By WILFRID PREST
Review of The State Trials and the Politics of Justice in Later Stuart England, edited by Brian Cowan and Scott Sowerby
New York: Boydell Press, 2021
I
The standard historical bibliography of Britain and Ireland, a product of the late Geoffrey Elton’s energetic term as president of the UK’s Royal Historical Society, now available online through the Belgian publisher Brepols, has taken to categorizing the various publications appearing in response to a search query as “book,” “article,” or “miscellany.” This last refers to what might once have been termed an anthology, or collection of chapters, perhaps even “essays by divers hands,” if you wanted to be really Edwardian. But miscellany is better, both brief and apt. It is notoriously the case that such publications may be a good deal more uneven in quality and less coherent in theme and content than their editors, publishers, and even readers might wish.
Yet they continue to proliferate, reflecting the ever-more intensified specialization of scholarship across all intellectual disciplines, not least the humanities and social sciences, as well as the ever-increasing managerial pressure imposed on academics for more and more research “outputs.” It is generally quicker and less demanding to publish a chapter in a miscellany than a top-ranking journal, with a long backlog of articles awaiting publication after undergoing multiple peer reviews. Then again, as the two editors of this volume point out in their preface, some subjects plainly meriting further attention are “diverse and complicated enough” (xv) to be beyond the scope of a single scholar, or even an editorial collective. Journal editors are largely at the mercy of what potential contributors choose to send them, except in the case of commissioned special numbers, which are miscellanies under another name. Editors of volumes like this one can exercise their specialist knowledge to craft—or at very least rough hew—the shape of their volume by way of invitations, ideally directed to a mixture of younger and older scholars following a thematic conference or symposium, where potential contributors have had the opportunity to parade their wares before a like-minded—or moderately interested—audience.
The current miscellany derives from a 2014 conference at Chicago’s Newberry Library, which sought to “rethink” the concept of state trials. So what exactly is a “state trial”? Wikipedia, relying on the eleventh edition of the Encyclopedia Britannia, says rather unhelpfully that in English law it is “primarily” the trial of an offense against the state, adding that it might more specifically apply to proceedings which involve offenses against an officer of state, or concern principles of constitutional or international law. Yet the term really has no distinct legal meaning. Its first recorded appearance apparently occurs within the title of a four-volume compilation published under the name of the prolific miscellaneous writer and historian Thomas Salmon, who had been engaged by a group of London printers to edit and see through the press what became A Complete Collection of State Tryals, and Proceedings upon Impeachment for High Treason, and other Crimes and Misdemeanours, from the Reign of King Henry the Fourth, to the End of the Reign of Queen Anne (1719).
The commercial success of that initial venture, followed by several abridgments and re-issues, encouraged the Unitarian barrister Sollom Emlyn and no fewer than 38 bookseller-backers to bring out in 1730 a rival six-volume Complete Collection of State Trials. The contents of this edition largely duplicated Salmon’s collection, but with additional transcripts of proceedings from George I’s reign against miscellaneous Jacobites, including the rebel Scots lords of the 1715 rising and those implicated in subsequent plots associated with Bishop Francis Atterbury. While Salmon’s political sympathies lay broadly on the Church-and-King Tory side of the contemporary party-political divide, Emlyn was firmly committed to a Whiggish celebration of the “Constitution and Liberties of the Kingdom” as they stood following the Glorious Revolution of 1688. The learned legal antiquary Francis Hargrave produced a further consolidated edition of state trials between 1776 and 1781, while the version most familiar today appeared in the early nineteenth century as an initiative of William Cobbett, radical journalist and political reformer, its bulky 34 volumes of double-column print now more generally associated with the name of Thomas Bayly Howell, the barrister who actually edited most of them.
