The State Trials and the Politics of Justice in Later Stuart England (Studies in Early Modern Cultural, Political and Social History, 40) 9781783276264, 9781800102736, 1783276266

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STUDIES IN EARLY MODERN CULTURAL, POLITICAL AND SOCIAL HISTORY Volume 40

THE STATE TRIALS AND THE POLITICS OF JUSTICE IN LATER STUART ENGLAND

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Studies in Early Modern Cultural, Political and Social History ISSN: 1476–9107

Series editors Tim Harris – Brown University Stephen Taylor – Durham University Andy Wood – Durham University Previously published titles in the series are listed at the back of this volume

THE STATE TRIALS AND THE POLITICS OF JUSTICE IN LATER STUART ENGLAND

Edited by Brian Cowan and Scott Sowerby

THE BOYDELL PRESS

© Contributors 2021 All Rights Reserved. Except as permitted under current legislation ‎no part of this work may be photocopied, stored in a retrieval system, ‎published, performed in public, adapted, broadcast, ‎transmitted, recorded or reproduced in any form or by any means, ‎without the prior permission of the copyright owner First published 2021 The Boydell Press, Woodbridge ISBN 978-1-78327-626-4 hardback ISBN 978-1-80010-273-6 ePDF The Boydell Press is an imprint of Boydell & Brewer Ltd ‎PO Box 9, Woodbridge, Suffolk IP12 3DF, UK ‎and of Boydell & Brewer Inc. ‎668 Mt Hope Avenue, Rochester, NY 14620–2731, USA ‎website: www.boydellandbrewer.com A catalogue record for this book is available from the British Library The publisher has no responsibility for the continued existence or accuracy of URLs 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 Cover image: Frederic Nash (1782–1856), interior of Westminster Hall; view looking south down length of empty hall, rays of sunshine slanting through windows. British Museum, Dept. of Prints and Drawings, registration no. 1856,0614.69. © The Trustees of the British Museum. All rights reserved

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For W. A. Speck, 1938–2017

Contents List of Illustrations ix List of Contributors xi Preface xv List of Abbreviations xvii

Part One: What Were the State Trials? Introduction: The State Trials in Historical Perspective Brian Cowan and Scott Sowerby

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1 State Trials and the Rule of Law under the Later Stuarts and Early Hanoverians 24 Tim Harris and Stephen Taylor 2 Corruption and Later Stuart State Trials Mark Knights

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Part Two: Restoration State Trials 3 ‘Blood will have Blood’: The Regicide Trials and the Popular Press Melinda S. Zook

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4 The Trial and Execution of Oliver Plunket John Marshall

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5 Sham Plots and False Confessions: The Politics of Edward Fitzharris’s Last Words, 1681 113 Andrea McKenzie 6 Constructing Conspiracy: Reporting the Rye House Plot Trials Newton Key

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Part Three: Revolutionary State Trials 7 Enforcing Uniformity: Public Reactions to the Seven Bishops’ Trial Scott Sowerby

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8 Revolutionary Justice and Whig Retribution in 1689 Mark Goldie

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CONTENTS

9 Relitigating Revolution: Address, Progress, and Redress in the Long Summer of 1710 Brian Cowan 10 Politics and Sentiment in the Jacobite State Trials Paul Monod 11 Defeating Innuendos: The Trials of Thomas Rosewell (1684) and Daniel Isaac Eaton (1794) Annabel Patterson

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Index 267

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Illustrations

Constructing Conspiracy: Reporting the Rye House Plot Trials, Newton Key Table 1: Pamphlets (1683–84) describing the Trial of Thomas Walcott.

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Relitigating Revolution: Address, Progress, and Redress in the Long Summer of 1710, Brian Cowan Figure 1: Address of the borough of Appleby in the county of Westmorland (1710), with wax seal and seventy signatures. BL, Add. MS Ch. 76116.

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Figure 2: Address of the borough of Ipswich in the county of Suffolk (1710). BL, Add. MS Ch. 76119.

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Figure 3: The Banb---y [Banbury] Apes: Or, the Monkeys Chattering to the Magpye. In a Letter to a Friend in London, Madan 545 (London, 1710); frontispiece. Beinecke Library, shelfmark: Ik.D362 710Be.

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Figure 4: Design for bas-relief on the base of the statue of Samuel Johnson at Lichfield; R. C. Lucas (1800–83), undated, 17 x 13 cm. Houghton Library, MS Hyde 76 (1.1.39.3).

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Full credit details are provided in the captions to the images in the text. The editors, contributors and publisher are grateful to all the institutions and persons for permission to reproduce the materials in which they hold copyright. Every effort has been made to trace the copyright holders; apologies are offered for any omission, and the publisher will be pleased to add any necessary acknowledgement in subsequent editions. ‎

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Contributors Brian Cowan is Associate Professor of History at McGill University. He is the author of The Social Life of Coffee: The Emergence of the British Coffeehouse (Yale, 2005); editor of The State Trial of Doctor Henry Sacheverell (Wiley, 2012); and a contributor to the Multigraph Collective’s Interacting with Print: Elements of Reading in the Era of Print Saturation (Chicago, 2018). He is currently editing The Cultural History of Fame in the Age of Enlightenment (Bloomsbury) and is President of the Board of Directors for the international Groupe d’Intérêt Scientifique – Sociabilités. Mark Goldie is Emeritus Professor of Intellectual History at the University of Cambridge, where he is a Fellow of Churchill College, and is Honorary Professor of Intellectual History at the University of Sussex. He has published extensively on politics, religion, and ideas in early modern Britain, and is currently working on an intellectual biography of John Locke. A festschrift for him was published by Boydell in 2019. Tim Harris is Munro-Goodwin-Wilkinson Professor in European History at Brown University. A social historian of politics, he has written about the interface of high and low politics, popular protest movements, ideology and propaganda, party politics, popular culture, and the politics of religious dissent during Britain’s age of revolutions. He co-edits the book series Studies in Early Modern Cultural, Political and Social History for Boydell Press with Stephen Taylor and Andy Wood of Durham University. Newton Key is Professor of History at Eastern Illinois University. He has published on preaching, feasting, politicking, and plotting in late-Stuart England and Wales, Scotland, and Ireland. He is co-author of Early Modern England: A Narrative History, 1485–1714, 3rd edn (Wiley, 2020). Mark Knights has published many books, articles and chapters about the later Stuart period. His most recent books are Representation and Misrepresentation in Later Stuart Britain: Partisanship and Political Culture (Oxford, 2006) and The Devil in Disguise: Deception, Delusion and Fanaticism in the Early English Enlightenment (Oxford, 2011). He has just finished another, about corruption in office in Britain and its Empire, 1600–1850, which will be published by Oxford University Press in 2021. John Marshall is Leonard and Helen R. Stulman Professor of History at The Johns Hopkins University and a former Chair of the Department of History at Johns Hopkins. He received his BA from Cambridge University and his PhD from Johns Hopkins and has been recently an Overseas Fellow at Churchill xi

CONTRIBUTORS

College, Cambridge University, and an Honorary Visiting Fellow at the Centre for the History of Political Thought at Queen Mary, University of London. He is the author of John Locke; Resistance, Religion and Responsibility (1994; paperback 1994); and John Locke, Toleration and Early Enlightenment Culture (2006; paperback 2009). He is also co-editor of Heresy, Literature and Politics in Early Modern English Culture (2006) and Politics, Religion and Ideas in Seventeenth- and Eighteenth-Century Britain (2019). He has spent the last decade writing a large monograph on London 1640–1707, which will appear soon. Andrea McKenzie is Associate Professor in the Department of History at the University of Victoria, BC, Canada. She is the author of numerous articles and a monograph on execution, trials, last dying speeches and print culture in late seventeenth- and early eighteenth-century England, and is currently completing a book on the Popish Plot and conspiratorial politics in England, 1678–81. Paul Monod is Hepburn Professor of History at Middlebury College in Vermont, where he has taught since 1984. He has published widely on early modern British and European history. His most recent books are Imperial Island: A History of Britain and Its Empire, 1660–1837 (Wiley, 2009) and Solomon’s Secret Arts: The Occult in the Age of Enlightenment (Yale, 2013). He is currently working on a study of English historical memory since the Middle Ages. Annabel Patterson is Sterling Professor Emeritus of English at Yale University. She is the author of many books of early modern literary and historical studies. She was general editor of the Yale edition of Marvell’s prose works. Her book, The Long Parliament of Charles II (Yale, 2008) developed out of that work on Marvell, and a new project, Restoration State Trials, will add early modern law, particularly treason law, to the picture. Scott Sowerby is Associate Professor of History at Northwestern University. His first book, Making Toleration: The Repealers and the Glorious Revolution (Harvard, 2013), won the Royal Historical Society’s Whitfield Prize. He is presently at work on a study of the origins of religious toleration in early modern Europe, as seen through the experiences of religious minorities in militaries. Stephen Taylor is Professor in the History of Early Modern England and Director of the Institute of Medieval and Early Modern Studies at Durham University. He is a specialist in the religious and political history of England in the seventeenth and eighteenth centuries, and his published work has touched on topics as diverse as the identity of Anglicanism, court culture, party politics, the circulation of news, and libertinism. He is currently completing two books: The Papers of the Elland Society 1780–1818, with John Walsh, and The Restoration of the English Church 1660–1662, with Kenneth Fincham. With Kenneth Fincham (Kent) and Arthur Burns (KCL) he has been, since 1999, one of the Directors of The Clergy of the Church of England Database 1540–1835. The third of four volumes, from the ‘British State Prayers’ project, on which he worked with Philip xii

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Williamson and Natalie Mears, appeared last year: National Prayers: Special Worship since the Reformation. Volume 3: Worship for National and Royal Occasions in the United Kingdom, 1871–2016, ed. Philip Williamson, Stephen Taylor, Alasdair Raffe and Natalie Mears (Church of England Record Society, 26, Woodbridge, 2020). Melinda Zook is Professor of History at Purdue University. She is a specialist in the history of Tudor and Stuart England, political thought, and religion and women in early modern Europe. She has published articles on radical politics, martyrdom, women and religion, and teaching. She is the author of Radical Whigs and Conspiratorial Politics in Late Stuart England (Penn State, 1999) and Protestantism, Politics and Women in Britain, 1660–1714 (Palgrave, 2013). She is the co-editor of Revolutionary Currents: Nation Building in the Transatlantic World (2004); Challenging Orthodoxies: The Social and Cultural World of Early Modern Women (2014); and Generations of Women Historians: Within and Beyond the Academy (2018). ‎

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Preface The ‘state trials’ of early modern England have long been known, and often cited, due to the prominence of the mighty 34-volume collection of trial proceedings compiled by William Cobbett, Thomas Bayly Howell, and Thomas Jones Howell under the title A Complete Collection of State Trials and published over the course of nearly two decades from 1809 to 1828. While these trials have found their way into the footnotes of many volumes of scholarship, there have been precious few extended studies of the concept of a ‘state trial’ as it came to be known in the eighteenth and nineteenth centuries. This book seeks to investigate that concept in greater detail. When this project was conceived, the editors of this volume were independently engaged in studies of politically charged trials during the later Stuart period. We quickly realized that the concept of a ‘state trial’ was worth studying at length, and that the legal proceedings that came to be understood as state trials were diverse and complicated enough that it would take more than just two historians to tackle the subject properly. We have deliberately taken an expansive view of the state trials. Rather than focusing solely on the formal legal proceedings that constituted a trial, we have looked at these trials as part of a longer process that began well before the defendants were taken to court and continued well after the formal proceedings had concluded. As such, the case studies collected in this book contribute to a social and cultural history of the politics of law in the later seventeenth and early eighteenth centuries. The book is divided into three sections. The chapters in the first, ‘What Were the State Trials?’, address the genealogy of the concept of state trials as well as the history of politically charged trials in a period when English men and women struggled to come to terms with the experience of the great regicidal revolution of 1649 and experienced another, soi disant ‘glorious’ revolution in 1688–89. The second section is devoted to the state trials of the Restoration, an era that struggled and ultimately failed to restore either a sense of political normalcy or a uniformly accepted rule of law. The third and final section looks at the state trials in the period surrounding the Glorious Revolution, including the trial of the ‘seven bishops’, which helped to precipitate the revolution, as well as other state trials that dealt with the revolution’s consequences. The final chapter by Annabel Patterson, herself a pioneer in the study of early modern state trials, links the Restoration-era trial of Thomas Rosewell (1684) with that of the radical publisher of a much later revolutionary era, Daniel Isaac Eaton (1794). When we embarked upon this project, we did not expect that the history of the politics of justice would prove to be as timely as it has become. The book began as a conference on ‘Rethinking the State Trials’ held at Northwestern University and the Newberry Library on 10–11 April 2014. The conference was graciously co-sponsored by the Alumnae of Northwestern University, the xv

PREFACE

Chabraja Center for Historical Studies at Northwestern, the Alice Kaplan Institute for the Humanities at Northwestern, and the Department of History at Northwestern. At the Newberry Library, we were greatly assisted by the staff at the Center for Renaissance Studies (CRS), especially Karen Christianson, who is now Director of Public Engagement at the Newberry. Carla Zecher, who was the Director of the CRS at the time and is now Executive Director of the Renaissance Society of America, offered stalwart support for the project. Brian Cowan’s participation was aided by a Standard Research Grant from the Social Sciences and Humanities Research Council of Canada as well as a Senior Research Fellowship from the Institute of Advanced Study at Durham University, co-funded by the European Commission. We completed this book in mid-2020, several years after the 2016 Brexit referendum and a closely fought US presidential election revolutionised the Anglo-American world, each in its own way. The long-term consequences of these events remain to be seen, but each has underscored the continuing importance of scholarly investigations into the history of the politics of law and justice. The editors are deeply conscious of their dependence on a previous generation of scholars who used newly available archives in county record offices to chart the lineaments of popular politics in later Stuart and early Hanoverian England. Foremost among these scholars was W. A. Speck, who for the editors, as for many others, proved a surefooted guide through the landscape of parliamentary boroughs, corporate towns and rural shires. His scholarly writings brought Whigs and Tories, monarchs and rustics, back to life, and in these works his memory lives on. ‘We will grieve not, rather find strength in what remains behind’. Montreal, Quebec, and Evanston, Illinois, July 2020 ‎

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Abbreviations Add. MS BL CJ CSPD HMC LJ SP ST TNA

Additional Manuscript The British Library, London Journals of the House of Commons Calendar of State Papers Domestic Historical Manuscripts Commission Journals of the House of Lords State Papers William Cobbett, Thomas Bayly Howell, and Thomas Jones Howell (eds), A Complete Collection of State Trials (34 vols, London, 1809–28) The National Archives, Kew

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Part One What Were the State Trials?

Introduction: The State Trials in Historical Perspective Brian Cowan and Scott Sowerby The term ‘state trial’ was most likely invented by Thomas Salmon in the title for his compilation, A Compleat Collection of State-Tryals, and Proceedings upon Impeachments 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, published in four volumes in 1719.1 He used the term only in the title and not at all in the rest of the work, which perhaps indicates that he saw it as more of a marketing device than a formal legal category worth explicating. It might be said, in fact, that the term has no precise legal meaning at all. While Salmon did not offer a definition of the term ‘state trial’, one potential definition would be a legal proceeding in which matters of constitutional importance were at stake. It is hard to operationalize this definition, however, given that constitutional matters were often at stake in early modern trials, either explicitly or implicitly. If all legal proceedings regarding matters of constitutional importance were deemed to be ‘State-Tryals’, a mere four volumes could hardly represent a ‘Compleat Collection’ of them, as Salmon himself implicitly admitted by continuing to edit and reissue new collections, abridgements, and critical reviews of the state trials for several decades after the publication of the first Compleat Collection of State-Tryals.2 Another potential definition, under which a ‘state trial’ was any prosecution at law of an offense committed against the state, suffers from an even greater degree of capaciousness. It is perhaps best to adopt a nominal rather than a substantive definition, in which a state trial was any legal proceeding that Salmon and his collaborators deemed to be sufficiently weighty or notorious to include in their publishing ventures. The concept of a ‘state trial’ was ultimately a marketing device, and an enormously successful one at that. It signalled to readers that an anthology of such trials would be politically relevant and oriented to the talk of the town, not dry as dust in the manner of legal dictionaries and formularies. Salmon’s compilation was followed by Sollom Emlyn’s in 1730, Francis Hargrave’s in 1776–81, and eventually the great compilation It is, of course, possible that an earlier use of this term exists, but the editors of this volume have not uncovered one. 2 Thomas Salmon, Tryals for High-Treason, and Other Crimes (9 vols, London, 1720–31); Thomas Salmon, A New Abridgment and Critical Review of the State Trials and Impeachments for High Treason (2 vols, London, 1738); Thomas Salmon, Modern History, or the Present State of All Nations (31 vols, London, 1724–38). 1

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by William Cobbett, Thomas Bayly Howell, and Thomas Jones Howell in 1809–26. All these works called themselves collections of ‘state trials’. While Salmon did not venture upon a definition of a state trial, he did offer a sense of what his readers could expect from such a compilation: as his preface put it, ‘here will be found the greatest Collection of fine Speeches and Arguments, on the most important Subjects, that have hitherto been exhibited to the World’. His anthology found a ready audience because he was drawing on an already existing understanding that certain trials were particularly important, both in how they had shaped the course of the common law and in how they had altered the course of English or Scottish politics. Ship money was one such case; Salmon apologized for leaving out the trial ‘of Mr. Hampden in the Case of Ship-Mony’ on the grounds that it was already available in John Rushworth’s Historical Collections. The trial of the earl of Strafford in 1641 was another such case; here, Salmon elected to provide a shorter version of the trial, while explaining that he omitted a longer version because it was already in Rushworth.3 These two instances give a sense of the calibre of the cases that Salmon was compiling and advertising: both of those trials had shaken the English political nation, and their outcomes had helped to bring about the Civil Wars of the 1640s. Salmon included many of the great set pieces from the later Stuart courts: the trials of the regicides in 1660, the impeachment of Clarendon, the Popish Plot trials, the trials of the Rye House Plotters, the Seven Bishops’ Trial, and the Sacheverell trial. These affairs had electrified the political nation in their day and some of them were still fodder for controversy in the reign of George I. Their significance would have been self-evident to nearly anyone living in London in 1719. In gathering all the state trials together, or at least the more famous of them, Salmon was implicitly making a statement that something of great significance had been achieved in the courtrooms of London in the recent past. He left it up to his readers, however, to determine precisely what that was: whether these trials showed how an overweening monarchy had gradually been brought to heel by constitutional principles (a largely Whig view), or whether they showed how corrupt political partisans at court and in parliament could manipulate the legal process to allow the guilty to go free or the innocent to be unjustly punished (a largely Tory view). While Salmon’s own political preferences leaned Tory, his collection left it up to his readers to make up their own minds.4 Like any great publishing success, Thomas Salmon’s State-Tryals played well to multiple audiences.

Thomas Salmon, A Compleat Collection of State-Tryals (4 vols, London, 1719), I, iv. Brian Cowan (ed.), The State Trial of Doctor Henry Sacheverell (Oxford and Malden, Mass., 2012), pp. 30–2; Laird Okie, Augustan Historical Writing: Histories of England in the English Enlightenment (Lanham, Md., 1991), pp. 99–113. 3 4

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INTRODUCTION

I As historians over the past generation have turned to the study of the culture of law and politics, the state trials have received renewed attention. Historians have thumbed through multi-volume compilations of the English state trials (or scrolled through them, as most are now conveniently available online) to answer new questions about the development of an increasingly dynamic public sphere in England. This volume assesses these new developments in political, legal and cultural history, and seeks to chart a new research agenda for the study of the state trials. All of the contributors to this collection take a broad view of what constituted a ‘state trial’ and they seek to place the legal proceedings that constituted such trials within their larger social, political and cultural contexts, especially the widening ambit of participation in the divisive and partisan politics of later Stuart England, centred on the operation of the royal court, the law courts, and the English parliament. The later Stuart period saw the inception of the first organized political parties in English history and the explosive growth of a thriving publishing industry based in London. The more famous of the state trials contributed to these developments, as the trials served as venues for political partisans to appeal to a broader public. That public, in turn, used the furore surrounding certain state trials as a means of putting pressure on political leaders, both those in government and those acting in opposition to the regime. The politicization of publicity surrounding key show trials was hardly new to the later Stuart period, of course. Tudor and early Stuart heresy and treason cases had often culminated in dramatic show trials, the proceedings of which could be variously spun to garner support for either the defence or the state’s case for prosecution. 5 In both the Tudor and Stuart periods, martyrdom, achieved through prosecution by the state, became a means by which early modern subjects could achieve personal fame and accrue political capital in support of their cause. 6 Politically controversial trials were therefore key moments in the development of a vibrant public sphere in early modern England. 7 Lacey Baldwin Smith, Treason in Tudor England: Politics and Paranoia (Princeton, 1986); Peter Lake and Michael Questier, The Trials of Margaret Clitherow: Persecution, Martyrdom and the Politics of Sanctity in Elizabethan England, 2nd edn (London, 2019); and Peter Lake and Michael Questier, ‘Agency, Appropriation and Rhetoric under the Gallows: Puritans, Romanists and the State in Early Modern England’, Past & Present, 153 (Nov. 1996), 64–107; Alice Dailey, The English Martyr: From Reformation to Revolution (Notre Dame, 2012), pp. 59–80. 6 Thomas Freeman ‘Imitatio Christi with a Vengeance: The Politicization of Martyrdom in Early Modern England’, in Martyrs and Martyrdom in England, c.1400–1700, ed. Thomas Freeman and Thomas Mayer (Woodbridge, 2007), pp. 35–69. 7 Peter Lake and Steven Pincus, The Politics of the Public Sphere in Early Modern England (Manchester, 2007); Peter Lake and Steven Pincus, ‘Rethinking the Public Sphere in Early Modern England’, Journal of British Studies, 45:2 (April 2006), 270–92. 5

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What was different and distinctive about the Stuart era, and particularly the later Stuart era, was that the public mediation of these highly charged trials became ever more extensive; the publicity surrounding these trials became so prominent and so 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 their readers. By the reign of Charles I, Puritan activists such as Alexander Leighton, William Prynne, John Bastwick, Henry Burton, and John Lilburne had deliberately set out to provoke a government response to their political agitation and their public critiques of the regime. When brought to trial, they refused to recognize the jurisdiction of the courts in which they were tried.8 Thus began a series of highly public, political show trials that would culminate in the greatest show trial of all – the trial for treason of King Charles I in 1649.9 Whether the outcome of the king’s trial was premeditated or not, which is currently a contentious issue in regicide scholarship, it is hard to dispute that it was the outcome, and even more so, the publicization of the regicide itself, that affected most people’s understanding of the trial’s political significance.10 Works of propaganda such as John Gauden’s Eikon Basilike (1649) and John Milton’s Eikonoklastes (1649) arguably were pitched more at framing understandings of the regicide’s significance and meaning than at offering a thorough account of the fateful proceedings that took place in Westminster Hall and Whitehall Palace in January 1649.11 The cases both for and against the regicide would continue to animate political allegiances throughout the rest of the seventeenth century and indeed well into the eighteenth century.12 Mark Kishlansky, ‘Martyrs’ Tales’, Journal of British Studies, 53:2 (April 2014), 334–55; Mark Kishlansky, ‘A Whipper Whipt: The Sedition of William Prynne’, Historical Journal, 56:3 (Sept. 2013), 603–27. On Lilburne, see also Michael Braddick, The Common Freedom of the People: John Lilburne and the Revolution (Oxford, 2018), and for his posthumous fame, see Ted Vallance, ‘Reborn John?: The Eighteenth-Century Afterlife of John Lilburne’, History Workshop Journal, 74 (2012), 1–26. 9 Krista Kesselring (ed.), The Trial of Charles I (Peterborough, Ont., 2016); Jason Peacey (ed.), The Regicides and the Execution of Charles I (Basingstoke, 2001); D. Alan Orr, Treason and the State: Law, Politics and Ideology in the English Civil War (Cambridge, 2002), pp. 171–205. 10 For the former view, see Clive Holmes, ‘The Trial and Execution of Charles I’, Historical Journal, 53 (2010), 289–316; for the latter, see most recently Sean Kelsey, ‘Instrumenting the Trial of Charles I’, Historical Research, 92 (2019), 118–38. 11 Robert Wilcher, ‘Eikon Basilike: The Printing, Composition, Strategy, and Impact of “The King’s Book”’, in Oxford Handbook of Literature and the English Revolution, ed. Laura Lunger Knoppers (Oxford, 2012), pp. 289–308; and Stephen Fallon, ‘Nascent Republican Theory in Milton’s Regicide Prose’, in Oxford Handbook of Literature and the English Revolution, ed. Knoppers, pp. 309–26. 12 Andrew Lacey, The Cult of King Charles the Martyr (Woodbridge, 2003); Kevin Sharpe, Image Wars: Promoting Kings and Commonwealths in England, 1603–1660 (New Haven, 2010); Kevin Sharpe, Rebranding Rule: The Restoration and Revolution Monarchy, 1660–1714 (New Haven, 2013).

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INTRODUCTION

By the 1660s, with the restoration of the monarchy, the political use of judicial proceedings had become part of the standard repertoire for both the Stuart regime and its critics. While historians continue to debate whether the Restoration regime constituted a ‘Reign of Terror’, as Thomas Babington Macaulay put it, there is no doubt that the law became both a forum for, and a subject of, political debate in post-revolutionary England.13 Certainly, the number of politically fraught ‘state trials’ was substantial. Nearly half of the volumes in Cobbett and Howell’s edition of the State Trials (1809–28) were devoted to cases that took place between 1660 and 1714, even though the series by then had expanded to include politically sensitive trials from the Hanoverian era as well. What made the state trials so compelling? The appeal of the trials derived from their ability to fix otherwise abstract political controversies into conflicts between particular personalities, with special attention paid to the words and even to the bodies of the accused. The trials served as theatre and were consumed as spectacles, both by audiences present at the trial itself and by avid readers who devoured the printed accounts that followed. Defendants in the state trials sometimes garnered considerable fame. They might be treated as celebrities by a broader public that sympathized with their cause. When punished or threatened with punishment, they were often hailed as living martyrs who had suffered for their principles. The dramaturgy of persecution and martyrdom in turn underpinned political mobilization. Images of the trials and portraits of the defendants were reproduced as talismans for the faithful. This is precisely what happened to the Tory clergyman, Doctor Henry Sacheverell, when he was impeached after a parliamentary trial that became one of the best-known state trials of the later Stuart era.14 State trials were important not just to the course of English law, but also to the changing nature of publicity, sociability, material culture, literature, and popular politics in early modern England.

See the chapter by Tim Harris and Stephen Taylor in this volume. For a critical view of the Restoration regime, see Tim Harris, Restoration: Charles II and His Kingdoms, 1660–1685 (London, 2005), and Harris, Revolution: The Great Crisis of the British Monarchy, 1685–1720 (London, 2006). Mark Kishlansky, ‘Ironed Corpses Clattering in the Wind’, London Review of Books, 28:16 (17 Aug. 2006), pp. 21–2, presents a more sanguine view. For Macaulay’s vehement critique of the ‘baseness and depravity’ shown by the judges and juries in many of the political trials of the Restoration period, see his History of England, ed. Hugh Trevor-Roper (London, 1986), pp. 549–50, 552. 14 Brian Cowan, ‘Doctor Sacheverell and the Politics of Celebrity in Post-Revolutionary Britain’, in Public Interiors: Intimacy and Celebrity in Eighteenth-Century Literary Culture, ed. Emrys Jones and Victoria Joule (Houndmills, 2018), pp. 111–37; Brian Cowan, ‘The Spin Doctor: Sacheverell’s Trial Speech and Political Performance in the Divided Society’, Parliamentary History, 31:1 (Feb. 2012), 28–46. 13

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II Looking now at these hefty volumes placed on a library shelf, their spines cracking under their weight, it is hard to envision them as popular texts. But for many who lived when these political controversies were still being played out, the state trials were engrossing reading. In a period when public libraries were few, almost all of the purchasers were private individuals. Salmon’s edition was published by a co-operative of major London booksellers, including Jacob Tonson, Timothy Goodwin, John Walthoes senior and junior, Benjamin Tooke II, John Darby II and John Nicholson. They solicited a down payment of two guineas from each subscriber.15 The volumes would not have succeeded if they had not been greeted eagerly. The publication of state trial records can hardly be separated from the process of print saturation that picked up pace in the wake of the dramatic expansion of the English print market during the revolutionary mid-seventeenth century.16 This was a shift that would only continue to gather momentum in the eighteenth and nineteenth centuries, as collected volumes of ‘state trials’ would be published by enterprising editors such as Thomas Salmon, Sollom Emlyn, Francis Hargrave, and especially William Cobbett and Thomas Bayly Howell.17 The printing of transcripts of trial proceedings began in the seventeenth century, and the practice became particularly prominent during the civil war years of the 1640s, when the sensational trials of royalists such as the earl of Strafford, William Laud, and, of course, King Charles I captured the attention of the reading public. The first of these trials to be described fully in print was Strafford’s in 1641; his conviction and execution via a parliamentary act of attainder inaugurated a new age of reporting in print on politically controversial trials.18 Henceforth, a flood would be unleashed: 752 further publications with the word ‘tryal’ or the cognate ‘trial’ would be published in the remaining years of the seventeenth century.19 Although many of these trial prints would later Daily Courant, no. 4572 (15 June 1716); Post Man and the Historical Account, no. 11250 (21 June 1716); Cowan (ed.), State Trial, p. 30. 16 The Multigraph Collective, Interacting with Print: Elements of Reading in the Era of Print Saturation (Chicago, 2018); for an excellent late seventeenth-century case study, see Kate Loveman, Samuel Pepys and His Books: Reading, Newsgathering, and Sociability, 1660–1703 (Oxford, 2015). 17 For discussion of the eighteenth-century and nineteenth-century editions of the State Trials, see the chapter by Timothy Harris and Stephen Taylor, along with that by Paul Monod, in this volume. 18 The true maner of the sitting of the Lords & Commons of both Howses [sic] of Parliament upon the tryal of Thomas Earle of Strafford, Lord Lieutenant of Ireland, ESTC R209930 (London, 1641). A few less politically controversial trial accounts, mainly relating to witchcraft or murder prosecutions, had been published in the early seventeenth century. 19 English Short Title Catalogue (http://estc.bl.uk/), search for the keywords ‘tryal’ and ‘trial’ in the metadata (3 July 2020). In the seventeenth century, the word ‘tryal’ had religious as well as legal significance and a few works referring to the spiritual trials of 15

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be anthologized as part of the ‘state trials’ compilations, they were originally published as separate tracts. The regicidal revolution created a crisis of legal legitimacy that made trial proceedings of great interest to supporters of both the defence and the prosecution in the great legal set pieces of the 1640s. While royalists were quick to capitalize on the practice of printing trials to draw attention to what they saw as unjust prosecutions of martyrs for their cause, it soon became apparent that this was a game that anyone could play. In the same year that Strafford’s state trial was published, the Leveller John Lilburne also printed a tract titled The Christian Man’s Trial (1641), which recounted his prosecution in the court of Star Chamber in 1638. Religious dissenters such as the Quakers were particularly eager to publish accounts of their legal persecutions in the 1650s.20 By the time of the restoration of the monarchy, a new genre of printed trial reports had been established and the publication of these reports would become yet another arena of contestation between the state and its subjects. As Michael Mendle has demonstrated, the widespread use of shorthand techniques of transcription of oral testimony allowed for the rapid publication of accurate accounts of trial proceedings in the later seventeenth century.21 It was the combination of shorthand transcription, a flourishing print market, and the febrile political atmosphere of the later Stuart era that allowed for the publication of the original ‘prints’ of the trials that would later form the core of what later editors such as Salmon, Emlyn, Hargrave, and ultimately Cobbett and Howell would call the ‘state trials’. The state trials only became The State Trials when collected and anthologized as such.22 The principles of inclusion in the various state trials volumes as well as the political and intellectual sympathies of the eighteenth-century publishers of the various state trials collections have been often debated, and they are discussed by several of the contributors to this volume. But aside from serving various political interests, the publication of The State Trials was also the product of the growing popularity of miscellanies, anthologies and collections of all sorts in the eighteenth-century print market.23 As such, the invention of the state trials venture should be considered as part of the same organizing and marketing impulse that spurred the publication of collections such as the Poems on Affairs the faithful are included in these results, but the vast majority of these publications refer to accounts of legal proceedings. 20 Kate Peters, Print Culture and the Early Quakers (Cambridge, 2005), pp. 199–206. 21 Michael Mendle, ‘The “Prints” of the Trials: The Nexus of Politics, Religion, Law and Information in Late Seventeenth-Century England’, in Fear, Exclusion and Revolution: Roger Morrice and Britain in the 1680s, ed. Jason McElligott (Aldershot, 2006), pp. 123–37. 22 Cowan (ed.), State Trial of Doctor Henry Sacheverell, pp. 130–2; Cynthia Herrup, A House in Gross Disorder: Sex, Law, and the Second Earl of Castlehaven (Oxford, 1999), pp. 139–42; John H. Langbein, ‘The Criminal Trial Before the Lawyers’, University of Chicago Law Review, 45 (1978), 264–7. 23 Leah Price, The Anthology and the Rise of the Novel: From Richardson to George Eliot (Cambridge, 2000); Multigraph Collective, Interacting with Print, pp. 33–48.

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of State, various anthologies of ‘state tracts’, and especially the ‘Old Bailey Proceedings’ that would be published regularly from 1678 onwards.24 Reports on the proceedings in even run-of-the-mill criminal trials made for popular reading in the eighteenth century.25 By the 1780s, several publishers began to cultivate and exploit a market for collections of trials relating to adultery and other sexual or marital offenses.26 Salmon’s initial Collection of State-Tryals thus participated in a wider trend of publishing anthologized collections while simultaneously initiating a new genre of legal reporting, the ‘state trial’. By 1726, the genre was well recognized enough that Jonathan Swift’s Lemuel Gulliver could be represented as having ‘perused many State-Tryals’ in the course of his readings.27 State trials would continue to gather readers into the nineteenth century, particularly in the wake of Cobbett and Howell’s republication and enhancement of the collection. The return of sensational treason trials in the 1790s certainly revived interest in the state trials genre, and accounts of the prosecutions of famous radicals such as John Horne Tooke and Thomas Hardy were printed for contemporary readers. These cases would eventually be added to the newly enhanced State Trials published by Cobbett and Howell.28 Samuel March Phillips published an edition of sixteenth- and seventeenth-century state trials in 1826 that advanced a Whig vision of their historical significance, later to be picked up and developed in Thomas Babington Macaulay’s History of England. Phillips, like Macaulay, saw the Glorious Revolution as ushering in a new age of respect for the rule of law, even when it might prove to be inconvenient for the government:

George deF. Lord and others (eds), Poems on Affairs of State: Augustan Satirical Verse, 1660–1714 (7 vols, New Haven, 1963–75); Tim Somers, ‘The “Impartiality” of Narcissus Luttrell’s Reading Practices and Historical Writing, 1679–1710’, Historical Journal, 62 (2019), p. 939; ‘Publishing History of the Proceedings’, in Tim Hitchcock, Robert Shoemaker, Clive Emsley, Sharon Howard and Jamie McLaughlin, et al., The Old Bailey Proceedings Online, 1674–1913 (www.oldbaileyonline.org, version 8.0, 24 December 2019), https://www.oldbaileyonline.org/static/Publishinghistory.jsp; Robert Shoemaker, ‘The Old Bailey Proceedings and the Representation of Crime and Criminal Justice in EighteenthCentury London’, Journal of British Studies, 47 (2008), 559–80. 25 Andrea McKenzie, ‘Useful and Entertaining to the Generality of Readers: Selecting the Select Trials, 1718–1764’, in Crime, Courtrooms and the Public Sphere in Britain, 1700–1850, ed. David Lemmings (Farnham, 2012), pp. 43–70. 26 Trials for Adultery; or, The History of Divorces. Being Select Trials at Doctors Commons for Adultery, Fornification, Cruelty, Impotence, &c. (7 vols, London, 1779–80); Lawrence Stone, Road to Divorce: England, 1530–1987 (Oxford, 1990), pp. 249–50. 27 Jonathan Swift, Gulliver’s Travels, ed. David Womersley (Cambridge, 2012), p. 104. 28 State Trials for High Treason (Edinburgh, 1794); Frank Prochaska, ‘English State Trials in the 1790s: A Case Study’, Journal of British Studies, 13 (1973), 63–82; Alan Wharam, The Treason Trials, 1794 (Leicester, 1992); John Barrell, Imagining the King’s Death: Figurative Treason, Fantasies of Regicide, 1793–1796 (Oxford, 2000); Kevin Gilmartin, Print Politics: The Press and Radical Opposition in Early Nineteenth-Century England (Cambridge, 1996), pp. 114–57. 24

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INTRODUCTION

In the earlier periods, [judicial] proceedings were conducted without any regard to truth … immediately after the Revolution of 1688, our courts of justice acquired a new character, which has been advancing and improving to the present age. In comparing the two periods, which preceded and followed that event, and surveying the systems established before and afterwards, the contrast will appear most striking in these particulars: — the deportment of the judges towards the accused, the tone and temper of their addresses to the jury, the practice in respect of the reception of evidence, and the exposition of the law of treason.29

Macaulay went even further, describing the legal regime of the Restoration period as a ‘Reign of Terror’ that was only put to rest by the Revolution and the legal protections afforded to defendants by the 1696 Treason Trials Act (7 Will. III, c. 3).30 Macaulay thought that the success of the Revolution had contributed to ‘the purification of the administration of justice in political cases’ and insisted that ‘of the importance of this change no person can judge who is not well acquainted with the earlier volumes of the State Trials’. His assessment of the lessons learned was unequivocal: ‘Those volumes are, we do not hesitate to say, the most frightful record of baseness and depravity that is extant in the world. Our hatred is altogether turned away from the crimes and the criminals, and directed against the law and its ministers. We see villainies as black as ever were imputed to any prisoner at any bar daily committed on the bench and in the jury-box.’ Courts ‘ought to be sacred places of refuge, where, in all the vicissitudes of public affairs, the innocent of all parties may find shelter’. But they ‘were, before the Revolution, an unclean public shambles, to which each party in its turn dragged its opponents, and where each found the same venal and ferocious butchers waiting for its custom. Papist or Protestant, Tory or Whig, Priest or Alderman, all was one to those greedy and savage natures, provided only there was money to earn, and blood to shed’.31 Macaulay’s reading of the later Stuart state trials, most likely in William Cobbett’s and Thomas Bayly Howell’s early nineteenth-century reprint and elaboration of the earlier eighteenth-century collections, placed them securely within a Whig historiography in which they became part of the story of the gradual emergence of a constitutional monarchy that firmly rejected the shambolic and venal wickedness of the restored monarchy in the era of Charles II and James II.32 Macaulay’s recourse to the state trials in his History only Samuel March Philips, State Trials (2 vols, London, 1826), I, ix–x. Macaulay, History of England, p. 552. On the legal consequences of the Treason Trials Act (1696), see John H. Langbein, The Origins of Adversary Criminal Trial (Oxford, 2003), pp. 67–105. 31 Macaulay, History of England, pp. 549–50. 32 Thomas Bayly Howell (ed.), Cobbett’s Complete Collection of State Trials and Proceedings for High Treason, and other Crimes and Misdemeanours from the Earliest Period to the Present Time … from the ninth year of the reign of King Henry, the second, A.D. 1163, to … [George IV, A.D. 1820] (33 vols, London, 1809–28). Referred to throughout this volume as ST. 29 30

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further underlined the importance of the genre to the modern Whig vision of English constitutional history. It also ensured the continuing relevance of the genre.33 Further editions and republications of these cases, often updated with contemporary reports of more recent trials, continued to be published throughout the rest of the nineteenth century.34 By the later years of the Victorian era, however, the appeal of legal minutiae relating to court cases that had largely passed from public memory metamorphized into something different than the urgent political and constitutional concerns that had animated previous readers of the state trials. The compilations of the trials became, for many of their new readers, a source of imaginative inspiration and entertainment. William Makepeace Thackeray used the state trials account of the murder trial of Charles, Lord Mohun for his historical novel, The History of Henry Esmond (1852).35 Decades later, when Sir Leslie Stephen opined upon the experience of reading the state trials at the turn of the century, he found their appeal to be something other than their constitutional significance. ‘When literature palls upon me I sometimes turn for relief to the great collection of State Trials. They are nothing, you may say, but the police reports of the past. But it makes all the difference that they are of the past’. For Stephen, the appeal of reading the state trials was no longer found in their role in a whiggish narrative of the growth of English liberties – he complained that ‘there are pages upon pages of constitutional eloquences in the Sacheverell case about the blessed revolution, and the social compact, and the theory of passive resistance, which are as hopelessly unreadable as the last parliamentary debate in the Times’ – but rather in the window they offered into the vernacular of past times. ‘The charm of the State Trials is in the singular fulness and apparent authenticity of many of the reports of viva voce examinations’, he claimed. In a striking divergence from the exuberant triumphalism of Phillips and Macaulay, Stephen deplored ‘the degenerate eighteenth century’ but thrilled to read accounts from the sixteenth and seventeenth centuries. ‘The most interesting period of the State Trials’, he declared, ‘is perhaps the last half of the seventeenth century, when the art of reporting seems to have been sufficiently developed to give a minute verbal record – vivid as a photograph – of the actual scene, and before the interest

The history of Howell’s work in collecting and publishing his edition of the state trials remains relatively unexplored, but see the introduction to Donald Thomas (ed.), State Trials (2 vols, London, 1972), I, 5–19. 33 For criticism of Macaulay’s use of the State Trials as source material for his History, see George Kitson Clark, The Critical Historian (New York, 1967), pp. 99–108. 34 ‘The State Trials – I’, South African Law Journal, 19 (1902), 327–44; ‘The State Trials – II’, South African Law Journal, 20 (1903), 5–22. 35 Robert Forsyth, A Noble Rake: The Life of Charles, Fourth Lord Mohun (Cambridge, Mass., 1928), p. 76; Victor Stater, High Life, Low Morals: The Duel That Shook Stuart Society (London, 1999), pp. 271–3.

