Notes 163 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 posses- sions 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 eighteenth- century 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: ‘Legisla- tion 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 Univer- sity 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 Univer- sity 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,’ Philo- sophical Review (July 1963): 306–26. Although Meadowcroft believes that the state, the ‘most complex notion of the political lexicon’ was ‘some- thing 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 eight- eenth 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 cen- tury 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 consen- sus 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 main- tains 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 Uni- versity Press is publishing the second edition in 2000. See especially J.C.D. Clark, ‘The Conflict between Laws: Sovereignty and State Forma- tion in the United Kingdom and the United States,’ in The Language of Liberty: 1660–1832. Political Discourse and Social Dynamics in the Anglo- American 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 central- ized 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 require- ments 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- Notes 165 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 Quar- terly 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 Ref- ormation 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 Revolu- tion 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 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).