Brian Cowan and Scott Sowerby, who convened the Newberry conference, are less concerned with the actual trials that those volumes document than with their presentation by Salmon, Emlyn, and later editors, as well as the associated “politics of justice” (or political consequences of trials, and reports of trials) to which their title refers. Much the same holds for the contributions they have brought together, the work of scholars from Canada (2), England (3) and the United States (7), nine men and three women, ten in post and two emeriti, all of whom have already made their mark with writings on aspects of English history from the return of the Stuart monarchy in 1660 to the accession of George I in 1714. Cowan and Sowerby point out that nearly half the volumes in the Cobbett and Howell edition are devoted to trials from the reigns of England’s last four Stuart monarchs (Charles II, James II, William and Mary, and Queen Anne). They also maintain that “[b]y the 1660s…the political use of judicial proceedings had become part of the standard repertoire for both the Stuart regime and its critics,” while “the law became both a forum for, and a subject of political debate” (7).
Yet all litigation, whether civil (party-to-party) or criminal (by the state against one or more alleged offenders), has an inherent political dimension, insofar as it assumes and seeks to support specific cultural, economic, gendered, or other arrangements and institutions within a given jurisdiction. Further, English political debate about the law certainly went back at least as far as Magna Carta, while trials of political significance were by no means unknown in medieval and sixteenth-century England, as witness not only the first item in Salmon’s collection, the trial of a Lollard “heretic,” but many subsequent high-profile proceedings against ecclesiastical non-conformists, whether Catholic like Thomas More or Protestant like the Oxford martyrs. Nor did the later sixteenth and early seventeenth century lack political debate over the law and legal issues, including the respective jurisdictional spheres of church and common law courts and the legality of royal patents of monopoly.
Such controversies took on a decidedly personal edge in the rising tensions between the disputatious King James VI of Scotland and I of England and his pugnacious Chief Justice Sir Edward Coke. Coke’s sacking from the judicial bench by James in 1616 preceded his emergence as a leading parliamentary figure and intermittent thorn in the government’s side during the 1620s. The determined efforts of James’s son Charles I to exploit the letter of the law in order to raise extra-parliamentary revenues (hence the momentous Ship-Money trial of 1637), together with his administration’s counter-productive attempt to suppress radical Protestant dissent by means of well-publicized prosecutions in the court of Star Chamber and the ecclesiastical High Commission court further intensified the politicization of legal process well before 1660.
In fact Cowan and Sowerby effectively concede that the difference between their chosen period and previous eras was one of degree rather than kind. For they claim that what particularly distinguished later Stuart England was “the public mediation” of “highly charged trials…ever more extensive” and the surrounding publicity “so prominent and crucial a part of the events that one could be forgiven for thinking that the whole point of the cases was to provide fodder for the scribblers and wits who would write up their accounts of the proceedings and interpret them for readers” (6). This perspective would seem to privilege the media context within which trials took place and for which transcripts of trial proceedings and accounts of final speeches and executions of convicted defendants provided a reliable source of copy and income, over the persons and issues of principle directly involved in those proceedings. No doubt such a viewpoint is as legitimate as any other approach to understanding past events through the traces they have left behind. Yet there still seems something odd, perhaps even morally disquieting, about the notion that published reports of proceedings against men on trial for their lives are mainly interesting as case studies in the history of the book.