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INTRODUCTION

was diluted by floods of legal rhetoric’. By contrast, Stephen found that ‘in the post-revolutionary period the world becomes more merciful and duller’.36 Stephen’s romantic view of later Stuart state trials found more adherents in the early twentieth century, as the great constitutional struggles of the Stuarts continued to be excavated for their beguiling language as much as for their lasting political import. M. R. James found inspiration for some of his ghost stories in the state trials, with his narratives ‘Martin’s Close’ (1911) and ‘A Neighbour’s Landmark’ (1925) stemming from his reading of state trials from the later seventeenth century. James viewed the later Stuart state trials much as Stephen had: he averred that the legal contests ‘of the period of the Popish Plot, the reign of James II, and the years following the Revolution are undoubtedly the richest’ and that ‘the State Trials give the language of Judge Jeffreys and the courts at the end of the seventeenth century’. It was in the state trials alone, he thought, that ‘we find the unadorned common speech of Englishmen’.37 The stories that emerged from the cases evoked the period flavour of an exciting, albeit rather barbarous, past. James and Stephen thus participated in a form of late Romantic historicism in which their relationship to the past (and particularly to the state trials of the Stuart past) was sentimental, and often better conveyed through fiction or autobiographical essays, rather than through straightforward historical narratives.38 While the aesthetic fascination with the state trials, exemplified by writers such as James or Stephen, did not entirely disappear in the later twentieth century, it largely faded from view as ever more readers found the trial reports that had already intimidated many Victorian readers to be dry, prolix, irrelevant, and lacking in interest. Upon encountering the voluminous commentary on the state trial of Doctor Henry Sacheverell, Agnes Strickland had complained as early as 1849 that ‘no person can open these books without perpetrating a succession of yawns; no person, excepting for the necessity of professional information, ever endured the reading of two pages of the narrative’.39 Strickland may not have spoken for every reader in her century, given the continuing fascination that the trials held for at least a handful of her fellow Victorians, but her view that only those with a purely professional

Leslie Stephen, Hours in a Library (3 vols, New York, 1894), III, 308, 310, 309, 311, 312. On the Stephen family’s complicated relationship with the eighteenth century, see Brian Young, The Victorian Eighteenth Century (Oxford, 2007), pp. 103–47. 37 M. R. James, Casting the Runes and Other Ghost Stories, ed. Michael Cox (Oxford, 1987), p. 319, n. 115; p. 333, n. 255; M. R. James, The Haunted Doll’s House and Other Ghost Stories, ed. S. T. Joshi (New York, 2006), p. 264. See also James’s introduction to The Lady Ivie’s Trial For Great Part of Shadwell in the County of Middlesex Before Lord Chief Justice Jeffreys in 1684, ed. John Charles Fox (Oxford, 1929). 38 Mike Goode, Sentimental Masculinity and the Rise of History, 1790–1890 (Cambridge, 2009); Stephen Bann, Romanticism and the Rise of History (New York, 1995). 39 Agnes Strickland, Lives of the Queens of England (8 vols, London, 1852), VIII, 365. 36

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interest in the materials could find them engrossing would serve as an apt description for the readership of the state trials in the twentieth century. Only in historical writing have the trials continued to maintain pride of place. Historians have kept the state trials alive as a central part of the story of the age of revolutions, and their scholarship has continued to trace the political antagonisms that drove the conflicts that provoked the trials in the first place. The neo-Tory historian J. G. Muddiman thought that the whole state trials genre, as it was curated in the eighteenth and nineteenth centuries, was corrupted by the Whiggish bias of their publishers. In 1930, he argued that there was an urgent ‘need for a new and revised edition of “State Trials”’.40 Historians quailed at the magnitude of such an undertaking, and no one has taken up his charge. Muddiman was of the opinion that the state trials as reproduced in Salmon’s edition were irredeemably biased in favour of the Whig cause due to the allegiances of many of their original collectors and publishers, and particularly the transcription work of Robert Blaney, a shorthand reporter who recorded the proceedings of many of the later Stuart state trials. Muddiman married a healthy scepticism with regard to the obscure origins of many of the texts that formed the basis for Salmon’s State Trials corpus with an assumption that they had likely been tampered with. Some of his critique was overstated—Blaney’s accuracy has been vindicated by later historians—and any attempt to provide a critical edition of the trials would be hampered by the fact that in many cases, the text as reproduced in the published State Trials is the only version extant.41 By the end of the twentieth century, references to the state trials were largely restricted to the works of professional historians, although two new editions of selected state trials were published, albeit without capturing the public’s attention the way their eighteenth-century predecessors had. Donald Thomas edited two volumes of selections devoted to ‘treason and libel’ and ‘the public conscience’ from the Cobbett and Howell edition, and Alan Wharam presented a selection of excerpts from Sollom Emlyn’s State Tryals (1730) as Murder in the Tower and Other Tales from the State Trials (2001).42 These new editions notwithstanding, on the whole, interest in the state trials has been confined largely to scholars in the later twentieth and early twenty-first centuries. Two scholarly agendas have predominated: a legal and intellectual history of the trials as part of a broader history of liberal politics and liberal ideas; and an account based in publishing history that has set the trial compilations in the context of the broader history of early modern print culture. J. G. Muddiman, State Trials: The Need for a New and Revised Edition of ‘State Trials’ (Edinburgh, 1930). 41 Muddiman, State Trials, p. 11. On Blaney’s accuracy as a reporter, see Mendle, ‘The “prints” of the Trials’. On the source texts underpinning the State Trials compilations, see the chapter by Tim Harris and Stephen Taylor, below. 42 Donald Thomas (ed.), State Trials, Vol. 1: Treason and Libel (London, 1972); Donald Thomas (ed.), State Trials, Vol. 2: The Public Conscience (London, 1972); Alan Wharam (ed.), Murder in the Tower and Other Tales from the State Trials (Aldershot, 2001). 40

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INTRODUCTION

In a series of works published in the 1990s and 2000s, Annabel Patterson revisited the trial literature of the early modern era as part of what she called ‘a new Whig interpretation of history’.43 She saw the publication of early modern treason trial procedures as part of ‘liberalism’s long campaign to render [arbitrary justice] not only unacceptable, but almost incredible, a Kafkaesque nightmare’, and she saw the publication of the State Trials editions in the eighteenth century as ‘documents clearly designed to support a “Whig” agenda’. She published a new scholarly edition of the trial of Nicholas Throckmorton, one of the earliest Tudor treason trials published in the State Trials compilations. For Patterson, the emergence of the state trials genre in the early modern era created ‘an alternative legal canon: the records, most often produced surreptitiously and printed illegally, of what were seen as unusually unjust trials, which could … [provide] ethical and emotional support to any temporarily disadvantaged party or actively persecuted minority’. It could also, she added, ‘actually serve a practical legal purpose: of providing instruction in the ways of courts and the strategies of self-defence which could literally be passed on from one defendant to another’.44 Reading the state trials, in Patterson’s view, provided both an immediate practical education in legal strategies for defendants as well as bolstering a longer-term political campaign to enforce limits on the executive authority of the state. Her work demonstrated the continued vitality and importance of English constitutional history at a moment when the field was no longer as central to historical scholarship as it had once been. Patterson’s contribution to this volume further develops this perspective.45 While Patterson was developing her new constitutional history of liberalism through revisiting the invention of the state trials genre, other historians were using them to develop novel arguments about print culture and the social history of law. Cynthia Herrup’s study of the scandals surrounding the earl of Castlehaven, who was tried and convicted of rape and sodomy in 1631, demonstrated the value of exploring a single case that was sensational in its own day and would end up as fodder for the rapidly expanding early modern print market. Accounts of Castlehaven’s trial would first be printed in the 1640s and would ultimately be included in Salmon’s original State Tryals collection, its presence there presumably justified by its notoriety and the high status of the convicted offender. 46 Herrup wrote that: Annabel Patterson, Nobody’s Perfect: A New Whig Interpretation of History (New Haven, 2002). 44 Annabel Patterson, Early Modern Liberalism (Cambridge, 1997), pp. 94, 95 (quoted); Annabel Patterson (ed.), The Trial of Nicholas Throckmorton (Toronto, 1998); Annabel Patterson, Reading Holinshed’s Chronicles (Chicago, 1994), pp. 154–83. 45 For a more recent study, see André Krischer, Die Macht des Verfahrens: Englische Hochverratsprozesse, 1554–1848 (Münster, 2017). 46 Cynthia Herrup, A House in Gross Disorder: Sex, Law, and the Second Earl of Castlehaven (New York, 1999), p. 117; Compleat Collection of State-Tryals, I, 264–72; ST, III, 402–26. 43

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from the beginning, State Trials was a commercial venture, inspired by a desire not only to contribute to ongoing political debates, but also to exploit the vogue for dying confessions, scandalous stories, and criminal proceedings. The volumes were not, as they are today, the province of attorneys and academics; they were intended for and seemed to have reached a considerably broader public.47

This perspective has been developed further by Andrea McKenzie with regard to the publication of criminal trial reports such as the Ordinary of Newgate’s Account (1676–1772) and the Select Trials (1764). Peter Marshall, likewise, has explored the controversies surrounding the sodomy trial in 1640 of John Atherton, the bishop of Waterford and Lismore.48 Brian Cowan has provided a publication history of accounts of the trial of Doctor Henry Sacheverell in his edition of documents relating to this celebrated state trial.49 This volume continues and expands upon the work of these scholars, several of whom have indeed contributed to it. Like critics such as Stephen and James, it also focuses on the special appeal of the later Stuart state trials. While eschewing the unapologetically Whig partisanship of historians like Macaulay, it also rejects the cynical scepticism of modern Tory historians such as Muddiman. The most fruitful approach to the politics of the state trials in later Stuart England, this volume suggests, is to return to the contexts surrounding the cases that later came to be anthologized, and to a certain extent canonized, as ‘state trials’ as well as those cases that did not receive such treatment. Deep contextualization, while helping us to understand what these cases meant in the moment, also serves as an exercise of historical imagination that may enable us to discern parallels between their time and ours. Those parallels seem especially evident at the outset of the 2020s. The recent return of authoritarian-style governments around the world, even (or perhaps especially) in the Anglophone world that was in many ways shaped by the conflicts of the later Stuart era, have demonstrated that the notion of rule by law rather than arbitrary government is by no means guaranteed even three centuries after the debates examined here. The early modern impeachment trial, such as that used to convict Doctor Henry Sacheverell in 1710, cannot be considered a relic of the past when the United States House of Representatives recently approved two articles of impeachment for the American president on 18 December 2019. Debates over the law of habeas corpus that resulted in the passage of the Habeas Corpus Act (31 Cha. II c. 2) in 1679 remain relevant when asylum seekers and detainees from foreign battlefields are routinely imprisoned against their will for months or years without formal charges having been laid Herrup, House in Gross Disorder, p. 140. Andrea McKenzie, ‘From True Confessions to True Reporting? The Decline and Fall of the Ordinary’s Account’, London Journal, 30 (2005), 55–70; McKenzie, ‘Selecting the Select Trials’; Peter Marshall, Mother Leakey and the Bishop: A Ghost Story (Oxford, 2007). 49 Cowan (ed.), State Trial of Doctor Henry Sacheverell. 47

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against them.50 Anxieties over the Popish Plot, the Rye House Plot, or the assassination plot against King William III do not seem so foreign to a world newly obsessed with conspiracy theories, ‘fake news’, and even real assassinations such as the murder of the Saudi journalist Jamal Ahmad Khashoggi in October 2018.51 Later Stuart concerns about an overmighty executive might seem newly relevant, at least to an American readership, at a time when congressional subpoenas have been routinely ignored in the very recent past, an American attorney general shamelessly interfered with ongoing criminal investigations that were politically inconvenient to the man who appointed him, and extrajudicial murders by police officers continue to go largely unpunished in courts of law. One does not need to be a political Whig, or even a whiggish historian, to recognize the importance of constitutional history, and especially the formative role played by certain key legal proceedings in the development, however halting, uncertain and contested its origins, of a lasting notion of rule of law in the early modern era. It remains to be seen whether this notion will survive our turbulent twenty-first century. III The eleven essays collected in this volume approach the state trials from a variety of perspectives. The opening essay surveys the period as a whole. Here, Tim Harris and Stephen Taylor provide an analysis of the genre of the ‘state trial’, examining how certain trials were selected for inclusion in the eighteenth-century anthologies edited by Thomas Salmon, Sollom Emlyn and Francis Hargrave. Their essay tracks the changing significance of the trials over the course of the later Stuart period, drawing a contrast between the period up to the Revolution of 1688–89, when the trials often served as a venue for clashes over constitutional principles between the government and a surging popular opposition, and the post-revolutionary period, when the government was generally more successful in garnering public support for its prosecutions of Jacobites and other enemies of the state. A significant number of the state trials included in the eighteenth-century anthologies happened not in the high courts but in parliament, where government ministers could be impeached, often on grounds of venality and corruption. Mark Knights examines these impeachments, highlighting a persistent concern running through the various editions of the State Trials: how to define what constituted an act of corruption by a government official. The post-revolutionary decades saw a spike in ministerial impeachments, in part because of the ever-growing sums of money flowing through the hands of Paul D. Halliday, Habeas Corpus: From England to Empire (Cambridge, Mass., 2010). J. P. Kenyon, The Popish Plot (London, 1972); Rachel Weil, A Plague of Informers: Conspiracy and Political Trust in William III’s England (New Haven, 2013). 50 51

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government ministers, but even more so because of the sharpening of partisan politics. In an age when Whigs faced off against Tories, with the monarch’s ministers attempting to form sometimes-shaky coalitions in the House of Commons, impeachment became a useful tool to bring down one’s partisan enemies. The multiplying of impeachments came to an end in the 1720s with the triumph of the Whigs and the ascendance of Walpole, as partisan warfare gave way to the period of Whig dominance that marked mid-eighteenth-century England. The definition of corruption, though often debated in these trials, was generally left unresolved. In the rush to partisan judgment, Knights notes, a more fundamental and comprehensive reform of legal statutes and bureaucratic practices regarding fee-taking and the sale of office was left aside. Even before the Whig and Tory parties had emerged during the Exclusion Crisis of the late 1670s and early 1680s, a growing partisanship had infected English politics. Much of this partisanship was the result of bitter divisions stemming from the Civil Wars of the 1640s, as Melinda Zook shows in her analysis of the trials of the regicides. The return of Charles II from exile in 1660 had led to a barrage of politically motivated trials, as cavaliers, newly on top, sought revenge on those who had committed the unforgiveable sin of participating in the execution of King Charles I in 1649. The regicides were hunted down and executed in bloody fashion. The next two decades were characterized by harassment and prosecution of former Cromwellians and religious nonconformists who fell afoul of strict new laws commanding conformity to the Church of England. The fervour with which cavaliers denounced and persecuted their enemies, Zook argues, eventually helped to foster the rise of a political movement dedicated to checking these vengeful impulses and to protecting religious nonconformists. By the later 1670s, this oppositional movement, which had grown in coherence and size, had become powerful enough to take over the House of Commons. The participants in this movement, who became known in the later 1670s as the Whigs, had their own bugbears, namely the English Catholics, who were seen by many Whigs as potential traitors intriguing with foreign powers. Some of the Whigs proved to be as willing to shed blood for political reasons as the more vengeful cavaliers had been, pushing for the prosecutions of men who were said to have participated in a grand Catholic conspiracy at the highest levels of government. This supposed conspiracy became known as the ‘Popish Plot’. John Marshall explores the trial and execution in 1681 of Oliver Plunket, the Roman Catholic archbishop of Armagh, who was tried in England after a prosecution of him had failed in Ireland. The charges were that Plunket, as an adjunct to the larger supposed conspiracy, had plotted to raise a Catholic rebellion in Ireland. Plunket was convicted in England, his legal defence failing because he was not granted enough time to bring from Ireland witnesses who could testify to his innocence. Although some of those who prosecuted Plunket were not Whigs, it was Whig pressure that had led to him being put on trial, the 18

INTRODUCTION

jury had been empanelled by a Whig sheriff, and the bishop’s death, as Marshall shows, was a symptom of Whig anti-popery. The archbishop of Armagh was executed on 1 July 1681. On the same day, an erstwhile royalist agent turned Whig informant named Edward Fitzharris was also hanged at Tyburn. Fitzharris had fallen afoul of the complex politics of the plot period, alienating both his associates in the Whig movement and his associates at court. As Andrea McKenzie suggests, part of the reason for the execution of Plunket might have been to provide political cover for the execution of Fitzharris. The king’s allies wished to silence permanently the dangerously unpredictable Fitzharris, a man who knew too much or who could be persuaded to swear to too much, and the popularity of the Plunket execution could make it harder for the Whigs to depict the execution of Fitzharris as part of a royal cover-up. Despite Fitzharris’s frantic efforts either to secure a royal pardon or to gain the support of leading Whigs, his trial and subsequent execution proceeded inexorably. Whig notables were hardly likely to do much to protect a man who seemed more than willing to turn on them if a pardon from the king was in the offing. McKenzie explores the political usefulness of this slippery figure, charting the many ways in which his words, or his purported words, were put to polemical use by actors from across the political spectrum, even as few showed much concern for his well-being. The judicial murder of Oliver Plunket turned out to be the crest of the Whig wave. The execution of Fitzharris, the informant whom the Whigs could not or would not protect, was a sign of an impending trough. Within two years, the Whigs would be crushed by their political enemies. In desperation, some put their hopes in a plot to assassinate the king and his brother, the duke of York, near the Rye House in Hertfordshire, upon the return of the two brothers to London from the races at Newmarket. The plot was never put into motion, and it could have been dismissed as wild talk were it not so politically useful to the newly formed Tory party. Instead, several leading Whigs were put on trial in 1683 for plotting against the king. The most sensational trial was that of William, Lord Russell, who was executed for treason on charges that he had helped to devise the Rye House Plot. Newton Key analyzes the printed ephemera that tracked each stage of the prosecutions of the plotters, showing that printers were highly attuned to public interest in the trials, rushing out short news pamphlets covering all the courtroom proceedings in detail. The emphasis on fresh news indicates both the intensity of public interest in the trials and the growing capabilities of London’s journalists, who readily satisfied that desire. The audience for the Rye House trial pamphlets included both Whigs, who were dismayed at the unfolding events, and their loyalist or Tory opponents, who cheered the prosecutors on. The partisan divisions between Whigs and Tories became somewhat less salient in the next reign, as the religious policies of James II scrambled the alignments that had formed in the Popish Plot period. In 1687, the Catholic James proclaimed his Declaration for Liberty of Conscience, which immediately suspended 19

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all laws against religious nonconformity. He claimed to be doing so on the basis of the royal dispensing power, a power that the carefully manipulated high courts had upheld in the 1686 Godden v Hales case. But the king’s declaration was so sweeping that he was effectively claiming a suspending power, or a power to set aside parliamentary acts for the entirety of his reign. Such a power had not been ratified in the courts, and many saw it as illegal. James’s religious policy produced a new bifurcation between those who supported his Declaration and those who opposed it, with Whigs and Tories amassing on both sides of this divide. Many influential figures refused to countenance James’s policies on both constitutional and religious grounds. Others backed those same measures, with some Whigs seeing the king’s agenda as the best opportunity to advance the tolerationist cause, while some ultra-Tories were so attached to loyalist principles that they were willing to support unappealing policies simply because the king demanded it. In June 1688, the Whig-Tory opposition rallied around an unlikely set of standard-bearers: seven Anglican bishops who had defied the king’s order to distribute his Declaration for Liberty of Conscience to be read aloud by Anglican ministers during divine service. The seven bishops were subsequently put on trial and, to the surprise of many, were acquitted by a largely Anglican jury that, in a precedent-breaking move, was permitted by the high court justices to rule not only on the factual question of whether the bishops had submitted a petition against the king’s order, but also on the legal question of whether their petition had constituted a seditious libel. Scott Sowerby’s essay charts the bifurcated popular responses to the trial of these seven bishops, as many cheered the bishops’ acquittal, while some of the king’s tolerationist and loyalist allies chided the bishops for their defiance. Following the Revolution of 1688–89, when William of Orange ousted James II with the backing of many leading Tory and Whig grandees, English politics settled back into a by-now-familiar Tory-Whig divide. Mark Goldie’s essay explores the bitter partisan divisions that opened up as soon as James had been forced from power. In the year following the Revolution, Whigs and Tories battled in parliament over the scope of a proposed Act of Indemnity, debating how to treat the men who had supported the government excesses of the pre-revolutionary period. As in the Restoration, a decision had to be made about how to treat those who had once been on top. While some called simply for vengeance and others for mercy, most issued carefully calibrated calls for vengeance on their political enemies but mercy for their allies. The new king, William III, had little patience for these partisan battles at a time when English armies were quelling a rebellion in Ireland and English fleets were facing off against French ships. After a year of mounting impatience, he sided decisively with the Tories and their vision of a minimal prosecution of a handful of malefactors from James II’s reign, rejecting Whig hopes for a more expansive purge that would have included those who had facilitated Crown interference in parliamentary elections by promoting the surrender of borough charters in the early 1680s. While William did support the prosecution of some of the ultra-loyalists from James II’s reign, most of those 20

INTRODUCTION

men were now beyond the arm of English law, having fled with the exiled king to France. The result was that few trials were held. Thus, the Revolution did not lead to judicial bloodshed like that meted out to the regicides; instead, it helped to establish the principle that transfers of power in English politics should not usher in a wave of retributory executions. While the Revolution did not lead to widespread legal retribution against collaborators with James II’s regime, nor did it end the partisan debates about the constitution. Those debates grew even more lively after the accession of James’s daughter, Anne, in 1702. Anne’s sincere support for the Protestant Church of England and her dynastic position as a Stuart gave a fillip to longstanding Tory beliefs about the monopoly on religious authority that they thought was unquestionably due to the established church, as well as to notions of hereditary divine right kingship that had been conveniently finessed by the recognition of William III and Mary II as joint sovereigns in 1689. This Tory revanche came to a head in 1709 when the clergyman Doctor Henry Sacheverell preached a provocative 5 November sermon in St. Paul’s Cathedral in which he challenged the legitimacy of toleration for Protestant dissenters and questioned whether the Revolution had entailed any resistance to royal authority. Sacheverell’s sermon aimed at two pillars of post-revolutionary Whig ideology: the necessity of toleration for Protestant dissent and the legitimacy of resistance against tyrannical authority, as evidenced by the replacement of James II with William III and Mary II by the revolutionary Convention Parliament. It demanded a Whig response and it received one in his parliamentary impeachment trial, which ultimately resulted in Sacheverell’s conviction for high crimes and misdemeanours by the House of Lords on 23 March 1710. Despite having been found guilty, Sacheverell’s punishment was risibly minor: he was enjoined from preaching for three years and his offending sermons were ordered to be burned by the common hangman. Brian Cowan’s chapter examines the aftermath of Sacheverell’s trial and argues that the largely Tory addressing campaign, along with the Doctor’s pseudo-royal ‘progress’ from Oxford to Shropshire in the long summer of 1710, jointly constituted an extra-legal form of Tory re-litigation of the constitutional significance of the Revolution. While these campaigns were successful in the short run, and they played a significant role in promoting the Tory victories in the general election that took place later in the year, they failed to stem the tide of toleration for Protestant nonconformists, and the Hanoverian Succession soon showed how little purchase lingering notions of hereditary divine right kingship had in the parliament at Westminster. Even as Whigs and Tories were arguing about what had happened in 1688–89 and what the regime change meant for the constitution, outright defenders of James II had their own view of the Revolution that had overthrown him, namely that it should never have happened. Some of the king’s supporters, who became known as the Jacobites, plotted to reverse the Revolution of 1688–89 by restoring James and his male descendants to the English and Scottish thrones. Several of these plotters were put on trial for treason, and an ample selection of 21

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these trials found their way into the eighteenth-century editions of State Trials. Paul Monod explores these trials and how they were selected and framed by the editors of the State Trials volumes. He finds that the first editor of the State Trials, Thomas Salmon, focused his attention on those trials in which a case could be made that the defendant had been unjustly deprived of the means of making an adequate defence. Salmon was not himself a Jacobite, but he took a Country Tory position, sceptical of possible government overreach and alert to prosecutorial abuses. His relatively unadorned trial accounts, which allowed the defendants to speak without editorial prefaces and interpolations criticizing their behaviour, opened up a space where a reader might develop a ‘sentimental identification with the accused’ and sympathy with his or her plight. These sentimental readings of the state trials have never disappeared, as Annabel Patterson’s chapter demonstrates. Patterson compares two cases from the Bayly Cobbett and Howell State Trials collection: the trials of the nonconforming minister Thomas Rosewell (1684) and the radical publisher Daniel Isaac Eaton (1794). In both cases, Crown prosecutors sought to convict the accused on the basis of innuendos derived from what might otherwise be thought to be innocuous speech. While Rosewell was convicted of high treason, he was not sentenced and thus avoided punishment; Eaton was acquitted of the libel charges brought against him. Patterson sees these two cases as victories for the recognition of the rule of law over arbitrary power and argues furthermore that the failure of Eaton’s libel prosecution was due in no small part to the persuasive power developed by the construction of the state trials genre that gradually developed from the Restoration era right through the age of the French Revolution. The continued publication of state trials throughout this period instructed English readers in the protections accorded to the innocent by English common law. Patterson’s reading of the state trials offers a good example of the interpretative strategy that Monod argues was built into Salmon’s original intention for publishing them as a set of collected works. IV The partisan divisions of the later Stuart era lay at the heart of the state trials as they were collected by Salmon and his successors. Those same divisions also are the major focus of this volume. The anthologies of Salmon and others could exist only because of the intense public attention that these trials had attracted. The curiosity of the public had propelled courtroom reporters to take down transcripts of the trials in shorthand, and that same curiosity had furnished a ready market for the copies of these transcripts that later circulated in print and manuscript. Without partisanship, it is unlikely that the same level of public engagement with these trials would have occurred, and without that intensity of public engagement, fewer transcripts of the trials would have been generated for Salmon and others to assemble into anthologies. Thus, the 22

INTRODUCTION

State Trials compilations were political artifacts both in their contents, which were often intensely partisan, and in their very existence, which was made possible by partisanship and popular politics. The political warfare being waged in the legal contests later anthologized in the State Trials may seem to reflect a somewhat blinkered point of view, focused as they are almost entirely on domestic concerns rather than Britain’s overseas entanglements. One will find little in the state trials, for example, on the emergent slave codes and forms of imperial governance that were developing in the peripheries of the early modern British empire at this time.52 It is also noticeable how often the protagonists and antagonists in these contests came from legal, political, and clerical elites. The direct experiences of the wider populace with the law are better traced elsewhere, in the county assize records, the sessions papers of borough courts, and the magnificent records contained in London’s Old Bailey Sessions Papers.53 The limitations of the state trials does not mean, however, that they have little to say to us in the 2020s. While many of the partisan battles of the later Stuart period may not resonate today, the belief that the law matters and that even a sovereign may not act in contravention to established law remains important. As E. P. Thompson opined forty-five years ago, the rule of law was then, as it still remains, ‘an unqualified human good’.54 ‎

Sally Hadden, ‘The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras’, in The Cambridge History of Law in America. Vol. 1, Early America (1580–1815), ed. Michael Grossberg and Christopher Tomlins (Cambridge, 2008), pp. 253–87, 646–57; Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (Cambridge, 2002); Hannah Weiss Muller, Subjects and Sovereign: Bonds of Belonging in the Eighteenth-Century British Empire (New York, 2017). 53 Tim Hitchcock and Robert Shoemaker, London Lives: Poverty, Crime and the Making of a Modern City, 1690–1800 (Cambridge, 2015). 54 E. P. Thompson, Whigs and Hunters: The Origins of the Black Act (New York, 1975), p. 266. 52

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1 State Trials and the Rule of Law under the Later Stuarts and Early Hanoverians Tim Harris and Stephen Taylor On 24 November 1681 a bill of indictment against the first earl of Shaftesbury for high treason came before a grand jury at the Old Bailey in London. Shaftesbury, one of the leading figures in the Whig movement to exclude Charles II’s brother and heir, the Catholic James duke of York, from the succession, had been arrested on 2 July and sent to the Tower of London, where he had been held ever since; although Shaftesbury had sued for habeas corpus, the judges declared they had no jurisdiction over prisoners held in the Tower. The case against the earl was not strong, resting as it did on the testimony of two informants to the supposed Irish Plot of 1680–81, whom the government itself admitted were perjurers, and a draft ‘Association’ allegedly found amongst Shaftesbury’s papers accusing York of complicity in the Popish Plot and engaging subscribers to do their utmost to prevent him from coming to the throne. Moreover, Shaftesbury was popular in the City – he had recently taken up citizenship himself as an expression of solidarity – and the government’s attempt to indict him did not go down well with his supporters and admirers. When the witnesses for the crown, having given their depositions, left to get some dinner at the nearby Fountain Tavern, a hostile crowd pursued them, yelling ‘Bogtrotters’ and ‘Perjured Rogues’. Titus Oates, the informer of the original Popish Plot in 1678, was standing at the door of the Fountain to block entry, boasting that he would fill the tavern with porters before the perjurers should get a table there. When the witnesses later made their way back to the Old Bailey, they were accosted by ‘thousands of people’ – so one of them later claimed – armed with ‘long poles, half-pikes and halberts’, who tried to stop them getting into the court. One of the leading witnesses, Stephen Dugdale, fearing for his own safety, decided to slip away rather than try to enter the building. After evaluating all the evidence, the grand jury rejected the bill of indictment, endorsing it ‘ignoramus’, leaving Shaftesbury free to go. Egged on by Oates and the Whig sheriff Samuel Shute, the huge crowd that had gathered outside the Old Bailey cheered loudly. Some tried to assault those who had given evidence against the earl, and the witnesses had to have an escort out of the City for their own safety. That evening numerous bonfires were lit across 24

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London to celebrate Shaftesbury’s release: there were eight or ten in Aldersgate Street alone, where the earl had his London residence, to mark this ‘Feast of St. Ignoramus’. People stopped coaches to solicit money for drink, so they could drink a toast to Shaftesbury and to those who had served on the jury, threatening any who refused to make a contribution. Across the City Shaftesbury’s supporters clashed violently with various Tory groups.1 The events surrounding the arrest, attempted indictment and eventual release of the first earl of Shaftesbury serve as a useful entrée into several of themes that will be addressed in this volume. The proceedings against Shaftesbury are printed in State Trials.2 They illustrate not only how the government might seek to use the legal system to strike at political opponents but also that the government might not always be able to control the process, and that it could be frustrated in its efforts by how the legal system worked. Shaftesbury’s case was extensively followed in the media, both printed and manuscript, as were the riots that followed. It was both a media event and a public event. The court proceedings were public. There was a large presence in the court room – the acclamations in court following the jury’s verdict were said to have lasted an hour3 – while the news quickly spread into the streets, prompting public celebrations well into the night. Instead of enforcing law and order, the proceedings actually served to create further disorder. They also inflamed opinion throughout the country. Shaftesbury’s release prompted a public response from Tories across England and Wales. Between January and September some 157 addresses appeared ‘abhorring’ the grand jury’s decision to throw out the bill and complaining that justice had been denied the king. All these addresses were published in the government news periodical, the London Gazette.4 Yet although the proceedings against Shaftesbury are reported in State Trials, they were not a trial. They were a pre-trial hearing before a grand jury whose job it was to determine whether or not the case should go to trial. The grand jurors were not being asked themselves if they thought the charges were true, but rather to determine whether there was a case to answer; and it was generally held at the time that a grand jury should forward an indictment for trial when the charge was as serious as treason, so that a trial jury could determine the truth of the matter.5 However, the grand jury had been packed with Shaftesbury’s supporters; at this time London had Whig sheriffs and under-sheriffs and it was they who were responsible for drawing up jury panels. The fact that Shaftesbury was not tried, on the other hand, meant that he had not been acquitted and thus not cleared of the charges. An indictment could still potentially be brought against him in the future for the same offence: a Tory grand jury might well Tim Harris, London Crowds in the Reign of Charles II (Cambridge, 1987), pp. 180–2. ST, VIII, cols. 759–842. 3 Ibid., col. 821. 4 Tim Harris, Restoration: Charles II and His Kingdoms, 1660–1685 (London, 2005), pp. 277–81. 5 ST, VIII, col. 759, note. 1 2

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decide there was a case to answer, and a Tory trial jury might then convict. The Whig activist Stephen College had escaped a treason charge in London for his notorious print satirizing Charles II thanks to a Whig ‘ignoramus’ jury, but he was subsequently brought to trial at Oxford for the same offence, found guilty and executed. There was no double jeopardy here. When the Tories regained control of the London shrievalty in the summer of 1682, Shaftesbury had genuine cause to fear for his life and went into hiding. He was to die in exile in Amsterdam in January 1683. How, then, should we approach the study of the later-Stuart state trials? A number of ways suggest themselves. First, there is the history of the book approach. When British historians think of the State Trials, we generally have in mind the magnificent 33-volume compilation by William Cobbett and Thomas Bayly Howell, and continued by the latter’s son, Thomas Jones Howell, published between 1809 and 1826. (Volume 34, the index, appeared in 1828). Yet Cobbett and Howell were building upon work undertaken by previous editors, dating back to the first edition by Thomas Salmon in 1719. There is thus the history of the State Trials volumes to consider: how did these particular trials come to be assembled in this particular form? There is also the history of the particular trial accounts themselves: why have the particular individual published trial accounts come down to us as the authoritative texts of those trials? Secondly, given that we are dealing with trials relating to state affairs, the State Trials might also be used to explore what the government of the day was up to. What sort of statement were those in authority trying to make when they initiated prosecutions against particular individuals for what they deemed to be crimes against the state, and what can this tell us about the particular regimes of the time? Thirdly, we might examine the state trials as media or public events. How were state trials reported in the media, what sort of media are we talking about, and how did such reporting impact on the public sphere? What was the public’s reaction to particular state trials, did the people endorse or reject the verdicts in particular trials, and how was such endorsement or rejection publicly articulated? Finally, there is the legal history approach. How was English law changed by the various verdicts reached in particular trials? Were the verdicts reached based on sound reading of the law, or was there deliberate misapplication of precedent in order to reach the outcome the government wanted to achieve? Our main aim here will be to establish some broader analytical and historical contexts for the case studies that follow, and to raise some of the larger questions that scholars need to think about when using the State Trials as a source. In the process, we shall also highlight certain key changes over time, which makes generalizing about the nature of state trials across the later-Stuart period treacherous. * * * 26

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Let us begin with some basics. What was a state trial? There is no official definition; the term is simply loosely descriptive. The Oxford English Dictionary offers ‘with reference to offences against the State’ by way of definition, and while it is perhaps significant that its first citation of ‘State-Tryals’ is from 1726 (Swift’s Gulliver’s Travels), shortly after Salmon’s first published edition, it cites usages of ‘state-traytors’, ‘state-offendours’, ‘State-crime’, and ‘State-criminal’ from the seventeenth century. Nor was there a specific court set aside to deal with offences that were designated crimes against the state. The trials reproduced in Cobbett/Howell relating to the later-Stuart period came before a variety of courts: King’s or Queen’s Bench (which sat in Westminster Hall), the Old Bailey, the London Guildhall, Hicks Hall in Middlesex, the High Court of Justiciary in Edinburgh, and even some provincial assizes and colonial courts. Some of them indeed came before parliament at Westminster – for example, the impeachments of Clarendon (1667), Danby (1679), and Sacheverell (1710), the act of attainder against Fenwick (1696), and various other proceedings (Shirley v. Fagg, 1675) – and occasionally even before the Canterbury Convocation (Whiston’s Case, 1711). What was deemed suitable for inclusion in the Cobbett/Howell collection, therefore, hardly provides a coherent and consistent definition of what was a state trial, albeit it is difficult to construct an alternative definition that is clear and stable. The vagueness over what might be construed as constituting a state trial is evidenced by some of the editorial choices made for determining what deserved to be included in the State Trials. As noted already, not all the cases in Cobbett/Howell were actual trials. Shaftesbury’s case, however, was at least a legal proceeding. The same cannot be said of the Savoy Conference of 1661, the proceedings relating to the birth of James II’s son in 1688, or the proceedings in 1718 concerning the king’s prerogative in the education of the royal family, though all were undoubtedly of considerable constitutional significance, and the 1718 proceedings did involve formal consultation of the judges. One might argue that the numerous trials of printers, mainly for libel, which appear in the volumes meet the criterion of offences against the state, especially given the salience of debates about the freedom of the press throughout the period when these collections were being prepared. Yet it is difficult to see, in the murder of Richard Noble in 1713, the trial of the attempted murderers of William Colepeper in 1704, or the duke of Norfolk’s divorce of 1709, what the crime against the state was. Why, we might wonder, did the editors decide to include some provincial trials of witches: surely their offence lay against the individuals whom they had allegedly harmed via witchcraft, not the state. By contrast, the pirates whose trials appear in the State Trials volumes were guilty of crimes against not the state but the human race: they were hostis humani generis, guilty of violating international law – albeit that, for reasons of state, the British crown did at times need to be seen to take action against its own subjects who had

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committed such crimes against international law.6 In fact, the various editors of the state trial compilations acknowledged that their volumes did not deal just with state trials. The author of the preface to volumes seven and eight of the second edition observed that although in the first edition they proposed ‘to take in no Trials, but what were really State-Trials’, in the second edition ‘a greater latitude was taken’, and ‘several Cases’ and ‘Proceedings at Law’ were included ‘which could not properly be called State-Trials’.7 The ambiguity concerning the nature of the trials included in State Trials was reflected in the full title of the compendium: from Salmon’s first edition of 1719 it read A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanours. The inconsistency regarding the criteria used for determining inclusion in the volumes is further highlighted when we consider what has been left out. For example, the proceedings (very unusually) in Convocation in 1711 against William Whiston for publishing views that undermined Christian doctrine are included, but not those in 1701 against Gilbert Burnet for similar offences, even though his were arguably all the more significant as he was a bishop.8 If Thomas Aikenhead’s trial for blasphemy in Edinburgh in 1696 was deemed worthy of inclusion, why was William Wollaston’s trial in London in 1729 for the same offence omitted?9 Most historians would regard parliamentary trials as the quintessential state trials, yet according to Francis Hargrave, the later eighteenth-century editor of State Trials, only 30 out of more than 100 such proceedings had found their way into the collection by 1781.10 Other cases of obvious constitutional significance are also missing. The trial of William Deale in 1687 for desertion is not included, even though the issue at stake was the imposition of martial law in peacetime, it resulted in the removal of Sir Francis Wythens from King’s Bench for his refusal to support the crown, and it attracted considerable contemporary attention. However, it is not clear whether the omission of this particular case was an editorial decision or simply the failure to find a copy of the proceedings.11 Douglas R. Burgess, ‘Piracy in the Public Sphere: The Henry Every Trials and the Battle for Meaning in Seventeenth-Century Print Culture’, Journal of British Studies, 48:4 (2009), 887–913. 7 ‘Preface to the Seventh and Eighth Volumes of the State Trials: Printed in the Year 1735’, in ST, I, xlii. 8 Martin Greig, ‘Heresy Hunt: Gilbert Burnet and the Convocation Controversy of 1701’, Historical Journal, 37 (1994), 569–92; idem, ‘Thought and Polemic of Gilbert Burnet, ca.1673–1705’ (Unpublished PhD Thesis, University of Cambridge, 1991), pp. 290–8. 9 Tryal of Thomas Woolston, B.D. … on Tuesday the Fourth of March, 1729. At the Court of King’s-Bench, in Guildhal, on Four Several Informations, for Writing, Printing, Publishing, Four Blasphemous Books… (London, 1729); William H. Trapnell, Thomas Woolston: Madman and Deist? (Bristol, 1994), pp. 58–72. 10 ‘Mr. Hargrave’s Preface to the Eleventh (or Supplemental) Volume of the Fourth Edition of the State Trials: Printed in the Year 1781’, in ST, I, li. 11 Mark Goldie, John Spurr, Tim Harris, Stephen Taylor, Mark Knights, and Jason 6

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We then need to ask: how reliable are the trial accounts we have? Can we trust the editors and compilers? The first editor, Thomas Salmon (1679–1767), had no formal legal training. He started out as a professional soldier and then briefly ran a provincial coffee house before moving to London and settling down as a travel writer and historian. He was a man of strong Tory views, and although he probably did not lead the collection of the materials for his volumes, his political views were evident in his selection from the materials presented to him. Salmon subsequently produced a New Abridgement and Critical Review of the State Trials in two volumes in 1737, where he offered his own remarks on many of the trials he reproduced – not as footnotes, but in the text itself. In his remarks about the trials of George Wakeman and others in 1679 relating to the Popish Plot, for instance, he accused Shaftesbury of alleging that both Charles II and James duke of York were conspiring ‘with the Papists … against the Protestant Religion, and the Liberties of the People’, so as ‘to incite a Rebellion’ against the king ‘as the Faction had done against K. Charles I’: ‘in reality’, Salmon concluded, here was ‘a Plot of the Faction [i.e. the English Whigs], and not of the Papists, to destroy the King and Government’.12 He made similar remarks about a supposed Whig conspiracy against king and government in his account of the trial of the Whig publicist Henry Care in 1680 for libel.13 Yet Salmon was an eighteenth-century Tory, and he did not always endorse seventeenth-century legal practices. For instance, he was critical of the fact that Stephen College was not allowed counsel at his trial for treason at Oxford in 1681, even though he recognized that was the legal practice at the time.14 Concerning the excessive fine of £100,000 imposed on Titus Oates in 1684 for slandering the duke of York, Salmon celebrated the censure of this practice by the Declaration (later Bill) of Rights of 1689: although Oates’s offence was ‘very great’, he remarked, ‘giving such Damages as the Defendant could never possibly pay, was in Effect to condemn him to perpetual Imprisonment, and render him incapable of getting his Bread’.15 Salmon’s successor, Sollom Emlyn (1697–1754), was a very different figure. The son of an Irish Unitarian, he had some training at Lincoln’s Inn and was called to the bar in 1721. While convinced that the English criminal law was far superior to that of neighbouring countries, he also pointed to the need for reform. Characteristically for someone of Whig and dissenting sympathies in the early eighteenth century, Emlyn denounced the ecclesiastical courts McElligott (eds), The Entring Book of Roger Morrice (7 vols, Woodbridge, 2007–9), IV, 19–21, 26–7, 33; Alfred Havinghurst, ‘James II and the Twelve Men in Scarlet’, Law Quarterly Review, 69 (1953), 522–46 at 534, where he calls it ‘the Beale [sic] Case’; John M. Collins, Martial Law and English Laws, c.1500–c.1700 (Cambridge, 2016), pp. 261–3. 12 Thomas Salmon, A New Abridgement and Critical Review of the State Trials (2 vols, Dublin, 1737), I, 375. 13 Ibid., I, 388. 14 Ibid., I, 429. 15 Ibid., I, 513.

