency. Realizing that if parliament dropped the Bill then Fenwick’s false accusations might be accepted as truth, they decided to act. The debate turned to how Fenwick’s fate should be determined and whether proceedings were bound by the regular methods of a Court of Justice or Chancery. Sir Thomas Littleton concluded, ‘I suppose upon this Tryal, you will inform your selves by the best Methods you can; and every Man, according to his Judgment, be for or against this Bill.’53 Littleton suggested each man conduct himself as he would in passing any other private Bill. Mr Boscowen chimed in to remind his colleagues that they presently acted in their ‘legislative capacity.’ They legislated even as they determined the life or death of one man. Both Sir Thomas Dyke and Francis Newport spoke against the Bill because they foresaw dangerous consequences. Newport, especially, thought it odd that the members of the House of Commons, who so recently passed a Treason Act to prevent miscarriages of justice and guarantee two witnesses, would ignore and circumvent that same Act. God knows we live in unsettled Times, and no Man can tell how soon a Precedent of this Nature may turn upon any man whatsoever. Some of us may live to see a bad Reign, and then when a Man cannot be Attainted by the settled rule of WestminsterHall, the Legislative Power must be called in for Assistance, and then I am sure no Man is safe. 54
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Moreover, he argued that most Acts of Attainder had later been reversed, ‘and a mark of Ignominy and Reproach fell upon them.’ Those in favor, however, gained the majority and rested comfortably in the knowledge, as Mr Pulteney expressed it, that ‘without such Power as this, any Government would be imperfect and would want a sufficient Power for its own Preservation, upon Extraordinary Occasions.’55 The Commons passed the Bill by 33 votes, 189 to 156, on 25 November. The peers ultimately passed the Bill by only a margin of seven votes, 68 to 61, on 23 December. The 1696 Treason Act had not saved Fenwick. The 61 dissenting Lords recorded six reasons to justify their opposition on 23 December 1696: ‘Because bills of attainder against persons in prison, and who are therefore liable to be tried by Law, are of dangerous Consequence to the Lives of the Subjects, as we conceive, may tend to the Subversion of the laws of this Kingdom;’ because evidence sworn for trials of other men was admitted and the testimony was not consistent; because the written evidence from Goodman was allowed; because Goodman was infamous; because only one witness proved the treason; and because ‘Fenwick was so inconsiderable a man’ the situation did not call for such extraordinary action. 56 The complexities of creating, applying and following the treason law after 1688 remained an unraveled Gordian knot, and even the powerful sword of kingin-parliament could not cut through and quiet the competing options. Despite the unease of implementing an attainder, the political need for denouncing those opposed to the regime outweighed the option of releasing Fenwick based on a clause in a recently passed law requiring two witnesses. Parliament reversed Holt’s understanding of equity and law. In Charnock’s trial Holt stuck to the law in order to achieve a favorable result for the Crown, while in Fenwick’s case parliament circumvented the law to defend the Revolution Settlement. Equal treatment and integrity of legal interpretation were not the central issue; instead, maintaining the Protestant Succession was. This motivated the attainder of James Francis Edward. Louis XIV recognized James Francis Edward Stuart as king de jure of England, Scotland and Ireland upon the death of the exiled King James II/VII on 5 September 1701.57 The French king’s emphasis on hereditary monarchy had to be countered by a parliamentary assertion of William’s power. 58 This came in two stages: attainder for high treason and the Act of Settlement. That winter the king and parliament found the Act of Attainder a convenient means of quickly
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and legally condemning the boy pretender and Louis XIV’s support of him. William demanded a strong reaction. He said in his speech to parliament, The owning and setting up the pretended Prince of Wales for King of England, is not only the highest indignity offered to me and the nation, but does so nearly concern every man, and happiness of his country, that I need not press you to lay it seriously to heart, and to consider what further effectual means may be used, for securing the Succession of the Crown in the Protestant line, and extinguishing the hopes of all Pretenders, and their open and secret abettors.59 He proceeded to say, ‘I will only add this: If you do in good earnest desire to see England hold the Balance of Europe, and to be indeed at the Head of the Protestant Interest it will appear by your right improving the present Opportunity.’ 60 William used Louis XIV’s insult to advance his crusade against France. The members of the Commons immediately introduced a Bill against the pretended Prince of Wales. Open protest against the Bill was not politically wise, but some members did absent themselves from parliament on the days appointed for its Reading. 61 Sensitive to the Pretender’s de jure claim to the throne, they chose not to condone the proceedings. Sensitive to possible charges of treason against them if they protested, they opted to avoid the issue entirely. The majority of the members who remained did not haphazardly pass the Act. They respected the attainder as the greatest punishment in law and thus tried carefully to follow the established procedure. Sir Rowland Gwyn and Lord William Powlet, both devoted Whigs,62 prepared the Bill of Attainder on 3 January 1702. The Bill, whose title changed to An Act for the Attainder of the pretended Prince of Wales, moved quickly through the Commons, but the House of Lords had a few ideas of its own. 63 In a surprise addition, they moved to attaint Queen Mary who had allegedly established herself as regent. This gave members in the Commons pause. Was it right and in accord with precedent that the Lords add amendments to a Bill of Attainder begun in the House of Commons? Gwyn searched for precedents, but he did not ‘find any Instance of any Persons being attainted, by way of Amendment to any Bill made by either House.’64
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After Gwyn’s report a vote was taken for accepting the amendment. It failed.65 Although the Lords claimed that an amendment had been used under Henry VIII to no ill effect, the Commons believed ‘as this was a single precedent, so it seemed to be a hard one. For, attainders by bill being the greatest rigours of the law, the stretching of it ought to be avoided.’66 On 7 February the Lords defended their amendment to attaint Queen Mary, stating that ‘there is as much Danger to be feared from the Practices of Mary Wife to the late King James, as from any Thing this pretended Prince can attempt.’ 67 Thus, not surprisingly, Gwyn encountered an unyielding Lord Herbert of Cherbury in the next joint meeting upon their amendments to the Bill. Regardless, the House of Commons refused to compromise on the Queen Regent by the Lords’ amendment. Even though the members of the Commons presented no witnesses, they did not disregard all precedents for Acts of Attainder. On 12 February a messenger went yet again to the Lords to request and receive another conference. It was brief. Shortly after Gwyn returned to the Commons, Sir Robert Legar and Sir Richard Holford brought a message from the House of Lords: ‘Mr. Speaker, the Lords do not insist upon their Amendments to the Bill.’ 68 The Lords realized the futility of pushing for an amendment, but they remained eager to attaint the Queen Regent. Thus the peers passed a Bill entitled An Act to attaint Mary, the late Wife of the late King James, of High Treason which they sent down to the Commons on 20 February.69 This is the only mention of it in the Commons Journals so presumably it quietly ‘died’ while resting on the table. The Bill against James, however, entitled An Act of Attainder of the Pretended Prince of Wales of High Treason received royal approval via proxy on 2 March.70 Aside from acting as a cathartic measure for those men angered by Louis XIV, we are still left to ponder why both Houses believed an Act of Attainder necessary. Parliament did not attaint James II of treason in 1688. Obviously in 1701/2, with both the Revolution Settlement and the sting of Louis XIV’s diplomatic blow still fresh, parliament believed it necessary to retaliate. Attainder was a quick and ready condemnation, and it accomplished two things. By attainting James for high treason, the king-in-parliament demonstrated its rightful legislative authority. 71 The top priority for parliament in the winter of 1701/2 was to establish the succession. Often the attainder was discussed on the same day as the Act of Security that guaranteed the succession to the House of Hanover.
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Both worked in tandem to exclude the Stuarts and confirm William, Anne, and the Dowager Duchess Sophia. The attainder asserted Westminster’s power to determine allegiance and treachery, even of one whose father had been king. In so judging, the king-inparliament tacitly exercised the sovereign power to define, defend, protect, and decide who had the right to wear not only the English crown, but also the Scottish and Irish crowns. Second, the attainder of James III explicitly killed him in law and removed any possibility of a future jure divino claim. The Act legally excluded him from the throne and tainted his progeny. Although never reading a charge in a court of common law, never having a trial, never hearing witnesses, and never considering the other kingdoms, parliament blocked James from the thrones of Scotland, Ireland and England by right and fact. The attainder and treason law demanded subjects identify with a Protestant king sanctioned by parliament. Sovereign authority rested in William, not James III.
Conclusion Peers and MPs debated for and against the 1696 Treason Act, for and against the attainder of Sir John Fenwick, and agreed unanimously to the attainder of James Francis Edward. At no time, however, did parliament pass a new treason law that required subjects to offer allegiance to any institution or person other than William and, until her death, Mary. In fact, members and peers frequently protested the need to protect the Revolution Settlement of king-inparliament and the dynasty that secured it. A subject’s identity was bound to the polity through law and religion. The oaths of allegiance positively expressed loyalty to the new monarchs and Protestantism, and the treason law deterred transgressions against them. During the decade following 1689, England went to war against France, and the growth of the central government was rapid and revolutionary in itself. John Brewer’s assessment of the creation of a strong fiscal-military state explains this phenomenon. 72 The position of England in European politics altered forever as she used the building blocks of the American and Caribbean colonies to create an empire. The importance of bureaucratic and parliamentary government grew, and the monarch’s power remained strong. An ideology that confirmed the powers of the monarch, upper class and Anglican Church may have become dominant in law after 1689, but it remained
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so only while the supporters of it continued to fend off attacks from those holding different, but equally traditional and valid, beliefs about the structure and behavior of government. Non-jurors could no longer appeal to Coke’s interpretation of Calvin’s Case, that subjects owed allegiance ‘to our sovereign lord King James and his Heirs,’73 because ‘effective meaning of obligation would be loyalty to him in the exercise of his royal authority, without which he could not be acknowledged as a reigning king.’ 74 According to Professor Howard Nenner this was ‘an important step on the way to the eventual exercise of the authority of the crown by the king’s government rather than by the king himself.’ 75 Yet British subjects had several decades to wait before prosecutors construed that the treason law protected a united Crown-in-parliament rather than the executive king who acted as a counterweight to the two Houses. In the years following the Revolution, the meaning of treason did not change for two reasons. First, the king’s sovereign power did not diminish. Supporters of the Revolution worked hard to maintain the established constitution and shore up defenses against those who dared to accuse them of ignoring, or trampling, on royal tradition. Second, challenges to the established government remained dynastic. After 1689 Jacobites wished to restore the Stuarts not destroy the monarchical arrangement of king-in-parliament. Subversive activity did not pursue democratic reforms. So 25 Edw. III, Stat. 5, c. 2 remained an effective legal instrument to protect the Revolution and its chosen dynasty.
3 A British Law of Treason, 1709–83
This chapter explores what the treason trials and treason law reveal about the relationship between allegiance, national identity and authority in mid-eighteenth-century Britain. First, we consider what effect a British treason law (1709) had on the understanding of treason and allegiance. To ensure the English Protestant succession would not be undermined in any way, England forced a Treaty of Union with Scotland. While the Scots retained their civil laws and Presbyterian Church, they lost their parliament and, shortly thereafter, their law of treason. The application of this British treason law is addressed next. The Westminster parliament supposedly settled the question concerning British citizenship after 1707, but in 1746 Alexander and Charles Kinloch pleaded a Scottish allegiance to avoid the noose in an English trial for treason. The two brothers failed when they claimed to be Scottish and therefore not subject to English juries, courts and law in the matter of high treason. The British law of treason demanded a British allegiance. An assessment of another Jacobite trial, the dramatic and pathetic Lord Lovat, highlights the basic message delivered by the Crown in 1746: the de facto sovereignty of the king. The treason law protected George II. When a subject broke allegiance and transferred loyalty to a Pretender claiming de jure powers, then he or she committed treason. Lovat’s trial demonstrates that dynastic treason remained the main threat facing the British government in the mid-eighteenth century. The third section examines how two legal theorists interpreted the British law of treason. Chief Justice Michael Foster (1689–1763) demonstrated that the treason law protected the person of the monarch as it had before the 1689 Revolution. Foster presided as a 69
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judge during the 1746 Jacobite trials, and in his assessment treason law safeguarded the established regime and was dynastic. Another legal expert, William Blackstone (1723–80) began publishing lectures that he presented as the Oxford Vinerian Professor of English Law.1 By 1769, students at the Inns of Court as well as the cultured leaders of Britain could purchase and read all four volumes of Blackstone’s Commentaries on the Laws of England. Not everyone, and notably not Jeremy Bentham, supported Blackstone’s work, but for our purposes the Commentaries provided a learned and popular account of the law that cannot be ignored. The statute 25 Edw. III, as defined by legal experts, remained theoretically a useful tool through the 1750s and 1760s, until American colonists launched challenges against the regime that treason law, strictly interpreted, could not counter. Considering that war raged between British colonists in America and the mother country between 1775 and 1783, one might expect to find numerous treason trials. On the contrary, the colonial rebellion and the loss of empire resulted in very few high treason accusations against Britons in England or against captured American rebels. 2 War or peace with America hinged on how the leaders of Britain defined the subjects’ relationship to the governing authorities. At no other time in the eighteenth century did parliament so passionately debate the connections between sovereignty and treason.3 Britain fought and lost the war. After 1783 the British government defended itself internally from a new treason that attacked more than the person of the king. The colonial rebellion marked a turning point in the eighteenthcentury interpretation of British treason.
Creating a British law of treason As shown in the previous chapter, the 1696 Treason Act altered the procedure for treason trials but not the definition of treason itself. Lawyers in the 1740s continued to refer to Sir Matthew Hale (1609– 76) for interpretive guidance regarding 25 Edw. III, Stat. 5, c. 2.4 Hale’s succinct account of the treason law confirmed that a king, according to 25 Edw. III, was a king de facto, not de jure. The treason law left no room for a philosophical debate concerning who had de jure legitimacy to rule. Silent on the greater constitutional and doctrinal issues at stake, the treason law only addressed the concrete reality of preserving the reigning monarch and providing legal recourse against any subject who broke his or her allegiance. This
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made the treason law especially appealing to those countering a Jacobite rebellion in 1746. The law of treason pre-empted any constitutional debate over the correctness of following George II. He was on the throne and hence deserved allegiance. The historians who understand 1688 as a watershed for the rise of a powerful parliament at the expense of a weakening monarch might have difficulty explaining the undisputed centrality of the king in all the Jacobite treason trials.5 The king remained a strong component of government after 1688. The Jacobites believed in and died for an indefeasible hereditary right of succession and its providential sanctions.6 The Jacobite trials alone cannot confirm J.C.D. Clark’s assessment that parliamentary reform was a ‘non-starter until the 1820s.’ 7 The trials do tend, however, to support his conclusion that the central political issue until the 1750s was expressed as a choice of dynasties rather than a choice between monarchy and other forms of government. Each Jacobite prisoner committed the crime of seeking to replace the Hanoverian dynasty with the Stuart dynasty. The Jacobites gained another reason to fight after the Union of 1707. Now, in addition to reinstating the exiled Stuarts to the throne, they fought to undo the union of parliaments. From the perspective of Westminster, the Jacobites struggled to destroy a British Crown, a British kingdom and a British allegiance, and thus the United Kingdom of Great Britain required a uniform law of treason. In response to Queen Anne’s outrage over the acquittals in the case against James Stirling of Keir, et al., the Westminster parliament revoked Scotland’s treason law in favor of the English treason law in 1709. The Scottish Privy Council charged James Stirling of Keir, Archibald Seton of Touch, Archibald Stirling of Carden, Charles Stirling of Kippendavie and Patrick Edmonston of Newton for convening in arms to assist the feared French invasion of Scotland led by the Pretender in February 1709. James Steuart, President of the Council, wrote in his report that all of them were guilty of at least treasonable riot.8 Keir and his counterparts left their homes and went armed about the countryside while the Pretender was at sea preparing to invade Britain. Although no violence came of this venture, they exhibited suspicious behavior. The Council recommended they be tried for treason. Queen Anne concurred. In order to qualify as levying of war under the 1352 Treason Act, the action of riding armed had to express an intention to harm the queen’s person. The prosecution failed to prove this.9 Moreover,
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the queen’s advocate, Sir James Steuart, had not complied with the Scots law requiring that a list of witnesses be given to the prisoners 15 days before the trial, and as a result the prosecutors’ star witnesses never testified. The five suspected Scotsmen presented three facts in their defense. First, the lords carried no more arms than they normally did. Second, they did not return to their homes until three days after Sir George Byng had returned to the Firth of Forth having chased away the French Fleet. Third, they traveled openly and on the main highways.10 The 15 members of the Assize court unanimously found them not guilty of having supported the Pretender and engaging in armed rebellion. Steuart’s conduct infuriated the queen’s ministers. They resented the lack of control in Scotland, especially as they became aware of the apparent discrepancies between the Scottish and English treason laws. Unlike the English treason law, the law of treason in Scotland held that subjects owed allegiance to both the estates of the realm and the king.11 The offense of treason in Scotland aimed to destroy the representative body of the kingdom or the person of the king. As the author of Praticks of the Laws of Scotland, Robert Spottiswoode, explained: Likeas, albeit by the 4th Act of the 3d. parl. of King Charles, dated 29th of June 1644, All takers up of Arms against the Kingdom and Estates of the Country, are guilty of Treason, and punishable for Forfaulture of Life, Lands and Goods, or any other Censure the Parliament shall please to inflict.12 In 1709 the law changed, and treason law in Scotland protected the person of the king. Englishmen in parliament desired to avoid such harmful acquittals in the future and submitted a Bill concerning trials for treason in Scotland entitled An Act for Improving the Union of the Two Kingdoms. The Scots members opposed it strongly enough to have the Bill dropped. The House of Lords, however, zealously and successfully reintroduced it. The peers’ Bill included three controversial innovations in the Scottish law of treason. First, all crimes considered high treason in England, ‘and these only, were to be high treason in Scotland.’13 Second, all manners of legal proceedings settled in England were to be observed in Scotland. Third, the pains of physical punishment and forfeitures were to be the same in both nations. The laws of high treason in England were to take place in Scotland
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‘not only with respect to the facts which constituted that crime, but in relation to the forms of trial, the corruption of blood, and all the other penalties and forfeitures consequent on it.’14 Scottish lords opposed each provision. They protested that the Bill did not enumerate any of the English laws. The Bill only used the phrase ‘all crimes.’ Such a general statement would cause unease among the Scots. The Bill reduced treasons in Scotland – theft by men of property (‘landed men’); murder under trust (one who murders that person to whom he owes loyalty or to whom he is in debt); wilful fire-raising; firing coalheughs; and assassination – to capital felonies. Scottish treason, ‘by its native signification, expresseth crimes against the life of any party under trust. So the slaughter of any person under trust, credit, or power of the slayer, is declared treason; Parl. 1587, c. 51.’15 According to Scottish statute law, treason included impugning the authority of the three estates of parliament, landed men committing riot or robbery, and accusing others of treason if they were then acquitted. These acts did not ‘of their own nature carry in them any of the distinguishing characters of proper treason, and were from their enormous guilt and mischievous consequences punishable by statute with the pains of treason.’ 16 The statutory treason differed from treason proper. Treason proper, defined in common law, meant treachery against the king. The British treason law eliminated these Scottish definitions of treason. The second head of the Bill changed the whole method of proceeding in Scotland and generated a great debate in parliament. In Scotland, according to accustomed practice, the queen’s advocate signed a citation of the persons accused explaining the matter of high treason. The accused received this and a list of witnesses 15 days before the trial. Scottish law did not permit peremptory challenges against jury members, and if the court accepted a challenge the prisoner had to prove it immediately. The lawyers argued the matter of the charge, or the relevancy of the libel. In this way they determined, by a sentence called the interlocquitur, ‘whether the matter, suppose it should be proved, did amount to high treason, or not.’ 17 Only then did the jury make the proof of the fact. According to ancient tradition, a majority of 15 decided the verdict, but more recently the verdict passed according to the agreement of two-thirds of the jury. The law did not regulate the punishment, but rather the judge had the discretion to set the punishment according to each case. Scottish jurors received written depositions of the witnesses. The Westminster parliament, however, proposed to replace
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this method with English procedure: a Grand Jury found a true bill to proceed on an indictment for high treason; the judge regulated the proceedings and explained the law; 12 jury members unanimously decided upon the indictment; and no written depositions were provided. 18 This Bill for a uniform treason law violated the spirit of the Treaty of Union. The debate over the Bill reached a climax over the third head. Up to 1709 Scottish traitors had not been tortured before execution, and since Parl. 1690, c. 33, the rights of widows, husbands, creditors, and heirs of entail did not suffer forfeiture when a jury convicted one of their relatives or debtors for high treason.19 Forfeiture especially concerned the peers. The Scots protested that the Treaty of Union preserved all Scottish private rights and thus no Act could be created that touched the property of the Scottish people. Bishop Burnet denounced forfeiture and argued in general that it was not right to ‘set the children on begging for their father’s faults.’20 None of the other English lords agreed. They acknowledged that omitting the punishment of forfeiture benefited all during peaceful and secure times. In 1709, however, when the nation was ‘exposed to so much danger from abroad,’ forfeiture served as a necessary deterrent. 21 The Scots protested against the queen’s power to grant commissions of oyer and terminer in Scotland, as in England, for trying treason cases. This power usurped the justiciary, the criminal court of Scotland. To compensate for this, the Bill added that one member of the quorum in the Special Commissions had to be a judge from the justiciary. The Bill passed in the Lords, and then in the House of Commons after adding two amendments. One was that ten days before the trial a list of witnesses had to be provided; the other, that no estate of land was to be forfeited upon a judgment of high treason. The popularity of these amendments in the House of Commons deterred the Lords from tampering with them too much. Lord Somers, however, added a provision that: they should not take place till after the death of the Pretender. It was said, that, since he assumed the title of king of Great Britain, and had so lately attempted to invade the nation, it was not reasonable to lessen the punishment, and the dread of treason, as long as he lived. 22 Opponents claimed his provision essentially rejected the amendment, since they had no reason as yet to suspect the Stuart line would end.
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This proviso passed, and the House of Commons agreed to it, but only after adding another clause which stipulated that the provision concerning forfeiture should not take place until three years after the House of Hanover succeeded to the crown. This aroused great concern, for it seemingly distinguished those who supported the Revolution Settlement from those who opposed it. Furthermore, the Scots members in both Houses apprehended that the Bill would be odious to their country and ‘therefore, to maintain their interest at home, they who were divided in every thing else, did agree in opposing this bill.’23 The dissenting members feared that the Act would not improve the Union at all, as its very preamble suggested a total alteration to the laws of Scotland. The new Act violated the articles of the Union that preserved the rights of the jurisdiction of the Scottish courts. The alteration of the Scottish law of treason would make the Scottish people insecure and uncertain about how they could legally act. Queen Anne’s ministers were at least sensitive enough to feel the degree of heat and anger the passing of the Act had generated. Fearful ‘that ill disposed men would endeavour to possess people with apprehensions of bad designs and severities that would be set on foot’ they issued an Act of Grace to pardon past crimes – even in cases of treason. The Act 7 Annae, c. 21 transformed the English treason law into a British treason law. 24 Subjects in Scotland and England now suffered the same penalties for treasonable transgressions against their shared monarch.
Applying the British law of treason The last major uprising seeking dynastic change began in 1745. 25 Cumberland’s victory at Culloden on 16 April 1746 and the repressive tactics that followed had largely extinguished any threat the rebellion posed to the Hanoverian regime. To prevent future rebellions Westminster brought the Highlands and Islands within its effective control. Armed forces vigorously enforced 19 Geo. II, for disarming the Highlands.26 As of 1 August 1746 the Lords Lieutenant could call for all ‘warlike weapons’ upon payment of a £15 fine or one month in prison. The law banned men and boys from wearing highland plaids, and all preachers and teachers swore oaths of loyalty.27 Such Hanoverian maneuvers signaled the end of the Forty-Five rebellion and the start of a concerted clean-up operation. The fate of the captured Jacobites had to be decided, but not all of the 3,471 prisoners were simply scheduled for trial.28 The exorbitant
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cost alone deterred the government from trying all prisoners. Moreover, the prosecutors had no guarantee that the number of rebels found guilty would exceed those found not guilty. Orchestrated by the Secretary of State, Thomas Holles, the Duke of Newcastle, the government created an efficient trial network to dispense with the prisoners and receive as many guilty verdicts or guilty pleas as possible. 29 The government utilized Special Commissions of Oyer and Terminer to try those against whom there were two witnesses; impeachment in parliament against the peers of Great Britain; and lastly attainder against those noble or notorious rebels who fled and avoided arrest.30 Such means were thought sufficient to cope with the numerous prisoners and linked the proceedings to the governmental leadership in London: the Secretary of State’s office, the Treasury Solicitor and the Attorney General. Once the Special Commission was announced all the justices of the peace, the mayors and bailiffs within the county presented themselves for a roll call and offered their services. In cases not related to treason, it was possible for commissions of oyer and terminer to go through all of the trial proceedings in one day: preferring the indictment, joining issue, making a precept for a Petty Jury, the return of the Petty Jury, the trial and judgment. But in the Cases of Treason comprehended within Stat.7.W.3. this is altered; for, by that Statute, 1. The Prisoner is to have a Copy of his Indictment five Days before the Trial; therefore the Finding and the Trial must be at least five Days asunder. And, 2. The Prisoner is to have a Copy of the Panel of the Petty Jury, two Days before the Trial; therefore the making the Precept, and Return of it, and the Trial require more than two days.31 Even with the special requirements for treason trials guaranteed under the 1696 Treason Act, the Special Commissions expeditiously disposed of the prisoners. The Sessions also gave the Crown a certain degree of control over jury selection: juries drawn from an English pool tried all prisoners. This tightly woven operation facilitated the process. An English treason law, now called British treason law, and English juries tried Scottish prisoners. Two prisoners, Alexander and Charles Kinloch, protested against this in 1746. The Kinlochs both served as captains in Lord Ogilvie’s Regiment.32 After capture and imprisonment in Scotland, transports brought them to New Gaol in preparation
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for trial at St Margaret’s Hill, Surrey. 33 In 1746 parliament passed a statute establishing that all who are or shall be on or before the first of January 1746, in actual Custody, for the said Rebellion and High Treason, may be proceeded against for the said Treasons, before such Commissioners of Oyer and Terminer, or Gaol-Delivery, in such Counties or Shires of this Realm, as shall be assigned by the King’s Commission under the great Seal, by good Men of the same Counties or Shires respectively, as if the Treasons had been there committed. 34 This Act, 19 Geo. II, applied only to the person named in the indictment and proved to have been actually in Arms, or to have personally joined with others, while in Arms, in the Rebellion or War charged in the Indictment; on Failure of such Proof, the Person to be acquitted, to the same Intents only, as if he should have been, if this Act had not been made. 35 The Act also applied to those who corresponded with the Pretender and his sons. The statute was enforced. The Special Commission was prepared to try for high treason all rebels who appeared guilty of levying war or communicating with the exiled Stuarts. Common practice and the law required that treason trials must be held within the county or shire where the offense was committed; but to accelerate matters and to ensure government-friendly juries, the judges of the King’s Bench presided over Special Commissions in appointed counties.36 On 23 August 1746 Alexander and Charles Kinloch, along with 26 others, faced an indictment for high treason. When arraigned on 2 September they all submitted a paper protesting that the court of Special Commissions in Surrey could not try them because they were Scottish. The paper asked for counsel to assist the prisoners’ desire to ‘insist on the Benefit of the Act of Union’ by which the laws of Scotland were declared unalterable by the parliament of Great Britain.37 As a subject born in Scotland and indicted for a charge of treason committed in Scotland, Kinloch asked for counsel so that use could be made of this defense.38 At the time of this request the judges instructed him to enter a plea and then complaint would be heard. The judges erred, however, for once a case was brought forward the accused could
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not argue the legitimacy of it. Realizing this, Lord Chief Justice John Willes, Justice Michael Foster, and Baron Edward Clive, in agreement with the Attorney General, dismissed the jury on the day of the trial, 28 September, and allowed the prisoners to withdraw their plea of not guilty. Alexander and Charles Kinloch together came before the bar on 29 September and entered a plea to the ‘Jurisdiction in Form.’ 39 Alexander submitted his plea in which he cited five points of argument to highlight the difference between Scotland and England.40 1 The kingdom of Scotland before the Union was regulated and governed by the laws and statutes of Scotland, not England. 2 Since the Union, Scotland had been governed and regulated by the laws and statutes of Scotland, not England. 3 Before and since 1707, a Court of Justiciary had heard Scottish treason cases. As such he claimed a right to be heard in the Court of Justiciary within Scotland. 4 The indictment laid the treason to have been committed in Fochabars, that is, in Scotland. 5 Fochabars was Alexander Kinloch’s birthplace and residence, and as a subject born in and resident of Scotland, he should not be tried in England by an English court and an English law.41 The judges found the demurrer insufficient, but the counsel submitted another argument. Kinloch’s case fell within the letter of the Act of last session, but by the ‘known Rules of Construction,’ the court could depart from a literal reading to avoid ‘any great or manifest inconveniencies’ arising from adhering too closely to the letter of the law. He found the law inconvenient because it did not clarify where the trials were to be held for offenses committed in Scotland. The Act would have avoided ‘inconveniencies’ had it stated that offenses committed in Scotland could be heard and determined in any county in Scotland. The Attorney General disagreed. He said that the Rules of Construction applied only when the court encountered a doubtful meaning of the Act. This plain case and the legislature’s clear intention stipulated that the court simply execute the law. If parliament ‘had intended that different Commissions should issue for Trials of Treasons committed in England and Scotland respectively, they would have said so: they would have impowered his Majesty to issue Commissions into any County or Shire within the United Kingdom.’42 The Attorney General, Dudley Ryder, also insisted that the same point had been argued to no effect in William Hay’s case at Carlisle in 1716.
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The Lord Chief Justice and other judges concluded that ‘the Prisoner’s birth, Residence, and Apprehension in Scotland are Facts perfectly immaterial to the present question.’ 43 Common law affirmed this. At common law, every Man is Triable, not where he was born, resided, or was apprehended, but where the Fact was committed; That these Facts being immaterial, and the whole Merits of the Objection appearing on the Face of the Indictment the Prisoner might as well have Demurred to it, as pleaded in the manner he hath done. 44 Arguments of inconvenience carried no weight, and the law had to take its course. Furthermore, in 19 Geo. II ‘this Realm’ meant the United Kingdom of Great Britain, ‘And by no Rule of Construction can they be restrained in the single Clause, to that Part of the Kingdom called England.’45 If the Realm included Scotland then it mattered not whether Scots appeared before the bar in England or Scotland, for in terms of allegiance England and Scotland were the same political and legal kingdom. The Scots and English were bound to identify with a British crown and treason law. The jury found both Kinlochs guilty on the testimony of 14 men who saw them leading Ogilvie’s Regiment.46 Before sentencing on 15 December the two Kinlochs attempted one more legal maneuver, an arrest of judgment. Counsel argued that the judge’s decision on 28 September to discharge the jury in order to allow prisoners to withdraw their plea of not guilty rested on questionable procedure. Under Charles II juries could be discharged in capital cases, but since the Revolution the practice was that a ‘Jury sworn and charged in a capital case cannot be discharged, but must give a Verdict.’ This pushed the issue too far and the judge crisply responded that as the justices had allowed them to withdraw their plea, the jury had no evidence to consider and had to be discharged. The prisoners had no cause to ‘complain of that which was a necessary Consequence of an Indulgence shewn them by the Court.’47 A British law of treason treated Scottish and English rebels alike. Alexander Kinloch was banished, and Charles Kinloch was transported.48 If we choose to view this one trial as representative of the whole, then we might very well conclude that a British identity arose from encountering the ‘Other’ within the realm as well as from the ‘Other’ outside the realm.49 The judges insisted on a British allegiance in
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the Kinlochs’ trial and utilized a British treason law to defend it. Scottish and English subjects had a duty to offer peaceful allegiance to the British monarch sitting on the throne. Questions of sovereignty would plague lawyers and lawmakers in the late-eighteenth century. In 1746, however, no discussion of sovereign authority arose in the treason trials. The treason law protected the king and his sovereign power. Using a British treason law after 1709 to punish Jacobite rebels emphasized that the requirements for allegiance of both Scottish and English subjects were the same. The treason trials thus enforced a British national identity. The British law of treason prevailed and with it a definition of a strong king in a strong parliament. The trial of a notorious Scottish laird, Simon Fraser, Lord Lovat, illustrated this. On 11 December 1746 William Yonge informed the peers that the House of Commons had agreed to impeach Lord Lovat for high treason. Convinced of his treachery, the peers welcomed this announcement. A week later the peers heard the Articles of Impeachment, and on 18 December guards delivered Lovat from the Tower to the House of Lords.50 Lamenting his age and his desperate infirmities after five months in the Tower, Lovat declared himself unable to answer the Articles against him.51 The House of Lords assigned him counsel and ordered him to return either to give his answer in person or submit his response in writing before 13 January. The House gave him access to records and journals, permitted him to receive rents from his estates, and provided him with lists of witnesses.52 Lovat submitted a written answer to the Articles in which he pleaded not guilty and entered two petitions. The first complained that his money from rents failed to reach him, and the second asked to see William Fraser, chief agent of Lovat’s estate in Scotland. Parliament impeccably followed the procedure for an impeachment. The House of Lords met on 23 February and appointed a Lord High Steward. On 18 February the peers rescheduled the trial to 5 March due to the weather and to allow more time for witnesses to arrive from Ross and Inverness. The trial date was postponed another week and finally opened on 9 March 1747. Philip Yorke, Baron Hardwicke, Lord High Chancellor of England, accepted the commission for Lord High Steward, and the peers moved to the newly erected court in Westminster Hall. The seats and woolsacks were situated identically to those in the House of Lords. The king and his entourage found places on the right-hand side, while the
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Prince and the Princess of Wales and their followers found seats on the left. After the distinguished procession of lords entered the court, Lovat came before his judges. The Lord High Steward instructed Lovat to remain quiet during the reading of the Articles and that no examination or cross-examination of witnesses be allowed while matter of fact was in question.53 His counsel was to assist in points of law only. Hardwicke warned Lovat against protesting about the hardships put upon him, ‘Neither can you entertain the Least doubt of a just and impartial Trial where the Law of the Land and the Custom and usage of Parliaments (an Essential part of that Law) Constitute the Rule of Proceeding . . .’54 Lovat received a legal and traditional hearing. Before Sir William Yonge read the indictment, he explained that government worked for the happiness and security of the subjects. It safeguarded them from anarchy and confusion. Treason destroyed all. Among Britons was ‘an Obstinate, bigotted, restless Faction.’ These Jacobites, not content with the enjoyments of liberty and prosperity, instead waited and watched for a favorable opportunity ‘to overturn our Constitution and the present happy Establishment.’55 By law, imagining the death of the king and making this desire known by an overt act was treason. Additionally, an Act passed in 1744 made corresponding with the Pretender and/or his sons treason. By these descriptions Lord Lovat matched the profile of a traitor. Seven or eight years earlier, when war broke out with Spain, Lovat had joined an association for dethroning George II and replacing him with the Pretender. The Earl of Traquair, Lord John Drummond and Sir James Cameron of Lochiel also joined this association. With Lovat’s backing, delegates traveled through Europe to gain support. In France they sought to evoke from the prime minister an interest in coordinating an invasion with a domestic rebellion, and in Rome they personally promised the Pretender that they could raise 30,000 men in the Highlands. For his diabolical efforts, in 1743 James III (the Old Pretender) named Lovat Lord Lieutenant of all Counties North of the River Spey and Lieutenant General of the Highland Clans. According to Yonge, the Pretender did not give him these titles for decoration but rather to ‘propagate Treason and Rebellion.’ On 25 July 1745 when the Young Pretender, Prince Charles Edward, landed in Scotland, Lovat readily welcomed him into his home. He rallied men to fight and enlisted his son but denied this after the rebellion failed. Instead of admitting his own guilt, Lovat tried to sacrifice his son in order to save his own life. He denied Yonge’s
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accusations and claimed innocence: he had not plotted the king’s death, corresponded with James III, raised rebels, or furnished shelter and food to the Young Pretender. Lord Coke assisted Sir William Yonge in presenting the Articles of Impeachment and assured the house that the violence of the past year was not a ‘rash inconsiderate matter hastily run into but a product of a methodical scheme.’ Jacobites committed war, not riot, and as such the charge of treason well suited the case. Unlike the nobleman at the bar, the vast majority of common subjects vindicated their loyalty and honor. Moreover, their loyalty showed ‘Not an Artificial false Clamour for Liberty, but the true old British Spirit of Liberty, the true Revolution Spirit that exerted and Signalized it self, out of hatred to Popery and Arbitrary Power.’56 He sympathized with the peers’ need to pity a man of Lovat’s age, but reminded them that he had already been pardoned for this very crime of treason. The Crown had even entrusted him with preserving the peace of the Highlands. Coke opined, ‘I own I feel the strongest resentment of such heinous Ingratitude.’ 57 The charge cited four acts of treason: imagining the death of the king, levying war against the king, corresponding with the Pretender, and corresponding with the Pretender’s son. Of these, 25 Edw. III, Stat. 5, c. 2 supported the first two, and 13 & 14 Wm. III, c. 3 affirmed the last two. The prosecutors concluded, confident they had sufficiently proved their case. If their words did not yet persuade, then the peers only had to hear Lovat’s own boast in a letter to his son that he had ‘done more against this Government than would Hang fifty Lords and forefeit fifty Estates.’ Two tenants of Lord Lovat, Robert and Joseph Fraser, testified. Robert said that Lovat offered him money to engage in the rebellion, and Joseph related that Lovat promised to forgive his arrears of rent if he joined. John Murray of Broughton acted as secretary to Prince Charles Edward but after soldiers captured him in 1746, he agreed to turn king’s evidence. George II pardoned him. Murray testified that by Lovat’s order he had composed several letters to the Young Pretender, and that Lovat had held correspondence with him since 1743. 58 According to the House of Commons, Lovat’s guilt was obvious. He had no right to complain of hardship at the hands of the rightful monarch and government. The Attorney General emphasized that the Commons had proceeded according to the law of treason. The members had charged the prisoner with a traitorous intention and then provided many facts that manifested the treason. The overt
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acts of entering into an association to raise war and rebellion against the king with French assistance, his correspondence with and his commission from the Pretender all spoke his hidden thoughts. 59 Ryder asserted that: The Wisdom of this Constitution, foreseeing that the general happiness must be most intimately connected with the Safety of that Royal Person, and preceding against the Unnatural danger to which it may be exposed, has made the very Imagination of the Heart, when directed to its Destruction, an Act of Treason. 60 Although the peers put off Lovat’s trial for one month to accommodate witnesses from afar, Lovat continually failed to produce an effective defense. The nine witnesses brought in to support him did not convince the peers. On the sixth day he requested more time to produce witnesses and the Lord High Steward explained that such a request was highly irregular. Allowing this would extend the trial indefinitely, for the witnesses would have to travel from Scotland. The Lords withdrew. Beginning with the youngest peer and progressing to the most senior, each Lord submitted on their honor a guilty verdict. Unanimously, 117 peers condemned Lovat’s attempt to remove King George II and his heirs from the throne. In so doing, the peers expressed their commitment to the 1688 Revolution and its Settlement. Convinced he died a martyr for Scotland and the Stuart dynasty, Lovat offered his neck to the ax. 61 The Lord High Steward, Lord Chancellor Hardwicke, made a speech on 19 March, which appeared in the press immediately after the trial ended.62 From the lofty stage of Westminster, Hardwicke voiced the government’s position on rightful authority and allegiance. The House of Commons, the ‘United Voice of the People,’ acted as prosecutors. In this horrible, treacherous offense ‘the people’ were those subjects with ‘sufficient standing and education to engage fully in the political process.’ This united people rightly and successfully condemned one of the leading forces of the rebellion.63 ‘It should seem, by the Evidence, that the Foreign Enemies of Britain were less forward in this Measure to disturb her, than her degenerate Unnatural sons.’ 64 Hardwicke digressed to denounce the system of northern Scotland where men were kept in bondage to fellow subjects who exercised powers of petty tyrants over them. Hanoverian troops destroyed those ‘tyrants’ with a vengeance as they cleared the Highlands with fire and sword.
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Hardwicke scorned Lovat’s complaint that the ministry had illused him because it had revoked his commission as captain of an independent company of Highlanders. All loyal subjects gave allegiance and fulfilled their duty without perquisites.65 Hardwicke’s tirade ended with an exultant appreciation for the Protestant Crown and Protestant Church of England, guaranteed in law. The present happy Settlement of the Crown is, in Truth, and not in Name only, THE PROTESTANT SUCCESSION. And the Inviolable Preservation of that Wise and Fundamental Law, made since the Revolution, whereby every Papist, or Person marrying a Papist, is absolutely Excluded from Inheriting to this Crown, will, in future Times, be a solid Security for our Posterity, now only against the groundless and presumptuous Claim of an Abjured Pretender, and his Descendants, but also to prevent this Kingdom from becoming a province to some of the great Popish Powers, who have too long watched for the Destruction of our Liberties.66 More than fifty years had passed since the Glorious Revolution, but the Hanoverian regime still defended it. Hardwicke assured his listeners that the regime protected ‘the people’ from popish and arbitrary government. The men who in 1688 asked William of Orange to save their liberty, property and religion, would have understood Hardwicke’s position perfectly. The law courts of the king and the highest court of the realm, parliament, confirmed the monarch’s authority. A strong king and a strong parliament ruled England and Scotland. In the mid-eighteenth century, the Hanoverian dynasty affirmed its authority over British subjects. George II secured his position as a vital and distinct component in the system of government.