II
Despite a general editorial introduction on “The State Trials in Historical Perspective,” and a following chapter by Tim Harris and Stephen Taylor surveying “State Trials and the Rule of Law under the Later Stuarts and Early Hanoverians,” most of this collection focuses on reports of particular trials, from those of the regicides in 1660 to the proceedings against Jacobites after 1688 and well into the eighteenth century. A final outlier is contributed by Annabel Patterson, who compares the judicial treatment of “innuendo” in two indictments more than a century apart, that of the dissenting minister Thomas Rosewell for treason in 1684, and of the bookseller-publisher Daniel Isaac Eaton for seditious libel in 1794. Mark Knights adds a thematic chapter on “Corruption and Later Stuart State Trials” to his recent book and articles on “this most slippery of crimes” (51), while Paul Monod traces the growing salience of a sentimental or sympathetic identification with defendants in reported state trials during the two decades after 1689, although admitting that “it was not always possible for readers to identify fully with the defendants in Jacobite treason cases” (234), especially those accused of conspiring to assassinate William III in 1696. The sympathy deficit actually extended to known or suspected conspirators who were never brought to trial because the prosecution lacked the two witnesses required once the detailed provisions of the new Treason Trials Act of that year (8 Will. III, c. 4) came into effect, and so, like the unfortunate Captain John Bernardi, remained confined in Newgate as “state prisoners” for life—which in his case amounted to nearly forty years.[1]
Nor was sympathy for the accused, convicted, and executed, even on the part of readers who were far from sharing their politico-religious beliefs and principles, a wholly novel eighteenth-century development. Melinda Zook offers an incisive and well-balanced account of post-Restoration proceedings against those who, having participated in the trial and execution of Charles I eleven years before, had neither fled the country nor been included in the Restoration Convention Parliament’s act of indemnity. Zook endorses C. V. Wedgwood’s assessment that the conduct of the trials was not “grossly unfair”—according to the standards of the time—but rightly adds that “the outcome of their trials was no more in doubt than that of Charles I” (80). Furthermore, while Charles II and his advisors prudently attempted to constrain royalist demands for wholesale bloody vengeance on their parliamentarian opponents, the detailed published descriptions and transcripts of the regicides’ trials, dying speeches, and last moments amid the stomach-churning carnage of their gory executions at Charing Cross and Tyburn constituted “a radical martyrology” (77), which helped sustain the parliamentarian/republican Good Old Cause for another generation.
One consequence not long delayed was the tumultuous Exclusion Crisis of 1678-81, and its reactionary aftermath during four years of non-parliamentary government before Charles II’s death in 1685. After Charles’s young brother James, duke of York and heir to the throne, revealed his conversion to Catholicism, demands to exclude him from the line of succession were given new urgency by dramatic revelations of a supposed Jesuit conspiracy to murder the king and subjugate his loyal Protestant subjects to France and Rome. Among the repercussions of this entirely fake-news “popish plot” were the treason trials of the Catholic archbishop of Armagh, Oliver Plunket and the royal double-agent Edward Harris in 1681, followed two years later by similar proceedings directed against those accused of having conspired to assassinate or kidnap both the king and his younger brother as they made their way back from the Newmarket races past Rye House in Hertfordshire.
John Marshall and Andrea McKenzie, writing on the Plunket and Harris cases respectively, have no difficulty in demonstrating the “torturously complex” (113) nature of the politics surrounding, if not indeed constituting, all these events, associated as they were with the emergence of England’s first organized national political parties: the exclusionist Whigs pressing for James’s disqualification in order to save the country from “popery and arbitrary power,” against the legitimist Tories who represented any attempt to interfere with the divinely-ordained line of succession as a sacrilegious power grab by republicans and puritan zealots anxious to turn back the clock to the 1650s. It is tempting to conclude that McKenzie’s title, “Sham Plots and False Confessions,” says it all. In what is by contrast a notable feat of concision and clarification, Newton Key explains how the trials of the Rye House plotters were reported, first in brief and cheap pamphlets summarizing legal proceedings from indictment to execution, then in more expensive near-verbatim transcripts or “prints” based on shorthand notes taken at each trial and eventually reproduced in successive editions of State Trials. Key also points to the arbitrary conduct of judges orchestrating cacophonous courtrooms on behalf of the prosecution, as for example by allowing one witness who had already testified at the trial of Lord Russell to interrupt and “correct” another’s evidence.
Finally we come to revolutionary justice, trials which contributed or responded to the Dutch invasion of 1688 and subsequent replacement of the Catholic James II by his Protestant son-in-law William of Orange and eldest daughter Mary Stuart. In what is effectively a footnote to his prize-winning study of the campaign for toleration of dissent from the established Church of England, Scott Sowerby shows that the acquittal of seven Anglican bishops charged with seditious libel for petitioning James II against the attempted mandatory reading of his “Declaration for Liberty of Conscience” from all parish pulpits, although wildly popular, was not altogether universally welcomed.
