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Treason and the State: Law, Politics, and Ideology in the English Civil War D This page intentionally left blank Treason and the State This study traces the transition of treason from a personal crime against the monarch to a modern crime against the impersonal state. It consists of four highly detailed case studies of major state treason trials in England beginning with that of Thomas Wentworth, First Earl of Strafford, in the spring of 1641 and ending with that of Charles Stuart, King of England, in January 1649. The book examines how these trials constituted practical contexts in which ideas of statehood and public authority legitimated courses of political action that might ordi- narily be considered unlawful – or at least not within the compass of the foundational statute of 25 Edward III. The ensuing narrative reveals how the events of the 1640s in England challenged existing conceptions of treason as a personal crime against the king, his family and his servants, and pushed the ascendant parliamentarian faction toward embracing an impersonal conception of the state that perceived public authority as completely independent of any individual or group. d. alan orr was educated at Queen’s University at Kingston, the University of Glasgow and the University of Cambridge, where he received his Ph.D. in 1997. He has taught subsequently at Carleton University in Ottawa and Queen’s University at Kingston. Cambridge Studies in Early Modern British History Series editors anthony fletcher Victoria County History, Institute of Historical Research, University of London john guy Professor of Modern History, University of St. Andrews and john morrill Professor of British and Irish History, University of Cambridge, and Vice-Master of Selwyn College This is a series of monographs and studies covering many aspects of the history of the British Isles between the late fifteenth century and the early eighteenth century. It includes the work of established scholars and pioneering work by a new generation of scholars. It includes both reviews and revisions of major topics and books, which open up new historical terrain or which reveal startling new perspectives on familiar subjects. All the volumes set detailed research into our broader perspectives and the books are intended for the use of students as well as of their teachers. For a list of titles in the series, see end of book. TREASON AND THE STATE Law, Politics, and Ideology in the English Civil War D. ALAN ORR Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge , United Kingdom Published in the United States by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521771023 © D. Alan Orr 2002 This book is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2002 ISBN-13 978-0-511-06879-9 eBook (EBL) ISBN-10 0-511-06879-4 eBook (EBL) ISBN-13 978-0-521-77102-3 hardback ISBN-10 0-521-77102-1 hardback Cambridge University Press has no responsibility for the persistence or accuracy of s for external or third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. CONTENTS Acknowledgmentspageix List of abbreviations xi Introduction 1 Part I: Concepts 1 The statutory basis of English treason law 11 2 Sovereignty and state 30 Part II: Practice 3 Thomas Wentworth, First Earl of Strafford 61 4William Laud, Archbishop of Canterbury 101 5 Connor Lord Maguire, Second Baron of Enniskillen 141 6 Charles Stuart, King of England 171 Conclusion 206 Bibliography 211 Index 224 vii ACKNOWLEDGMENTS An older and wiser friend once remarked to me that many projects of histor- ical research begin serendipitously – a chance curiosity growing into some- thing larger, more involved, and more substantive over a lengthy period of time. At the time I greeted this statement with great skepticism; however, I now realize that it is usually true more often than not. This book is a result of one of those chance curiosities demanding further exploration. In this process of exploration there are many people who have helped along the way. John Morrill supervised the Cambridge doctoral dissertation from which this book derives and continued to believe in it even when I was not sure that I did. My examiners Glenn Burgess and Conrad Russell made a potentially difficult and intimidating process not only enjoyable but also highly instructive and stimulating. William Davies at Cambridge University Press has been an exemplar of patience with yet another late manuscript. Wallace MacCaffrey, Alan Cromartie, David Smith, Paul Bradbury, and Phil Withington read and commented on the manuscript at various stages of its evolution and provided invaluable input. During my time at Cambridge I was fortunate to be surrounded by a lively and supportive circle working in the early modern period including Oleg Roslak, Geoff Baldwin, Tony Nuspl, Craig Muldrew, Patrick Carter, Jurgen Overhoff, Mark Perrott, Phil Baker, Elliot Vernon, Phil West, Mary Morrissey, Nicola Perkins, Katie Craik, Neil Reynolds, Eamonn