Interpreting the British law of treason Commentaries interpreting the law of treason intrigued the public throughout the eighteenth century. Following the end of each Jacobite rebellion, legal specialists, publishers and paid government supporters printed and sold commentaries on treason law. In 1709 a list of all the current treason statutes was published as well as an essay discussing the method of treason trials for commoners.67 Six years later the press generated an account of impeachment for high treason in the House of Commons and Lords, an account of the treatment
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of those involved in Monmouth’s rebellion (1685), and a few reprints of Sir Matthew Hale’s Pleas of the Crown: In Two Parts.68 As a result of the arrest for high treason of Francis Atterbury, the Bishop of Rochester, and his counterparts, 1722 witnessed the publication of An History of the Archbishops and Bishops, who Have been Impeach’d and Attainted of High Treason, from William the Conqueror to this time, by Daniel Defoe, and The Manner and Method of Proceedings against Bishops, for High Treason and other Capital Offences.69 The following year brought The Reasonableness of Parliamentary Proceedings, by Attainders, Banishments, Pains and Penalties, in Cases of High Treason, Shewn by Various Precedents.70 The government welcomed any treatise that supported the treason trials and endorsed proper allegiance to the Hanoverian monarch. The reading and other interested members of the populace welcomed political treatises whether the authors admired the regime or not. In 1746 a treatise was published concerning ‘those Species of Treason, and the Questions probably to be made upon them, which are shortly to be the Objects of the public Attention.’71 The central message contained two points. First, the Jacobite prisoners broke the allegiance owed to the king. Second, they actually levied war, not rioted, against him. By emphasizing these two facts, the rebel activity was inexorably linked to the first and third species of treason in 25 Edw. III, compassing and imagining the death of the king and levying war against the king. Extra-governmental commentary concerned itself with dynasty and allegiance, continuing the ideological preoccupation of the seventeenth century. Such an understanding of allegiance and the treasonous breaking of it relied heavily upon Sir Matthew Hale, with some reference to Sir Edward Coke’s Calvin’s Case. Allegiance was 1st, Original, which is antecedent to, or independent of any express Oath or Engagement, or, 2. Express, which consists in Oaths, &c. By the Breach of the first of these, the Crime of High Treason is constituted. And this Allegiance is either, 1st, Natural, which in all Times and Places binds all Subjects born within the King’s Allegiance, or, 2. Local, which obliges Aliens, only during such Time as they reside within the King’s Dominions, and enjoy his Protection. 72 Allegiance could not be ‘discharged, without the Consent of that Prince to whom it is due’ 73 and the ‘Person in Possession of the
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Royal Stile is, and ever was the Person to whom Allegiance is due, and against whom Treason may be committed.’74 This was small comfort to sincere Jacobites. James II had never discharged his subjects’ allegiance, and yet George II styled himself king. James retained a de jure claim, but George II had de facto power and asserted a de jure claim as well. Any violation of allegiance to the present Protestant monarch demanded justice through the law of treason. The first branch of treason was compassing and imagining the death of the king. The trials of Francis Francia (1716), the guilty pleas of Derwentwater and the six lords (1716), the impeachment of the Earl of Wintoun (1716) after the 1715 Jacobite Rebellion and the trial of Christopher Layer (1722) after the Atterbury plot proved how extensive the first branch of treason was. Consulting and agreeing to provide weapons or assembling to levy war to depose, restrain or force the king to act; conspiring with a foreign prince to invade the kingdom; and levying war against the king, all proved an intention to kill the king. Conspiring to levy war without an actual rising was not an overt act of treason, because the act of levying war was itself a distinct species of treason.75 Using the third species of treason, levying war, to prove the first species of treason, compassing the death of the king, did not make it redundant. On occasion armed men might engage in a great riot, but their behavior did not signify a breach of allegiance against the king. They committed riot, but not high treason. The armed Jacobite rebels, however, did not riot but rather waged rebellion. They intended to overthrow the Hanoverian dynasty. Mr Justice Michael Foster, a judge for the trials in Surrey during the summer of 1746, published an assessment of British law in 1763. So far as we know Foster made no specific comment about the abilities of William Blackstone, who began his lectures on English law in 1753, but Blackstone is recorded as having described Foster as ‘a very great master of Crown law.’76 Foster’s account is valuable, because he was a pre-eminent judge and he presided at the 1746 treason trials. Foster offered intriguing reflections on allegiance and treason.77 He did not employ imagery of the family to construct the relationship between king and subject. Instead, Foster argued that the relationship was societal, not familial. Natural Allegiance is founded in the Relation every man standeth in to the Crown considered as the Head of that Society whereof
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He is born a Member; and on the peculiar Privileges He deriveth from that Relation, which are with great Propriety called his Birthright. 78 While the family remained an important factor, man’s relationship to the greater society determined allegiance. Possibly Foster participated in an Enlightenment project to steer attention away from the person of the king to a broader, more inclusive, definition of state. He was, after all, a Dissenter, and this leaves little doubt as to his wish for expanded liberties for Nonconformists. Richard Price, a Nonconformist minister, voiced similar but more radical ideas 13 years later. Price believed in the sovereignty of ‘the people.’ 79 While Foster did not argue for the sovereignty of the people, his emphasis on ‘society’ rather than family described a more abstract and remote relationship for creating allegiance than the intimacy and mystery of the paternal imagery used by Hale and Coke. His interpretation evolved during the 1746 treason trials, in which the Secretary of State and Treasury Solicitor determined alien and subject status by noting the birthplace of the accused prisoner. According to Foster, parentage did not confirm subject status. Jacobites born in France to Irish, Scottish or English parents swore allegiance to the French king, not the British.80 Even though Foster relied on place of birth rather than parentage to establish alien status, he maintained that a subject’s focus of proper allegiance, the source of sovereignty, was the monarch.81 Foster explained that the local allegiance required of a visiting foreigner entailed the same duty as natural allegiance for the duration of his residency in Britain. Whether by birth or by residence, the relation of the person to the Crown and the privileges he or she derived from it determined the duty of allegiance. Unlike local allegiance, however, the subject held ‘Unalienable and Perpetual’ natural allegiance for this arose from and was inseparably connected to birthright. Foster chose not to comment on writers who ‘carried the Notion of Natural, Perpetual, Unalienable Allegiance much farther than the Subject of this Discourse,’ but he agreed that allegiance, whether natural or local, was owed to the person of the king. 82 Lest the reader interpret this as support for the Stuarts, Foster asserted that allegiance ‘must constantly be paid, to that Prince who for the time being is in the Actual and Full Possession of the Regal Dignity.’83
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Foster concluded that the Jacobites had no legal basis for their campaign. He declined to meddle with the distinction between de facto and de jure kingship, because the law of treason only concerned itself with a king de facto. Regardless of arguments of hereditary right, the Stuart family had no legal claim to Britons’ allegiance. The Old Pretender and his son had no claims to kingship, because they did not possess the throne. These principles could not be denied for they were ‘founded in Reason, Equity and good Policy.’ Foster defended his belief that crowns descend in ways other than hereditary right: The Reader observeth that in the preceding Section I take it for granted that a Title to the Crown may be founded, as well on a Designation by Parliament as on Hereditary Descent. I never entertained a Doubt of this matter, though I am aware that some Lawyers of High Rank have gone upon a contrary Principle. For though the Crown hath, upon Principles of great Wisdom and sound Policy, been in All Ages considered as a Descendable Right, vested in and appropriated to the Royal Line, and hath in Fact continued in that Line ever since the Conquest, yet it is certain that the course of Descent in that Line hath been frequently interrupted by Authority of Parliament.84 Affirming Coke’s opinion in the two priests’ case, Foster assured his readers that they owed allegiance to the new king before the coronation had occurred: ‘A Prince succeeding to the Crown by Descent, or by a previous Designation of Parliament, is from the Moment His Title accreweth, a King to all Intents and Purposes within the Statute of Treason.’85 Coronations presuppose, not confer, a ‘Right of the Allegiance of the Subject inherent in the Person of the King.’ Even though the duty of allegiance existed before the ceremony, coronations remained relevant. They went farther than publicly and solemnly acknowledging the prerogatives and powers vested in one person. The Coronation Oath importeth on the part of the King, a Publick Solemn Recognition of the Fundamental Rights of the people; and concludeth with an Engagement under the highest of All Sanctions, that he will Maintain and Defend those Rights; and to the Utmost of His Power make the Laws of the Realm the Rule and Measure of his Conduct. 86
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Allegiance required commitment from each party. If conspiracies arose to break this allegiance, then members of society became traitors. Foster did not comment further on this, but a reasonable supposition based on his understanding of the king-subject relationship could be that James II broke allegiance and thus abdicated his right to the subjects’ allegiance. Alternatively, it could be a reflection of a continued devotion to a limited, but irresistible monarch. Foster disliked the upheaval that treason brought to the public tranquility, but he demanded that fair legal treatment be offered the accused. 87 Even with the safeguards for the prisoners provided in the 1696 Treason Act, nothing lessened the truth that in treason trials the ‘Power is on the side of the Crown.’ Foster pleaded that the Crown’s power ‘for the sake of the Constitutional Rights of the Subject, always remain where the Wisdom of the Law hath placed it!’88 If subjects suspected the Crown of using the treason trials to oppress, the attempt ‘generally disarmeth itself.’ A spirit of opposition, a sense of public rightness, turned the scale – sometimes to the detriment of justice. Foster appeared content that the Hanoverians had conducted the 1746 Jacobite trials within the law and without undue oppression. The rebels did not question their status as subjects of a monarch per se. They were not asking for reform, but rather a conservative replacement of one monarch by another. In seeking to return the Stuarts to the British throne, the rebels violated the allegiance owed to the present reigning monarch. Their intentions directly transgressed the 1352 law of treason and the Revolution Settlement. These dynastic challenges to the 1689 Revolution Settlement were, for all practical purposes, non-existent by 1760 when the young George III ascended the throne with the general goodwill of his British subjects. William Blackstone, one of these happy Britons, admired the Glorious Revolution and the perfect British constitution it created. Blackstone first published volume one of Commentaries on the Law of England in 1765. His concise summary remained an articulate and scholarly resource for defenders of the established parliamentary system who continued to encounter assaults, albeit not of a dynastic nature, as the eighteenth century progressed. The following brief discussion intends to discover how Blackstone defined three preoccupations of this book: sovereignty, allegiance and treason. According to Blackstone the natural foundations of sovereignty were wisdom, to know the real interest of the community, goodness, to pursue that real interest, and power, to move from intention to
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action. Sovereignty, this wise, good and powerful entity, resided in the supreme, irresistible and absolute authority of the Crown in parliament. Sovereignty, in essence, was the authority to make laws: ‘Sovereignty and legislature are indeed convertible terms; one cannot subsist without the other.’89 The power to make laws could exist in a variety of governments. For the political writers of antiquity the three forms of government were democracy (sovereign powers vested in the people), aristocracy (sovereign powers vested in a group of men), and monarchy (sovereign powers vested in one man). Blackstone explained that England was unique because in its legislative and executive powers, ‘the sinews of government are knit together.’90 The executive power was lodged in one person (the sovereign), but the legislative power (sovereignty) was entrusted ‘to three distinct powers, entirely independent of each other.’ These distinct powers represented democracy (the House of Commons), aristocracy (the House of Lords), and monarchy (the king): ‘Here then is lodged the sovereignty of the British constitution.’91 Sovereignty, or legislature, prescribed the law that expressed the political will of the state.92 The legislature had sovereign powers, and so too did the executive. England vested the supreme executive power of the kingdom in a single person, the king. The law gave him ‘the rights and prerogatives of sovereign power.’93 As the sovereign lord, he carried such great powers that the English law provided regulations to determine who should be king. The crown was hereditary, and Blackstone commented that only during the regicide trials had men tried to deny this and claim the crown elective. Even so, he acknowledged that the crown was hereditary ‘in a manner peculiar to itself: but that the right of inheritance may from time to time be changed or limited by act of parliament; under which limitations the crown still continues hereditary.’94 Thus for Blackstone, the crown was (1) hereditary, (2) hereditary in a manner peculiar to itself, (3) subject to limitations by parliament and (4) when so limited, hereditary in the new monarch. The hereditary right of the monarch did not mean jure divino. Nor did it imply an indefeasible right to the throne. It is unquestionably in the breast of the supreme legislative authority of this kingdom, the king and both houses of parliament, to defeat this hereditary right; and, by particular entails, limitations, and provisions, to exclude the immediate heir, and vest the inheritance in any one else. 95
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The sovereign powers of the legislature settled who was to be the supreme sovereign executive in the kingdom. Blackstone, however, warned his readers against making whimsical changes in the succession. The 1688 Revolution, he explained, was a result of an unprecedented event, the abdication of the reigning monarch and the vacancy of the throne. Parliament at that time had to decide whom to choose to fill this vacancy, and ‘having in fact decided it, it is now become our duty at this distance of time to acquiesce in their determination; being born under that establishment which was built upon this foundation, and obliged by every tie, religious as well as civil, to maintain it.’96 Besides, according to Blackstone, Britons lived in an era ‘in which the bounds of prerogative and liberty have been better defined, the principles of government more thoroughly examined and understood, and the rights of the subject more explicitly guarded by legal provisions than in any other period of history.’97 The overt message was to accept, not challenge or demand to reform, the British constitution as established by the 1688 Revolution. The king was the sovereign liege lord, and every natural-born subject owed allegiance to him. Blackstone explained that to distinguish the prince from the people, the king in law received attributes of a transcendent nature, and the first of these was sovereignty, or pre-eminence. No court had jurisdiction over him, and he was the highest being to whom subjects owed allegiance. Allegiance was not simply given to the king’s royal or regal office but to his natural person and ‘blood-royal.’ The subject was obliged to protect the life and safety of the monarch himself and not just honor the majesty that accompanied his position. Blackstone concluded, ‘Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, canceled, or altered by any change or time, place, or circumstance, nor by any thing but the united concurrence of the legislature.’ 98 The oath of allegiance gave a religious and sacred bond to the subject’s natural duty. It reminded subjects of what was already implied in law and given from birth: they owed allegiance to their sovereign lord in opposition to all other men. As for the coronation oath, Blackstone argued that: this is most indisputably a fundamental and original contract, though doubtless the duty of protection is impliedly as much incumbent on the sovereign before coronation as after: in the same manner as allegiance to the king becomes the duty of the
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subject immediately on the descent of the crown, before he has taken the oath of allegience, or whether he ever takes it at all. 99 When the subject transgressed his or her natural allegiance to the sovereign lord, the king, he or she became a traitor. Blackstone categorized the public crimes of treason, felonies injurious to the king’s prerogative, praemunire, and misprisions and contempts as those actions which especially affected the ‘supreme executive power, or the king and his government; which amount either to a total renunciation of that allegiance, or at least to a criminal neglect of that duty, which is due from every subject to his sovereign.’100 Breach of faith (proditio), or treason, was the most serious of the four. Blackstone’s general assessment of the law of treason became a standard interpretation of 25 Edw. III. He reviewed the seven distinct branches of this fundamental law of treason: compassing and imagining the death of the king, queen and eldest son and heir; violating the king’s companion and his eldest daughter unmarried or the wife of the king’s eldest son and heir; levying war against the king in his realm; adhering to the king’s enemies; counterfeiting the king’s great or privy seal; counterfeiting the king’s money; and slaying the chancellor, treasurer or the king’s justices while in their place doing the offices. After mentioning the first clause, Blackstone simply said that ‘compass’ and ‘imagine’ were synonymous terms and as the mind could not be revealed save through action, overt acts were required to prove this first clause of compassing and imagining the death of the king. In his view, 25 Edw. III only protected the king de facto. The law passed under Henry VII which confirmed this did not command any opposition to the king de jure, but rather served to excuse the obedience paid to the king de facto. Blackstone cited Hale who concluded that a king who abdicated the crown was no longer the object of treason. Of the more recent laws of treason, Blackstone said they either related to papists, falsifying the coin or other royal signature, or the security of the Protestant succession in the House of Hanover. From the last category, Blackstone highlighted four laws that remained in effect. 1 13 & 14 Wm. III, c. 3 forbade correspondence with the attainted Pretender James Francis Edward and his heirs. 2 17 Geo. II, c. 39 declared that if the Pretender and his sons landed on any part of the British Islands they were to be considered attainted for treason and captured.
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3 1 Anne 2, c. 17 made it treason to impede the succession. 4 6 Anne, c. 7 declared it treason to write or say that the parliament had not the power to determine the succession. Under this law, the printer, Matthews, was executed in 1719 for printing the treasonable pamphlet Vox Populi, Vox Dei. At no time during this discussion of the British treason law did Blackstone offer a new interpretation of the treason law and argue that treason could be against something other than the sovereign lord and king. Yet his initial and general definition of treason did not focus on an offense against the king alone. Treason was a general appellation made use of by the law, to denote not only offences against the king and government, but also that accumulation of guilt which arises whenever a superior reposes a confidence in a subject or inferior, between whom and himself there subsists a natural, a civil, or even a spiritual relation: and the inferior so abuses that confidence, so forgets the obligations of duty, subjection and allegiance; as to destroy the life of any such superior or lord.101 Here treason was against the ‘king and government.’ While it is dangerous to extrapolate from this definition that Blackstone understood activities against the legislature, not just the executive, to qualify as treason in law, this suggests the practical problems men in power encountered as the challenges to government began to change.
The American colonists: traitors or not? While publishers presented Blackstone’s and Foster’s remarks on the British law of treason, British colonists in America became angry. Beginning in 1763, the American colonists leveled complaints against the Westminster parliament. Specifically, they protested against their lack of representation in the House of Commons and rebelled against the imposition of Acts which they had no voice in creating. They took up arms against the sovereignty of the Westminster parliament, not the sovereign king. Not until 4 July 1776 when the patriots drafted and signed a Declaration of Independence did they explicitly state that their enemy was the monarch. From this point on, the patriots united and fought to defeat, as a tyrant, King George III. This was treason according to 25 Edw. III, but successfully convicting the rebels for high treason remained difficult.
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In late November 1774, George III complained of the resistance and disobedience to the laws displayed by his subjects in Massachusetts Bay. Not only did they obstruct commerce, they also impaired the supreme authority of the legislature in Britain. Most MPs and peers assured the king that they would strive to maintain ‘entire and inviolate the supreme authority of this legislature over all the dominions of your crown.’102 Not everyone supported this resolution. A debate followed that divided both Houses over the question of whether the colonists treacherously rebelled or whether they asserted their legitimate rights to resist unjust claims of the Crown as had been done in the previous century against the Stuart family. The majority in both Houses believed the former. Common sense told them the rebellious colonists were traitors. The Americans proclaimed their independence from the British legislature and its laws, appropriated money to resistance, prevented courts and lawyers from acting and attacked the king’s fortresses. This was ‘flagrant rebellion and treason.’103 The debate over whether or not the colonists acted as traitors was an offshoot of a larger debate over the meaning of the Westminster parliament’s sovereignty within the framework of empire. The king and the majority of both Houses would have agreed with Lord Dartmouth who, in a letter to General Gage, declared that ‘the constitutional authority of this kingdom over its colonies must be vindicated, and its laws obeyed throughout the whole empire.’104 When Edmund Burke, MP, first proposed a resolution for conciliation in January 1775, the ministry offered several arguments for the supremacy of the British parliament and denied the American colonial assemblies any legal power to grant revenue to the crown. Lord Frederick Campbell, passionately animated, swore that ‘any minister ought to be impeached, who suffered the grant of any sort of revenue from the colonies to the crown.’105 This argument was based on the Declaration of Rights that essentially guaranteed parliamentary control of the purse. Not until August 1775 was an official Royal Proclamation of Rebellion issued, and the king ordered his subjects to bring all traitors to justice. These traitors included those who assisted the American rebels. The armed conflict continued through the winter of 1775 and 1776 and with it came new criticisms. The Prime Minister, Lord North, moved for a second reading of the American Prohibitory Bill in December 1776, declaring Britain at war against rebels and restricting British trade and communication to America. He reminded
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his listeners that to avoid war the colonists need only ‘to own the legislative supremacy of Great Britain, as the parent and controlling state . . .’ 106 Legislative supremacy meant the sovereign authority of the king-in-parliament at Westminster. The executive and legislative branches were intertwined, and any person who subverted either side of this governmental coin was a traitor. Prosecutors asserted this same idea throughout the treason trials of the 1790s. The opposition continued to challenge North’s administration. 107 The Earl of Shelburne accused the government of giving away royal strongholds to foreign troops, and although he did not know if this violated any law it had to be ‘high treason against the constitution.’ 108 In February 1776, Daniel Hartley resolved never to adopt the term ‘rebels’ to describe the Americans. He blamed the aggressive ministers for the entire conflict and declared, ‘I never will, as a Whig of revolution principles, confound terms so fundamentally the reverse of each other, as defensive resistance in the support of constitutional rights, with unprovoked and active treason. The colonies have been condemned unheard.’109 Others defined the American war as a Tory and arbitrary enterprise. But what generated the most controversy was the rescinding of habeas corpus. On 7 February 1777 Lord George Germaine introduced ‘A Bill to empower his Majesty to secure and detain Persons charged with, or suspected of, the Crime of High Treason committed in North America, or on the High Seas, or the Crime of Piracy.’ The government claimed that it had already captured many Americans at sea and expected to take more, but the time was not ripe for the treason trials of these prisoners. Moreover, the government did not know when such trials would be possible. As the Act said, ‘it may be inconvenient in many such cases to proceed forthwith to the trial of such criminals, and at the same time of evil example to suffer them to go at large;’ and thus the government needed to suspend the right to habeas corpus.110 The opposition was incredulous at such a blatant revocation of the rights of Englishmen. If there was no treachery within England, then the government had no reason to suppress the rights of Britons, unless an ulterior motive existed. Perhaps this was a means to capture those within Britain whom the government perceived to be disaffected for reasons other than the American crisis. Attorney General Thurlow, however, thought this idea ludicrous. The government in no way suspected Britons of treason and believed that treason and rebellion were native to America. Had the government feared rebellion
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in Britain, then the Bill would have requested an immediate suspension of habeas corpus for that very reason. Unconvinced, the opposition members submitted a rider to the Bill guaranteeing Britons the right to habeas corpus. The clause read: IV. Provided also, and it is hereby declared, That nothing herein contained is intended, or shall be construed to extend to the case of any other prisoner or prisoners than such as shall have been out of the realm at the time or times of the offence or offences wherewith he or they shall be charged, or of which he or they shall be suspected. 111 Habeas corpus remained in place for resident subjects of Great Britain. Attempts to apply the British law of treason in America failed miserably. A few colonists were arrested and taken to London, but if thrown in jail they did not appear before a court of law on criminal charges of high treason. British soldiers captured Colonel Ethan Allen and 33 others in Canada and sent them to England in December 1775. As Allen was of rank and standing in America and this was the first batch of prisoners brought to London, the British government’s treatment of Allen established a precedent. Rather than charge him with high treason, the privy council decided to treat him as a prisoner of war and returned him to America. ‘The real reason for the release of Allen was the certain knowledge that Americans would execute British prisoners if he suffered a traitor’s death.’112 George Washington made this point very clear to General Gage. The American ‘traitors’ forced members of parliament to assess and evaluate what precisely sovereignty meant within the empire. The majority rigidly defended the unified and grand powers of the Westminster parliament and allowed for no devolution to the colonies. Even so, in 1775, a sizeable minority believed Americans were fighting for what Britons already enjoyed – parliamentary representation and the ‘rights of Englishmen.’ As long as the threat to the constitution remained within a parliamentary discourse and separated from England by the Atlantic, the government had no reason to fear a general revolt from within. But in 1794, the majority in government believed that the members of some societies were fighting to overthrow the entire social and political system. When the demands for reform began within England and accelerated during the opening years of the French Revolution, the government became alarmed. The American Revolution, with its attacks against the composition
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of parliament, became the harbinger for a new sort of treason against which the government needed to defend itself.
Conclusion To ensure that the English Protestant succession would not be undermined in any way, England forced a Treaty of Union with Scotland. While the Scots retained their civil laws and Presbyterian church, they lost their parliament and their law of treason. The British law of treason demanded a British allegiance. Alexander and Charles Kinloch failed when they claimed to be Scottish and therefore not subject to English juries, courts and law in the matter of high treason.113 As we saw in the first two chapters of this book, British allegiance was successfully established as a legal construct in Calvin’s Case (1608) and built on much older foundations of personal loyalty to a monarch. Subjects who transgressed this British allegiance faced the harsh charges of either English or Scottish treason laws. After 1707 the English treason law became a British treason law and continued to enforce a legal identity with the British king, who ruled in a newly created British parliament. By the mid-eighteenth century Jacobitism had become a lost cause. In 1760 a young, diligent king ascended the throne, and ministers increasingly turned their attention to an extensive empire. Dynastic concerns declined, but attacks on government did not. Chapters 1 and 2 concluded that an ideology supporting monarch, patricians, and the Anglican Church remained strong only while it could defend itself from other ideologies. Ideas of reform and even of republicanism circulating in the early-eighteenth century, as seen, for example, in the works of Algernon Sidney, John Locke, Montesquieu, Vox Populi as well as Vox Dei, and Cato’s Letters. Once the Jacobite cause subsided, Crown prosecutors had difficulty employing the law of treason to counter open and rebellious attacks which voiced those alternative traditions of constitutional thought. The challenges in the second half of the eighteenth century did not initially derive from critiques of the Hanoverian dynasty, and this forced the government to rethink how it could retain its ideological position of power. Publishing in the 1760s, Blackstone and Foster believed the British constitution still embraced the 1689 settlement of a supreme executive sovereign power in the king and the sovereignty of the legislature, king-in-parliament. Subjects were duty-bound to offer allegiance to the king. A British identity centered on the king. The statute
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25 Edw. III protected the king’s person, and those attacking him directly were charged with treason. Beginning in the 1760s, however, the authorities began to realize that subjects were acting in ways that subverted the legislative sovereignty without directly expressing an opposition to the person of the king. Subjects may have been doing so prior to the 1760s, but before then Jacobitism was the mode for expressing extreme dissatisfaction. While MPs and peers speculated that challenges against either house of parliament would lead to the destruction of the constitution and thus affect the king, they could not easily seek recourse in the treason law. Although legally they could have been, the American rebels were not tried for treason. The government feared retaliation against British prisoners of war in America. Perhaps the open attack against a tyrannical monarch, as expressed in the Declaration of Independence, only reinforced the British self-understanding as a monarchy. This certainly appeared to be the case by the mid-1790s, when an outpouring of love for George III effectively expressed contempt for the violence in France. Britons were not tried for treason during the American Revolution, because the government did not believe a serious internal threat existed. Such a threat emerged, however, in the 1790s.
4 Republican Treason and National Identity in the 1790s
From 1775 to 1803 the British constitution endured many attacks. The Americans’ quest to establish local parliaments and protect their traditional English rights guaranteed in the Revolution Settlement received sympathy from the ‘Real’ Whigs and inspired both the Irish and English to contemplate internal parliamentary and church reforms. By the end of the 1780s the situation in France was galvanizing the reform movement. At first England rejoiced that 1789 had brought the principles of the Glorious Revolution to France, but Edmund Burke’s worst fear materialized as the Revolution turned bloody. William Pitt the younger, once an enthusiast for the French Revolution, now led a governmental crackdown. He saw treachery unleashed in England, and the possibility of a French invasion added to his unease. Jacobin sympathizers were gathered up, deposited in jail and charged with high treason. The year 1794 witnessed unprecedented treason trials. Before that time acts of treason had attacked the king’s person and matched the offenses chronicled in 25 Edw. III, Stat. 5, c. 2. During the unsettled times of the 1640s and 1650s, supporters of the person of the king themselves faced treason charges. In 1660, the trial of the regicides hinged not on their involvement in a republic, but rather on their purported conspiracy to kill the king. Even a republican theorist such as Algernon Sidney was executed in 1683 for desiring to replace Charles II with the Duke of Monmouth, not solely for his republican theories. The Jacobite threats made after the Glorious Revolution directly attacked the person of the monarch. In 1794, however, the government arrested men for treasonable activities against the ‘parliament,’ ‘government,’ and ‘state.’ Reformers did not target the king, but rather the two houses of parliament. The government faced a new ‘republican’ treason. 99
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This chapter explores republican treason, seeking to understand the problem of allegiance and national identity through the treason trials which took place in Britain during the French revolutionary period. The chapter does not present a systematic narrative of the trials.1 Instead, the focus centers on how notions of sovereignty determined definitions of treason, and, in turn, how treasonous activity itself forced an alteration in the definition of sovereignty. We examine how the prosecution and defense defined treason in the 1794 treason trials, and then investigate how parliament justified tampering with the law of treason. The treason trials show that the patricians in power sought to retain position and place and to defend themselves against what they considered a threat, not just against the government, but against the entire structure of society.
The French influence Despite revolutionary changes, France from 1789 to 1792 retained a semblance of tradition because the king remained alive. In January 1793, however, the guillotine beheaded King Louis XVI, and with his execution came the final blow to the ancien regime. The fraternal societies raised republican voices to guarantee the success of the new order. Year I of the republic brought the Jacobin Society to the forefront of events, and its republican principles even appealed to the radical lower orders of Paris, the sans-culottes. The Revolution sparked a general discussion in England over the fundamentals of politics. Many Britons regarded the initial stages of the French Revolution as ‘a mirror of 1688,’ but when it turned bloody the government viewed it as a ‘warning against reformist ambitions.’2 Edmund Burke condemned the Revolution from its infancy. His Reflections on the Revolution in France (1790) sold 30,000 copies and the most popular response to it, judging by the 100,000 to 200,000 copies sold, was Thomas Paine’s Rights of Man.3 According to Mark Philp, these two works defined the parameters of the clashes between reformism and loyalism during the following decade. The debate on France alerted Britons both to the potential and the danger of domestic parliamentary reform. In Great Britain, men sympathetic to reform created their own organizations. Those who wished government to remain unreformed pejoratively dubbed the diverse groups ‘Jacobin’ societies. The Society for Constitutional Information (SCI), founded in 1780, revived a
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campaign for parliamentary reform; while the younger London Corresponding Society (LCS), comprised of artisans and workers and founded in 1792, endorsed the republican virtues and values of the new France. Both societies promoted three of the six points of the Westminster Association (1780): universal manhood suffrage, annual parliaments, and equal-sized constituencies.4 The correspondence between the French and English Jacobins flowed easily across the Channel until the declaration of war in 1793. Even then communication continued. Once the revolutionary violence escalated, however, the British government suppressed supporters of the radical changes prevailing in France. Although the SCI and LCS promoted a plan for parliamentary reform, members of parliament believed it really meant ‘a rout of the present Government and establishing anarchy.’5 The potential for overturning the government scared them. According to Pitt’s administration and its supporters in parliament, the connections that the SCI and LCS had in all parts of Great Britain and Ireland potentially endangered the kingdom. On 16 May 1794 Pitt read to the House of Commons the First Report from the Committee of Secrecy respecting Seditious Practices. The report began with an assessment of the older society, the Society for Constitutional Information. Based in London, this group of men corresponded with others in Sheffield, Norwich and Manchester. The London Corresponding Society and the British Convention at Edinburgh were of even greater importance.6 Considering that the LCS created links to Bristol, Coventry, Nottingham, Derby, Leicester, Norwich, Birmingham, Leeds, Newcastle-upon-Tyne, Royston, York, Hereford, Edinburgh, and other societies in Scotland, the influence of the SCI and LCS infiltrated the entire nation.7 Books from the secretary of the SCI showed the society ‘uniformly and systematically pursuing a settled design, which appears to your committee to tend to the subversion of the established constitution, and which has of late been more openly avowed, and attempted to be carried into full execution.’8 Presumably by established constitution they meant the king-in-parliament. Their critique, however, focused not on the king but rather on the vice and corruption the SCI perceived as contaminating the houses of parliament. The government became especially worried in October 1793. At that time the Convention of the Friends of the People in Edinburgh contacted the LCS and resolved to hold ‘an extraordinary general meeting, to consider of sending delegates to a convention of delegates
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of different societies in Great Britain, to be held at Edinburgh, for the purpose of obtaining parliamentary reform.’9 This meeting took place on 28 October in Edinburgh. As a result of this meeting, several members of the society were arrested in December and early January 1794. Pitt’s report highlighted the 17 January resolutions of the SCI and the Address from the LCS on 20 January.10 The SCI actually alluded to the need for armed resistance, while the LCS demanded a ‘fair, free, and full representation of the people.’ Furthermore, the committee’s report assumed that membership in the LCS had grown enormously. From its first meeting in 1792 of 200 members, the report estimated the LCS had grown until it had about thirty different groups of thirty or more men each throughout the city of London. The report also focused on a LCS meeting held at Chalk Farm, Monday, 14 April. At this session, the Society of the Friends of the People heard a letter asking for a ‘convention of the friends of freedom, for the purpose of obtaining, in a legal and constitutional method, a full and effectual representation.’11 Britons had a right to petition parliament, and so the language of this proposal was lawful; however, the Secrecy Committee believed the other resolutions passed at the Chalk Farm meeting revealed the true tenor of the proposal to the Friends of the People.12 Distressed by the political turmoil in France, Pitt finally concurred with Edmund Burke’s earlier warnings. He envisioned the same ugly revolution erupting in Britain if he did not immediately suppress the conventions. Pitt was highly suspicious of the parliamentary reform motives of the societies, which, he believed, desired not to petition but, at the very least, to usurp the place of the House of Commons and establish a new national legislature.13 Pitt entreated his fellow members of the House of Commons to enact a temporary suspension of habeas corpus. As passionately as the opposition argued, the majority opinion was perhaps best summarized by Attorney General John Scott who said that ‘upon this measure depended the salvation of our inestimable constitution, and the preservation of the happiness and liberty of this country.’14 Significantly, as Lord Frederick Campbell contended during the American rebellion, the imperial power of the Westminster parliament had to remain intact. Any threat against the supreme sovereignty of the legislature was treason. This definition of treason did not fit the letter of the medieval statute law, 25 Edw. III, Stat. 5, c. 2, which required treason to be an attack against
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the king’s person, and the prosecutors had to prove this was the case during the subsequent treason trials.
The Edinburgh trials Several men linked to the reforming societies in Britain were arrested for treason in the spring of 1794 and remained in prison during the summer while the government gathered evidence and made arrangements to dispose of them. In the trials that followed, a pattern developed in the prosecution. The Crown began by expressing a need to protect Britain from the Terror suffered by France. The prosecutors then offered three main points as proof of the very real danger Britons faced from the domestic insurgents. First, the Jacobins had formed assemblies to assume legislative sovereign powers. Second, these conventions would lead to deposing and killing the king. Third, in the anarchy which followed, no one’s property or person would be safe. This became the basic framework of the prosecution, for its job was to show an open intention to kill the king. Edinburgh hosted the first of the trials by Special Commission of Oyer and Terminer.15 Robert Watt, wine merchant, and David Downie, jeweler, were indicted on 14 August and pleaded not guilty on 27 August. Both participated in the meeting which was held in Edinburgh for the first time on 29 October 1793 and took the name ‘British Convention.’ Prohibited from assembling, the members regrouped and formed a General Committee (later called the Committee of Union) that followed the same plan and principles as the British Convention. Downie participated in a subordinate body of the Committee of Union, the Committee of Ways and Means, but the government viewed Watt’s involvement as more reprehensible because he was a spy turned traitor. The Lord Advocate in London at the time of Watt’s arrest ‘was thunderstruck, for Robert Watt was an informer in whom he had complete confidence.’16 The petit jury found Watt guilty on 3 September and Downie guilty two days later.17 The king pardoned Downie, but Watt was hanged on 15 October 1794. The brief discussions of treason and the state in these trials presaged the lengthy arguments of both prosecution and defense in the London trials the following month. Watt and Downie were the first to be tried for treason in Scotland under the 1709 British treason law. In his charge to the Grand Jury on 14 August the Lord President, Ilay Campbell, emphasized the need to secure Britain from the
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republican terror raging in France. Britons lived in what Campbell called a prosperous, free and liberal country, and thus subjects had no reason to seek change. Campbell urged Britain to repress the threat of complete internal chaos. Britain remained safe as long as she quarantined herself against the ‘contagion’ of France.18 The turbulent course of the French Revolution realized the worst of the ‘what if’ scenarios housed in the British government’s imagination. Because the French National Convention had tried and executed King Louis XVI, government officials assumed that any similar convention held within Britain would proceed toward the same traitorous end. The indictment reflected this fear.19 Subversion of the government led to the deposing of the king from his ‘Royal State Title Power and Government’ followed closely by his death.20 Anarchy would rule.21 The Grand Jurors returned a true bill, and Watt came before the bar first. Watt had engaged in discussions to raise arms to storm the Edinburgh castle as well as to renounce any and all laws which conflicted with the Convention’s demands for universal suffrage and equal representation. Unfortunately for the prosecutors, they could not simply accuse Watt of treason on the grounds that he attempted to pressurize or even overturn the parliament, for 25 Edw. III did not provide for this crime. Instead, Mr Anstruther, the Lord Advocate, had to demonstrate that the king’s royal power permeated all aspects of the government. His argument went as follows: the conspirators planned to assume the powers of the legislative branch and coerce the king, but the constitution provided that only the House of Commons and House of Lords working with and for the king could assume such power. An attack on any limb would lead to the destruction of the head. As a result, restructuring parliament meant the overthrow and death of the king. He thus placed their activities within the scope of the 1352 treason law. In contrast, the counsel for the panel insisted that Watt had demanded reform of the legislative branch alone. They argued that the king, the executive, reigned above and detached from parliament. The defense drew from a long-lived argument. Strafford, Laud and Charles I asserted the same interpretation in the 1640s, members and peers safeguarded the king’s separate executive authority in the 1690s, and Blackstone argued this in the 1750s. Watt did not desire the overthrow of the king. Watt claimed he had always acted against the corruption in the legislative branch of the government, ‘For when the Legislative becomes more corrupted
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than the Executive, there is an end of true liberty.’22 His colleagues’ demands for universal suffrage, equal representation, redistribution of electoral seats and payment of MPs did not diminish their loyalty to King George III. The ancient constitution safeguarded the right of every Briton to petition parliament for reform. As treason law protected the king’s person, not the wider scope of governmental authority, Watt did not commit high treason. He appealed to a traditional understanding of the distribution of power between the monarch and parliament. In this view, his actions remained outside the 1352 treason law. In general, these two positions concerning the state put forth by the prosecutors and defense counsel arose in all the treason trials of 1794. Downie’s counsel countered the Lord Advocate’s attack in a similar manner. Robert Cullen, who had never defended an accused traitor, argued that the prosecution construed treason. The charge did not cite Downie as directly attempting to imagine or bring about the death of the king, and this made the indictment for high treason suspect, if not invalid.23 Moreover, the indictment used outdated language: It is perhaps singular, as has been well remarked by an ingenious writer, that the life of every British subject prosecuted by the Crown for treason, should continue to depend upon the critical construction of two obsolete French words.24 Cullen referred to the phrase ‘compaser, ou ymaginer, la mort nostre Seigneur le Roy,’ to compass or imagine the death of our lord the king. Unlike the Jacobite rebellions, which clearly attempted to depose the king and replace him with the Pretender, the conventions that raised such an alarm in 1794 did not. Cullen asserted that ‘to fix traitorous intention, [there] must be proof that the object in view is clearly and certainly to affect the person of the King.’25 Urging the reform of one part of the government could not prove an intention to kill the king. Because the prosecutors provided convincing accounts of an attempt to raise weapons for the capture of Edinburgh castle, the jury found both men guilty. According to Alan Wharam’s account, ‘no tears were shed for Watt.’ 26 Neither the government nor his fellow reformers spared him sympathy. Acting for the government he led his unsuspecting friends into treasonable activities. Acting for the radicals he had double-crossed the Crown’s ministers.
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Watt was hanged outside the Edinburgh tollbooth on 15 October 1794.27 The jury recommended mercy for Downie, however, and he received it.
The London trials The London trials opened just as the Edinburgh trials closed. Rumors spread that a plot existed to kill the king with a poisoned arrow. The government linked this plot to assassinate the king with an imaginary plot of thousands to overthrow the constitution.28 P.T. Lemaitre, George Higgins and John Smith were arrested on 27 September for the attempted assassination and held in prison until May 1795. John Smith had connections to the LCS and its dangerous republican sentiments. The indictment presented to the Grand Jury on 2 October cited a charge of high treason against Thomas Hardy, John Horne Tooke, John Augustus Bonney, Stewart Kidd, Jeremiah Joyce, Thomas Wardle, Thomas Holcroft, John Richter, Matthew Moore, John Thelwall, Richard Hodgson and John Baxter – a mixed batch of LCS and SCI members. 29 The indictment essentially outlined a four-step process of treason: to compass levying war against the king, to alter legislature and government, to depose the king, and to kill the king. Editors assured the interested public that the trials ‘involve the GREATEST POLITICAL Considerations that were ever agitated before a Judicial Tribunal.’30 As in the trials of Watt and Downie, these trials illustrated a struggle to define what the treason law protected: was it the person of the king or the security of the established constitution, the state? The debate over this problem began even before the first trial of Thomas Hardy, when William Godwin published his response to Sir James Eyre’s charge to the Grand Jury. While presenting the case to the Grand Jury, Eyre appealed to Sir Matthew Hale and Sir Michael Foster. In his estimation, these eminent judges concurred that immediate and direct attempts against the king’s life were not the only overt acts of compassing and imagining his death. Hale considered conspiracies to procure invasions and to depose, imprison or overpower the king overt acts of compassing the king’s death, because they all threatened the life of the king.31 In law an attack on the king’s life need not be a direct assassination attempt. Eyre defined the state as one unified body:
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The constitution of our government is so framed, that the imperial crown of the realm is the common centre of the whole; that all traiterous attempts upon any part of it are instantly communicated to that centre, and felt there; and that, as upon every principle of public policy and justice, they are punishable as traiterous attempts against the King’s person and authority.32 Assembling a British Convention fell within the definition of treason in 25 Edw. III, because in challenging the legislature’s legal and constitutional authority the members shook the very foundation of the sovereign’s power and authority. All force aimed against the houses of parliament also targeted the king.33 Although the British Convention appeared ‘to fall within the case of a force meditated against the king,’ Eyre did not try to make the action of convening the Convention treason. Instead, he recommended that the Grand Jury find true bills so that a trial could determine whether or not treason had occurred. Such a question concerning what constituted treason should have been referred to parliament for a decision; 25 Edw. III required this. Eyre neatly avoided sending the question to parliament, and this angered William Godwin. Godwin, political philosopher and the author of Political Justice and Caleb Williams, encouraged a reformation of society along moral lines, ‘doing good to all men equally, as befits their capacities and abilities.’34 With the publication of Burke’s Reflections, the resulting debate, and the extraordinary letting of French blood in 1794, the British government were increasingly suspicious of Godwin and his comrades. During the summer of 1794 the government strove to discredit the conventioning societies, but Godwin’s Cursory Strictures on the Charge Delivered by Lord Chief Justice Eyre alerted the public to the extremism of the Crown’s reaction. According to Mark Philp, ‘Godwin simply pointed out that the government’s definition of the radicals’ treason involved a departure from that rule of law which was itself fundamental to the continuing legitimacy of Parliamentary rule.’ 35 The prosecutors had constructed treason. Godwin intended to ‘strip the illegal and destructive doctrine that now appears to pollute the Grand Jury’ before the trials of ‘unlimited importance’ began. In his view, Eyre had distorted 25 Edw. III. Godwin concluded that the jury had to reason respecting the law, not respecting the state of society, ‘which, having no fixed rules of law, is obliged to consult the dictates of its own discretion.’36 Even if the crime was the most egregious ever conceived, the letter of
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the law, not political context, determined it to be illegal. The law of treason protected the person of the king from attempted assassinations and deposition through war. It did not provide a remedy for transgressions against the larger governmental institutions of the House of Commons, House of Lords, or bureaucracy. Eyre’s suggestion that the case ‘be put into a judicial course of inquiry, that it may receive a solemn adjudication, whether it will or will not amount to High Treason’ aggravated Godwin the most. 37 Godwin interpreted Eyre’s failure to have parliament decide what constituted treason, as required by 25 Edw. III, to mean that Eyre was really saying, ‘let these men be put on trial for their lives, if by trampling upon their peace, throwing away their lives, or sporting with their innocence, we shall obtain a basis upon which to proceed, and a precedent to guide our judgment in future instances.’38 Passionate rhetoric aside, Godwin’s point was profound. First, according to the 1352 treason law, if a question arose concerning what constituted treason, then the judges were to refrain from hearing the case until parliament resolved the problem. Second, if Eyre could not state clearly and specifically that the acts charged constituted treason, then they should not have been brought forward in an indictment for high treason. Godwin emphasized this to his readers: But who will say how long this liberty will be tolerated, if the principles, so alarmingly opened in the charge to the Grand Jury, shall once be established? This is the most important crisis, in the history of English liberty, that the world ever saw. If men can be convicted of High Treason, upon such constructions and implications as are contained in this charge, we may look with conscious superiority upon the republican speculations of France, but we shall certainly have reason to envy the milder tyrannies of Turkey and Ispahan. 39 Godwin warned the government against taking such contemptible actions. His treatise alerted the reading public to the dangers of rallying behind the government’s fear of radicals and heightened an awareness that the decisions in the trials of Hardy, Horne Tooke and the others were barometers of freedom. The arguments presented by the opposing sides in the trials of both Thomas Hardy (LCS) and John Horne Tooke (SCI), centered on the location of sovereign authority. Thomas Hardy (1752–1832), a shoemaker by trade, set up a bootmaker’s shop at No. 9 Piccadilly,
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London, in 1791. While he had no prior experience in reform or radical societies, by January 1792 he and a few friends established the London Corresponding Society to discuss and petition for reforms in the House of Commons. Hardy acted as secretary and treasurer. Members from the LCS who participated in the Edinburgh convention were arrested. In anticipation of another convention to be held in England, the government imprisoned Hardy on 12 May 1794. Unlike Hardy, John Horne Tooke (1736–1812) mingled in a more upper-class social circle. His father was poulterer to Frederick, Prince of Wales, and as a boy he played with the young heir to the throne, George (later George III). Tooke entered the Inner Temple where he displayed remarkable ability, but due to family pressure he became an Anglican priest. He passionately defended John Wilkes in The Petition of an Englishman and in 1769 participated in the Society for the Supporters of the Bill of Rights. But Tooke and Wilkes had a falling out when Tooke began to feel the Society was supporting Wilkes personally instead of pursuing a more general political cause. Tooke was a member of the Society for Constitutional Information, but did not agree with others who believed that political change in Britain required violence. In spite of this, Tooke was also arrested on charges of high treason in the spring of 1794.40 On 2 October a special commission of six common law judges, presided over by Sir James Eyre, the Lord Chief Justice of the Common Pleas, began at the Clerkenwell session-house. When Attorney General John Scott opened Thomas Hardy’s trial on 28 October, he informed the jurors that the trial involved ‘the most serious interests of the State and the general happiness of the People.’41 In a speech lasting an extraordinary eight hours and 50 minutes, Scott insisted that the constitution vested the power of making laws and enforcing them in the king. He emphasized the two-fold function of the king. First, the king with the Privy Council and in co-operation with both houses of parliament had the power to legislate. Second, the king with his judges executed the laws when they were made.42 The king was an integral part of the legislature, not a separate entity; and the treason law protected the king against all attempts made against his person, crown or his dignity. The king was ‘the fountain of Justice, the combining Power of Government,’ and when subversives impaired his power they assaulted the state.43 When John Mitford, the Solicitor General, closed the case for the prosecution he took this position to the extreme and declared the king’s powers to be nominal, not real.