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for their expense and oppressiveness. Less characteristically, he was appalled that adultery, a crime of the ‘first magnitude’ and ‘productive of much more mischievous consequences’ than theft, was not even a criminal offence.16 This view perhaps explains why he decided to include the duke of Norfolk’s divorce case in his edition of the State Trials. Later editors condemned Salmon for his political prejudices, particularly as reflected in his Critical Review, and none of the later editions reprinted the commentaries of the Critical Review.17 Emlyn’s volumes also attracted criticism: Francis Hargrave (1741–1821), editor of the fourth edition, highlighted passages that demonstrated ‘a degree of prejudice unworthy of so good a writer’.18 Yet, while later editors criticised the political and legal opinions of their predecessors, they were content to accept their textual work. Their revisions consisted mainly in incorporating additional material to accounts of trials published in earlier editions: the second edition, for example, added the dying speeches of those executed for capital crimes where they could be traced. Indeed, when publishing the 11th supplemental volume of the 4th edition in 1781, Hargrave felt it incumbent to emphasize that he had printed the trials ‘literally from the last of the former Editions’.19 Consequently, much of the text of Cobbett/ Howell replicates that of Salmon and Emlyn and perpetuates the editorial decisions that they made. The preface to Salmon’s first edition of 1719 – which was probably written by the printer, John Darby, who was a nonconformist20 – describes how the undertakers of this work ‘had recourse to every library public and private’ to uncover the various trial accounts, and offered ‘large encouragement to those who should contribute either Manuscripts or printed Trials’. Yet the compilers did not limit their activities to searching for accounts that had been printed or widely circulated in manuscript; particularly in the case of manuscript accounts, they tried whenever possible to contact those judges and counsel ‘concern’d in such Trials’ who were still alive, so that they could avoid any errors and ‘correct whatever was amiss’.21 The commitment to providing authoritative accounts was repeated by later editors.22 Some of the trial accounts were taken from ‘Mr. Emlyn’s Preface to the Second Edition of the State Trials, in Six Volumes Folio: Printed in the Year 1730’, in ST, I, xxiv–xxv, xxxiii–xxxiv. 17 ‘Mr. Hargrave’s Preface to the Fourth Edition of the State Trials, in Ten Volumes Folio: Printed in the Year 1775’, in ST, I, xlvii. 18 Ibid., xlviii. 19 ‘Mr. Hargrave’s Preface to the Eleventh (or Supplemental) Volume of the Fourth Edition of the State Trials: Printed in the Year 1781’, in ST, I, liii. 20 J. G. Muddiman, State Trials: The Need for a New and Revised Edition of ‘State Trials’ (London, 1930), p. 6. 21 ‘Mr. Salmon’s Preface to the First Edition of the State Trials, in Four Volumes Folio: Printed in the Year 1719’, in ST, I, xix. 22 ‘Mr. Emlyn’s Preface to the Second Edition of the State Trials, in Six Volumes Folio: Printed in the Year 1730’, in ST, I, xl. 16

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pamphlets which appeared at the time of the trial itself,23 although the eighteenth-century editors admitted that for certain trials all they could obtain were partial accounts.24 Other accounts were taken from retrospectively published pamphlets purportedly derived from contemporary manuscript accounts: the trial of the witches of Bury St. Edmunds in 1665, for example, was taken from a pamphlet published in 1682 which claimed to be based on an account that had ‘lain a long time in a private gentleman’s hands in the country’, it having been ‘given to him by the person that took it in the court for his own satisfaction.’25 Most of the trial accounts came from manuscripts, many of which were probably taken in shorthand by someone present in the court.26 Modern scholars who have addressed the question of the shorthand recording of trials have confirmed their general accuracy; indeed, Michael Mendle has suggested that the rise of trial prints, and thus also of the genre of printed state trials, was related to the development of shorthand and the rise in the number of its practitioners.27 Nevertheless, we do know that different shorthand accounts could give rise to competing versions of trials – as they did for the trials of Thomas Paine, Thomas Hardy, John Horne Tooke and John Thelwall in the 1790s.28 In short, we have to admit that we simply do not know the provenance of many of the accounts of the trials in the State Trials volumes. The author of the preface to the 7th and 8th volumes of the 2nd edition even admitted that he was ‘not at liberty to give the reasons why we believe them to be authentick’, going on, somewhat defensively,

‘Preface to the Seventh and Eighth Volumes of the State Trials: Printed in the Year 1735’, in ST, I, xlii. 24 ‘Preface to the Ninth and Tenth Volumes of the State Trials: Printed in the Year 1766’, in ST, I, xlv. For the early Stuart period, Mark Kishlansky has examined various manuscript versions of the trial of William Prynne in Star Chamber in 1634 and demonstrated that the version which appears in State Trials is seriously attenuated: Mark Kishlansky, ‘A Whipper Whipped: The Sedition of William Prynne’, Historical Journal, 56:3 (2013), 603–27 at 610. 25 ST, VI, col. 687. 26 For references to several trials ‘now first printed from Manuscript’, see the ‘Preface to the Ninth and Tenth Volumes of the State Trials: Printed in the Year 1766’, in ST, I , xlv. 27 Michael Mendle, ‘The “Prints” of the Trials: The Nexus of Politics, Religion, Law and Information in Late Seventeenth-Century England’, in Fear, Exclusion and Revolution: Roger Morrice and Britain in the 1680s, ed. Jason McElligott (Woodbridge, 2006), p. 127. This is in contrast to assessments of the recording of parliamentary debates, which were far from reliable, even in the early eighteenth century. See Mary Ransome, ‘The Reliability of Contemporary Reporting of the Debates of the House of Commons, 1727–1741’, BIHR, 19 (1942–3), 67–79; Stephen Taylor, ‘The Bishops at Westminster in the Mid-Eighteenth Century’, in A Pillar of the Constitution. The House of Lords in British Politics, 1640–1784, ed. Clyve Jones (London, 1989), p. 154, n. 91. 28 John Barrell and Jon Mee (eds), Trials for Treason and Sedition, 1792–1794 (9 vols, London, 2006–7), I, xxxvii–xxxviii. 23

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to argue that ‘the instrinsick marks they bear will be so evident and convincing … as to make any proofs on that head to be absolutely unnecessary’.29 When our trial accounts are based on prints, we have to ask why an account of a particular trial should have been printed in the first place. Who authorized the publication? Was it the government and, if so, to what end? Or was the publication sponsored by supporters of the accused? The account of the trial of John James, a Fifth Monarchy man, for high treason in 1661, we are told, was ‘Written by his Friends’.30 Similarly, the State Trials account of the trial of the Quakers William Penn and William Mead for tumultuous assembly (i.e., holding a Quaker meeting) in Gracechurch Street, London, in 1670, was taken from a contemporary pamphlet – The People’s Ancient and Just Liberties Asserted – probably co-authored by William Penn himself and his legal counsel Thomas Rudyard. According to Andrew Murphy, the pamphlet is less a trial transcript than ‘a morality play in dramatic form’.31 Brian Cowan has demonstrated that the official account of the impeachment of Henry Sacheverell by a Whig administration in 1710 was intended to support the Whig case. Jacob Tonson, granted the monopoly to print the proceedings by parliament, almost certainly printed an accurate account of the arguments made by the counsel on both sides. However, critics of the printed version of The Tryal of Dr Sacheverell, while not disputing what had been included, pointed to what had been left out – in particular, various speeches made by the Lords.32 The complexity of the questions that need to be asked about the printed texts is illustrated by the trial of the Seven Bishops. First published in pamphlet form in 1689, after the fall of James II, it was clearly designed to celebrate their role in the events leading up to the Revolution. Its preface hails the bishops as ‘those Heroick Prelates’ and ‘the Brightest Luminaries of the English Church’.33 But is the account of the trial distorted by the fact that, as its preface notes, it emanated from the defence team? And, if so, in what way? Even in the early months of 1689, the position of the Seven Bishops as popular heroes of the resistance to James II was becoming complicated by the fact that most of them were clearly uncomfortable with the ‘Preface to the Seventh and Eighth Volumes of the State Trials: Printed in the Year 1735’, in ST, I , xlii. 30 ST, VI, col. 67. The account is based on A Narrative of the Apprehending, Commitment, Arraignment, Condemnation, and Execution of John James (London, 1662). 31 ST, VI, col. 951; Andrew R. Murphy, ‘From Practice to Theory to Practice: William Penn from Prison to the Founding of Pennsylvania’, History of European Ideas, 43:4 (2017), 317–30 at 322; Andrew R. Murphy, ‘Trial Transcript as Political Theory: Principles and Performance in the Penn-Mead Case’, Political Theory, 41:6 (2013), 775–808. For the ascription of authorship to Penn and Rudyard, see Gary S. De Krey, ‘The First Restoration Crisis: Conscience and Coercion in London, 1667–1683’, Albion, 25:4 (1993), 565–80 at 572 and n. 26. 32 Brian Cowan (ed.), The State Trial of Doctor Henry Sacheverell (Parliamentary History: Texts and Studies, 6, 2012), pp. 9–16. 33 The Proceedings and Tryal in the Case of … William, Lord Archbishop of Canterbury (London, 1689, Wing S564). 29

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crowning of William and Mary. Other accounts of the trial that have survived, such as the one in Roger Morrice’s Entring Book, confirm the broad accuracy of the pamphlet version, but lack the detail to confirm that all the nuances of the arguments of the prosecution and defence were captured.34 Before concluding this section, let us make one further observation. The State Trials volumes were conceived as an exercise in British legal history. Given the Union between England and Scotland of 1707, from the very beginning the editors decided that it was essential to include Scottish trials, even though English and Scottish law and legal practice remained distinct. The author of the preface to Salmon’s first edition found much to praise about the Scottish legal system. ‘The Party accus’d has in Scotland all the fair play imaginable’, he observed: ‘he has what Counsel he thinks fit; he has a Copy of his Charge in his own language; his Counsel are permitted to inspect the very Depositions against him before he is brought on Trial; and they are so little in haste to dispatch a StatePrisoner, that the Trial often lasts some months.’ The author therefore hoped that English readers might learn from Scottish trials, so that ‘it may hereafter give birth to the introducing such Methods of Trial in each kingdom’.35 Similarly, Emlyn noted, in his preface to the second edition of 1730, that ‘since Scotland is now become a part of this Kingdom, it has been thought proper to insert some of the Proceedings in that country, in which (to do that Nation right) are discovered great learning and eloquence’.36 Curiously, however, many of the Scottish state trials were not added until the work of Cobbett and Howell, when, it seems, the records of the justiciary in Edinburgh were used for the first time. * * * Cowan has observed how the great political show trials of the Tudor and Stuart period were ‘an important site for the representation of power to a larger For contemporary accounts of the trial, see Goldie et al. (eds), Entring Book of Roger Morrice, IV, 281–5, 288–9, 290–3; Nottingham University Library [hereafter NUL], PwA 2176, James Rivers to [Bentinck], 2 July 1688; NUL, PwV 53/70, William Blathwayt to Sir Robert Southwell, 30 June 1688; National Library of Wales [hereafter NLW], Coedymaen papers, Group I, no. 49, notes on the trial by Sir William Williams; NLW, Plasgwyn Papers and Documents (1924 Deposit), no. 78, letter to Rev. John Jones, c. July 1688; Lilly Library, Indiana University, Albeville MSS, Robert Yard to marquis d’Albeville, 29 June 1688; Bodleian Library, MS Carte 130, fol. 317, Robert Price to duke of Beaufort, 30 June 1688; Narcissus Luttrell, A Brief Historical Relation of State Affairs (6 vols, Oxford, 1857), I, 446–8. For a two-page account published soon after the trial, see An Account of the Proceedings at Westminster-Hall (n.p., 1688, Wing A363). Luttrell purchased a copy of this account on 27 July 1688: see Stephen Parks, The Luttrell File: Narcissus Luttrell’s Dates on Contemporary Pamphlets 1678–1730 (New Haven, 1999), p. 5. 35 ‘Mr. Salmon’s Preface to the First Edition of the State Trials, in Four Volumes Folio: Printed in the Year 1719’, in ST, I, xx. 36 ‘Mr. Emlyn’s Preface to the Second Edition of the State Trials, in Six Volumes Folio: Printed in the Year 1730’, ST, I, xxii. 34

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public’.37 However, by the time period covered by this volume, the crown’s ability to wield its power through the courts and thereby represent its power to a larger public had already been significantly curtailed, due to the abolition of the prerogative courts of Star Chamber and High Commission in 1641. Star Chamber, in particular, had been designed to be an instrument of terror, as contemporary treatises explicitly emphasized: the heavy fines it imposed were not expected to be payable, but rather were levied ‘in terrorum populi’;38 the punishments it meted out, such as brandings and mutilations, were designed to be ‘sharpe’, so that people would ‘the more feare and forbeare to offend’, ‘the dread of the Court’ being ‘a great mainteyner of the quiet government’.39 The later-Stuart monarchy would, of course, still use the common law courts to project its own power, to inspire awe in its subjects, and to demonstrate to people the vindictive justice that was likely to befall them should they engage in subversive activity against the state: one thinks of the trials of the regicides in 1661, of Algernon Sidney and William Lord Russell and other Whig radicals following the revelations of the Rye House Plot in 1683, or of those accused of Jacobite conspiracy in the decades following the Revolution of 1688–89, among numerous other examples. Yet the common law courts could also be sites where those in opposition to the government might pursue their own agendas. Take the infamous Popish Plot trials of 1678–81, for instance. The reports of the various trials relating to the Popish Plot take up three volumes of Cobbett/Howell and over two thousand pages of double-columned print: some twenty-two trials for treason and eleven trials for perjury, subornation of perjury, libel and other misdemeanours (albeit that some of these were subsequent attempts by the government to rectify abuses of the law in earlier proceedings). Yet the Popish Plot trials are hardly examples of the government flexing its muscles. It is true that the proceedings were initiated in the name of the crown, but the crown was essentially being compelled to take action by the parliamentary opposition to Charles II. Some fourteen men were executed for treason as a result of the Popish Plot trials: with the debatable exception of Edward Coleman, all of them were innocent, and the government knew they were innocent; many are now regarded by the Catholic Church as martyrs for their faith.40 When the English Jesuit William Ireland was condemned to death for his supposed involvement in the Popish Plot on 17 December 1678, the government twice tried to reprieve him, but Ireland was nevertheless eventually executed on 24 January 1679; it was said that the government feared an insurrection if the execution were postponed any

Brian Cowan, ‘The Spin Doctor: Sacheverell’s Trial Speech and Political Performance in the Divided Society’, Parliamentary History, 31:1 (2012), 28–46 at 31. 38 TCD, MS 722, fol. 211. 39 TCD, MS 704, fol. 79v. 40 John Pollock, The Popish Plot: A Study in the History of the Reign of Charles II, new edn (Cambridge, 1944), p. 265; John Kenyon, The Popish Plot (Harmondsworth, 1974), p. 86. 37

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longer.41 (Ireland was beatified in 1929.) In a sense, of course, such treason trials – and subsequent public executions – still provided occasions for the government’s power to be represented to a larger public. Yet the Popish Plot trials also point to the weakness of the government at this time, to the fact that it had no viable option but to bow to political pressure. They illustrate how political actors outside the government could, on occasion, coerce the government into using its power in a way that it did not want to do. Parliamentary impeachments reveal even more starkly the extent to which state trials could be outside the control of the government. The process of impeachment, after all, had originated as a means whereby parliament could hold ministers of the crown accountable, although there might be occasions when the crown would welcome a parliamentary impeachment, either to divert blame for an unsuccessful policy or to enable the crown to move in a different direction. Judicial proceedings in parliament against leading ministers, as in the cases of Clarendon and Danby, were evidently factional manoeuvres to secure the disgrace of opponents and their removal from political life. The threat of execution was used in terrorem, and fallen ministers were probably safe unless the king turned decisively against them. Significantly, Clarendon’s flight into exile was prompted by the prospect of a deal between Charles II and the parliamentary opposition, which would have resulted in the prorogation of parliament and the transfer of his trial into the court of the lord steward before a hand-picked jury.42 In 1681 the Whigs in the House of Commons even attempted to use impeachment as a tactic to prevent the prosecution of Edward Fitzharris, one of the alleged witnesses to the Popish Plot, in the common law courts.43 How the trial system worked in practice, and thus whose power was ultimately being represented to the public, depended on who had control over the judicial process, and how effective that control was. Once a case had come to trial, the key decision makers within the English common-law system were the judges and the jurors. Both Charles II and James II appointed judges at royal pleasure (bene placito), rather than at good behaviour (quamdiu se bene gesserint), which afforded the crown the option of displacing judges who gave unfavourable verdicts and even of replacing judges in advance of a particular trial in order to secure a favourable verdict. Ahead of the vital test case of Godden v Hales of 1686 to determine whether the king had the right to issue dispensations from the Test Act so as to allow Catholics to hold commissions in the army, James interviewed the twelve judges to sound out their opinions. He replaced six and ended up securing a decision of eleven to one in his favour.44 The only Pollock, Popish Plot, p. 332. Clayton Roberts, The Growth of Responsible Government in Stuart England (Cambridge, 1966), pp. 168–9. 43 ST, VIII, cols. 223–44. 44 Tim Harris, Revolution: The Great Crisis of the British Monarchy, 1685–1720 (London, 2006), pp. 192–4. 41

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recourse left to opponents of the crown who disapproved of the way certain judges were applying the law was impeachment, although in practice this was far from easy. The Whigs unsuccessfully tried to impeach two lord chief justices (North, Scroggs) and two judges of the King’s Bench (Jones, Weston) during the Exclusion Crisis.45 At the time of the Revolution of 1688–89, the Whigs argued that the man who gave the ruling in Godden v Hales, Lord Chief Justice Herbert, should be impeached, although Herbert had fled to France with James II.46 It was the grand juries who decided whether a case should go to trial in the first place, and trial juries who determined innocence or guilt. Jury panels were drawn up by the sheriffs, and the crown appointed sheriffs for the counties. However, the corporation of London, which had the right to hold its own sessions, elected its own sheriffs. London experienced a hotly contested shrieval election in the summer of 1682, with the Tories eventually succeeding in securing victory over the Whig contenders.47 The stakes were high. As we have noted, Whig sheriffs in 1681 had been able to procure a grand jury that would not send Shaftesbury’s treason case to trial. With Tory sheriffs now in place there was a strong likelihood that Shaftesbury would be brought to trial and convicted. The loss of the shrievalty forced the earl to go into hiding and probably prompted John Locke to write his Second Treatise advocating resistance to the tyranny of Charles II’s regime.48 Viewed from a longer-term perspective, the government’s control over state trials was probably more contested in the period between the Restoration and the Revolution of 1688–89 than at any other time, highlighting the extent to which the constitutional conflicts of the period were fought out in the courts.49 Certainly, state control over the theatre of justice appears more assured in the decades after the Revolution of 1688–89. In some respects, this development may seem surprising, as the government’s control over the judicial process had been weakened. From 1689 all judges’ commissions were for good behaviour: although not formally required by law until the Act of Settlement of 1701, which in turn did not come into effect until the Hanoverian succession in 1714, the reform had been asked for in the Heads of Grievances of 1689 and William III decided to honour the request.50 From 1689 the judiciary was no longer Roberts, Growth of Responsible Government, pp. 235–7. William Cobbett, Cobbett’s Parliamentary History of England (36 vols, London, 1806–20), V, col. 337. 47 Gary S. De Krey, London and the Restoration 1659–1683 (Cambridge, 2005), pp. 254–61; Harris, Restoration, pp. 295–6. 48 John Marshall, John Locke: Resistance, Religion, and Responsibility (Cambridge, 1994), p. 243. 49 Jonathan Scott ‘England’s Troubles: Exhuming the Popish Plot’, in The Politics of Religion in Restoration England, ed. Tim Harris, Paul Seaward and Mark Goldie (Oxford, 1990), p. 120. 50 W. A. Speck, Reluctant Revolutionaries: Englishmen and the Revolution of 1688 (Oxford, 1988), pp. 164–5. 45 46

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controlled by the crown in quite the same way as it had been before. This also meant that judicial bullying of juries, in the manner for which Jeffreys was notorious while Lord Chief Justice, was less acceptable.51 Paradoxically, however, greater judicial independence, by creating more confidence that the king was ruling according to the law rather than subverting it, may have made state trials more effective demonstrations of state power. Certainly, the succession of trials of Jacobite rebels and conspirators, in Scotland as well as in England, between the 1690s and the early years of George I’s reign – and, perhaps most notably, those following the assassination plot of 1696, which dominate volume thirteen of the Cobbett/Howell edition – were effective demonstrations of the power and resilience of the post-revolutionary regime. The changing context is revealed clearly if we consider parliamentary trials. Impeachment continued to be a weapon deployed in factional and now party disputes against fallen ministers. Thomas, Earl Coningsby, one of William III’s leading managers in the Commons, was impeached in 1693; the Whig leaders – Portland, Somers, Orford and Halifax – by the Tories in 1701; Harley, Strafford, Bolingbroke and Ormonde by the Whigs in 1715. All of these trials were ultimately abandoned, with the exception of those of Bolingbroke and Ormonde, who, aware that their potentially traitorous correspondence with the Pretender might be uncovered, fled into exile and were then attainted. From this time impeachment fell into disuse as a weapon in domestic political conflict, one of the signs identified by J. H. Plumb of the ‘growth of political stability’ in early eighteenth-century England. The earl of Macclesfield’s impeachment in 1725, paradoxically both the last trial of this kind and one of the very few successful ones, should be viewed slightly differently. While political faction was almost certainly a contributory factor, Macclesfield’s disgrace and the decision to put him on trial was driven by his flagrant abuse of the sale of masterships in chancery and public indignation at the scale of the corruption.52 Three parliamentary trials in particular stand out for what they reveal about the power and confidence of the post-revolutionary state: the bill of attainder against Sir John Fenwick in 1696, the impeachment of Henry Sacheverell in 1710, and the bill of pains and penalties against John Plunkett, James Kelly and Francis Atterbury in 1723.53 In all of these cases the decision to proceed in parliament was the consequence of an awareness that the evidence was inadequate for successful prosecution in the courts. Few had any doubt that Fenwick and Atterbury had been implicated in Jacobite conspiracy, but in neither case could treason be proved by two credible witnesses. Similarly, in 1710 the For an explicit statement of this view from a Tory of Queen Anne’s reign, see Cowan (ed.), State Trial of Doctor Sacheverell, pp. 205–6. 52 The revival of impeachment by the Whigs in the trial of Warren Hastings in the 1780s was clearly a partisan attempt to use parliamentary process to provide a platform for their attack on the ministry and corruption in the government of India: see Peter Marshall, The Impeachment of Warren Hastings (Oxford, 1965). 53 ST, XIII, cols. 537–756; XV, cols. 1–522; XVI, cols. 324–696. 51

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government’s legal advisors were not convinced that Sacheverell’s sermon provided evidence of seditious libel clear enough to secure a guilty verdict from a jury. Using parliamentary legislation to compensate for the weakness of the evidence – and it is worth remembering that Sacheverell was found guilty: the case was lost not in the Lords, but in the court of public opinion – was legally dubious, as some contemporaries pointed out. The growing identity between parliament and the executive after the Revolution of 1688–89 gave ministers the confidence to exploit the role of parliament as a court and the unlimited scope of parliamentary statute, underpinned by the sovereignty of the crown in parliament, in order to circumvent the safeguards of legal process. In the ‘first age of party’ it is worth reflecting that it was Whig governments, supported by Whig majorities in parliament, that adopted such tactics to undermine the rights and liberties of some individuals. For all the fears of the country opposition that Charles II and James II were bent on turning parliament into a rubber stamp, it is difficult to imagine their ministers attempting to use that institution in the same way. * * * Let us now consider state trials as public or media events. Criminal justice in England was by its nature public. The early editors of the State Trials saw this as one of the virtues of the English legal system, compared to that of England’s ‘neighbours’ on the continent: public proceedings and executions prevented the state from ‘secretly destroying innocent men’.54 Hearings could sometimes take place in front of huge crowds. Sacheverell’s trial in 1710 had an audience of perhaps 2,000 spectators.55 At William Lord Russell’s trial for treason in 1683 there were so many people inside the Old Bailey that when Russell’s counsel was called to argue a point of law he could find no place to sit.56 And, while the theatrical dimension of justice has often been seen as supporting its retributive and deterrent purposes, it also offered the potential for protest and dissent. Crowds made their feelings known. When the Seven Bishops were tried in 1688 for petitioning against the king’s Declaration of Indulgence, throngs of people gathered both inside Westminster Hall and on the streets outside. The bishop of Chester – one of the few bishops who supported James’s indulgence, and a rather corpulent gentleman – was heckled and jeered when he entered the courtroom, being met with cries of ‘make room’ for this ‘Grasping Woulf in sheep’s attire’, since ‘he had the Pope in his belly’. James’s secretary of state, the earl of Sunderland, was kicked and punched. The presence of peers on the ‘Mr. Emlyn’s Preface to the Second Edition of the State Trials, in Six Volumes Folio: Printed in the Year 1730’, in ST, I, xxv. 55 Geoffrey Holmes, The Trial of Doctor Sacheverell (London, 1973), pp. 125–6; Cowan, ‘The Spin Doctor’, p. 28. 56 Lois G. Schwoerer, ‘The Trial of William Lord Russell (1683): Judicial Murder?’, Journal of Legal History, 9:2 (1988), 142–68 at 150. 54

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bench, crowding out the judges, was a reminder to them that parliament was due to meet in the autumn.57 Public justice also facilitated public discussion of the merits of cases, and some state trials generated intense debate. The case of Godden v Hales, the collusive action intended to secure legal approval of James II’s assertion of his power to dispense individuals from the provisions of the Test Act, was significant and controversial. The weak arguments put forward by the plaintiff’s counsel in court, however, were supplemented by vigorous discussion ‘out-of-doors’ of arguments against the dispensing power. But this was not a media debate; censorship ensured that the dispensing power was not challenged in the press. Burnet is frustratingly silent about the fora in which this discussion took place, but Sir John Reresby in York felt well enough informed to describe the verdict as ‘very surprizeing’. Years later, the earl of Ailesbury noted his apprehension at the verdict, writing in his memoirs that ‘My private sentiments at that time, and the same to this hour were thus: if the King can dispense with the laws at his pleasure, Westminster Hall may be shut up, and the Statute Book burnt’.58 State trials, then, were public events. And sometimes they were given extra publicity by the attention afforded them in media. Yet not all state trials were media events; some attracted more media attention than others. How closely trials were followed in the media could sometimes be a reflection of the degree of public interest in a given trial. Yet the degree of media attention afforded to state trials was also crucially related to the changing nature and openness of the media across the later-Stuart period. The Licensing Act of 1662 reintroduced a form of pre-publication censorship, and although it was allowed to lapse in 1679, it was renewed in 1685 and was not to lapse for good until 1695. Even in periods when the Licensing Act was not operative the government could still use the law of seditious libel to clamp down on the freedom of the press, as it did particularly effectively from late 1682 to 1685.59 So the potential for state BL, Add. MSS 34,510, fol. 138; BL, Add. MSS 34,512, fol. 89; Goldie et al. (eds), Entring Book of Roger Morrice, IV, 293. Even with the notorious Star Chamber show trials of the 1630s, the sentencing stage at least was public. Kishlansky, in his recent work on the Prynne Star Chamber case of 1634, notes how Prynne’s judges, at his sentencing, seem to have played to the gallery: Kishlansky, ‘Whipper Whipped’, p. 623. 58 Gilbert Burnet, Bishop Burnet’s History of His Own Time, ed. M. J. Routh (2nd edn, 6 vols, Oxford, 1833), III, 97–100; Andrew Browning (ed.), Memoirs of Sir John Reresby, 2nd edn, ed. Mary K. Geiter and W. A. Speck (London, 1991), p. 429; Memoirs of Thomas, Earl of Ailesbury, Written by Himself, ed. W. E. Buckley (2 vols, Westminster, 1890), I, 151. For an anonymous manuscript pamphlet attacking the Godden v Hales ruling which appears to date from before the dissolution in July 1687 of the Parliament of 1685, see Magdalen College Archives, Oxford, MS 422 (Account of the Proceedings of the Lords Commissioners against Dr. Hough), p. 14. 59 Lois G. Schwoerer, ‘Liberty of the Press and Public Opinion: 1660–1695’, in Liberty Secured? Britain Before and After 1688, ed. J. R. Jones (Stanford, 1992), pp. 199–230; Harris, Restoration, pp. 418–19; Philip Hamburger, ‘The Development of Seditious Libel and the Control of the Press’, Stanford Law Review, 37 (1985), 661–765. For some 57

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trials in the period 1662–78, and even in the years 1683–88, to become events in the print media was less than it was during the Exclusion Crisis or in the years after 1695. There was little media attention paid to the trial of Peter Messenger and others for high treason in 1668. Messenger and his associates had been involved in several days of rioting in the capital against brothels, calling in addition for ‘Reformation and Reducement’, and ‘Liberty of Conscience’, and threatening to pull down Whitehall, which they seemingly regarded as the biggest bawdy house of the lot. The government had the ringleaders tried for high treason because it feared – wrongly, it seems – that the riots had been instigated by ex-Cromwellian soldiers. Securing a treason conviction involved redefining what constituted treason at common law. The government was thus making a powerful statement to the public, and the executions of those convicted were public. The trial was afforded some coverage by the London Gazette, the official government newspaper, but there were no other newspapers at the time. Some satires were published against well-known London bawds and the great court ‘whore’, the duchess of Castlemaine, although these do not say much at all about the riots.60 The Popish Plot trials, by contrast, attracted a lot of media attention, because there was a freer press at the time and because the parliamentary opposition sought to use them to inspire a nationwide campaign to exclude the duke of York from the succession. For the period after the Revolution of 1688–89, it was more common for state trials to become media events, and indeed some cases appear to have been included in the State Trials precisely because they had been the focus of media attention. Robert Fielding’s trial for bigamy in 1706, for example, was sensational, not least because one of his wives was the duchess of Cleveland, the former mistress of Charles II. Found guilty, he escaped execution, but thereafter became a minor celebrity. His life was satirized in the ‘History of Orlando the Fair’ published in The Tatler in 1709.61 Richard Noble’s trial for murder at the Surrey assizes in 1713 was also a cause célèbre, thanks to large elements of romance and drama. The editors from Emlyn onwards revealed their awareness of the significance of many of the trials as media events by including the speeches and behaviour on the scaffold of those condemned to death. But again, it is impossible to identify a consistent set of editorial criteria; similar trials that attracted media attention were omitted. The 1725 trial of the notorious ‘thief-taker discussion of the continuing use of seditious libel after the lapse of the Licensing Act in 1695, see Alex W. Barber, ‘Censorship, Salvation and the Preaching of Francis Higgins: a Reconsideration of High Church Politics and Theology in the Early Eighteenth Century’, in Parliament, Politics and Policy in Britain and Ireland, c.1680–1832: Essays in Honour of David Hayton, ed. Clyve Jones and James Kelly (Parliamentary History, 33:1 (2014)), 114–39. 60 Tim Harris, ‘The Bawdy House Riots of 1668’, Historical Journal, 29:3 (1986), 537–56. 61 Donald F. Bond (ed.), The Tatler (3 vols, Oxford, 1987), I, 352–6, 360–1.

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general’ Jonathan Wild, who was one of the greatest criminal celebrities of the first half of the eighteenth century, and whose trial was the subject of extensive media comment, was not included. 62 We also need to address the question of what the government might be able to do to control how a trial was represented in the media, and how the attempts by those in power to impose their own particular spin on events might be contested. There has been interesting work done in this respect regarding the most infamous state trial of the seventeenth century, that of Charles I in 1649. The regicides wanted the trial reported in the media, and so they hired journalists to cover it. However, they very quickly lost control of the message. Charles I was also able to influence how he could be portrayed in the media by the way he chose to represent himself in court.63 It seems that William, Lord Russell was emulating Charles I during his trial for involvement in the so-called Rye House Plot of 1683. Russell’s arguments and behaviour in court were clearly intended to present him as a political martyr, unjustly sentenced to death by an arbitrary regime, a message that was reinforced by his dying speech. Russell and his friends were successful enough in getting their message out through the media that the privy council ordered an investigation into the part played by Gilbert Burnet and John Tillotson, who had both visited Russell in prison, in stoking the oppositional message. At the same time the government launched an intensive propaganda campaign, clearly designed to exploit the treason of Russell and the other plotters to undermine the reputation of the Whig party. The centrepiece of this was a thanksgiving day, ordered to be observed in every church and chapel across the country: a special liturgy was published, the king’s declaration giving a narrative of the plot was read during divine service, and ministers were expected to preach loyal sermons, many of which were subsequently published. Halifax clearly believed that the government had the better of the propaganda battle; he was convinced that the aftermath of the plot would have been an ideal moment to hold elections that would return a loyal parliament. Russell’s version, however, was vindicated by the Revolution, becoming a key part of the Whig interpretation of the reign of Charles II.64 Select Trials in the Sessions-House in the Old-Bailey (4 vols, London, 1742), II, 212–88; An Authentick Narrative of the Life and Actions of Jonathan Wild (London, 1725); The Life of Jonathan Wild, from his Birth to his Death (London, 1725); The True and Genuine Account of the Life and Actions of the Late Jonathan Wild (London, 1726). 63 Jason Peacey, ‘Reporting a Revolution: A Failed Propaganda Campaign’, in The Regicides and the Execution of Charles I, ed. Jason Peacey (Basingstoke, 2001), 160–80. 64 Lois G. Schwoerer, ‘William Lord Russell: The Making of a Martyr, 1683–1983’, Journal of British Studies, 24 (1985), 41–71; Lois G. Schwoerer, Lady Rachel Russell: ‘One of the Best of Women’ (Baltimore, 1988); Melinda Zook, ‘The Bloody Assizes: Whig Martyrdom and Memory after the Glorious Revolution’, Albion, 27 (1995), 373–96; Natalie Mears, Alasdair Raffe, Stephen Taylor and Philip Williamson (eds), National Prayers: Special Worship since the Reformation. Volume 1: Special Prayers, Fasts and Thanksgivings in the British Isles, 1533–1688 (Church of England Record Society, 20, Woodbridge, 2013), pp. 727–38. 62

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We further need to reflect on what sort of media we should be looking at. Printed items, such as pamphlets and newspapers, probably had the widest circulation. Manuscript newsletters also had a wide circulation and offered a greater variety of news than was available in the London Gazette.65 Then there were sermons, delivered publicly in a place of worship, albeit that they have typically come down to us in print.66 Political poems and songs, which though often printed were intended to be recited or sung aloud, also touch on some of the famous state trials of the period.67 Moreover, the balance between various types of media changed over time. Manuscript newsletters remained an important part of the economy of news right through to 1715, but the amount and range of printed news increased significantly, especially after 1695, when comment periodicals joined an increasing number of newspapers. In short, the ways in which state trials could be media events changed considerably over the later-Stuart period. There were variations from case to case, but there were also longer-term trends which meant that the media world of Queen Anne’s reign was very different from that of the early years of Charles II’s reign.68 Let us examine briefly the question of public reactions to state trials. We have already mentioned how crowds could try to exert their influence on trials, intimidating witnesses in court, or demonstrating in the streets outside. Crowds, we would suggest, were themselves media events. The people in the crowd wanted their voices heard, and they were using the only medium available to them, that of public assembly. Yet they also wanted to be in the media. By taking to the streets, crowds were creating a newsworthy event, so that their activities might be reported in the press. Those who organized the Whig pope-burning rallies in London on 17 November during the years of the Exclusion Crisis, for instance, wanted those in the provinces to know about them. They were seeking to demonstrate to a wider public why they thought there was a need to exclude the Rachael Scarborough King, ‘The Manuscript Newsletter and the Rise of the Newspaper, 1665–1715’, Huntington Library Quarterly, 79:3 (2016), 411–37. 66 Mark Goldie, ‘The Damning of King Monmouth: Pulpit Toryism in the Reign of James II’, in The Final Crisis of the Stuart Monarchy. The Revolutions of 1688–9 in their British, Atlantic and European Contexts, ed. Tim Harris and Stephen Taylor (Woodbridge, 2013), pp. 33–55. 67 See, for instance, a manuscript poem about the seven bishops that circulated in manuscript in September 1688, which is preserved in Bodleian Library, MS Rawl. letters 75, fol. 45v, Simon Priest to Joshua Barnes, 13 Sept. 1688. Others are printed in George de Forest Lord et al. (eds), Poems on Affairs of State. Augustan Satirical Verse, 1660–1714 (7 vols, New Haven, 1963–70). 68 Peter Lake and Steve Pincus, ‘Rethinking the Public Sphere in Early Modern England’, Journal of British Studies, 45:2 (2006), 270–292; Tim Harris, ‘Publics and Participation in the Three Kingdoms: Was There Such a Thing as “British Public Opinion” in the Seventeenth Century?’ Journal of British Studies, 56:4 (2017), 731–753; Alex W. Barber, ‘“It is Not Easy What to Say of our Condition, Much Less to Write it”: The Continued Importance of Scribal News in the Early Eighteenth Century’, Parliamentary History, 32:2 (2013), 293–316. 65

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Catholic duke of York from the succession, and they wanted to make it clear to people across Britain that there was extensive public support for his exclusion. To do this, they needed media coverage. Fully aware that this was indeed the Whigs’ aim, the government newspaper, the London Gazette, decided not to report on the pope-burning procession of November 1679: further publicizing what had taken place would be playing into the Whigs’ hands. Nevertheless, the Whigs managed to publish their own accounts. One copper-plate engraving of a London pope-burning made it onto the walls of an Edinburgh tavern in November 1680 and inspired the students of the University to stage their own copy-cat pope-burning on Christmas day that year.69 Three decades later, engravings of Anglican ‘mobs’ demolishing dissenting meeting houses played a significant part in ensuring that the issue of toleration, raised by Sacheverell’s trial, resonated across the country during the election campaigns that summer.70 There are numerous examples of crowds, of the people out-of-doors, letting their opinions be known about the verdicts reached in particular state trials. Sometimes they celebrated the verdict, as with the release of Shaftesbury by an ignoramus jury in 1681, or the acquittal of the Seven Bishops in 1688. Sometimes they demonstrated their disapproval of a verdict. On occasion, they might even seek to subvert the decision of the court. This was most readily done when those ‘out-of-doors’ were invited to participate, in some way, in inflicting the punishment – for example, when the convicted was condemned to stand in the pillory. When the Whig publisher Benjamin Harris was condemned to stand in the pillory in February 1680, he was treated with respect rather than abuse by the crowd; no one dared throw anything, and one individual who spoke against him ‘was in danger of being made the subject of the multitude’s rage’.71 The Whig cleric Samuel Johnson similarly received mild treatment when he was pilloried in 1686 for publishing a tract condemning James II’s intrusion of Catholics into the army in violation of the Test Act: Morrice notes how Johnson ‘spoak much to the people without passion or anger, and very few Eggs etc were thrown at him’.72 In short, the public, or even various publics, could seek to influence how the outcomes of particular state trials were perceived, and thus affect the type of public statement that was being made by a state trial. This is another reminder that the government was not always in control of the message. There were, indeed, multifarious ways in which the engagement of a wider public could be exploited. In many respects the revelation of the assassination plot in 1696 was a godsend for the government, not least in enabling it to secure the recognition of William as ‘rightful and lawful’ king. There is no evidence Harris, Restoration, pp. 187–8. John Miller, Religion in the Popular Prints 1600–1832 (Cambridge, 1986), pp. 152–3; Holmes, Trial of Doctor Sacheverell, pp. 156–76, 233–55. 71 CSPD, 1679–80, p. 397; Lois G. Schwoerer, The Ingenious Mr. Henry Care, Restoration Publicist (Baltimore, 2001), p. 105. 72 Goldie et al. (eds), Entring Book of Roger Morrice, III, 306. 69 70

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of any significant public support for Jeremy Collier and two other non-juring priests, when they granted absolution on the scaffold to Sir John Friend and Sir William Parkyns in such a way as to imply that their part in the plot was not a sin; Collier himself was outlawed and his colleagues imprisoned. Even so, the ensuing press controversy, including two pamphlets by Collier, forced a public response from fourteen bishops and gave a boost to the Jacobite cause by recasting Friend and Parkyns as men of deep religious principle rather than simple traitors. A media event had been constructed around the execution, but its intention was less to elicit public support for the condemned than to offer a compelling narrative of their actions to those who shared their outlook.73 All this being said, it should nevertheless be emphasized that across our period as a whole relatively few state trials became full-scale media events, in which the meanings of the trial were contested and the proceedings re-interpreted. The media attention afforded to Sacheverell’s trial, rather than being indicative of broader trends, was in fact atypical, which of course is precisely why it has been of such interest to historians. * * * The trials also focused the attention of the reading public on important legal questions, both in their own time and subsequently. The preface to Salmon’s first edition of 1719 saw the principal task of the compilation as being to shed light on the operation of the law. ‘As the Common Law is nothing else but immemorial Custom, and the custom and methods of Trial, and bringing offenders to Punishment, is no inconsiderable branch of that law’, its author wrote, then it was necessary ‘thorowly to methodize or digest this sort of Learning’.74 The point was amplified in the preface to the second edition of 1730, where the author predicted that another use of the work would be not only ‘the doing justice to those Judges … who … behav’d impartially on the Bench’, but also allowing readers to learn when judges had ‘deliver’d Opinions in direct contradiction to the known fundamental Laws of the nation, and as far as in them lay, sacrificed the Constitution and Liberties of the kingdom to the pride and ambition of an arbitrary monarch’.75 Jeremy Collier, The Case of the Two Absolvers that were Tryed at the Kings-Bench-Bar at Westminster on Thursday the 2d of July 1696 for giving Absolution at the Place of Execution to Sir John Friend and Sir William Parkens (London, 1696); idem, A Defence of the Absolution given to Sr. William Perkins, at the Place of Execution, April the 3d. 1696 (London, 1696); idem, The Great Question in the Case of the Absolution of Sir John Friend and Sir William Parkens (London, 1696); A Declaration of the Sense of the Archbishops and Bishops now in and about London, upon the Occasion of their Attendance in Parliament; Concerning the Irregular and Scandalous Preceedings of Certain Clergy-men at the Execution of Sir John Freind and Sir William Parkins (London, 1696). 74 ‘Mr. Salmon’s Preface to the First Edition of the State Trials, in Four Volumes Folio: Printed in the Year 1719’, ST, I, xix. 75 ‘Mr. Emlyn’s Preface to the Second Edition of the State Trials, in Six Volumes Folio: 73

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Scholars working on state trials from the Restoration period have often pointed to the abuses of the law that occurred under Charles II and James II. Sir John Pollock in 1903 compared the Popish Plot trials to witchcraft trials, where credence was given to flimsy evidence and people believed what to us would appear ridiculous, though he tended to take the line that the judges did an honest job given the system of law at the time.76 J. P. Kenyon in 1972 stridently condemned the bias of the judges in the Popish Plot trials.77 Indeed, there has been a tendency for some historians to set themselves up as judge and jury of the English legal system at this time. Much of the scholarship on the Revolution of 1688–89, for instance, has focused on whether James II really did violate the rule of law, as the framers of the Declaration of Rights of 1689 claimed, or whether he technically always acted within the law.78 These are important questions to ask, certainly, if we are interested in understanding the development of the English constitution. Having said that, everyone in seventeenth-century England – king, parliament, lawyers, the political classes, the general public – would have purported to believe in the rule of law. Even the most outspoken defenders of royal absolutism, who were adamant that the king was above the law, nevertheless believed that the king was supposed to rule according to law. What concerned people in the seventeenth century was not so much whether or not the Stuart monarchs were ruling according to law, but how the law was allowing the Stuarts to rule: whether they were misapplying the law, or getting the judges or the law courts to confirm that they could legally do things which critics of the Stuarts thought the law did not sanction. As Howard Nenner once put it, even royal tyranny was conducted by colour of law.79 Besides, the English legal system was a common-law system, based on precedent. Precedents have to be interpreted, and there is always the potential for them to be interpreted in such a way as to sanction particular royal actions that critics of the crown might deem a stretch of the law. There was also the possibility for new precedents to develop in favour of the accused, as in the trial of the Seven Bishops, where the judges abdicated their customary role of ruling on whether a statement was libellous or not, thereby allowing the jury to make this ruling. One of the key battles in this period was therefore over how the law was applied. Critics of the crown could sometimes use the law for their own purposes. But justice in England was royal justice, and the system was tipped in favour of the crown. Printed in the Year 1730’, ST, I, xxiii. 76 Pollock, Popish Plot, pp. xi–xii, 314–16. 77 John Kenyon, The Popish Plot (London, 2000), p. 146. 78 Lois G. Schwoerer, The Declaration of Rights, 1689 (Baltimore, 1981); Speck, Reluctant Revolutionaries, ch. 7; Richard S. Kay, The Glorious Revolution and the Continuity of Law (Washington, D.C., 2014). 79 Howard Nenner, By Color of Law: Legal Culture and Constitutional Politics in England, 1660–1689 (Chicago, 1977).