A characteristically acute and learned essay by Mark Goldie maps the failed attempt of the victorious Whigs to establish the “Glorious Revolution” (so termed for apparently the first recorded time in a parliamentary speech of November 1689 by the Presbyterian John Hampden—himself a convicted but pardoned Rye House plotter) as their exclusive political property, having already turned the Convention Parliament that welcomed William and Mary “into a commission for truth and non-reconciliation” (186). Yet despite much popular pressure for retribution against all who had participated in the Tory reaction during the last years of Charles II or James’s short reign, Whig attempts to blacklist the Tories en masse as enemies of the new revolutionary order eventually backfired. Rehabilitation of the odious Titus Oates, original inventor of and potential witness to future “popish plots,” was blocked by the House of Lords, although the clause against “cruel and unusual punishments” in the Declaration of Rights did condemn his previous treatment following conviction for perjury in 1685. But it was the Whigs’ proposed “Sacheverell Clause,” barring from municipal office any participant in the surrender of borough charters (whereby the last two monarchs had sought to obtain compliant parliaments) that finally convinced William to dissolve the Convention and hold fresh elections, resulting in a less Whiggish House of Commons and a new ministry under the Tory earl of Nottingham.
Of course this did not settle the rage of party, which reached another crescendo in the following reign of James II’s second daughter Anne, after a Whig administration impeached the Tory clergyman Henry Sacheverell for sermons purportedly denying the legitimacy of the Glorious Revolution and its “Toleration Act” establishing limited freedom of worship for protestant dissenters from the state Anglican church. Brian Cowan supplements his previous work on the Sacheverell trial with a copiously illustrated account of its aftermath, which he dubs “a process of extra-judicial relitigation,” with the case fought out once again “in the court of public opinion” (205)—so hardly a state trial, if certainly the politics of justice.
According to Harris and Taylor, “the legal history approach” to later Stuart state trials would be solely concerned with doctrinal questions: were verdicts soundly based on precedent and did they change the law (26)? Thankfully this volume does not altogether embrace what seems an excessively narrow definition of legal history. For legal historians today are no less concerned with process than with doctrines and rules of law, as likewise with the personnel who staffed the courts and served (or abused) parties to litigation, civil and criminal. Greater familiarity with the work of David Lemmings might have sharpened and qualified the bald statement that judges were “no longer controlled by the crown in quite the same way” after as before 1689 (36-7).[2] That 100 of the 325 non-institutional subscribers to Salmon’s first State Trials were barristers, serjeants at law (not exactly “barristers with rights of precedence in the high courts”), or legal officeholders (229-30) raises interesting questions about the professional use and standing of this and subsequent editions. There is also more to be said about counsel and their role in these trials, both before and after the 1696 Treasons Act granted defendants the right of representation by two barristers.
In short, while this miscellany does contain some excellent things, it is a bit of a mixed bag.
[1] The fate of Bernardi and his co-accused is discussed in my chapter “Legality, Liberty and Oppression in Post-Revolutionary England, 1689-1760,” forthcoming in Cultural Histories of Law, Media and Emotion: Public Justice, ed. Katie Barclay and Amy Milka (Routledge, 2022). On the 1696 Treason Act’s evidential requirements, see William Blackstone, Commentaries on the Laws of England Book IV Of Public Wrongs, ed. Ruth Paley (Oxford, 2016), 230.
[2] Notably his “The Independence of the Judiciary in Eighteenth-Century England,” in The Life of the Law, ed. Peter Birks (London, 1993).
Posted on 3 November 2022
WILFRID PREST writes on the history of law and lawyers in early modern England; a revised second edition of his first book, The Inns of Court under Elizabeth I and the Early Stuarts (1972) is forthcoming from Cambridge University Press.