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Hardy’s trial set the tone for all subsequent Jacobin trials. Scott argued that the British Conventioners desired something more than petitioning parliament. They pursued a ‘Republican Democracy’ through universal suffrage, annual parliaments, and the rights of equal citizens. They renounced their obligations of obedience to any statutes made by the existing assembly and resolved only to be governed by their own laws. This horrified Scott. Two sovereign powers could not exist within one state. The natural order required one sovereign power, the king, and any move to create another sovereign authority obviously proved the intention to destroy the monarchy. An attack upon any part of the state was an attack upon the king. The British Convention acted without the consent and in defiance of parliament, and it planned to usurp the lawful sovereign government.44 The organization of the British Convention thus proved an intention to overthrow, depose, and finally murder the king. As Scott reminded the jurors in Hardy’s trial, only a very narrow distance separated the imprisonment of princes and the death of princes. Under the ancient Act of 1352, Hardy’s membership and convention activity was treason. The counsel for the defense, Thomas Erskine, reminded the court that the law must try a prisoner even if one believed the present law insufficient. Obviously reforming societies worked to undermine the Commons, but the members’ activities to reform it did not constitute treason. Erskine spent two hours discussing the law and the precise meaning of ‘compassing.’ In regard to a common person, compassing meant the intent to murder, and this was the same for acts in regard to the king. An act of treason must be defined as ‘precisely to bring about the death of the king.’ He attacked the government’s witnesses and declared that the prosecutors ignored the required direct proof for cases of high treason. Prosecutors failed to demonstrate that Hardy had participated in a society whose direct aim was the compassing and imagining to ‘take away the natural life of the Sovereign.’45 The witnesses did not prove the prosecution’s case, could not prove it, for such a design never existed. The indictment charged Hardy not for the Edinburgh convention but for compassing and imagining the death of the king.46 Erskine ‘discriminated between the death of the King, and an attack upon his power and majesty.’ Thus he did not deny, or even address, the idea that the king’s majestic power was under attack. Rather Erskine emphasized the fact that 25 Edw. III protected the person of the king. It was for the jurors to judge the ‘intention as
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well as the act.’ They were to remember that the formal charge was conspiring and compassing the death of the king. The proof had to be formal and convincing, but the indictment did not specify when a direct attack on the person of the king originated. No overt act had proved such an intention, and thus the intent did not exist.47 People could alter the government, and the people’s will was discovered through consultations, meetings and even conventions.48 Hardy acted in a time-honored manner. The trial lasted an unprecedented nine days, with one day’s rest in the middle. The final battle in the courtroom pitched Vicary Gibbs against Sir John Mitford, the Solicitor General. Gibbs dealt with law and contrasted Hardy’s case to that of William, Lord Russell’s (1683) ‘scheme to raise insurrection.’49 Unlike Russell, Hardy never expressed a desire to use force. Gibbs spoke after the defendant’s witnesses were called. He distilled the arguments. First, the charge was compassing the king’s death. Second, was it proved that the convention was called in order to depose the king and therefore kill him?50 More than Erskine’s passionate argument, he appealed to the jury members with clarity and moderation. Yes, agreed Gibbs, very violent and improper papers and resolutions were produced, but was this treason? Do their actions amount to ‘an act first to depose the king, and thereby to destroy him’? No. The king’s person was safe. The prosecution accused Hardy of sympathizing with the French Revolution. Of course, he did. As Hardy and his colleagues were Englishmen, and because they were freemen, and because the original object was to give to slaves that freedom which we enjoy here. What could be more likely to catch the mind, and to give pleasure to an Englishman, than that a nation, who had been in abject slavery for centuries past, were restored to that freedom to which they were entitled by nature?51 They did not approve of the acts of barbarous enormity that recently occurred in France, but rather the revolution itself generally. The prosecution was wrong to presume Hardy meant to overturn the government and kill the king because he approved of the French Revolution even after the vast bloodshed began. By reminding the jury of the year 1789 when the French Revolution’s first principles expressed what every Englishman held dear, Gibbs hoped to neutralize
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fears of a Terror in England. In so doing he urged the jury members to consider Hardy’s actions removed from the backdrop of the French Revolution. He asked the jury to consider Hardy’s purpose in calling the convention, for in that intention alone could they prove he committed treason or not.52 Gibbs performed well. Sir John Mitford, who spent his career in Chancery, ventured first to lay down the law. Forming a design that put the king’s life in danger was a sufficient overt act of treason. Before determining treason, he believed the ‘state’ had to be defined. First, a state could not exist without a sovereign power. A sovereign power binds the whole, and makes it really a state. Because, without such a power to control as well as direct the actions of all the individuals in the state, they never could act as one body, in giving to the whole body the unity that belongs to one person.53 Accepting this, if any attempt was made to destroy the constitution it was an ‘attempt to destroy the terms of the association on which the state was formed, and, consequently, to subvert the state itself.’54 Mitford’s interpretation went farther than the Attorney General’s in asserting that the foundation of the treason law was the safety of the sovereign power of the whole state. Scott had argued that the king was the vital heart of the government, but he never pleaded that the king’s power was nominal. Because Mitford did, he deserves to be quoted at length. When it is considered what is the nature of the government in this country, there cannot be a doubt upon the subject, for, in truth, the person of the King in name is the state itself, for all the powers of the state, the legislative and executive, are nominally in him; not really, because the King makes no laws, but by the advice and with the assent of the Lords and Commons in Parliament: he can execute no laws but by his judges and other ministers of justice, according to a formed and regular establishment: he really does nothing, and yet nominally does everything. The consequence of that is, that he is to all intents and purposes the sole representative of the people, and in his name every act is done; therefore, when the security of his person was provided for, and the principle established that his person was so interwoven with the state itself, that they could not be sep-
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arated, it necessarily follows, that the security of the constitution of the state was provided for in the protection of his person, and the state could not be attacked without an attack on the person of the King.55 Mitford’s king had no individual active power. His power spread throughout the entire structure of government and because of this diffusion of sovereignty the treason law protected not just the singular and nominal power of the king but the entire state as well. The state was an active body that expressed the powers of the judicial, legislative and executive branches of government. As nominal head of each of these branches, the king’s constitutional powers flowed into each. The king was not the state, but the convenient and traditional head of it. The need to convict forced the prosecution to defend an interpretation of the state that emphasized the comprehensive sovereignty of the legislature and de-emphasized the separate and balancing power of the executive.56 Despite such efforts to wrap the strength of the treason law around the king and parliament, the jury acquitted Hardy. The prosecutors’ attempt to diminish the central place of the monarch in terms of allegiance and treason failed. Subjects, especially in the revolutionary 1790s, elevated the king. Their identities were bound to him and the history he represented. The defense could play on this sense of personal loyalty and national identity, while the prosecutors simply could not. Mitford toned down his argument 12 days later in John Horne Tooke’s trial that began on 17 November. Unlike Hardy who spoke little during his trial, Tooke immediately took center stage. Erskine, his counsel, did not lead until he opened for the defense three days later. Tooke quickly did three things that captured the attention of the court. First, he offered to admit to his own handwriting to save time. Second, he challenged whether his name in a secretary’s list could be proof of attendance. Third, he questioned Daniel Adams, secretary of the SCI for ten years, about finances. The SCI had a total annual subscription of £60. Of this, £50 was used for the regular expenses of maintaining the society. This left £10, according to Tooke, for creating and establishing a new national government. Tooke continually challenged the Crown’s witnesses, but it was the witnesses brought in on his own behalf that impressed the court. Erskine not only opened the defense for Tooke, but upon the prisoner’s request, he also acted as advocate for others waiting to be tried:
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[T]hough not implicated himself in the alleged conspiracy, he has charged me to waste and destroy my strength to prove that no such guilt can be brought home to others. I rejoice in having been made the humble instrument of so much good – my heart was never so much in a cause.57 He then addressed the history of the SCI, beginning with the proposals for reform of parliament by William Pitt and the Duke of Richmond. He recounted the convention at the Guildhall in 1780, the conduct of the Society of Friends of the People (of which Erskine was member), and Edmund Burke’s support of the American colonists. The audience did not feel the full impact of his speech until the very people he mentioned appeared in court to testify on behalf of Tooke. On 20 November a string of distinguished men were called to testify on behalf of the defendant: William Pitt, First Lord of the Treasury, Chancellor of the Exchequer and Prime Minister; the Duke of Richmond; the Earl of Stanhope; Richard Beadon, the Bishop of Rochester; Charles James Fox; Major John Cartwright; the Reverend Christopher Wyvill; Philip Francis; and Richard Sheridan. At one time all these men supported parliamentary reform, and all had greeted the initial phases of the French Revolution with acclaim. Erskine made his point. The jury had to decide if political context made a man a traitor, or if a man’s intention made him a traitor. Vicary Gibbs closed on 21 November with what must have been a stunning speech. He earned accolades later from both Eyre and Scott.58 He spoke for four hours and began with an explanation of ‘convention,’ a synonym for meeting. The members of the reforming society had no pretender to the crown ready to replace the king; they desired parliamentary reform with regard and reverence for the king. While they supported the French Revolution in France, the members refused such a drastic overturning in Britain. As everyone in the courtroom knew, the proof for treason must be manifest. According to Gibbs, ‘The proof in this case is plain, is direct, is manifest: but it is all in favor of the prisoner.’59 There simply could be ‘no ruder shock’ to the constitution of England than by convicting the prisoner on this evidence. When John Scott began his rebuttal, he burst into tears. Recovering, he spoke on the duty of finding the prisoner guilty, of the destruction of the French monarchy, of the hazards the king faced
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in being forced to take a different parliament, and of Eyre’s role in the acquittal of Hardy. He did not convince the jurors. They listened patiently as Eyre, eager to avoid criticism, meticulously summed up the evidence. While the Scottish Convention employed Jacobin terms such as ‘citizen,’ ‘the first year of the British Convention,’ ‘the rights of man,’ it only possessed £4 5s 8d (including two bad shillings) to fund any enterprise. If the French Revolution raised alarming aspects, the financial situation undermined the reality of an actual threat. Two issues remained for the jurors to decide. Was there a plan to establish a national convention that would usurp the powers of government? Was the defendant a party to such a plan? Eyre then said that the London Corresponding Society ‘had become a portentous political monster, raising itself like similar societies in France; but the Society for Constitutional Information seemed to be a mere club.’ The jury returned in less than ten minutes with a not-guilty verdict. The crowds gathered outside celebrated the great victory and hailed Erskine and Gibbs as their heroes. Bonney, Joyce, Kidd and Holcroft came before the bar two weeks later, but the Attorney General chose not to proceed.60 Eyre directed the jury to deliver a verdict of not guilty. They did and the four prisoners left the courtroom free men. The trial against John Thelwall did occur, and a jury acquitted him. On 15 December, Scott had no evidence to offer in the case against Richter and Baxter. Judge Macdonald told the jury to return a not-guilty verdict, and they did. So ended the prosecution of the nine men indicted together for high treason. Other men caught in the government’s anti-republican snare also escaped punishment for high treason. Terms of bail for John Lovett, Ashley Hayward, John Hiller, John Philip Francklow and Thomas Spence were set at £100 each.61 Henry Yorke, alias Redhead, was committed to York Castle for high treason, but ultimately he was tried for conspiracies and misdemeanors rather than high treason. This reduced offense secured the conviction. The court ordered Yorke to pay a fine of £200, spend two years in jail, and guarantee good behavior for seven years.62 Except for William Jackson who was tried in Dublin, found guilty of treason, and committed suicide on the day the court was to give judgment, the government did not bring to trial any other reform leaders for high treason until after the Gagging Acts were passed in 1795. At that point they did try Robert Thomas Crossfield for high treason in connection with the Pop-Gun Plot of 1794, but a jury found him not guilty. The court
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did not try the other three who had been arrested earlier, Paul Thomas Le Maitre, John Smith and George Higgins.63 The traditional and monarchical understanding of treason law prevailed. The relationship between sovereign authority, king and parliament remained unsettled. Neither side denied the 1688 Revolution settlement that established the sovereignty of king-inparliament. Within the same discourse, however, the two sides gave different weight to the powers of the Crown, Lords and Commons. The Crown’s acknowledgment that the king’s power was diffused, even nominal, did not contradict the actions of the SCI and LCS who let the king alone because the ‘real Power’ in the government resided elsewhere. In fact, the reformers and patricians in power agreed that while the king was the object of allegiance and a necessary component in creating national identity, the houses of parliament governed the kingdom. The counsel, however, could appeal to a royalist interpretation of the state to protect their clients from a charge of treason. As opposed to the Jacobite trials where the crime directly corresponded with the 1352 law of treason, the Jacobin trials confirmed a different understanding of treasonous offenses against the sovereignty, not of the king alone, but the king-in-parliament. In order to win, the defense argued for a strict reading of the medieval law of treason and portrayed a state divided between an executive power and a parliamentary power. Responding to the demands of the treason law, prosecutors de-emphasized the personal bonds between king and subject. Instead they emphasized that subjects owed loyalty to the sovereign legislative authority that existed in the unity of a king-in-parliament. Circumstances forced the crown prosecutors to conceive of the king’s power as inseparable from parliamentary power. The jurors did not respond well to the notion that acts committed against the houses of parliament were treasonous acts against the king. They understood themselves in relation to the king and believed that in protecting his person, the treason law protected Britain.
Authority secured in law: the Treason and Sedition Acts Government supporters used the courtroom in their attempts to dismantle the reform societies in 1794, but the following year they went to parliament. They introduced legislation to denounce an assassination attempt against the king on 29 October and to suppress the massive public meetings of the London Corresponding Society.
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Their efforts resulted in the ‘Gagging Acts.’ First, William Grenville introduced A Bill for the safety and preservation of his majesty’s person and government against treasonable and seditious practices and attempts. This silenced the press and changed the meaning of treason.64 Unlike the 1696 Treason Act which concerned itself with guaranteeing equitable procedures for the accused, this proposal essentially expanded the definition of sovereign power. Pitt then submitted A Bill for the more effectually preventing seditious meetings and assemblies. It attacked the constitutional right to consult, determine and demand redress for grievances. Both Bills passed and became law in December 1795 as 36 Geo. III, c. 7 and 36 Geo. III, c. 8 respectively. The person of the king remained central to the British understanding of constitutional monarchy, but parliament recognized that its legislative powers needed protection from traitorous activity. The treason trials revealed to the conservative elite that a shift in the power structure was taking place. They needed to act in order to protect their places in parliament. Grenville achieved what the courts failed to do by extending ‘the crime of treason to cover not just overt acts which threatened the monarch’s life, but any incitement to his hatred or contempt.’65 Such an open and vague provision placed enormous power in the ministry’s hands, for the Act also stipulated that only members of the Privy Council could approve a charge of treason and authorize a treason trial. On 29 October as the royal carriage turned into Parliament Square a ball shot from an air gun broke the glass of the coach.66 Mr John Walford, haberdasher and eyewitness to the crime, reported that there had been a man running by the side of the house crying ‘No war! Down with George!’67 The king issued proclamations on 31 October and 4 November denouncing the ‘highly criminal outrages’ and urged the parliament to ‘use the utmost diligence to discourage, prevent, and suppress all seditious and unlawful assemblies.’68 Lord Grenville used those proclamations as the foundation for the Bill he submitted to the House of Lords on 6 November. He declared that the meetings of the LCS ‘inflamed the passions of the multitude industriously collected to hear them.’69 Affirming the Crown’s interpretation, Grenville connected the activities of the LCS to the assassination attempt. Before the attack on the king, no one had officially asserted that the LCS meetings were treasonable. Grenville believed the incident had torn the mask away and revealed the ‘treasonable speeches and writings’ of the LCS. Grenville assured
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his peers that he did not innovate but rather rooted his Bill in acts from the reign of Queen Elizabeth and Charles II.70 The Earl of Lauderdale asserted that there was nothing in the latest attempt on the king’s life to warrant changes to the treason law. The Commons heard similar protests. The ministry had to prove that participants in LCS meetings discussed king-killing. The LCS, however, consistently expressed devoted loyalty to King George, and thus they certainly were not committing treason according to the medieval law. Mr Howys countered these attacks against Grenville and Pitt’s Bills by claiming that the notoriety of the LCS’s goal to overturn the constitution proved the treason. Moreover, seemingly paraphrasing Attorney General Scott’s argument from Hardy’s trial, two sovereign powers could not exist in one state. If the unconstitutional parliaments survived, then the British parliament of king, Lords and Commons would be destroyed.71 Although Lauderdale and Bedford were determinedly vocal in the House of Lords, they voiced the view of a select few. Most peers agreed with the Earl of Radnor, that the 1794 treason trials directly violated 25 Edw. III because the prosecution attempted to determine what was treason in a court of law, rather than in the houses of parliament. The acquittals were right and just, because construction of treason was wrong and a threat to the liberty of all subjects. Saying this, however, the Earl of Radnor then expressed his hope that the law of treason be amended. The objectionable behavior of Tooke and Hardy gravely threatened the government. The government now required a positive law to make such acts as theirs treasonous.72 Seventy-nine members approved of meeting in committee. Eight did not. The Bill was read a second time. The following day, 11 November, the house met in committee. The debate continued, and the Duke of Leeds proposed an interesting amendment. He moved that the words in the second clause ‘established government, or constitution,’ should be replaced by ‘established constitution, consisting of King, Lords, and Commons.’73 This, he believed, would clarify what the law protected and avoid problems of interpretation when the courts applied the law. The Lord Chancellor, however, cautioned against this, for he thought it would create the confusion the Duke of Leeds aimed to avoid. Atrocious libels could be written without punishment. For instance, a person might write ‘The constitution of England consists of King, Lords, and Commons; but I do not like an hereditary monarchy; it is an absurdity. I think an hereditary House of Lords still worse. . . . I
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would have an elective monarchy.’74 Such language was criminal and ought to be punished. Pitt agreed and warned that distinctly listing the separate branches of the government could provide for a devious man to express his admiration for the constitution but destroy the very foundation of it in the remainder of his speech and actions.75 Pitt’s opinion reflected that of the prosecutors in the recent treason trials. The ministry could not define the king as an independent executive residing separately and distinctly from the two houses of parliament. Instead, the ministry had to confirm that the king’s position as executive was fixed in a united and inseparable king-in-parliament. To do otherwise and to assert that the king was not subsumed in parliament would have undermined the prosecutors’ interpretations of sovereignty in the 1794 treason trials. While the government worried that a sloppily worded statute might free criminals, the arbitrary implications of the proposed law against innocent people agitated Lord Thurlow. He explained his position in the following scenario. If he were to complain that the 20 acres of land below Old Sarum Hill sent two representatives to the Commons, then was he not in danger of being clapped in jail for tending ‘to create a dislike of the established constitution’?76 This was neither treason nor sedition, but could be construed as such if the proposed Acts passed into law. The present laws were adequate. Thurlow’s argument astonished Pitt. The LCS published pamphlets and articles certain to undermine the constitution, monarchy and aristocracy. While the aristocracy and monarchy offered no threat to the constitution, the subversive democratic republican sentiments that yearned to dissolve the entire social structure did. The LCS instructed people to see royalty as usurping their rights, and it laboured to persuade them that they had no political existence, that they were slaves, and that they ought to assert their importance, and menaced the same evils which this country had once experienced, and of which a neighbouring nation afforded a distinct example. Were such enormities too rigorously punished by the penalties of this bill?77 The peers rejected the Duke of Leeds’ amendment, and the words remained ‘constitution, and government.’ Meanwhile in the House of Commons, Sir Francis Basset explained the difference between the Jacobite threat and the Jacobin threat.
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While the first had posed some danger, it was nothing compared to the current threat of republican democracy. If the Jacobites had been victorious, the only change would have been a different family sitting on the throne. According to Basset, the structure and integrity of the constitution would have remained intact.78 If the republican agenda of the LCS and other societies succeeded, then the property and security of every individual would be lost. 79 Here again a champion of the traditional rule minimized the personal sovereign power of the executive king in order to emphasize, even elevate, the sovereignty of an inseparable king-in-parliament, or the legislative branch of government. The majority in the house who favored the Bill feared the resulting tumult and overthrow of society. As discussion continued the Bishop of Rochester’s words caused a furor among the opposition in the House of Lords and in the press. He acknowledged that if someone went through the laws of the country and in general concluded that the government was corrupt, such a person would be liable to the penalties in this Bill. Intellectuals who pursued philosophical and scientific theories could publish without punishment. What he demanded be repressed were the meetings among the incompetent and ignorant populace, ‘in fact, he did not know what the mass of the people in any country had to do with the laws but to obey them.’80 The people could not be trusted and were meant to obey the decisions of the government. Outside parliament the press reiterated this warning against the threat of a more inclusive parliament. One essay stressed the criminality of those acquitted in 1794 and ‘the necessity of an alteration of the Statute of Edward III, as applicable to Republican Treasons.’81 Only those of no property and no stake in the state’s welfare clamored for reform. The ‘people’ did not need political reform. The franchise would not improve their lot. ‘Surely the idle, the dissipated, and the desperate profligates of the State, can have no real grievances, which industry, and morality, cannot redress?’82 The conspiracy against the constitution continued to threaten the security of all people. The disaffected men of no property did not represent the nation, and that they claimed to do so was a travesty. The author of Treason Triumphant over Law and Constitution! also defined ‘the people’ thus: The People are not composed of the dregs only of the state. It is all the mixed ranks of the social order, which constitutes that
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hallowed appellation. When these, or a majority of these, are blended together, in a harmonious union of sentiment, the opinion of the People.83 If a faction, or ‘mobocracy’ arose, them only anarchy would remain. This extreme rhetoric illustrated the passions stirred in defense of traditional society, and the author’s support for the idea that unity of opinion guaranteed stability. Attempts to alter positions of real power, as well as to undermine the king’s authority, led to the defensive measure of changing the law of treason. ‘Although the act of Edward III by the doctrine in the late trials, will not in future reach Republican Treasons, . . . there is a provision’ in that law which allowed parliament to make a new statute.84 While such notions received the support of the majority in parliament, the assertion that the people had nothing to do but obey offended several peers and a vast number of the political public. Inside the House of Lords on 13 November, when the peers read and passed the Bill for the third time, Lauderdale asserted that people had much more to do with the laws than quietly obey them. All men had a right to discuss the propriety and justice of the laws. All men had a right to complain of them and ask parliament to repeal them.85 The Earl of Abingdon asked Rochester ‘whether vox populi was not vox Dei?’ Abingdon believed this maxim true. ‘If the bill passed, resistance to it might be deemed rebellion, but if the compact settled by the Bill of Rights was broken, the government might happen to be in a state of rebellion against the people.’86 Abingdon warned that the arguments he heard appeared ‘to be calculated to enforce the exploded principle of passive obedience and non-resistance, and that all who maintained such doctrine, whether by bishops or lay peers, were damned beyond all possibility of redemption, by revolutionary principles.’87 Outside parliament, the press provided several articles featuring a denunciation of the Treason and Sedition Bills. While some lamented the loss of liberty, they still believed Britons should submit, for the Bills were a temporary measure during the war against France and republicanism.88 Members of the SCI and LCS, however, abhorred the Bills and made it known. On 17 November opponents convened at St Andrew’s Hall, Norwich, to create a petition against the Bills that gathered 5,284 signatures.89 Among the grievances collected, Mr Wilks, a farmer, articulated several reasons for protesting against the Bills. He explained that England already had
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laws for treason and sedition and these Bills indirectly prohibited all meetings for public purposes, all liberty of speech and all liberty of the press. The Bills conspired ‘to perpetuate abuses of government.’90 John Horne Tooke added that had these Bills been in force a year earlier, then courts could have condemned nine innocent men. Robert Harvey warned the audience that the Bills should be supported because of the present crisis, but the majority agreed with Mr Wilks who insisted that the Bills ‘made the men in parliament a privileged order.’ Charles James Fox presented the petition to the Commons on 18 November. Fox received and read to the Commons a similar petition from John Cartwright. Again, his statement expressed no desire to attack the king. The conservative and royalist arguments worked to safeguard reformers from 25 Edw. III. While Cartwright wished that the culprit who attacked the king’s person would see justice and, if guilty, hang for high treason, it was to his ‘deepest horror’ that he witnessed attempts in parliament to change the law of treason. Any notion of living securely under a free government dissolved upon the passing of the two Bills and created an intense dislike of the government.91 He too recognized a threat of a growing ‘privileged order’ within government and believed the Commons was not an ‘adequate Representative of the People of England.’92 The extension of private parliamentary privilege further removed members from the needs of the general populace. While Cartwright saw monarchy and aristocracy at work, he regretted the loss of a true democracy in the balanced equation. Into the government seeped a corrupting power, and with the gradual decay of popular representation and the ascendancy of the peers, the king himself would not be safe.93 The corrupt members of the Commons betrayed the state, for they destroyed the essence of the Commons, which was to be representatives of the people. The Treason and Sedition Bills doomed Britons to silence when confronted with ‘gross injustice, or wanton tyranny,’94 and the Bills would ‘alienate the minds of the people from the laws, the Government and Constitution of their country.’95 Four days later, when Fox presented Cartwright’s views to parliament, he announced that Pitt was an enemy of his country and of human kind. Pitt and his corrupt ministers threatened both the monarchy and the democracy of Britain. Another, more moderate, protest came from the pen of William Godwin. In Considerations on Lord Grenville’s and Mr. Pitt’s Bills, Godwin attacked both Bills as an unnecessary and illegal curb on freedom
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while urging ‘Liberty without Licentiousness.’96 He concluded with encouragement for the reform movement: ‘These bills are an unwilling homage, that the too eager advocates of authority pay to the rising genius of freedom.’97 Godwin’s stance failed to prevent the passing of the Acts, for ‘the politics of moderation were everywhere in retreat.’98 Despite such protests, the Gagging Acts passed.99
Irish republican treason Not until after the repression of 1795 did the government’s fear of an armed and subversive underground movement in Ireland become justified.100 The United Irishmen went underground in 1794 and regrouped as a secret society in 1795. In the next two years it became a military organization that corresponded with its sister societies in England and Scotland, the United Englishmen and the United Britons. The government feared this pan-British society. Colonel Edward Marcus Despard, an Irishman in both the United Englishmen and the United Irishmen became committed to Irish independence in 1796 and was arrested in 1798 on suspicion of creating a secret military organization. He remained in Cold Bath Fields until habeas corpus returned in 1801.101 During Despard’s imprisonment, a grand jury charged another Irish contingent in England led by Arthur O’Connor and James O’Coigly for high treason, and prosecutors tried them immediately in May 1798. The three trials discussed here which were related to events in Ireland reveal adjustments to the interpretation of the treason law and what acts of treason meant. The justices at James O’Coigly’s trial (1798) expressed sorrow that he attacked the prevailing social and political establishment in an attempt to improve the personal fortunes of certain individuals. These judges deplored the fact that high treason no longer stemmed, if it ever really had, from moral convictions but rather from the desire to improve an individual’s societal position. In the Dublin trials of the five Irish rebels (1798), the judge defined treason as a breach of duty to the political and constitutional system of the realm. Such a shift in understanding sovereign obedience received open recognition in 1803, when the prosecutors at Major Edward Despard’s trial believed high treason could be an offense either against the ‘state’ or against the king, its representative. Despard’s trial was the last sensational treason trial until the post-war years of 1816–20. Each of these cases concerned the possibility of the complete overthrow of the social
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and political establishment, and the prosecutors concluded that allegiance and treason held meaning beyond the bond between subject and king. Wolfe Tone’s 1796 attempt to lead the United Irishmen in an invasion of Ireland failed. The repercussions were harsh. General Lake disarmed Ulster from 1796 to 1798 by burning houses, torturing prisoners and resorting to capital punishment.102 In England during spring 1798, spies identified United Irishmen corresponding with France; for indeed, the United Irishmen tried to organize a French expedition. On 28 February 1798, officers arrested James O’Coigly (alias James Quigley and James John Fivey), Arthur O’Connor, John Binns, John Allen and Jeremiah Leary for high treason. Their crime was conspiring to raise a rebellion and war against the king and encouraging the enemies of the king to invade. A letter found in the pocket of O’Coigly’s great coat and addressed to the Executive Directory of France became the proof of treason. Of the five men, a jury found only O’Coigly guilty. He suffered execution on 7 June.103 The Crown’s lawyers knew O’Coigly as an Irish priest born at Killmore in the County of Armagh. Louth County, however, had nominated him as their delegate to the meetings of the United Irishmen in late 1796. By the autumn of the next year, he had arrived in London ‘and probably suggested ye plan of a London society of United Irishmen – and afterwards of External Societies to be connected with that to be formed here, for purposes similar to those of the united Irishmen in Ireland.’104 He then moved on to the continent to meet with the Executive Directory of France. After a quick trip to Ireland with Benjamin Binns, he returned to London via Manchester. Binns, an Irishman and an active member of the LCS in London, acted as delegate for them to Birmingham in 1796. For his efforts to incite resistance against the Treason and Sedition Acts, he was arrested, tried, but found not guilty, for seditious words in the summer of 1797. Arthur O’Leary was O’Connor’s servant, and John Allen was an acquaintance of the United Irishmen’s leader Lord Edward Fitzgerald. Allen escaped a brush with the law in Ireland, and Fitzgerald had sent him to be with O’Connor in London.105 O’Connor was a member of the Irish House of Commons, but he claimed to have left Dublin to avoid prosecution for publishing the Press, a seditious and treasonable newspaper according to the Crown’s lawyers. In truth, O’Connor headed to France to effect a combined invasion and rebellion in Ireland.
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These Irishmen, in connection with Robert Thomas Crossfield, who had been acquitted for high treason for his role in the supposed Pop-Gun Plot, entered into a project with other members of the LCS to go to France ‘in order to give information & encouragement to the Enemy’ and to read an address from the Secret Committee of England.106 This address lamented the rise of tyranny in England, asked for French assistance in beating it down, and promised the rising of all oppressed Englishmen. The English ‘have already fraternized with the Irish and Scots and a delegate from each was sitting with the Committee,’ and are ‘impatient to see the Hero of Italy . . .’ as ‘crowned with Laurel the Invincible army of France will return to its native Country there long to enjoy the well earnt praise of a grateful world whose freedom they have purchased with their Blood.’107 Napoleon would save the republican principles of the revolution and destroy the vestiges of tyranny, or so the French revolutionaries thought, and consequently so thought their British sympathizers too. Crossfield wrote the address, but left it in O’Coigly’s care to deliver, and he and his associates traveled to Margate to obtain passage to France. The government learned of their plot. Upon arrest O’Connor’s ‘gang’ denied knowing one another. Once in London, they denied all knowledge of an invasion plan when interrogated by the Duke of Portland and other Cabinet ministers, and on 6 March, Portland committed O’Coigly, O’Connor, Binns and Allen to the Tower and Leary to the New Prison in Clerkenwell for high treason. Before their arrest, reports arriving in London had described a growing membership in the United Englishmen. Informers believed the organization had several divisions and a printed constitution ‘formed on the Plan of the United Irishmen in Ireland.’ In reality, the United Englishmen were amorphous, a loose federation of the LCS, isolated pockets of disaffection, fringes of workers’ combinations and the Irish workforce in England.108 But the government needed a coordinated plot and could find one if it looked outside England to the connection between Ireland and France. After the arrests, Robert Gray, an informer and manufacturer at Manchester, confirmed that in the month of June 1797 O’Coigly had been in Manchester and had contacted Gray. After performing their secret signals of one man passing one hand over the left eye and the other responding by passing the other hand over the right eye, O’Coigly told Gray that he was a delegate from the Committee of
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Ireland to France. This convenient testimony also confirmed that English societies funded O’Coigly’s activities. Mr Justice Francis Buller at the Grand Jury hearing assured the jurors that Britain was indeed blessed to have been a stranger to treason for so many years, but domestic peace and regular allegiance had fallen under the demolishing impact of the French Revolution. 109 He denounced the French Revolution and affirmed an adherence to a traditional, deferential social and political order. The masses must not be involved in government. The actual exercise of power must, from its nature, be vested in a few; it may shift, where there is no Monarchy, from the hands of one contending party to those of another, but the mass of the people must remain as they are, employed at the plough, the anvil, the loom, or in some occupation which will afford a maintenance and support.110 No such remarks had been made in the 1794 trials, and, in fact, the Bishop of Rochester had been admonished for expressing similar ideas in the House of Lords during the passing of the 1795 Treason and Sedition Acts. The unexpected radicalization of the French Revolution in 1794 combined with rebellious activity in Ireland, however, created a terrifying monster, democracy. Buller warned against this beast in 1798. Men of low fortune, Buller proceeded, took advantage of troubled times [to] obtain in a day what no length of labour could have procured without the assistance of change; when they may rise to sudden elevation by the downfall of others; and when from the general misery of their country, they may possibly advance their own private interest.111 Buller interpreted the revolution as a turn of the wheel, when the lower orders desired to partake in government and to lead society. Treason transpired when people acted to reverse their personal fortune, not when people acted from a passionate adherence to a moral conviction. Here was a new treason: mass risings for the ascendancy and empowerment of the individual. This was very different from employing the law of treason against aristocratic reformers of the 1680s, or the leaders of the Jacobites. At least in those cases, claimed Buller, the accused prisoners operated from understandable moral or
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religious convictions. The Grand Jury returned a true bill, and the prisoners came before the bar on 30 April. Each pleaded not guilty. The government began the trials with O’Coigly, who defended himself against three species of treason. The treason law of 1352 supported the first two species, compassing the king’s death and adhering to the king’s enemies. The recent 1795 Treason Act supported the third. The first overt act proving these charges was conspiring to stir up rebellion and invasion of the realm. The next five overt acts related to the letter to the Executive Directory. According to Mr Justice Buller in his summation, the letter was traitorous. ‘The result of that paper is to induce the French Directory under an idea that the people of this Country would rise in a mass to their assistance to invade this Kingdom holding out every inducement to them to come and assuring them that if they did come, they must succeed.’112 Buller assured the jury that this overt act of intending to carry a treasonable letter to France and employ it there proved treason on all three counts, but the third charge in the indictment was especially ruinous.113 The words in the third charge in the indictment repeated the Treason Act itself: ‘that the Prisoner compassed and imagined to move and stir the persons exercising the powers of Government in France with force to invade this Realm.’114 One question remained. Were the other men designing to carry this paper to France for the purpose of inducing the French to make an invasion? Buller used the opportunity of his closing statement to address the audience on the meaning of liberty. He referred to a ‘very celebrated French Writer,’ presumably Montesquieu, who did not define liberty as the right to bear arms and use violence, but rather the ‘right of doing whatever the laws permit.’ Democracies, unlike monarchies, failed to protect the individual from those who believe they can do what they will. France would not prove the savior of supposed oppression, but rather bring into England its whole system, a ‘compound of oppression of tyranny and of venal corruption.’ 115 Moreover, religion did not motivate France and its sympathizers in Britain, and ‘the modern way of corrupting the human mind has been to eradicate every idea of Religion, and to deprive every virtuous mind of the comfort which it might derive from the assurance of a future state.’116 Buller refused to speculate further about this loss of religion, but his concern for its demise would certainly support his warning against the loss of deference. The sense of his argument suggested that O’Coigly’s treason was
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much more threatening and subversive than simply an attack on the king’s life. This treason attacked the traditional, moral, social and political order. The jury returned after 25 minutes with a guilty verdict. O’Coigly was hanged at Penningdon Heath, on 7 June, and afterwards guards removed the head and immediately buried the body beneath the gallows.117 John Binns had only sought to obtain a boat for the voyage to France, and the court decided that John Allen and Jeremiah Leary had no notion of their master’s designs. The judge discharged all three, but detained Arthur O’Connor on another charge of high treason by virtue of a warrant from the Duke of Portland. O’Connor’s acquittal frustrated the government, for they had wanted most to convict him. At his trial over one hundred witnesses packed into the courthouse at Maidstone. The presence of the frontline of the opposition, Fox, Sheridan and Grey and the eminent defense counsel, Thomas Erskine, intimidated the judge.118 At the trial O’Connor denied any wrongdoing, but he did so in a manner which shifted all the blame to O’Coigly. Portland was not pleased with O’Connor’s acquittal and under another charge for high treason, the Irishman could at least be detained in prison.119 Thus it happened that O’Connor could only assist the Irish cause from a prison cell. At the same time as O’Coigly’s trial ended, the rebellion erupted in Ireland. A group of United Irishmen was arrested at Oliver Bond’s house on 12 March 1798, but two leaders of the United Irishmen’s executive committee, Lord Edward Fitzgerald and William Lawless, evaded arrest. The arrests of the others, however, were a ‘cruel blow,’ because the organization of the United Irishmen in Leinster and, in particular, Dublin, offered hope for success.120 Samuel Neilson, Belfast editor of the Northern Star, and John and Henry Sheares replaced the executive leadership. The Sheares brothers and Neilson planned for a rising, even without French assistance, on 23 May. The United Irishmen in the counties surrounding Dublin knew of this plan and readied themselves. Unfortunately for them, on the very day of the planned rising, soldiers arrested all leaders and mortally wounded Fitzgerald. Upon the arrests of Fitzgerald, Neilson, and the brothers Sheares, the government imposed military rule. Massacres of prisoners and civilians occurred in Dunlavin and Carnew against which the United Irishmen demanded retribution. Wexford protesters rose in rebellion.121 The British forces were stronger, however, and without having to fend off a powerful French invasion fleet the royal troops suppressed the rebellion.122
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British commanders talked of executing the more than seventy men held in Dublin Castle. The new Commander-in-Chief, Charles Cornwallis, however, demanded trials according to the law. The written declaration found in John Sheares’ possession confirmed a rebellion and secret plot had indeed existed. Only five men were tried for treason: Oliver Bond, his secretary William McCann, William Byrne, and John and Henry Sheares. Although arrested last, the Sheares were tried first. Their defense lawyers, John Philpot Curran and William Plunket, tried to discredit the character of the prosecution’s star witness, Captain Armstrong. They failed to shake his story that the Sheares had encouraged him to press his Catholic soldiers to join the rebellion. This testimony, complemented by Sheares’ manifesto, was enough for the jury to find both John and Henry guilty of high treason and for the judge to sentence them to death.123 Although not trials of famous people, the treason trials of John and Henry Sheares revealed a new conception of allegiance and authority. The Chief Justice, Lord Carleton, expressed the view that while the law still defined treason as a breach of allegiance, it did not have to mean an offense against one’s personal duty to the sovereign. Treason was also a breach of duty against the constitutional system of the realm. According to Carleton, compassing and imagining the death of the sovereign included forming conspiracies to usurp by force and in defiance of the authority of parliament, the government of the kingdom, to destroy its constitution and in so doing to destroy the monarchy . . . the moment the power of the government is usurped, the king is in effect deposed.124 Given that the king remained in London at the time of the rising, a rebellion in Ireland targeted at parliamentary reform and separation from Great Britain hardly proved an attempt on his life. For practical reasons, then, the court emphasized the notion that acts of treason did not necessarily need to focus on the person of the king. While Armstrong’s testimony largely concerned John and Henry Sheares, the evidence of Thomas Reynolds condemned McCann, Byrnes and Bond. Reynolds had been intimately involved in the schemes of the United Irishmen, indeed he was Wolfe Tone’s brotherin-law and Fitzgerald’s neighbor. In February 1798, however, he turned on the society’s plans and informed against his comrades. At Bond’s
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trial on 5 July 1798 in Dublin Mr Justice Chamberlain drew upon the 1352 and 1795 Treason Acts and declared that the Irish Parliament had never adopted the regulations of 7 Wm. 3 that required two witnesses. Moreover, to his understanding the plain consistent narrative of a single witness, confirmed by strong circumstances proved by others of unimpeached credit, is more satisfactory than the evidence of two witnesses to distinct acts of the same species of treason, each of them unacquainted with the facts sworn to by the other, which would satisfy the words of the English Act of Parliament . . .125 Chamberlain extricated his case from the wording of the 1795 Treason Act that confirmed the two witnesses rule.126 The jury found Bond guilty on the testimony of one witness, and Chamberlain sentenced him to death.127 Bond was not, however, executed. Led by Samuel Neilson and Arthur O’Connor, the remaining prisoners asked Cornwallis for pardons in exchange for information about the secret organization in Ireland. He accepted this offer much to the disappointment of some of the King’s soldiers who wanted mass executions. Bond’s death sentence was repealed. Although he did not hang, Bond died of apoplexy while still in prison on 6 September 1798. The outbreak of the rebellion did not end in Irish independence – far from it. In fact, the event only served to move the ‘union question into the realm of practical politics.’128 William Pitt led the way for the Irish Union, but resigned from the government after the adamant refusal of King George III to allow Catholic concessions. By 1801 a new United Kingdom of Great Britain and Ireland existed, but the secret societies limped on until 1803. Except for John Hampden’s attempt to shoot the king at the Drury Lane Theatre (1800) and his subsequent treason trial in which a jury found him not guilty owing to insanity, plans for traitorous acts by the discontented as well as government prosecutions for treason subsided until 1801 when the war temporarily ended and the right to habeas corpus returned. Between the Irish Rebellion and the execution of Despard and his followers in 1803, the LCS became illegal, Ireland became part of the United Kingdom in order to protect England from a French invasion, and Napoleon declared himself First Consul for life.129 Any independence Ireland claimed from Great Britain ended, and, in the face of this loss the British Jacobins clung
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to the hope that the principles of the French Revolution still lived in their hero, Bonaparte. After the conviction for high treason of Despard et al., after Napoleon’s self-elevation to Emperor the following year, and after the renewal of war against France, however, even the most devoted Jacobin could find little inspiration for freedom, equality and liberty in France. A final effort to unite Englishmen behind parliamentary reform, Despard’s conspiracy offered a distraction as others attempted to free Ireland from the binding ties of London.130 Despard’s trial demonstrated the Crown’s understanding that the death of the king was less worrisome than the threat of a complete overthrow of the parliamentary and socially exclusive system of government. According to the government, the radicals sought anarchy to fulfill impossible, wild and personal fantasies of social ascendancy and political power. Despard’s early military career gave no indication he aspired to subversive activities. Born in 1750 in Queen’s County, Ireland, Despard joined the army as an ensign at the age of 16 and advanced to the rank of captain 13 years later. In 1779, the newly made captain ‘exerted himself on behalf of the country’ on the unfortunate expedition against the fort of St Juan on the Spanish mainland. He then crossed the Atlantic to Jamaica and the Mosquito Coast, and in 1783 rose to the level of Colonel of Provincials. Accounts tell of some misinformation having been passed to the Secretary of State Grenville, who suspended Despard from his office. Despard returned to England in 1790 and what precisely motivated him to join in the forces of change remains unknown. We do know that in April 1798 he was arrested for raising an underground army and even being ready to lead a London uprising.131 On Tuesday, 16 November 1802, John May, a constable for Surrey, went to the Oakley Arms, Oakley Street, Lambeth, and arrested Despard and 30 others, many of them Irish. The government had learned that men met and conspired to seize the person of the king and in case of resistance to assassinate him. Threats of attacks against the Tower and the Bank of England and news of the king’s soldiers swearing oaths to the cause of rebellion prompted the government to take action. ‘It became necessary to keep a very strict and vigilant watch upon the leaders in these plans [and] the places where therre[sic] meetings were held.’ 132 Upon the arrest, May witnessed Thomas Philips slip a piece of paper into his pocket. The paper contained an unlawful oath declaring for the ‘independence of Great Britain and Ireland, an equalization of political and religious
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rights, and ample provision for the family of the Heroes who shall fall in the contest.’ The oath swore that I A.B. do voluntarily declare that I will endeavour to the utmost of my person to obtain the objects of this union namely to recover those rights which a supreme being in his infinite Bounty as given to all men, that neither hopes fears rewards nor punishments shall ever induce me to give any information directly or indirectly concerning the Business or of any member of this or any similar society so help me God.133 A constable quickly committed Despard to Newgate on 18 November, and the rest entered their cells on 1 December.134 A total of 15 men, or half of those arrested, were committed on the charge of high treason.135 The government correctly identified subversive stirrings, but incorrectly assumed Colonel Despard had led a developed conspiracy on the brink of rebellion.136 The popular unrest generated by food shortages, the Combination Acts and the Cotton Arbitration Act in England from 1799 to 1802 created an ideal climate for a renewal of underground activity. It also provided the government with a reason to pass the Habeas Corpus Suspension Act and an Indemnity Bill, which allowed arrests without citing the nature and source of information.137 When the ‘old’ leaders of the United Irishmen were released from prison in March 1801 they re-entered a society filled with a desperate populace clearly sympathetic to ideas of reform and change. Once released from prison, however, many of the former leaders shied from involvement in any covert activity. In fact, Despard returned to his family in the Irish countryside and avoided political agitation until pressed to return to London and guide the United Irishmen and United Englishmen. He had no intention to incite them to action.138 Professor Marianne Elliott has argued that the spirit of moderation that Despard demonstrated contrasted sharply with the portrayal of his design for a ‘desperate and bloody rebellion’ established at his trial. 139 In 1802, Despard desired constitutional reform not a radical overthrow. Public sympathy ran high for Despard after his arrest and at his execution on 21 February 1803. During Despard’s first imprisonment from 1798 to 1801, Sir Francis Burdett had used him as an example in a campaign against the treatment of state prisoners which had ‘successfully created an image of Despard as
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the victim of official tyranny.’140 His conviction upon weak evidence provided by suspect characters and his execution in defiance of the jury’s recommendation for mercy caused Despard’s trial to be ‘properly regarded as another episode in the saga of governmental persecution of an honorable man.’141 The debates over the proper definition of treason at his trial illustrated the government’s position on allegiance and authority that confirmed the prosecutors’ arguments in the 1794 treason trials.142 Lord Chief Justice Ellenborough presented the charge to the Grand Jury on 20 January 1803. Rather than basing it on the 1352 Treason Act, Ellenborough informed the jury that Despard’s behavior violated the act of 1795 ‘for the safety and preservation of His Majesty’s Person and government, against treasonable and seditious practices and attempts’ and against two Acts made in 1797. The first prevented attempts to seduce soldiers away from their proper duty and allegiance. The second banned unlawful oaths.143 Offenses described in the recent Acts are peculiarly malignant in their effects, having a direct tendency to disturb the order of any society, and to subvert all Government; the Legislature have, therefore, at all times ranked them among the highest class of crimes. By this description I would be understood to mean the crime of High Treason, and every thing connected with the security of his Majesty’s person. 144 To rid lawyers of any doubts 36 Geo. III enacted ‘that whoever proposes, invents, or devises any bodily harm to his Majesty, shall be deemed a traitor, and suffer all the penalties and forfeitures of High Treason.’145 Compassing the imprisonment of the king, therefore, was pronounced a substantive act of treason. Yet, as he was not aware ‘that any actual attempt upon his Majesty’s life forms a part of the charges upon which you are to deliberate,’ he need not mention that part of the law. Offenses against the Acts of 1797 were felonies punishable by transportation. The jury returned a true bill for high treason against Edward Marcus Despard, John Wood, Thomas Broughton, John Francis, Thomas Phillips, Thomas Newman, Daniel, Tyndall, John Doyle, James Sedgwicke Wratton, William Lander, Arthur Graham, Samuel Smith and John Macnamara. Despard’s counsel was Mr Serjeant Best and Gurney, Jekyll and Howell defended the rest. When asked how he was to be tried, Despard retorted ‘I thought that had been decided already.’