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A belief in the rule of law meant that the law had to have its own logic. There could be times when the government was trying to use the legal system to strike at its critics when the law might rebound to the detriment of someone who was actually fully behind the government’s agenda. For example, on 30 May 1685 the Popish Plot informer Thomas Dangerfield was tried for seditious libel for his earlier Narrative of the Popish Plot, found guilty, and sentenced to be whipped, first from Aldgate to Newgate, and then two days later from Newgate to Tyburn: his crime was not a capital offence, and whipping was the most severe form of punishment that could be imposed, but it was hoped that the whipping might prove fatal. However, Dangerfield survived both ordeals, and on his way back from Tyburn by coach, he got involved in an altercation with Robert Francis, a Tory barrister. Francis struck Dangerfield on the face with his cane, which pierced Dangerfield’s brain and killed him. Even though the government had wanted Dangerfield dead, on James II’s order Francis was tried for murder. The evidence was clear cut, so Francis was convicted and executed. The law had to run its course.80 Nevertheless, there were some disturbing developments under Charles II and James II. A few examples must suffice. As noted above, there was a redefinition of the law of treason in 1668 to deal with the ringleaders of the riot against bawdy houses. The judges determined that, because the rioters had claimed their intention was to pull down all bawdy houses in the London area, they were set upon a general reformation. It would have been different if they been concerned about specific bawdy houses; however, only the king could carry out a general reformation, and the rioters were therefore seizing the crown’s authority, which was tantamount to levying war on the king.81 In his Critical Review, Salmon remarked that ‘Ever since’ this trial ‘the assembling in a tumultuous Manner, with Arms, or Weapons of any kind, in order to reform the State, to procure an Alteration of the Laws, or to redress any Abuses, Nusances, or Grievances, of a Publick Nature, and actually endeavouring to put such Designs in Execution by Force, has been adjudged High-Treason’.82 The precedent had been set, and the law in that respect redefined. Yet precedents do not always have to be followed. In 1675 the judges considered using the same constructive interpretation of the treason law against those weavers who rioted in London to destroy by force all mechanized looms for making silk ribbons – but decided not to. The Restoration regime was sensitive to the need to maintain the appearance of enforcing the law appropriately, and the weavers’ riots did not have quite the same political undercurrents as the bawdy house riots of 1668.83 Some of the legal practices of the final years of Charles II’s reign – the years of the Tory Reaction – were of deep concern to many contemporaries. Packed Kenyon, Popish Plot, p. 295. Harris, ‘Bawdy House Riots’, pp. 537–56. 82 Salmon, Critical Review, I, 303. 83 Harris, London Crowds, pp. 192–8. 80 81

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juries were used to secure the conviction of political opponents of the crown. We have already noted the trial and conviction, and subsequent execution, of Stephen College at loyalist Oxford for treason in 1681: although College was a freeman of London and a London grand jury had already rejected an attempt to indict College there, the government argued that College’s treason had been committed in both London and Oxford and therefore he could be tried in either location. Then there were various strategies employed to subvert or by-pass what contemporaries would have regarded as due legal process. We see this, for instance, with regard to the Scottish suspects in the Rye House Plot of 1683. When the English government could fix nothing on them, they were shipped back to Scotland, technically in violation of the English Habeas Corpus Act, in order to be tortured. English law did not allow torture; Scots law did. But there was also no habeas corpus in Scotland, so the suspects could be kept in prison, without being charged or brought to trial, until the government had managed to accumulate enough evidence against them.84 The rules concerning the use of torture in Scotland were somewhat vague, but there were clearly abuses in this instance.85 There was supposed to be a second witness to the treason plus a solid presumption of guilt before torture could be used, and then torture could only be applied once. But the Scottish Rye House plotters were tortured not once but three times, and without the solid presumption of guilt or other witness to the crime.86 In 1684 the English Rye House plotter Sir Thomas Armstrong was executed without a trial. Armstrong had eluded capture in 1683 and fled to the continent, but was indicted for high treason at the Old Bailey in July 1683 in absentia and pronounced an outlaw. Government agents later captured him in the Low Countries in June 1684 and brought him back to England, where Armstrong appealed to a statute from Edward VI’s reign permitting outlaws the right to a trial if they surrendered within a year. However, King’s Bench took the view that this did not apply since Armstrong had not surrendered but been captured, and Judge Jeffreys sentenced him to be hanged, drawn and quartered.87 The government also employed the tactic of imposing heavy fines on its political enemies as a way of keeping them in prison when the offences for which they had been convicted did not carry custodial sentences. For instance, when the duke of York brought an action for scandalum magnatum against Sir Thomas Pilkington in 1682, a packed London Tory jury awarded the duke damages of £100,000; Pilkington was detained until he paid the fine, but For the trials of the Scottish Rye House plotters, see Richard L. Greaves, Secrets of the Kingdom: British Radicals from the Popish Plot to the Revolution of 1688–89 (Stanford, 1992), pp. 241–6. 85 Robert Wodrow, History of the Sufferings of the Church of Scotland, from the Restauration to the Revolution (2 vols, Edinburgh, 1721–2), II, 167. 86 Clare Jackson, ‘Judicial Torture, the Liberties of the Subject, and Anglo-Scottish Relations, 1660–90’, Proceedings of the British Academy, 127 (2005), 75–101; Harris, Restoration, pp. 365–6. 87 ST, X, cols. 106–24; Harris, Restoration, pp. 315–16. 84

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there was no way he was ever going to be able to pay. Titus Oates was likewise fined £100,000 in 1684 for libelling the duke, while John Hampden was fined £40,000 that year for disturbing the peace and spreading sedition, which was only a misdemeanour at law. Again, these were essentially equivalent to sentences of perpetual imprisonment.88 We could point to similar abuses of the law under James II. We have already mentioned the cruel and unusual punishment meted out to Thomas Dangerfield in 1685. Similar whippings were inflicted on Titus Oates in 1685 and Samuel Johnson in 1686; Oates was whipped twice, 1,000 lashes in total, while Johnson suffered over 300 lashes. The government was clearly hoping that they would die as a result of the punishments the courts had deemed appropriate to impose as part of their sentences, even though their offences had not been capital. In Johnson’s case the executioner who was to carry out the whipping expressed his concern that the punishment might prove fatal. However, the under-sheriff insisted that the executioner was ‘to Whip [Johnson] severely’, warning that if he thought he ‘neglected’ to do so, ‘he would Hem to him, and that should be the signe’ to whip him harder.89 Then there is the collusive action of Godden v Hales (1686), whereby James managed to secure a ruling in support of the royal dispensing power by packing the judicial bench, as we saw above. James subsequently suspended a whole range of laws against Catholics and nonconformists in 1687 by dint of his royal prerogative, which was the issue at the heart of the trial of the Seven Bishops in June 1688. Yet the trial of the Seven Bishops illustrates powerfully our point about the law having its own logic and the crown not always being in control of the law. James II was not eager to take on the bishops; the bishops rather forced his hand by their very public confrontation. And famously the jury found the bishops not guilty, in essence finding against the legality of the king’s suspending power. Moreover, we should remember that the issue at stake here was not about how tolerant a society seventeenth-century England was to be. Because of the way in which the bishops framed their petition, the trial was about the rule of law, and whether the king could arbitrarily suspend a whole range of penal statutes at his whim. It was about royal tyranny. By the time of the Revolution of 1688–89, most English people were united around a shared concern that there had been unacceptable abuses of the law under Charles II and James II. The Declaration of Rights was an attempt to address the abuses of the law that the framers of the Declaration perceived had happened under Charles II and James II. Arguably, for an eighteenth- and early nineteenth-century audience the various editions of State Trials offered one of the strongest collections of evidence for that interpretation of the Revolution. This essentially Whig interpretation of the Revolution as the triumph of a constitutional monarchy, limited by law, over the tyranny and assault on English Harris, Restoration, pp. 296, 316, 315. Goldie et al. (eds), Entring Book of Roger Morrice, III, 317–18.

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liberties by the Stuarts is also reflected in State Trials after 1689, as the great constitutional issues fade from view. Cases touching on the freedom of the press, which had featured occasionally during the Restoration, became more common. In part, this was a consequence of the rapid expansion of the newspaper and periodical press in the early eighteenth century; in part, it was a product of intense debates about restraint of the press following the lapse of pre-publication censorship in 1695, though the trial and execution of John Matthews in 1719 on a charge of high treason was exceptional.90 Indeed, press freedom was one of the few debates about English/British liberties to remain a recurrent theme throughout the eighteenth century, peaking during the Wilkeite debates of the 1760s and again in the 1790s. Occasionally, there were echoes of earlier concerns about the government acting in an arbitrary manner: an editorial note on the Fenwick case commented of the proceeding by act of attainder rather than trial that one witness to the treason ‘by the rules of Westminster Hall … is not legal evidence’.91 The five volumes of Cobbett/Howell covering the period from 1689 to 1723 are dominated above all by the trials of Jacobite plotters and conspirators. These were emphatically British in scope, including, between 1689 and 1694, Scots who had resisted the Revolution, as well as participants in the assassination plot of 1696, the ’15, and the Atterbury plot of 1722. With few exceptions these raised no significant constitutional issues. Nor did they reveal deep divisions within the British political elite. Rather, they were occasions when the machinery of justice was used in the service of the state, and when the theatre of the judicial system was used to inflict condign and exemplary punishment on those who conspired or rebelled against it. In short, whereas the pre-1688 trials often told a story of judicial resistance to an overbearing executive, the post-revolutionary trials generally told a more consensual story in which the crown and its judges were working hand in hand to resist popery and Jacobitism. Both narratives were whiggish, but in different ways. The narrative told through the state trials of the period between 1689 and 1720 was no longer a legal-constitutional one. It was, instead, a legal-political one, explaining how the achievements of the Revolution were defended against the Stuarts in exile and their allies in Britain.

ST, XV, cols. 1323–1403. Cobbett’s Parliamentary History, V, col. 1085 (Heneage Finch).

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2 Corruption and Later Stuart State Trials Mark Knights As well as prosecuting political and religious dissent, later Stuart state trials also targeted corrupt ministers who had been the subject of parliamentary investigations and were subsequently impeached for ‘high crimes and misdemeanours’. Indeed, as Lord Mansfield observed when passing judgement on a corruption case in 1770 and reflecting back on the previous two hundred years, ‘there hardly ever is an impeachment against a minister where the charge is not for receiving money for procuring a grant from the king’.1 The process of impeachment had been revived in 1621 specifically to deal with corruption allegations against Lord Chancellor Bacon and the device was frequently used thereafter. It became a potent weapon during the Restoration and was repeatedly used until 1725 when a Lord Chancellor, Macclesfield, was again tried in parliament for corruption. This chapter investigates these trials both in order to show how frequently issues of financial corruption were part of impeachments in the period after the Glorious Revolution and to reflect in turn on what these trials tell us about the nature of corruption more generally in this period.2 Later sections of the chapter analyse the defence arguments Samuel Vaughan, An Appeal to the Public (London, 1770), p. 92. This chapter draws on research for Trust and Distrust: Corruption in Office in Britain and its Empire, 1600–1850 (Oxford, 2001 forthcoming) where the reader will find an extensive bibliography of works on corruption. Some particularly relevant works on later Stuart corruption are Godfrey Davies, ‘The Seamy Side of Malborough’s War’, Huntington Library Quarterly, 15:1 (1951), 21–44; Clayton Roberts, The Growth of Responsible Government in Stuart England (Cambridge, 1966); Geoffrey Holmes, ‘The Attack on the Influence of the Crown 1702–1716’, Historical Research, 39:99 (1966), 47–68; Howard Tomlinson, ‘Place and Profit: An Examination of the Ordnance Office, 1660–1714’, Transactions of the Royal Historical Society, 5th series, 25 (1975), 55–75; Wilfred Prest, ‘Judicial corruption in early modern England’, Past & Present, 133 (1991), 67–95; Patricia Bonomi, The Lord Cornbury Scandal: The Politics of Reputation in British America (Chapel Hill, NC, 1998); Philip Woodfine, ‘Tempters or Tempted? The Rhetoric and Practice of Corruption in Walpolean Politics’, in Corrupt Histories, ed. Emmanuel Kreike and William Chester Jordan (New York and Woodbridge, 2004), pp. 167–196; Mark Knights, ‘Parliament, Print and Corruption in Later Stuart Britain’, Parliamentary History, 26:1 (2007), 49–61; Aaron Graham, ‘Auditing Leviathan: Corruption and State Formation in Early Eighteenth-Century Britain’, English Historical Review, 128:533 (2013), 806–38; 1

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employed by the accused, highlighting how appeals to custom and to the letter of the law, as well as attempts to redefine bribes as ‘gifts’ or ‘presents’, were deployed both as a reflection of blurred conceptual boundaries and as a way of neutralising allegations of corruption.3 Misbehaviour was represented in such defences in terms of norms of friendship, the personal nature of office-holding or cultural factors, and these arguments were symptomatic of those deployed in many other attempts to grapple with early modern corruption. The cases therefore illustrate the difficulties involved in prosecuting this most slippery of crimes, as well as the extent to which its definition was problematic and contested. A concluding section reflects on how successful state trials were in prosecuting corruption cases and what such cases reveal about state trials as a genre. In the opening section, however, the chapter lays out the nature and extent of the prosecutions, showing that state trials were, by their nature, very frequently politicised, and that they were a very blunt way to tackle corruption. For these reasons, impeachments fell into disuse after 1725 until a brief revival once more in the later eighteenth century and early nineteenth century, after which they were permanently abandoned. The incidences of state trials involving corruption Nearly all trials involving allegations of corruption were politically motivated: an attack on corruption was a partisan tool that could discredit and delegitimise an opponent, impugning them with both misconduct in office and moral turpitude. It was thus particularly useful against royal advisors and administrators, and was often added to, or formed an intrinsic part of, parliamentary impeachments, as a survey of the Restoration era illustrates. The earl of Clarendon was accused in 1663 and again in 1667 of promoting popery and arbitrary power, but also of gaining financially from illegal patents and receiving ‘great summs of money’ from tax farmers and the Vintners Company. He had, it was claimed, ‘gained to himself a greater Estate than can be imagined to be gained lawfully in so short a time’.4 Clarendon fled before proceedings could be finished. In 1674 another Mark Knights, ‘Samuel Pepys and Corruption’, Parliamentary History, 33:1 (2014), 19–35; Aaron Graham, Corruption, Party and Government in Britain, 1702–1713 (Oxford, 2015); Mark Knights, ‘Anti-corruption in Seventeenth- and Eighteenth-Century Britain’ in The History of Anti-Corruption, ed. Guy Geltner, Ronald Kroeze and Andre Vitoria (Oxford, 2017). See also Mark Philp, ‘Defining Political Corruption’, Political Studies, 45:3 (1997), 436–62. 3 For the wider context see Mark Knights, ‘Explaining Away Corruption in Pre-Modern Britain’, Social Philosophy and Practice, 35:2 (2018), 94–117. 4 The charges made in both accusations, and Clarendon’s defence, can be found in The proceedings in the House of Commons, touching the impeachment of Edward, late Earl of Clarendon ([London], 1700). See also P. H. Hardacre, ‘Clarendon, Sir Robert Howard, and Chancery Office-Holding at the Restoration’, Huntington Library Quarterly, 38:3 (1975), 207–14.

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minister, the earl of Arlington, was also toppled by impeachment charges, which included popery, betrayal of trust, and embezzlement.5 A third chief minister, the earl of Danby, faced impeachment charges in 1675, including ‘exposing his Majesty’s treasure and revenue to private bargains and corruptions’, and removing all ‘checks and comptrolls’ on the exchequer. He was also alleged to have converted funds from the Irish reserves ‘to his own private advantage’ and to have ‘procured great gifts and grants from the Crown’, though these charges were subsequently dropped.6 In his second impeachment in 1678, which did bring about his downfall, it was alleged, amongst allegations of promoting popery and arbitrary government, that Danby ‘did endeavour to procure a great sum of money from the French king’.7 Another politician close to the Court, Sir Edward Seymour, was impeached in 1680 for misusing money appropriated to the navy, and for receiving a salary over and above his allowance as Speaker, as well as for embezzling goods from a Dutch prize ship.8 Lesser officials associated with the case had also been prosecuted. In 1668 Vice Admiral Sir William Penn was impeached for thefts from two captured Dutch prize ships,9 and in 1679 Samuel Pepys was accused of corruption, though the charge was not made part of the formal proceedings against him.10 With more frequent parliamentary sessions after the Revolution of 1688–89, and the temptingly large amount of resources raised for war against France, the number of state trials for corruption increased and became part of the polarisation of partisan politics. Allegations of corruption began to gain ground when a pamphlet of 1693 complained that Henry Guy, secretary to the treasury, had distributed £16,000 in ‘hush money’ to MPs. The pamphleteer, Charlwood Lawton, called this technique of parliamentary management the ‘Carmarthen Art’ in reference to the bribing of MPs in the 1670s by the earl of Danby, who had become the marquis of Carmarthen in 1689 and duke of Leeds in 1694.11 Nevertheless, when the storm hit, in the 1694–95 session, its eye was not the Crown’s corrupting influence, but rather the relationship of MPs to commercial interests and to the swelling fiscal-military state. A wave of scandalous revelations was triggered by a petition from the inhabitants of Royston, in Hertfordshire, about additional payments that were being Grey’s Debates of the House of Commons, ed. Anchitell Grey (10 vols, London, 1769), II, 253–80. For the importance of the notion of trust, and betrayal or breach of trust, see Knights, ‘Anti-corruption and the Notion of Trust’, in Prevenire La Corruzione, ed. Nicoletta Parisi, Gianluca Potesta and Dino Rinoldi (Naples, 2018). 6 William Cobbett, Cobbett’s Parliamentary History of England (36 vols, London, 1809), IV, cols. 409–13. 7 A Complete Collection of State-Trials (11 vols, London, 1776–81), II, 731; Cobbett, Parliamentary History, IV, cols. 1067–74. 8 ST, VIII, cols. 127–63; Cobbett, Parliamentary History, IV, cols. 1222–23. 9 ST, VI, cols. 869–78. 10 Knights, ‘Samuel Pepys and Corruption’. 11 Charlwood Lawton, A Short State of our Condition, with Relation to the Present Parliament (London, 1693), p. 4. 5

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demanded from them to pay for the troops billeted there. A parliamentary investigation found that a bribe had been paid to Henry Guy, the secretary of the treasury, for securing the payment of arrears. Talk of further corruption surrounding the issuing of licences for hackney coaches led to the exposure of two larger scandals relating to money being taken to ensure the passage of bills. The first concerned the London Orphans Fund, where the Speaker of the House of Commons, Sir John Trevor, was found to have taken 1,000 guineas to promote its passage.12 The second, involving far larger sums of money, related to the East India Company. Sir Thomas Cooke, the master of the EIC at the time of the re-granting of its charter in 1694, was asked to explain the £90,000 that had been spent by the company for ‘special services’ when the bill was passing through parliament. One of the interloping merchants-turnedcompany advocates, Sir Basil Firebrace, revealed that both Guy and Trevor had again received money for this, but also that payments had been made to an intermediary, Charles Bates, and intended for the duke of Leeds. Leeds (and others) believed that the campaign against him and Guy (who was also attacked) had been a long time in the planning, waged by Charles Montagu, the Whig Chancellor of the Exchequer and one of the leaders of a group of Whigs intent on removing prominent Tories from political influence.13 Certainly Trevor, Guy, Cooke and Leeds were all obnoxious to the Whigs. This political explanation may explain why complaints about corruption in the Whig-dominated navy, made in the same session, failed to get anywhere.14 In 1701 politically motivated impeachments were begun against the Whig leaders who had sealed grants of land in Ireland,15 and in Anne’s reign allegations of back-handers relating to the war were brought against Robert Walpole and the duke of Marlborough. But the most eye-catching trials of the early eighteenth century followed in the wake of the South Sea Bubble which, like the 1695 prosecutions, revolved around commercial rather than Court influence.16 The passage of the South Sea bill through the House of Commons from For the context see John Kellett, ‘The Financial Crisis of the City of London and the Orphans Act, 1694’, Guildhall Miscellany, 2 (1963), 220–27; I. Doolittle, ‘The City of London’s Debts to its Orphans 1694–1767’, Bulletin of the Institute of Historical Research, 56:133 (1983), 46–59. 13 A Collection of the Debates and Proceedings in Parliament (London, 1695), p. 50; A Letter from a Gentleman in Yorkshire, to his Country-man in London, Concerning the Duke of Leeds With an Answer to the said Letter (London, 1695), which contains a further tract within its pages called An Answer To the Preceding Letter (1695), pp. 32–3; Henry Horwitz, Parliament, Policy and Politics in the Reign of William III (Newark, 1977), p. 152. 14 Samuel Baston, Baston’s Case Vindicated (London, 1695); Knights, ‘Parliament, Print and Corruption’, Parliamentary History, 26 (2007), 49–61. 15 Impeachment charges against Orford, Somers and Halifax included corruption and mismanagement of office: see ST, XIV, cols. 250–61, 294–98, 311–12; Cobbett, Parliamentary History, V, cols. 1266–77, 1299–1305, 1313. 16 The most recent treatments are Malcolm Balen, A Very English Deceit: The Secret History of the South Sea Bubble and the First Great Financial Scandal (London, 2002); 12

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February to April 1720 was achieved after large-scale bribery of MPs, often in the form of stock that was never paid for but which could be cashed in if it made a profit (which the rising bubble virtually ensured) and the difference between start and end price simply pocketed. Corruption was revealed, after the bubble burst later in 1720, by the investigations of a Committee of Secrecy, which made seven reports to parliament. These lamented ‘a Scene of Iniquity and Corruption’ involving an eye-watering £574,000 distributed among (at a minimum) forty MPs (besides company directors, four of whom were MPs)17 who had received stock.18 Prominent names included James Craggs the elder, who subsequently committed suicide; Charles Stanhope, secretary to the treasury; John Aislabie, the Chancellor of the Exchequer; and the earl of Sunderland, first lord of the treasury. The political implications were enormous. A split in Whig ranks closed as Robert Walpole came to the rescue of his rivals. Although Stanhope had received £10,000 worth of stock, government and Court influence nevertheless narrowly defeated a vote of censure.19 Sunderland, the son of the man thought to be in part behind the 1695 accusations, found himself accused of corruption to the tune of £50,000. But he too escaped a hostile Commons resolution, largely as a result of the efforts of his arch-rival Robert Walpole, whose price for saving him was to replace him as first lord of the treasury. These two actions earned Walpole the nickname of ‘the screen’, but also propelled him back into power. Perhaps because the government needed a scalp to assuage public opinion, Aislabie was not so lucky: he was condemned in a bill of penalties without, much to his frustration, a trial. The best he could therefore do in his own defence was to give two speeches to the House of Lords. 20 Another branch of the enquiry revealed that Richard Hampden, the treasurer of the navy and great-grandson of the man prosecuted over Ship Money in 1637–38, had speculated with the money he held from his office with an intent to gain personally from the investment, though in fact the bursting of the bubble had led to him incurring considerable losses. Four director MPs were expelled from the House of Commons, together with Aislabie, Sir George Caswell (the company’s banker) and Thomas Vernon (who had Richard Dale, The First Crash: Lessons from the South Sea Bubble (Princeton, 2004); Helen Paul, The South Sea Bubble: An Economic History of its Origins and Consequences (Oxford, 2011). 17 Many more directors had been or would become MPs – see John Carswell, The South Sea Bubble (Stanford, 1960), appendix. 18 The Reports of the Committee of Secrecy to the Honourable House of Commons relating to the late South Sea Directors &c. Carefully Corrected (London, 1721), pp. 1, 4. 19 Romney Sedgwick (ed.), The House of Commons, 1715–1754 (2 vols, London, 1970), II, 433–434. 20 The Speech of the Right Honourable John Aislabie, Esq (London, 1721); Mr. Aislabie’s Second Speech (London, 1721).

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tried to influence the committee of secrecy in favour of his brother-in-law Aislabie), but action failed to be taken against most of the MPs whose names had been revealed. The politically motivated screening of major figures in the administration from prosecution stoked public anger,21 but the South Sea Bubble disturbed more than politicians. Just as Hampden had speculated with navy funds, so one of the masters of chancery, Fleetwood Dormer, had invested funds belonging to the Court of Chancery’s suitors (money paid in after court judgements), with similarly disastrous consequences: Dormer had ‘trafficked with the Suitors money and effects, and had lost near £30,000’.22 The hole left in the court funds was in itself serious enough, but it also unravelled a scheme whereby prospective masters of chancery bought their offices using the funds, thereby leading to inflated amounts that could be paid to the lord chancellor, who in 1725 was the earl of Macclesfield.23 According to his critics, the lord chancellor was so keen to maintain this lucrative arrangement that he put undue pressure on the remaining masters to make good the deficiencies left by Dormer’s losses, and also in court publicly covered up the uncertain state of the funds. But as the secret leaked out, Macclesfield was forced first to resign and then to undergo a ten-day impeachment that convicted him of corruption.24 The trial blew the lid off his practice of selling offices to the highest bidders, allegedly men ‘of small Ability and Substance’ who had only been able to purchases their positions because they could use the suitors’ fund to pay for their posts.25 Moreover, the trial also exposed the profits that could be made from the lucrative fees that the masters could charge litigants. Justice seemed to have been turned into a market. Although Macclesfield was a strong Whig, partisan politics seem to have been slightly less prominent in his prosecution than in earlier state trials for corruption, though the animus of Country Whigs against him was at times all too evident, and Walpole did little to screen the earl from attack.26 Indeed, Walpole gained politically from Macclesfield’s fall, precisely because it helped him deflect the accusation of protecting the corrupt: even The Skreen Removed: in a List of All the Names Mention’d in the Report of the Committee of Secrecy (London, 1721) published the names of culpable MPs and abridged the long reports of the Committee of Secrecy, the expensive printing of which, the tract alleged, had kept the information from the general public. 22 ST, XVI, col. 1003. 23 For the wider context see W. Prest, ‘Judicial Corruption in Early Modern England’, Past & Present, 133 (1991), 67–95. 24 There is some discussion of Macclesfield in Julia Rudolph, Common Law and Enlightenment in England, 1689–1750 (Woodbridge, 2013), chapter 6. 25 ST, XVI, col. 1171. 26 The impeachment seems to have been initiated by the ‘Leicester House party’ around the Prince of Wales, who Macclesfield had opposed: John Campbell (ed.), The Lives of the Lord Chancellors and Keepers of England (5 vols, London, 2nd series, 1846), IV, 537. A letter from Macclesfield to Newcastle, apparently written during the trial, requests that the duke, Lord Townshend and Walpole ‘endeavour to preserve me from ruin & infamy’. 21

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when not partisan, state trials for corruption were always political. These set-piece state trials and parliamentary investigations, particularly those of 1695 and 1720–25, form a large sample through which to investigate, in the next section, attitudes to corruption and its punishment.27 Defences made of those accused of corruption Mark Granovetter, the exponent of network theory, has argued that the meaning of corruption is ‘often the subject of contention’ because what constitutes corrupt behaviour varies according to time and place and because violation of moral codes is often denied through a process that he calls ‘neutralisation’. Since ‘groups with conflicting interests present different sets of standards for what behaviour is appropriate’, attempts are made to neutralise the accusations of others by appealing to different norms.28 This understanding of corruption can be productively applied to the later Stuart corruption prosecutions. It is clear that two processes, sometimes difficult to disentangle or distinguish, were going on. The first was the exposure by the state trials of ambiguities inherent in the way that politics and administration functioned in the early modern period. The division between public and private was blurred, so that what was licit and illicit in terms of public office was not always clear, and social and cultural norms could cut across, or be in uneasy tension with, ideals of officeholding. The second process was more political. The ambiguities in norms and practices could be exploited in order to deny that corruption had taken place and to try to justify or even excuse the behaviour that was being questioned. The first process resulted from genuine confusion about legitimate boundaries; the second resulted from the conscious exploitation of such confusion in order to evade prosecution. Macclesfield to Devonshire, 22 May 1725, Stowe MS 750, fol. 404, BL, misdated in the BL catalogue as 1722. 27 Similar material can be found in the reports of parliamentary commissions for public accounts. For general discussions of these see Jason Peacey, ‘Politics, Accounts and Propaganda in the Long Parliament’, in Parliament at Work. Parliamentary Committees, Political Power and Public Access in Early Modern England, ed. Chris Kyle and Jason Peacey (Woodbridge, 2002), pp. 59–78; Paul Seaward, ‘The Cavalier Parliament, the 1667 Accounts Commission and the Idea of Accountability’, in the same volume, pp. 149–168; J. A. Downie, ‘The Commission of Public Accounts and the Formation of the Country Party’, English Historical Review, 91 (1976), 33–51; P. O’Regan, ‘Accountability and Financial Control as “Patriotic” Strategies: Accomptants and the Public Accounts Committee in Late 17th and Early 18th-Century Ireland’, Accounting Historians Journal, 30:2 (2003), 105–32; J. Torrance, ‘Social Class and Bureaucratic Innovation: The Commissioners for Examining the Public Accounts, 1780–1787’, Past & Present, 78 (1978), 56–81. 28 Mark Granovetter, ‘The Social Construction of Corruption’, in On Capitalism, ed. V. Nee and R. Swedberg (Stanford, 2007), quotations at pp. 153–54.

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In either case, the trials were pressure points at which assumptions about what constituted legitimate behaviour were publicly held up for scrutiny and to public debate that often sounded like competing lessons in morality and the ethics of office-holding. Such moments could lead to acquittal – an upholding (even if only temporary) of the norms that had seemed to justify the officeholder’s behaviour – or to condemnation of behaviour that had previously been tolerated, and hence also to a redrawing of the boundaries, and to attempts to remedy the situation or prevent similar misbehaviour in the future. The trials are thus interesting moments in which assumptions and norms were laid bare and contested. This is not how such trials have traditionally been read, since they more often form part of a narrative about partisan division. This chapter therefore focuses on the accused rather than the accusers, and the arguments used to justify behaviour that others saw as corrupt, since by doing so we get a more rounded picture of how corruption was seen – or not seen – by contemporaries. Besides highlighting the contested nature of corruption, a focus on defence strategies also draws attention to the difficulties faced by those seeking to prosecute what they saw as corruption. The state trials thus tell us about the nature of corruption and anti-corruption, but also about the success or failure of the trials as a process of justice and public theatre. One common defence among those accused of bribery was their rejection of that term, preferring instead to talk instead about ‘gifts’ and ‘presents’ made by ‘friends’.29 To take the last of these legitimising words first, when refuting the articles of impeachment against him in 1695, Leeds argued that he and Bates ‘had had a long Acquaintance and Friendship, and what he did in this matter was only to befriend him’.30 Indeed, when questioned, Bates refused to refer by name to Leeds, calling him simply ‘his friend at St James’s’, a point picked up by one MP who rhetorically asked who was the duke’s ‘friend’ and who his ‘servant’.31 Another political broker, Richard Acton, distributed £10,000 because ‘he had several friends [who] could be serviceable in speaking to Parliament men’.32 John Knight, a key South Sea witness, described the men bribed by the South Sea Company as its ‘best Friends’, and stock was allocated for each of the company’s directors ‘or his Friends’.33 Sir John Blunt, the head of the South Sea Company, said that £574,000 had been disposed of ‘to make more Friends for For Pepys’s use of similar terms see Knights, ‘Samuel Pepys’, pp. 24–27. A Collection of the Debates and Proceedings in Parliament (London, 1695), p. 54. 31 HMC, House of Lords 1693–95 [Fourteenth Report, appendix part vi, 1900], p. 559; A Collection of the Debates and Proceedings in Parliament (London, 1695), p. 5. The editor of the Collection made a similar point, on p. 89, highlighting the issue by capitalising the word ‘FRIEND’. 32 HMC, House of Lords 1693–95, p. 552; The Examinations and Informations Upon Oath of Sir Thomas Cooke and Several other Persons …as also the Articles of Impeachment by the Honourable House of Commons against the Duke of Leeds (London, 1695), p. 2. 33 The Reports of the Committee of Secrecy to the Honourable House of Commons, Relating to the late South-Sea Directors, &c. Carefully Corrected (London, 1721), pp. 4–5, 18. 29 30

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the Company’.34 Clearly, monetised relationships were being blurred, or deliberately confused, with more social bonds of association; networks of self-interest were being disguised or legitimised as ones of disinterested mutuality.35 Similar linguistic and conceptual slippages blurred the line between debts, fees, gratuities, gifts, presents, ‘compliments’ and bribes.36 The earl of Clarendon regarded the £300 he received for allowing Sir Robert Howard to resign his post of clerk of patents in Chancery, and sell it to Sir Thomas Vyner (for about ten times that sum), as ‘a just debt’, because Howard had failed to pay him £2,000 when he had entered the post several years earlier. What to Clarendon appeared like admirable restraint and justifiable payment, could nevertheless be represented as unjustifiable greed, part of a damaging rumour that he felt forced to deny, even some time after his flight into exile.37 A sense that just payments had been made also pervaded Leeds’s response in 1695 to the accusation of corruption. Leeds thus dug himself deeper into a hole when he told the House of Commons that he wished Bates (who had offered ‘presents’ to Sir John Trevor and Henry Guy to ease the passage of the bill) ‘good luck’ with the 5,000 guineas he obtained from the East India Company, openly comparing it, in a speech to the House of Commons, to the time when he had colluded with Sir Henry Savile to ensure that the latter received ‘a good present’ from contending excise farmers in the 1670s.38 Sir John Trevor did not deny accepting a gratuity of 1,000 guineas after the passage of the London orphans bill but claimed it was just recompense for his pains and not improper. The redefinition of bribes as just payments and gratuities was satirised on stage the following year when a character, Eager (‘A Sharper of the Town, that lives by Pimping and Cheating’), was made to exclaim against a colleague who had asserted that bribes were ‘the chief Spring in all the grand Movements of both Church and State’: ‘Oh fy!— You must not call it barefac’d Bribery; ‘tis not good breeding to term it so—I that have no other way of Living should be loath to have Gentlemen’s noble Gratuities have that scandalous Title’.39 The ambiguous nature of gratuities was, of course, not new. Gerald Aylmer’s analysis of seventeenth-century officeholders shows that ‘if on one side presents and gratuities are often difficult to distinguish from fees, on the other they sometimes seem to merge with unofficial and illegal payments, namely bribes. This is partly a matter of definition’.40 Ibid., p. 59. For a discussion of friendship and corruption see Naomi Tadmor, Family and Friends in Eighteenth-Century England (Cambridge, 2001), chapter 6. 36 On the culture of gift-giving see Felicity Heal, The Power of Gifts: Gift Exchange in Early Modern England (Oxford, 2014); Ilana Ben-Amos, The Culture of Giving: Informal Support and Gift-Exchange in Early Modern England (Cambridge, 2008). 37 P. H. Hardacre, ‘Clarendon, Sir Robert Howard, and Chancery Office-Holding at the Restoration’, Huntington Library Quarterly, 38:3 (1975), 207–14. 38 Collection of the Debates, p. 54; HMC, House of Lords 1693–95, p. 559. 39 [Thomas] Dilke, The Lover’s Luck (London, 1696), p. 3. 40 Gerald Aylmer, The King’s Servants: The Civil Service of Charles I, 1625–1642 (London, 34

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Such definitions were a matter of contest in state trials, since prosecutions often presented two very different interpretations of the same exchange, sometimes revealing contending value systems. Such differences were sharply exposed during Macclesfield’s impeachment. It was clear that money was given by incoming masters of chancery to the lord chancellor, and that this in the latter’s eyes constituted a legitimate ‘present’. But prospective officeholders were unsure what amount to offer, leading to something like a haggle with the earl’s secretary, Cottingham, who pushed up the value by intimating that Macclesfield wanted more. This meant that what to the earl was a voluntary present now seemed to have become a priced commodity extorted from the bidder. As soon as a claimant reached the right price, he was admitted to office. Yet Macclesfield claimed that he was in no way oppressive, that the ‘gifts’ or ‘acknowledgements’ were ‘perfectly free and voluntary’.41 Indeed, he made a distinction between a gift and a purchase: ‘a Present implies a voluntary Gift of something less than the Value of the Thing given, or promised, for which that Present is made; a Price, the full Value of the Thing contracted for’.42 So accepting a present, for him, was not corruption: ‘taking a Present, or taking Money from Persons upon their Recommendations or Nominations into Offices, though they do concern the Administration or Execution of Justice, is not a Crime in its own Nature; it is no Act of Immorality; it is no Act of Injustice to any Man’.43 Yet the prosecution denied that such gifts were really voluntary. ‘The Expectations of a Chancellor, communicated by a Secretary to a new made Master, is more than to insist’, they argued; such a payment constituted ‘a direct Bargain’.44 As the prosecution summed it up, ‘a Present altogether uncertain in the Quantum, and depending on this Manner upon the Pleasure of the Person who is to receive it, seems to differ very little, if at all, from a Price’.45 Thus the impeachment articles included the charge that Macclesfield had extorted payments and the verdict of guilty confirmed this. Peers objecting to the relative leniency of his punishment said they had been affronted that Macclesfield ‘attempted to justify his extortions (then called complements)’.46 We will return to the implications of this case for the sale of office in a moment, but it is first worth teasing out more from Macclesfield’s responses, since they reveal further ways of legitimising behaviour that were also evident in earlier trials. One was an appeal to custom and practice, which was not only an appeal to how things had been but also to a notion that an individual was being unfairly targeted for faults which many others shared. Macclesfield’s defence sought ‘to prove that Acknowledgements have been anciently and usually paid revised edn., 1974), pp. 178–79. 41 The Tryal of Thomas Earl of Macclesfield (London, 1725), pp. 159, 161. 42 Tryal, p. 145. 43 Tryal, p. 143. 44 Tryal, pp. 132–33. 45 Tryal, p. 265. 46 Cobbett, Parliamentary History, VIII, cols. 471–72.