O’Ciardha, Doron Zimmerman, and Neel Mukherjee. A special thankyou goes also to Adam Slater, Steve Hudson, Hugo Azerad, and Larry Small. I would like also to thank the staff of the Cambridge University Library Rare Books and Manuscripts Rooms as well as David De Lorenzo of the Harvard Law School Library, who was extremely helpful during a short visit in 1997. I am also grateful to the Social Sciences and Humanities Research Council of Canada, the Cambridge Commonwealth Trust, and Selwyn College Cambridge for providing generous financial assistance at various stages. Most of chapter 5 of this book appeared as part of a slightly lengthier article in the Journal of British Studies 39 (2000) titled “England, ix x Acknowledgments Ireland, Magna Carta, and the Common Law: The Case of Connor Lord Maguire, 2nd Baron of Enniskillen.” I would like to extend my gratitude to the University of Chicago Press for granting permission to reprint a revised version of that article as part of this study. My final thankyou goes to my parents, Don and Carrole Orr, for patiently indulging these serendipitous curiosities that have preoccupied me so much in recent years. Without them all this would be impossible. ABBREVIATIONS AHR American Historical Review AJLH American Journal of Legal History Anderson Named Reporter contained in the English Reports BL Harl. British Library, Harleian MSS BL Sloane British Library, Sloane MSS BL TT British Library, Thomason Tracts Bodl. Lib. Tanner Bodleian Library, Tanner MSS CJ Journal of the House of Commons Coke, Reports The Reports of Sir Edward Coke, knt. In thirteen parts. 6 vols. John Henry Thomas and John Farquhar Fraser, eds. London, 1826 DNB Dictionary of National Biography Dyer Named Reporter contained in the English Reports EHR English Historical Review Eng. Rep. English Reports. London, serial HJ Historical Journal HLQ Huntingdon Library Quarterly HLS Harvard Law School MSS HMC Lords XI HMC House of Lords, The Manuscripts of The House of Lords, Addenda 1514–1714. vol. XI, new series, ed. Maurice F. Bond, London, 1962 HPT History of Political Thought IHS Irish Historical Studies Irish Statutes W. Ball ed., The Statutes at Large passed in the Parliaments held in Ireland,20vols. Dublin 1784–1801. IT Petyt Inner Temple, Petyt MSS JBS Journal of British Studies JEH Journal of Ecclesiastical History xi xii List of abbreviations JLH Journal of Legal History LJ Journal of the House of Lords LQR Law Quarterly Review MM Manuscript Minutes of the House of Lords New DNB New Dictionary of National Biography P&P Past and Present PRO SP Public Record Office, State Papers SL The Statutes at Large, 18 vols. London 1763–1800 SR The Statutes of the Realm, 11 vols. Reprinted London, 1963 State Trials Cobbett W. and Howell T. B. et al., eds., A Complete Collection of State Trials. 33 vols. London, 1809–1826 WC Clarke Worcester College Oxford, Clarke MSS Works The Works of the most reverend father in God William Laud, D.D. sometime Lord Archbishop of Canterbury, ed. J. Bliss and W. Scott, 7 vols. Oxford, 1847–1860 Introduction Today we frequently presume that treason is first and foremost a crime against “the state.” This was not always the case. The law of treason in England was at the time of its statutory declaration in 1352 as much a per- sonal crime against the monarch as the unlawful usurpation of his sovereign authority. Compassing the death of the monarch and his heir apparent was arguably more heinously treasonable than forging his seal and issuing false charters in his name. However, during the late medieval and early modern periods new demands emerged. The English law of treason became the prin- cipal means of enforcing not only new religious policies in England and Wales but also self-consciously “imperial” policies in the newly created Kingdom of Ireland. In the century before Britain’s civil wars of the mid- seventeenth century, developments including the Reformation under Henry VIII, the extension of English control over the whole of Ireland, and the spread of the Counter-Reformation had already imposed unprecedented de- mands on the law of treason. However, the dramatic events of the civil wars of the 1640s culminating in the trial and execution of King Charles I for high treason in 1649 and the establishment of a “Commonwealth or Free State” in place of the monarchy constituted, unquestionably, the greatest challenge to the existing English law of treason. Debate on the English law of treason in the early modern period has focused primarily on questions of legality: what actions constituted trea- son under the existing statute law? However, a failure to interpret the key treason statutes in their ideological contexts has given rise to an unfortunate tendency of “retrying” treason trials according to anachronistic standards of construction.1 In a modern court of law no crime is deemed to have occurred unless the actions of the accused fall strictly within the relevant statute.
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