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Lord Ellenborough, Baron Tomson, Justice LeBlanc and Justice Chambre presided at Despard’s trial, held at the Session House Newington. The mighty counselors for the Crown gathered at the prosecutor’s table: the Attorney General, the Solicitor General, Joseph White, Serjeant Shephard, Mr Plumer, Mr Garrow, Mr Common Serjeant, Mr Fielding, and Mr Abbott. Against them sat Mr Serjeant Best, Mr Gurney, and as solicitor Mr Palmer. Mr Abbott opened the indictment and said that while in the past fabricated charges were brought ‘against individuals for State purposes,’ in the case of Despard, No political, no party, no factious consequence either apprehended or hoped for as likely to ensue from the event one way or the other in which no clamor nor prejudice has been excited or does exist . . . therefore the fact comes to be inquired into under circumstances the most auspicious for truth and justice.146 Until 1795 prosecutors and counsel debated whether or not the intent to restrain the king in order to dethrone him or overturn his government proved an intent to kill him. The recent Acts, however, simply cut through the debate by making the very intention of dethroning or overturning the government acts of treason in themselves. The intention no longer had to prove imagining the death of the king. The intention alone proved treason, regardless of the end goal. Essentially he asked the jury to answer two questions. Did a conspiracy occur? Was the individual charged a part of it? Abbott then illustrated the importance of the evidence of the oath. The oaths encouraged an ‘annihilation of all distinctions and inequalities in rank property or political right.’147 Because the government did not wish to reveal the identity of its spies who infiltrated the secret organizations, the prosecution opted to use members of the associations as witnesses. Spencer Perceval, the Attorney General, asserted that the court had every reason to act within the law, for no advantage could arise from unwarranted prosecution. ‘No political party, no faction considers its interests at stake. There is no prejudice on either side; there has been no clamour; the public mind is completely at ease.’148 The facts spoke for themselves. As the government learned of the prisoner’s schemes it became apparent that when ‘ordinary caution could not provide for the safety of the Sovereign and the State, measures of vigour became indispensable.’ The Attorney
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General assured the jury that the court did not pursue an unwarranted prosecution. It [sic] times of ignorance, of violence, and corruption, the jealousy of power in judicial proceedings may be reasonable; but when knowledge is general, when all the humane virtues are cultivated, when moderation marks the governors, and loyalty the governed, then justice will be held sacred, and the id of the law will never be called in but for the punishment of criminals. In this case there is not the slightest ground of suspicion.149 In sum, the government would look bad if it tried to distort the law. To abstain from such a perversion of justice to the purposes of State, now requires no extraordinary regard to the dictates of morality, the precepts of religion, or the suggestions of honour. Cold selfishness and interested calculation are in this respect sufficient inducement to rectitude of conduct.150 The Attorney General highlighted a paper found after the arrest of Despard. One proclamation declared: CONSTITUTION! The independence of Great Britain and Ireland – an equalization of civil, political, and religious rights – an ample provision for the heroes who shall fall in the contest – a liberal reward for distinguished merit. These are the objects for which we contend; and to obtain these objects, we swear to be united in the awful presence of Almighty God!151 This echoed the theme of the trials in 1798. For the defense, Mr Serjeant Best did not argue law, but fact. Despard spoke words, and this could not constitute an overt act of treason. Although Despard attended one or two meetings, the prosecutors could not prove he conspired. Attending a meeting could not make one guilty of treason. The evidence for the Crown was especially weak, because the witnesses themselves attended the meetings. While Best believed a traitorous conspiracy did exist, its end was far shorter than the Crown implied, and Despard had no part in it. Best tried to exonerate Despard’s character by calling Lord Nelson and General Sir Alured Clarke to testify on his behalf,
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but their favorable accounts failed to convince because neither had seen Despard for more than twenty years. Best concluded by contrasting the use of accomplices as witnesses in the trial of Despard to the use of such men under William III and during the Fifteen and the Forty-Five. Those under William III were a part of a numerous class who honestly believed that they could not swear allegiance to King William, and that to restore King James was ‘not only justifiable but was loyal honorable and meritorious.’152 And these sincere men with their sincere moral convictions garnered sympathy, although not agreement, from the vast majority of the country. Similarly in both 1715 and 1745 a large party recognized the claims of the house of Stuart. When accomplices testified after the defeat of both those rebellions, the jurors recognized that they could accept their testimony because they came before them with moral characters unstained for they as such as those against whom they were called in witnesses had acted conscientiously though upon erroneous principles and although public policy and public safety required the execution of many . . . yet those persons went to the scaffold attended not only by the compassion but the respect of all men.153 The witnesses in this trial, however, were not moral characters with great, long-standing traditional values but rather ‘criminals and deserving of no respect.’ In reply the Crown clarified that words can be treason given the proper context, and that the witnesses were competent. The jury found Despard guilty but recommended him for mercy. The trial against the others opened on 9 February, and Mr Abbott asserted that no attack had to be made to prove the crime. Everyone must agree that ‘with the safety of the King with the protection of his life against the hand of the Traitor or Assassin are most intimately connected the safety of the community and every interest public or private that is dear to us.’154 The jury found Phillips, Smith and Doyle not guilty and discharged them.155 The court sentenced the nine convicted men together on the morning of 10 February. Despard, Wood, Broughton, Francis, Sedgewicke Wratten, Graham, Macnamara, Newman, Tyndall and Lander heard the full sentence of death read and returned to their cells to await their execution. The jury recommended Despard, Newman, Tyndall and Lander for mercy and although Despard was executed the sentences
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of the other three men were mitigated. Newman, Tyndall and Lander were pardoned on the condition of being transported to the Eastern Coast of New South Wales for life on 17 February 1806.156 Lord Chief Justice Ellenborough admonished the nine prisoners sent to the bar for judgment. Their object, he said, was to overthrow and destroy the fundamental laws and established government, to seize the king, to murder members of his house, to annihilate the ‘other branches of the Legislature of this Realm.’ Instead of the ancient limited monarchy of this Realm its established free and wholesome laws its approved majesty its useful gradations of rank its natural and inevitable as well as desirable inequalities of property to substitute a wild scheme of impracticable equality holding out for the purpose of carrying this scheme into effect or vain and deluded promise of provision for the poor. 157 The terror of treason was not generated by the idea of an overthrow of the king, but rather an undermining of the entire social order. The defense of established society, the rightness of it and the legality of it, was again proclaimed. The crowds did not cheer the execution of Despard, and any lesson that the government hoped to teach was lost on spectators who would rather see mercy and hear of reform. Before he died, Despard made it clear he believed himself to be a victim of the government which used a ‘legal pretext to destroy a man, because he was a friend to truth, to liberty, and to justice.’158
Conclusion The government did not succeed in sentencing reformers to hang for treason in 1794, but it did curtail the societies’ activities with the threat of trials under a revised treason law. The ministers found the 1352 treason law of little use, for they knew the fundamental law of treason could not protect the vital agency of the constitution, the parliament. As a result of the failure of the 1794 trials, MPs and peers revamped the treason law and made it flexible enough to accommodate the legislative powers of the state. Subjects expressed allegiance to their beloved king during the 1790s and affirmed a common identity through him. In their need to convict traitors, however, prosecutors had to argue that dynasty was no longer the crux of the matter. The nature of a constitutional monarchy became
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the context for discourse. Prosecutors asserted that the king became a symbolic representative of the powers of the state. The king retained authority in his executive capacity, but the sovereign power, king-in-parliament, had to be accommodated within the treason law. The 1790s raised a different challenge, one that was not countered by a medieval law. More than any popular protest expressed in the press or on the streets, the treason trials of 1794 led the way in changing the legal definition of treason. The Crown prosecutors, supporters of the 1689 Revolutionary establishment, ironically became innovators as they argued that treason was against the sovereignty of the legislature, not just the sovereign king. The prosecutor’s arguments in the treason trials thus generated a definition of sovereign authority that went beyond just the person of the king. If treason was defined as an act against the sovereignty of the legislature, then allegiance must be given to ‘the state.’ The defendants, on the other hand, appealed to tradition. Mid-eighteenth-century legal commentators and medieval statute law held that treason law safeguarded the person of the king. Unlike Robert Watt who had actually gathered arms, the Englishmen on trial in 1794 had not. The jurors released Hardy and Tooke, because they had not compassed or imagined the death of the king. The jurors responded to tradition, not to innovation. Perhaps the prosecution was merely reacting to the political necessity of preventing a Revolution in England. Perhaps its definitions of sovereignty, allegiance and treason were aberrations. This is a reasonable supposition. It did, after all, take John Scott nine hours, an abnormally long time, to explain his position in law, doubtless because it was new both to himself and to the jurors. He was not simply laying down the facts and refreshing the jurors’ memory on a law of treason with which they were at least familiar. Rather, he took great pains to prove that the challenges of the LCS and SCI would eventually affect the life of the king because they attacked the legislature of which the monarch was a part. Yet his interpretation was not a singular contingent response to a tense political situation. Prosecutors after 1796 accepted this interpretation as a truth that should be accepted by the jurors, not agonizingly explained to them. Before William Pitt’s two Bills banning seditious meetings and suspending habeas corpus in 1795 forced the United Irishmen underground, they had ‘no blueprint for revolution if the system refused to reform itself.’159 The United Irishmen worked through
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strictly constitutional means. Reform and union, not reform and separation, defined their goal.160 Once reform was finally rejected in 1795 and the United Irishmen were suppressed, however, the constitutional phase ended. By 1796 the United Irishmen were underground, oath-bound and armed. They aimed for Irish independence via parliamentary reform – with force if necessary. Regardless of William Grenville’s protest that the definition of treason would not change, a great deal had altered. Conducted in the context of the terror of the French Revolution and the rise of Emperor Napoleon, these treason trials revealed that the prosecution believed the safety of Britons depended upon the safety of both the ‘sovereign and the state.’ Acts directed either at the king or at the structure and composition of the legislative branch were treasonous. In all of the trials examined here, prosecutors readily expressed the view that treasonous acts could be and were being directed at the ‘state’ in general, rather than the king in particular. The king remained vital to the constitution and his life was necessary, but the concern appeared to be the safety of the British state and even of the entire social order. Treason had been redefined by the prosecutors, and then by the ministry’s initiatives in parliament. Nor was this redefinition a short-term, temporary counter to the threat of republican revolutionaries encouraged by France. The following chapter demonstrates that while the treason trials of Arthur Thistlewood et al. lacked the extraordinary backdrop of the French Revolution, they revealed the government’s lasting commitment to suppressing treason through a law that defended the legislative integrity of the state.
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5 The ‘General Safety of the State’: Treason from 1816 to 1820
During the 22 years of war with France, structural changes in industry and commerce that had slowly been emerging became recognized as permanent alterations in the socio-economic landscape. The merchants and laborers had supplied money and toil to support the war effort, but in peace these Britons suffered economically and believed they lacked a voice in the legitimate halls of power. Returning servicemen wondered how it was that poor men were expected to fight for their country and yet be denied a share of the prosperity and a role in the governing of it. 1 Compounding the economic problem, the old Dissenters (Presbyterians, Congregationalists and Baptists), Catholics and even Methodists continued their pressure to dismember the church-state establishment. 2 Men and women asked why Britons were so inadequately represented and supported by rank and privilege. Why did property, not people, remain the basis for legitimate government? Demands for change gathered force as the idea for reform to relieve suffering echoed agreeably in the empty stomachs of an economically distressed populace. Peers and MPs ignored a mammoth petition for parliamentary reform presented by the Hampden Club to the House of Commons in January 1817 even though it had great success in the country. 3 Although this petition was peacefully presented, it was tainted by the memory of the Spa Fields riot in December and the alleged attack on the Prince Regent’s coach on 28 January. In the spring of 1817, parliament revoked habeas corpus and suppressed debating societies. Some societies went underground only to reappear as an armed rebellion in Yorkshire on 9 June 1817 and again in a conspiracy to assassinate Cabinet members in 1820. 140
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Meanwhile the kingdom faced a crisis at the highest level. In 1810 the king fell ill, and his mental incapacity served to distance his physical person further from the central concept of allegiance and treason.4 This chapter begins with a brief assessment of treason as it related to and accommodated a Regency. Discussions over the Regency exposed changes in the definition of sovereign authority and interpretations of treason law.5 According to those protecting the king, the church and the landed gentry, treason was an act against the ‘British state,’ or rather the legislative sovereignty of parliament. This chapter then investigates the treason trials connected to the Spa Fields riot, the Pentridge rebellion6 and the Cato Street conspiracy in order to discover what they reveal about contemporary definitions of the state. Unlike the cases of English republican treason of 1794, three important cases of treason emerged in the Regency period from an open desire for social as well as political reform. These trials confirmed the remarkable paradox created in the 1790s: innovations in the concept of the state came from the prosecutors, ostensibly defenders of the established order, not the counsel for defense. To use treason law as an effective protector, the prosecution had to continue the arguments made by their counterparts in the trials of the 1790s. Thus, it might be argued that those seeking to safeguard their place and power also accepted a ‘unicameral form of government, in fact if not in name’ by the late 1790s.7
The idea of ‘treason against the king’ during a regency King George III fell ill in 1765, 1788, 1801, 1804 and 1810, but in 1788 the definition and attempted appointment of a regent caused especially deep anxiety and controversy.8 The debates divided the Houses into two general camps. One side included those who supported William Pitt the Younger’s idea that the king and parliament were a united force endowed with sovereign authority. Such an interpretation of the constitution protected their positions in power from the possibility of a Prince Regent creating a new government. It also expanded the notion of what treason targeted – the constitution. The other side comprised those, led by Charles James Fox, who, contrary to their constant demands that royal prerogative be curbed, claimed that the constitution had separate and distinct branches and that the king held a unique sovereign authority. In doing so, they encouraged the rise of their political hope, the Prince
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of Wales. Each side appealed to an interpretation of the constitution opposite its real and desired goals. This same constitutional wrangling appears in 1811. On 1 November 1810 the king fell ill and was unable to sign a commission for a further prorogation. Spencer Perceval introduced a Regency Bill in the Commons that was based on that of Pitt 22 years previously. The Bill stipulated that for one year the regent could take no measures that had a lasting impact. In 1811 the Prince of Wales was disqualified from granting peerages, save for naval and military services, and from awarding pensions or places for life. This reflected the same concern in 1788 that if the king recovered he should find as little changed as possible.9 The title of the bill was An Act to provide for the Administration of the Royal Authority, and for the Care of His Majesty’s Royal Person, during the Continuance of his Majesty’s Illness; and for the Resumption of the Exercise of the Royal Authority by His Majesty. It gave George Augustus Frederick, Prince of Wales ‘full Power and Authority, in the name and on the behalf of his Majesty, and under the title Regent of the United Kingdom of Great Britain and Ireland.’10 His power had the same effect as the king’s.11 He, however, received no personal allegiance. As in 1788 certain members in both Houses protested at the unconstitutional practice of enacting a law without an executive. Richard Sheridan brought out the highest accusation of the realm, treason. Citing the statute of 13 Car. II, he explained that it ‘declared expressly, that it was high treason to make a law without the consent of the King; and if they were parties to such a measure, they were guilty of misprision of treason.’ Sheridan advised fellow members who brought in the Bill to secure ‘an Act of Indemnity for their gross violation of the law of the land.’ 12 Since no royal power existed to pass the Bill constitutionally, the Duke of Sussex, brother to the Prince of Wales, preferred putting seal to commission to appoint the Prince of Wales regent with all the prerogatives of the Crown.13 Sheridan and his friends continued to champion the separate and unique rights of the Crown, because they hoped to advance their reforming cause. Despite their protests, the Regency Bill passed on 5 February 1811.14 It required the regent to take three oaths. First, the regent swore to be ‘faithful and bear true allegiance to his Majesty King George.’ 15 Second, he promised to execute the office of regent as established by the recent Act and to his utmost ‘consult and maintain the
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safety, honour, and dignity of his Majesty and the welfare of his people.’16 Third, he pledged to protect the settlement of the Protestant religion. The king’s Privy Council witnessed these oaths on the same day that the Bill became law. The law also required the prince to adhere to the Test Act of 1678 disabling papists from sitting in either house of parliament and to produce a certificate of having received the Lord’s Supper in any of the royal chapels. In addition to not creating peers, the regent had to reside in the United Kingdom and marry a Protestant. If he failed to adhere to the stipulations in the Regency Act, then ‘all the powers and authorities vested in his said Royal Highness by this Act, shall cease and determine.’17 The arguments in parliament divided over what role the king played in government. Those who saw in the Prince Regent the means to reform argued that the essential element in the constitution was the king’s prerogative. His separate executive powers checked the legislative branch. Conversely, those who desired to hold back reform and prevent the formation of a new Cabinet asserted the sovereignty of the unified legislative body, the king-in-parliament. The ministry offered an alternative understanding of the state and allegiance, just as the prosecutors had done in the republican treason trials. By April 1812 members of the government accepted that the chances of the king’s recovery were slim. 18 At this same time, the restrictions on the powers of the regent expired, and it was expected that he would form a new government. On 8 June 1812, to the disappointment of those wanting significant ministerial change, the Prince Regent appointed the Earl of Liverpool First Lord of the Treasury. In November the prince, now unfettered by restrictions, delivered his first speech from the throne to the new parliament. 19 Five years later two bullets from an air gun, or perhaps a few stones, shattered the Prince Regent’s carriage windows as he returned from opening parliament on 28 January 1817. A similar thing had happened to his father in 1795. At both times the government was already on high alert for subversive activity, and the king’s ministers and governmental supporters responded with statutes to preserve the royal person and suppress treasonous and seditious activities. In 1817 the Commons and Lords were preoccupied with the Spencean Philanthropists, who led the Spa Fields riots, and the suspicious Hampden Club.20 As Lord Valletort expressed it in January 1817, the disenchanted radicals ‘endeavoured to withdraw
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altogether the confidence of the people from the disposition and wisdom of parliament, and to shake the security of the constitution.’ 21 Even so, the need to protect the person of the Prince Regent became a matter of statute law. After learning of the alleged assassination attempt, members of the Commons concurred with the Lords’ address expressing the ‘abhorrence of the outrage offered’ to his royal person. The address did not describe the act as treason or treachery, but soon parliament gathered evidence respecting ‘certain Dangerous Combinations.’ At the request of the Earl of Harrowby, a clerk read the report on these dangerous meetings to the peers on 18 February. The committee insisted they had ‘no doubt in their minds that a traitorous conspiracy has been formed in the metropolis for the purpose of overthrowing, by means of a general insurrection, the established government, laws, and constitution of this kingdom, and of effecting the general plunder and division of property.’22 Officials had described events at Spa Fields as a riot, but now they elevated the mobs’ behavior to treason. Commons and peers began taking steps to revoke habeas corpus. In the report supporting the need for such drastic action, the persons of the Prince of Wales and the king garnered little attention. The report briefly stated that the attack on the prince must be viewed as an additional and melancholy proof of the efficacy of this system to destroy all reverence for authority, and all sense of duty, and to expose to insult, indignity, and hazard the person of the immediate representative of the sovereign, even in the exercise of one of the most important parts of his royal functions.23 The report did not describe the alleged attack on the Prince Regent as treason. Six days later Lord Sidmouth spoke in favor of the Habeas Corpus Suspension Bill, and asked whether 36 George III, c. 7, an Act to protect the safety and preservation of the king’s person after an assassination attempt in 1795, should be extended to the Prince Regent. Parliament realized that the existing treason laws did not protect the regent. Lord Castlereagh reminded his audience that the 1795 law had been passed under similar circumstances.24 The extension of this law to the Prince Regent did not stem from his royal blood. Rather, Castlereagh made it clear that whoever ‘should be in the exercise of the sovereign authority’ be protected by this
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law. Indeed, the law included a proviso that if the overt act alleged in the indictment was assassination or killing the Prince Regent, then the accused did not receive the benefit of 7&8 Wm. III, c. 3 or 7 Anne, c. 21.25 These two Acts provided procedural safeguards for the defendant, such as proof of two reliable witnesses for each charge of treason, in order to offset the full force of the avenging government. Without such benefits the accused faced an increased chance of being convicted. Removing the benefits, however, also had the effect of reducing the prestige of the Prince Regent. The courts treated attempts on his life the same as they would for the most common in the realm.26 A possible conclusion is that while the royal office remained fundamental to the operations of monarchical government, the safety of the person occupying that office became less important to the integrity of the state and social stability. In the prominent treason trials of 1817–20 related to Spa Fields riots, the Pentridge rebellion and the Cato Street conspiracy, the prosecutors never alluded to treason against the regent. Nor did they emphasize the threat to the king’s person. In fact, prosecutors focused mainly on the activity that undermined the houses of parliament, the constitution and the state.
The Spa Fields riot and the Pentridge rebellion On 9 June 1817 the trials of four Spencean Philanthropists opened in London and an armed revolt erupted in Derbyshire.27 The Spencean Philanthropists subscribed to the ideas of Thomas Spence, a reformer of the 1790s, who believed that the land was the ‘People’s Farm’ and advocated distributing property fairly to all Britons.28 The government’s fear of subversion caused it to view, erroneously, such obscure societies as the Spencean Philanthropists, with a membership of perhaps fifty, as major instigators of rebellion. Images of pikes and tricolored cockades had haunted the government since John Castle turned King’s Evidence in February. He assured the Lord Mayor of London that the Spa Fields rallies of November and December 1816 organized by the Spencean leaders, Dr James Watson, the doctor’s son, also James, Thomas Preston, John Hooper and Arthur Thistlewood, were really an overture to revolution.29 The revolution entailed not only the main tenet of the Spenceans, the redistribution of land to the poor, but also universal suffrage. The indictment presented in King’s Bench held the four men present, plus the young James Watson in absentia, liable for moving
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and exciting insurrection, rebellion and war against the king, within the kingdom; subverting and altering the legislature, rule and government established within the kingdom; and attempting to kill the king.30 These acts were treasonous under 25 Edw. III, Stat. 5, cap. 2 and 36 Geo. III, c.7.31 While the focus of the legal indictment remained based on the relationship to the king, the case report failed to record either a direct or an indirect threat to the person of the king. Because the Crown had no powerfully convincing evidence of intent to kill the king, the charge in the indictment combined the notion of killing the king and destroying the legislature, constitution and government of the realm. According to the prosecution, the king’s life was inseparably bound to the legislature and government, and treason against one was treason against both. The charge made no mention of the Prince Regent. Treason, of course, could not be against two individual sovereign rulers. The discussion of the threat to national government excluded the idea that the Spenceans endangered the king’s life. Dynastic worries were absent. Instead, treason presented a threat against the landed and the propertied – the nobility. The nobles had great cause to dislike the Spenceans, since one of their beliefs was ‘Landlords, and landlords only! are the oppressors of the people.’ 32 The bark of this language would possibly have hurt the ears of the patricians, but little else. Without a clear plan, effective leadership and money, the Spenceans could not bite. The group had little support even from the members of the laboring class on whose behalf they directed their efforts. Mr Justice John Bayley delivered the charge to the Grand Jury on 28 April 1817, at the Court of King’s Bench. 33 He explained that riots of a public and general nature could be treason and cited as examples the pulling down of brothels in 1668, the case of Damaree after Dr Sacheverell’s trial in 1711, and Gordon’s case in 1780. All of these acts were considered risings for the general purpose of levying war against the Crown. Riots constituted private quarrels. If the quarrel involved a general and public concern, then it was treason. The grand jury had to answer the question: ‘Were those acts all or any of them done in order to accomplish any such general purpose as amounts in law to the Offence of levying War?’ 34 The Grand Jury returned a true bill. Two weeks later the trials began. Mr Serjeant John Copley, as counsel for Watson, stressed the extraordinary staging the government had contrived in order to shade the trial with a treasonable color. 35
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He urged the jury to consider whether the law officers at the time of the riot represented it as war. It took the government ‘four months to come forward and say it was levying of war.’36 Moreover, Copley recalled from the past Lord George Gordon’s innocence. Even with the extensive damage caused by the Gordon riots, the jury had exonerated Gordon from the charge of treason. ‘It followed, therefore, that neither the extent of the riot, nor the mischief, nor the destruction that might ensue, constituted high-treason.’37 Copley appealed to the traditional sentiment of jury members to interpret high treason as an act against the person of the king. Treason was a threat to the person of the king, not to the structure of parliament. The jury found Watson not guilty. The Attorney General submitted that he did not intend to proceed with the other trials, and the jury found the remaining prisoners not guilty. In the meantime, other officials had turned their attention to those prisoners who had rebelled in Huddersfield on 8 June and more significantly in Pentridge on 9 June. The Pentridge rising, of nearly 300 men gathering at the foot of Derby Peak to march on Nottingham, became, in Edward Thompson’s estimation, ‘one of the first attempts in history to mount a wholly proletarian insurrection, without Middle-Class support.’38 The uprising lacked organization and experienced leadership, but the will for social and political change was strong. The brief for the Crown concluded that the continued success of an underground system from 1811 to 1816 had led Thomas Bacon, of Pentridge, to conceive the grand object of subverting the government and destroying the constitution of the country through an organized use of force. According to the special report, Bacon’s followers plotted an overthrow of the present government and the replacement of it with a convention until a ‘regular Government like that of America could be established.’ 39 When the moment for rebellion came, Thomas Bacon did not take command of the troops, and he would escape the hangman’s noose because of this. Instead, on the afternoon of Monday 9 June, Jeremiah Brandreth, who had no prior record of radical reform sympathies, came from Denbridge to assume command of a rebel force at Wingfield. His ragged band of men had yet to acquire firearms, and so they broke into homes along the road to Nottingham and stole them. In one case the rebels shot and murdered Robert Waltes, a servant, while he defended his master’s guns. The authorities knew of this plot before it occurred. ‘Oliver’ the spy kept them well informed. Lord Viscount Castlereagh’s report of
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the Committee of Secrecy presented in February had also prepared them. The committee members could not estimate the number of people already seduced by the leaders of the conspiracy, but they assumed that it involved a great many. The reformers targeted not just political institutions ‘but also such a subversion of the rights and principles of Property, as must necessarily lead to general confusion, plunder, and bloodshed.’ 40 Those in power interpreted such goals as treasonous challenges to the social order. On the day of the rising, Brandreth’s men were soaked from the steady rain, tired, and no match for the king’s troops. Upon encountering them, most fled. Thomas Bacon escaped capture. In Bacon’s absence, Jeremiah Brandreth became the most valuable prisoner whom all the other prisoners scrambled to disown. The Crown’s brief was confident that enough rebels would be found guilty of levying war, and charged Brandreth and others with high treason.41 On 16 October Attorney General Shepherd opened his case against Brandreth by appealing to the jurors’ collective sense of well-being and safety. Rather than defining high treason as an act directed at the person of the king, he explained that high treason was ‘in fact committed against all and each of the community.’ 42 He made no effort to stress the sanctity of the king’s life, but used every means to assert that the ‘comfort of us all is involved in the support of the Government established by law and by the constitution of the country under which we all of us have lived.’ 43 Treason meant something more than a dynastic challenge and more than an act against the legislative sovereignty. According to Shepherd, treason attacked all Britons. In this case, with guns being fired and men gathered to march, clearer evidence of the public nature of the riots emerged, and thus the prosecutors won the day. The trial of Brandreth’s comrade, William Turner, revealed a fascinating exchange between the defense and the prosecution concerning the definition of the state. Thomas Denman, counsel for the defense, asked the jury how the government was distinguished from the constitution.44 This was difficult. Denman proposed that the constitution was the law itself embodied in establishments of the church and state. These two extensive institutions formed the body and the law the soul of the constitution: ‘the Government was an integral and inseparable part of this Constitution, and through the executive government all its operations were activated and moved.’45 Denman’s government had separate parts – a distinct
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executive and royal branch not subsumed within the one unified parliamentary or legislative entity.46 The Attorney General countered Denman’s understanding of government in his closing argument. The government of England was ‘composed of the King, the Lords Spiritual and Temporal and Commons in Parliament assembled.’ The treason law protected this entire entity. The king had existed as an integral part of that government ‘from the earliest period of the Common Law.’47 In order to utilize the treason law, the prosecution defined a state in which the powers of the king were intimately tied to the powers of parliament. The kingly power protected in 25 Edw. III transferred itself to both Houses. The king acted not as a separate being, checked by the legislative branch, but rather was subsumed in it. This interpretation of the state lacked the balance of the royalist tradition with its emphasis on a separate executive sovereign. The jury returned after 15 minutes and declared Turner guilty of high treason. The court next tried Isaac Ludlum, the other man who had supported insurrection with ferocity. While the lawyers on both sides repeated condensed versions of similar arguments used in Brandreth and Turner’s trials, the Attorney General spoke one short sentence of extraordinary importance for our question of understanding the shifting notions of state. For the first time he actually defined what ‘Royal Majesty’ meant. The term ‘Royal Majesty’ as used in the statute meant a rebellion directed against the ‘Royal Majesty of the King that is against the State and Government of which he is the great and prominent Member and in this respect may say the representative in his Executive character is High Treason.’ By this definition the king was not the giver of power or the source of sovereignty in the state, but rather the most ‘prominent member’ of the sovereign power of an inseparably combined parliament and king. The statute law interpreted high treason as being against the royal majesty of the king, and thus the royal majesty of the king meant ‘state and government.’ Whether it was this argument or the examples of past treasonous riots which convinced the jury, they did return a guilty verdict. On 25 October the remaining prisoners arrived in small groups before the justices to plead guilty and ask for mercy. The Attorney General, after quoting Blackstone who said there came a time to ‘sheath the sword of justice and extend mercy,’ explained to the jurors that he had no inclination of offering evidence against the 12 young men drawn into the conspiracy by their relatives.
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The jury accordingly acquitted them and the Lord Chief Baron instructed the men to go home and thank God. Of the 19 men who pleaded guilty, ten were transported for life and three for 14 years, one was imprisoned for two years, two for one year, and four for six months. George Weightman received mercy and was transported for life. Brandreth, Turner and Ludlam the Elder were hanged on 7 November. The 1817 insurrection ended, but for good reason the government remained on the look-out for internal challenges to the state.
The Cato Street conspiracy of 1820 On 16 August 1819 an estimated crowd of 60,000 unarmed men, women and children assembled peacefully in St Peter’s Fields, Manchester, to hear Henry Hunt speak on parliamentary reform, universal suffrage and liberty. The militia, when ordered to arrest Hunt, drew their sabres and began slashing their way through the crowd. In the panic which followed several people were killed. The Peterloo Massacre had enormous implications and became a symbol of governmental repression. It did not, however, generate treason trials. John Scott, now Lord Chancellor Eldon, abandoned the charge of high treason, because he lacked the evidence necessary to prove the act more than a riot. It did prompt the government to pass Six Acts that codified laws of 1795 and 1817. 48 Just how repressive the Six Acts were is a matter for historical debate, but these statutes temporarily broke many of the national links in the reform movement. 49 In London, however, Arthur Thistlewood refused to submit. In December 1819 he hatched a conspiracy to murder the members of the Cabinet. This assassination attempt was to herald a general insurrection in London. His plan failed. Thistlewood and ten other conspirators were arrested. When the lawyers began compiling the case against the prisoners, John Griffith sent Henry Hobhouse, the Treasury Solicitor, an interesting paper concerning his opinion that it might prove more efficacious to try the men for murder and attempted murder rather than high treason. While from a political and constitutional view the safety of the state was paramount over that of individuals, the act of high treason was often too abstract for those with ‘vulgar apprehensions’ to comprehend. Griffith believed the notion of ‘constructing’ a levying of war was, quite simply, too complex for the uneducated. What the masses of base men would understand, however, was assassination and murder. The charge of high treason
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only evoked public sympathy for the prisoners facing the full power of the Crown. The prisoners themselves benefited under the charge for high treason, because the law offered advantages to the accused to offset the full force of the Crown’s team of prosecutors and the weighty punishment for treason. Griffith’s paper raised the problem of just how treason was perceived by the general populace.50 The reluctance of the jurors to find the prisoners guilty when lacking direct evidence suggested that high treason was understood in quite particular terms. In fact, the jurors revealed a very traditional view of treason against the sovereign king. The punishment of treason was less acceptable when subjects no longer perceived it to be an act directed against the monarch. A Special Commission of Oyer and Terminer convened, and the Grand Jury met at the Old Bailey on 28 March. The prosecutors ignored Griffith’s suggestion to use the lesser charge of murder. Rather the Attorney General informed the jury that the four charges rested on the ancient statute of 25 Edw. III as well as the more recent 36 Geo. III, c. 7. The latter Act merely made the overt acts of deposing the king from his ‘royal state and majesty,’ restraining his person, or levying war against him for the purpose of forcing him to change his council substantive treason. The prosecutors argued that the planned assassination had a greater and more extensive goal in mind, and it did not reflect ‘the mere gratification of vindictive feelings.’ 51 They repeated this in the trials that followed. The government needed to prove that the ‘assassination was an attempt to overthrow the government of this Nation or of this metropolis.’52 High treason constituted an offense against ‘the general safety of the State,’ and if the grand jurors thought a strong case existed against the 11 men indicted, then they should return a true bill. They did. The trials began with Arthur Thistlewood coming before the bar on 17 April 1820, and the trials of James Ings, John Thomas Brunt, William Davidson and Richard Tidd followed. 53 The prosecutors in the treason trials, with the support of their elite counterparts in parliament, presented the prisoners with an impenetrable cloak of ‘Royal Majesty.’ While the defense lawyers appealed to a traditional understanding of the state in which treason protected the sovereign king alone, the prosecutors at the treason trials continued to define the state differently. In each trial the prosecutors essentially said that treason was an act whose consequences were ‘the most dreadful kind not only affecting individuals but the community
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at large.’ 54 Although the acts avoided directly targeting the life of His Majesty, they would ‘in their consequences inevitably lead to those results.’ The evidence proved that the men had been in Cato Street for a general, treasonable revolt against the state.55 The prisoners attempted ‘to overturn by force and violence the Laws and Constitution of the Country.’56 The Lord Chief Baron, in his summary at John Thomas Brunt’s trial, and Mr Gurney, in opening the case against William Davidson and Richard Tidd, explained that attempted assassination was high treason if it was intended ‘as one of the steps to the general purpose of subverting the Constitution.’ 57 In each trial, the defense counselors warned the jurors against basing their decision on their interpretation of the prisoners’ moral guilt.58 The jurors had a more onerous task than simply to determine whether a plot existed. They had to ask if the attempt against the Cabinet members was high treason and whether the supposed riot which was to have followed was merely a proposed riot, or a treasonable levying of war. More specifically: First, has the Person at the bar compassed or imagined the death of the King? Secondly – Has he conspired to depose him from his Imperial State and dignity? Thirdly – Has he conspired to levy war against the King? Or fourthly Has he actually levied war against the King?59 Only on those points or one of them, should the jurors find a verdict against the prisoners. The defense counsel appealed to the jurors’ sense of tradition. The conspirators had made no attempt to kill or depose the monarch. Mr Curwood in his defense of James Ings warned that the jurors must take care not to convict on constructive treason, for if they did find ‘Verdicts on these constructive Treasons God only knows where they may end.’60 He pleaded with them to save their country from such an illegal precedent.61 No matter how much the Crown emphasized the moral guilt of the prisoner, the jurors were ‘not to pervert the laws from their just ends.’62 The other defense counsel, Mr Adolphus, mentioned the Gordon riots and then proceeded to argue that it was no more high treason to murder all the Privy Councilors ‘than it was to murder one of the most amiable and honourable Men who has existed in our times I mean the late Mr Purceval.’63 This defense of Ings failed, and the jurors returned a guilty verdict.