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upon Admissions into all Offices under the Great Seal’47 and thus that he was justified in accepting presents ‘by the Example of many successions of great and learned Men, who have done the same in the like Case’.48 The defence produced precedents to show that the practice for which the earl was condemned was not new and even talked of the lord chancellor’s ‘just duty’ to protect the perquisites of his post for future office-holders.49 Custom required continuity of practice: ‘the ancient practice of every court is the law of that court; and it would be a dangerous experiment for any one presiding judge to vary it’.50 Macclesfield considered his predecessors to be men of ‘equal if not greater Sagacity, Probity and Experience’, so he followed what they had done. Macclesfield claimed that problems in Chancery were so long-standing, in part because perquisites were built on precedent, that it was beyond ‘the Power, or at least the Prudence of any one Judge or Chancellor to determine’ reform.51 Custom and practice was also invoked in 1695. The payments to MPs by the East India Company were an extension of the customary presents given by the company to the monarch and Charles Duncombe, accused of manipulating exchequer bills, argued that ‘what he did was done in many instances before’.52 Earlier still, Clarendon had refuted the impeachment charges against him by declaring ‘I have never received nor taken one Penny but what was generally understood to be the just lawful Perquisites of my Office, by the constant Practice of the best Times’.53 Such claims were necessary in order to make plausible the defence that men accused of corruption were in reality honest and even virtuous individuals. The whistle-blower Thomas Baston was surprised when ‘the Commissioners [of accounts], and their Emissaries employ’d for that purpose, proclaim’d in all publick places, that [the corrupt victuallers] were acquitted like worthy honest Gentlemen; and that I appear’d to be a False Accuser; adding the opprobious Names of Villain, Informer’.54 Burton, at the heart of the exchequer bills scandal, was described as ‘a very honest gentleman’, and Duncombe, far from defrauding the king’s revenue, was said to have advanced the credit of the bills and done the government a service: ‘Those that consented to take exchequer bills in lieu of gold and money designed the publick benefit’.55 The East India Company intermediary Acton was similarly asserted ‘to be an honest and able man’,56 and Leeds made ‘a most solemn Protestation of his Cleanness and Innocence, Tryal, p. 167. Tryal, p. 145. 49 Tryal, p. 145. 50 Tryal, p. 146. 51 Tryal, p. 146. 52 ST, XIII, col. 1084. The Lord Chief Justice objected: ‘it is imposing on the court to say because some did it that therefore it is lawful’ (Ibid., 1091). 53 The Proceedings in the House of Commons (London, 1700), p. 103. 54 Baston, Baston’s Case Vindicated, p. 20. 55 ST, XIII, cols. 1088, 1091. 56 The Examinations and Informations, pp. 2, 11. 47

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and, laying his hand on his Breast, declared, upon his Faith and Honour, that he was perfectly disinterested’ in the matter of the East India Company bill. Macclesfield chose to make his own virtue a central plank of his defence. A patron of Bernard de Mandeville, infamous for his celebration of private vices as public benefits, Macclesfield had to counter allegations that he was consumed by avarice; he did so by parading in court the hitherto private charity he had given to orphans, widows and poor scholars. The irony – given Macclesfield’s relationship with Mandeville – was not lost on the hostile editor of the trial: ‘now we are to stand clear, for Private Virtues are to be produced as significant Apologies for Publick Vices’.57 Nevertheless, this line of defence, attempting to reclaim honesty and virtue, also enabled the claim that the individual being prosecuted was the real victim – of personal malice, of unfairness, of having his words and deeds twisted so that what was innocent appeared to prove guilty, or of a system beyond any one individual’s control which threatened to sweep them away. Macclesfield used many of those claims and also blamed ‘that fatal year of 1720 …. when the contagion was so virulent, that scarce any virtue was left uninfected, and those who sunk under it, remarkably deserve our pity, as sad instances of human frailty’.58 Similarly, John Aislabie argued that he had been made a scapegoat, ‘sacrific’d to appease the Fury of the mis-guided Multitude’.59 It was also a short step from the appeal to custom and practice to a claim that the alleged abuse was not strictly illegal. Duncombe had insisted that what he did was ‘strictly justified by the law’ – an issue complicated by the two acts governing the use of exchequer bills which were not altogether consistent with each other.60 Aislabie argued that not only was the action taken against him without foundation, but also that it failed to identify what law he had broken. Although burning his account books was, he admitted, imprudent, it was not criminal, and was rather ‘A LEGAL AND INNOCENT ACTION’.61 Macclesfield’s defence was bolder still, arguing that under common law, ‘that which hath constantly and openly been done without being censured or blamed, cannot be contrary to Common Law’.62 Macclesfield also claimed that he was not limited by the oath of office that was read out in his court because it was contained in an obsolete law passed in the reign of Richard II; indeed, he even tried to claim that he had not properly taken the oath and therefore was not bound by it.63 An important neutralisation tactic, or perhaps sincere belief, was thus the claim that under a strict interpretation of the letter of the law, behaviour that was claimed to be corrupt was in fact perfectly legal; or that the law simply did 59 60 61 62 63 57

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George Wilson, Bribes No Perquisites (London, 1726), p. 44. Tryal, p. 155. The speech of the Right Honourable John Aislabie, Esq (London, 1721), pp. 17, 24. ST, XIII, col. 1084. The speech of the Right Honourable John Aislabie, p. 20 Tryal, p. 165. Rd ii c.2 (1388).

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not apply. And it was the law, it was suggested, rather than any other consideration (such as public opinion), that determined what was corrupt, so only penalties in existing law could be applied. Nowhere was this legalistic pleading more obvious than in the debate about the illegality of selling offices.64 Although Macclesfield was charged with high crimes and misdemeanours, much of the discussion in his case centred on an act passed in Edward VI’s reign against the sale of office.65 His defence was that the law was very limited in its scope and even permitted his behaviour.66 But he also went much further, arguing that selling an office in Chancery was different from selling justice; the latter was corrupt, but the former was not.67 Invoking another time-honoured defence, Macclesfield claimed that an office was a piece of property, ‘Part of the Estate of that Person to whom it belongs’, so that the right of nomination that went with it was part of that property: ‘And if we consider it in this Light, I think it can’t be denied but that every Man has a natural Right to dispose of his own Estate or Interest, his own Friendship or Favour upon what Consideration he pleases: it is his own and therefore has a Right to make any just and legal Advantage of it’.68 Macclesfield, the Whig defender of Revolution principles, thus sought to wrap his extortions in the language of property and natural rights. He also attempted to widen the issue to the sale of office more generally: ‘Will these Gentlemen’, he asked of the managers of the impeachment, urge that every Lord Treasurer, Lord Commissioner of the Treasury, or other Lords in great Employments, that give Places, or name Persons for Places to the king, and have once attended at the naming of Sheriffs, have been guilty of a Violation of this Oath, in every Instance, where they have named Persons to any Office who, by himself, or his Friends, ever asked for the Place given or for any other?…I cannot imagine that they will attempt to carry it so far.69

Macclesfield thus sought to implicate an entire system rather than keep the focus on his particular abuses of it. He went further still: not only was selling offices legal and part of a wider culture, but it was also more positively justifiable in terms of a legitimate private interest:70

For an overview of venality see K. W. Swart, Sale of Offices in the Seventeenth Century (‘s-Gravenhage, 1949); R. O. Bucholz, ‘Venality at Court: Some Preliminary Thoughts on the Sale of Household Office, 1660–1800’, Historical Research, 91:251 (2018), 61–97. 65 & 6 Ed VI c.16. 66 Tryal, p. 144. 67 Tryal, pp. 153–54. 68 Tryal, p. 143. Macclesfield also wrote privately that ‘usage had made it to be looked upon as a sort of right’ (BL, Stowe MS 750, fol. 406, draft speech). 69 Tryal, pp. 227–28. 70 Aislabie also stressed a distinction between public and private when accused of burning his accounts: there could be ‘no Crime in my having disposed of them as I 64

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An office may be considered in two Respects: First, with Respect to the Duty, that is the Concern of the Publick; that the Person be duly qualified to discharge his Office well. Secondly, with respect to the Profit and Advantage, and that is merely Private, and concerns the Officer only. And whilst he discharges his Duty well, without extortion or other Misbehaviour, the Publick is little concerned in it, whether the Profit be more or less.

Macclesfield went on: The Publick is concerned only in the Goodness of the Officer, not how advantageous to him the Grant of the Office is, nor in the Inducement to which he that appointed him had to put him in: whether Friendship, Acquaintance, Relation, Importunity, great Recommendation or a Present.

So long as a person was well qualified for office, the duty to the public had been discharged: is it material how well I loved him, how nearly he is related, who it was that persuaded me to prefer him, or what he gave me on that Account, whether before, or after he was put in? …If the Publick can have all the Benefit it can have, where is the Immorality? Where is the crime, if I have an Advantage too?71

Macclesfield thus suggested that the public interest did not extend to the manner of appointment nor the profits from office, but solely to the performance of duty. The managers of the prosecution roundly attacked Macclesfield’s forthright defence of venality, and of his favouring of family and friends: his was a ‘Doctrine as is not fit to be proclaimed to the World and would tend to Universal Corruption’, warned lawyer Thomas Lutwyche.72 Yet the earl had touched on a sore point shrouded in legal haze. The state trials thus pointed to, but also tried to resolve, some of the ambiguities in contemporary positions about office-holding, ambiguities that arose as a result of everyday informalities, personal interactions and custom and practice. But the 1695 and 1725 scandals also point to the importance of state trials in identifying the challenge of new institutions and mores to existing norms, since they revolved around issues to do with the interaction of the financial market with politics through lobbying. Although neither the market nor lobbying were new,73 the thought fit, especially if it be considered that they were my own private Books’. See The Speech of the Right Honourable John Aislabie, Esq. (Dublin, 1721), p. 19. 71 Tryal, p. 229. 72 Tryal, p. 270. 73 For the early financial market see Anne Murphy, The Origins of English Financial Markets: Investment and Speculation before the South Sea Bubble (New York, 2009). For the role of lobbies see Ian Archer, ‘The London Lobbies in the Sixteenth Century’, Historical Journal, 31 (1988), 17–44; David Dean, ‘London Lobbies and Parliament: The Case of the Brewers and Coopers in the Parliament of 1593’, Parliamentary History, 8:2 (1989), 341–65; A. Olson, Making the Empire Work: London and American Interest Groups 1690–1790 (Cambridge, MA, 1992); George Yerby, People and Parliament: Representative Rights and the English Revolution (Basingstoke, 2008); Robert Brenner, Merchants and

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frequency of parliamentary sessions after 1688, the growth of the stock market, the rise of joint-stock companies, and the expansion of the fiscal-military state exacerbated tensions and exposed the uncertain guidelines surrounding the role of the lobbyist. The later Stuart period faced unprecedented levels of commercial pressure on parliament and contemporaries struggled to find ways to ensure that money did not play a distorting role; its difficulties were not helped by the simultaneous recourse by government to the payment of MPs, directly and indirectly, in an effort to secure their votes, since that blurred the boundaries between money and politics.74 Moreover, the parliamentary investigations revealed the lobbyists as working in the shadows. Charles Bates and Richard Acton were useful to the East India Company because they could influence MPs.75 Acton said he distributed money ‘to those who had Interest with Members’ – including James Craggs, the man implicated in the South Sea Bubble.76 Acton and Craggs worked in partnership to clothe the army, which gave them ‘acquaintance with the colonels in the house and some Northern Members’.77 In other words the circles of influence – or of corruption – were overlapping and mutually reinforcing: government contracts were procured by, but also fostered, strong relationships with MPs. The London Orphans, East India Company and South Sea scandals all underlined the monetisation of legislative influence and the extent to which anxieties about the corruption of parliament were generated by commercial interests as much as by the Court, a dimension sometimes overshadowed by an undue focus on Country rhetoric as principally focused on critiquing Crown influence. Sometimes, of course, commercial and Court influence intertwined. The East India Company scandal was deliberately intended to remind the public of the Court-influenced mercenary parliaments of Charles II’s reign when Leeds (then Danby) had bought MPs’ compliance: the editor of the debates about the 1695 scandals began with a preface that highlighted the parallels: And it is yet fresh in Memory, how our own Nation was brought to the very Brink of Destruction by the Corrupt Practices of the Reign of King Charles the Second…Then was the time when we beheld a band of abject PENSIONERS in Par l iament , a List wher eof is yet extant . Then was t he time we saw our Senators wearing the Badge of Slavery and doing a Tyrant’s Drudgery, for Clothes and Sustenance… and it is well known who was then the Lord TREASURER.78 Revolution: Commercial Change, Political Conflict and London’s Overseas Traders 1550–1563 (Princeton, NJ, 1993); Perry Gauci, The Politics of Trade: The Overseas Merchant in State and Society 1660–1720 (Oxford, 2003); Perry Gauci (ed.), Regulating the British Economy 1660–1850 (Farnham, 2013). 74 This had been the policy adopted by the earl of Danby in the 1670s, discussed below. See A. Browning, Thomas Osborne, Earl of Danby and Duke of Leeds 1632–1712 (2 vols, London, 1944). 75 The Examinations and Informations, pp. 2, 6–7. 76 The Examinations and Informations, p. 7. 77 Ibid. 78 A Collection of the Debates and Proceedings in Parliament, in 1694, and 1695, upon the Inquiry into the Late Briberies and Corrupt Practices (London, 1695), p. iii. Just in case the

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The venality of parliament had become an important political issue. Yet the 1693 ‘Hush Money’ tract’s cry of ‘VENALE EST PARLIAMENTUM’ was directed against Court influence – focusing on the influence of the Crown obscured, perhaps deliberately, the wider issue of other potentially corrupting influences.79 How successful were state trials against corruption? The rash of state trials against corruption in the later Stuart period highlights a paradox. Anxiety about venality, particularly about the monetisation of officeholding, both inside and outside parliament, was high, and this translated into numerous prosecutions and convictions; yet the latter failed to produce much in the way of greater regulation or reform. As theatrical events, the state trials produced a great deal of sound and fury, but instead of leading to large-scale state solutions they resulted in a series of piece-meal measures which could be ineffectual or only tackled part of a larger problem.80 It is striking how the Commons resolution on 2 May 1695 ‘that the offer of any Money or other Advantage to any Member of Parliament for the promoting of any Matter whatsoever, depending or to be transacted in Parliament, is a High Crime and Misdemeanour, and tends to the Subversion of the English Constitution’ was simply ignored, with the result that the South Sea Bubble exposed many of the same failings uncovered twenty-five years earlier. Similarly, although the 1725 trial had raised the issue of the sale of office, and even exposed the shortcomings of the Edwardian legislation covering it (shortcomings that had been apparent for much of the seventeenth century), it was not until further scandal in 1809 that legislation was finally passed. The financial scandals did also lead to a tightening of the law governing forgery, but again such provisions had repeatedly to be reinforced over time.81 Minor reforms were cumulatively important,82 but the opportunity for more fundamental re-thinking was often missed. It is worth reflecting on what such failures meant for state trials as a type of prosecution and the implications for measures against corruption. The state trials tended to focus attention on individual misdemeanour rather than act reader had forgotten, at the end of the tract was an advertisement for his impeachment in 1678, during the Popish Plot. 79 [Charlwood Lawton], A Short State of our Condition, with Relation to the Present Parliament (London, 1693), p. 1; see also John Toland, The Danger of Mercenary Parliaments (London, 1698). 80 Downie, ‘The Commission of Public Accounts’. 81 Randall McGowen, ‘Making the “bloody code?” Forgery legislation in eighteenth-century England’, in Law, Crime, and English Society, 1660–1840, ed. Norma Landau (Cambridge, 2002), pp. 117–38. 82 For example, the 1725 scandal led to a reform of the Chancery fund that had been abused and this had interesting implications several generations on when the accountant of the new fund, Thomas Anguish, was appointed to the reforming Commission of Public Accounts in 1780.

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as the trigger for a more structural approach; even though the faults of the system were exposed by the actions of the men in the dock, the prosecution of an individual could in some ways imply that the problem was the miscreant rather than the system he inhabited or the mindset that he shared with others. The invocation of the sanctity of custom and practice, the threat to property, the claim that some things were intrinsically private rather than public affairs, blaming a system rather than individual misbehaviour: all made reform of that system far more unappealing and difficult. It was therefore easier to prosecute individuals in eye-catching show trials rather than tackle corruption at the systemic level. Indeed, the scapegoating of individuals might even be said to have had a cathartic effect, a purging of the grosser abusers of a system from which many others nevertheless profited. Prosecutions leading to convictions might ironically have served to legitimise that system by temporarily removing its most glaring offenders.83 Certainly prosecutors showed a distinct nervousness about widening the scope of their attack against similar problems in the wider political and economic culture. For example, none of the Commons’s managers took up Macclesfield’s challenge to examine the sale of offices more generally; and none of the payments paid to outgoing masters of chancery by the purchasers of office (much larger than the sums received by Macclesfield) were commented upon. Anti-corruption prosecutions were thus highly selective and often the result of political factors. As a result, the conviction of an individual seemed to excuse the need to examine the wider problems of which those individuals were simply a series of representatives. Later Stuart state trials obsessed about individual rather than systemic failure, divorcing them from a larger reform process. A key feature of state trials was the impeachment; but the 1725 impeachment of Macclesfield was the last, until the process was again revived to deal with the corruption of Warren Hastings and Viscount Melville later in the eighteenth century. Of course, impeachments were used against treason as well as venality, so the trials for corruption should not be seen in isolation; but there was growing debate about their effectiveness as a weapon. In 1721, in part because South Sea prosecutions had been evaded, Thomas Gordon stressed the power of impeachment as a way of holding the executive to account.84 However, the fortnight of parliamentary time devoted to Macclesfield’s impeachment and the unanimous verdict of guilt produced only a relatively mild sentence: although he was fined £30,000 several peers protested that this was such a light penalty that it hardly exceeded the amount he was said to have gained through his extortion and ‘may hereafter give too much encouragement to the worst corruptions in the greatest officers of state’.85 Indeed, Macclesfield was even allowed to This argument is made by Nicholas Dirks in relation to the legitimisation of empire through the prosecution of Warren Hastings from 1788 to 1795: Nicholas Dirks, The Scandal of Empire: India and the Creation of Imperial Britain (Cambridge, MA, 2006). 84 Francis Lord Bacon: or, The Case of Private and National Corruption, and Bribery (London, 1721). The tract went through seven editions that year. 85 Cobbett, Parliamentary History, VIII, col. 473. 83

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remain in the Lords. Leeds’ impeachment had illustrated that the process was also too vulnerable to political machinations to be a truly effective, systematic tool against corruption, and was only necessary because the legislation against venality was inadequate. Similarly, parliamentary inquiries were relatively blunt instruments. Although sixteen MPs were expelled between 1689 and 1725 for corruption of one sort or another, many more, particularly during the South Sea crisis, escaped unscathed, and often those who were expelled did not find their careers permanently damaged. The bill of pains against Charles Duncombe, who had amassed a fortune of about £400,000 and would have had two-thirds of this confiscated, was lost. Although he was subsequently twice prosecuted in King’s Bench in 1699, he was each time acquitted, and he even revived his political fortunes when he became London’s sheriff that same year. He died in 1711 ‘the richest commoner of England’.86 Duncombe’s friend Henry Guy had been sent to the Tower, but immediately after his release was able to re-immerse himself in politics, and when he too died in 1711 he left an estate of £100,000 and £40,000 in cash to William Pulteney, the future scourge of corruption, an irony not lost on Robert Walpole who frequently reminded Pulteney of the corrupt origins of his wealth.87 Sir John Trevor’s expulsion in 1695 was only a temporary set-back: as one critic noted, he was allowed ‘to possess a Place of great Trust, and of vast Profit, that of Master of the Rolls, and continues still to sit a JUDGE in that high Court of Equity’.88 He too died a very wealthy man. John Aislabie had been fined £45,000 for his part in the South Sea scandal and was made incapable of holding office, but was allowed to keep all that he possessed before he became Chancellor of the Exchequer, a grand total of £119,000. This sum was sufficiently large to allow him to create the famous water gardens at his estate near Fountains Abbey in Yorkshire. Indeed, with hindsight, so insignificant did his punishment seem that the UNESCO world heritage website, now managing the estate, fails even to mention its former owner’s corrupt past. Corruption paid, sometimes beautifully. Parliament was as problematic a forum as a court in which to reprimand corrupt officials. Even the creation of a parliamentary committee of public accounts proved vulnerable to partisanship since, during Anne’s reign in particular, it was used to hunt down political rivals. The commission was abandoned at the Hanoverian succession in 1714, with very little public lamentation, even though it left parliament without a proper organ for the scrutiny of public expenditure, a gap that was not closed until the 1780s. Moreover, parliamentary sanction was both legally vague and an inadequate forum for the ‘(Sir) Charles Duncombe’, History of Parliament online biography, The House of Commons 1690–1714, available at https://www.historyofparliamentonline.org/ volume/1690-1715/member/duncombe-charles-1648-1711 87 The Parliamentary Diary of Sir Edward Knatchbull, 1722–1730, ed. A. N. Newman (Camden Third Series, vol 94, 1963), 99 [23 Jan. 1730]. 88 A Collection of the Debates and Proceedings, p. 96. 86

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regulation of office-holding. The impeachments were grounded in the catch-all crime of ‘high crimes and misdemeanours’, a category that frequently encompassed a host of other types of offences relating to the abuse of office, but which lacked any clear definition of what such abuses might be. Nor was it clear how corruption at a lower level in the administration of government or in commerce could be tackled routinely. Parliament’s difficulties in finding an adequate mechanism for bearing down on corruption were partially compensated for by the public interest that state trials generated; they helped to foster a public debate through which the court of public opinion acquired more clout. Even though Leeds was never prosecuted, political damage was done to his reputation after the session, when pamphlets detailed the evidence against him and discussed its merits.89 A far-from-impartial editor intervened in the record of debates in the House of Commons to portray Leeds in a very poor light.90 A full version of Macclesfield’s trial was published, but also a summary, again edited to highlight his guilt.91 The vogue of publishing the state trials was itself a reflection of the strong public interest they aroused. The first collection was published in four volumes in 1719, and was sufficiently successful to stimulate an octavo abridgement the following year in eight volumes, with a second, expanded edition in 1730. Until then, however, the press may only have had a relatively limited impact. The publication of the Committee of Secrecy’s reports in 1720 did make a good deal of information available against corrupt MPs, but publication had ‘been held up by the three pretended Proprietors thereof, at an extravagant Price’, and it was not until September 1721 that a summary of the key facts was published for the benefit of ‘the greatest part of the Nation, who cannot purchase them in these Times of Poverty’.92 Robert Crosfeild and Thomas Baston also had to print their accusations of corruption in the navy because other means of redress, including the commission for public accounts, had demonstrably failed to act against corrupt practices; but Crosfeild found himself arrested for his pains.93 Moreover, the press was also used to produce printed vindications of those accused. Two pamphlets robustly defended Leeds in 1695, and, according to one, the printed attacks against him had been counter-productive, ‘so full of virulent and personal Invectives against the Duke, that very little credit is given to them’.94 The Examinations and Informations (1695); cf. A Letter to a Member of Parliament, Occasion’d by the Votes of the House of Commons Against their Late Speaker, and Others (London, 1695). 90 A Collection of the Debates and Proceedings (1695). 91 Tryal (1725); Wilson, Bribes no Perquisites (1726). 92 The Skreen Removed (London, 1721). The month of publication is derived from a frontispiece MS annotation on the copy in the Goldsmiths’-Kress Library of Economic Literature, Senate House Library, London, reproduced on Eighteenth Century Collections Online, ESTC T160109. 93 Knights, ‘Parliament, Print and Corruption’. 94 A letter from a gentleman in Yorkshire, to his country-man in London, concerning the Duke of 89

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Charles Duncombe also published a vindicatory broadside designed to derail the bill of pains being promoted in parliament against him.95 Two vindicatory speeches made by John Aislabie to the House of Lords were published, allowing him a platform and right of reply that his lack of trial otherwise denied him. Public interest was strong enough to support four editions of one of them. State trials for corruption thus had a patchy record. On the one hand they obtained some prominent scalps; but many escaped altogether or were punished only very lightly. They focused attention on abuses and on what constituted corruption, resulting in some regulation and pronouncements about the limits of certain types of behaviour, but they tended to focus on punishing individuals rather than reforming the system. They did generate and inform public debate, especially when the trials were published as a collection, but the court of public opinion was an uncertain weapon against corruption. The trials highlighted the blurred boundaries of how public office was regarded, although during this period the idea that public office was, as Macclesfield claimed, an entirely private piece of property was denounced. The state trials could only chip away at the persistence of long-standing and slow-changing attitudes that were invoked by the accused to defend and even vindicate themselves. ‎

Leeds With an answer to the said letter (London, 1695), p. 5. 95 Mr. Duncomb’s case (London, 1698).

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Part Two Restoration State Trials

3 ‘Blood will have Blood’: The Regicide Trials and the Popular Press Melinda S. Zook ‘The vindictive justice must have his sacrifice somewhere.’1 Between 9 and 19 October 1660, twenty-seven men were tried and found guilty of high treason.2 Ten were executed. These men were drawn on a hurdle to the place of execution, then hanged from a ladder, cut down alive, emasculated, disemboweled and finally beheaded and quartered. Their privates were thrown to the dogs; their intestines burnt; their heads and quarters doled out for display upon the king’s orders.3 The first eight executions were carried out at Charing Cross. But the stench of the burning bowels ‘had so putrefied the air’ that the nearby inhabitants petitioned Charles II, requesting that the remaining executions be moved elsewhere.4 Accordingly, the last two spectacles of what had become an increasingly dismal affair took place at Tyburn. After only ten days, these most public and bloody exhibitions were over. The Restoration regime had enacted its revenge. There were aftershocks. The ritual hanging, beheading, quartering and displaying of the bodies of Oliver Cromwell, Henry Ireton and John Bradshaw took place that winter. Two years later, three more regicides were captured abroad, handed over and executed without trial in April 1662. But these episodes merely reinforced what the popular reaction to the blood-letting of October 1660 had already demonstrated: that the ritualistic mangling and killing of the regicides would not cleanse the past or reconcile a divided nation. The regicide Thomas Scott, justifying the trial and execution of Charles I before parliament in 1659: John Towill Rutt (ed.), Diary of Thomas Burton Esq. (4 vols, London, 1828), IV, 108. 2 Their crime, treason, lay in ‘compassing or imagining the death of the king’, according to the statute, 25 Edw. III. The word ‘regicide’ has no legal meaning. But contemporaries often spoke of them as ‘regicides’ along with other terms such as ‘the King’s judges’, ‘the King’s tryalers’ or simply the ‘traitors’. 3 William Sachse (ed.), The Diurnal of Thomas Rugg, 1659–1661 (London, 1961), p. 116. 4 HMC, 5th Report: Part I. Report and Appendix (London, 1857), p. 175. 1

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What follows is an examination of the regicide trials and executions of October 1660 as they were memorialized in the press. This essay contends that, despite Charles II’s stated desire to build his administration on clemency and oblivion, both his and parliament’s efforts to bring Charles I’s murderers to justice did not heal the nation. As the ever-watchful secretaries of state witnessed, the trials and public executions of the regicides, and their widely circulated dying speeches, did little to adorn the new regime, but did much to garner public sympathy for these men. The restored monarchy’s retributive justice, carried out against a select few, merely enriched a folk culture in opposition, consisting of former Cromwellians, parliamentarian soldiers, religious dissenters and republicans: in short, the various supporters of the Good Old Cause. Little wonder that the king himself told parliament in 1662 that ‘He need not tell them that there was a Republican party still in the kingdom, which had the courage still to promise themselves another Revolution’.5 While any study of the regicide trials and execution must engage with numerous historiographies, including studies of the treason trials, dying speeches and executions, as well as works on martyrdom and memory, scholarly approaches to the regicides themselves are rather thin.6 Recent years have seen a spate of popular histories devoted to these men, often focused on the efforts of the Restoration regime to track down the runaways. These works typically portray Charles II as viciously seeking to exterminate his father’s killers.7 This makes for good storytelling. It also exposes the overweening influence of Edmund Ludlow’s and Lucy Hutchinson’s partisan memoirs which depict a bloody-minded king (Ludlow) and vindictive MPs (Hutchinson) intent on destroying the Good Old Cause and its adherents.8 In fact, Charles II himself never advocated any kind of thorough destruction of his many enemies. During his years in exile, his numerous declarations were temperate, avowing mercy for all with the exception of the men directly Edward Hyde, earl of Clarendon, The Life of Edward Earl of Clarendon … Written by Himself (2 vols, Oxford, 1760), I, 447. This chapter is part of my larger study in progress entitled The King’s Judges: Regicide and Retribution in Early Restoration England. 6 William L. Sachse, ‘England’s “Black Tribunal:” An Analysis of the Regicide Court’, Journal of British Studies, 12:2 (1973), 69–85; A. W. McIntosh, ‘The Numbers of the English Regicides’, History, 67 (1982), 195–216; Howard Nenner, ‘The Trial of the Regicides: Retribution and Treason in 1660’, in Politics and the Political Imagination in Later Stuart Britain, ed. H. Nenner (Rochester, 1997), pp. 21–42; Jason Peacey (ed.), The Regicides and the Execution of Charles I (Basingstoke, 2001). 7 Geoffrey Robertson, The Tyrannicide Brief: The Story of the Man who sent Charles I to the Scaffold (London, 2005); Christopher Pagliuco, The Great Escape of Edward Whalley and William Goffe (Chicago, 2012); Don Jordan and Michael Walsh, The King’s Revenge: Charles II and the Greatest Manhunt in British History (New York, 2013); Charles Spencer, Killers of the King: The Men Who Dared to Execute Charles I (London, 2014). 8 Edmund Ludlow, A Voyce from the Watch Tower: Part Five, 1660–1662, ed. Blair Worden (London, 1978); Lucy Hutchinson, Memoirs of the Life of Colonel Hutchinson, ed. C. Harold (London, 1903). 5

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responsible for his father’s trial and execution.9 In 1659, he named a mere seven regicides that would be exempted from pardon. That number dwindled to five by the winter of 1660.10 His Declaration of Breda, along with his six letters to various corporations (the City of London, the Fleet, the House of Commons, etc.) issued on 4 April 1660, reflected the king’s basic desire to be merciful in order to bring about a quick and peaceable settlement. He wished to return to his kingdoms with ‘as little blood and damage to our people as possible’. ‘No crime whatsoever committed against us, or our royal father, before the publication of this, shall ever rise in judgment, or be brought to question … as lies in our power …’11 Of course, Charles was well aware that parliament might differ, stating baldly in his letter to the House of Commons that he left it to members to fashion an ‘indemnity’ if they desired security from the transgressors of those calamitous times. Clearly, at this point, he was not going to name names. Instead, he repeatedly spoke of his wish for peace ‘without the effusion of blood’.12 Charles II had no wish to position himself as a man of blood. Clemency, after all, was a king’s prerogative, demonstrating a godlike power. But the new king was also a realist, hardened by years of war and exile. He understood that there were many in England as well as many returning from exile who had suffered and lost, and who desired justice and retribution. This is exactly what Charles found when he landed in Dover in May of 1660. Royalists, giddy with expectation and zealous for revenge, demanded the blood of those responsible for the years of chaos and civil discord: the confiscation of Church, Crown and royalist estates; the executions of the four peers; and above all, the trial and execution of King Charles I, soon to be commemorated as a martyr in an official attempt to control public memory.13 Charles II was met with the new rhetoric of revenge even as he commanded the Convention Parliament to expedite the process of passing an act of indemnity. ‘Looking over a long, black, prodigious, dismal Roll and Catalogue of Malefactors’, so Speaker Harbottle Grimstone informed the king, ‘we are not met with Men, but with Monsters, guilty of Blood, precious Blood, precious Royal Blood, never to be remember’d without Tears…’14 Indeed, blood was everywhere. From the outset, Charles I’s judges were cast as the ‘bloody regicides’, while the king himself was a holy martyr whose ‘precious innocent

The Declaration from Dunfermline, 16 August 1650, in ST, V, col. 966. The King’s Instrument Given in Paris, May 1654, in ST, V, col. 968. In 1657, Charles stated that he ‘could not pardon those who sat and voted the murder of my father’: F.J. Routledge (ed.), Calendar of the Clarendon State Papers, Preserved at the Bodleian Library (5 vols, Oxford, 1790), III, 341. Also see Nenner, ‘The Trial of the Regicides’, p. 21. 11 Declaration of Breda, 4 April 1660, in ST, V, col. 952. 12 252 ST, V, cols. 951, 955. 13 Andrew Lacey, The Cult of Charles the Martyr (Woodbridge, 2003). 14 The History and Proceedings of the House of Commons: Volume 1: 1660–1680 (London, 1742), p. 3. 9

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blood’ was cruelly spilt.15 In the royalist tract, The Charge and Impeachment exhibited Against the Bloody Judges of our Late Royal-Martyred King Charles (1660), the very first line makes the blood argument: ‘The positive judicial law of God is that whoever sheddeth man’s blood, by man shall his blood be shed’. Going on (and on) in this vein, the anonymous author declares that ‘The cry of blood is great … And shall not such who are guilty of Innocent Blood, nay royal blood, be called to an account?’16 ‘Blood will have blood’, as another pamphleteer put it, ‘and murther (especially of kings) never passeth unrevenged’.17 Of course, in the joyful atmosphere of the first months of the Restoration, the royalist press had a heyday at the expense at the defeated regicides, fanatics and republicans. Satiric dialogues with scenarios like the regicides meeting in Hell or mock ‘last will and testaments’ were common fare. In one, Hugh Peter (an infinite source of ribald humour) leaves to the holy sisters his penis, ‘which stood in their service as long as ‘twas able’.18 Yet lurking behind even the comic broadsides and playlets was a real thirsting for revenge, for some kind of blood-letting to exorcise the nation’s guilt for the calamities of the past. Royalists often spoke in a language of sacrifice and retribution. Thus Grimstone ended his speech to the new king with a flourish: it was incumbent upon parliament ‘…to except and set some apart for an antidote to expel the poison of sin and rebellion out of others, and that they may be made sacrifices to appease God’s wrath, and satisfy divine vengeance’. Later that summer, the royalist correspondent William Smith wrote that ‘The Lords have delivered sixty-three of the regicides to justice without mercy … this sacrifice is offered only to the manes of his murdered Majesty’.19 The restored regime certainly understood the allure of sacrifice and the need to expiate the past. Justice would have to be served. Charles I’s murderers would have to be tried and judged as they had tried and judged him. They would have to be butchered upon a public stage, exchanging their blood for his. In this sense, the trials and executions of the regicides were to serve as a settling of accounts and perhaps even provide sacrificial meaning and closure to the cycle of violence that began with the civil wars. Although the new king and his advisors did little to stage-manage either the trials or the executions, they did seek to limit the violence and temper Mercurius Publicus, 13 October 1660, p. 660. The Charge and Impeachment exhibited Against the Bloody Judges of our Late Royal-Martyred King Charles (London, 1660), pp. 3–4. 17 The Several Speeches, Disputes and Conferences, betwixt the Gentlemen of the Black Roll (London, 1661), p. 1. 18 A New Meeting of Ghosts at Tyburn being a discourse of Oliver Cromwell, John Bradshaw, Henry Ireton, Thomas Pride, Thomas Scot, Secretary to the Rump, Major-Gen. Harrison & Hugh Peters, the Divells Chaplain (London, 1660); Hugh Peters Last Will and Testament: or, The Haltering of the Divell (London, 1660), broadside. 19 HMC, 5th Report, p. 173. By ‘manes’, he meant the spirit or shade of Charles I, a word well chosen, often used for a dead person considered as ‘an object of reverence or as demanding to be propitiated by vengeance’: The Shorter Oxford English Dictionary (2 vols, Oxford, 1952), I, 1119; House of Commons: Volume 1: 1660–1680 (London, 1742), p.3. 15 16

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the thirst for revenge, lest the inevitable spectacles of blood-letting do more harm than good. They wanted to cleanse the wounds rather than irritate them. Their anxiety was well founded. The trials, executions and, above all, the dying speeches of the regicides were broadcast by the press and produced a radical martyrology. The voices of the regicides, defiant to the end, were amplified and immortalized; their power, augmented. In their deaths, they were given new life. The Guilty On three different occasions during the summer of 1660, Charles II requested that parliament expedite an act of indemnity. The act’s slow progress through Westminster delayed all other business and created an atmosphere of uncertainty within the City, in the army and among the political elite. Even as the two houses continued to bicker over the list of exemptions, the king issued a proclamation on 5 June naming forty-four men ‘who sate, gave judgment, and assisted in that horrid and detestable murder of His Majesties’ royal father’, summoning them to render themselves in fourteen days. This was followed on 15 June by another proclamation which, like the king’s previous declarations, was seemingly conciliatory, implying that if the regicides surrendered within fourteen days they might be included within ‘any pardon or indemnity’.20 Did it mean that those who surrendered were positively pardoned, or did it mean that those who surrendered had a chance of pardon, and that those who did not had none? Believing they would be pardoned, nineteen of Charles I’s judges surrendered themselves.21 In the remaining six weeks prior to the publication of the Act of Indemnity, MPs agreed to focus (mainly) on exempting the king’s judges, although the issue of who qualified as a ‘bloody regicide’ remained. In 1648, 135 men had been named as commissioners (acting as both judges and jurors) to the High Court of Justice that tried Charles I. Some of the commissioners chose to have nothing to do with the regicide court; some were in the field and could not possibly attend; some attended only once or twice; and some were either not present the day the judgment against Charles was read (27 January), or were there on the 27th but did not sign the death warrant. Originally, the Commons designated those who had assented to the sentence against the king on the 27th as guilty of By the King. A proclamation to summon the persons therein named, who sate, gave judgment, and assisted in that horrid and detestable murder of His Majesties royal father of blessed memory, to appear and render themselves within fourteen days, under pain of being excepted from pardon [June 5th] (London, 1660); By the King. A proclamation concerning His Majesties gracious pardon, in pursuance of His Majesties former declaration [June 15th] (London, 1660). 21 The ambiguous wording of this proclamation was something of ‘a snare’ for the regicides that came in upon it. This is described in T. H. Lister, Life of Clarendon (2 vols, London, 1838), II, 14–15. On the confusion contemporaries felt, see The Traitors Claim; or a Clear and Impartial Consideration of the Security as to Life (London, 1661). 20

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high treason (regardless of whether or not they had signed the death warrant) and thereby exempt from pardon. But ultimately, they also decided to include among the guilty, following Charles II’s proclamation of 5 June, anyone who had facilitated the court’s proceedings or had a hand in the execution of the king. Thus, the regicides were more than the king’s judges and included the sergeant-at-arms who proclaimed the king’s trial, the clerks of the Court of High Justice, the commander of the soldiers during the trial, the solicitor general, the soldiers who assisted in the execution, and the two masked executioners. Soon enough, anyone who had attended any session of the regicide court as a commissioner might find themselves exempted.22 And then there were others. The rabble-rousing preacher Hugh Peter was listed with the regicides as exempted from pardon for life, but he was not a member of the High Court, nor had he signed the warrant. The charges against him at his trial were based on his preaching of regicide and the possibility that he had had a hand in the preparations for the king’s execution.23 Sir Henry Vane posed a similar problem. He was too dangerous to live, but he was not a regicide. After being on and off the list of exemptions, he was finally listed separately along with another problematic non-regicide, John Lambert, as persons ‘wholly excepted’ from the present act.24 In the end, the Act of Indemnity (29 August 1660) listed fifty-one men as guilty of regicide. The public knew the names of the king’s judges long before the publication of the king’s proclamations and Act of Indemnity. The press had no compunctions about who was or was not guilty of treason. List after list of those present at the Court of High Justice, from the judges to the clerks to the witnesses against the king, were published prior to, during, and long after the trials of the regicides.25 Publishers also had their ‘short writers’ and ‘observers’ witness and record the trials. Broadsides and cheaply printed tracts, often recounting merely one trial or one day of trials, flooded the market.26 The numerous accounts of the trials in broadsides, weeklies and tracts were fairly consistent, often repeating The standards were arbitrary, and some commissioners who attended the High Court only once or twice were counted as regicides in 1660 while others were not. Others were quietly pardoned by the new regime. In the end, fifty-one men were labeled regicides in the Act of Indemnity (forty-nine named, plus two masked executioners). 23 The Trial of Hugh Peter, ST, V, cols. 116–46. 24 CJ, VIII, 61; LJ, XI, 136. Clause XLI, ‘Exception of Sir Henry Vane and John Lambert’, in ‘An Act of Free and General Pardon, Indemnity and Oblivion’, Statutes of the Realm, V, 1628–80 (London, 1819), 226–34. 25 Even before Charles II landed in Dover, presses in London and Edinburgh printed lists of the ‘pretended judges’. Among the many see, for example, A Catalogue of the Names of so many of those Commissioners as sate and sentenced the late King Charles (London, 1659) or, a more elaborate version, The Great Memorial: Or, A List of the Names of those Pretended Judges (Edinburgh, 1660). 26 The Speeches and Prayers of Major General Harrison, October, 13; Mr. John Carew, October 15; Mr. Justice Cooke, Mr. Hugh Peters, October 16, Mr. Tho. Scott … (London, 1660), ‘To the Reader’, pages unnumbered [henceforth, TSAP]; [George Bate], The Lives, Actions and 22

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the same information verbatim.27 Finally, after all the October trials were over, Sir Heneage Finch, the solicitor general who prosecuted the regicides, published a complete record of the regicide trials.28 The various regicide broadsides and trial tracts maintained a tone of indignation toward the ‘bloody judges’, but they also faithfully recorded the voices of the regicides as they sought to defend themselves, often including their strongest and most poignant responses to the charges against them. The tracts could easily be read with sympathy for the defendants, fueling the faith of their supporters. But regardless of whether the reader was hostile or friendly to the regicides, these accounts memorialized the events and informed contemporary awareness and memory. Thomas Rugg literally recorded what he read in the weeklies; his diary reads as though he witnessed the trials themselves. So too, Edmund Ludlow, living in Switzerland, had access to numerous weeklies with accounts of the trials, reading them faithfully and sympathetically, recording them in his memoirs as though he had been right there in the court room.29 The Trials By the legal standards of the time, the trials of the regicides were not, as C. V. Wedgwood argued long ago, ‘grossly unfair’.30 The Lord Chief Baron, Sir Orlando Bridgeman, sought to maintain the rules of justice, repeatedly stressing that the defendants were being tried in accordance with the law. He tried to maintain the decorum of the courtroom, rebuking spectators for their humming disapproval of the regicides. He ruled that the prisoners’ leg irons should be removed; they were given pen, ink and paper and allowed the full number of challenges to the jury.31 Nonetheless, treason trials since the time Executions of the Prime Actors and principall Contrivers of that Horrid Murder (London, 1661), title page. 27 See the weeklies Mercurius Publicus and The Parliamentary Intelligencer. The broadside, A Looking Glass for Traytors, being the manner of the Tryall of those Barbarous Wretched (London, 1660) lists all the judges, the jurors and the defendants and reviews each trial and execution. Tracts recording a single trial or several trials were also published. For example, The Tryall and Condemnation of Col. Daniel Axtell [with that of Hacker and Hewlett] (London, 1660). 28 [Heneage Finch] An Exact and most Impartial Accompt of the Indictment, Arraignment, Trial, and Judgment (according to Law) of nine and twenty Regicides, The Murtherers of His Late Sacred Majesty Of Most Glorious Memory (London, 1660). Two editions appeared in 1660 and another at the outset of the Exclusion Crisis in 1679. This straightforward record appears to be the basis for Howell’s account of the regicide trials in the Complete Collection of State Trials. 29 The Diurnal of Thomas Rugg, pp. 116–18; Ludlow, Voyce. 30 C. V. Wedgwood, A Coffin for King Charles (New York, 1964), p. 256. Also see Nenner, ‘The Trial of the Regicides’, p. 27. 31 ‘The Resolutions of the Judges upon the Cases of the Regicides’, ST, V, cols. 971–85.

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of the Reformation were more like ‘a kind of conciliar hearing in which the accused was virtually unable to defend himself’.32 The prisoners had no access to counsel and although two witnesses were needed to prove the defendant’s guilt, they did not need to testify to the same treasonous act or utterance.33 The regicides’ arguments in defense of their actions were always countered by several voices; they were often interrupted and bullied, and their confusion about the law was dismissed. But, above all, the outcome of their trials was no more in doubt than that of Charles I’s. The trials of the twenty-nine regicides in custody began on 9 October and lasted for ten days. The tone of the prosecution was set first by Bridgeman. In his instructions to the jurors, he laid out a divine right justification of kingship, ending his charge with a dramatic flourish: ‘To conclude, you are now to enquire of blood, of royal blood, of sacred blood; blood, like that of the saints under the altars, crying, Usque quo Domine, How long, Lord, &c. This blood cries for vengeance, and it will not be appeased without a bloody sacrifice’.34 Finch made a similar speech at the outset of the first trial on 11 October, striking out against the entire calamity of the past twenty years and declaring that ‘the actors in this tragedy were many, very many, so many that sure their name is legion or rather legions’. Yet in Sir Edward Turner’s speech that followed, he made it clear that it was but a ‘handful of men’ who were guilty of corrupting the nation, spreading ‘Jesuitical maxims, damnable and diabolical principles’.35 Clearly, the regicides were meant to stand in for those who corrupted legions. The first trial was that of the Major General Thomas Harrison. Harrison and those who immediately followed him were easy marks; they had all sat at the king’s trial and signed the death warrant. Harrison also had a fearsome reputation, due to his ties to the militant Fifth Monarchists. The new regime probably wished to bring him to the halter as soon as possible, which is exactly what happened: his execution occurred two days later. His demeanor at his trial was reported as confident, ‘as if he thought himself careless and unconcerned in the business’. Kings had been killed before, he asserted, ‘privately assassinated or murdered’.36 But ‘what we did’, Harrison calmly told the court, ‘we did not in a corner; we were the servants of God and I have prayed on it and seem to have gotten His assurance’. Harrison also pointed out that the trial of the king was done by order of parliament, over which the present court had James R. Phifer, ‘Law, Politics, and Violence: The Treason Trials Act of 1696’, Albion, 12:3 (1980), p. 236. 33 The Sedition Act of 1661 (enshrined in the Treason Trial Act of 1696) introduced the rule for two witnesses to the same act of treason. 34 [Finch] An Exact, p. 16; ST, V, col. 994. Spelling in the Latin quote modernized. 35 [Finch] An Exact, pp. 39, 41; ST, V, cols. 1014, 1016. Turner represented the duke of York. 36 A Looking-Glass for Traytors, being the Manner of the trial of those Barbarous Wretches at Justice-Hall in the Old Bailey (London, 1660), broadside; Harrison’s seeming indifference was widely reported. See also [Bate] The Lives, p. 18. 32

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no jurisdiction. Bridgeman and Finch were prepared for this argument and repeatedly pointed out that no power had authority over the king, and that the Rump Parliament was not a true parliament regardless, since it had been purged by force and was missing the House of Lords. Harrison pursued another avenue of defense, declaring that the king had started the war: he had set his standard against the people and shed their blood. This drew the judges’ fury: ‘oh, this must not be suffered! This does not belong to you!’ But Harrison continued, ‘this doth belong to me. I would have abhorred to have brought him to account had not the blood of Englishmen, that had been shed –’. But he was interrupted and maligned. ‘Methinks he should be sent to bedlam’, Sir Edward Turner, counselor for the duke of York, asserted, ‘till he comes to the gallows to render an account of this’. Standing alone against judges and counselors who attacked him from all sides, Harrison maintained his composure as well as the legality and transparency of the events of 1649: ‘The things that have been done, have been done upon the stage, in the sight of the sun’.37 As in each trial that followed, the jury did not retire but rendered its verdict on the spot: ‘guilty’. At which point, Bridgeman recited the dreaded sentence: … you shall be hanged by the neck, and being alive shall be cut down, and your privy-members to be cut off, your entrails to be taken out of your body, and (you living) the same to be burnt before your eyes, and your head to be cut off, your body to be divided into four quarters, and your head, and quarters, to be disposed of at the pleasure of the king’s majesty…’38

Harrison was stoic to the end. ‘He seemed not a whit dismayed at the sentence’, one press report noted, ‘but stood with an audacious countenance all the while’. The sheriff who accompanied Harrison back to Newgate told him that he would do well to prepare for death, to which Harrison replied that this was not ‘the first time he has looked death in the face, and that his body was full of scars, yet he had remaining a good heart’.39 This is exactly how Harrison went to his death two days later. With Harrison’s trial behind it, the court picked up speed. The trials of four regicides (Adrian Scrope, John Carew, Thomas Scott and John Jones) were dispatched on 12 October.40 Of these, the trials of John Carew and Thomas Scott were the most publicized. The Fifth Monarchist, Carew, put up a vigorous defense, but did so in his native tongue, resulting in a godly discourse that sent the court into fits. ‘What I did was in His fear and I did it in obedience to

The Arraignment, Tryal, and Condemnation of Thomas Harrison, Late Major General, and one of the pretended Judges (London, 1660), p. 8; [Finch] Exact, p. 54; [Bate] The Lives, p. 19; ST, V, cols. 1031, 1032. 38 [Finch] Exact, p. 56; ST, V, col. 1034. The press reported variations of this gruesome sentence in the trial literature. 39 The Arraignment, Tryal, and Condemnation of Thomas Harrison (London, 1660), p. 8. 40 Gregory Clement was also there but pleaded guilty. 37

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His holy and righteous laws’, Carew boldly asserted.41 The gallery erupted with humming and grumbling. Bridgeman tried to control the situation: ‘he stands for his life, let him have liberty’. But Carew went further, trying to review the entire war, fought on behalf of the nation. ‘It is your course to blow the trumpet of sedition’, inserted Justice Foster, ‘did you ever hear or can you produce instances of an act of Parliament made by the House of Commons alone?’ To this question Carew quickly countered, ‘Neither was there ever such a war, or such a precedent’.42 The public was already well acquainted with Thomas Scott, as the press had had a heyday at his expense for the previous six months. Scott’s service as a spymaster to the Commonwealth and his outspoken justifications of the king’s trial and execution made him an easy target of derision. Even as the republic began to collapse, Scott defended the Good Old Cause in parliament: Though I know not where to hide my head at this time, yet I dare not refuse to own, that not only my hand, but my heart also was in it … I desire no greater honour in this world, than the following inscription may be engraved on my tomb: here lieth one who had a hand and a heart in the execution of Charles Stuart.43

None of this was forgotten, and the court used Scott’s utterances in the Rump against him. To one recounting of his infamous tombstone declaration, Scott replied, ‘you speak of words that I should utter in Parliament, I do humbly insist upon it, that I am not to answer … it is a high breach of privilege’. ‘There is no privilege of Parliament for treason’, Turner asserted. Scott stoically defended himself, employing arguments from law and history, but nothing fazed the court.44 A series of more difficult trials began on 14 October. These men were not commissioners at the trial of Charles I and thus had not assented to the sentence against the king or signed the death warrant. The accused ranged from simple soldiers with rudimentary educations to men of the Inns of Court, well versed in the law and legal procedure. Among the latter was John Cook, the solicitor general at the king’s trial. Cook mounted a rigorous defense of his actions. He was appointed to plead the case against the king, and thus he ‘spoke only for my fee’. Bridgeman was not impressed; the fact that Cook had read the This quote by Carew was widely repeated. The Tryall and Condemnation of Col. Adrian, Scrope, Mr. John Carew, Mr. Thomas Scot etc (London, 1660), p. 6; A Looking-Glass for Traytors, broadside; Finch, Exact, p. 76. 42 [Finch] Exact, pp. 76, 79; ST, V, cols. 1052 (Bridgeman quote), 1055 (Foster and Carew quotes). 43 Ludlow, Voyce, p. 100. Scott’s tombstone remark was repeated nearly every time he was mentioned in the tracts and weeklies of 1660 and long after. For examples, see A Looking-Glass for Traytors, broadside; The True Characters of the Educations, Inclinations and Several Dispositions of … every one of those Bloody and Barbarous Persons (London, 1661); William Winstanley, The Loyall Martyrology (London, 1665), p. 138. 44 [Finch] Exact, p. 88; ST, V, col. 1064. 41

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charge against the king was treason enough, and he was deaf to Cook’s constant rebuttal, ‘I say, my lord, what I acted I did as a counselor, I had no malicious intention in it’.45 The trial of the notorious Independent preacher Hugh Peter followed. Peter had had no formal role at the king’s trial, and perhaps for this reason the court produced more witnesses against him than any other defendant. These witnesses not only testified to his violent railing against ‘royal blood’, but also to his supposed behind-the-scenes orchestrating of the trial and execution of the king. One witness alleged that Peter had a carpenter knock four staples into the scaffold to which ropes would be tied were it necessary to restrain the king during his execution. For the most part, Peter seemed cowed by the proceedings. Press reports described him as standing ‘strangely amazed and could say nothing for himself’.46 The first trial on 15 October, following a one-day hiatus, was another long one. The parliamentarian army officer Daniel Axtell, who had commanded the soldiers at the king’s trial, fought boldly for his life. Axtell’s vigorous defense of his actions, and his often strikingly poignant counterarguments, made his trial one of the most reviewed in the press. The evidence against Axtell concerned his behavior during Charles I’s trial, wherein he supposedly ordered his soldiers to cry ‘justice, justice’, and ‘execution, execution’, as well as had them fire their powder into their palms in order to offend the king with the smell and smoke. He was also accused of having his soldiers turn their muzzles on Lady Fairfax in the gallery, who famously interrupted the proceeding by shouting that Cromwell was a traitor.47 Axtell justified his obedience to the Rump Parliament as ‘the recognized authority, owned and obeyed at home and abroad’, insisting that if he were guilty of treason, then all the MPs and those who chose them were as well. To this he added a ‘superior orders’ defense; he was, after all, simply a soldier obeying a command. ‘I am no counselor, no contriver; I was no parliament man, none of the judges, none that sentenced, signed, none that had any hand in the execution, only that which is charged is that I was an officer in the army; if that be so great a crime, I conceive that I am no more guilty than the earl of Essex, Fairfax or the Lord of Manchester’.48 But Bridgeman, who remained calm even as others became increasingly agitated by Axtell’s boldness, replied simply, ‘Your commission was not to put the king to death but to preserve him … All unjust commands are invalid’. Axtell went on to refute the witnesses against him point by point: he justified his behavior at the king’s trial, he argued as to the possible meanings of the words ‘justice’ and ‘execution’, and he insisted that no one had A True and Perfect Relation of the Grand Traytors Execution… (London, 1660), broadside; [Finch] Exact, p. 126; ST, V, col. 1096. 46 286 A Looking-Glass for Traytors, broadside. 47 The Tryall and Condemnation of Col. Daniel Axtell etc (London, 1660), pp. 3–4; ST, V, cols. 1147–54. 48 This heady quote by Axtell was widely repeated in the tract literature; for example, The Tryall And Condemnation, p. 6; [Finch] Exact, p. 198; ST, V, col. 1158. 45

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proved that he had ‘imagined’ the king’s death. But nothing would alter the verdict. Finally, he concluded his efforts by appealing to the jurors: ‘I leave the matter to the jury, in whose hands I, and my little ones, and family are left, I only say this to you, remember your ancestors, remember your posterity’.49 The trial of Axtell was long and exhausting, and even Bridgeman conceded that the defendant had made good use of ‘the law-books which he hath lately seen’.50 The soldiers who followed him, Colonel Francis Hacker and Captain William Hulet, were far less able to defend themselves. Both men were accused of arranging the king’s execution, and the court sought to obtain from them the names of the masked men on the scaffold. During Hulet’s trial, witnesses were produced who reported that Hulet had bragged of being the king’s axe-man, but others gave evidence that pointed to the common hangman as the most likely candidate. The judges gained nothing conclusive and both soldiers received modicums of mercy. Hacker was hanged only, and his body given to his family for burial; Hulet’s sentence was remitted to life in prison.51 On 16 October, fifteen men were brought to court, all of whom were commissioners at the trial of Charles I.52 Their trials were short. They admitted to sitting at the Court of High Justice, although not all of them had signed the death warrant. Most pleaded ignorance and begged for mercy, realizing that their best hope lay with Charles II. ‘I acknowledge what I have done’, declared Symon Mayne, ‘and lie at his Majesty’s feet for mercy. I was an ignorant, weak man in the law’. Several of them cited their youth at the time of the king’s trial. Some wept. Henry Smith reported that he was ‘a man of trouble and sorrow’. John Downes styled himself a ‘poor, ordinary, mean man’, ‘unfit’ to be a judge. Only the republican, Henry Marten, tried to defend his actions, insisting that the Rump Parliament was, in fact, the ‘de facto power’ at that time and that the king was a prisoner and not ‘in execution of his offices’. But, naturally, this insistence that the king was not the king, and that Marten’s actions were done on behalf of the ‘good people of England’, carried no weight with the court. Marten knew this and declared rather slyly that ‘if it were possible for the blood to be in the body again and every drop that was shed in the last wars, I would wish it with all my heart…’ His inference was clear: the blood of the people was as important as the king’s, who had in fact begun the wars that had destroyed many.53 [Finch] Exact, p. 215; ST, V, cols. 1163, 1174. [Finch] Exact, p. 216; ST, V, col. 1175. 51 Hacker’s brothers were loyalists; one died fighting for the king and the other, Rowland, lost his hand. Rowland petitioned Charles II for Francis’s estate. See CSPD, Charles II, 1660–61, p. 339. 52 Henry Marten, Isaac Pennington, Gilbert Millington, Robert Tichburn, Owen Rowe, Robert Lilburne, Henry Smith, Edmund Harvey, John Downe, Vincent Potter, Augustine Garland, Symon Mayne, Peter Temple, James Temple, Thomas Wayte (or Waite). Axtell, Hacker and Hulet were also present. 53 ST, V, col. 1217 (Mayne); ST, V, col. 1205 (Smith); ST, V, col. 1214 (Downes); ST, V, col. 1201–2 (Marten). 49 50

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All of these men were found guilty. Bridgeman’s tone during the final sentencing was solemn. He acknowledged that many of the defendants before him were ‘persons of liberal education, great parts’, and though all prepared the ‘way and means’ that brought the king’s head to the block, most would be spared the execution of their death sentence until further consideration by parliament. But for the soldiers, Axtell and Hacker, he continued, there would be no mercy.54 The trials of the regicides were over. The Executions The final hours of the regicides are vividly portrayed in the printed versions of their dying speeches, published in numerous editions throughout the Restoration era and beyond. Sometimes the speeches were published singly, sometimes collected together, but with very little variation. These texts represent far more than simply the last words of the condemned from the ladder. They are compilations of information about the last hours, conversations, prayers and letters of these men. They speak to their treatment by the soldiers and sheriff, bystanders and supporters and, most tellingly, the reactions of spectators both to their final words as well as to their dismemberment and death. The first editions of the dying speeches were published by a group of publishers notorious for their radicalism, later dubbed ‘Confederate Stationers’ by Roger L’Estrange who, as surveyor of the imprimery, made it his business to put these men and women out of business.55 These publishers were keen to assure their readers that their accounts were authentic, published to ‘satisfy those many in city and country who have desired it’, and so all might ‘see the riches of grace magnified in those servants of Christ’. They also stressed how ‘there are sufficient witnesses in this city, unto whom we can appeal, that there is nothing patronized upon these sufferers but what was spoken by them’. The speeches were taken down by several ‘exact short-writers’; the ‘best copies’ were compared and ‘brought to perfection’. ‘What thou hast here therefore are some small mites, carefully taken out of their great treasury’, published to prevent any further wrongs against the deceased and to show all men ‘what it is to have an interest in Christ in a dying hour and to be faithful to his cause’.56 The collected dying speeches were hardly ‘small mites’, however, at nearly one hundred pages. Nonetheless, the first edition was a hot commodity.57 ST, V, col. 1225. This group included the printer, Simon Dover; the publishers and booksellers, Thomas Brewster, Thomas Creake, Livewell Chapman and Giles and Elizabeth Calvert; and the bookbinder, Nathan Brookes. Others who helped included Anna Brewster and John and Joan Darby. L’Estrange refers to them as the ‘Confederate Stationers’ in Considerations and Proposals in order to the Regulation of the Press (London, 1663), p. 6. 56 296 TSAP, ‘To the Reader’. 57 ST, VII, col. 544. 54

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Soon there were knock-off versions by other publishers. In 1660 and 1661, at least five different editions of the regicides’ dying speeches were published.58 Contemporaries, whether hostile or sympathetic, never questioned the authenticity of the dying speeches. Furthermore, the ‘Confederate Stationers’ were not the only ones to have their ‘short-writers’ present at the gaols and execution sites. Royalist newsletter writers were also scribbling down what they saw and heard. The descriptions of the last dying words and executions of the regicides in The Parliamentary Intelligencer and Mercurius Publicus are not as elaborate as in the various editions of the dying speeches, but they tell the same stories. In short, hostile sources recounted the final words and moments of the regicides in a similar fashion.59 Scholars have argued that the entire ‘English judicial dramaturgy’, from the sentencing of the defendant to his or her execution, confirmed ‘the power, majesty and legitimacy of the law and the state’. Once at the gallows, the condemned were supposed to play their part by confessing their crime, acknowledging the justice of their sentence, asking forgiveness and warning the audience.60 ‘Executions were dramatized in order to serve as a sort of morality play’, writes Pieter Spierenburg, but even he acknowledges that there was ‘obviously some improvisation’. More than some, it would seem. In fact, the entire drama rarely played out in such a scripted manner. As Thomas W. Laqueur pointed out in 1989, early modern executions, far from demonstrating the state’s power, were often rather shabby affairs, susceptible to all sorts of ‘ludicrous and macabre mishaps’.61 What is patently obvious is how little the English government sought to manage the theater of the damned in any way that reinforced the legitimacy of that state. In fact, English men and women, both famous and obscure, strove to control their final moments, defying In addition to TSAP cited above, see A true and perfect relation of the grand traytors execution … Together with their severall speeches and confessions which every one of them made at the time of their execution (London,1660); The speeches and prayers of some of the late King’s judges …Together with several occasional speeches (London, 1660); W. S., Rebels no Saints: or a Collection of the Speeches, Private Passages, Letters… Executed (London, 1661); W. S., A compleat collection of the lives, speeches, private passages, letters and prayers of those persons lately executed (London, 1661); The Several Speeches, Disputes and Conferences, betwixt the Gentlemen of the Black Roll … and divers of the Independent party in the Common Dungeon at Newgate (London, 1661). 59 Blair Worden also came to the same conclusion; see his Introduction to Voyce, p. 84. 60 Douglas Hay, ‘Property, Authority, and the Criminal Law’, in Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England, ed. D. Hay, P. Linebaugh, J. G. Rule, E. P. Thompson and C. Winslow (London, 1975), pp. 17–64; J. A. Sharpe, ‘“Last Dying Speeches:” Religion, Ideology and Public Execution in Seventeenth-Century England’, Past & Present, 107 (1985), 144–67. 61 Pieter Spierenburg, The Spectacle of Suffering (Cambridge, 1984), p. 43; Thomas W. Laqueur, ‘Crowds, Carnival and the State in English Executions, 1604–1868’, in The First Modern Society: Essays in Honour of Lawrence Stone, ed. A. L. Beier, D. Cannadine and J. M. Rosenheim (Cambridge, 1989), p. 311. 58

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authority and fashioning their legacy.62 Initially, in October 1660, the restored regime let the executions of the regicides unfold without the least concern. By the time they realized that these godly disciples, both zealous and articulate, were customizing their own deaths, and the sheriffs were ordered to stop their final speeches from the ladder, it was too late. The first to die, Thomas Harrison, went to his execution rejoicing and calling it ‘his wedding day’. Time and again, he justified himself: ‘As to the king’s blood, I have not the least guilt lying upon me’. He had acted on the authority of parliament, through which God had intervened: ‘For God owned it [Parliament] by pleading their cause and fighting their battles for them’. As Harrison made his way from the sledge to the ladder, he encountered some derision from a bystander who asked him, ‘Where is your good old cause?’ ‘He with a cheerful smile clapt his hand on his breast and said, “Here it is, and I am going to seal it with my blood”’. The dying speeches reported that Harrison was ‘transported with joy’ at the sight of the place of execution. ‘He went up the ladder with an undaunted countenance’.63 ‘Many of his acquaintance’, a broadside reported, ‘did seem [to] triumph to see him die so confidently’. Another claimed that, ‘He was not so much thrown off the ladder by the executioner, but went as readily off himself’.64 But if Harrison’s confident and unrepentant demeanor were not enough to make authorities cringe, to this was added his widely reported utterance that he would rise again in three days to judge those who had judged him.65 Pepys, who had witnessed Charles I’s beheading, saw Harrison’s execution too, ‘the first bloodshed in revenge for the blood of the King at Charing Cross’. Of Harrison, Pepys reported that, ‘He looked as cheerfully as any man could do in that condition. He was presently cut down and his head and heart shown to the people, at which there was great shouts of joy’.66 The first executions elicited some support from the bystanders, who reportedly cheered at the dismemberment of these men. After John Carew’s execution, held on 15 October, the secretary of state, Sir Edward Nicholas, reported that ‘the people show great satisfaction in what is done’. But was this the case? Carew, like Harrison See, for example, Stephen J. Greenblatt on Raleigh’s execution in Sir Walter Raleigh: The Renaissance Man and His Roles (New Haven, 1973), pp. 9–21; or Arthur F. Marotti on the death of the Jesuit, Robert Southwell, in Religious Ideology and Cultural Fantasy (Notre Dame, 2005), pp. 24–27. On common women, see Fran Dolan, ‘“Gentlemen, I have one thing more to say:” Women on Scaffolds in England, 1563–1680’, Modern Philology, 92:2 (1994), 157–78. 63 TSAP, pp. 2, 6–7. 64 A True and Perfect Relation, broadside; [Bate], The Lives, p. 21. 65 This was widely reported. Pepys wrote that ‘it is said that he was sure to come shortly at the right hand of Christ to judge them that now have judged him. And that his wife doth expect his coming again’. The Diary of Samuel Pepys, ed. R. Latham and W. Matthews (11 vols, Los Angeles, 1971), I, 265. Royalists mocked Harrison’s boast but they also found it troubling since it comforted his followers. 66 Pepys, I, 265. 62

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also used his final moments to defend the cause and lambast the new regime, predicting its downfall. ‘The Gospel was going from London and popery and superstition coming in’. Yet, he assured the crowd that the ‘blessed cause’ would not be lost. In his long and angry millenarianist speech from the ladder, he declared that Charles II’s administration was the ‘last beast’ of the apocalypse. When the sheriff tried to stop him, a fight broke out between Carew’s friends and an undersheriff.67 Already officials must have wondered if the public executions of the regicides were a mistake. The executions of John Cook and Hugh Peter took place the next day. Cook’s behavior evoked more sympathy and admiration. He too spoke of his execution as his wedding day, when he would meet his bridegroom, Christ Jesus. ‘I had rather go to my dear Jesus with my Chain and Cross then to sit down with an Earthly King on his Throne and wear a crown of Gold’.68 Cook’s speech from the ladder was interrupted by the sheriff several times, to which Cook replied that even the Turks would not insult a dying man so and refused to end his speech. ‘I have the justice of Heaven on my side’, he told the crowd, ‘…[and] it will appear before men and angels, that we are not traitors, nor murderers, nor fanatics, but true Christians and good commonwealths men fixed and constant to the principles of sanctity, truth, justice, and mercy which the Parliament and the Army declared and engaged’.69 Peter, made to watch Cook’s dismemberment, was taunted by the hangman, ‘who came to him all smeared in blood, “do you like my work?”’ Peter is said to have replied, ‘I am not (I thank God) terrified at it, you may do your worse’. The dying speeches report that the crowd was so uncivil that Peter’s final speech and prayers could not be taken down. Hostile sources report that no one was less pitied than Peter and that ‘the spectators gave a great shout when he was turned off and when his head was held aloft on a spear’ for it was ‘this bloody head which made them guilty of so much blood’.70 For poor ‘bodkins and thimbles’ Peter, there was little compassion: he embodied the worst excesses of the Revolution. The tide turned the following day, 17 October, with the executions of Thomas Scott, Adrian Scrope, John Jones and Gregory Clement. At Newgate, Scott had been troubled and wished for a day’s reprieve, but he also stated flatly that he had ‘not one temptation to desert the good cause’. By the time he arrived at Charing Cross, he was as verbose and articulate as when he spoke in parliament. But the sheriff, who was instructed not to allow any more godly speeches, continually interrupted him. Both Scott and the crowd saw the sheriff’s efforts as a violation of a fundamental right. ‘Sir, tis hard, that an English man may hath not liberty to speak’, Scott declared.71 The deaths of Adrian Scrope and John 69 70 71 67

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TSAP, pp. 13–15, 24. TSAP, p. 27. TSAP, pp. 33, 48–49. TSAP, p. 63; A True and Perfect Relation of the Grand Traytors Execution (London, 1660). TSAP, pp. 57, 61.

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Jones, ‘two comely ancient gentlemen’, evoked more sympathy from the crowd. ‘I was born and bred a gentleman’, Scrope announced from the ladder, ‘I die in the Cause of Lord Jesus Christ’. Even hostile sources report that Scrope was ‘a comely person’, ‘somewhat pitied’ by spectators.72 Jones made a more traditional speech. Although he did not ask for forgiveness, he did forgive the king, who only did what any ‘loving son’ would do. The sheriff supposedly responded, ‘I am glad to hear such an ingenious confession and that you made such an end and that you have not gone into any reviling language as some others have done before’. The dying speeches state that the ‘grave and graceful countenances’ of Scrope and Jones earned ‘the great admiration and compassion of the spectators’. They also report that the executioner, ‘drunk with blood’, grew sick to his stomach and set ‘his boy to finish the tragedy upon Col. Jones’. Clement, the final victim of that day, suffered in silence. John Evelyn ran into the body parts of Scott, Scrope, Clement and Jones, ‘mangled and cut and reeking as they were brought from the gallows in baskets on a hurdle’.73 The spectacle of 17 October was a macabre one. Between the slaughtering of the two ‘comely’ gentlemen, who drew sympathy from the crowd, the violent sickness of the executioner and the putrid smell of the burning entrails, the state’s display of retributive justice upon the bodies of the regicides was having an adverse impact. The plan to dispose of four regicides in one day, and to have the sheriff attempt to silence any seditious speeches, had turned against the regime. Spectators came to hear the men speak. They were angered by the sheriff’s interference. They were repulsed by the long and grisly process of castration, disembowelment and dismemberment. Even the executioner could not get through more than two. The smoke and stench permeated the air and residents complained. Daniel Axtell and Francis Hacker were scheduled to be executed at Charing Cross the next day, but the authorities granted them a one-day reprieve as they reconsidered the situation. The executions of Axtell and Hacker at Tyburn on 19 October were the last to be carried out in 1660. There is no evidence in any of the sources that the crowd was anything but sympathetic to the condemned. Hacker died ‘without remorse’.74 Axtell was brave and pugnacious to the end. At Newgate, he made several inflammatory statements. Of his enemies, he declared, ‘I shall do them more hurt in death than I could do in my life’, and he repeatedly declared his support for the Revolution: ‘If I had a thousand lives, I could lay them all down for the cause’. When asked what he meant by ‘the cause’, Axtell replied, ‘I mean the cause which we were encouraged to and engaged in under the Parliament, which was for common right and freedom and against the surplice and common prayer book’.75 TSAP, p. 67; The Parliamentary Intelligencer, 10 to 13 October 1660, p. 672. TSAP, pp. 71–72, 70, 73; John Evelyn, The Diary of John Evelyn, ed. E. S. de Beer (6 vols, Oxford, 1955), I, 259. 74 HMC, 5th Report, p. 175. 75 TSAP, pp. 82, 84. 72 73

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At Tyburn, standing from a cart rather than a ladder, Axtell tried to continue to exalt the cause and assert his own innocence, but the sheriff constantly interrupted, ‘the court prohibits you to speak’. Axtell was not easily deterred, though he finally began praying and weeping long and loud. Before his death, a fight broke out between the hangman and the cart-man. The latter wished to withdraw from the proceeding, saying ‘he would [rather] loose his cart and horse before he would have a hand in hanging such a man’. Hacker, a man of fewer words, was hanged only. ‘The spectators...behaved themselves very civilly... [many] retired to weep’.76 On 20 October, Pepys ‘saw the limbs of some of our new traytors set upon Aldergate, which was a sad sight to see and a bloody week this and the last have been’. The quarters of those deemed the worst of the lot – Harrison, Peter, Axtell and Cooke – were displayed throughout the city. Pepys observed the heads of Harrison and Cooke while enjoying the cityscape from a turret atop a friend’s house.77 Royalists may well have rejoiced at the sight of the heads on display; the cycle of justice had played out. But even Pepys found it ‘a sad sight’, and for many others it may have only been emblematic of the suffering the saints were meant to endure under the new regime. The godly did not believe that the cause these men died for was dead. They looked to signs in the skies. They looked for Harrison and Carew to return; and, above all, they looked to the regicides lurking about Europe and New England to avenge this blood, ‘the blood o’ the just’.78 Aftermath The trials and dying speeches of the regicides were a goldmine for publishers. In 1663, L’Estrange caught the ‘Confederate Stationers’ red-handed, and they were prosecuted for attempting to bring out yet another edition of the dying speeches.79 Savvy publishers, seeking to evade regime watchdogs, published the dying speeches under titles such as Rebels no Saints. Tracts such as these looked like anti-republican, royalist diatribes, and even contained short introductions lambasting the godly, but the contents were the last moments, letters, and dying speeches verbatim as they were

TSAP, pp. 87–88, 95; The Diurnal of Thomas Rugg, p. 116. Pepys, I, 269, 270. Also see the broadside, On the Six Pinnacles upon Westminster Hall, or a Size of Traytors Heads (London, 1661). 78 Mirabilis Annus: Or, the Year of Prodigies and Wonders (London, 1661); ‘London’s Lamentation’ in The Plague Checkt; or Piety will either prevent or Alter the Property of the Plague (London, 1665), pages unnumbered. This poem asserts that the plague is God’s punishment for the deaths of the godly regicides. 79 ‘Thomas Brewster, bookseller, Simon Dover, printer, and Nathan Brooks, bookbinder, for misdemeanors, at the Old Bailey, 15 Charles II, 1663’, ST, VII, cols. 513–64. 76

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published in the first edition by the Confederates. The speeches were so profitable that many a publisher wanted a piece of the action. But what did the king and his handlers think had happened? If they thought the trials and executions of the regicides would bring about any kind of resolution to the conflicts of the last twenty years, they were wrong. If they thought the regicides would admit their guilt or plead for forgiveness upon the ladder, they were wrong. If they thought this blood-letting would be the last blood-letting in this vicious cycle of violence, they were wrong. Just three months later, in early January 1661, a small group of armed men terrorized London for three days. Thomas Venner and his band of Fifth Monarchists sought to overthrow the restored monarchy and initiate the reign of Jesus. Their slogan was ‘King Jesus and their heads upon the gates’. Indeed, Venner rebels even sought to retrieve the heads and quartered bodies of the regicides on display.80 These men had not been forgotten. To his credit, Charles II had looked to spill the least amount of blood. He may have witnessed one or more of the executions or simply heard about them.81 Either way, they brought him little satisfaction: if anything, he seems to have wished it would all go away. In November 1660, Pepys reported that the ‘King is a man of such great compassion that were it up to him, he would acquit the men who stand condemned for murdering the King’. In July 1661, when a bill for the execution of the nineteen regicides whose sentences had not been carried out was before the House of Commons, Clarendon thought it best if the matter ‘should sleep’, and the king agreed. ‘I must confess’, he scribbled in a note to Clarendon during a privy council meeting, ‘that I am weary of hanging except on new offences’.82 Nor did the king feel secure. The threat from what the government saw as the adherents of republicanism and fanatical zealotry remained. In his speech before parliament in the summer of 1661, Charles declared that the Act of Indemnity remained ‘the principal cornerstone’ upon which his government stood, but he also advised MPs to ‘provide full remedies for any future mischiefs … especially if they be so upon old principles, and pull up those principles by the roots’. The Civil War was not a mere memory. The Good Old Cause still animated many. Even royalists admitted that the executions of the regicides ‘revived a zeal, confidence and boasting of their cause’.83 Richard L. Greaves, Deliver Us From Evil: The Radical Underground in Britain, 1660–1663 (Oxford, 1986), p. 51. 81 Evelyn states that the king attended several executions: see Evelyn, Diary, III, 259. Unfortunately, no one else reports this so the reliability of Evelyn’s report remains unclear. 82 Pepys, I, 295; Notes Which Passed at Meetings of the Privy Council between Charles II and the Earl of Clarendon, ed. W. D. Macray (London, 1896), p. 29. 83 The History and Proceedings of the House of Commons, p. 31; William Sedgwick, Animadversions upon a book Entituled Inquisition for the Blood of our late Sovereign (London, 1661), p. 257. 80

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Throughout the 1660s, government informants flooded the secretaries of state with reports of secret meetings, conspiracies, night ridings, rumours of risings and plots, and hundreds of intercepted letters. Many of these referred to the regicides, be they alive, dead or resurrected from the dead, as inspirations. A report on the fanatical London preacher William James stated that he told his listeners that the blood of Harrison, Carew and Scott was the seed that would increase thousand-fold. Their deaths were blamed on the ‘scarlet whore, who bathed herself in the blood of saints’.84 In April 1661, the regime learned of Fifth Monarchy Men praying for justice for those who spilled the blood of the ‘righteous Axtell and Harrison’. That summer a gunsmith reported that Edmund Ludlow and Major General Edward Whalley, both regicides in exile, had landed in Essex. Later that fall a report circulated that ‘40,000 old soldiers … and Anabaptists and many Presbyterians’ were preparing and in a ‘few days … [they] would see Ludlow the greatest man in England’. In 1662, another old soldier was reported to have declared that ‘had they known that things would come to this pass, they would have aided Lambert, and that they are punished for not sacrificing their lives in defense of Harrison and the rest, so barbarously murdered’. And in 1663, another witness reported the rumor that the three and half years of ‘staying the witness’ were now over and ‘the people of God and the old cause will live’ again.85 Such rumours and sightings, particularly of Ludlow, were common fare. The sacrifice of the regicides, surrogates for the nation’s guilt, had not resulted in any kind of purification or reconciliation, just as the Act of Indemnity had not obliterated the past. The past remained contested. The nation’s wounds, like the scars on old soldiers, were still visible. The trials and executions of the regicides only served to give the Good Old Cause another forum, for the regicides spoke and defended their cause, while the press memorialized and disseminated their words. In this sense, Harrison was right. He did rise from the dead.