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After the sentence Thistlewood justified his actions and the need for destroying the Cabinet, but the Lord Chief Baron interrupted him. The courtroom prohibited such incendiary treason. Brunt also spoke. He specifically linked his involvement with Thistlewood and others to his despair at the social and political situation after Peterloo. His own personal situation drew him to desperate means. I have been in the habit of earning three or four pounds a-week, and then I never troubled myself about Government; but when I came to earn, perhaps, not ten shillings, I began to inquire why I had a right to be starved; . . . this brought me to the conclusion of being an enemy to those men. 64 Yet he never had committed treason, for never had he acted against the king. Say I was an enemy to Lord Castlereagh and Lord Sidmouth and the rest of the Cabinet but do not heap upon my head that I am a Traitor to my king or my country. I never suffered any man to run on against my Sovereign in my life and why should High Treason be reckoned with me? – let me be tried for murder if I have committed it but I am no enemy to my king. I have a love to my King and Country but I am an enemy to the Borough managering faction that destroy’s the vitals of my Country but to my King and my Country I am a loyal and dutiful subject. I consider the King equally enslaved as the people by those very men if you mean to say the sovereignty of the people is vested in the borough managering faction then I am guilty of High Treason but if you do away with that the Verdict ought to be set aside.65 In this brief statement, Brunt argued the prisoners’ position better than the counsel for defense had done. They aimed to reform the House of Commons and relieve economic oppression, not destroy the king. The king, the sovereign, resided in the separate and the highest component of the constitution. The Crown’s prosecutors, however, asserted that treason law protected the sovereign king-inparliament, and Brunt hanged. James William Wilson, John Harrison, Richard Bradburn, John Shaw Strange, James Gilchrist and Charles Cooper withdrew their pleas of not guilty and pleaded guilty. On Monday 1 May,
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Thistlewood, Davidson, Ings, Brunt and Tidd were hanged before the debtor’s door of Newgate. Wilson, Harrison, Bradburn, Strange, Gilchrist and Cooper received pardons on the condition of being transported.66 According to Lord Mayor Robert Bridges, the executions were conducted in perfect quietness, but in fact, a large crowd gathered. Troops were deployed ‘[so] that in whichever way the populace approached the Old Bailey they must be seen in force sufficient to deter any attempts at rescue.’67 The executions of the Cato Street conspirators were the last executions of the old style, with the traitors being decapitated after hanging until dead. In his endeavors to understand capital punishment, historian V.A.C. Gatrell asked why it was that this gruesome punishment lasted so long. 68 He concluded ‘what was felt was the excitement appropriate to the witnessing of a “historic” moment with monstrous others at its centre.’69 The crowd expressed disgust at the procedure and the sentence, not the victims. Gatrell hypothesized that the ‘judges’ and tories’ defence of the treason punishment was based unconsciously upon a respect for the power of symbols which was part of their ancestral inheritance.70 Shortly after the Cato Street executions, Special Commissions in Scotland tried several men for a failed uprising and sentenced three to execution in the summer of 1820.71 Of all of the Scottish trials that summer, one recorded an intriguing exchange between the jury and judges that reflected the jurors’ reluctance to view treason as something other than a direct attack against the person of the king. In the trial of James Speirs at Paisley on 1 August 1820, the foreman informed the Lord President that the jurors were having trouble deciding the verdict – it was ‘the compassing the King’s death that startles the Jury.’72 The Lord President explained the position and asked for a verdict. The following was delivered: Foreman: The Jury pronounce James Speirs guilty, on Monday the third of April last, of striking and giving up his work, in a malicious and an illegal manner; and that he did not only abstain from work himself, but did compel and oblige others of his fellow-subjects to do the same; and maliciously and illegally did hinder, and obstruct, and prevent divers manufactories, of divers liege subjects, from being proceeded in, and carried on that day. Lord Chief Baron Shepherd: Gentlemen, this is no verdict at all, as it neither affirms nor negatives the charge of Treason. You are
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to find whether certain acts were done; and then whether they were treasonably done, as charged in the indictment. Gentlemen, you had better again retire and consider this point. The jurors did so. The foreman read the verdict: not guilty. The crowd gathered in and outside the courtroom erupted in ‘loud and general cheering,’ and one young man was arrested for his exuberance. While the jurors understood that Speirs’ actions should be punished in some way, they simply could not understand how his actions could be interpreted as treason. Apparently, the jurors remained unconvinced by the prosecutors’ argument that treason was ‘an indirect attack on the King, if it attacks his government.’ After these treason trials in 1820, charges for high treason lapsed until the Chartist movement in 1839.73
Conclusion The indictment for high treason was based on both the medieval statute of 25 Edw. III, Stat. 5, c. 2 and 36 George III, c. 7&8. While the first emphasized treason against the person of the king, the second expanded this definition to allow for threatening actions against a broader entity of the ‘state.’74 The person of the king was mentioned in the indictment but was not emphasized during the trials. Prosecutors realized just how difficult it was to achieve a guilty verdict with 36 George III alone. They failed in the Spa Fields trials and succeeded after the Pentridge rebellion only because in that instance the accused had gone about the countryside armed, and the jurors recognized this as levying war. What the jurors did not readily understand was how the evidence presented could be considered treason against the king, when those involved consistently declared their loyalty and allegiance to the present monarch while expressing a desire to change the composition of parliament. Prosecutors no longer defined treason as a direct violation of trust and allegiance to the king, but rather chose to define treason as acts against the entire ‘state.’ The debates over regency confirmed the paradox found in the trials for treason. Those fighting against the established regime appealed to traditional interpretations of 25 Edw. III, Stat. 5, c. 2, while those protecting the establishment had to claim that the state’s power and sovereignty rested in something other than the king’s person. Sheridan and others supporting reform in 1811 claimed that
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parliament acted treacherously when it made law without the king. The ministry remained strong, and their interpretation of both treason and the British state gained ascendancy. Moreover, the mental incapacity of George III curbed his public role. His absence reinforced the relocation of sovereign power from a distinct executive to an executive government housed in parliament. Although parliament passed a treason law to protect the Prince of Wales in 1817, in practical terms it really mattered very little whether treason law protected the regent or not. In none of the treason trials that followed did the prosecutors make either the Prince of Wales or the king central to their arguments of broken allegiance. The king remained the focus of subjects’ loyalty, and this emotional bond remained important. Prosecutors, however, defined treason as an attack on the legislative Houses of parliament. They concentrated on a ‘British state’ whose sovereign powers resided in the king-in-parliament. Without the threat of a French invasion, the leaders of government did not need to take such a drastic stand as revoking habeas corpus and creating rebellions where there were none, for example in the case of Spa Fields riots. Yet they had discovered in the previous twenty years that emphasizing the legislative sovereignty of the state benefited their own security. The elite asserted an alternative understanding of the state during the treason trials of 1794. By 1817 and 1820, the prosecutors were confidently using this argument. The prosecution, not the defense, redefined the treason law and pressed the jurors to accept this interpretation as logical and even traditional. These adjustments to the scope of treason were not readily accepted. Indeed, as Griffith had tried to explain to Henry Hobhouse, the jurors were conditioned since time immemorial to believe that high treason was an act against the person of the king. The jurors personally identified with the idea of king as sovereign, and rejected a definition of treason that appeared novel and suspiciously construed. While the defense counsel could appeal to the jurors’ understanding of treason according to the time-honored 25 Edw. III, the prosecutors’ task was to convince the jurors that the crime laid before them was treason because it undermined the sovereignty of the state, or the legislative authority of parliament. In spite of the jurors’ reluctance to charge the prisoners with treasonous acts based on the 1796 treason law, the prosecutors did achieve guilty verdicts in 1820.
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Since the 1760s challenges to the government targeted not the person of the king but the institutions of the two houses of parliament and the elite who occupied the benches in them. As shown in the previous chapter, the prosecutors in the treason trials responded to the United Irish and United English Societies with a different understanding of allegiance and sovereignty. While one might argue that their positions were oddities – flukes of the moment, when the giant menace of Revolutionary France inspired the domestic reform movements – the trials of the Spa Fields rioters, the Pentridge rebels and the Cato Street conspirators demonstrated that this was not so. Prosecutors continued to argue that subjects owed allegiance to a sovereign power that encompassed more than the body of the king. Treason was an act against all Britons, against the ‘general safety of the state,’ and against the person of the king. Nonetheless, this shift in emphasis failed to capture the imagination of the jurors. Neither the legitimate parliamentary opposition nor the common radicals, whom the government feared would subvert the entire social and political order, truly succeeded in initiating, establishing and enforcing a new concept of ‘the state.’ Yet the prosecutors, challenged by the crisis of an incapacitated king and radical demands for change, expanded the notion of the British state in order to preserve it.
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Calvin’s Case (1608) affirmed that Scottish and English subjects owed allegiance to the king’s person, but in the 1640s republicans rejected the sovereign king and construed 25 Edw. III to protect their parliamentary state. The Civil War and the Interregnum redefined sovereignty, allegiance and national identity. In 1660 the Restoration reinstated monarchical government, but definitions of sovereignty, allegiance and national identity faced yet another challenge in 1688. After the Glorious Revolution national identity arose from the subjects’ allegiance to de facto monarchs, and treason remained dynastic. Debates over revisions of treason trial procedure in the 1690s revealed that the Commons and peers viewed the monarchy as a check upon the strength of parliament. In order to affirm allegiance to the British monarchy after the Treaty of Union, the Westminster parliament passed a British treason law (1709). As in the 1630s and 1640s, Scottish soldiers challenged the idea of a British national identity in the 1746 treason trials but failed to convince English judges. Prosecutors applied the British treason law to convict Jacobites regardless of whether they were Irish, Scottish or English. Until the 1750s the state, defined as strong king in strong parliament, called upon the medieval statute of 25 Edw. III, Stat. 5, c. 2, to defend itself against dynastic treason. The king remained the central focus of a subject’s allegiance as well as a distinctive target for discontent. In the 1790s allegiance and national identity were still manifested in dynastic terms. The apotheosis of George III, as explained by Linda Colley, appeared as a triumphant denial of the French Terror across the Channel. Loving subjects claimed loyalty to their regal father. Aggressive attacks against the government, however, 158
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were no longer expressed as a choice between dynasties. Instead, a new form of treason, loosely termed ‘republican,’ arose. The prosecutors in treason trials thus faced a difficult task. Employing language that echoed parliamentary prosecutors in the 1640s, they asserted that treason threatened the entire government: king and parliament. John Scott, defender of monarchy, spoke the same language as had John Pym, challenger to monarchy, 150 years earlier. Pym asserted in Strafford’s trial that ‘government equalled the institution of the state, not the person of the governor.’ In 1794 Scott’s opponent, Thomas Erskine, champion of republicans, appealed to the same definition of allegiance, sovereignty and treason as had the Earl of Strafford, champion of kings, in 1641. Prosecutors in the 1790s discovered that they could not use the treason law to promote the royal power. They had to deny that the king acted as a separate counter-balance to the houses of parliament. The late-eighteenthcentury treason trials forced prosecutors to assert that the treason law protected the combined sovereignty of king, House of Lords and House of Commons. Prosecutors found themselves arguing that the bond between subject and king was no longer the most essential component of a secure government; rather what mattered was loyalty to the state and the grave repercussions that followed if allegiance to it was abandoned. In sum, treason attacked a British state and all Britons. The defense counsel, however, could and did use the medieval treason law to defend the distinct sovereign authority of the king. Despite the prosecutors’ efforts, the jurors empathized and identified with the counsel’s interpretation which appealed to a royalist tradition. Only in cases when the prisoners had either attempted to kill the king’s ministers or had actually armed themselves to raise rebellion – in other words acts reflecting offenses mentioned in 25 Edw. III – did the jurors return guilty verdicts. Trials for treason declined after 1820. Treason law was used, however, in 1839 to punish the first major uprising in the Chartist movement.1 John Frost, Zephaniah Williams, William Jones and nine others were arrested on charges of high treason for their involvement in the Newport uprising in November 1839. Earlier that year the House of Commons had rejected the Chartist petition, which expressed the six points of the People’s Charter created in 1838. The petition demanded universal suffrage, no property qualifications for MPs, annual parliaments, equal representation, payment to MPs, and voting by ballot. It hoped to create a new relationship between
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the subjects, or the hopeful ‘citizens,’ and the state. By the autumn of 1839, southwest Wales could report at least 25,000 due-paying Chartists, and after weeks of careful preparation they marched on Newport seeking the release of Henry Vincent, ‘the tribune of the West,’ who had been arrested in April 1839. The 45th Regiment guarding the prisoners held at Westgate Hotel opened fire and one John Rees was shot and killed. The Treasury Solicitor traveled to Wales to oversee the treason trials and calm the excited manufacturers who demanded harsh sentences for the rioters. Fergus O’Connor, publisher of the Chartist newspaper, the Northern Star, urged his readers to consider the case of Frost and the others as the cause of the whole nation. He warned that if men were executed more uprisings would follow. At the trials for treason the prosecution charged that the Newport Uprising was an armed force organized to change the law and constitution of the country. The defense countered that Chartists gathered only to show support and persuade the Newport magistrates to grant a pardon for Vincent and the other prisoners held in Monmouth jail. They fled, rather than fighting, when fired upon. The jurors found Frost, Williams and Jones guilty, and their execution was set for 6 February 1840. Five others pleaded guilty before trial and were sentenced to transportation for life. Four were discharged. Thanks to a nation-wide campaign to save the Chartists, Frost, Williams and Jones were transported to Botany Bay while the five sentenced to transportation were imprisoned. The government was not eager to make martyrs of the Chartists and feared a popular uprising might occur if they proceeded with the hangings. The treason law did not change in 1840, but there was a change in response to the next two Chartist uprisings in 1842 and 1848. The 1842 Treason Act revealed a departure from equating the monarch’s personal safety with the essential security of the state.2 Seven years’ transportation or imprisonment, rather than torture followed by death, was the punishment for offenses such as discharging, aiming, or simply presenting a firearm at or near the person of the sovereign, and striking or striking at the sovereign. Acts which for so long had proved their perpetrators guilty of compassing and imagining the death of the king were now high misdemeanors. Moreover, in each case the conduct had to be ‘wilful’ and demonstrate an intent to break the public peace or injure the sovereign. Intentional killing of the king or queen, unless during a time of war as part of assisting the enemy, was redefined as murder only.
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Six years later in 1848 parliament passed An Act for the Better Security of the Crown and Government of the United Kingdom, 11 & 12 Vict., c. 12. This reduced the two acts added in 1796 to felony, namely: the compassing, imagining or intending the deposition of the king, and the compassing to levy war against the king in order to compel him to change his measures. The Act mitigated the punishment from death to transportation. In August 1848 this Act was applied for the first time in Ireland. 3 The changes in the law were explained to the members of the Grand Jury in Dublin in the case of Kevin O’Doherty, who was charged with the crime of publishing the Irish Tribune.4 The Lord Chief Baron reviewed the 1796 Act and acknowledged that it had extended the law of treason in two respects: compassing to depose the monarch and compassing to levy war. The proof was in the open act but also in the publishing of a printed or written paper.5 Under the 1848 Treason Act, however, these offenses were felonies. Rather than ‘traitorously did compass imagine devise,’ the charge against O’Doherty was that he ‘feloniously did compass imagine devise and intend to deprive and depose our said Lady the Queen from the style honour and royal name of the imperial Crown of the united Kingdom.’6 Jurors found O’Doherty guilty and recommended him for mercy. He was transported for ten years. The government turned to charges of sedition rather than treason during the nineteenth century. Replacing 25 Edw. III with a treason law similar to that in America, one that protected the abstract republican state but not its executive or representatives, would obviously displace the monarch. Prosecutors used sedition as an alternative solution. Sedition was the crime at common law of inciting resistance or rebellion against the government. A charge of sedition did not require the legal advantages for the person accused of treason – the proof of two witnesses, a copy of the indictment and 35 free challenges of the jurors. Nor did it entail the aggravated punishment associated with high treason. Because of this, sedition was easier for the prosecution to prove and for the jurors to accept. The statute 25 Edw. III remains on the statute books today, but treason is now perceived as an act that undermines the integrity of the British people whose voice is heard in the House of Commons. Britain retains a sovereign king or queen but no longer do threats against the monarch impact the security of the day-today operations of the state. Indeed, in 1977 a Law Commission working paper concluded that ‘Our provisional view is that invasion
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of the personal security of the Sovereign should be made specific offenses without being declared to be treason.’7 Such an opinion was first expressed in 1842, and differs markedly from the understanding of the monarch’s role in government in the long eighteenth century. The ideals of the French Revolution and the economic crises which afflicted Britain after the Napoleonic wars generated massive movements of people demanding parliamentary reform. Simultaneously, however, British juries demonstrated a reluctance to view treason as anything but a direct attack against the king. For the jurors, and perhaps their social counterparts, 25 Edw. III, Stat. 5, c. 2 safeguarded the person of the king and expressed a royalist concept of government. Treason protected allegiance to the king and thus safeguarded Britons’ national identity. The treason trials themselves revealed the prosecutors, representing the ministry, expanding this traditional understanding of treason. While not denying the duty owed to the king, the treason trials from 1794 onwards forced prosecutors to underscore the bond between subjects and the inseparable unit of king-in-parliament. To destroy that relationship by attacking the Houses of parliament – even while claiming allegiance to the king – was high treason, an act equivalent to, if not more egregious than, attempting to kill the monarch. The focus on high treason alone has demonstrated that while the natural bond between subject and monarch remained strong in real, or symbolic, terms, by the late-eighteenth century prosecutors were emphasizing another connection. The debates in the trials reveal the prosecutors’ struggle to convince the English jurors of a new interpretation of treason that demanded a refashioning of the both the state and the generally understood notion of national identity based on dynastic allegiance.
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Notes Introduction 1 Impeachment was the judicial process used by the House of Commons for prosecuting a person for high treason or other high crimes or misdemeanors before the House of Lords. Attainder was the process whereby an Act of Parliament (an ‘Act of Attainder’) declared a named individual guilty of a crime and imposed a penalty. The sentence for attainder could include corporal punishment, forfeiture of all possessions and corruption of blood passing to all descendants, in other words, ‘the legal death of the family.’ J.R. Lander, ‘Attainder and Forfeiture, 1453–1509,’ Historical Journal 4 (1961): 120. For an early eighteenthcentury interpretation see Richard West, A Discourse Concerning Treasons, and Bills of Attainder. Explaining the True and Ancient Notion of Treason, and Shewing the Natural Justice of Bills of Attainder. The Second Edition (London: J. Roberts, 1717). 2 John Brewer, ‘The Eighteenth-Century British State: Contexts and Issues,’ in An Imperial State at War: Britain from 1689 to 1815, ed. Lawrence Stone (London: Routledge Press, 1994), 68. 3 For a good example of an historian who did look at case law see Peter King, ‘Decision-Makers and Decision-Making in English Criminal Law, 1750–1800,’ Historical Journal 27, no. 1 (March 1984): 25–58. Clive Holmes recently argued in favor of exploring the activities in the courtroom and against simply accounting for the passing of statute laws: ‘Legislation had meaning only insofar as it was interpreted by lawyers. To understand that interpretation, the historian must make the mental effort to comprehend their assumptions.’ Clive Holmes, ‘G.R. Elton as a Legal Historian,’ Transactions of the Royal Historical Society (TRHS) 7, 6th series (Cambridge: Cambridge University Press, 1997): 278. 4 See Kenneth Dyson, The State Tradition in Western Europe (Oxford: Clarendon Press, 1980); Peter Evans, Dietrich Rueschemeyer, and Theda Skocpol, eds, Bringing the State Back In (Cambridge: Cambridge University Press, 1985); Gabriel A. Almond, ‘The Return to the State,’ American Political Science Review 82, no. 3 (September 1988): 853–74; Eric A. Nordlinger, Theodore J. Lowi, Sergio Fabbrini, ‘The Return to the State: Critiques,’ American Political Science Review 82, no. 3 (September 1988): 875–901; C.A. Bellamy and M.F. Whitebrook, ‘Reform or Reformation: the State and the Theory of the State in Britain,’ Canadian Journal of Political Science 14, no. 4 (December 1981): 725–44; Quentin Skinner, ‘The State,’ in Political Innovation and Conceptual Change, ed. Terence Ball, James Farr, and Russell L. Hanson (Cambridge: Cambridge University Press, 1989), 90–131; James Meadowcroft, Conceptualizing the State: Innovation and Dispute in British Political Thought, 1880–1914 (Oxford: Clarendon Press, 1995). See also an earlier article, by H.J. McClosky, 163
164 Notes ‘The State as an Organism, as a Person, and as an End in Itself,’ Philosophical Review (July 1963): 306–26. Although Meadowcroft believes that the state, the ‘most complex notion of the political lexicon’ was ‘something of a stranger in British political discourse’ until T.H. Green first gave it precise meaning, he acknowledges that William Blackstone and Jeremy Bentham employed ‘the state’ in their essays during the eighteenth century. We could also add others such as Henry Parker, Edward Coke, Robert Filmer, Thomas Hobbes, Algernon Sidney, and John Locke who used ‘the state’ in their writings during the seventeenth century. Further, we should not ignore the most personal expression of state in seventeenth-century France: ‘l’état c’est moi.’ However vaguely defined but revered an entity it was, ‘the state’ of the early seventeenth century was not ‘the state’ of the nineteenth century and historians of the eighteenth century are very much aware of this. 5 According to Linda Colley’s estimate, after 1707 a single people existed with loyalties to one state, ‘not because of political or cultural consensus at home, but in reaction to the Other beyond the shores.’ Linda Colley, Britons: Forging the Nation, 1707–1837 (New Haven, CT: Yale University Press, 1992), 6. War united the diverse British nation of Scots, Welsh, and English against the foreign ‘Other.’ While Colley argues in terms of a social consensus, another historian, J.C.D. Clark, asserts that ‘Gentlemen, the Church of England, and the Crown commanded an intellectual and social hegemony.’ J.C.D. Clark, English Society, 1688– 1832. Ideology, Social Structure and Political Practice During the Ancien Regime (Cambridge: Cambridge University Press, 1985), 7. Clark maintains that eighteenth-century Britons were actually divided by a variety of ideologies and identities, such as English and Scots, but the hegemonic state retained power over a populace who submitted to its rule and who continued to conceive of allegiance in personal and theological terms. Ibid., 51. Clark has revised English Society, and Cambridge University Press is publishing the second edition in 2000. See especially J.C.D. Clark, ‘The Conflict between Laws: Sovereignty and State Formation in the United Kingdom and the United States,’ in The Language of Liberty: 1660–1832. Political Discourse and Social Dynamics in the AngloAmerican World (Cambridge: Cambridge University Press, 1994), 46–140. John Brewer also emphasized a strong central state. In Sinews of Power he argues that Britain was a strong fiscal-military state similar in power to the continental absolutist monarchies of the eighteenth century. Other historians argue against this understanding of a strong centralized state. Paul Langford’s interpretation, for example, dramatically opposes Jonathan Clark’s confessional state and John Brewer’s fiscal-military state. For Langford, the state was not authoritarian by European standards. Both parliament and the state it sustained responded to the requirements of a propertied public, which was essentially a middle-class culture. Commerce propelled society. According to Langford, the state was a product of a ‘decentralized, pluralistic, voluntary-minded society.’ Paul Langford, A Polite and Commercial People: England 1727–1783 (Oxford: Oxford University Press, 1992), 692. Edward Thompson, in Whigs and Hunters, and Douglas Hay, in Albion’s Fatal Tree, also argue for a decen-
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tralized eighteenth-century state. See Douglas Hay, ‘Property, Authority and the Criminal Law,’ in Douglas Hay, Peter Linebaugh, John G. Rule, E.P. Thompson, and Cal Winslow, Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England (New York: Pantheon Books, 1975), 17–64; and E.P. Thompson, Whigs and Hunters: the Origin of the Black Act (London: Allen Lane, Penguin Books, Ltd, 1975). Rather than focusing on the middle-class culture, Thompson and Hay explore class conflict and view it as a driving force in the formation of the state. Power rested in the hands of the local gentry, not in a centralized state based in London. 6 John Bellamy, The Law of Treason in England in the Later Middle Ages (Cambridge: Cambridge University Press, 1970). For English medieval treason law see also J.R. Lander, ‘Attainder and Forfeiture, 1453–1509,’ Historical Journal 4 (1961), 120–51; L.H. Leigh, ‘Law Reform and the Law of Treason and Sedition,’ Public Law (1977): 128–48; Samuel Rezneck, ‘The History of the Parliamentary Declaration of Treason,’ Law Quarterly Review 46 (1930): 80–102; Isobel D. Thornley, ‘Treason by Words in the Fifteenth Century,’ English Historical Review 32 (1917): 556–61; and Colin G.C. Tite, Impeachment and Parliamentary Judicature in Early Stuart England (London: Athlone Press, 1974). 7 See John Bellamy, The Tudor Law of Treason (London: Routledge & Kegan Paul, 1979); Geoffrey Elton, Policy and Police: the Enforcement of the Reformation in the Age of Cromwell (Cambridge: Cambridge University Press, 1972) and The Tudor Constitution: Documents and Commentary, Second Edition (Cambridge: Cambridge University Press, 1982); Lacey Baldwin Smith, Treason in Tudor England: Politics and Paranoia (Princeton, NJ: Princeton University Press, 1986). 8 The following are just a few citations relating to these cases. David D. Chandler, Sedgemoor, 1685: from Monmouth’s Invasion to the Bloody Assizes (Staplehurst: Spellmount, 1995); Robin Clifton, The Last Popular Rebellion: the Western Rising of 1685 (London: M.T. Smith, 1984); Paul Durst, Intended Treason: What Really Happened in the Gunpowder Plot (London: W.H. Allen, 1970); Antonia Fraser, Faith and Treason: the Story of the Gunpowder Plot (New York: Doubleday, 1996); Richard Greaves, Secrets of the Kingdom: British Radicals from the Popish Plot to the Revolution of 1688–89 (Stanford, CA: Stanford University Press, 1992); K.H.D. Haley, The First Earl of Shaftesbury (Oxford: Clarendon Press, 1968); John Kenyon, The Popish Plot (London: William Heinemann, Ltd., 1972); Doreen Milne, ‘Results of the Rye House Plot and their Influence upon the Revolution of 1688,’ Transactions of the Royal Historical Society 1, 5th series (1951): 91–108; Mark Nicholls, Investigating the Gunpowder Plot (Manchester: Manchester University Press, 1991); Conrad Russell, ‘The Theory of Treason in the Trial of Strafford,’ English Historical Review 80 (1965): 30–50; J.H.M. Salmon, ‘Algernon Sidney and the Rye House Plot,’ History Today 4, no. 10 (1954): 698–705; Lois Schwoerer, Lady Rachel Russell: One of the Best of Women (Baltimore: Johns Hopkins University Press, 1988) and ‘William, Lord Russell: the Making of a Martyr, 1683– 1983,’ Journal of British Studies 24, no. 1 (1985): 41–71; Jonathan Scott, Algernon Sidney and the Restoration Crisis, 1677–1683 (Cambridge: Cambridge
166 Notes
9
10
11
12
13 14
15 16
University Press, 1991); William Stacy, ‘Matter of Fact, Matter of Law, and the Attainder of the Earl of Strafford,’ American Journal of Legal History 29 (1985): 323–48; John Timmis, Thine is the Kingdom: the Trial for Treason of Thomas Wentworth, Earl of Strafford: First Minister to King Charles I, and Last Hope of the English Crown (Alabama: University of Alabama Press, 1979). See Gerald Paul Bodet, ‘The Meaning of Treason in Seventeenth Century England’ (PhD dissertation, Tulane University, 1963) and Robert Small, ‘“To Kill by Forms and Subtleties of Law,” the Treason Crisis in Seventeenth Century England’ (PhD dissertation, Harvard University, 1978). Alan Wharam, The Treason Trials, 1794 (Leicester: Leicester University Press, 1992). See also F. Prochaska, ‘English State Trials in the 1790s: a Case Study,’ Journal of British Studies 13 (1973): 63–82, and John Barrell, whose work on imagining the death of the king in the 1790s is forthcoming. Petit treason was defined as lesser but parallel offenses against the state: a wife murders her husband, an apprentice his master, a cleric his bishop. An examination of petit treason would offer insights into women, propertyless men, and lower clergy and their relationship to political and social authority. David Martin Jones, Conscience and Allegiance in Seventeenth Century England: the Political Significance of Oaths and Engagements (Rochester, NY: University of Rochester Press, 1999), 8. Ibid., 50. For a very brief introduction to these political trials, see Conrad Russell, ‘The Theory of Treason in the Trial of Strafford,’ as well as David Lagomarsino and Charles J. Wood, eds, The Trials of Charles I: a Documentary History (Hanover, CT: University Press of New England, 1989). Jonathan Scott, Algernon Sidney and the Restoration Crisis, 1677–1683 (Cambridge: Cambridge University Press, 1991). Geoffrey S. Holmes, The Trial of Doctor Sacheverell (London: Eyre Methuen, 1973). See The Sorrowful Lamentation and Confession of Daniel Damere, the Queen’s Waterman: Who was Convicted of High Treason at the OldBailey, on Thursday the 20th of April, 1710, a song (London: W. Walker, 1710); The Bloody Register. A Select and Judicious Collection of the Most Remarkable Trials, for Murder, Treason, Rape, Sodomy, Highway Robbery, Pyracy, House-Breaking, Perjury, Forgery, and other high Crimes and Misdemeanors. From the Year 1700, to the Year 1764 inclusive (London: E. and M. Viney, 1764). Other cases of treasonable rioting in the long eighteenth century include the tearing down of bawdy houses in 1668, and a clash between drunk Jacobites singing ‘Charley O’ and the local regiment of Dragoons at Shrewsbury in 1750. See The Tryals of Peter Messenger, Richard Beasley, William Green, Thomas Appletree (London: S. Popping, 1710) and The Tryal of Several Rioters for High-Treason; At the Sessions-House in the Old-Bailey, April 4, 1668. Some of whom were afterwards Executed. To which is added, The Judgment of the Judges on that Occasion, as reported by my Lord Chief Justice Kelyng (London: J. Harrison,
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1715). It is interesting to note that the reprinting of this trial coincided with the Sacheverell riots and again in 1715 when Jacobites were rioting in London and the Riot Act was passed in parliament. For the Shrewsbury riot see T.S. 11/926/3268 Rex v. David Bell; John Lloyd and Others. re: Treasonable riot which happened on 9 June 1750 at Shrewsbury in consequence of a party of people singing a treasonable song called ‘Charley O’. Although the published sermon became popularly known as an antiRevolution tract, a close inspection of the text disclosed few lines that were seditious, and none that were treason. According to Geoffrey Holmes, Sacheverell had ‘chosen his words carefully enough, or inserted enough studied ambiguities or contradictions to make it uncertain, to say the least, that he could be convicted of sedition on words alone.’ Holmes, The Trial of Doctor Sacheverell, 81. For an introduction to the contemporary literature relating to the trial of Lord George Gordon and the Gordon Riots see T.S. 11/389/1214 Rex v. Lord George Gordon for High Treason in regard to the ‘No Popery Riots’ of 1780; T.S. 11/1130/5968 Rex v. Gordon Rioters, Surrey Special Sessions, July 10–11, 1780; T.S. 11/981/3592 Rex v. Gordon Rioters, Surrey Special Session, July 10–11, 1780; Thomas Erskine, Mr. Erskine’s Speech, at the Trial of Lord George Gordon. For High Treason, at the Bar of the Court of King’s Bench, On Monday, February 5, 1781 (London: Fielding and Walker, 1781); The Trial of George Gordon, Esq., Commonly called Lord George Gordon. For High Treason, at the Bar of the Court of King’s Bench, On Monday, February 5th, 1781. The Third Edition (London: G. Kearsly, 1781); The Trial of Lord George Gordon, for High Treason at the Bar of the Court of King’s Bench, On Monday, February 5th, 1781 (Edinburgh: J. Mennons and Co., 1781); Fanaticism and Treason: Or, a Dispassionate History of the Rise, Progress, and Suppression, of the Rebellious Insurrections in June 1780 (London: G. Kearsly, 1780); William Vincent, A Plain and Succinct Narrative of the Late Riots and Disturbances in the Cities of London and Westminster, and Borough of Southwark (London: Fielding and Walker, 1780). For provocative and recent interpretations of the significance of the Gordon Riots see Douglas Hay, ‘The Laws of God and the Laws of Man: Lord George Gordon and the Death Penalty,’ in Protest and Survival: Essays for E.P. Thompson, eds, John Rule and Robert Malcolmson (London: The Merlin Press Ltd., 1993), 60–111, and Peter Linebaugh, ‘The Delivery of Newgate, 6 June 1780,’ in Peter Linebaugh, The London Hanged: Crime and Civil Society in the Eighteenth Century (Cambridge: Cambridge University Press, 1992), 333–70. John Cairns, ‘Scottish Law, Scottish Lawyers and the Status of Union,’ in A Union for Empire: Political Thought and the British Union of 1707, ed., John Robertson (Cambridge: Cambridge University Press, 1995), 250. V.A.C. Gatrell, The Hanging Tree: Execution and the English People, 1770– 1868 (Oxford: Oxford University Press, 1994), 298.
168 Notes
Chapter 1 Treason, allegiance and sovereignty in England, 1608–88 1 Edward Coke, The Third Part of the Institutes of the Laws of England, Concerning High Treason, And Other Pleas of the Crown and Criminal Causes (London: E. and R. Brooke, 1797), 2. 2 Ibid., 3. 3 Ibid., 2. 4 Statutes of the Realm, vol. 1 (London, 1819), 319–20. 5 Ibid., 320. 6 Ibid. 7 Ibid. 8 Coke, The Third Part of the Institutes, 9. 9 Attainder through parliament was a faster method of removing political opponents than a formal trial. Lawyers construed treason in the fifteenth century, but certainly not to the extent that they did in the sixteenth and seventeenth centuries. Isobel D. Thornley, ‘Treason by Words in the Fifteenth Century,’ English Historical Review 32 (1917): 556–61. 10 S.H. Cutler, The Law of Treason and Treason Trials in Later Medieval France (Cambridge: Cambridge University Press, 1981), and William Holdsworth, History of English Law, vol. 3, 461. See also Floyd S. Lear, Treason in Roman and Germanic Law; Collected Papers (Austin, TX: University of Texas Press for Rice University, 1965). 11 See John Bellamy, The Law of Treason in England in the Later Middle Ages (Cambridge: Cambridge University Press, 1970), 3–14. 12 Edward Powell, Kingship, Law and Society: Criminal Justice in the Reign of Henry V (Oxford: Clarendon Press, 1989), 26. 13 Gaines Post, Studies in Medieval Legal Thought: Public Law and the State, 1100–1322 (Princeton, NJ: Princeton University Press, 1964), 322. 14 Ibid., 365. 15 Powell, Kingship, Law and Society, 33. 16 Ibid., 131. 17 Bellamy, The Law of Treason in England, 99. 18 Ibid., 99. 19 G.R. Elton, Policy and Police: the Enforcement of the Reformation in the Age of Cromwell (Cambridge: Cambridge University Press, 1972), 264. The research of Isobel Thornley in the 1930s and Bellamy’s The Law of Treason in England in the Later Middle Ages of 1970 has settled the question as to whether constructive treason was used in medieval law. They have convincingly disproved William Holdsworth who in volume three of his History of English Law denied the existence of constructive treason prior to the sixteenth century. The use of constructive treason increased during the sixteenth and seventeenth centuries, particularly in the trials of the 1640s. 20 Coke, The Third Part of the Institutes, 8. 21 Bellamy, Law of Treason in England, 100. 22 Coke, The Third Part of the Institutes, 9. 23 Coke came to this conclusion when judging Wilson and Clark, two
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26 27 28
29 30 31 32 33
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seminary priests who claimed exemption from the law of treason because they committed the act before the coronation of James as King of England. See John Robertson, ‘Empire and Union,’ and J.G.A. Pocock, ‘Empire, State, and Confederation: the War of American Independence as a Crisis in Multiple Monarchy,’ in A Union for Empire: Political Thought and the British Union of 1707, ed. John Robertson (Cambridge: Cambridge University Press, 1995). Danby Pickering, The Statutes at Large, From the First Year of K. Richard III to the 31st Year of K. Henry VIII, Inclusive Vol. IV (Cambridge: Joseph Bentham, 1763), 338. See John Bellamy, The Tudor Law of Treason; and Geoffrey Elton, ‘The Law of Treason,’ in The Tudor Constitution: Documents and Commentary, Second Edition, ed. Geoffrey Elton (Cambridge: Cambridge University Press, 1982), 59–87. Statutes at Large, vol. 2, 394. Ibid., 482. Samuel Rezneck addressed this in his essay, ‘The Trial of Treason in Tudor England,’ in Essays in History and Political Theory in Honor of Charles Howard McIlwain, ed. Carl Frederick Wittke (New York: Russell & Russell, 1964), 258–88. A man convicted of praemunire lost not only the protection of the Crown, but also forfeited his lands to the king. Statutes of the Realm, vol. 5, 305. James Phifer, ‘Law, Politics, and Violence: the Treason Trials Act of 1696,’ Albion 12, no. 3 (1980): 237. Holdsworth, History of English Law, vol. 8 (Boston: Little Brown & Co., 1925), 319. See Glenn Burgess, Absolute Monarchy and the Stuart Constitution (New Haven, CT: Yale University Press, 1996); J.H. Burns and Mark Goldie, eds, The Cambridge History of Political Thought 1450–1700 (Cambridge: Cambridge University Press, 1991); J.C.D. Clark, English Society, 1688– 1832: Ideology, Social Structure and Political Practice During the Ancien Regime, 2nd ed. (Cambridge: Cambridge University Press, 2000) and Revolution and Rebellion: State and Society in England in the Seventeenth and Eighteenth Centuries (Cambridge: Cambridge University Press, 1986); Conal Condren, The Language of Politics in Seventeenth-Century England (New York: St. Martin’s Press, 1994); Brian Levack, The Formation of the British State: England, Scotland, and the Union, 1603–1707 (Oxford: Clarendon Press, 1987); John Morrill, ed., Oliver Cromwell and the English Revolution (London: Longman, 1990); Howard Nenner, The Right to Be King: the Succession to the Crown of England, 1603–1714 (Chapel Hill, NC: the University of North Carolina Press, 1995); J.G.A. Pocock, Gordon J. Schochet and Lois G. Schwoerer, eds, The Varieties of British Political Thought, 1500–1800 (Cambridge: Cambridge University Press, 1993); Jonathan Scott, Algernon Sidney and the English Republic, 1623– 1677 (Cambridge: Cambridge University Press, 1988) and Algernon Sidney and the Restoration Crisis, 1677–1683 (Cambridge: Cambridge University Press, 1991); Johann Sommerville, ‘Richard Hooker, Hadrian Saravia and the Advent of the Divine Right of Kings,’ History of Political
170 Notes
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35
36
37
38 39 40 41 42 43 44 45 46
47 48 49
Thought 4 (1983): 229–45 and Politics and Ideology in England, 1603– 1640 (London: Longman Press, 1986). See J.P. Kenyon, The Stuart Constitution, 1603–1688. Documents and Commentary, Second Edition (Cambridge: Cambridge University Press, 1986); J.G.A. Pocock, The Ancient Constitution and the Feudal Law: a Study of English Historical Thought in the Seventeenth Century. A Reissue with a Retrospect (Cambridge: Cambridge University Press, 1957, 1987); Conrad Russell, Unrevolutionary England, 1603–1642 (London: Hambledon Press, 1990). Johann Sommerville and Glenn Burgess illustrate two divergent but main streams of the recent historiographical debate concerning sovereignty and the state. See Johann Sommerville, ‘English and European Political Ideas in the Early Seventeenth Century: Revisionism and the Case of Absolutism,’ Journal of British Studies 35, no. 2 (April 1996): 168–94, ‘Richard Hooker, Hadrian Saravia and the Advent of the Divine Right of Kings,’ and Politics and Ideology. See Glenn Burgess, Absolute Monarchy and the Stuart Constitution (New Haven, CT: Yale University Press, 1996) and The Politics of the Ancient Constitution: an Introduction to English Political Thought, 1603–1642 (University Park, PA: Pennsylvania University Press, 1993). Ellesmere desired to simplify the law of equity and heard civil cases presented in the Court of Chancery. Ellesmere and Coke did not always agree, but both believed in their duties to practice according to the law of the realm and to the honor of the king. Ellesmere and Jean Bodin shared the view that the king had the right to the royal prerogative. Unlike Bodin, who believed sovereignty rested in the public office of the king, Ellesmere believed that sovereignty represented allegiance owed by communities who formed a commonwealth and remained vested in the private person of the monarch. Louis Knafla, Law and Politics in Jacobean England: the Tracts of Lord Chancellor Ellesmere (Cambridge: Cambridge University Press, 1977), 73. Henry Wheeler, ‘Calvin’s Case (1608) and the McIlwain-Schuyler Debate,’ American Historical Review 61 (1956): 588. Bruce Galloway, The Union of England and Scotland, 1603–1608 (Edinburgh: John Donald Publishers, Ltd, 1986), 146. Ibid., 110. Ibid., 119. Sir Edward Coke, The Seventh Part of the Reports of Sir Edward Coke (London: E. and R. Nutt, and R. Gosling, 1727), 2. Wheeler, ‘Calvin’s Case,’ 588. Coke, The Seventh Part, 3. Knafla, Law and Politics, 66. Ellesmere, ‘The Speech of the Lord Chancellor of England, in the Exchequer Chamber, Touching the Post-Nati’ (1608), in Knafla, Law and Politics, 248. Ellesmere, ‘The Speech of the Lord Chancellor,’ 245–6. Ibid., 246. Ibid.