CSPD, Charles II, 1661–62, p. 110. CSPD, Charles II, 1660–61, p. 569; CSPD, Charles II, 1661–62, pp. 71, 119, 614; CSPD, Charles II, 1663–64, p. 266. 84 85

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4 The Trial and Execution of Oliver Plunket John Marshall On 8 June 1681 Oliver Plunket, Catholic archbishop of Armagh, was tried in the Court of King’s Bench at Westminster Hall for high treason, alleged to have conspired to raise Ireland in a rebellion to restore Catholicism and kill Protestants in concert with a French invasion.1 Plunket’s 1681 trial in London occurred after a first attempted trial in Dundalk in 1680 had failed when the witnesses against him had not shown up. On that occasion, he had thirty-two witnesses of his own on hand to rebut any accusations, as well as documents showing his accusers’ characters so suspect that even a Protestant Irish jury would have known the charges against him to be false and malicious. The English parliament, under the direction of the earl of Shaftesbury, then ordered Plunket brought to London. At his 1681 trial in London none of his witnesses were able to be present when he was given only five weeks’ notice to send for them and for them to arrive from Armagh. Plunket, moreover, was denied access to documents to prove the prosecution witnesses’ criminal histories and personal hostility.2 Having been tried and convicted on 8 June, and condemned on 15 June, on 1 July 1681 Plunket was drawn the two-and-a-half miles from the prison at Newgate to Tyburn tied on a wooden hurdle, witnessed ‘by a multitude of spectators all the way’. At Tyburn, Plunket delivered a lengthy last speech again protesting his innocence. He was then executed by being hanged and quartered, perhaps dying quickly by strangulation, as one text suggested. But he may have This was presented in 2014 to the Institute of Historical Research Seminar in Seventeenth-Century British History; the History Department, University of Auckland, New Zealand; and the Northwestern University/Newberry Library Conference on the State Trials; it has not been amended to reference subsequent scholarship. Elements of this piece were also presented to the Yale University Conference on Civil and Religious Liberty in 2008 and to the Mid-Atlantic Conference on Renaissance and Reformation Studies. 2 The tryal and condemnation of Edw. Fitz-Harris, Esq; for high-treason… as also the tryal and condemnation of Dr Oliver Plunket (London, 1681), passim; ST, VIII, cols. 447–500; A. Curtayne, The Trial of Oliver Plunkett (London, 1953), passim, esp. pp. 40–42, 189–94; P. Moran, Memoirs of the Ven. Oliver Plunket, 2nd edn (Dublin, 1895); J. Gibney, Ireland and the Popish Plot (New York, 2009), passim, esp. pp. 78–89; 96–114; 147–50; J. Hanley (ed.), The Letters of Saint Oliver Plunkett, 1625–1681 (Dublin, 1979). 1

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suffered the full punishment ordered by the court, which Whig propaganda on Plunket’s condemnation sometimes recorded, of being ‘Hang’d by the Neck, and then cut down alive his Privy Members to be cut off, his Bowels to be taken out and burnt before his face’, before death caused by having the heart cut out, followed by beheading and quartering. It had been common in sixteenth- and seventeenth-century England for crowds to ensure that this full sentence was carried out against Catholic priests. Knowing the sentence against him, on the day before his execution, Plunket composed himself by remembering that Jesus had suffered ‘the most paineful death of the cross for others’ sinns, which death of the cross compared to that of Tyburne, as I heere ye description of it is but a fleabyting’.3 Plunket was to be the last of the many Catholic martyrs of the ‘Popish Plot’ of 1678–81. Beatified in 1920, Plunket in 1975 became the first new Irish saint in over seven hundred years. His shrine at Drogheda, which exhibits his head, now receives thousands of pilgrims each year, and ten thousand worshippers take part in the annual procession through the streets of the relics, which include his rib. Many Catholics today pray for his intercession, including through a website named www.saintoliverplunkett.com which contains videos on his life and death and facilitates the recording of prayers. Intercessory miracles have been reported. Other websites carry musical settings of his Last Words. The present location of his shrine and annual procession, Drogheda, had been the location in the seventeenth century of the largest civilian massacre in British history when Oliver Cromwell’s forces butchered thousands of men, women and children.4 Plunket’s story has been told often, especially biographically and hagiographically in the period of campaigns for his canonisation up to 1975, but also more extensively in Irish than in English historiography. This piece is indebted to the many preceding accounts, from Cardinal Moran’s nineteenth-century biography through Alice Curtayne’s 1953 Trial of Oliver Plunket to John Gibney’s 2009 Ireland and the Popish Plot, the last of which provides the best recent account of the multiple circumstances leading to Plunket’s execution but spends relatively The last speech and confession of Oliver Plunket (London, 1681), p. 1; The Execution of Ed. Fitz-Harris, and Oliver Plunket (London, [1681?]), pp. 3–4; The condemnation of the two notorious traytors (London, 1681); The last speech of Mr. Oliver Plunket ([London], [1681?]); Curtayne, Trial, pp. 206, 221; J. Bellamy, The Tudor Law of Treason, pp. 202–5; 208–10; Samuel Smith, An account, of the behaviour of the fourteen late popish malefactors (London, 1679), p. 14; Hanley (ed.), Letters of Saint Oliver Plunkett, p. 579. The last speech and confession of Oliver Plunket, p. 2, suggests that Plunket was hanged and dead ‘in a short time’ before being beheaded and quartered; but the English Carmelite Lucian Travers, who attended the execution, wrote that the sentence had been ‘carried out in all its gruesome details’ (Curtayne, Trial, p. 221). 4 www.saintoliverplunkett.com; Deirdre McKay, Plunkett’s Last Words; J. Hanley, ‘Oliver Plunket’, Dictionary of National Biography; J. Morrill, ‘The Drogheda Massacre in Cromwellian Context’, in The Age of Atrocity: Violence and Political Conflict in Early Modern Ireland, ed. D. Edwards, P. Lenihan and C. Tait (Dublin, 2007), pp. 242–65. 3

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little time on either the trial or the execution, and is deeper in its description of Irish than of English politics. Here, I will retell the story of Plunket’s trial and execution by placing them in the historical contexts of London in 1678–81, especially in the period from Plunket’s incarceration in Newgate in late 1680 through to his 1 July execution. I will examine in these contexts the participants in Plunket’s trial and execution – the judges, attorneys, jurors, witnesses and the sheriff, Henry Cornish, who appointed the jury. The majority of these participants in Plunket’s trial, as well as its prime instigator, Shaftesbury, were Whigs, but participants at the trial also included several king’s men, the most notable being George Jeffreys, later notorious judge of the ‘Bloody Assizes’. Lord Chief Justice Pemberton, who presided at Plunket’s trial, was later in 1681 to deny several of Shaftesbury’s attempts to gain bail or speedy trial as the earl sought to defend himself legally from indictment. As a prosecuting attorney, Jeffreys was as fierce a proponent of Plunket’s guilt as were the Whigs. For reasons of space, I cannot tell the rest of the story here, but the King did not try to destroy the evidence of Irish witnesses against Plunket at trial in part because he wished to facilitate the trial of a second Catholic, Edward Fitzharris, on the day after Plunket’s trial in order thereby to prevent the Whigs from being able to use Fitzharris against the duke of York, and because he wished thereafter to use some Irish witnesses himself to testify against Shaftesbury in the attempt to indict the earl for treason. The King signed the warrant for Shaftesbury’s arrest on the very day of Plunket’s execution (which was also the day of Fitzharris’ execution). For this reason, among others, the King refused many appeals to pardon Plunket, although he knew him to be innocent.5 I want to underline here especially that the trial and execution of Plunket were in significant part the result of London’s interlocking civic and Protestant religious culture, as well as its role as the leader of opposition to the king. It is important to begin by emphasising that in the later 1670s and early 1680s London was very much a religious city of parishes, churches and meeting houses, where services and sermons provided weekly discussions of religion and politics, parish officials dispensed charity and policed morality, and ministers expatiated on duties to maintain the ‘true religion’ or suffer punishment by God of nation and city with fire and plague. It was a city in which one hundred thousand had An attempt was made to discredit William Hetherington for subornation of witnesses before the Privy Council as early as February 1681 (TNA, PC 2/69, 211). This attempt was reported in print, surely due to official support, in A true and brief account of the proceedings between Mr. David Fitz-Gerald and William Hetherington before His Majesty in councel, on Friday the 11th. of February 1680/1 (London, 1681), but the King’s attorneys did not undermine but rather supported the witnesses against Plunket at trial itself in June, and Charles declared to the French ambassador that he did not dare to pardon Plunket as ‘his enemies were watching for him to make a false step’. See, inter alia, Gibney, Ireland, pp. 136ff, 149–50; Moran, Memoirs; R. Hutton, Charles II (Oxford, 1989), pp. 406–7; K. H. D. Haley, The First Earl of Shaftesbury (Oxford, 1968), pp. 643–51; Curtayne, Trial, pp. 210–2. 5

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perished by plague in 1665 and where more than 80 percent of the City had burned to the ground in 1666. And it was a city where following the path to one’s salvation mattered intensely to many people whose lifespan was so limited that only about 8 percent of Londoners would make it to fifty years of age; where coercing or persuading others to follow one’s own ‘true Religion’ was held to be a duty by many committed to the notion of uniform Protestant public worship; where religious passions often ran high, manifesting in many forms of violence between Anglicans and nonconformists; and where Whigs saw it as vital to unite otherwise divided Protestants and argued for the toleration of Protestant nonconformists by emphasising their shared hostility to Catholics.6 Cities are mapped conceptually in many overlapping and competing ways by their residents, but many Whigs in London in 1681 saw the city itself through the kind of anti-Catholic historical religious spatial geography expressed in 1681 in the Present State of London, a tract published that year by the Baptist Thomas De Laune. In it, De Laune provided a tour of London as the home of conformist and nonconformist Protestant churches and of Protestant martyrs created by Catholic assaults, emphasizing the burial place of John Foxe, who had warned all Europe of the fate of Protestants under a Catholic ruler, and Somerset House, as the Catholic queen’s palace and ‘the Fatal place, where the wicked Romish Assassinates (prompted by Hell and their accursed Principles) most barbarously Murdered that Noble Patriot and never to be forgotten Knight, Sir Edmund Berry Godfrey’, the city magistrate to whom the ‘Popish Plot’ had been reported. De Laune also spent pages on the Great Fire of 1666 as a ‘prodigious Conflagration’ started by Catholics, and on the ‘Ways taken by Papists to begin and promote Fires’.7 J. Spurr, The Restoration Church of England, 1646–1689 (New Haven, 1991); J. Scott, England’s Troubles (Cambridge, 2000); T. Harris, Restoration: Charles II and his Kingdoms, 1660–1685 (London, 2005); idem, London Crowds in the Reign of Charles II (Cambridge, 1987); idem, Paul Seaward and Mark Goldie (eds), The Politics of Religion in Restoration England (Oxford, 1990); J. Marshall, Locke, Toleration and Early Enlightenment Culture (Cambridge, 2006); G. De Krey, London and the Restoration (Cambridge, 2005); A. and D. Moote, The Great Plague (Baltimore, 2004); J. Miller, Popery and Politics in England 1660–1688 (Cambridge, 1973). P. Seaver, Wallington’s World: A Puritan Artisan in Seventeenth-Century London (Stanford, 1975), p. 71 gives the specific figure for part of London earlier in the seventeenth century as only 8 percent living to age fifty; while this figure fluctuated, especially due to plague mortality, it is used here illustratively in order to emphasize the crucial point that few London residents made it to fifty in the seventeenth century. 7 Thomas De Laune, The Present State of London (London, 1681), pp. 19–80, 156, 456–65; on imagining London, inter alia, J. Monteyne, The Printed Image in Early Modern London: Urban Space, Visual Representation, and Social Change (Aldershot, 2007); J. F. Merritt, Imagining Early Modern London: Perceptions and Portrayals of the City from Stow to Strype, 1598–1720 (Cambridge, 2001); C. Wall, The Literary and Cultural Spaces of Restoration London (Cambridge, 1998); Scott, England’s Troubles; Marshall, Locke; Harris, Restoration. 6

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London’s Protestant spatial cultural imaginary was here as much textually created as directly experienced in part because London was a city of high literacy and print – of newsletters and pamphlets, treatises and sermons, broadsides and prints – involved in very frequent self-representation as a Protestant city. In this period in London were circulated hosts of works depicting Catholic violence in Ireland in extremely lurid terms, such as Sir John Temple’s 1646 The Irish Rebellion, reprinted twice in 1679, which depicted Irish Catholics disembowelling, boiling, hanging and drowning Protestants in Ireland, cutting children into ‘quarters and gobbets’, hanging infants on tenterhooks and making candles from the grease of victims. In 1680 the Whig An appeal from the country to the city asked readers to imagine London again in flames, with ‘troops of papists ravishing your wives and your daughters, dashing your little children’s brains out against the walls, plundering your houses, and cutting your own throats, by the name of heretic dogs’. The troops imagined here were ‘Irish bog-trotters’. It is worth stressing, for this prose can stand as a synecdoche for Whig ideology in these years, that here was compressed in an appeal ‘to the City’ images of Irish Catholics as sexualised barbarians – as ‘bog-trotters’ enacting rape and torture; immolating Protestants as heretics; and ‘plundering your houses’. By contrast, male London readers were implicitly rendered ‘civilised’ citizens who were masculine heads of households of wives and daughters needing to defend all.8 That appeal was resonant in a City of master and apprentice artisans and merchants organised into households and by trades, guild-halls and by the Guildhall; where masters joined corporations dedicated to moral, sexual and religious policing, and to household discipline by legitimated violence. It was a city where apprentices sought the perquisites of masterhood, and often became socialized to being the masculine, moral and magisterial voices of the community, as Natalie Zemon Davis would put it, through their own socially legitimated participatory violence to police morality, sexuality, and religion on many civic and religious occasions. Such violence included riots against ‘bawdy houses’ and against Catholic chapels. Apprentices often took part in processions and presented petitions. London was a city of extensive civic rituals expressing, extending and reinforcing masculine political participation, from voting in local and national elections, to common hall meetings, to aldermen’s meetings, to Lord Mayor’s parades, to petitions, to political clubs that met for dinner in nobles’ houses or in taverns, to politicized coffee houses. Its citizens understood London as having a long and very significant political and legal history which for many of its citizens, not only during the English Revolution, was a history of civic independence from royal authority, of citizens’ and the city government’s Marshall, Locke, pp. 38ff; An appeal from the country to the city (London, 1679); P. Hinds, ‘The Horrid Popish Plot’: Roger L’Estrange and the Circulation of Political Discourse in Late Seventeenth-Century London (Oxford, 2010), passim; Scott, ‘England’s Troubles: Exhuming the Popish Plot’ in Harris, Politics of Religion, 118; L. Schwoerer, The Ingenious Mr Henry Care (Baltimore, 2001); J. Raymond, Pamphlets and Pamphleteering in Early Modern Britain (Cambridge, 2003). 8

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resistance to royal tyrants and emergent ‘popery’ and ‘slavery’. In 1681 it was just over thirty years since thousands of Londoners had built miles of walls and forts through the streets of London – the longest fortification in seventeenth-century Europe – in order to defend London and parliament from royal attack, and had fought in London’s trained bands in pitched battles against royal armies. Many London Whigs of the 1670s and 1680s were old Cromwellians, old Levellers, or their children.9 It was as an expression of many of these forms of civic participation that in the late 1670s London streets witnessed a series of pope-burning processions organised by Whig political clubs, by MPs such as the Westminster MP Sir William Waller, and by many apprentices. These events drew several hundred thousand participants and spectators to the burning of Catholic objects of worship, to the jeering at Catholic priests in mock procession, and to the ritualised execution of effigies of the pope with cats tied inside them so that their screams when burned as the pope was executed at the end of the procession would add to the festive cruelty. Religious chronology and religious geography here reinforced each other, as the processions were held on days marking particularly significant moments in the history of English anti-Catholicism, and took routes to emphasise the processional uniting of Anglican and nonconformist Protestants, all as a holiday/holyday experience of celebratory ‘mock’ violence and civic unity against Catholics.10 London was a city not merely of such ‘mock’ executions, a common form of expression of moral sentiments of communities across early modern Europe and often directly related to actual public executions, but also of frequent public executions, most for murder and other crimes, but many as political executions for treason. The seventeenth century had commenced with the execution of the earl of Essex for trying to raise rebellion. Its middle years had witnessed the widely attended and celebrated executions of the kings’ chief minister, Strafford, and then of the archbishop of Canterbury. And then in 1649 there was the L. Gowing, Domestic Dangers (Oxford, 1996); E. Hubbard, City Women: Money, Sex, and the Social Order in Early Modern London (Oxford, 2012); N. Z. Davis, Culture and Society in Early Modern France (Stanford, 1965), chaps. 4–6, esp. p. 108; A. Hughes, Gender and the English Revolution (London, 2012); A. Shepard, Meanings of Manhood in Early Modern England (Oxford, 2003); I. Archer, The Pursuit of Stability (Cambridge, 1991); Harris, London Crowds; De Krey, London and the Restoration; Scott, England’s Troubles; V. Pearl, London and the Outbreak of the Puritan Revolution (Oxford, 1961); K. Lindley, Popular Politics and Religion in Civil War London (Aldershot, 1997); M. Knights, Politics and Opinion in Crisis (Cambridge, 1994); idem, ‘London Politics and Parliamentary Politics in 1679’, Parliamentary History 12:1 (1993), 29–46; D. Zaret, Origins of Democratic Culture (Princeton, 2000); P. Lake and S. Pincus, ‘Rethinking the Public Sphere in Early Modern England’, Journal of British Studies 45:2 (2006), 270–92; B. Cowan, The Social Life of Coffee (New Haven, 2005); K. Roberts, ‘The Lines of Communication: The Civil War Defences of London’, in London and the Civil War, ed. S. Porter (London 1996). 10 Harris, London Crowds; idem, Restoration; J. P. Kenyon, The Popish Plot (London, 1972); Curtayne, Trial, p. 215. 9

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execution outside the Banqueting House in Whitehall of Charles I, following the first trial in human history of a head of state for treason for making war against his own people. The Restoration began with the executions of the regicides, whose quarters and parboiled heads were displayed on London’s city gates and London Bridge. Political trials and executions had become part of London’s daily news during the period of Strafford, Laud and then the king’s trial and execution, with masters and apprentices becoming accustomed to taking up arms to defend parliament and to witness and celebrate such executions, and accustomed to parliaments and other law courts convicting ‘traitors’ on their behalf.11 In a very important sense, the series of trials of the alleged ‘Popish Plot’ conspirators from 1678 to 1680 expressed many of the same values as the ‘mock’ executions of London’s pope-burning processions, and were political treason trials participated in extensively by many Londoners. Several of these trials centred on the alleged murder of a London justice of the peace, Sir Edmund Berry Godfrey, who was, moreover, the brother of a leading London Whig common councilman of 1677–83, Michael Godfrey. Michael Godfrey then himself served on several juries – including both the grand jury which presented Plunket’s indictment and the grand jury which refused to indict Shaftesbury. These are thus further dimensions to the tightly related series of associations that I have been drawing so far between these trials and executions and London magisterial, ministerial, master and apprentice, religious, political, legal and household culture. Moreover, such large London crowds attended these trials that attorneys were at times unable to enter the court and witnesses fainted. The trial records report people giving a ‘great shout’ at guilty verdicts, while such crowds gathered outside the places of Catholics’ incarceration as prisoners awaited trial that they could not sleep for the noise. Large crowds then gathered again to observe the lengthy ritual processions to London’s central site of execution at Tyburn and the executions of Catholics there.12 Such trials and executions were, moreover, discussed repeatedly in sermons, and were reported and replayed in a huge volume of pamphlet and broadsheet P. Lake and M. Questier, The Anti-Christ’s Lewd Hat (New Haven, 2002); A. McKenzie, Tyburn’s Martyrs: Execution in England, 1675–1775 (Hambledon, 2007); J. Beattie, Policing and Punishment in London 1660–1750 (Oxford, 2001); T. Laqueur, ‘Crowds, Carnival and the State in English Executions, 1604–1868’, in The First Modern Society, ed. A. L. Beier et al (Cambridge, 1989); D. Alan Orr, Treason and the State: Law, Politics, and Ideology in the English Civil War (Cambridge, 2002); G. Robertson, The Tyrannicide Brief: The Story of the Men who Sent Charles I to the Scaffold (New York, 2005); Seaver, Wallington’s World. Essex’s attempt at rebellion has been powerfully studied by Professor Jamie Gianoutsos of Mount St Mary’s University, Maryland, whose important work on conceptions of tyranny, gender, and history is forthcoming from Cambridge University Press. 12 The two associations (London, 1681); An account at large of the proceedings at the SessionsHouse in the Old-Bayly, on the 24 of November 1681 (London 1681), p. 2; Kenyon, Popish Plot, passim; A. Marshall, The Strange Death of Edmund Godfrey (Sutton, 1999); ST, VII, col. 312; Curtayne, Trial, pp. 46, 209–10; Hinds, ‘Horrid’, ch. 7. 11

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propaganda. When many of the executed Catholics protested their innocence at execution and had Last Speeches denying allegations printed, making some question the merits of the evidence against them, further pamphlets were issued stressing that mental reservation and lying were counted meritorious by Jesuits. These often featured extensive quotations from Catholic texts to evidence this, such as the 1679 A Relation of the Strange Apparition of the Five Jesuits, which declared that the ghosts of the titular priests walked in anguish near London in part because they had lied even at their execution. The untrustworthiness of priests proclaiming innocence at their trials and executions was thus a central message in 1678–80, further helping to create the conditions at Plunket’s trial in 1681. Multitudes of prints, playing cards, decorated fans and even Delft tiles to adorn chimney places were among the many objects produced in London’s prolific Protestant multimedia material culture, which imaged the plot as a simplified moral story ending with ‘just’ executions of priestly perpetrators, and which imaged executions themselves with depictions of evisceration, of the fire readied to burn the bowels, and of the excision of the hearts of such ‘traitors’. The desire for enactment of bodily vengeance and its display in London was such that when the king allowed the family of the goldsmith William Staley to have his quartered remains for a private funeral mass in 1679, the London coroner ordered his body exhumed so that the head could be displayed on London Bridge. There were attempts by the London sheriffs and Whigs in parliament to enact emasculating and eviscerating punishment in December 1680 against Stafford, when the king had ordered him only beheaded, as he was a noble.13 In this fervid climate Sir Patience Ward had been outspoken as a member of parliament in 1679 in his support for the Exclusion of James, as had been the London MPs, including the dissenters Sir Thomas Pilkington, who helped pen the Exclusion Bill, and William Love, who led the attempt in parliament to punish popish recusants. By electing such MPs in national elections, Londoners were upholding their civic identity against the clear wishes of the Crown. The 1679 Protestants Congratulation to the City for their excellent choice of members to serve in Parliament celebrated the ‘brave city’ of London for electing such members of parliament, declaring that therefore ‘Vain are Rome’s Plots/ in Vain does Marshall, Locke, p. 25; Haley, Shaftesbury, p. 610; Kenyon, Popish Plot, pp. 112–13; [Jan Ariens van Hamme],‘Pickerin executed’, popish plot tile number 8 of 9, Victoria and Albert Museum; Babel and Bethel (London, 1679); A true narrative of the horrid hellish Popish-Plot … the second part ([London?], 1682); The tryal of William Staley (London, 1678); The tryal and condemnation of William Stalay for high-treason (London, 1678); T. Seccombe revised by S. Carr, ‘William Staley’, D.N.B.; A relation of the strange apparition of the five Jesuits (London, 1680); Animadversions on the Last Speeches of the Five Jesuits (London, 1679); Lying allowable with papists to deceive Protestants (London, 1680); The speeches of the five Jesuits (London, 1679); The behaviour, last words, and execution of the five grand Jesuits (London, 1679). For an interpretation stressing that the Last Speeches caused questioning of Catholics’ guilt, see McKenzie, Tyburn’s Martyrs, pp. xvi–xvii. 13

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haughty France/ To universal Tyranny advance/ And think to Ridd the World of Protestants!’ Ward was clear in his mayoral inaugural speech, issued just before parliament sent for Plunket from Ireland in October 1680, that his primary mayoral duty lay in ‘Upholding the Protestant Religion’ against ‘Our Indefatigable Enemies, the Church of Rome’ who were ‘more active than ever’ in plotting against the government to assassinate King Charles II and place his Catholic brother James on the throne and ‘to menace even Justice itself in the Inquiries after them, by that Barbarous Murder of… Godfrey’. On 15 November, as Plunket sat in Newgate, Ward (simultaneously Lord Mayor and MP) was one of the deputation of MPs chosen to present to the Lords the Exclusion Bill, already passed in the House of Commons.14 The Lord Mayor’s show for Ward in late October 1680, entitled London’s Glory, had celebrated London’s mercantile companies with a huge procession through the streets from the Hall of the Guild of the Merchant Taylors, and along the Thames in a flotilla of bedecked barges to Westminster, before a triumphant return through the streets culminating at the Guildhall. As was the norm for Lord Mayor’s shows, it had a series of dramatic pageants staged at various points in the route, followed by a feast at the Guildhall. Here was a ritual enactment of London’s power, wealth and Protestantism. In Cheapside, the major mercantile thoroughfare of London where in the 1640s Protestant crowds had torn down the Cheapside Cross as a remnant of popish superstition, Ward was greeted by a triumphant chariot bearing seven figures, one dressed as ‘Harmony’, who declaimed to the ‘Throng of Spectators’ on the duty of the governor of the city to unite all Protestants against Catholics in a speech with awe-inspiringly bad rhyme and scansion, as it declared ‘Divide them, and destroy them, is the Pope’s/ Maxim, and ready road to all his Hopes’. In the Guildhall the dinner at the end of the festivities, which the King had signally refused to attend, began with a song entitled ‘The Protestants Exhortation’, which encouraged Protestant unity by declaiming ‘Whilst England’s Enemies/ are hatching treason/ and driving on that Plot’, with England facing ‘Papal hate’ and fear that ‘our enemies/ will much oppress us/ We shall in snares be caught/ By this damn’d Popish Plot’, so that Protestants needed ‘with hearts and hands/ Joyn all our forces/ Against the Romish Bands/ Their foot and horses/ For if they get the best, And over power us/ we shall ne’re live at rest/ They will devour us.’ A second song entitled ‘The plotting papists litany’ brought the civic entertainment to a conclusion. It was sung by a chorus imitating ‘papist conspirators’ who began by declaring ‘Though our Plot be betray’d/ Let us pursue it/ We need not be dismay’d/ Let us renew it’, and celebrating those ‘that Kings Debates of the House of Commons, collected by A. Grey (10 vols, London, 1763), VII, 373–4, 388, 463–4; The Protestants congratulation to the city for their excellent choice of members to serve in Parliament (London, 1679); The speech of the Right Honourable Sir Patience Warde…at Guild-Hall London, September 29, 1680 being the day of his election (London, 1680), pp. 1–3; Haley, Shaftesbury, p. 600. 14

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undertake/ To kill for conscience sake’. The song depicted the immolation of sixteenth-century Protestant martyrs as something that current popish conspirators wished to imitate, as they sang: ‘Teach us that we with sticks/ Fire-brand and fuel/ May burn all Hereticks/ And prove as cruel/ [as] You that consum’d by fire/ Ridley and Latimer’. And it declared that the Catholic plotters executed in London for their murder of Godfrey had thereby, for Catholics, gained martyrdom: ‘Green, Bury, Hill that dyd/ Although for Murther try’d/ By us y’are sanctify’d’.15 In November 1680, as the Commons passed Exclusion and Plunket sat in Newgate, the London common council agreed to add an inscription to the Monument to the Great Fire. The specific wording was then agreed on in the month of Plunket’s trial, and physically added in the month of his execution: this declared that the fire in ‘this Protestant City, [was] begun and carried on by the treachery and malice of the popish faction… in order to the effecting of their horrid plot for the extirpating the Protestant religion, and English Liberties, and to introduce popery and slavery’. It was accompanied by a Latin inscription declaring that the ‘Popish frenzy which wrought such horrors, is not yet quenched’.16 It was in the climate of continued parliamentary and London demand for Exclusion, and continued royal denial of Exclusion and of the peers’ refusal to pass Exclusion on 15 November, that in early December 1680 Viscount Stafford was tried for his alleged part in the ‘Popish Plot’. Shaftesbury was among fifty-five peers judging Stafford guilty and attempting unsuccessfully to have Stafford name the duke of York as a co-conspirator to save his life, rather as Shaftesbury had formerly attempted, with a similar lack of success, to persuade previous prisoners to incriminate the duke immediately before their executions in exchange for clemency – an exchange which Plunket was to allege at the gallows in 1681 that Shaftesbury once again offered in his case.17 Having held a series of hearings in 1680 about allegations of an ‘Irish Plot’ and established a committee to investigate these allegations which included the Whig former Viceroy of Ireland, Essex, as well as Shaftesbury, in the very days in November when the Exclusion Bill was being read, and in the very days in December during which the trial of Stafford was occurring, the House of Lords received ‘information’ about an ‘Irish Plot’ through a series of reports by Shaftesbury and then by depositions from ‘Irish witnesses’ that it ordered to be published, and which were widely circulated in London. Many of these depositions had been secured by Shaftesbury, who earlier that year had sent a prison escapee, William Hetherington, back to Ireland precisely in order to secure Thomas Jordan, London’s glory, or, The Lord mayor’s show…October XXIX, 1680 (London 1680), pp. 1–16 ; D. Cressy, Travesties and Transgressions in Tudor and Stuart England: Tales of Discord and Dissension (Oxford, 2000), pp. 234–50; De Krey, London, p. 199. 16 Hinds, ‘Horrid’, pp. 361–2. 17 Kenyon, Popish Plot, pp. 174, 230–2; Haley, Shaftesbury, pp. 600–11; The papists bloudy after-game (London, 1682); Curtayne, Trial, pp. 46–7, 219; Plunket, Last Speech, p. 4. 15

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witnesses to an ‘Irish plot’ and against Plunket, with financial rewards and pardons among the many inducements to testimony. The Several Informations of John Macnamarra, Maurice Fitzgerald and James Nash relating to the Horrid Popish Plot in Ireland were among many ‘informations’ published in London in early 1681 proclaiming that many Irish Catholics were secretly commissioned officers in French forces ‘with hardly a county in Ireland, but persons were appointed by the French King’ and plans to ‘raise several hundreds of men in every County’ to join with a force landed by the French king as part of a papal plan to ‘wash the hands of Heretics out of the Estates of our Ancestors’. Maurice Fitzgerald alleged that on notice of the French landing ‘there was a massacre of all the English resolved in one night, and persons particularly assigned to the Massacre or Murther of every Family’. James Nash declared that since the Irish gentry had not been restored to their ‘Estates and Religion’ they had ‘designed to cast off the English Bondage and free ourselves from their Slavery; and to recover our Estates and Religion’. In the publication of these depositions two statements were added at the end, ‘The Message of the Lords Spiritual and Temporal to the Commons’ issued on the 4th of January 1681 testifying that they were ‘fully satisfied that there now is, and for divers years last past there hath been, a Horrid and Treasonable Plot and Conspiracy contrived and carryed on by those of the Popish Religion in Ireland, for Massacreing the English, and Subverting the Protestant Religion’, and the Commons’ Resolution in reply on 6 January ‘That this House doth agree with the Lords’. The resolution added ‘That the Duke of York being a Papist, and the expectation of his coming to the Crown hath given the greatest Countenance and Encouragement thereto, as well as to the Horrid Popish Plot in this Kingdome of England’.18 The declaration of belief in the Irish plot by the House of Lords was issued on the very day that it received a message from the king once again declaring his firm opposition to Exclusion, and it was these 4 and 6 January 1681 declarations by both Houses of Parliament of their continued conviction of the reality of the Popish Plot in Ireland, twinned with the continued Whig commitment in the Commons to obtaining Exclusion, that led Charles to prorogue parliament on 10 January. Londoners responded immediately, presenting a petition that day to the Lord Mayor, which was very quickly printed, as from a ‘considerable number of eminent citizens’ at the ‘surprising prorogation of Parliament’ when it had made ‘so hopeful a Progress in unvailing the horrid Popish Plot (which still like an ill spright, haunts and nightmares us)’. It declared that the citizens’ apprehensions of the danger to London ‘by the Horrid and Devilish Designs of the Papists and their adherents’ were heightened by this ‘surprising’ prorogation, and ‘recommended’ to the Lord Mayor the ‘doubling’ of the watches The several informations of John Mac-Namarra, Maurice Fitzgerrald, and James Nash: gent. relating to the horrid Popish plot in Ireland (London, 1680), pp. 2–5, 11, 13, 15; Marshall, Locke, pp. 38 ff; TNA, PRO 30/24/50, fols. 163, 167–70; 179–80; Haley, Shaftesbury, pp. 571–2, 575, 578, 583–618. 18

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of the City, the placing of ‘Chains in the several streets of the city’, that the gates of the City be locked and that no armed soldiers except for London’s own civic-trained bands be allowed into the City. It also asked the Lord Mayor to order the meeting of the common council. To this petition was quickly added the voice of Whig newsletters declaiming the reality of the Irish Plot, as Langley Curtis reported in his True Protestant Mercury that Protestants in Ireland feared a French invasion, and that the prorogation of parliament had caused papists in Dublin to celebrate and to go armed through the streets, leading Protestants there to fear massacre.19 It was most probably first in late January into February 1681 – that is, while Plunket was in jail awaiting his trial, and after the king had dissolved the Second Exclusion Parliament and before the next Oxford Parliament met briefly in March and was dissolved quickly when its Lower House proved as implacably committed to Exclusion as its predecessors – and then once again in May 1681 – that is, in the month when Plunket was arraigned and awaiting his imminent trial – that Shaftesbury’s long-term assistant pen John Locke composed a work advocating toleration among Protestants in which he declared that ‘all Protestants ought now by all ways be stirred up against [Catholics] as People that have declared themselves ready by blood, violence, and destruction to ruine our Religion and Government’. Catholics, he declared, could be looked on as ‘nothing but either enemyes in our bowels or spies among us, whilst their General Commanders whom they blindly obey declare warr, and an unalterable design to destroy us’.20 As Plunket sat in prison, the king called parliament in Oxford instead of London, ratcheting up the tension several notches. It was ratcheted up still further by its quick dissolution in March. Whig Londoners responded quickly again to the dissolution in March 1681 through petitions, including the Petition of Divers Eminent Citizens of London to the Lord Mayor and Aldermen of 28 April 1681, which described the ‘Designs of the Popish and Jesuitical Party, for subverting and destroying the Protestant Religion and… Government’ as having been carried on for years, including ‘the burning of this City, with intention of a Massacre at the same time’, and now adding that ‘foreign princes’ had influenced his ‘Majesties Councils’ to ‘dissolve’ parliament, and planned ‘bringing in forein forces both into England and Ireland, to establish their Religion, and destroy the Protestants’. Describing ‘all true Protestants’ as ‘in continual fears and anxieties of mind’, it declared that ‘The designs and conspiracies of papists (which there is cause to believe) are yet carrying on as much as ever’ made necessary the sitting of a parliament ‘so as fully to examine the Plot, to prosecute the Conspirators’. Vox Patriae (1681), in State Tracts, II, 125; De Krey, London, p. 211; True Protestant Mercury 29 Jan–1 Feb 1680/1 (London, 1681); Harris, Restoration, pp. 173–4; Scott, ‘England’s Troubles’. 20 Bodleian Library, MS Locke c34, 7–11; J. Marshall, Locke, Resistance, Religion and Responsibility (Cambridge, 1994), p. 110. 19

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This petition was issued less than a week before Plunket was arraigned on 3 May – the very same day that Shaftesbury became a London citizen via membership of the Skinner’s Guild.21 Some ten days after Plunket’s arraignment and Shaftesbury’s adoption of London citizenship, and just three weeks before Plunket was tried, London’s common council met on 13 May against the express order of the king and agreed to petition the king for the sitting of parliament again. This further petition was drawn up by six leading citizens and common councilmen, including William Ashurst, a leading Presbyterian Whig, and was to be presented to the king by London’s sheriff Henry Cornish and another leading common councilman, Michael Godfrey, the brother of Sir Edmund Berry Godfrey. This 13 May Humble Petition and address of Lord Mayor, aldermen and commons of city of London in common council spoke once again of ‘Devilish Plots of our Adversaries, the Papists’ against the king, government, the ‘True Protestant Religion’ and the ‘lives, liberties and properties of your protestant subjects’. It likewise identified parliament as having discovered and suppressed conspiracies, and of justice having been done on Viscount Stafford and other conspirators. Charles refused to accept this petition and refused to allow parliament to meet. This refusal increased still further the politicization in London. In June 1681, the month in which Plunket was tried and condemned, extensive electioneering was occurring for London’s next sheriffs, with the current sheriff Cornish alleging that the king intended to hijack the poll. Showing the temper and temperature of London, the leading Whigs Thomas Pilkington and Samuel Shute were elected sheriffs with 3144 and 2245 votes, to 1266 and a derisory 84 votes for the king’s two candidates, on 24–27 June – just two weeks after Plunket’s trial, ten days after his condemnation and a few days before his execution on 1 July.22 At his trial on 8 June 1681, as was then standard in cases of treason, Oliver Plunket was allowed no defence counsel, no copy of the indictment and no list of expected witnesses. Further, hearsay evidence and the allegations of alleged associates were admissible in court. The burden of any decisions to ensure a fair trial was placed on the judges. The presiding judge was Lord Chief Justice Pemberton, and Justices Dolben and Jones assisted him. But Pemberton had supported the parliamentary motion, at Shaftesbury’s behest, to bring Plunket to London from Ireland before parliament met on 21 October 1680. And Pemberton had been elevated as lord chief justice recently after parliament had initiated impeachment of Lord Justice Scroggs because Scroggs had dismissed the Middlesex grand jury before it could sit long enough to indict the duke of York for recusancy, a year after Scroggs had questioned the validity of witnesses against the Queen’s physician George Wakeman when Wakeman The petition of divers eminent citizens of London, presented to the Lord Mayor and Court of Aldermen (London, 1681); Haley, Shaftesbury, pp. 640–42; De Krey, London, p. 226. 22 Humble Petition and address of the Lord Mayor, aldermen, and citizens of London in common council (London, 1681); De Krey, London, pp. 226–9; Harris, London Crowds, ch. 7. 21

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was alleged to have attempted to poison the king. The truth of that accusation against Wakeman was a staple of Whig propaganda, and when Wakeman had been acquitted a London crowd had thrown a dog into Scroggs’ coach. It was thus as Scroggs’ replacement for what parliament and London crowds viewed as inadequately anti-Catholic prosecutorial judging that Pemberton sat as chief judge in Plunket’s trial. It was Pemberton who then ruled that Plunket did not have to be tried in Ireland and did not need to have more time to present witnesses from Ireland when Plunket said that he could produce them in order to rebut the witnesses against him if given an extension of a mere ten days. And Pemberton and Dolben had both recently been on the bench for the case of Sir Thomas Gascoigne, acquitted in early 1681 by a jury of fellow Yorkshiremen after there was evidence to show that the witnesses against him had prior grievances against him, even though in that case Dolben and Pemberton had ordered the jury that the witnesses’ ‘positive’ assertions of Gascoigne’s guilt should override the ‘probability’ that they were lying due to malice.23 It was, furthermore, Pemberton who ruled that Plunket had no legitimate objection to the jury if jurors had formerly sat on the jury which had convicted the five Jesuits in 1679, or on other previous ‘Popish Plot’ juries, declaring that such previous service was ‘no exception’. Pemberton did not note in issuing this judgment that he had himself been one of the three judges in that June 1679 case, a case which had opened with the allegation that Catholics had ‘kill[ed] the Protestants by Thousands, without Law or Justice, witness… their Barbarous cruelty in Ireland, since the year 1640’, which had included Titus Oates’ allegation of a current ‘Irish plot’ and which had ended with the five Jesuits convicted, drawn, hanged and quartered. And it was Pemberton who declared in sentencing Plunket that his was treason of the highest nature, ‘tis a Treason in truth against God and your King, and the Countrey where you lived. You have done as much as you could to dishonor God in this Case; for the bottom of your Treason was, your setting up your false Religion, than which, there is not any thing more displeasing to God, or more pernicious to Mankind in the world. A Religion that is ten times worse than all the heathenish Superstitions, the most dishonourable and derogatory to God and his Glory of all Religions or pretended Religions whatsoever, for it undertakes to dispense with God’s laws, and to pardon the breach of them.

The…Tryal and Condemnation of Dr Oliver Plunket, 61–64; The tryal of Sr Tho. Gascoyne (London, 1680), pp. 65–7; Kenyon, Popish Plot, pp. 202–3; Harris, Restoration, p. 189; Haley, Shaftesbury, p. 594. It is possible that Pemberton’s elevation to Lord Chief Justice owed something to his support for the King, which he displayed the day immediately after Plunket’s trial in the trial of Fitzharris and then later in 1681 in his support for prosecution of College and Shaftesbury. Pemberton had, however, been an avid prosecutor of the ‘Popish Plot’ for many years as prosecuting attorney and then judge. 23

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To effect this, Pemberton averred, Plunket had planned to destroy ‘poor Innocent people’ and ‘prostitute their Lives and Liberties’ to the ‘Tyranny of Rome and France’.24 Pemberton was assisted on the bench by Justice Dolben, whose judicial experience from November 1678 had included the trial leading to the execution of the duke and duchess of York’s confessor Edward Coleman, the author of letters indicating his desire to purge England of its ‘pestilential heresy’, and the trial of those executed for the murder of Sir Edmund Berry Godfrey. Dolben ruled in the course of the trial that the fact that the witnesses against Plunket were Catholics was sufficient reply to Plunket challenging why they had never before revealed the now alleged ‘plot’. When one witness against Plunket even declared that he was now testifying against Plunket because he had been to France and seen ‘how the poor people there are brought into such slaverie by the French King’, and that he would rather ‘have the Devil rule over us, than the French-man’, Dolben commented from the bench that this witness ‘gives a very good rational account’ of why he was now testifying against Plunket. It was a point selected for emphasis in the summary of the charges against Plunket at the end of the trial. And when one witness tried to limit his evidence against Plunket, and began to talk about the ‘malice’ of the other witnesses against Plunket, Dolben and Pemberton joined in silencing him before he could even complete his sentence, and declared from the bench to the jury that this was the ‘best Evidence that can be’ that ‘Catholicks had been tampering with him’ to prevent his true testimony. Dolben’s sympathies were Whig and strongly anti-Catholic, and he was to lose his judicial position in 1683 as he opposed the Crown actions against the Charter of London which were undertaken in very significant part to wrest control of the City juries away from Whigs. Dolben regained his judicial position in March 1689, and in the following month inveighed against the corruption of juries ‘the last seven years’ and ordered reinforcement of ‘the laws against papists’. The third judge in Plunket’s trial, Justice Jones, had also sat in ‘Popish Plot’ cases, and had retrospectively defended preceding convictions, as in the 1680 trial of John Tasborough and Anne Price for suborning perjury in an alleged attempt to tamper with the evidence against the Jesuits when Jones defended the Five Jesuits’ condemnation ‘for a very execrable, hellish, Popish Plot’.25 With judges such as these, one might say that one did not need prosecuting attorneys. But in this case, the prosecution had several such attorneys on hand to make sure that no opportunity to lead witnesses went begging. These The…Tryal…of Dr Oliver Plunket, pp. 65, 100–1; The tryals and condemnation of Thomas White…William Harcourt…John Fenwick…John Gavan… and Anthony Turner (London, 1679), p. 11. 25 N. Luttrell, A Brief Historical Relation of State Affairs from September 1678 to April 1714 (6 vols, Oxford, 1857), I, 225, 527; ST, VII, col. 922; S. Handley, ‘William Dolben’, DNB; Dolben’s brother John was archbishop of York; The Tryal…of Dr Oliver Plunket, pp. 79, 83. 24

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included the aged Serjeant Maynard, a counsel at the trial of Strafford in the 1640s, and most recently counsel at the parliamentary trial of Viscount Stafford in December 1680. Maynard had avidly supported the reality of the plot and of Sir Edmund Berry Godfrey’s murder to conceal it while wearing his other hat as an MP, declaring in parliament in early 1681 that ‘this damnable Popish Plot is still on foot in England, and I am sure in Ireland too’. Maynard had been the lawyer who determined which witnesses would be used against Plunket. Maynard declared in Plunket’s trial that the charge against Plunket was not merely against the king but ‘the Nation, and against all that is good’, as it aimed at ‘Destruction of the Protestant Religion in Ireland’. It was Maynard who alleged at the beginning of the trial that Plunket had received the ‘Dignity’ of ‘Primate of Ireland’ ‘from the Pope ‘upon this very Design’.26 The case was not exclusively prosecuted by Whigs such as Maynard. It received some of its credibility from being prosecuted also by Attorney General Sir Robert Sawyer, Heneage Finch, and by George Jeffreys, who had been censured recently in parliament for his opposition to Londoners’ petitioning. Jeffreys questioned various witnesses, coaxing one by very leading questions into making allegations that Plunket had intended to raise ‘70,000 men to establish the Romish Religion’. Some remarkably weak allegations by one witness that Plunket was attempting to raise money for a French invasion and had visited ports and decided that a French invasion should land at Carlingford were declared by Jeffreys not only evidence of the general existence of the plot but such that ‘fixed it upon the Prisoner’, even though the witness testified that he had never seen Plunket at the ports or at Carlingford or heard him designate the reason for visiting any of these locations or seen warrants for lists of men to support an invasion. When one witness started to suggest that some of the other witnesses against Plunket might be motivated by ‘malice against him’, it was Jeffreys who immediately backed up the judges’ silencing of the witness by asking for him to be committed as clearly tampered with. And it was Jeffreys who declared in summation that the evidence against Plunket was ‘the greatest Evidence that can be’ and a ‘plain Proof and a full Proof of every Treason laid to his Charge’.27 26 TNA, PC 2/69, 207, 211; Grey, Debates, VII, 51, 437; Curtayne, Trial, pp. 50–52; The Tryal…of Dr Oliver Plunket, p. 66. 27 The Tryal…of Dr Oliver Plunket, pp. 73, 82–83, 95–96; Grey, Debates, VII, 373–74, 461–64; State Tracts (1691), II, 103; De Krey, London, p. 203. The Attorney General Robert Sawyer had served as an MP on Commons Committees which drew up addresses to remove the Queen and other Catholics from Court and to ensure the inclusion of the duke of York in bills against Catholics, and had prosecuted the Queen’s physician Sir George Wakeman in July 1679. It was Sawyer who declared early in the trial that Plunket’s ‘character’ as a ‘Primate, under a Forreign and Usurped Jurisdiction, will be a great Inducement to you to give credit to that Evidence we shall produce before you’ (Tryal, p. 68). But Sawyer was to prosecute College and Shaftesbury and plead for the Crown against London’s charter. And Heneage Finch later prosecuted Russell and

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If these were the judges and most significant attorneys, what of the jury? The first thing to say is that the jury was chosen by the sheriff of London, Henry Cornish, who empanelled a Whig Protestant jury. A fierce Whig who was later to be executed for participation in the Rye House Plot, when Cornish had been presented to the king as sheriff in late 1680, the king had gone against the usual convention and had refused to knight him, and had even refused to receive him. It was Cornish who had been deputed to bring to the king the petition of 28 April 1681 demanding the sitting of parliament to prosecute conspirators. And it was Cornish who spent the very month of Plunket’s trial securing the election of future Whig sheriffs in order to ensure future Whig juries. The jurymen Cornish chose were Whig ‘freeholders’ of London and Middlesex, among the liverymen, common councilmen, and aldermen who had been the electors of its MPs, Lord Mayors, and sheriffs who pursued parliament’s sitting in order to pursue evidence of popish conspiracy, who had just defied the orders of the king against meeting in common council and had defied explicit royal orders against petitioning the king. The foreman of the jury, Sir John Roberts, was an alderman of the city and had earlier served on the jury which had convicted the five Jesuits in 1679, as well as on several other ‘Popish Plot’ juries. Just as prominent a London politician and member of the jury as its foreman Roberts was Henry Ashurst, a rich Presbyterian merchant from one of the leading Presbyterian families in London, and himself to be Lord Mayor of London under William and Mary. In January 1680 Henry Ashurst had been one of eight leading London citizens who were chosen to present to the king the petition of 16,000 signatures, the so-called ‘Monster Petition’ calling for the sitting of parliament in order to prevent this ‘hellish popish plot’ and the need to ‘impeach or try suspected conspirators’; the king had then refused to accept the petition and had attacked the rights of petitioners to petition. Henry Ashurst was the brother of William Ashurst, the common councilman who had drawn up the 28 April 1681 petition to the king for the sitting of parliament and prosecution of popish conspirators. Henry and William Ashurst had signed the 1680 ‘Monster petition’ to the king for parliament on the same page, with the location of signing having been read persuasively by Mark Knights as evidence of association between signatories and the concerted organisation of the collection of signatures. Another signator on the self-same page was Cornish, to whom Henry Ashurst was related by marriage.28 Before serving on Plunket’s jury, three further jurors, Thomas Earsby, Ralph Bucknall and John Hayne(s), had served on the grand jury of Oswalston for the county of Middlesex at the Court of King’s Bench, Westminster, which petitioned the king – in a petition that was printed – to ‘have regard to the great council of Sidney and pleaded the Crown’s case in the quo warranto against London: Paul Halliday, ‘Sir Robert Sawyer’, DNB; idem, ‘Heneage Finch’, DNB. 28 ST, VII, cols. 319, 763; M. Knights, ‘London’s Monster Petition of 1680’, Historical Journal, 36:1 (1993), 39–67.