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50 Ibid., 245. 51 Coke, The Seventh Part, 4. 52 Ibid., 6. According to the historian Henry Wheeler, Coke judged in favor of Calvin. He did so, however, ‘without ruling that the union of the crowns had caused a resulting degree of union between the laws and institutions of England and Scotland, thus giving judgment for James without actually conceding defeat to the Commons.’ Wheeler, ‘Calvin’s Case,’ 589. 53 Coke, The Seventh Part, 16. 54 Ibid., 10. 55 Ibid., 11. 56 See Sommerville and Burgess on Coke. Both authors devote attention to the opinions of the Lord Chief Justice, Sir Edward Coke, and not surprisingly find in his Reports and Institutes support for their differing arguments. Sommerville’s Coke was ‘radically anti-absolutist.’ Sommerville, Politics and Ideology, 87. Burgess thinks Sommerville not only misrepresents Coke but also that he overstates the entire absolutist versus resistance scenario. Rather than understanding parliament as a sovereign legislator, Burgess argues that Coke – and the English people in general – believed parliament to be a sovereign court whose decisions could not be appealed. Burgess, Absolute Monarchy, 181. 57 Coke, The Seventh Part, 12. 58 Ibid., 15. 59 Ibid., 25. 60 Ibid., 26. 61 David Martin Jones, Conscience and Allegiance in Seventeenth Century England: the Political Significance of Oaths and Engagements (Rochester, NY: University of Rochester Press, 1999), 71. 62 Alan Orr, unpublished PhD thesis, Cambridge University (1997); Samuel Rezneck, ‘The History of the Parliamentary Declaration of Treason,’ Law Quarterly Review 46 (1930): 80–102; Conrad Russell, ‘The Theory of Treason in the Trial of Strafford,’ English Historical Review 80 (1965): 30–50. Nenner, The Right to Be King; Gerald Paul Bodet, ‘The Meaning of Treason in Seventeenth Century England’ (unpublished PhD dissertation, Tulane University, 1963); Robert Small, ‘“To Kill by Forms and Subtleties of Law,” the Treason Crisis in Seventeenth Century England’ (unpublished PhD dissertation, Harvard University, 1978); John Timmis, Thine is the Kingdom: the Trial for Treason of Thomas Wentworth, Earl of Strafford: First Minister to King Charles I, and Last Hope of the English Crown (Montgomery: University of Alabama Press, 1979). 63 What precisely explains the strident anger against Strafford when parliament met the following year is part of the enormous historiography concerning the causes of the Civil War. For a few printed primary sources related to Strafford see An Argument of Law Concerning the Bill of Attainder of High Treason of Thomas, Earle of Strafford, at a Conference in a committee of both Houses of Parliament. by Oliver St. John (London, 1641); The Bill of Attainder that Passed against Thomas Earle of Strafford (London: J.A., 1641); The Declaration of Iohn Pym Esquire upon the whole Matter of the Charge of High Treason against Thomas Earle of Strafford,
172 Notes
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65
66
67 68 69 70
71 72 73 74 75 76 77
78
79
April 12, 1641. . . . (London, 1641); and An Impartial Account of the Arraignment Trial and Condemnation of Thomas late Earl of Strafford, . . . (London: Joseph Hindmarsh, 1679). The Trial of the Earl of Strafford in Thomas Salmon, Tryals for hightreason, and other crimes . . . (London: D. Browne, G. Strahan, N. Mears, R. Gosling, and F. Clay, 1720–31), 194. John Rushworth, Historical Collections of Private Passages of State, Weighty Matters in Law . . . Beginning in the Sixteenth Year of King James, anno 1618 and ending . . . With the Death of King Charles the First 1648 (London: Thomas Newcomb for George Thomson, 1659–1701), 427. The account by John Rushworth is the standard source of documentation for the Earl of Strafford’s trial. On 25 April 1640 Henry Elsing, the clerk, requested that Rushworth be appointed clerk-assistant to the House of Commons. The House prohibited Rushworth from taking notes except under its express orders, but he attended each day of Strafford’s trial. He did not compose his notes into a readable narrative until 1680, but they remain one of the few primary sources available concerning this trial. Calendar of State Papers Domestic. 1640–41, 543; and The Trial of Thomas Earl of Strafford, Lord Lieutenant of Ireland, for High-treason, the 22d of March 1640, in Complete Collection of State Trials, vol. 1, 756. Ibid., 756. The italics are my own. Ibid., 662. Conrad Russell, The Fall of the British Monarchies, 1637–1642 (Oxford: Clarendon Press, 1991), 290. The Trial of Dr. William Laud, Archbishop of Canterbury, in Complete Collection of State Trials, vol. 1, 828. See also Articles Exhibited in Parliament Against William Archbishop of Canterbury. . . . (London, 1640); Articles of the Commons Assembled in Parliament: . . . (London: John Wright, 1643); Mr Grymstone’s Speech in Parliament upon the Accusation and Impeachment of William Laud Arch-bishop of Canterbury upon High Treason (London, 1641); and Rome for Canterbury, or A True Relation of the Birth and Life of William Laud Arch-Bishop of Canterbury: . . . (London, 1641). The Trial of Dr. William Laud, Archbishop of Canterbury, in Complete Collection of State Trials, vol. 1, 828. Ibid., 828. Ibid. Ibid., 842. Ibid. Ibid., 937. Though rare, the act of overthrowing a king was not without precedent in English history. A group of barons deposed Edward II (1327) and Richard II (1399). Both died in custody. In 1471 magnates deposed, imprisoned and ultimately murdered Henry VI. John Rushworth, Historical Collections of Private Passages of State, Weighty Matters in Law . . . vol. 5 (London: Thomas Newcomb for George Thomson, 1659–1701), 728. Full Proceedings of the High Court of Justice Against King Charles (London: William Shears, 1654), 8. For other primary sources related to the trial
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87 88 89 90 91 92 93 94 95 96
97 98
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102 103
173
of the king see Perfect Narrative of the Whole Proceedings of the High Court of Justice in the Tryals of the King in Westminster Hall (London: John Playford, 1648); Treason Discovered: or, the Black Book Opened. Being an Historical Account of the Most Notorious and Bloody Judges of the Royal Martyr King Charles I. Edinburgh: printed at London in the year 1660 (Edinburgh: James Watson, 1713); and The Trial of Charles Stuart, late King of England, before the High-Court of Justice, for High-Treason . . . (London: James Mechell, 1735). Christopher Hill, God’s Englishman: Oliver Cromwell and the English Revolution (London: Weidenfeld and Nicolson, 1970), 100. The Newport negotiations did not produce a written agreement. ‘No meeting of the minds took place, and . . . on 27 October parliament had no choice but to declare the negotiations at an end.’ John Kenyon, Civil Wars of England (New York: Alfred P. Knopf, 1988), 193. Nenner, The Right to be King, 68–70. Ibid., 68–70. Anon. Workes of King Charles the Martyr (London: James Flesher for R. Royston, 1662), 293. Journals of the House of Commons (CJ), vol. 6, 111. Ibid., 111. Neither the king nor the jurors removed their hats and thus demonstrated their disdain for each other. John Bradshaw had his hat lined with lead as a guard against possible gunshot from the balcony, and the Ashmolean Museum, Oxford, now displays it. The Trial of Charles I, in Complete Collection of State Trials, vol. 1, 990. Perfect Narrative of the Whole Proceedings of the High Court of Justice in the Tryals of the King in Westminster Hall (London: John Playford, 1648), 1. Ibid., 6. Ibid., 14. Thomas Salmon, The Tryal of King Charles the First, in the Month of January, in the 24th Year of his Reign, 1648 (London, 1648), 501. Full Proceedings of the High Court of Justice Against King Charles, 81. Perfect Narrative of the Whole Proceedings, 2. Ibid., 8. The Trial of Charles I, in Complete Collection of State Trials, vol. 1, 991. Robert Chambers, A Course of Lectures on the English Law, 1767–1773, Presented at the University of Oxford, 1767–1773, Thomas Curley, ed., vol. 1 (Madison, WI: University of Wisconsin Press, 1986), 377. The Trial of Charles I, in the Complete Collection of State Trials, vol. 1, 301. David Lagomarsino and Charles J. Wood, eds, The Trial of Charles I: a Documentary History (Hanover, CT: University Press of New England, 1989), 108. The Trial and Execution of Charles I, 8. Bodet, ‘Meaning of Treason in Seventeenth Century England,’ 132. The Tryal of James Duke of Hamilton, and Earl of Cambridge for HighTreason. Before the High-Court of Justice, 9 February 1648, in Thomas Salmon, Tryals for High Treason, 511. Ibid., 515. Ibid.
174 Notes 104 105 106 107 108 109 110
111 112 113 114 115
116 117 118 119 120 121 122 123 124
125 126 127 128 129 130 131
132 133
Ibid., 514. Ibid., 518. Ibid., 520. Ibid., 521. Ibid., 522. Coke, The Seventh Part, 6; and Ellesmere, ‘The Speech of the Lord Chancellor,’ in Knafla, Law and Politics, 245. 1648, Cap. 4 in A Collection of Acts and Ordinances of General Use, made in the Parliament Begun and held at Westminster the third day of November, Anno 1640 and since, unto the Adjournments of the Parliament begun and holden the 17th of September, Anno 1656 (London, 1662), 3. 1648, Cap. 16, in A Collection of Acts and Ordinances, 8. Ibid. 1649, Cap. 27, in A Collection of Acts and Ordinances, 30. 1649, Cap. 28, in A Collection of Acts and Ordinances, 30. The Tryal of Lieutenant-Colonel John Lilburne, by an Extraordinary Commission of Oyer and Terminer, at Guildhall, London, the 24th, 25th and 26th of October, 1649, in Thomas Salmon, Tryals for High Treason, 545. Ibid., 533. Ibid., 535. Ibid., 539. Ibid., 574. Ibid., 608–9. Ibid., 616. Ibid. Kenyon, Stuart Constitution, 299. The Tryal of the Honourable Colonel John Penruddock, for High-Treason, before Commissioners of Oyer and Terminer at the Castle of Exon the 19th of April, 1655, in Thomas Salmon, Tryals for High-Treason, and other Crimes . . ., 662. Ibid., 663. Ibid., 664. Ibid., 665. 1656, Cap. 3, in A Collection of Acts and Ordinances, 372. Ibid. Ibid., 375. The Tryal of Sir Henry Slingsby, Knight, for High-Treason, before the HighCourt of Justice in Westminster-Hall, the 25th of May 1658, in Thomas Salmon, Tryals for High Treason, 673. Other trials in 1658 also referred to His Highness the Lord Protector. See The Tryal of John Hewet, D. D. for High-Treason, before the High-Court of Justice in Westminster-Hall, the first of June 1658, and The Tryal of the Honourable John Mordant, Esq; before the High-Court of Justice, for High-Treason, on Tuesday the first of June 1658, in Thomas Salmon, Tryals for High-Treason, 677–83. The Tryal of the Honourable John Mordant, in Thomas Salmon, Tryals for High-Treason, and other Crimes . . ., 688. The Tryals of the Twenty-Nine Regicides for High-Treason, Which begun at the Old-Bailey, London, the 10th of October, 12 Car. 2. 1660, in Thomas Salmon, Tryals for High Treason and other Crimes . . ., 689.
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134 Ibid., 758. 135 Tim Harris, ‘What’s New About the Restoration?’ Albion 29, no. 2 (Summer 1997): 187–222. 136 We see this with just a quick glance at A Complete Collection of State Trials. The Crown tried the following for high treason: 1660: 1661: 1662:
29 regicides; Archibald, Marquis of Argyll; Henry Vane, John James, Thomas Tonge, George Phillips, Francis Stubbs, James Hind, John Sellers and Nathaniel Gibbs; 1663–7: Proceedings in parliament against Edward Earl of Clarendon, Lord High Chancellor of England for high treason, and other high crimes and misdemeanors; 1668: Peter Messenger, Richard Beasley, William Green, Thomas Appletree, Edward Cotton, Edward Bedle, Richard Latimer, John Sharpless, Thomas Limmerick and others for pulling down bawdy-houses; 1677: Anthony Earl of Shaftesbury at the King’s Bench; 1678: William Staley, Edward Coleman, William Ireland, Thomas Pickering and John Grove, and proceedings in parliament against Thomas Earl of Danby; 1679: David Lewis, Jesuit, pretended Bishop of Llandaff, at Monmouth; the Jesuits Thomas Whitebread, William Harcourt, John Fenwick, John Gavan and Anthony Turner; Richard Langhorne; the monks George Wakeman, William Marshal, William Rumley and James Corker; the Catholic priests Charles Kerne, at Hereford, and Andrew Brommich, at Stafford; William Atkins, Thomas Knox and John Lane; and Catholic priests Lionel Anderson, William Russell, Charles Parris, Henry Starkey, James Corker, William Marshal, Alexander Lumsden, Joseph Kemish and Thomas Gascoigne; 1680: Elizabeth Cellier, Roger Palmer, Earl of Castlemain, Thomas Thwing and Mary Prefficks, William Viscount Stafford; 1681: Proceedings in parliament against Edward Fitz-Harris upon an impeachment for high treason and his trial at the Court of King’s Bench; Dr. Oliver Plunket, Titular Primate of Ireland; Sir Miles Stapleton; the Catholic priest George Busby; Proceedings on the Bill of Indictment for High Treason against Anthony Earl of Shaftesbury; Earl of Argyle; 1683: Captain Thomas Walcot, William Hone, William Lord Russell, John Rouse, William Blague, and Algernon Sidney; 1684: James Holloway, outlawry for high treason, Sir Thomas Armstrong, outlawry for high treason, Thomas Rosewell, Joseph Hayes and Robert Baillie. 137 Harris, ‘What’s New About the Restoration,’ 197. 138 Ibid., 200. The following citations highlight just a few of the historians who have explored the problem of religion in Restoration England. J.A.I. Champion, The Pillars of Priestcraft Shaken: the Church of England
176 Notes and its Enemies, 1660–1730 (Cambridge: Cambridge University Press, 1992); J.C.D. Clark, English Society, 1688–1832, 2nd edition and Revolution and Rebellion; Gary S. De Krey, ‘Reformation in the Restoration Crisis, 1679–82,’ in Donna Hamilton and Richard Strier, eds, Religion, Literature and Politics in Post-Reformation England, 1540–1688 (Cambridge: Cambridge University Press, 1996); K.H.D. Haley, ‘“No Popery” in the Reign of Charles II,’ in J.S. Bronley and E.H. Kossman, eds, Britain and the Netherlands (The Hague: Nijhoff, 1975) 102–19; Tim Harris, Paul Seaward and Mark Goldie, eds, The Politics of Religion in Restoration England (Oxford: Basil Blackwell, 1990); John Kenyon, The Popish Plot (London: William Heinemann, Ltd, 1972); and Douglas R. Lacey, Dissent and Parliamentary Politics in England, 1661–1689 (Rutgers: Rutgers University Press, 1969). 139 Harris, ‘What’s New About the Restoration,’ 204. 140 See John Carswell, The Porcupine, the Life of Algernon Sidney (London: John Murray, Ltd., 1989); Robin Clifton, The Last Popular Rebellion: the Western Rising of 1685 (London: Maurice Temple Smith Ltd., 1984); Alan Cromartie, Sir Matthew Hale 1609–1676: Law, Religion, and Natural Philosophy (Cambridge: Cambridge University Press, 1995); Peter Earle, Monmouth’s Rebels: the Road to Sedgemoor (London: Weidenfeld and Nicholson, 1977); Carolyn Andervont Edie, ‘Succession and Monarchy: the Controversy of 1679–1681,’ American Historical Review 70 (1964–65): 350–70; James Ferguson, Robert Ferguson, the Plotter: the Secret of the Rye-House Conspiracy and the Story of a Strange Career (Edinburgh: David Douglas, 1887); Richard Greaves, Secrets of the Kingdom: British Radicals from the Popish Plot to the Revolution of 1688–89 (Stanford, CA: Stanford University Press, 1992); Tim Harris, Restoration until the Exclusion Crisis (Cambridge: Cambridge University Press, 1987) and Politics Under the Later Stuarts: Party Conflict in a Divided Society, 1660–1715 (London: Longman, 1993); Alan Houston, Algernon Sidney and the Republican Heritage in England and America (Princeton: Princeton University Press, 1991); Ronald Hutton, Charles II, King of England, Scotland, and Ireland (Oxford: Oxford University Press, 1989); J.R. Jones, The First Whigs: the Politics of the Exclusion Crisis, 1673–83 (London: Oxford University Press, 1961); George W. Keeton, Lord Chancellor Jeffreys and the Stuart Cause (London: MacDonald, 1965); John Kenyon, Robert Spencer, Earl of Sunderland, 1641–1702 (London: Longmans, Green and Co., Ltd, 1958. Reprint Gregg Revivals, 1992); John Miller, ‘The Potential for “Absolutism” in Later Stuart England,’ History 69, no. 226 (June 1984): 187–207; Doreen Milne, ‘Results of the Rye House Plot and their Influence upon the Revolution of 1688,’ TRHS 1, 5th series (1951): 91–108; David Ogg, England in the Reign of Charles II, 2 vols (Oxford: Clarendon Press, 1955); J.H.M. Salmon, ‘Algernon Sidney and the Rye House Plot,’ History Today 4, no. 10 (1954): 698–705; Lois Schwoerer, ‘William, Lord Russell: the Making of a Martyr, 1683–1983,’ Journal of British Studies 24, no. 1 (1985): 41–71, and Lady Rachel Russell: One of the Best of Women (Baltimore: Johns Hopkins University Press, 1988); Jonathan Scott, Algernon Sidney and the Restoration Crisis, 1677–1683 (Cambridge: Cambridge University Press, 1991); and Lisa Steffen, ‘The Trial of William,
Notes
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142 143 144 145
146
177
Lord Russell: a Case Study of the Use and Interpretation of the Law of Treason,’ (unpublished MA thesis, University of Kansas, 1993). Scott, Algernon Sidney and the Restoration Crisis, 1677–1683, 270. For primary sources related to the treason trials of Russell and Sidney see Anon., An Account of the Tryals of William Ld. Russell, William Hone, John Rouse, and William Blake: . . . (London: J. Grantham, 1683); An Act for Annulling and Making Void the Attainder of William Russell, Esq., . . . in Complete Collection of State Trials, vol. 3, 471 (London: T. Wright, 1776); The Execution of Wm. Lord Russel: . . . (London: J. Grantham, 1683); The History of the Whiggish-plot, or, A Brief Historical Account of the Charge and Deefnce [sic] of [brace] William Lord Russel, Capt. Tho. Walcot, John Rouse, William Hone, . . . (London: T.B., 1684); The Life and Death of the Honourable William Lord Russel; who was beheaded in Lincolns-Inn-Fields on Saturday the 21st of July, 1683, for High Treason. . . . (London: J. Read, 1708); The Last Speech and Behavior of William Lord Russell upon the Scaffold (London: Thomas Fox, 1683); The Animadversions and Remarks upon Collonel Sydney’s Paper Answered (London: for the author S. Ward, 1684); The Condemnation, Behaviour, Last Dying Words, and Execution of Algernon Sidny [sic], Esq.: . . . (London: for L., 1683); and An Exact Account of the Trial of Algernon Sidney who was tried at the Kings-Bench-Bar at Westminster this Present Wednesday, . . . (London: E. Mallet, 1683). Scott, Algernon Sidney and the Restoration Crisis, 1677–1683, 295. Ibid., 298. John Kenyon, Revolution Principles: the Politics of Party, 1689–1720 (Cambridge: Cambridge University Press, 1977), 9. Even Tim Harris reminds us of this in a footnote: ‘It should be emphasized that a belief in royal absolutism and a commitment to the rule of law were not necessarily antithetical. Absolute monarchs were supposed to rule in accordance with the law.’ Harris, ‘What’s New about the Restoration?’ fn 55, 208. Journals of the House of Lords, vol. 14, 16 December 1689, 125.
Chapter 2 Dynastic treason: national identity after the Glorious Revolution 1 Geoffrey Elton explained that this de facto Act did not distinguish between a king who was so by right and a king who was so by fact. Indeed, ‘it speaks only of one kind of king who is so “for the time being,” a common Tudor phrase which means no more than “at the time in question.”’ G.R. Elton, ed., The Tudor Constitution: Documents and Commentary, Second edition (Cambridge: Cambridge University Press, 1960, 1982), 2. Allegiance to the de facto king is protected from any future accusations of treason, and thus in good conscience subjects offered obedience and service to the present monarch. 2 Howard Nenner, The Right to be King: the Succession to the Crown of England, 1603–1714 (Chapel Hill, NC: University of North Carolina Press, 1995), 192.
178 Notes 3 Thomas Babington Macaulay, The History of England from the Accession of James II, 5 vols (New York: Butler Brothers, 1888); George Macaulay Trevelyan, The English Revolution, 1688–1689 (London: Oxford University Press, 1938); and David Ogg, England in the Reign of Charles II, 2 vols, 2nd ed. (Oxford: Oxford University Press, 1955) and England in the Reigns of James II and William III (Oxford: Oxford University Press, 1955). 4 G.V. Bennett, ‘Conflict in the Church,’ in Geoffrey Holmes, ed., Britain after the Glorious Revolution, 1689–1714 (London: Macmillan Press – now Palgrave, 1969) and The Tory Crisis in Church and State: the Career of Francis Atterbury, Bishop of Rochester (Oxford: Oxford University Press, 1975); J.C.D. Clark, English Society, 1688–1832: Ideology, Social Structure and Political Practice During the Ancien Regime, 2nd ed. (Cambridge: Cambridge University Press, 2000); Revolution and Rebellion: State and Society in England in the Seventeenth and Eighteenth Centuries (Cambridge: Cambridge University Press, 1986); Linda Colley, In Defiance of Oligarchy: the Tory Party, 1714–1760 (Cambridge: Cambridge University Press, 1982); H.T. Dickinson, Liberty and Property. Political Ideology in Eighteenth-Century Britain (New York: Holmes & Meier Publishers, 1977); Bruce Lenman, The Jacobite Risings in Britain, 1689–1746 (London: Eyre Methuen, Ltd, 1980); Paul Monod, Jacobitism and the English People, 1688–1788 (Cambridge: Cambridge University Press, 1987); Daniel Szechi, ‘The Jacobite Revolution Settlement, 1689–1696,’ English Historical Review 108, no. 428 (July 1993): 610–28; John Western, Monarchy and Revolution: the English State in the 1680s (London: Blandford Press, 1972). 5 Richard Greaves, Secrets of the Kingdom: British Radicals from the Popish Plot to the Revolution of 1688–89 (Stanford, CA: Stanford University Press, 1992), 340. Tim Harris saw the 1688 Revolution as the final chapter of the Exclusion Crisis when the powers of parliament expanded at the expense of the king and tolerance was advocated for the Dissenters. Tim Harris, Politics under the Later Stuarts: Party Conflict in a Divided Society, 1660–1715 (London: Longman Group UK Ltd, 1993). See Lois Schwoerer, The Declaration of Rights, 1689 (Baltimore: The Johns Hopkins University Press, 1981); John Brewer, The Sinews of Power: War, Money and the English State, 1688–1783 (Cambridge, Mass: Harvard University Press, 1988). See also Julian Hoppit, ‘Patterns of Parliamentary Legislation, 1660–1800,’ Historical Journal 39, no. 1 (1996): 109–31. Hoppit argued that by the early eighteenth century nothing was more powerful than the legislative power of parliament. Henry Horwitz, Parliament, Policy, and Politics in the Reign of William III (Manchester: Manchester University Press, 1977). Lois Schwoerer, ‘Propaganda in the Revolution of 1688–89,’ American Historical Review 82, no. 4 (October 1977): 843–74, and ‘Images of Queen Mary II, 1689–94,’ Renaissance Quarterly 42, no. 4 (Winter 1989): 717–48; Jonathan Israel, ed., The Anglo-Dutch Moment: Essays on the Glorious Revolution and its World Impact (Cambridge: Cambridge University Press, 1991); Mark Goldie, ‘The Revolution of 1689 and the Structure of Political Argument: an Essay and an Annotated Bibliography of Pamphlets on the Allegiance Controversy,’ Bulletin of Research in the Humanities 83, no. 4 (Winter 1980):
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473–564; and Tony Claydon, ‘William III’s Declaration of Reasons and the Glorious Revolution,’ Historical Journal 39, no. 1 (March 1996): 87– 107 and William III and the Godly Revolution (Cambridge: Cambridge University Press, 1996). In his book, Claydon further developed his argument that between 1689 and 1702 propaganda was not concerned with legal or constitutional issues, but rather was providential and biblically based. For the Revolution as an aristocratic coup see John Kenyon, Revolutionary Principle: the Politics of Party, 1689–1720 (Cambridge: Cambridge University Press, 1977); Lois Schwoerer, The Declaration of Rights, 1689 (Baltimore: Johns Hopkins University Press, 1981); John Cannon, Aristocratic Century: the Peerage of Eighteenth-Century England (Cambridge: Cambridge University Press, 1987); and Robert Beddard, ‘The Unexpected Whig Revolution of 1688,’ in Robert Beddard, ed., The Revolutions of 1688 – The Andrew Browning Lectures 1988 (Oxford: Clarendon Press, 1988), 11–101. Most recently, Stephen Saunders Webb has argued the coup was not aristocratic, but achieved by the machinations of one man in particular, John Churchill. See Stephen Saunders Webb, Lord Churchill’s Coup: the Anglo-American Empire and the Glorious Revolution Reconsidered (New York: Alfred A. Knopf, 1995) and Philip Lawson, ‘Historiographical Perspective. Hanoverian Studies: the Impact of Recent Trends on Parliamentary History,’ Parliamentary History 7, pt. 1 (1988): 131. 6 John Miller, James II: a Study in Kingship (London: Hove, 1978). John Kenyon in Revolutionary Principles argued that John Locke was ignored or abused before 1692. The defenders of the Revolution were not Lockeian. Instead, men slowly came to terms with the Revolution Settlement by accepting either that Providence had willed that William and Mary’s regime would prosper, that William had conquered James, or that the law obliged them to offer allegiance to the de facto monarchs. No coherent ‘revolution principles’ guided the decisions made: see John Kenyon, Revolution Principles. Thomas Slaughter directly challenged this theory in 1981, interpreting the word ‘abdicate’ as meaning ‘deposition from sovereignty:’ Thomas P. Slaughter, ‘“Abdicate” and “Contract” in the Glorious Revolution,’ Historical Journal 24, no. 2 (1981): 323–38. John Miller reconsidered Slaughter’s ideas of ‘contract’ and ‘abdication’ and essentially concluded that Kenyon’s revisionism remained unchallenged: John Miller, ‘The Glorious Revolution: “Contract” and “Abdication” Reconsidered,’ Historical Journal 24, no. 3 (1982): 541–56. For Miller, the Revolution Settlement was not dominated by theory or philosophy, but rather by common sense and pragmatism. Shortly after the publication of Miller’s thesis, however, Richard Ashcraft and M.M. Goldsmith tried to save Locke by arguing that while Locke’s Two Treatises did not immediately become a bible for Whig orthodoxy, his ideas flowed into other pamphlets such as Vox Populi, Vox Dei (1709) which was based on Political Aphorisms (1690) and plagiarized from the Two Treatises. Richard Ashcraft and M.M. Goldsmith, ‘Locke, Revolution Principles, and the Formation of Whig Ideology,’ Historical Journal 26, no. 4 (1983): 773–800. Locke’s influence did not die an easy death, and certainly he
180 Notes
7 8 9 10
remains for some historians of the eighteenth century the harbinger of enlightened and progressive government. See Corinne Comstock Weston and Janelle Renfrow Greenberg, Subjects and Sovereigns: the Grand Controversy over Legal Sovereignty in Stuart England (Cambridge: Cambridge University Press, 1981). Mark Goldie’s unfavorable review condemned this book for its ‘exceptionally traditional teleology.’ Mark Goldie, Historical Journal 26, no. 4 (1983): 1029–30. Jonathan Clark asserted that English national consciousness was linked to a shared history of the rule of law and Christianity: J.C.D. Clark, ‘National Identity, State Formation and Patriotism: the Role of History in the Public Mind,’ History Workshop Journal 29 (1990), 97, and ‘The History of Britain: a Composite State in a Europe des Patries?’ in J.C.D. Clark, ed., Ideas and Politics in Modern Britain (Basingstoke: Macmillan – now Palgrave, 1990), 32–52. For criticisms of Clark’s thesis see especially Joanna Innes, ‘Review Article: Jonathan Clark, Social History and England’s “Ancien Regime,”’ Past and Present, no. 115 (May 1987): 165– 99. For Clark’s most recent interpretation of national identity see his forthcoming article in the Historical Journal, ‘Protestantism, Nationalism and National Identity 1660–1832.’ My thanks to Jonathan Clark for allowing me to read this article before its publication. John Kenyon argued in his second and revised edition of Stuart Constitution that the events of 1688 did little to enhance parliamentary power, while David Lieberman has demonstrated that the rival claims of common law and statute law suggest that legislative authority, and thus sovereign authority, was not automatically bequeathed to parliament during 1688: John Kenyon, The Stuart Constitution, 1603–1688: Documents and Commentary, Second Edition (Cambridge: Cambridge University Press, 1986, 1989); David Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge: Cambridge University Press, 1989). See also Glenn Burgess, Absolute Monarchy and the Stuart Constitution (New Haven, CT: Yale University Press, 1996) and The Politics of the Ancient Constitution: an Introduction to English Political Thought, 1603–1642 (University Park, PA: Pennsylvania University Press, 1993). John Hawles, Remarks on Several Trials, in Complete Collection of State Trials, vol. 4 (London: T. Wright, 1777), 165. Journals of the House of Commons, Report on Free Conference concerning reform of Treason Trials, 13 January 1692, 622. Ibid., 18 November 1691, 659. Historians have reviewed the steps taken to pass new regulations for treason trials in 1696. The Whig historian, T.B. Macaulay, saw the debates surrounding the Treason Trials Bill along a strict Tory-Whig divide: Thomas B. Macaulay, The History of England from the Accession of James II, vol. 4 (New York: Butler Brothers, 1888), 242. A. S. Turberville challenged Macaulay’s account by emphasizing the need to understand the Revolution Settlement in terms of tension between the two Houses: A.S. Turberville, The House of Lords in the Reign of William III (Oxford: Clarendon Press, 1913), 106. William Holdsworth, a contemporary of Turberville, agreed: Holdsworth, The History of English Law, vol. 6 (Boston: Little, Brown, and Co., 1924), 233. Samuel Rezneck did not and
Notes
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13 14
15 16 17 18 19
20 21 22 23 24 25 26 27
181
chose to see party as the real divide: Samuel Rezneck, ‘The Statute of 1696: a Pioneer Measure in the Reform of Judicial Procedure in England,’ Journal of Modern History 2, no. 1 (March 1930): 5–26. In the late 1970s Henry Horwitz apparently returned to Turberville and Holdsworth’s arguments: Henry Horwitz, Parliament, Policy, and Politics in the Reign of William III (Manchester: Manchester University Press, 1977), 98. But shortly thereafter, in her work concerning the assassination plot of 1696, Jane Garrett chose to highlight Rezneck’s interpretation that the Treason Trials Reform Act was indeed more humane and liberal than what had gone before. She simply accepted that the members entered the Bill to bring the ‘treason law into conformity with the spirit of the Bill of Rights.’ See Jane Garrett, The Triumphs of Providence: the Assassination Plot, 1696 (Cambridge: Cambridge University Press, 1980), 179. In the same year as Garrett, James R. Phifer argued that the Treason Act was less a revision to make the law more humane and more of a means to decrease the fear of suffering from wicked accusations of treason for holding differing political views: James R. Phifer, ‘Law, Politics, and Violence: the Treason Trials Acts of 1696,’ Albion 12, no. 3 (Fall 1980): 235–56. Horwitz, Parliament, Policy, and Politics, 74. Richard Lapthorne, The Portledge Papers, being extracts from the letters of Richard Lapthorne, Gent., of Hatton Garden London, to Richard Coffin Esq. of Portledge, Bideford, Devon from December 10th 1687–August 7th 1697, ed. Russell J. Kerr and Ida Coffin Duncan (London: Jonathan Cape, 1928), 59. Turberville, The House of Lords, 107. Henry Horwitz found Thomas Lee to be a consistent Whig while William Williams was ‘Mixed’ (Horwitz, Parliament, Policy, and Politics, Appendix C, 338–57). Parliamentary History, vol. 5, 185. William Williams became Solicitor General under James II and was knighted. Journals of the House of Lords, vol. 14, 29 April 1689, 195. Ibid., 9 August 1689, 306. Parliamentary History, vol. 5, 401. William, Lord Russell, for example, was allowed a copy of the indictment and his wife was allowed to take notes for him during the trial. But the law did not require this, and the royally appointed Chief Justice Pemberton made Russell well aware of the court’s favor. Parliamentary History, vol. 5, 658. Ibid., 659. Ibid., 658. Ibid., 680. Ibid., 704. Ibid., 704; and Journals of the House of Commons, 13 January 1692, 626. Ibid., 626. Parliamentary History, vol. 5, 965–6. The young Lord Ashley was in favor of the Bill and had a speech prepared, but when he stood up forgot it. The Commons encouraged him to go on. He said, ‘If I, sir (addressing himself to the Speaker) who use only to give my opinion on the Bill
182 Notes
28 29 30 31 32 33
34 35 36 37
38
39
40 41
42
now depending, am so confounded, that I am unable to express the least of what I proposed to say; what must the condition of that man be, who without any assistance is pleading his life, and under apprehensions of being deprived of it?’ According to Parliamentary History, this witticism went far to encourage votes for the bill. Ibid., 621. Journals of the House of Commons, vol. 11, 366. Statutes of the Realm, vol. 7, 6. Ibid. Parliamentary History, vol. 5, 966. The Arraignment, Trials, Conviction and Condemnation of Sir Richard Grahame, Bart., Viscount Preston in the Kingdom of Scotland, and John Ashton, Gent. for High Treason (London: Samuel Heyrick and Thomas Cockwill, 1691), 10. Ibid., 12. William Blackstone, Commentaries on the Laws of England, Book IV (Oxford: Clarendon Press, 1769), 380. Ibid. Bellamy, The Law of Treason in England the Late Middle Ages (Cambridge: Cambridge University Press, 1970), 21. See also Lander, ‘Attainder and Forfeiture, 1453–1509,’ Historical Journal 4 (1961): 120–51; T.F.T. Plucknett, ‘Impeachment and Attainder,’ Transactions of the Royal Historical Society 3, 5th ser. (1953): 145–58; Stacy, ‘Matter of Fact, Matter of Law and the Attainder of the Earl of Strafford,’ American Journal of Legal History 29 (1985), 323–48. This conclusion disagrees with that presented by Stacy, ‘Impeachment, Attainder, and the “Revival” of Parliamentary Judicature under the Early Stuarts,’ Parliamentary History 2, pt. 1 (1992): 40–56. For opposite interpretations concerning the king’s role in impeachment cases see Stacy, ‘Impeachment,’ 53, and Conrad Russell, Parliaments and English Politics, 1621–1629 (Oxford: Clarendon Press, 1979), 104. Summary Account of the Proceedings Upon the Happy Discovery of the Jacobite Conspiracy. In a Second Letter to a Devonshire Gentleman (London, 1696). Ninety-six Lords subscribed, but 15 did not, namely, the Marquises of Halifax and Normanby, the Earls of Craven, Ferversham, Aylesbury, Nottingham, Chesterfield, Thanet, Winchelsea, Scarsdale; the Lords Jeffries, Chandois, Ferrers; and Dr Sprat, Bishop of Rochester, and Dr Watson, Bishop of St Davids. Jurors found Robert Charnock, Edward King and Thomas Keyes guilty on 11 March. They were hanged at Tyburn on 18 March. Sir John Friend and Sir William Parkins were tried on 23 and 24 March respectively and hanged at Tyburn. The court tried Robert Lowick and Charles Cranburne on 22 April, and they were hanged at Tyburn a week later. Brigadier Ambrose Rockwood was found guilty and hanged on 29 April 1696. See The Tryals of Robert Charnock, Edward King, and Thomas Keyes, for the Horrid and Execrable Conspiracy to Assassinate His Sacred Majesty, King William (London: Samuel Heyrick, 1696); The Tryal and Condemnation of Sir John Friend, Knight. for Conspiring to Raise Rebellion in these Kingdoms, in order to a French Invasion (London: Brabazon Aylmer, 1696); The Tryal and Condemnation of Sir William Parkins, Knt. For the Most
Notes
43 44 45 46 47
48 49 50
51
52 53 54 55 56 57 58 59 60 61 62
183
Horrid and Barbarous Conspiracy to Assassinate His Most Sacred Majesty King William (London: Samuel Heyrick, 1696); The Arraignments, Tryals and Condemnations of Charles Cranburne, and Robert Lowick, for the Horrid and Execrable Conspiracy to Assassinate His Sacred Majesty King William (London: Samuel Heyrick, 1696); A True Copy of the Papers Delivered by Sir John Friend, and Sir William Parkyns to the Sheriffs of London and Middlesex at Tyburn, the Place of Execution, April 3d. 1696 (London: William Rogers, 1696); Sir John Friend and Sir William Perken’s Last Farewell to the World, Who were Executed at Tyburn (London: J.C. in Old Bedlam, 1696); A True Copy of the Paper delivered by Brigadier Rockwood, to the Sheriffs of London and Middlesex, at Tyburn, the Place of Execution, April 29, 1696 (London, 1696). The Tryals of Robert Charnock, Edward King, and Thomas Keyes (London: Samuel Heyrick, 1696), 4. Ibid., 5. Ibid. Ibid., 70. The Tryal and Condemnation of Sir John Friend, Knight. for Conspiring to Raise Rebellion in these Kingdoms, in order to a French Invasion (London: Brabazon Aylmer, 1696), 31. Henry Horwitz, Parliament, Policy and Politics, 183. Ibid. Macaulay, The History of England, vol. 5, 188. Fenwick protested against the use of attainder against him as being a harsh and unjust procedure. Macaulay, however, perhaps to make Fenwick’s character more despicable, reminded readers that Fenwick himself urged members of parliament to attaint the Duke of Monmouth in 1685. This was false. Fenwick was ‘not in the House during the discussion of Monmouth’s attainder,’ for he had been sent to Scotland upon the news of Argyll’s landing. See Basil Duke Henning, The History of Parliament: the House of Commons, 1660–1690, vol. 2 (London: Martin Secker and Warburg Limited, 1983), 308. The Proceedings against Sir John Fenwick, Bar. Upon a Bill of Attainder for High Treason. Together with a Copy of a Letter sent by Sir John Fenwick to his Lady, upon his being Taken in Kent (London, 1702), 6. Fenwick’s counsel were Francis Pemberton, Thomas Powys and Bartholomew Shower, and his solicitor was Christopher Dighton. The Proceedings against Sir John Denwick, Bar. . . ., 75. Ibid., 201. Ibid., 194–5. Journals of the House of Lords, vol. 17, 23 December 1696, 48. Narcissus Luttrell, A Brief Historical Relation of State Affairs from September 1678 to April 1714, vol. 5 (Oxford: Oxford University Press, 1857), 89–91. Nenner, Right to be King, 231. Parliamentary History, 1330. Journals of the House of Commons, vol. 13, 2 January 1702, 647. Parliamentary History, 1331. Sir Rowland Gwyn, formerly treasurer of the chamber for William III (1689–92), represented Breconshire in 1702. He later tried to earn the
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66
67 68 69
70
71
72 73 74 75
favor of George I, failed, and ultimately died in debtors’ prison in 1726 (Henning, The History of Parliament, vol. 2, 458). Lord William Powlet, a comfortably situated gentleman, had married a relative of William III’s and remained a consistently strong Whig partisan (ibid., 280). Journals of the House of Lords, vol. 17, 20 January 1702, 20. Journals of the House of Commons, vol. 13, 29 January 1702, 711. A committee then drew up reasons why the Lower House disagreed with the Lords, which were read to the Commons a week later. Gwyn reported, ‘That the Commons cannot agree to the Amendments, made by your Lordships, to the bill, entitled, An act for the Attainder of the pretended Prince of Wales of High Treason; believing it may be of dangerous Consequence to attaint Persons by an Amendment only; in which Case, such due Consideration cannot be had, as the Nature of Attainder does require.’ Journals of the House of Commons, vol. 13, 6 February 1702, 730. Parliamentary History, 1334. The Upper House had used 31 H. VIII to support its cause. In that act the Commons had added names of several persons to the attainder of the Marquis of Exeter. Journals of the House of Lords, vol. 17, 6 February 1702, 29. Journals of the House of Commons, vol. 13, 12 February 1702, 740. Although this passed, the dissenters argued that ‘there was no Proof of the Allegations in the Bill so much as offered before the passing of it, which is a Precedent that may be of dangerous consequence.’ Journals of the House of Lords, vol. 17, 20 February 1702, 31. All but two of the 15 Lords who signed this dissent were confirmed Tories and of these Tories most had Jacobite sympathies. The History and Proceedings of the House of Commons from the Restoration to the Present Time, vol. 2 (London: Richard Chandler, 1742–4), 189. In the absence of the king, who was bedridden after a fall from his horse, Sir Nathan Wright, Lord Keeper, the Earl of Pembroke, the Lord High Admiral, the Duke of Devonshire, the Earl of Carlisle and the Earl of Jersey, with the Commons at the Lords Bar, gave the royal consent to the attainder of James Francis Edward Stuart (ibid., 189). Nenner, The Right to Be King, 230. The Westminster parliament acted through law to assert its right to bar some princes royal from rule while accepting others. Because of the French King’s approval of the pretended Prince of Wales, the Westminster parliament’s immediate concern was to assert William’s right to rule against the rule by the right of blood. Such exigent circumstances, according to Howard Nenner, caused succession to follow the right of parliament rather than a right of descent (ibid., 232). See Brewer, The Sinews of Power. Coke, The Seventh Part, 6. Nenner, The Right to Be King, 193. Ibid.
Chapter 3
A British law of treason, 1709–83
1 Blackstone himself was an MP from 1761 to 1770 and then became a justice of the Court of Common Pleas. See Sir William Blackstone,
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Commentaries on the Laws of England: in Four Books (Oxford: Clarendon Press, 1765–1769); David Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge: Cambridge University Press, 1989); David Lockmiller, Sir William Blackstone (Chapel Hill: University of North Carolina Press, 1938); and Lewis Christopher Warden, The Life of Blackstone (Charlottesville, VA: the Michie Company, 1938). Law journals provide accounts of Blackstone. See, for instance, Albert Alschuler, ‘Rediscovering Blackstone,’ University of Pennsylvania Law Review 145 (November 1996): 1–55; Harold Joseph Berman, ‘The Transformation of English Legal Science: from Hale to Blackstone,’ Emory Law Journal 45 (Spring 1996): 437–522; and James Oldham, ‘From Blackstone to Bentham: Common Law Versus Legislation in EighteenthCentury Britain,’ Michigan Law Review 89 (May 1991): 1637–60. 2 The printed catalog at the British Library provides some indication of this. There are 40 entries concerning treason between 1775 and 1793. Of these, two cases which directly relate to the American Revolution: Stephen Sayre and Ebenezer Smith Platt. The British forces captured Col. Ethan Allen and Henry Laurens, President of the Continental Congress, and charged them with treason, but they were never tried. 3 In 1781, a jury acquitted Lord George Gordon for treasonable rioting. Owing to insanity, the two people who attempted to take the king’s life, one in 1786 and another in 1790, did not feel the hangman’s noose. In 1786 Margaret Nicholson attempted to stab the king through the heart. This incident never came to trial. Instead, an extraordinary council convened at the Marquis of Carmarthen’s office concluded she suffered from insanity. The council resolved to send her to Bedlam for life, ‘to be cared for, but when healthy should work to earn her subsistence.’ High Treason Committed by Margaret Nicholson. . . . (London, 1786). In 1790 John Frith damned the king and threw a stone at his coach. A constable immediately secured him, and Frith cried out ‘There goes a Rebel, he is going like a Common Traitor to be Executed escorted [sic] by a Parcel of Constables he ought to be broke as he has broke me’ (T.S. 11/1026/4288). Frith claimed he had been kept under an illegal martial imprisonment for 363 days in Jamaica. During that confinement and torture he went mad (T.S. 11/1026/4288). In 1789 Christian Bowman was burnt to death for the treason of counterfeiting silver coins. She was probably one of the last women to suffer such a fate, because after 1790 the punishment changed to hanging for all female cases of treason. The Life and Death of Christian Bowman, alias Murphy; . . . (London, 1789). 4 Matthew Hale, Pleas of the Crown: in Two Parts. Or, A Methodical Summary of the Principal matters relating to that Subject (London: J.R. Assignee for Edw. Sayer, 1716). Jacob’s edition differs in its discussion of the treason law from the 1678 publication only in that it adds 2 Anne, c. 17; 4 & 5 Anne; and 6 Anne, c. 17. Giles Jacob (1686–1744) was a prominent compiler of law. The Eighteenth-Century Short Title Catalog on CD-Rom lists 48 different legal publications and a total of 127 entries see ESTC on CD-Rom [computer file]: the Eighteenth Century Short Title Catalogue (London: British Library, 1992). Edward Foss, A Bio-
186 Notes
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6 7
8 9 10 11
12 13 14
15
16
graphical Dictionary of the Judges of England from the Conquest to the Present Time, 1066–1870 (London: John Murray, 1870), 322. His A New Law Dictionary (London: E. and R. Nutt, and R. Gosling) first published in 1729 was in its tenth edition by 1782. William Blackstone based much of his lectures and subsequent Commentaries on Matthew Hale’s ‘Analysis of the Law.’ As shown in Chapter 2, revisionists tried to correct the Whig interpretation that 1688 marked the inevitable triumph of the two houses of parliament. While they might not see 1688 as inevitable, some revisionists still saw the Glorious Revolution as the mile-marker for parliamentary ascendancy. For a range of topics rooted in a similar understanding of the Revolution see J.R. Jones, The Revolution of 1688 in England (New York: W.W. Norton & Co., 1972); Howard Nenner, By Colour of Law: Legal Culture and Constitutional Politics in England, 1660–1689 (Chicago: Chicago University Press, 1977); B.W. Hill, The Growth of Parliamentary Parties, 1689–1742 (London: Allen & Unwin, 1976); J.G.A. Pocock, ed., Three British Revolutions: 1641, 1688, 1776 (Princeton, NJ: Princeton University Press, 1980); and Lois Schwoerer, The Declaration of Rights, 1689 (Baltimore, MD: Johns Hopkins University Press, 1981). Bruce Lenman, The Jacobite Risings in Britain 1689–1746 (London: Eyre Methuen Ltd, 1980), 12. J.C.D. Clark, Revolution and Rebellion: State and Society in England in the Seventeenth and Eighteenth Centuries (Cambridge: Cambrdige University Press, 1986), 89. Extract of the Process of Treason, At the Instance of Sir James Steuart, Her Majesties Advocate; . . . (London, 1709), 2. Ibid., 9. Ibid., iv. ‘It is Statute and Ordain’d, That none of the King’s Liedges and Subjects, presume, or take upon hand, to impugn the Dignity and Authority of the Estates of Parliament, or to seek or procure the Innovation or Diminution of the Power and Authority of the same, or of any of the Estates thereof in any time coming, under the pain of Treason.’ Robert Spottiswoode, Praticks of the Laws of Scotland (Edinburgh: James Watson, 1706), 99. Ibid. Parliamentary History, vol. 6, 795. The quote is taken from John Erskine, An Institute of the Law of Scotland, ed. James B. Nicholson, vol. 2 (Edinburgh: Bell and Bradfute, 1871), 1182. This edition is taken from Erskine’s Principles first published in 1754. John Erskine was professor of Scots law at the University of Edinburgh from 1737 to 1765. James, Viscount Stair, The Institutions of the Law of Scotland, Deduced from its Originals, ed. John S. More, vol. 2 (Edinburgh: Bell and Bradfute, 1832), 438. The first edition was printed in 1681. Erskine, An Institute of the Law of Scotland vol. 2, 1181. Stair made no distinction between the different types of treason. Treason was an act against the king’s person because the king was the lieges’ superior
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24
25
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and sovereign. Treason was also ‘impugning the dignity or authority of the three estates of Parliament’ (Parl. 1584, c. 130); ‘the delining (sic) the King, and his council, in any matter to be inquired before them’ (Parl. 1584, c. 129); ‘Landed men committing or resetting riot or robbery incur the pain of treason’ (Parl. 1587, c. 50); and ‘Accusers of others of treason, if the accused by acquitted, commit treason’ (Parl. 1587, c. 49). For this list see Stair, The Institutions of the Law of Scotland, vol. 2, 438. Parliamentary History, 6, 795. Ibid., 796. Erskine, An Institute, vol. 2, 1185. Parliamentary History, 6, 796. Ibid., 797. Ibid. Ibid., 799. The peers who signed this dissent were Buckingham, Annandale, Roseberie, Seafield, Crawford, Dover, Montrose, Guilford, Denbigh, Loudoun, Orkney, Rothers, Greenwich, Roxburgh, Sarum, Marr, Peterborough, Wemyss, Isla and Hamilton. Buckingham, Denbigh, Guildford and Peterborough were not Scottish peers. The rest were, with Dover and Greenwich being new British titles for James Douglas, the Duke of Queensberry, and John Campbell, the second Duke of Argyll, respectively. The law began, ‘Whereas nothing can more conduce to the improving the Union of the Two Kingdom [sic] which by her Majesties great Wisdom and Goodness hath been happily effected than that the Laws of both Parts of Great Britain should agree as near as may be especially those Laws which relate to High Treason and the Proceedings thereupon as to the Nature of the Crime the Method of Prosecution and Tryal and also the Forfeitures and Punishments for that Offence which are of the greatest Concern both to the Crown and to the Subjects to the end therefore that the said Union may be more effectually improved Be it enacted by the Queens most Excellent Majesty by and with the Advice and Consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by the Authority of the same That from and after the First Day of July in the Year of our Lord One thousand seven hundred and nine such Crimes and Offences which are High Treason or Misprision of High Treason within England shall be construed adjudged and taken to be High Treason and Misprision of High Treason within Scotland and that from thenceforth no Crimes or Offences shall be High Treason or Misprision of High Treason within Scotland but those that are High Treason or Misprision of High Treason in England’ (7 Annae, c. 21). For a general introduction to the Jacobite rebellions of 1715 and 1745 see John Baynes, The Jacobite Rising of 1715 (London: Cassell & Company, Ltd, 1970); Eveline Cruickshanks, ed., Ideology and Conspiracy: Aspects of Jacobitism, 1689–1759 (Edinburgh: John Donald Publishers, Ltd, 1982); Eveline Cruickshanks and Jeremy Black, eds, The Jacobite Challenge (Edinburgh: John Donald Publishers, Ltd, 1988); John Sibbald Gibson, Lochiel of the ’45. The Jacobite Chief and the Prince (Edinburgh:
188 Notes
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28
29
30
31 32 33
Edinburgh University Press, 1994); Bruce Lenman, The Jacobite Risings in Britain 1689–1746 (London: Eyre Methuen, Ltd, 1980); F.J. McLynn, The Jacobite Army in England 1745. The Final Campaign (Edinburgh: John Donald Publishers, Ltd, 1983) and The Jacobites (London: Routledge & Kegan Paul, 1985); Paul Monod, Jacobitism and the English People, 1688–1788 (Cambridge: Cambridge University Press, 1989); Richard Sharp, The Engraved Record of the Jacobite Movement (Aldershot, England: Scholar Press, 1996); and Ian and Kathleen Whyte, On the Trail of the Jacobites (London: Routledge, 1990). T.S. 20/43(1). Ibid. The Scots did not suffer as much as some Hanoverian officials wished. Lord Chesterfield, the Lord Lieutenant of Ireland, desired genocide, while the Duke of Cumberland and the Earl of Albemarle dreamed of mass deportations. According to Bruce Lenman however, ‘any attempt to implement them would have turned a chaotic situation into a politically dangerous one. As it was, even Jacobite gentlemen in the Highlands were bound, in the long run, to favour a return to normality.’ Lenman, Jacobite Risings, 268. See T.S. 20/61–75 for lists of prisoners from Carlisle, Chester, Coventry, Cumberland, Derby, Durham, Hull, Lincoln, Lowther Hall, Morpeth, Newcastle on Tyne, Penrith, Stafford, Whitehaven. Prisoners were also held at Lancaster, York, New Gaol, Newgate, New Prison, Marshalsea, Maidstone, Canterbury, Portchester Castle, Rochester, Tilbury Fort, Berwick, and on board transports (T.S. 20/49). The Duke of Newcastle’s duty was to keep the king informed while directing the Crown’s principal agents in the field: the Attorney General, Douglas Ryder, and the Treasury Solicitor, John Sharpe. He issued orders to ‘Prepare, to be laid before the King, a State of the Case of the Several Prisoners, in Custody of any of His Majesty’s Messengers.’ T.S. 20/27(2), 11 July 1746. He also appointed commissioners such as Webb who acted as solicitor for prosecutions against the several prisoners tried under Special Commissions of Oyer and Terminer, and jail delivery for the Counties of Cumberland, Northumberland, York and Lincoln (T.S. 20/27/(7)). He monitored every aspect of the trial including hiring short-hand writers (T.S. 20/45). Newcastle read, advised, concurred and signed off on the suggestions and questions from John Sharpe. He also responded to petitions for better treatment of the prisoners and improvements in control of prisons. T.S. 20/29(6). The names of the sheriffs were sent to the Treasury Solicitor’s office: William Welby, Esq., Lincolnshire; William Shaw, Esq., Lancashire; Charles Patterson, Esq., Cumberland; Lancelot Allgood, Esq., Northumberland; Ralph Leycester, Cheshire; Henry Ibbetson, Jeremiah Duny (Under-sheriff), Yorkshire; Sir William Middleton, Dereham; Charles Bolville, Staffordshire (T.S. 20/42(11)). If they did not present themselves to the clerk, then they were fined (T.S. 20/42(12)). A Short Discourse of High-Treason, More Especially on Three Clauses of the Statute of Treasons (London: H. Lintot, for John Worrall, 1746), 40. T.S. 20/110(20i). T.S. 20/60, T.S. 20/102(7), T.S. 20/102(7).
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34 A Short Discourse of High-Treason, 32. 35 Ibid., 32 and 34. 36 The central nerve of the entire proceedings was the Court of King’s Bench, the supreme court of criminal jurisdiction. In Hale’s concise words, ‘It is a Court of Oyer and Terminer, Goal [sic] Delivery, and Eyre, in that County where it sits. By the coming of the King’s Bench into any County, during the sitting thereof in that County, all power and proceedings of Commissioners of Oyer and Terminer is suspended.’ Matthew Hale, Pleas of the Crown: Or, A Methodical Summary of the Principal Matters Relating to the Subject (London: Richard Atkyns, 1678) 156. The King’s Bench created Special Sessions of Oyer and Terminer to prosecute the Jacobite prisoners in both 1716 and 1746. 37 T.S. 20/131(13); Sir Michael Foster, A Report of Some Proceedings on the Commission of Oyer and Terminer and Goal Delivery for the Trial of the Rebels in the Year 1746 in the County of Surry, and of other Crown Cases to which are added Discourses upon a Few Branches of the Crown Law (Oxford: Clarendon Press, 1762), 14. 38 Ibid., 15. 39 Ibid., 17. 40 T.S. 20/104(29). 41 Foster, Report, 18. 42 Ibid., 21. 43 Ibid. 44 Ibid. 45 Ibid. 46 T.S. 20/108(27). 47 Foster, Report, 27. 48 Alastair Livingstone, Christian W.H. Aikman and Betty Stuart Hart, eds, Muster Roll of Prince Charles Edward Stuart’s Army, 1745–1746 (Aberdeen, Scotland: Aberdeen University Press, 1984), 90. 49 See Linda Colley, Britons: Forging the Nation, 1707–1837 (New Haven, CT: Yale University Press, 1992) and Kathleen Wilson, The Sense of the People. Politics, Culture and Imperialism in England, 1715–1785 (Cambridge: Cambridge University Press, 1995). 50 They also read the case of the seven lords impeached for high treason on 10 January. 51 T.S. 11/760/2362. 52 T.S. 20/121(6). 53 T.S. 11/760/2362. 54 T.S. 20/121. 55 Ibid. 56 Ibid. 57 Ibid. 58 The Whole Proceedings Against Simon Lord Lovat. At Westminster-Hall, begun on Monday, March the 9th, 1747 (London, 1747), 5–6. 59 T.S. 11/761/2367. 60 Ibid. 61 For accounts of the execution see Moray Mclaren, Lord Lovat of the ’45: The End of an Old Song (London: Jarrolds Publishers, Ltd, 1957)
190 Notes
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64 65 66 67
68
69
70 71 72 73 74 75 76 77 78 79
80
81
and W.C. Mackenzie, Simon Fraser, Lord Lovat. His Life and Times (London: Chapman & Hull, Ltd, 1908). The Speech of the Right Honourable Philip Lord Hardwicke, Lord High Chancellor of Great Britain (London: Samuel Billingsley, 1746). T.S. 20/121, The Speech of the Right Honorable Philip Lord Hardwicke, Lord High Chancellor, 4. For the quote defining ‘the people,’ see Kathleen Wilson, The Sense of the People, 18. T.S. 20/121, The Speech of the Right Honorable Philip Lord Hardwicke, 4. Ibid., 6. Ibid. A Collection of the Several Statutes, and Parts of Statutes, Now in Force, relating to High Treason, and Misprision of High Treason (London: Charles Bill, and the Executrix of Thomas Newcomb, deceas’d, 1709) and Statutes. A Form and Method of Trial of Commoners, In Cases of High Treason, And Misprision of High Treason, Pursuant to the Statute made in the Seventh Year of the Reign of the late King William the Third, of England, &c. (London: Charles Bill, 1709). The Method of the Proceedings in the House of Lords and Commons In Cases of Impeachments for High Treason (London: J. Roberts, 1715). See also An Account of the Proceedings Against the Rebels, and other Prisoners, Tried before the Lord Chief Justice Jefferies, and other Judges, in the West of England, in 1685 (London: J. Baker, and Thom Warner, 1716). Daniel Defoe, An History of the Archbishops and Bishops (London: J. Roberts, 1722); and The Manner and Method of Proceeding against Bishops, for High-Treason, and other Capital Offences (London: J. Peele, 1722). The Reasonableness of Parliamentary Proceedings, by Attainders, Banishments, Pains and Penalties, in Cases of High Treason (London: T. Payne, 1723). A Short Discourse of High-Treason, 3. Ibid., 7. Ibid., 8. Ibid., 14. Hale, Pleas of the Crown, 11–13. Foss, A Biographical Dictionary of the Judges, 278–9. See Foster, Report. Ibid., 183. Michael Foster, A Letter of Advice to Protestant Dissenters (London, 1720), and An Examination of the Scheme of Church Power, laid down in the Codex Juris Ecclesiastici Anglicani (London, 1735). Francis Townley entered a plea of not guilty at his arraignment on 25 July 1746 (T.S. 20/122(2)). He believed that because he served the French, he should have been treated as a prisoner of war. The court ruled that being born in England made him an Englishman, and therefore subject to the British king. Soldiers born in France to Scottish or Irish parents were French, not British. Birthplace, not parentage, determined subject status. In 1746 John Sharpe, Treasury Solicitor, informed the Duke of Newcastle that several prisoners in the Tower, Newgate, New Prison and Marshalsea were identified as to where they were born, when they were born, what regiment they belonged and what rank they served
Notes
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93 94 95 96 97 98 99 100 101 102 103 104 105 106 107
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(T.S. 20/50). This information sorted the subjects from the aliens. Sharpe’s focus on the place of birth, not blood ties, was significant. James Mourois’s father was born in Scotland and went to France with King James II. James Mourois, however, was born in France and considered himself to be French. Similarly, Francis Geoghegan was born in France in 1710 and was paid only by French troops, but had Irish parents who moved to France with King James II (T.S. 11/157/523, T.S. 11/ 156/524, T.S. 11/157/525.) Mourois and Geoghegan believed – a belief perhaps heightened by a threat of treason – that they were French. Allegiance, however, was never relinquished save by a writ from the king. Both men were technically subject to the British Crown through their parents. This presented a tricky problem. Presumably the prosecutors were keen to avoid trouble with France. It appears that the prosecutors solved the problem by avoiding the issue. Rather than focus on blood ties, they focused on the place of birth. Mr Justice Foster, for one, defined allegiance as a birthright within a society, and made no mention of parentage. Foster, Report, 184. Ibid. Ibid., 188–9. Ibid., 189. Ibid. Ibid., 194–5. Ibid., 251. William Blackstone, Commentaries on the Laws of England, vol. 1 (Oxford: Clarendon Press, 1765), 46. Ibid., 50. Ibid., 51. For Blackstone, the ‘state is a collective body, composed of a multitude of individuals, united for their safety and convenience, and intending to act together as one man’ (ibid., 52). Ibid., vol. 4, 75. Ibid., vol. 1, 190. Ibid., 195. Ibid., 212. Ibid. Ibid., 369. Ibid., 236. Ibid., vol. 4, 74. Ibid., 75. Parliamentary Register. vol. 1 (London: J. Almon, 1775–1802), 7. Ibid., vol. 2, 58. Ibid., 84. Parliamentary History, vol. 18, 539. Ibid., 1028. See Peter Whitely, Lord North: the Prime Minister who Lost America (London: Hambledon Press, 1996) for a generally sympathetic account of North’s handling of the American crisis. Parliamentary Register. vol. 5, 18.
192 Notes 109 110 111 112
Ibid., vol. 3, 347. Statutes at Large, 17 Geo. III, c. 9. Ibid. Bradley Chapin, The American Law of Treason: Revolutionary and Early National Origins (Seattle: University of Washington Press, 1964), 26. See also James Willard Hurst, The Law of Treason in the United States. Collected Essays (Westport, CT: Greenwood Publishing Corporation, 1945, reprint 1971). 113 This message came through clearly in the trial of Lord Lovat and those of others. The demise of the power of the Highland chiefs was one result of the treason trials and the Clearances. From then on the power of the Highland Scots existed in legends. For an account of the annexed estates after 1745, see Virginia Wills, ed., Reports on the Annexed Estates, 1755–1769 (Edinburgh: HMSO, 1973); and Scottish Record Office, Statistics of the Annexed Estates, 1755–1756, From the Records of the Forfeited Estates Preserved in the Scottish Record Office (Edinburgh: HMSO, 1973).
Chapter 4 the 1790s
Republican treason and national identity in
1 For a narrative of the Jacobin trials see Alan Wharam’s The Treason Trials, 1794 (Leicester: Leicester University Press, 1992). John Barrell’s work on the concept of imagining the king’s death in the 1790s is forthcoming. 2 Mark Philp, ed., The French Revolution and British Popular Politics (Cambridge: Cambridge University Press, 1991), 3. 3 Ibid., 5. 4 The last three were secret ballots, abolition of property qualifications for MPs, and payment for MPs. Dickinson, British Radicalism and the French Revolution, 1789–1815 (Oxford: Basil Blackwell, 1985), 5. 5 An Account of the Treason and Sedition, Committed by the London Corresponding Society, . . . (London: J. Downes, 1794), 9. 6 Parliamentary History, vol. 31, 475 and 478. 7 Ibid., 480. 8 Ibid., 475. 9 An Account of the Treason and Sedition, Committed by the London Corresponding Society, 28. 10 Parliamentary History, vol. 31, 479. See also An Account of the Treason and Sedition, Committed by the London Corresponding Society, The Society for Constitutional Information, The Other Societies of London, Sheffield. (London, J. Docones, 1794), 29. The LCS cited the cause of distress in England as the result of an expensive war which destroyed families and commercial manufactories: a ‘fruitless crusade, to re-establish the odious despotism of France:’ Parliamentary History, vol. 31, 481. 11 Ibid., 489. 12 The Chalk Farm resolutions included the conclusions that Britons were witnessing the evil, rapid advance of despotism, that Britons were no
Notes
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16 17 18
19
20 21
22
23 24 25 26 27
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longer free, and that the proceedings of the late British Convention deserved praise (ibid., 489). An Account of the Treason and Sedition, Committed by the London Corresponding Society, 44; Parliamentary History, vol. 31, 502. Ibid., 521. On 2 April 1794, Thomas Walker, William Paul, Samuel Jackson, James Cheetham, Oliver Pearsall, Benjamin Booth, and Joseph Collier came before the bar at the Lancaster Assizes. They were charged, not with treason, but with ‘a species of treasonable misdemeanor, second only in degree, and inferior only in malignity, to the crime of high treason itself,’ The Whole Proceedings on the Trial of an Indictment Against Thomas Walker of Manchester (Manchester: T. Boden, 1794), 1. Wharam, The Treason Trials, 1794 (Leicester: Leicester University Press, 1992), 96. K.B. 8/81. The Trial of Robert Watt, Late Wine Merchant in Edinburgh, for High Treason: . . . (Edinburgh: A. Robertson, 1794), 5. The Lord President was appalled that any but the insane or desperate would turn their backs on the blessings of living under the established British constitution: ‘the people of this country were satisfied, and good cause they had to be so, with the blessings which they enjoyed, under a system of laws, and a form of government, the essence of which is liberty. Every man’s right; – every man’s franchise; – the fruits of his industry; – the safety of his person; – the exercise of his religion; – his liberty; – his fame; – all have been secured to the utmost extent of his wish’ (ibid., 4). K.B. 8/81. At Downie’s trial Mr Dundas assured the jury that the rebels desired ‘to new-model, at their will, the Constitution of the country:’ Trial of David Downie, for High Treason, . . . (Edinburgh: William Brown, 1795), 4. Ibid. The Lord Advocate added that the members of the convention who ostensibly desired reform ‘would have equally involved in it the life of our Sovereign, and the existence of the Legislature; would have subverted all laws, and annihilated all property, and, after destroying those persons employed in the service of the State, or members of its Legislature, would have almost in the next immediate moment, descended on the heads of those most active and conspicuous in such a dreadful conspiracy’ (ibid., 4). The Declaration and Confession of Robert Watt, Written, Subscribed, & Delivered by himself, the Evening before his Execution, For High Treason, at Edinburgh, October 15, 1794 (Edinburgh: Bell & Bradfute, 1794), 15. Trial of David Downie, for High Treason, 201. Ibid., 196. Ibid., 214. Wharam, The Treason Trials, 1794, 138. Watt admitted in a confession composed the evening before his execution that he had planned for 4,000 to 5,000 armed men to surround the castle guard when they came out and then capture the magistrates of the city. His hope was Edinburgh, Dublin and London would rise together. See The Declaration and Confession of Robert Watt.
194 Notes 28 Assassination of the King! The Conspirators Exposed, . . . (London, 1795), 3. See also High Treason!! Narrative of the Arrest, Examinations before the Privy Council, and Imprisonment of P.T. Lemaitre, accused of being a party in the Pop-Gun Plot (London, 1795). 29 K.B. 33/6/1. 30 K.B. 33/6/1: Bell’s Reports at Large, i. 31 The Genuine Trial of Thomas Hardy, for High Treason, at the Sessions House in the Old Bailey, from October 28 to November 5, 1794 (London: J. S. Jordan, 1795), 14. 32 K.B. 33/6/1: Bell’s Reports at Large, v; James Eyre, The Charge Delivered by the Right Honorable Sir James Eyre, Lord Chief Justice of His Majesty’s Court of Common Pleas, . . . (London, 1794), 9. 33 K.B. 33/6/1: Bell’s Reports at Large, ix. 34 Don Locke, A Fantasy of Reason: The Life and Thought of William Godwin (London: Routledge and Kegan Paul, 1980), 5. 35 Mark Philp, Godwin’s Political Justice (New York: Cornell University Press, 1986), 119. 36 William Godwin, Cursory Strictures on the Charge Delivered by Lord Chief Justice Eyre to the Grand Jury, October 2, 1794 (London: D. I. Eaton, 1794), 12. 37 Godwin, Cursory Strictures, 18. Another source quoted Eyre as saying ‘in respect of the extraordinary nature and dangerous extent, and very criminal complexion of such a conspiracy, that case, which I state to you as a new and a doubtful case, should be put into a judicial course of enquiry, that it may receive a solemn adjudication, whether it will, or will not, amount to High Treason, in order to which the bills must be found to be true bills.’ The Genuine Trial of Thomas Hardy, for High Treason, at the Sessions House in the Old Bailey, from October 28 to November 5, 1794 (London: J.S. Jordan, 1795), 20. 38 Ibid., 36. 39 Ibid., 40–1. 40 DNB. 41 K.B. 33/6/1: Bell’s Report, 12. 42 The Genuine Trial of Thomas Hardy, 15; K.B. 33/6/1; Bell’s Report, 13. 43 K.B. 33/6/: Bell’s Report, 13. 44 Ibid., 82. 45 K.B. 33/6/1: Bell’s Report, 69. 46 T.S. 11/993/3705. 47 K.B. 33/6/1. 48 Ibid. 49 Wharam, The Treason Trials, 1794, 180. 50 T.S. 11/993/3705; and also The Genuine Trial of Thomas Hardy, 337. 51. The Genuine Trial of Thomas Hardy, 347. 52 Ibid., 385. 53 Ibid., 399–400. 54 Ibid., 400. 55 Ibid., 402. 56 While Mitford portrayed the king’s role as the nominal head of state, there was at least one man who believed in a truly divine monarch
Notes
57 58
59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75
195
who also promoted the necessity of protecting more than the king’s person. In 1798 an intriguing collections of letters was published which were purported to have been published separately in the True Briton in late 1794 and early 1795. The author stated that the law considered the king’s person sacred and derived from God. Moreover, the treason law aimed to protect ‘his Kingly Office, in his Regal Dignity, and in his Sovereign Authority; which Office Dignity, and Authority, far from being confined to the immediate exercise of the Prerogatives of the Crown, extend, in the eye of the Law, to all the functions of Government, in the utmost latitude of the term.’ Letters of the Ghost of Alfred, Addressed to the Hon. Thomas Erskine, and the Hon. Charles James Fox (London: J. Wright, 1798), 77–8. Unlike Mitford’s understanding of the king’s power, this author believed the king exclusively invested with sovereignty from God. As such, the king’s authority was not nominal but real: ‘it is his Will – his Fiat – which gives to every Bill the force of a Law’ (ibid., 82). Having delineated the vast powers the king retained and the justness of the law of treason protecting his person and his office, the letters claimed it the greatest absurdity to think that any endeavor to overthrow the government, ‘if an attack upon the Constitution in the aggregate, were not considered as equally penal, and punishable with as much severity as an attempt to deprive the King of his Life’ (ibid., 84). The author argued that treason protected both the sovereign executive and the sovereignty of the legislature. Wharam, The Treason Trials, 1794, 209. During the confusion of the student gallery collapsing after the jury submitted the verdict of not guilty, Scott wrote a note of admiration to Gibbs: ‘no lawyer ever did himself more credit, or his client more service.’ Wharam, The Treason Trials 1794, 224. Ibid., 219. Thomas Holcroft, A Narrative of Facts, Relating to a Prosecution for High Treason (London: H.D. Symonds, 1795), 6. K.B. 33/6/4. At the council chamber Whitehall, 18 December 1794. K.B. 33/6/5. The Trial of Robert Thomas Crossfield, for High Treason (London: Martha Burney, 1796). Parliament passed the bills in December 1795. Locke, A Fantasy of Reason: the Life and Thought of William Godwin, 100. Parliamentary History, vol. 32, 142. Lord Westmoreland, who rode in the carriage with the king, offered this testimony. Ibid., 142. Ibid., 242–4. Ibid., 244. Ibid., 245. Ibid., 368. Ibid., 247. Ibid., 254. Ibid. Ibid.
196 Notes 76 77 78 79 80 81 82 83 84 85 86 87 88
89 90
91
92 93 94 95 96
97 98 99 100
Ibid. Ibid., 257. Ibid., 379. Ibid. Ibid., 257–8. Treason Triumphant over Law and Constitution! (London: J. Downes, 1795). Ibid., 5. Ibid., 33. Ibid., 37. Parliamentary History, vol. 32, 264. Ibid., 270. Ibid., 270. The Last Advice but One, of a Lover of the British Constitution, to All Lovers of the said Constitution, Respecting the New Sedition and Treason Bills (London: H.D. Symonds, 1795), 14. Report of the Constitutional Society upon the Treason and Sedition Bills (London: T.G. Ballard and J. Smith, 1795), 3. The Proceedings and Speeches, at the Meeting the Seventeenth November, 1795, at St. Andrew’s Hall, Norwich to Petition Parliament Against Lord Grenville’s and Mr Pitt’s Treason and Sedition Bills (Norwich: John March, 1795), 12. John Cartwright, Esq. A Letter to the High Sheriff of the County of Lincoln, Respecting the Bills of Lord Grenville and Mr Pitt (London: J. Johnson, 1795), 5. Ibid., 8. Ibid., 11. Ibid., 23. Ibid., 23. William Godwin, Considerations on Lord Grenville’s and Mr Pitt’s Bills, . . . (London: Joseph Johnson, 1795) Reprinted in Mark Philp, ed., Political and Philosophical Writings of William Godwin, vol. 2 (London: William Pickering, 1993). Locke, A Fantasy of Reason, 160. Ibid., 105. Parliamentary History, vol. 32, 270. The metropolitan government in London learned during the American Revolution that an Ireland without a military force invited a French invasion. Moreover, the Volunteer movements generated debating societies critical of Ireland’s political relationship with Britain. The debating societies attracted the young and the politically aware who were eager for change. James Kelly, Prelude to Union: Anglo-Irish Politics in the 1780s (Cork: Cork University Press, 1992), 27. Encouraged by the successful bid of the Americans for independence and Lord North’s resignation on 20 March 1782, the Catholics and Presbyterians of Ireland began pressing for reform (ibid., 27). Although they knew that a united Ireland could only be realized if they demolished the religious barriers, the Presbyterians feared a tyrannical Catholic majority; this fear slowed the advance of a powerful parliamentary reform movement. Even so, the parliament at Westminster felt threatened by the Irish and weak-
Notes
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ened by defeat in America and granted major concessions to the reformers in 1782. Yet Westminster scarcely lost control over Ireland. The Lord Lieutenant, from his quarters in the Dublin Castle, manipulated place and patronage in the Irish parliament. The constitution of 1782 may have been a morale boost for the Irish seeking independence, but it hardly rang the bells of independence from the church and state of Britain. If the Americans spurred the Irish to think about independence, the French offered a possible solution to the Catholic problem. The French Revolution split the Catholic Church from the state. According to Marianne Elliott, this example broke the impasse between the Presbyterians and Catholics in Ireland. Marianne Elliott, ‘Ireland and the French Revolution,’ in Britain and the French Revolution, 1789–1815, ed. H.T. Dickinson (New York: St. Martin’s Press – now Palgrave, 1989), 89; and Kevin Whelan, ‘United and Disunited Irishmen: the Discourse of Sectarianism in the 1790s,’ in Michael O’Dea and Kevin Whelan, eds, Nations and Nationalisms: France, Britain, Ireland and the EighteenthCentury Context (Oxford: Voltaire Foundation, 1995), 233. The United Irish Society, founded in October 1791 by Dublin lawyer Theobald Wolfe Tone, was directly inspired by the early stages of the French Revolution. The society’s goal was to unite all Irishmen of all religious persuasions in order to obtain ‘an impartial and adequate representation of the Irish nation in Parliament.’ W.E.H. Lecky, A History of Ireland in the Eighteenth Century, vol. 4 (London: Longmans, Green, and Co., 1892), 250. This group did not plot an overthrow of the government. After French Jacobins tried and executed the king, however, Westminster became increasingly suspicious of the motives driving such reforming societies. To counter the appeal of the United Irish Society, Pitt offered the Irish Catholics concessions. The Catholic Relief Act of 1793 granted the Catholics the right to bear arms, to become members of corps, to vote, and to hold commissions in the army. The Act barred them from holding parliamentary seats or other government offices. By the summer of 1794, the Irish found these concessions insufficient. The 1794 French Reign of Terror and the war against France forced Pitt and others in London to seek stronger, more repressive means for preventing any challenge to government. In 1794, for instance, a court tried and convicted William Jackson, a French agent in Dublin, for treason. He committed suicide rather than face death by execution. Pitt’s regime legally suppressed the United Irish Society. 101 E.P. Thompson, The Making of the English Working Class (New York: Vintage Books, 1966), 478. 102 Ibid., 100. The government at Westminster viewed this uprising as an Irish national movement, but recent scholarship has argued that it was less a blow for Ireland than a struggle between the Roman Catholics, Anglicans, and Presbyterians. Such an interpretation makes the Irish Rebellion of 1798 a sectarian war. For the men who hanged for high treason against the king, this argument was of little use. The law found their actions to be politically traitorous on the basis of their challenge to the constitutional powers of the Westminster Parliament
198 Notes
103 104 105 106 107 108 109
110 111 112 113
114 115 116 117 118 119
120
and the king. See Kevin Whelan, ‘United and Disunited Irishmen: the Discourse of Sectarianism in the 1790s,’ and Daniel Gahan, The People’s Rising, Wexford, 1798 (Dublin: Gill and Macmillan, Ltd., 1995). See K.B. 8/84, T.S. 11/689/2187, and The Trial of James O’Coigly, . . . (London: M. Gurney, 1798). T.S. 11/689/2187. Marianne Elliott, Partners in Revolution: the United Irishmen and France (New Haven, CT: Yale University Press, 1982), 182. T.S. 11/689/2187. Ibid. Elliott, Partners in Revolution, xix. Francis Buller (1746–1800) was called to the bar in 1772, and his uncle the Lord Chancellor Bathurst and Lord Mansfield soon took notice of his excellent capabilities. By May 1778 he was appointed a judge of the King’s Bench, but owing to William Pitt’s decision to appoint Lord Kenyon as Lord Mansfield’s successor Buller did not become Chief Justice. According to Edward Foss, Buller was not a popular judge, because in spite of his capabilities he was arrogant and ‘even cruel in criminal trials.’ Although unsubstantiated, Buller also was credited with deciding that a husband could beat his wife with a stick no bigger than his thumb. Foss, A Biographical Dictionary of the Judges of England from the Conquest to the Present Time, 1066–1870 (London: John Murray, 1870), 137–8. The Trial of James O’Coigly, 7. Ibid. T.S. 11/689/2187. For precedent he drew upon Lord Preston’s trial and the Lord Chief Justice Holt’s explanation of why a letter could be treasonous. Preston’s letter contained a treasonable declaration and when that letter was carried to France with an intention to use it there, it was treason, ‘though it be couched under the specious pretence of restoring the people to their liberty’ (ibid). Ibid. Ibid. The Trial of James O’Coigly, 7. Ibid., 539. K.B. 8/84. Elliott, Partners in Revolution, 184. Before O’Connor was officially discharged, Sackville, the Earl of Thanet, Robert Fergusson, barrister at law, Thomas Gunter Browne, Esq., Denniss O’Brien, Esq, and Thomas Thompson, Esq., endeavored with force to rescue O’Connor from the custody of the sheriff. These men were arrested and held for almost a year before Lord Thanet and Fergusson were found guilty and the rest released. The Duke of Bedford, the Earl of Derby and others offered bail for the defendants. Ultimately, Thanet was fined £1,000 and Fergusson £100, and both were released. K.B. 33/8/1, William Firth, The Lord Thanet’s Case Considered, As to the Question Whether the Judgment Be Specific or Arbitrary? (London: A. Strahan, 1799). Thomas Graham, ‘“An Union of Power?” the United Irish Organization: 1795–1798,’ in The United Irishmen. Republicanism, Radicalism, and
Notes
121 122
123
124
125 126 127
128 129
199
Rebellion, ed. David Dickson, Daire Keogh and Kevin Whelan (Dublin: Lilliput Press, Ltd., 1993), 250. Daniel Gahan, The People’s Rising, Wexford, 1798 (Dublin: Gill & Macmillan, 1995), 10–11. The main strength of the French force was in Egypt and only a small invasion crew was sent. The French ships were captured in October 1798, and on board was Theobald Wolfe Tone serving as a French officer. Upon his identification, he was taken before a court martial and found guilty, but committed suicide on 19 November to avoid execution. The revisionist trend in the historical investigation of the Irish Rebellion is to reassert the active, coordinated and thoughtful plan of the Irish rebels. Such historians include Marianne Elliott, L.M. Cullen, Kevin Whelan, Nancy Curtin and Daniel Gahan. The Law Commission, Working Paper No. 72 Second Programme, Item XVII Codification of the Criminal Law Treason, Sedition and Allied Offences (London: Her Majesty’s Stationery Office, 10 May 1977), 8. A Report of the Trial of Oliver Bond, Upon an Indictment for High Treason (Dublin: John Exshaw, 1798), 240. Section 5 of this Act provided that all persons accused, indicted or prosecuted by this act was entitled to the benefit of 7 Wm. III. John McCann was charged for high treason and brought to trial on a charge of having met to overturn the lawful government and change the Constitution of the kingdom. The two counts of treason were compassing the king’s death and adhering of the king’s enemies. The new law settled the question that any conspiracy which would bring the life of the sovereign into danger is compassing the death and thus an act of treason. ‘A conspiracy to overthrow the Government, or change the constitution by force, are all overt acts sufficient to draw down the punishment of treason upon the offender.’ A Report of the trial of John McCann, upon an Indictment for High Treason (Cork: J. Connor, 1798), 48. Mr Baron Smith declared that “Thousands and ten thousands of your unhappy fellow-creatures have all fallen victims to that foul and abominable conspiracy of which you have been convicted. It gave birth to that rebellion which has convulsed the land, but which through the blessing of God, by the exertions of Government, the spirit of the King’s troops and the loyalty of his subjects, is in a good measure suppressed’ (ibid, 240). McCann was executed on 19 July. Thomas Bartlett, The Fall and Rise of the Irish Nation. The Catholic Question 1690–1830 (Savage, MD: Barnes and Noble Books, 1992), 254. In Despard’s trial, his counsel said ‘In the year 1798 what some were pleased to call freedom shone out in full blaze in France. All who were on that side of the water and many who were on this, at that time were bent on extending the flame to this country. In 1802 things were altered, the very embers from which this flame proceeded were wholly extinguished. France had within her own territories renounced the doctrine of the indefinite rights of Man, and was no longer desirous that they should be inculcated in other Countries. She had gone
200 Notes
130
131 132 133 134 135 136 137 138 139 140 141 142
143 144 145
the same round which all other Countries have gone who have factiously overturned a legitimate Government rioting for a time in all the excesses of anarchy and disorder, and then seeking a Shelter from those intolerable evils under a Government more severe than that from which they first broke loose.’ T.S. 11/121/332: The Trial of Edward Marcus Despard, Esq. for High Treason, from Mr Gurney’s short-hand, 314. According to Marianne Elliott, the Despard Conspiracy diverted attention from events unfolding in Ireland. Marianne Elliott, ‘Ireland and the French Revolution,’ 100. State Trials at Large. The Whole Proceedings on the Trial of Col. Despard, . . . (London: R. Bent, 1803), 4; T.S. 11/122/333. T.S. 11/121/332: Proofs: The Lord Pelham, Secretary of State. Ibid. K.B. 8/87. T.S. 11/121/332. See Marianne Elliott, ‘The “Despard Conspiracy” Reconsidered,’ Past and Present, no. 75 (May 1977), 61 and Partners in Revolution, 298. Ibid., 287. Elliott, Partners in Revolution, 294. Elliott, ‘The “Despard Conspiracy” Reconsidered,’ 57. Elliott, Partners in Revolution, 295. Ibid., 296; T.S. 11/121/332, 404. Three men involved in the meetings turned king’s evidence and assured the prosecutors that in the planned uprising the Tower was to be taken and the king stopped, perhaps even assassinated. This last accusation became the first count of treason: compassing and imagining the death of the king. The prosecution listed eight overt acts to prove this. They focused on seducing soldiers to renounce their proper allegiance, administering an oath to them, planning an assassination, and taking the Tower to procure arms. These eight overt acts proved the second count of treason, to imprison and restrain the king, and the third count of treason, to deprive and depose the king (T.S. 11/ 121/332). From their interviews with prisoners and witnesses after the arrest, prosecutors concluded that ‘Societies of Persons calling themselves united Englishmen on the plan of the united Irishmen have existed in many parts of this Kingdom for several years past’ (T.S. 11/ 121/332). Meetings of the growing society were frequent during 1801 and 1802 in London, but the government failed to discover much about the societies’ activities until the summer of 1802. Members met at pubs such as The Black Bear, The Bleeding Hart, The Spread Eagle, The Bell, The Ham and Windmill, and The Oakley Arms. As of March 1802, the societies had attempted to convert soldiers to their cause and urged them to ‘unite themselves to overturn the present System of Tyranny and to get as many Friends to join them as possible’ (T.S. 11/ 121/332). The act for the oath is 37 Geo. III, c. 123. A Full and Accurate Report of the Whole Proceedings upon the Trial of Colonel E.M. Despard, Thomas Broughton . . . (Dublin: T. Metcalf, 1803), 4. Ibid., 5.
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146 T.S. 11/121/332. 147 The Trial of Edward Marcus Despard, Esq. for High Treason, from Mr Gurney’s short-hand, 72, in T.S. 11/121/332. 148 Ibid., 16. 149 Ibid., 15. 150 State Trials at Large. (Taken in Short Hand), 15. 151 Ibid., 26. 152 T.S. 11/121/332. The Trial of Edward Marcus Despard, Esq., 341. 153 Ibid. 154 T.S. 11/1052/4626. The Trial of John Wood, Thomas Broughton, John Francis, Thomas Phillips, Thomas Newman, Daniel Tyndall, John Doyle, James Sedgwick Wratten, William Lander, Arthur Graham, Samuel Smith, and John Macnamara for High Treason at the Session House Newington Surrey on Wednesday the 9th of February 1803. Taken in short hand by Joseph and W. B. Gurney, 12. 155 Ibid., 577. 156 T.S. 11/122/333. 157 T.S. 11/121/332. The Trial of Edward Marcus Despard, Esq. for High Treason, 500. 158 A Full and Accurate Report of the Whole Proceedings upon the Trial of Colonel E.M. Despard, Thomas Broughton . . . (Dublin: T. Metcalf, 1803), 75. 159 Elliott, ‘Ireland and the French Revolution,’ 89; and A Full and Accurate Report of the Whole Proceedings upon the Trial of Colonel E.M. Despard, Thomas Broughton. Thomas Graham agrees, and he outlined three stages of development in the United Irishmen movement. The first phase of the early 1790s politicized the population. The second phase from 1795 on ‘welded’ this politicization into a ‘formidable political and military organization, an union of power.’ The third phase from 1796 to 1798 faced repression, lacked French assistance, destroyed the leadership and produced internal dissension, and yet the United Irishmen continued to be a threat that erupted into rebellion in May 1798. Thomas Graham, ‘“An Union of Power”?’ 253. 160 Elliott, ‘Ireland and the French Revolution,’ 7.
Chapter 5 The ‘General Safety of the State’: treason from 1816 to 1820 1 Clive Emsley, British Society and the French Wars, 1793–1815 (London: Macmillan Press – now Palgrave, 1979), 173. 2 See J.C.D. Clark, ‘The End of the Ancien Regime,’ in J.C.D. Clark, English Society, 1688–1832: Ideology, Social Structure and Political Practice During the Ancien Regime (Cambridge: Cambridge University Press, 1985), 349–420. 3 As had the London Corresponding Society in the 1790s, by 1816 the Hampden Clubs connected various districts within England and provided an effective organization from which, according to the government, a revolution could be launched. Malcolm I. Thomis and Peter Holt, Threats of Revolution in Britain, 1789–1848 (London: Macmillan Press – now Palgrave, 1977), 124.
202 Notes 4 E.A. Smith has questioned the idea that George III suffered from porphyria, a disease in which inherited defects of the body’s chemistry lead to an increased accumulation of toxic chemical substance that harms the nervous system. E.A. Smith, George IV (New Haven, CT: Yale University Press, 1999). For diseases of the mind in the ‘long’ eighteenth century, see Roy Porter, Mind-Forg’d Manacles: a History of Madness in England from the Restoration to the Regency (Cambridge, MA: Harvard University Press, 1987). 5 Christopher Hibbert, George IV, Prince of Wales, 1762–1811 (London: Longman Press, 1972), 83. For general political histories on this time period see J.A. Cannon, The Fox-North Coalition (Cambridge: Cambridge University Press, 1969); John Derry, Politics in the Age of Fox, Pitt and Liverpool. Continuity and Transformation (New York: St. Martin’s Press – now Palgrave, 1990); J. Ehrman, The Younger Pitt: the Years of Acclaim (London: Constable, 1969); L.G. Mitchell, Charles James Fox and the Disintegration of the Whig Party, 1782–1794 (Oxford: Oxford University Press, 1971); F. O’Gorman, The Rise of Party in England: the Rockingham Whigs (London: Allen and Unwin, 1975); R. Pares, King George III and the Politicians (Oxford: Oxford University Press, 1953). 6 Some historians refer to the Pentridge rebellion as the Pentrich rebellion, but the Treasury Solicitor Papers use Pentridge. So will I. 7 Clark, English Society, 411. Jonathan Clark argues that the system of checks and balances ended in the late 1820s. 8 Christopher Hibbert, George III. A Personal History (London: Basic Books, 1999), 271. An Impartial Report of All the Proceedings in Parliament, of the Late Important Subject of a Regency: . . . (London: J. Bew, 1789); Parliamentary History, the Parliamentary History of England, from the Earliest Period to the Year 1803. From Which Last-Mentioned Epoch it is Continued Downwards in the Work Entitled, ‘The Parliamentary Debates.’ Vol. XXVII. Comprising the Period from the Fourteenth of February 1788, to the Fourth of May 1789 (London: T.C. Hansard, Longman, Hurst, Rees, Orme & Brown, 1816). See also John Derry, The Regency Crisis and the Whigs, 1788–9 (Cambridge: Cambridge University Press, 1963) and John Heneage Jesse, Memoirs of the Life and Reign of King George the Third, vol. 4 (Boston: for F.A. Niccolls and Co. [n.d.]) 9 Jesse, Memoirs, 423. 10 Parliamentary Debates, vol. 18, 1126. 11 Ibid., 1127. 12 Ibid., 1123. 13 Ibid., 1033. 14 51 George III, c. 1, in The Statutes of the United Kingdom of Great Britain and Ireland, vol. 51 (London: His Majesty’s Statute and Law Printer, 1818), 1–14. 15 Parliamentary Debates, vol. 18 (London: Longman, Hurst, Rees, Orme, and Brown; and others, 1812), 1128–9. Alan Palmer, The Life and Times of George IV (London: Weidenfeld and Nicolsen, 1972), 95. David, Prince of Pleasure, 318. 16 Parliamentary Debates, vol. 18, 1129. 17 Ibid., 1130.
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18 The king died 29 January 1820 at the age of 81 years and 8 months. As to the subjects, ‘Their sympathies and prayers had been with him in his living tomb, and when he expired they mourned him as a father.’ Jesse, Memoirs, 462–3. 19 H.E. Lloyd, Esq., George IV. Memoirs of his Life and Reign (London, 1830), 315. 20 Saul David, Prince of Pleasure: the Prince of Wales and the Making of the Regency (New York: Atlantic Monthly Press, 1998), 371. For more information on the radicals in the Regency period see such works as, Arthur Calder-Marshall, ‘The Spa Fields Riots, 1816,’ History Today 26, no. 6 (June 1971): 407–15; John Belchem, ‘Republicanism, Popular Constitutionalism and the Radical Platform,’ Social History 6 (1981): 1–32, and ‘Orator’ Hunt. Henry Hunt and English Working-Class Radicalism (Oxford: Clarendon Press, 1985); James Epstein, ‘Understanding the Cap of Liberty: Symbolic Practice and Social Conflict in Early Nineteenth-Century England,’ Past and Present, no. 122 (October 1989): 75–118; V.A.C Gatrell, The Hanging Tree: Execution and the English People, 1770–1868 (Oxford: Oxford University Press, 1994); David Johnson, Regency Revolution: the Case of Arthur Thistlewood (Salisbury: Compton Russell, Inc., 1974); R. J. White, Waterloo to Peterloo (New York: Russell & Russell, 1957, 1973). 21 Parliamentary Debates, vol. 35, 8. 22 Ibid., 411. 23 Ibid., 418. 24 Ibid., 597. 25 57 Geo. III, c. 6, in The Statutes of the United Kingdom of Great Britain and Ireland, 57 George III, 1817 (London: His Majesty’s Statute and Law Printers, 1817). 26 John Plowright, Regency England: the Age of Lord Liverpool (London: Routledge, 1996), 25. See also E.P. Thompson, The Making of the English Working Class (New York: Vintage Books, 1966), 638–9. 57 Geo. III, 3, in The Statutes of the United Kingdom of Great Britain and Ireland, 57 George III, 1817. Parliamentary Debates, vol. 35, 602. 57 Geo. III, c. 6, in The Statutes of the United Kingdom of Great Britain and Ireland, 57 George III, 1817. 27 The second article of regulations to admit members best summarizes the beliefs of the Spenceans: ‘That the Land or Territory of a Nation is by Nature the Peoples Realm in which all persons as equal Partners might receive their share of the Rent and that the practical establishment of this Division of the Rent would tend to diminish the frequency of Wars Improve the general condition of a State of Society founded on universal Freedom and Justice’ (T.S. 11/197/859). 28 David Johnson, Regency Revolution, 3. See also Arthur Calder-Marshall, ‘The Spa Fields Riots, 1816,’ History Today 21, no. 6 (June 1971): 407–15. 29 T.S. 11/200/869, pt. 1. 30 T.S. 11/199/868, pt. 1. 31 T.S. 11/197/859. 32 T.S. 11/199/868, pt. 1. 33 T.S. 11/199/867: Mr. Justice Bayley’s Charge to the Grand Jury. 28th April 1817. Court of King’s Bench. Monday 28th April 1817. Copy from Mr. Gurney’s Short Hand Notes, 1.
204 Notes 34 Ibid., 8. 35 Copley also pointed to the recent report published by parliament respecting the distressed and disaffected state of the country, and the consequence of that report: the suspension of habeas corpus. 36 High Treason. The Trials at Bar of Arthur Thistlewood, Gent., . . . (London: W. Lewis, 1817), 282. 37 Ibid., 285. 38 Ibid., 668. 39 T.S. 11/131/351, pt. 1, Brief for the Crown, 26. Currently, I do not have evidence of how often these reform societies referred to the American system of government. Nor have I found prolonged discussions concerning what the members of these reform movements thought of the American constitution. Such information would certainly assist in sorting out what their idea of the perfect state was. 40 T.S. 11/204/875, pt. 2. 41 T.S. 11/131/351, pts 1 and 17. 42 T.S. 11/133/359, The Trials of Jeremiah Brandreth, William Turner, Isaac Ludlam, George Weightman and others for High Treason Under a Special Commission at Derby. . . . With the antecedent Proceedings in two volumes. Vol. 1, Taken in short hand by William Brodie Gurney short hand writer to both Houses of Parliament, 44. 43 Ibid. 44 Thomas Denman (1779–1854) became an esteemed Chief Justice of the King’s Bench in 1832. He acted as Queen Caroline’s Solicitor General and defended her in parliament in 1820. Edward Foss, A Biographical Dictionary of the Judges of England from the Conquest to the Present Time, 1066–1870 (London: John Murray, 1870), 216–19. 45 T.S. 11/133/359: The Trials of Jeremiah Brandreth, William Turner, Isaac Ludlam, George Weightman and others for High Treason Under a Special Commission at Derby on Thursday the 16th Friday the 17th Saturday the 18th Monday the 20th Tuesday the 21st Wednesday the 22d Thursday the 23d Friday the 24th and Saturday the 25th of October 1817. With the antecedent Proceedings in two volumes. Vol. 1, Taken in short hand by William Brodie Gurney short hand writer to both Houses of Parliament, vol. 1, 805–6. 46 Perhaps we could best understand this interpretation as a continuation of what Glenn Burgess defined as the ‘royalist tradition.’ 47 T.S. 11/133/359, The Trials of Jeremiah Brandreth, vol. 2, 19. 48 The Six Acts prohibited military training, allowed justices to search and enter houses without warrants on suspicion of arms, prohibited meetings of more than fifty people, increased the stamp duty on periodical publications, and extended and expedited the powers of authority in actions for seditious libel. Thompson, The Making of the English Working Class, 684. 49 Thompson believed that neither the Six Acts nor Cato Street had a lasting influence. Peterloo, however, made the middle-class reformers and Whigs link up as a consequence of their loss of influence over the middle class. Because post-war agitation shook the confidence in the ancien regime some who had been loyalists in 1819 became willing in the 1820s to admit the need for limited concessions. The sheer horror of the massacre offended the moral consensus of the nation which ‘out-
Notes
50 51
52 53
54 55
56 57 58
59 60
205
lawed the riding down and sabreing of an unarmed crowd, the corollary followed – that the right of public meeting had been gained’ (ibid., 709). H.O. 44/4. T.S. 11/206/879, The Trials of Arthur Thistlewood, vol. 2, 17. ‘But if the assassination be meant as the signal for, or commencement of, a tumultuous insurrection of large numbers of persons expected to join the conspirators and intended by force and numbers to take the Government of the Country into the hands of the leaders or to compel the Sovereign to adopt such measures as they may think fit to dictate to him then the conspiracy for the assassination will assume a different complexion and character and may be an overt act of one or both of these species of treason which consist in an intention to depose the King or to levy war against him for one of the purposes before mentioned and also of compassing his death, because we know from experience that the death of a Sovereign has been the usual consequence of his deposition and every person may reasonably be presumed to contemplate and intend the probable and natural consequences of his own act until the contrary be clearly shewn’ (ibid., vol. 1, 15–16). Ibid., 18. Mr Baron Barrow assuaged Davidson’s fear of racial prejudice: ‘A Man of colour is entitled to British Justice as much as the fairest British Subject that ever came into a Court of Justice and will always be sure to obtain it and this Case will be decided upon the facts given in evidence. God forbid that the complexion of the accused should enter for a single moment into the consideration of the Jury.’ (ibid., vol. 2, 1048). During his examination before the Lord Mayor, Davidson denied all involvement. Birne, however wrote to Hobhouse, that ‘I strongly suspect this man, he appears arty, artful and devious rascal, he had a sneer on his face while talking to me.’ H.O. 44/5. T.S. 11/206/879, The Trials of Arthur Thistlewood, vol. 1, 53. ‘What was the purpose for which these persons were assembled in Cato Street on that night? Men with no common bond of union – not related to each other not connected with each other except in the nefarious schemes they had in contemplation. – are found assembled in a stable in an obscure street with a large collection of arms of the description I have given you. – Why were quantities of grenades and fireballs prepared? For other objects and other purposes than the attack in Grosvenor Square; – for the objects described and the purposes charged in this Indictment . . .’ (ibid., vol. 1, 124). Ibid., vol. 1, 815. Ibid., vol. 2, 524. The jurors could not follow the law of treason if they ‘suffer any feelings of moral guilt to work upon your minds to pronounce a Verdict because you may think men guilty of very enormous offences unless you also think them guilty of that precise specific treason with which they are charged.’ (ibid., vol. 1, 418). Ibid., 413. Ibid., 1166.
206 Notes 61 62 63 64 65 66 67 68 69 70 71
Ibid., 1167. Ibid., 1173. Ibid., 1274. H.O. 44/6. T.S. 11/202/872. The Trials of Arthur Thistlewood, vol. 2, in T.S. 11/206/879, 1363. H.O. 44/6. Gatrell, The Hanging Tree, 298–321. Ibid., 314. Ibid., 321. See Trials for High Treason, in Scotland, Under a Special Commission, Held at Stirling, Glasgow, Dumbarton, Paisley and Eyre, in the Year 1820, vols. 1–3 (Edinburgh: Manners and Miller, 1825). 72 Ibid., p. 471. 73 Gatrell, The Hanging Tree, 298. 74 For treason trials from 1816–1820 see T.S. 11/199/867, Mr. Justice Bayley’s Charge to the Grand Jury. 28th April 1817. Court of King’s Bench. Monday 28th April 1817. Copy from Mr. Gurney’s Short Hand Notes; High Treason. The Trials at Bar of Arthur Thistlewood, Gent., James Watson, the Elder, Surgeon, Thomas Preston, Cordwainer, and John Hooper, Labourer, for High Treason before the Four Judges, in the Court of King’s Bench, Westminster, on Monday, June 9, 1817. Taken in Short-hand by Mr. Fraser (London: W. Lewis, 1817); T.S. 11/133/359, The Trials of Jeremiah Brandreth; and T.S. 11/206/879.
Conclusion 1 For an introduction to Chartism see Owen Ashton, Robert Fyson and Stephen Roberts, eds, The Duty of Discontent: Essays for Dorothy Thompson (London: Mansell Publishing Ltd, 1995); Mick Jenkins, The General Strike of 1842 (London: Lawrence and Wishart, 1980); David J. V. Jones, The Last Rising: the Newport Insurrection of 1839 (Oxford: Clarendon Press, 1985); Gareth Stedman Jones, Languages of Class: Studies in English Working Class History, 1832–1982 (Cambridge: Cambridge University Press, 1983); Paul A. Pickering, Chartism and the Chartists in Manchester and Salford (London: Macmillan Press – now Palgrave, 1995); John Saville, 1848: The British State and the Chartist Movement (Cambridge: Cambridge University Press, 1987); Dorothy Thompson, The Chartists: Popular Politics in the Industrial Revolution (New York: Pantheon Books, 1984). 2 5 & 6 Vict., c. 51: An Act for providing for the further Security and Protection of Her Majesty’s Person. 3 Edward William Cox, An Act for the Better Security of the Crown and Government of the United Kingdom. 11 Vict., c. 12. With an Introductory Sketch of the Law of Treason and Sedition, etc. (London, 1848). 4 Ibid., 2. 5 ‘For the protection and safety of the whole community, which necessarily depends upon social order, and requires the superintendence of the sovereign to keep in due order and working all the various depart-
Notes
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ments of the State: for the protection of the whole community, and of the monarch who reigns over it, those portions of the Act of Parliament were framed’ (ibid.) 6 As the Lord Chief Baron explained at the Grand Jury hearing, ‘With respect to so much of the Act of Parliament passed in the year 1796, the thirty-sixth of George III., as deals with designs to commit personal injury upon the Sovereign, these still remain high treason, and are enacted for both countries to be high treason under this Act of Parliament. But with respect to certain other parts of that former statute the law has been mitigated, and the offence is made a transportable felony.’ John George Hodges, Report of the Proceedings under the Treason Felony Act, 11 Vic., Cap. 12, at the Commission Court, Green-Street, Dublin, August and October, 1848 (Dublin: Alexander Thom, 1848), 15. 7 Working Paper No. 72. Second Programme, Item XVII. Codification of the Criminal Law. Treason, Sedition and Allied Offences (London: Her Majesty’s Stationery Office, 10 May 1977), 37.
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Statutes The Acts of the Parliaments of Scotland, 12 vols. London, 1822. A Collection of Acts and Ordinances of General Use, made in the Parliament Begun and Held at Westminster the third day of November, Anno 1640 and since, unto the Adjournments of the Parliament begun and Holden the 17th of September, Anno 1656. London, 1662. A Collection of the Several Statutes, and Parts of Statutes, Now in Force, relating to High Treason, and Misprision of High Treason. London: Charles Bill, and the Executrix of Thomas Newcomb, deceas’d, 1709. Statute Law of Scotland Abridged: with Historical Notes. Edinburgh: Sands, Donaldson, Murray and Chochran, 1757. Statutes at Large, 18 vols. London: Mark Baskett, 1769–1800. Statutes of the Realm (1235–1713), 10 vols. London: G. Eyre & A. Strahan, 1810–22. A Bill to Ascertain and Establish the Method of Proceeding to and Upon Outlawries for High Treason, and Misprision of High Treason, in Scotland. London, 1749.
General collections of treason trials Bell’s Reports at Large of the State Trials for High Treason. London, 1794. A Collection of State-Trials, and Proceedings upon High-Treason, and other Crimes and Misdemeanours, from the reign of King Edward VI. to the present time. . . . London: C. Bathurst and E. Folingsby, 1766. A Complete Collection of the State Tryals of Persons for High Treason, Murder, Rapes, Heresy, . . . that have been in England from the Reign of Richard II. to this Present time. Dublin: S. Dalton, 1736–37. A Complete Collection of State Tryals and Proceedings for High Treason and Other Crimes and Misdemeanours; the fourth edition, commencing with the eleventh year of the reign of King Richard II, and ending with the sixteenth year of the reign of King George III . . ., 11 vols. London: T. Wright, 1776. An Historical Account of all the Tryals and Attainders of High-Treason, from the Beginning of the Reign of King Charles the First, chronologically digested. . . . London: H. Meere, 1716. An History of the Archbishops and Bishops, who have been Impeach’d and Attainted of High Treason, from William the conqueror to this Time . . . London: J. Roberts, 1722. The Bloody Register. A Select and Judicious Collection of the Most Remarkable Trials, for Murder, Treason, Rape, Sodomy, Highway Robbery, Pyracy, HouseBreaking, Perjury, Forgery, and other High Crimes and Misdemeanors. From the Year 1700, to the Year 1764 inclusive. London: E. & M. Viney, 1764. A Collection of the Most Remarkable Trials of Persons for High Treason, . . . and for other Crimes and Misdemeanors. London: T. Read, 1734–9.
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Treason trial procedure A Form and Method of Trial of Commoners, In Cases of High Treason, And Misprision of High Treason, Pursuant to the Statute made in the Seventh Year of the Reign of the late King William the Third, of England, &c. Intituled, An Act for Regulating of Trials in Cases of Treason and Misprision of Treason: . . . London: Charles Bill, 1709. The Law of Treason. A Concise and Comprehensive view of the Power and Duty of Grand Juries in Criminal Cases. London: B. Crosby, 1794. The Method of the Proceedings in the House of Lords and Commons in Cases of Impeachments for High Treason, with Presidents Ancient and Modern; and the Judgment of our best Lawyers, and Historians. London: J. Roberts, 1715. The Reasonableness of Parliamentary Proceedings, by Attainders, Banishments, Pains and Penalties, in Cases of High-Treason. London: T. Payne, 1723. Treason, Sedition, and Rebellion, fully and impartially considered: with remarks upon the case of the unhappy Dr. Cameron. London: C. Corbett, 1753.
Treason related to Jacobitism The Lords protest on a motion of the House to be put into a Committee upon the Bill, intitled, An Act to Make it High Treason to Hold Correspondence with the Sons of the Pretender to His Majesty’s Crown. London, 1744. A Short Discourse of High-Treason, More Especially on Three Clauses of the Statute of Treasons; Viz. 1. Compassing the King’s Death. 2. Levying War Against the King. 3. Adhering to his Enemies. London: H. Lintot, for John Worrall, 1746. List of the Scottish nobleman and gentlemen attainted of High Treason this last Session of Parliament. Edinburgh, 1716. List of those who are committed to Newgate, and other prisons, for High Treason, and Treasonable Practices, against the King and Government. London: R.N., 1714. Rocks and Shallows Discovered: Or, the Ass Kicking at the Lyons in the Tower. Wherein the Danger of a Discourse Concerning Treasons and Bills of Attainder is Consider’d. London: John Morpher, 1716.
Treason in the 1790s An Account of the Treason and Sedition, Committed by the London Corresponding Society, The Society for Constitutional Information, The Other Societies of London, Sheffield. London: J. Downes, 1794. Assassination of the King! The Conspirators Exposed, or, An Account of the Apprehension, Treatment in Prison, and Repeated Examinations Before the Privy Council. London, 1795. Brown’s Gazette Extra. Symptoms of Treason! (In Order to Appease the Anxiety of the Citizens on the Subject of the Following Important Letter, We have taken the Liberty of Laying it before them at this timely hour). Philadelphia: Andrew Brown, 1797.
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A Calm Inquiry into the Office and Duties of Jurymen in Cases of High-Treason: with Seasonable Remarks. . . . London: J.S. Jordan, 1794. Administration Convicted of High Treason against King and People: of Having Feloniously and Traiterously Excited Disturbances, . . . In a Letter to the Marquis of Lansdowne, from an Irish Farmer. Dublin, 1798. A Letter to the Citizens of Bristol, on the subject of Two Bills now pending in Parliament; wherein is attempted to be shewn, that those Bills are Not Necessary for the Professed Purpose of Preventing Treason and Sedition. Bristol: R. Edwards, 1795. A Letter to His Majesty’s Attorney General, Soliciting Advice how to Act with Safety under the Two New Bills, Called the Treason and Sedition Bills. By one, of many Astonished Royalists. London: Southern, Pearsons and Smeeton, 1796. Observations on the Law of Treason; wherein it is attempted to be Shewn, the Conspiring to Levy War is not Treason by the Law of England. London: J. Johnson, 1794. Thoughts on the law of forfeiture and Parliamentary Attainder for High Treason, as Applying to the Bill now Depending in Parliament. Dublin: Graisberry & Campbell, 1798. Treason Triumphant over Law and Constitution! London: J. Downes, 1795. A Treatise upon the law and proceedings in cases of high treason, &c. By a Barrister at Law. London: A. Strahan and W. Woodfall, 1793. Last Advice but One, of a Lover of the British Constitution, to All Lovers of the said Constitution, Respecting the New Sedition and Treason Bills. London: H.D. Symonds, 1795. Pepper and Salt; or, a Letter to the Armed Associators of Great Britain, Containing Remarks on the Mischief of Sedition; progress of Treason. London, 1798. The Proceedings and Speeches, at the Meeting the Seventeenth November, 1795, at St. Andrew’s Hall, Norwich to Petition Parliament Against Lord Grenville’s and Mr Pitt’s Treason and Sedition Bills. Norwich: John March, 1795. Report of the Constitutional Society upon the Treason and Sedition Bills. London: T.G. Ballard and J. Smith, 1795.
Treasonable riots and conspiracy His Majesties Declaration to all His Loving Subjects Concerning the Treasonable Conspiracy. London: John Bill deceased, Henry Hills, and Thomas Newcomb, 1683. Fanaticism and Treason: Or, a Dispassionate History of the Rise, Progress, and Suppression, of the Rebellious Insurrections in June 1780. London: G. Kearsly, 1780. Whereas a Great Number of Disorderly Persons have Assembled Themselves Together in a Riotous and Tumultuous Manner, and have been guilty of Many Acts of Treason and Rebellion. London, 1780.
Accounts of treason trials The Trial of Oliver Bond, Esq. for High Treason. Cork: Connor, 1798. The Life and Death of Christian Bowman, alias Murphy; Who was burnt at a Stake in the Old Bailey, on Wednesday the 18th of March, 1789, for High
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Articles of Impeachment of High Treason Exhibited against James Earl of Derwentwater, William Lord Widdrington, William Earl of Nithisdale, George Earl of Winton, Robert Earl of Carnwarth, William Viscount Kenmure, and William Lord Nairn. Edinburgh, 1716. An Authentic Detail of the Trial of Colonel E.M. Despard, and others, on a charge of High Treason: tried at the Sessions-House, Newington, February 7 th 1803, before Lord Chief Justice Ellenborough . . . London: H. Reynell, 1803. A Full and Accurate Report of the Whole Proceedings upon the Trial of Colonel E.M. Despard, Thomas Broughton . . . Dublin: T. Metcalf, 1803. State Trials at Large. The Whole Proceedings on the Trial of Col. Despard, and the other State Prisoners, Before a Special Commission, at the New Sessions House, Horsemonger Lane, Southwark, Feb. 7 and 9, 1803. London: R. Bent, 1803. Trial of David Downie, for High Treason, Before the Court, Under the Special Commission of Oyer and Terminer, Held at Edinburgh. Edinburgh: William Brown, 1795. The Last Speech Confession and Dying Words of Mr James Dunbar, who was try’d and condemn’d, for High Treason . . . Dublin, 1725. Extract from the rolls of Parliament in the Tower of London; Thomas Lord Roos, Thomas Grey, . . . and others attainted of High Treason for Rebellion . . . and all their lands . . . declared to be forfeited . . . Darlington: George Allan, 1775. Episcopal Traytors: or, priests aukward politicians. Exemplify’d, in the behaviour of the political prelacy; more particularly of the attempts of Archbishop Laud, and his equivocal exit. Occasion’d, by the Commitment of the Bishop of Rochester, to the Tower for High Treason, on August 24, 1722 . . . Collected from the best historians; by a friend of the author of Cataline, &c. London: A. Moore, 1722. Extract of the Process of Treason, At the Instance of Sir James Steuart, Her Majesties Advocate; And as Having Special Warrant for that Effect, Against James Stirling of Keir, and others. London, 1709. The Proceedings against Sir John Fenwick, Bar. Upon a Bill of Attainder for High Treason. Together with a Copy of a Letter sent by Sir John Fenwick to his Lady, upon his being Taken in Kent. London, 1702. Trial of Mr Patrick Finney, on a charge of High Treason, . . . Dublin: Campbell and Shea, 1798. The Tryal of Francis Francia, for High Treason, at the Sessions-House in the Old-Baily; on Tuesday, Jan. 22. 1716. . . . London: D. Midwinter, 1717. Sir John Friend and Sir William Perken’s Last Farewell to the World, Who were Executed at Tyburn. London: J. C. in Old Bedlam, 1696. A True Copy of the Papers Delivered by Sir John Friend, and Sir William Parkyns to the Sheriffs of London and Middlesex at Tyburn, the Place of Execution, April 3d. 1696. London: William Rogers, 1696. The Tryal and Condemnation of Sir John Friend, Knight, for Conspiring to Raise Rebellion in these Kingdoms, in order to a French Invasion: who upon full evidence was found guilty of high-treason, at the Sessions-House in the Old Bayly, March 23th 1695/96. London: Brabazon Aylmer, 1696. The Trial of Lieutenant John Frith, for High-Treason, before the Lord Kenyon, at the Old-Bailey, on Saturday the 17th of April, 1790. Newcastle: M. Brown, 1790.
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Index Act of Settlement, 64 alien status, 19, 37 Jacobite trials, 69, 77–9, 87, 190n.80, 191n.81 see also Calvin’s Case; post-nati allegiance, 1–8, 39, 44, 46, 65, 83, 129, 137–8, 142, 158–9, 162 Blackstone on, 89–92 British, 69–72, 77–80, 97, 191n.81: see also Interregnum Coke on, 15, 87: see also Calvin’s Case dynastic, 11–14, 16–17, 24, 28, 48–9, 58–9, 67–8, 85–6: see also Restoration treason Foster on, 86–9 to the state, 100, 113, 116, 123–4, 126, 133, 136, 137–8, 141–3, 155–7 Allen, John, 124, 125, 128 American Revolution, 6, 70, 93–5, 185n.2 American republican treason, 95–7, 98–9, 100 American treason law, 7–8 Anne (r.1702–14), 5, 49, 71, 75 assassination plots, 5, 45, 57, 60, 130 attainder, 1, 14, 25, 27–8, 30, 45, 56, 60, 62–3, 64, 65–6, 67 of blood, 11 of Charles I, 33 definition of, 59, 163n.1, 168n.9 of Jacobites, 53, 59, 76 Bacon, Thomas, 147–8 Best, William Draper, 133, 135–6 Binns, John, 124, 125, 128 Blackstone, William, 3, 70, 86, 89–92, 93, 97, 104, 149, 185n.1 Bodin, Jean, 18, 170n.37 Bond, Oliver, 129–30 Bradshaw, John, 34, 35, 36, 38
Brandreth, Jeremiah, 147–8, 150 British convention (1794), 107, 110, 115, 193n.21 British state, 1–8, 9, 13–14, 24, 25–9, 39, 42, 46, 62, 67, 84, 145, 151–2, 155–7, 158–62, 163n.4, 164n.5, 170n.35, 195n.56 in American Revolution, 93–7 in 1790s, 100, 103–4, 139, 141, 106–7, 110, 112–13, 116–18, 134, 136, 137–8 in treason trials 1817–20, 140, 141, 143, 145, 148–52, 155–6, 204n.39 British treason law, 5–6, 69, 70–5, 76, 158–62 in American Revolution, 96, 97, 158, 187n.24, 207n.5, 207n.6 Blackstone on, 93 compared to American treason law, 8 contested in Kinlochs’ trial, 78–80, 84 protecting the king, 8, 58–9, 167–8 protecting the state, 145–50, 150–5, 155–7 see also Irish republican treason; Jacobins Brunt, John Thomas, 151, 152, 153, 154 Buller, Francis, 126–7, 198n.109 Burke, Edmund, 6 on American colonies, 94 on French Revolution, 99, 100, 102, 107 Calvin’s Case, 4, 17–23, 37, 38, 46, 68, 97, 158 Campbell, Ilay, 103–4 Castlereagh, Robert Stewart, Viscount, 144–5, 148
241
242
Index
Cato Street conspiracy, 7, 140, 150–5, 157, 205n.55 Charles I (r.1625–49), 3, 5, 9, 13, 24, 27, 30, 38, 42, 104, 172n.77 trial of, 31–8 Charles II (r.1649–85), 5, 44, 45 Charles Edward Stuart, the Young Pretender, 81, 88 Charnock, Robert, 61, 62, 64 Chartists, 7, 159–60, 206n.1 Church of England, 15, 49, 67, 97 Civil War, 23, 31, 45, 158 Coke, Edward 26, 40, 68, 85, 87, 88, 170n.36, 171n.56 on 25 Edw. III, Stat. 5, c. 2, 10–12, 15 on Calvin’s Case, 18–23 constructive treason, 13, 17, 24, 27, 29, 36, 46, 168n.19 in David Downie’s trial, 105 in London Jacobin trials, 107 discussed in parliament (1795), 118 Copley, John, 146–7 Cornish, Henry, 47, 59 Cromwell, Oliver, 9, 41–3, 46 Crossfield, Robert Thomas, 115, 125 Cullen, Robert, 105 Damaree, Daniel, 5, 146 Davidson, William, 151, 152, 154, 205n.53 de facto monarchs, 48, 49, 51, 69, 70, 86, 88, 158, 177n.1 de jure kingship, 49, 64, 65, 69, 70, 86, 88, 184n.71 Denman, Thomas, 148–9, 204n.44 Despard, Edward Marcus, 7, 123, 130 trial of, 131–6, 200n.129, 200n.142 Dissenters, see Nonconformists Downie, David, 103, 105–6 Egerton, Thomas, Lord Ellesmere, 18–21, 170nn36, 37 Ellenborough, Lord Chief Justice, see Law, Edward
Ellesmere, Lord, see Egerton, Thomas Erskine, Thomas, 110–11, 113–14, 115, 128, 159 see also Jacobins Eyre, Sir James, 106–7, 108, 109, 115 Fenwick, John, 59, 62–3, 64, 67, 183n.50 Foster, Michael, 3, 69–70, 78, 86, 87–8, 93, 106 Fox, Charles James, 114, 122, 141 France, war with, 7, 65, 67 assisting Jacobite cause, 81, 83 1789 Revolution, see French Revolution Fraser, Simon, Lord Lovat, 69, 80–3 French Revolution 6, 96, 98, 99–101, 107, 111, 112, 114, 115, 124–25, 126, 128, 130, 138, 162, 197n.100 Friend, John, 61–2 Friends of the People (1793), 101–2 Frost, John, 159–60 Gagging Acts, see under Treason Acts George II (r.1727–60), 69, 71, 81, 83, 84, 86 George III (r.1760–1820), 89, 93–4, 130, 141–2, 156, 202n.4 Gibbs, Vicary, 111–12, 114, 115 Glorious Revolution, 3, 5, 44, 46, 48, 49, 51, 52, 55, 69, 71, 84, 91, 158, 178n.5, 179n.6, 186n.5 Goodman, Cardell, 62, 64 Godwin, William, 106, 107–8, 122–3 Gordon, Lord George, 5, 146, 147 Gray, Robert, 125–6 Grenville, William, 117, 118, 139 Griffith, John, 150–1, 156 Gwyn, Rowland, 65, 66, 184n.65 habeas corpus, 95–6, 102, 132, 140–4, 138, 156 Hale, Matthew, 40, 70, 85, 87, 106 Hamilton, James Hamilton, 3rd marquis, later 1st duke, 24, 37
Index Hardy, Thomas, 106, 108–13, 115, 138 Hawles, John, 50 Henry VII (r. 1485–1509), 15, 30 Henry VIII (r. 1509–47), 15, 16, 18 Hewett, John, 42, 43 Hobhouse, Henry, 150, 156 Holles, Thomas, duke of Newcastle, 76 Holt, Sir John, 59, 61, 64 House of Commons, 50–3, 54, 55, 60–1, 63–5, 74, 116–23, 159 House of Lords, 39, 50–2, 54, 55, 60, 61, 64, 65, 73, 74, 116–23, 159 impeachment: of Jacobites, 76, 80–2, 163n.1 of William Laud, 28, 60 Ings, James, 151, 154 Interregnum 9, 37–44, 158, 196–7n.100 Ireland, 6, 24, 123–8, 130 see also United Irishmen Irish republican treason, 123–30, 135 Jacobins 3, 7, 99, 100, 131–2, 141, 162 compared to Jacobite threat, 119 Edinburgh treason trials, 103–6 London treason trials, 106–16 Jacobites, 6, 49, 53, 57, 59, 60, 68, 71, 80, 86, 97–8, 99 rebellion (1745), 6, 71, 75, 82 treason trials, 61, 69, 70, 75–7, 116, 136, 137, 158, 180–1n.10, 182n.27, 182n.42, 188n.29, 189n.36 James II (r.1685–8), 9, 44, 45, 48, 49, 50, 52, 53, 57, 51, 59, 62, 64, 66, 86 abdication of, 50 death of, 51 James VI/I (r.1603–25), 4, 9, 17, 18–20, 22, 27, 38 James Francis Edward Stuart, the Old Pretender (1688–1766), 59, 64, 66, 67, 69, 81, 88
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Jones, William, 159–60 jurors, 47, 51, 76, 110–11, 136, 138, 148, 151, 152, 154–55 challenge of jury members, 52 Kinloch, Alexander, 69, 76–80 Kinloch, Charles, 69, 76–80 Law, Edward, 1st Baron Ellenborough, 133, 134, 136 Laud, William, Archbishop of Canterbury, 3, 5, 13, 24, 25, 104 trial of, 28–31 Leary, Jeremiah, 124, 125, 128 Lilburne, John, 39–40 Lisle, John, 42 Littleton, Thomas, 54, 63 London Corresponding Society (LCS), 101, 102, 106–8, 109, 115, 116, 117–18, 120, 121, 124–5, 130, 138 Lord High Steward, 51, 52, 55 Louis XIV of France (r.1643–1715), 62, 64, 65 Ludlum, Isaac, 149, 150 Mary II (r.1688–94), 45, 48, 49, 51, 53, 67 Mitford, John, 109, 111–12, 113 Mordant, John, 42, 43 national identity, 1–8, 17, 20, 23, 46, 48, 49, 59, 67–8, 69, 79–80, 97, 99, 100, 113, 116, 158, 179n.6 naturalization, see alien status; Calvin’s Case Newport, Francis, 63–4 Newport Uprising, 159–60 Nonconformists, 44, 140 nonjurors, 48, 50, 68 oaths, 3–4, 61, 67, 88 see also Foster, Michael O’Coigly, James, 7, 123–7 O’Connor, Arthur, 123–5, 128, 130 O’Doherty, Kevin, 161
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Index
Perceval, Spencer, 134–5, 142 Penruddock, John, 24, 41 Pentridge rebellion, 7, 140, 145, 147–50, 157 Pitt, William, the younger, 99, 101, 102, 114, 117, 118, 119, 130, 138, 141, 142 post-nati, 19, 21 Pym, John, 25–7, 29, 30, 159 Quigley, James, see O’Coigly regency, 140–6, 156 1788 crisis, 141 1810 crisis, 141 Regency Bill and Act, 142–3 regicides, 3, 24, 43, 99 republican treason, 6, 119, 123–4, 126, 127, 158 American, see American republican treason Irish, see Irish republican treason see also Jacobins Restoration treason, 9, 17, 43, 44–6, 52, 175n.136, 176n.140 Revolution Settlement, 48, 51, 60, 67, 75, 89, 138 riots, 5, 10, 146, 147, 151 Russell, William, Lord, 3, 5, 45–7, 59, 111 Ryder, Dudley, 78, 82–3 Sacheverell, Henry, 5, 146, 167n.17 Scott, John, Lord Eldon, 102, 109, 110, 112, 114–15, 118, 138, 150, 159 Scotland, 37–8 treason law, 5–6, 71–5, 78, 97; see also British treason law see also Calvin’s Case; Downie, David; Jacobins; Jacobites; Spiers, James; Spottiswoode, Robert; Watt, Robert Scottish convention, 115 Sheares, Henry, 7, 128 Sheares, John, 7, 128, 129 Shepherd, Samuel, 148, 149 Sheridan, Richard, 114, 141, 155–6
Sidney, Algernon, 3, 5, 45, 46, 59, 99 Slingsby, Henry, 42, 43 Society for Constitutional Information (SCI), 100, 101, 102, 106, 108, 109, 113, 114, 115, 116, 121, 138 Somers, John, 54, 61, 74 sovereignty, 1–8, 158–62, 170n.35, 171n.56, 178n.5, 179n.6 in 1600s, 9, 14, 17–20, 21, 23, 24, 25, 26, 28, 30, 31, 35, 37–9, 42–4, 46, 48–9, 50–1, 58, 66–7, 68, 69 in 1746 Jacobite trials, 80, 87 in 1790s, 100, 102–3, 107, 108–9, 110, 112–13, 116, 123–4, 126, 128–9, 131, 134, 138, 141 from 1816–20, 141, 143, 144, 146, 148–9, 151, 153, 155–7 in American Revolution, 93, 94–5, 96 Blackstone on, 89–92, 97–8 and the Crown, 13–14, 27, 90: Protestant crown, 83–4 Foster on, 87–8, 97–8 role of king, 19, 50–9, 104, 143, 148–9 Spa Fields riot, 7, 140, 143–4, 145–7, 157 Spencean Philanthropists, 7, 143, 145–6, 203n.27 Spiers, James, 154–5 Spottiswoode, Robert, 72 Strafford, Earl of, see Wentworth, Thomas Thistlewood, Arthur, 139, 145, 150, 151, 153, 154, 205n.51 Tidd, Richard, 151, 152, 154 Tooke, John Horne, 106, 108, 109, 113, 122, 138 treason accounts of treason law, 85, 120–1: see also Foster, Michael; Blackstone, William after 1820, 159–62 American republican, see American republican treason
Index British law of, see British treason law compassing, 86, 105, 110–11 constructive, see constructive treason counterfeiting, 3, 12, 14 definitions of, 1, 7, 106: in Despard’s trial, 133, 137; in Gagging Acts, 118–9; after Pentridge rebellion, 148–9, 151–2, 153 dynastic challenge, 6, 50–9, 67–8, 69, 70, 71, 97: see also Jacobite treason trials; Interregnum; Restoration treason under Elizabeth I (1558–1603) 4, 16–17, 18, 19 extended to protect Prince Regent, 144 Irish Republican, see Irish Republican treason petit, 3, 16 republican, see republican treason Restoration, see Restoration treason Statutes, see Treason Acts trials, see under British state; Jacobins, Jacobites see also impeachment; sovereignty; Treason Acts Treason Acts 25 Edw. III, Stat. 5, c. 2 (1352) 2, 4, 6, 9, 10, 11, 16, 17, 28, 36, 40, 43, 46, 45, 51, 58, 68, 69, 70, 71, 85, 89, 93, 97, 99, 102, 104, 107, 108, 110, 118, 120, 122, 127, 130, 137, 139, 146, 149, 151, 155, 156, 161, 162: clause of statute, 13, 60 11 Hen. VII, c. 1, 15, 41, 47 7 & 8 Wm. III, c. 3 (1696), 5, 49, 50–9, 61, 62, 63, 64, 67, 70, 76, 89, 117, 145, 146: discussion of Clause A, 54–8
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7 Annae, c. 21, 75 13 & 14 Wm. III, c. 3, 82, 92 19 Geo. II, 75, 77, 79 36 Geo. III, c. 7 and 36 Geo. III, c. 8 (Treason and Sedition Acts, Gagging Acts, 1795) 115, 116–23, 124, 126: denounced in press 121; protests in Norwich, 121; petition against, 122; at Despard’s trial, 133, 134, 137, 138; O’Coigly’s trial, 127, Bond’s trial, 130; at trials of Cato Street conspirators, 151, 155, 156 Treaty of Union (1707), 5–6, 69, 71, 74, 75, 77, 78, 97, 158 Treby, George, 51, 54 Turner, William, 148–9, 150 Union of Crowns (1603), 22, 38 United Britons, 123 United Englishmen, 123, 125, 132, 157, 197n.100, 198n.102, 201n.159 United Irishmen, 123, 124, 125, 128, 132, 138–9, 157 Watson, Dr James, 145, 146 Watt, Robert, 103–6, 138, 194n.27 Wentorth, Thomas, Earl of Strafford, 3, 4, 13, 24, 25, 26–8, 29, 30, 31, 34, 36, 104, 159, 171n.63, 172n.65 Willes, John, 78–9 William III (r.1689–1702), 9, 45, 48, 49, 51, 53, 60, 63, 64, 65, 67, 84, 136 Williams, William, 53 Williams, Zephaniah, 159–60 Yonge, William, 80–2 Yorke, Philip, Baron Hardwicke, 80–1, 83–4