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Parliament’ – that is, to pass Exclusion in order to ‘provide for the safety of your sacred person, the Protestant Religion, and the Laws of the Land; which hath been the objects of the Malice of Popish Plotters: As it hath manifestly appeared upon the legal Tryals of divers Conspirators against the same’. One of these grand jury petitioners and Plunket juryman John Hayne(s), had been a member of the common council during the Interregnum; zealous Protestantism was indicated by the ‘extensive library of religious works’ recorded in his will. And Hayne(s) had previously served on the jury which had convicted Green, Berry and Hill of the murder of Sir Edmund Berry Godfrey. So too had another juryman, Richard Gowre. Before his service on Plunket’s jury, Thomas Earsby (or Earnesby) had not merely signed the grand jury petition but had also served in the trial of Ireland, Pickering and Grove in 1678, of Thomas Knox and John Lane in 1679 and of John Tasborough and Anne Price in 1680. Before serving on Plunket’s jury, Richard Pagett had served alongside Earsby in the trial of Tasborough and Price. Also before serving on Plunket’s jury, Thomas Hariot had served alongside Pagget and Earsby in the trial of Tasborough and Price, and alongside Roberts in the trials of the five Jesuits and the 1679 jury which had convicted Thomas Knox and John Lane – without the jury even leaving the court for deliberation – for attempting to discredit the Popish Plot; in that latter case, held before Judge Pemberton, Maynard as prosecuting attorney had declared that ‘no one’ could doubt a Plot whose truth the Lords and Commons had ‘several times jointly declared’. Hariot was, moreover, probably the justice of the peace for Middlesex who had brought evidence to the parliamentary committee investigating the Popish Plot concerning the alleged murderers of Edmund Berry Godfrey. Before serving on Plunket’s jury, James Parteridge had served on the jury which convicted John Giles for attempted murder for attacking an investigating magistrate John Arnold on the night before he was supposed to present evidence to the privy council. Thus many of Plunket’s jury were significant London Whig political figures, magistrates or petitioners, and no less than seven of the jurors had served on at least one preceding trial, often alongside others of Plunket’s jury and before some of the same judges and attorneys as in Plunket’s case. It took this jury a total of fifteen minutes to reach its verdict of guilty against Plunket.29 I have left until last the witnesses, who in previous scholarship have received more attention than judges, attorneys and jury. I am suggesting that it did not much matter, given this set of judges, attorneys, and jury, given the systematic denial of anything approaching a fair trial, and given the political context in London in which this trial occurred, that the witnesses’ evidence at trial was threadbare, suspect, and corrupt. It did not matter in these contexts that their evidence often involved circumstantial and hearsay allegations of plotting, totally unsubstantiated allegations of lists of Irish ready to rise in arms, and totally The Tryal…of Dr Oliver Plunket, pp. 65, 98; ST, VII, cols. 81, 161, 312, 319, 763, 881, 1130; J. Woodhead, The Rulers of London, 1660–89 (London, 1965), s. v. John Hayne(s); The humble petition of the Grand Jury of the Hundred of Oswalston for the county of Middlesex, attending the court of Kings Bench at Westminster, for this term of St. Michael, 1680 (London, 1680); TNA, PRO 30/24/43/63, fol. 21. 29

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unsubstantiated allegations of a French invasion plan – allegations that were so far-fetched, indeed, that Plunket was to declare at one point that an Irish jury would have found it likelier that he could fly than that such a plot could have been real. The witnesses were thoroughly disreputable. If one (Edmund Murphy) perhaps deserves a modicum of credit for attempting at trial to limit his evidence and to assert that the other witnesses were activated by malice, such credit is surely tempered significantly by his having been one of the initiators of accusations against Plunket in Ireland, and having being Shaftesbury’s initial star witness to the existence of an ‘Irish plot’ in testimony before the Lords in 1680. The other witnesses had a history of criminality or of disputes against Plunket, and their motivations included pardons received the day after the trial. One witness was to be executed for robbery in Ireland within a year, and at the gallows declared that he ‘never knew of any plot or treasonable contrivances by Irish or English’, but had been made promises of lands and livings and of being ‘largely considered by the Parliament for ever’ if he spoke against Plunket. He declared that he had been coached in his evidence, among others by John Macnamarra, whose published deposition before parliament in December 1680 was extensively quoted earlier, and who went on to testify against Shaftesbury in November 1681; Macnamarra was also soon to be hanged as a robber in August 1684.30 Whig accounts of the trial and execution declared it a fair trial and Plunket a traitor justly executed. These included the 1681 The Condemnation of the two notorious traytors, Oliver Plunket and Edward Fitzgerald and The Traytors rewarded, which exulted in Plunket’s execution for ‘contriving, and Trayterously carrying on the late Hellish PLOT’ and declared that Plunket, given ‘the Character of Archbishop of Dublin’ by the Pope, ‘has met with a more deserved Advancement at Tyburn’. The dialogue Treason made manifest declared that it had been proved against Plunket that he had conspired to aid a French invasion of Ireland, and to ‘enslave that Kingdom to Popery, and the insulting Tyranny of the French power’. The execution of… Oliver Plunket declared Plunket a ‘Capital Traytor (whose wicked Designs had they taken effect, had inevitably ruined the Kingdom of Ireland, by reducing it to a far worse condition than when the bloody Papists triumphed over the Massacred Protestants)’ whom the pope had created archbishop of Dublin ‘for no other end, then to carry on his Hellish Designs of Murther and subversion’. Such accounts were published as Shaftesbury awaited trial after 2 July 1681 and on into 1682.31 TNA, PC 2/69, 306; Gibney, Ireland, pp. 49–65; Curtayne, Trial, pp. 228 ff; Moran, Memoirs, esp. pp. 371–72. 31 The condemnation of the two notorious traytors Oliver Plunket, titular Primate of Ireland, and Eward [sic] Fitz-Harris (London, 1681); The traytors rewarded: or, the execution and confession of Edward Fitz Harris and Oliver Plunket (London, 1681); Treason made manifest ([London?], 1681); The execution of …Oliver Plunket (London, [1681?]); Florence Weyer, The honesty and true zeal of the Kings witnesses justified and vindicated against those unchristian-like equivocal protestations of Dr. Oliver Plunkett (London, 1681); An account of some particulars in the tryal of Mr. Ed Fitz Harris…Together with a brief relation of the tryal of Oliver Plunket (London, 1681); William Hetherington, The Irish-evidence convicted by their own oaths (London, 1682). 30

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But for others, Plunket’s Last Speech protesting his innocence was the more persuasive. This was published and circulated in Ireland, where it helped to undermine further fabricated Popish Plot accusations and to foster support for James II, and in France, where reporting the last words of Catholics executed by the English in the course of the ‘Popish Plot’ helped to create the atmosphere in which the government increased measures against Huguenots in the years leading up to the Revocation of the Edict of Nantes. And Plunket’s Last Speech was printed and read in England, where the king, instead of pardoning Plunket, sought to use some Irish witnesses to testify against Shaftesbury (and against the Whig propagandist Stephen College, who was executed in August 1681 in part due to their evidence). In defending the reality of the ‘Popish Plot’, Shaftesbury had once declared that ‘all those who undermined the credit of the witnesses were to be looked on as public enemies’; the king now sought to use the weapon which Shaftesbury had sharpened against him, and Shaftesbury now had to discredit the very witnesses whose perjured evidence he had formerly solicited, and by which he had engineered the trial and execution of Plunket. Shaftesbury, however, had a grand jury empanelled by the fiercely Whig sheriffs elected in June, and consisting of many of London’s leading Whig citizens. Shaftesbury and his associates, including Locke, organised an extensive legal campaign to obtain testimony to undermine the credibility of the witnesses against him, testified to his innocence in various London courts, petitioned Lord Mayor Patience Ward, who spoke on his behalf, and organised the London publication of accounts undermining the credit of the accusations and of the witnesses against him before the grand jury heard his case. In Shaftesbury’s case, unlike that of Plunket, the grand jury rendered an ‘ignoramus’ verdict, and Shaftesbury was released, to widespread celebration in London.32 The last speech of Mr. Oliver Plunket (London, 1681); Gibney, Ireland, pp. 156–65; S. Connolly, Religion, Law and Power (Oxford, 1992), p. 117; A. MacInnes, ‘Gaelic Culture in the Seventeenth Century’, in Conquest and Union: Fashioning a British State, 1485–1725, ed. S. Ellis and S. Barber (New York, 1995), p. 181; B. Fitzpatrick, SeventeenthCentury Ireland: The War of Religion (Dublin, 1988), pp. 244–45; Marshall, Locke, pp. 24–25, 49ff; J. and P. Milton (eds), John Locke: An Essay Concerning Toleration (Oxford, 2006), pp. 118–37, 233, 377–82, 420–2; Mr. Smyth’s discovery of the Popish sham-plot (London, 1681); A new discovery of the sham-Presbyterian plot (London, 1681); [Robert Ferguson], No Protestant plot (London, 1681); The Impartial Protestant Mercury, 19–22 July 1681; A particular account of the proceedings at the Old-Bayly, the 17 & 18 of this instant October, with relation to the Earl of Shaftsbury, and others ([London], 1681); Some memoirs (London, 1681); A brief account of the designs which the papists have had against the Earl of Shaftsbury ([London], 1681); The speech and carriage of Stephen Colledge at Oxford (London, 1681), pp. 2–4; TNA, PRO 30/24/43/63, fols 164, 171, 173, 177, 179–88, 192, 194, 196, 198, 200, 203–373, 375–443, 445–510; TNA, PRO 30/24/6A, 364–66, 369; TNA, PRO 30/24/7, 501–2; CSPD, 1680–81, 416, 418, 493, 621, 671; An Account at large of the Proceedings at the sessions house in the Old Bayley on the 24 November 1681 (London, 1681), p. 8; De Krey, London, p. 237. The widespread celebrations in London included not merely bonfires, toasts and demonstrations, but also the striking of a medal with Shaftesbury’s head on one side and on the other the city of London beneath the rays of a shining sun and the declaration Laetamur (‘we rejoice’). Hinds, ‘Horrid’, pp. 347–59. 32

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5 Sham Plots and False Confessions: The Politics of Edward Fitzharris’s Last Words, 1681 Andrea McKenzie The struggle between king and Commons over the jurisdiction of the trial of Edward Fitzharris – would he be tried in parliament, or by common law? – constituted the last pitched battle of what is traditionally known as the Exclusion Crisis, and fills many pages of the State Trials.1 However, Edward Fitzharris himself, an Irish Catholic court spy briefly championed by Shaftesbury and his supporters as a Popish Plot witness, remains an elusive and ambiguous figure. In his 1689 remarks on Fitzharris’s case, Sir John Hawles ‘wondred’ why the ‘Tryal and Condemnation of a Person who was confessedly an Irish Papist, should be complained of’, let alone why there was such ‘a great struggle between the Whigs and Tories… for hanging or saving’ a man ‘both agreed… deserved to be hanged’.2 Over fifty years ago, J. R. Jones characterised ‘the case of Fitzharris’ as a ‘mystery of the period which, like the death of Godfrey, has never been satisfactorily explained’.3 Jones never followed through on his intention to do further research on the subject, possibly deterred by the sheer number of ‘charges and countercharges’ which, in Richard Greaves’ words, ‘make this case somewhat murky’.4 It is perhaps not surprising that modern accounts of the Exclusion Crisis and the Popish Plot have tended to pass quickly over this episode, relegating Fitzharris to something of a footnote, as the first victim of the so-called ‘Tory Revenge’.5 As we shall see, any generalization inevitably oversimplifies the tortuously complex story of a royalist double agent whose clumsy ST, VIII, cols. 223–446. Sir John Hawles, Remarks upon the Tryals of Edward Fitzharris, etc. (London, 1689), p. 3. 3 J. R. Jones, The First Whigs: The Politics of the Exclusion Crisis, 1678–83 (London, 1961), p. 174. 4 Jones, First Whigs, p. 174n; Richard L. Greaves, Secrets of the Kingdom: British Radicals from the Popish Plot to the Revolution of 1688–1689 (Stanford, 1992), p. 23. 5 J. P. Kenyon, The Popish Plot (London, 1972), p. 234; see also Mark Knights, Politics and Opinion in Crisis, 1678–81 (Cambridge, 1994), p. 317; more recently, Gary De Krey has noted that Fitzharris’s ‘final confessions were… of enormous significance in the party conflict in London and the nation’ (London and the Restoration, 1659–1683 [Cambridge, 2005], p. 232). 1 2

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attempt to plant a seditious libel on leading Whigs led to his own execution for treason, and whose testimony and dying confession subsequently became the objects of intense media scrutiny and controversy. Restoration plots and counterplots were baffling even to contemporaries. ‘But at this Time’, according to Laurence Echard, writing several decades later, ‘none made greater Noise, or caus’d more Enquiries’, or was more ‘hard to be unfolded’, than ‘the Mystery’ of Fitzharris.6 Roger North prefaced his discussion of Fitzharris (written circa 1713, though not published until 1740) as though by taking a deep breath: ‘now I am launching into a Sea of Sham’.7 Later in the eighteenth century, David Hume calculated that the Fitzharris affair was ‘no less than the fifteenth false plot, or sham plot’ of its kind. While Hume, like many subsequent historians, clearly viewed the very impenetrability of such ‘intricate and incredible’ and ‘perplexed stories’ as grounds to dismiss them,8 contemporaries had neither the inclination nor the luxury to do the same. Recent scholars have been increasingly willing to take the Popish Plot seriously, and on its own terms; in the words of Alexandra Walsham, such moral panics should be viewed not as ‘a cloud or fog which prevents us from apprehending an underlying reality, but rather as the main event itself’.9 This essay takes as its ‘main event’ Fitzharris’s testimony, dying speech and longer printed confessions – specifically, the ways in which these were solicited and scripted, as well as attested to and animadverted against by writers from Whig and Tory camps. Not least, the debate over both Fitzharris’s trial and his published testimony and confessions reinforces what Mark Knights and others have argued: that the so-called Exclusion Crisis extended beyond both constitutional issues and parliamentary sessions and continued after the dissolution of the Oxford Parliament.10 As this essay illustrates, Fitzharris’s case was pivotal to what Gary DeKrey has termed the ‘battle of the plots’ which raged during the critical period between the Oxford Parliament of March 1681 and the shrieval election of autumn 1682, when ‘the legal sessions of London… became the foremost political arena of the nation’.11 For even if many Restoration trials were travesties of justice, Laurence Echard, The History of England (30 vols, London, 1718), III, 612. Roger North, Examen (London, 1740), p. 272; P. T. Millard, ‘The Chronology of Roger North’s Main Works’, The Review of English Studies, 24:95 (1973), 287. 8 David Hume, The History of England (8 vols, London, 1769), VIII, 154. 9 Alexandra Walsham, ‘“This Newe Army of Satan”: The Jesuit Mission and the Formation of Public Opinion in Elizabethan England’, in David Lemmings and Claire Walker (eds), Moral Panics, the Media and the Law in Early Modern England (Basingstoke, 2009), p. 42. See also Jonathan Scott, ‘England’s Troubles: Exhuming the Popish Plot’, in The Politics of Religion in Restoration England, ed. Tim Harris, Paul Seaward and Mark Goldie (Oxford, 1990); Peter Hinds, ‘The Horrid Popish Plot’: Roger L’Estrange and the Circulation of Political Discourse in Late Seventeenth-Century London (Oxford, 2010), p. 84. 10 Knights, Politics and Opinion, pp. 4–5. 11 De Krey, London and the Restoration, pp. 223–24; see also Jones, First Whigs, p. 183; Joad Raymond, Pamphlets and Pamphleteering in Early Modern Britain (Cambridge, 2003), p. 331; Mark Knights, Representation and Misrepresentation in Later Stuart Britain: 6

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to see them exclusively as ‘acts of political theatre, to express, and… assuage, a general public concern’ neglects the degree to which public opinion was fluid and dynamic, and verdicts open to contestation.12 Outrage over the acquittal of Sir George Wakeman led to impeachment proceedings against the lord chief justice Sir William Scroggs; conversely, ‘the succession of ignoramus verdicts by London juries empaneled by Whig sheriffs’ did Charles II and the Tories ‘more good than harm’, as DeKrey has suggested.13 Similarly, late seventeenth-century executions, and their representation in print, provided yet another forum for partisan debate. Not only were the last dying speeches of Russell and College ‘potent weapons’ in the Whig ‘propaganda arsenal’,14 but accounts of those Catholics executed for the Popish Plot who died well succeeded in sowing doubts in Protestant observers.15 Fitzharris was neither a Whig nor a Catholic martyr, but the battle over his trial, testimony and dying words would polarise the political nation in the spring and summer of 1681. * * * If Edward Fitzharris has been more charitably characterized by his modern ODNB biographer Alan Marshall as an ‘unlucky man…caught up in a plot largely of his own making’, most contemporaries would have concurred with Mark Knights’ description of Fitzharris as an ‘unsavoury and double-dealing spy’. According to the Secretary of State Leoline Jenkins, Fitzharris was ‘a very naughty man’; Narcissus Luttrell, ‘a great rogue’; Roger North, ‘a knave’; the French ambassador Barillon, a man ‘si meschant’ that it was impossible to credit anything that he said.16 In this at least, Titus Oates agreed: Fitzharris ‘was from Partisanship and Political Culture (New York, 2006), pp. 6, 245; Frances E. Dolan, True Relations: Reading, Literature, and Evidence in Seventeenth-Century England (Philadelphia, 2013), p. 10. 12 Scott, ‘England’s Troubles’, p. 120. 13 De Krey, London and the Restoration, p. 224. 14 Melinda S. Zook, Radical Whigs and Conspiratorial Politics in Late Stuart England (University Park, 1999), p. 90; see also her ‘“Blood will have Blood”: The Regicide Trials and the Popular Press’, this volume; Lois Schwoerer, ‘William Lord Russell: The Making of a Martyr, 1683–1983’, Journal of British Studies 24:1 (1985), 41–71. 15 John Miller, Popery and Politics in England, 1660–1688 (Cambridge, 1973), p. 176; Gilbert Burnet, Bishop Burnet’s History of his Own Time, ed. Martin Joseph Routh, 2nd edn (30 vols, Oxford, 1833), II, 223; Thomas Bruce, 2nd Earl of Ailesbury, Memoirs of Thomas, Earl of Ailesbury, Written by Himself (2 vols, Westminster, 1890), I, 51. 16 Alan Marshall, ‘Fitzharris, Edward (d. 1681)’, Oxford Dictionary of National Biography (Oxford, 2004); Knights, Politics and Opinion, p. 317; Secretary Jenkins to Sir James Butler, 25 February 1681, TNA, SP 44/62, fol. 135; Narcissus Luttrell, A Brief Historical Relation of State Affairs from September 1678 to April 1714 (6 vols, Oxford, 1857), I, 81; Roger North, Examen, 66; Armand Baschet, ‘Barillon Letters to Louis XIV’ (henceforth ‘Barillon Letters’), 30 June 1681 (new style), TNA, PRO 31/3/148, fol. 170. Dates are in old style unless otherwise indicated.

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the first… ready to say, deny, affirm, or do anything to save his life’.17 But in the topsy-turvy world of the Popish Plot prosecutions, in which, as Rachel Weil has noted, ‘the relationship between credibility and character’ was fundamentally ‘disrupted’, informers of obscure backgrounds and dubious reputations could, and did, testify with devastating effect against social superiors of irreproachable life. Paradoxically, in this most anti-papist of contexts the testimony of the Irish Catholic Fitzharris was all the more compelling in that it was believed that rogues and papists were most likely to be privy to the dark designs of other rogues and papists.18 Edward Fitzharris was the second son of an Irish Catholic baronet, a soldier turned conspirator. He himself would persist in the claim that he had been employed by Charles II to detect ‘Libels, or other Accusations… against him’.19 His widow Anne Fitzharris would testify to the House of Commons in 1689 that the king, through the intermediary of the duchess of Portsmouth’s maid, had paid her late husband to plant incriminating evidence – in the form of copies of a seditious libel – in both the homes and the pockets of prominent Whigs. According to Anne Fitzharris, Charles II had not only met personally with her husband, but also had told him that ‘he would make him greater than the Duke of Albermarle: He brought the King into the Throne, but Fitzharris would keep him in it’.20 Then, Mrs Fitzharris testified, when the plan miscarried, the ‘Popish Party in Whitehall’ decided to ‘make him a Sacrifice, rather than the Conspirators [i.e., the court] should be discovered’.21 In late February 1681, Fitzharris was betrayed by an accomplice, Edmund Everard, and caught red-handed in possession of the very libel that he had intended to palm off on Shaftesbury’s supporters. This paper, entitled ‘The True Englishman Speaking Plain English’, consisted of a vitriolic attack on the duke of York and the king himself, who was identified as a crypto-Catholic. It also called for readers to rise up in defence of liberty and Protestantism against

Titus Oates, The Second Part of the Display of Tyranny (London, 1690), p. 153; exactly the same words are applied to Fitzharris in the anonymous Fitz-Harys’s Last Sham Detected (London, 1681), p. 4, suggesting that Oates and/or his collaborator John Phillips were authors. 18 Rachel Judith Weil, ‘“If I did say so, I lyed”: Elizabeth Cellier and the Construction of Credibility in the Popish Plot Crisis’, in Political Culture and Cultural Politics in Early Modern England, ed. Susan Dwyer Amussen and Mark Kishlansky (Manchester, 1995), p. 190. 19 The Confession of Edward Fitz-Harys Esq… (London, 1681), p. 1; Fitzharris had written to Jenkins: ‘I have something to communicate to you, which I suppose may be for his Majesty’s service’ (Edward Fitzharris to Secretary Jenkins, 9 August 1681 [sic; recte 1680], SP 29/416, fol. 167). 20 Anchitell Grey (ed.), Grey’s Debates of the House of Commons: Volume 9 (London, 1769), 20–24 March 1689, p. 180; see also ‘Advice Concerning Fitzharris’, [June] 1681, SP, 29/416, fol. 72a. 21 CJ, X, 61 (22 March 1689). 17

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both ‘brethren in iniquity’.22 Fitzharris, though remaining tight-lipped when interrogated by the secretaries, proved more forthcoming when examined in Newgate by the Whig sheriffs Henry Cornish and Slingsby Bethell and the recorder of London George Treby. Bethell would later claim that Fitzharris had told him that ‘“The King would hang him, because he knew more of the Popish Plot than any man”. He would not tell me Particulars, but “that he would inform the Parliament, on whom he relied for his safety”’.23 Fitzharris did, however, sign a deposition, subsequently published by order of the House of Commons, implicating the duke of York, the queen and other usual suspects in a general Catholic conspiracy; he later claimed to have evidence implicating the former lord treasurer, the earl of Danby, in the murder of Sir Edmund Berry Godfrey.24 At this critical juncture, when the faltering Popish Plot seemed to have been successfully revived (a Middlesex jury even brought in a bill indicting Danby on Fitzharris’s evidence for Godfrey’s murder) the court whisked Fitzharris to the Tower of London, where he was kept ‘close prisoner’, denied ‘Pen, Ink, or Paper’ and ‘not suffered to converse with his Wife or Friends’.25 A vigorous campaign on the part of the Commons to have Fitzharris impeached so that his supposed Popish Plot discoveries could be brought to light by a trial in parliament – thus facilitating proceedings against Danby and the duke of York – was in the end stymied by the dissolution of the Oxford Parliament on 28 March 1681. Many contemporaries believed that it was the ‘heat growing between the two Houses about Fitzharris’,26 as much or more than the Exclusion Bill, that was the ‘break-neck of that Parliament’.27 Some hinted at the complicity of the king in the darker designs to which Fitzharris was privy. ‘The court did not like the commons impeaching Fitzharris, being he knew considerable matters relating to some great persons there, and which they were conscious he might discover’, reported Narcissus Luttrell, adding pointedly that ‘some [sober men] scruple not to say that his accusation runs very high’.28 Contemporaries were very much alive to the possibility that Fitzharris’s libel, like the abortive ‘Meal Tub Plot’ in the autumn of 1679, was an attempt to plant a ‘Sham-Plot’ or a ‘Counter-Plot’ on the opponents of the court and pass it off as a ‘Protestant’ or ‘Presbyterian Plot’ against the king.29 In March 1681, newssheets ST, VIII, cols. 357–61. Grey’s Debates of the House of Commons: Volume 9, 20–24 March 1689, pp. 182–83. 24 The Examination of Edw. Fitzharris, Relating to the Popish Plot (London, 1681); ‘Further Advice Concerning Fitzharris’, [June] 1681, CSPD, Charles II, 1680–1, p. 338; Barillon Letters, 29 May 1681 (new style) TNA, PRO 31/3/148, fol. 145. 25 CJ, X, 61–63 (22 March 1689). 26 Secretary Jenkins to Henry Savile, 31 March 1681, Trumbull Papers, Add. MS 72582, fol. 53v, BL. 27 Hawles, Remarks, p. 5. 28 Luttrell, Historical Relation, I, 181. 29 [Oates], Second Part of the Display of Tyranny, p. 54. 22 23

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reported that Fitzharris had revealed a conspiracy ‘to shuffle those Horrid Libels into Mens Pockets, and then Accuse and Search, and Prosecute them’, warning ‘that when they [members of the opposition] came to Oxford, they should have a care of their Pockets, for Treasonable Papers would be conveyed into them and that persons were provided to swear against them’. Slingsby Bethel would later claim that he and others ‘under the Envy of the Court’ began to ‘sow up their Pockets’ for fear of such ‘Tricks’.30 Reports also circulated that Fitzharris had been hired by the French ambassador, to whose confessor the libel was supposed to have been delivered. Barillon noted that such rumours had created a stir in London, but were not taken seriously by the privy council, adding drily: ‘I do not think that the King of England suspects any of my servants of wishing to publish the fact that he is Catholic. The Prince [Charles II] has spoken jestingly to me of this’.31 It is difficult not to read double meanings into references to Charles II’s religion in the spring and summer of 1681. One pamphlet attack on both Fitzharris’s dying confession and the credibility of the Irish witnesses against Shaftesbury pointedly identifies ‘His present Majesty’ as ‘a Protestant Prince’, asking – with palpable irony – how there could be ‘A Plot of Protestants against themselves! And (the only security they have under God) the Life of their Prince’?32 In the published account of Fitzharris’s examination before the sheriffs, he is reported asking a supposed fellow plotter how it could be that the Catholic Church could be reinstated in England, ‘since the KING was a PROTESTANT?’33 During the impeachment proceedings against Fitzharris in the Commons, the fiction that the Popish Plot was directed at the king seemed to be wearing thin; there was certainly an edge to the rhetoric about ‘the arts and crafts used to hide this plot’, defined pointedly by the MP Sir Francis Winnington (one of Fitzharris’s high-powered team of Whig lawyers) without reference to the king, as ‘a new Plot against the Protestant religion’. Winnington thundered: ‘If the Lords vote, “That the House of Commons shall not impeach this man”’ – as indeed they did – ‘they may as well vote, that we shall not be Protestants. But yet we will be Protestants’. When the House resolved to impeach Fitzharris ‘of high-treason, in the name of all the Commons of England’, tasking Secretary Jenkins with bringing the impeachment to the Lords, the latter balked, objecting that the ‘impeachment reflects upon his majesty, my master’. When pressed, Jenkins elaborated: ‘the thing I stand upon is, That the motion was carried on in ridicule’. One can only assume that members had snickered meaningfully as the resolution was passed; as one MP conceded, ‘the thing was a little Newsletter to Roger Garstell, Newcastle, 3 March 1681, CSPD, 1680–1, p. 194; The Protestant Domestick Intelligence, 18 March 1681; Slingsby Bethel, The Providences of God, Observed through Several Ages, towards this Nation (London, 1691), p. 19. 31 Barrillon Letters, 13 March 1681 (new style) TNA, PRO 31/3/148, fol. 76. 32 The Oaths of Irish Papists No Evidennce [sic] against Protestants (London, 1681), pp. 4, 10. 33 Examination of Edw. Fitzharris, p. 7. 30

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smilingly moved’.34 Were they laughing only at the general discomfiture of the court, or at the open secret that the king was in fact the author of the plot with which Fitzharris was charged? * * * We can never know for sure why the members of the Commons laughed, nor why the secretary of state took offence; similarly, we can only guess at why Fitzharris, a court spy who had infiltrated Whig circles, turned Popish Plot witness. It seems likely that, upon being apprehended and fearing for his life, he decided that the opposition had the upper hand and could thus better protect (or reward) him. He may also have been motivated by animus against the king for having abandoned him. In a letter to his wife before his trial, Fitzharris is supposed to have written that God would ‘demand a reckoning for his blood from those who shall be the causes of his death after engaging him in an affair in which he acted according to their orders’; that he ‘consider[ed] himself already as hung’ as ‘the King will not be satisfied without that’; and ‘that if he has any [hope] of saving his life, it is by the favour of the Cabal’.35 Anne Fitzharris was reportedly receiving both money and directives from Shaftesbury through informers like Edward Ivey, the latter claiming that Mrs Fitzharris, now allowed supervised visits to her husband, communicated things ‘of privacy’ to him ‘though the warder be by’ by ‘between whiles drop[ping] her voice’.36 Mrs Fitzharris was supposedly instructed by various members of ‘the faction’ – including the earl of Essex, the former Whig mayor Sir Robert Clayton, Sir William Waller, one of Godfrey’s brothers (probably Michael) on ‘behalf of the Protestant Lords’ and the ever-busy Titus Oates – ‘to advise her husband to accuse the K[ing], Qu[een] and D[uke] home or else his life could not be saved’. Waller urged that ‘if he did not accuse the D[uke], all he did was to no purpose’; Clayton added Danby to the list and John Rouse urged him to also ‘lay the firing of London to the K[ing] and D[uke]’.37 Lord Howard of Escrick wrote to Mrs Fitzharris, advising her husband ‘to subpœna’ Lord Feversham, for ‘the King often told him of several conferences he had with [Fitzharris] at the Duchess of Portsmouth’s apartments’.38 The minister of the Tower Francis Hawkins claimed that Fitzharris told him that ‘a paper of instructions was put State Trials, VIII, col. 235; VIII, col. 234; VIII, cols. 227–28; VIII, col. 230. ‘Advice concerning Fitzharris’, [June] 1681, CSPD, 1680–81, p. 338. The entry concludes with this note: ‘This letter and another like it fell into the hands of the Duke of Buckingham, who has them still and does not wish to give them up’. References to Fitzharris’s defence strategy date the letter to before his trial. 36 ST, VIII, cols. 329–30; VIII, col. 398; ‘Examination of J. Rouse’, 9 July 1681, Shaftesbury Papers, Part II, TNA, PRO 30/24/43/63, fols. 204v–205; Lieut.-Col. Rich to Sir Leoline Jenkins, 30 May 1681, SP 29/415, fol. 384. 37 ‘Further Advice Concerning Fitzharris’, [June] 1681, SP 29/416, fol. 74. 38 Lord Howard of Escrick to Ann Fitzharris, [June] 1681, SP, 29/416, fol. 70. 34

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into his pocket in Westminster Hall wherein he was advised to charge the Libel on the Lady Portsmouth as a thing that would be most acceptable to the people & not to spare the greatest but to speak boldly’ against Danby and the Catholic lords in the Tower, among others.39 This paper, in a ‘hand… very well known’, was subsequently seized as evidence against Shaftesbury.40 Fitzharris’s trial, ‘the Debate’ over which had ‘filled all people with a longing expectation to know the Event’, was duly held at the King’s Bench on 9 June 1681, before ‘a very great appearance of nobility and gentry’, including ‘near 60 lords’.41 The outcome of this showdown between the Whigs, who (in Hawles’ words) ‘thought it their advantage to save him, if he would confess’ and the Tories, who wanted ‘to hang him, for fear he would confess’, was by no means assured in advance.42 Barillon reported that Titus Oates called out to Fitzharris at one of his earlier court appearances to ‘take heart, and that all the people of England were with him’.43 The jurors had been carefully selected by the Whig sheriffs; during the trial, according to Echard, papers were slipped into their hands ‘containing Reasons’ to acquit the prisoner and ‘Menace[s]’ if they did not, and ‘as they withdrew from the Bar, some Persons said to them in their Passage, Find him Guilty, if you dare!’44 On the other hand, the case for the prosecution was strong. Fitzharris had not only been arrested in possession of the libel, but his accomplice Everard had planted in his lodgings two witnesses – the magistrate Sir William Waller and the Popish Plot witness John ‘Narrative’ Smith – who, peering through a ‘crevice’ in a door and a hole cut through the hangings that covered it, were able to see and hear Everard and Fitzharris, in the adjoining room, editing a paper that was indisputably seditious.45 Smith testified that Fitzharris replied to Everard’s leading remark – ‘these are very treasonable things, and this a very treasonable project’ – by saying ‘the more treasonable the better, and that will do the effect better’.46 If this statement by Fitzharris could be read two ways – as an intention to craft either a more damning attack on the court or a more incriminating libel to plant on the opposition – other testimony implicated the king more directly. Several defence witnesses claimed that Charles II, after having [Francis Hawkins], “Historical Papers” (draft narrative of Fitzharris’s confession, [1681]), BL Stowe MS 144, fol. 30. 40 Newsletter to John Squier, Newcastle, 2 [July] 1681, CSPD, 1680–1, p. 340. 41 The Relation of the Tryal and Condemnation of Edward FitzHarris, and Oliver Plunket… (London, 1681), p. iii; Newsletter to Roger Garstell, Newcastle, 9 June 1681, CSPD, 1680–1, pp. 340, 311. 42 Hawles, Remarks, p. 3. 43 Barillon Letters, 22 May 1681 (new style), TNA, PRO 31/3/148, fol. 138. 44 Echard, History of England, p. 632. 45 ST, VIII, col. 354; VIII, col. 352. The libel was read out during the trial; although several illicit copies were in circulation, it was not published until 1682, under the title Treason in Graine (Greaves, Secrets of the Kingdom, p. 24; Knights, Politics and Opinion, p. 173). 46 ST, VIII, col. 345. 39

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dismissed Waller with thanks for having arrested Fitzharris, fell into ‘an extreme passion, bestowed many hard names on [Waller], and said… he had broken all of his measures’.47 Titus Oates was evidently nervous in the unfamiliar role of defence witness: he complained of the crowd, and repeatedly begged to be excused (the attorney general Sir Robert Sawyer remarking sarcastically, ‘that may be part of the popish plot, to keep Dr. Oates here, to kill him in the crowd’).48 The notorious Popish Plot witness – who for once may have been telling the truth – testified that Fitzharris had been hired by the court, and paid by the king, to send copies of the libel to ‘the protesting lords, and the leading men in the House of Commons’ so that they could then be ‘taken up’ and charged with treason.49 For his part, Fitzharris laboured to prove that he had been employed by the king for ‘secret service’, including hunting out libels and plots, although most witnesses carefully minimised Charles II’s involvement. While Henry Cornish testified that the king ‘did countenance and give [Fitzharris] some money’, the earl of Conway admitted only that the king had told him that ‘he did formerly employ’ Fitzharris ‘in some trifling things’.50 Both the duchess of Portsmouth’s maid, Mrs Wall, and the duchess herself, who made a brief and haughty appearance, claimed that the money from the king had been given to Fitzharris ‘for charity’ only.51 Fitzharris’s piteous final remarks seemed calculated to straddle both loyalist and opposition positions: on the one hand, he claimed to have acted ‘with a design to serve the king’ only to be duped by Everard, the real author of the libel (and ‘well acquainted’ with both Shaftesbury and Howard and ‘all their intrigues’). On the other hand, he hinted that he would be able to divulge more damning Popish Plot evidence if he were acquitted and thus able ‘to answer that impeachment before the parliament’.52 The jurors, instructed that they were to judge on the fact of the libel only, without reference to the jurisdiction of the trial, returned a verdict of guilty after a half an hour of deliberation, ‘at which there was a general Hum throughout the Court’.53 In Luttrell’s view, Fitzharris’s defence was ‘very mean, and was only, he would have insinuated as if Mr. Everard writt the libell himself, and endeavoured to asperse his majestie as if he had been privy theretoo’.54 Barillon, like many contemporaries, was sceptical that Charles II paid Fitzharris some two hundred pounds without expecting ‘some service’ in return. But Barillon put his finger on the flaw in Fitzharris’s defence: ‘by the laws of England, no act committed against the state or the King can be authorized or even justified by [the King’s] ST, VIII, col. 364. ST, VIII, col. 373. 49 ST, VIII, col. 373. 50 ST, VIII, col. 378; VIII, cols. 363–64; VIII, col. 374. 51 ST, VIII, col. 377. 52 ST, VIII, cols. 378–79. 53 The Tryal of Edward Fitz-Harris (London, 1681), p. 4. 54 Luttrell, Historical Relation, I, 96. 47

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presence’.55 Perhaps even more importantly, however, the prosecution at Fitzharris’s trial succeeded in appropriating the anti-papist discourse that had hitherto served the opposition so well. Equating the Popish Plot with treason against the king had the advantage of legitimating the oppositional agenda of its prosecutors, as Tim Harris has pointed out.56 Yet the very malleability of anti-popery as an ‘infinitely extendable… variant of the evil-counsellor argument’ now worked against the Whigs.57 If the Popish Plot equalled treason against the king, treason against the king equalled the Popish Plot (however implausible the plot or the plotter). Thus, what Fitzharris claimed was an attempt by the court to ‘trepan the Protestant Lords, and the House of Commons’ was obdurately redefined as ‘the highest improvement of the Popish Plot’. It was a ‘jesuitical design’ against ‘the Protestant party’, in the words of the crown prosecutors – who, by solemnly intoning ‘So say we’, pointedly included the court (and themselves) in this last category. According to the prosecution, then, Fitzharris’s libel was even worse than an assassination plot against the king: it was ‘a catholic poison to infect all the king’s subjects, and excite them against each other’.58 If many Whigs found Fitzharris’s trial disappointingly anticlimactic – as one letter writer observed, ‘the party themselves cry out against him as the greatest rogue and deserving to be hanged’, for ‘when the upshot came, he had nothing to say’ – they would soon be even more disillusioned.59 On 16 June, Fitzharris communicated through the lieutenant of the Tower Thomas Cheek that, in exchange for a pardon, ‘he would discover to his majestie who had sett him on to accuse the queen, duke of York, and the earl of Danby’.60 Charles II’s desire to hang Fitzharris ‘out of the way’ was no secret, and such a pardon was highly unlikely;61 nonetheless, the former Shaftesburian agent Edward Ivey, now working for the court, supposedly became ‘a great manager of’ Mrs Fitzharris and her maid Theresia Peacock ‘against. the Lord Howard telling them that they should not be dismayed for he would assure them that the next Lords or others that sufferd should be Presbyterians’.62 Anne Fitzharris and Peacock testified Barillon Letters, 26 June 1681 (new style), TNA, PRO 31/3/148, fol. 167. Tim Harris, London Crowds in the Reign of Charles II: Propaganda and Politics from the Restoration until the Exclusion Crisis (Cambridge, 1987), pp. 112–13. 57 Peter Lake, ‘Anti-popery: The Structure of a Prejudice’, in Conflict in Early Stuart England: Studies in Religion and Politics 1603–1642, ed. Richard Cust and Ann Hughes (London, 1989), p. 92. 58 ST, VIII, col. 340; VIII, col. 386; VIII, col. 364; VIII, col. 341. 59 [Lieut.-Colonel Peter Rich] to [Sir Leoline Jenkins], [June] 1681, SP, 29/416, fol. 12. 60 Luttrell, Historical Relation, I, 99; see also Barillon Letters, 30 June 1681 (new style), TNA, PRO 31/3/148, fol. 170. 61 John Phillips claimed that Charles II declared after Fitzharris’s arrest that ‘He should die, if there were no more Men in England’ (The Secret History of the Reigns of K. Charles II and K. James II [London, 1690], p. 115). Henry Savile noted that Jenkins had written to him that ‘he hopeth Fitzharris will stretch for it’: Extracts from a letter from Secretary Jenkins to Henry Savile, Trumbull Papers, Add. MS 72582, fol. 47v, BL. 62 ‘Copie of Zeale’s deposition about subornation’, June 1681, Shaftesbury Papers, Part 55 56

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on 21 June before a grand jury that the Whig Lord Howard and Everard were the true authors of the libel, but the evidence of the two women (who were examined separately) contradicted each other and the bill was withdrawn.63 * * * Edward Fitzharris was executed at Tyburn on 1 July 1681, alongside the vastly more sympathetic and innocent Irish primate Oliver Plunket.64 According to the Catholic martyrologist John Warner, it was widely believed that Plunket ‘was put to death for no other reason than to help the Faction to accept more easily the death of FitzHarris’.65 Barillon agreed, writing that as ‘the King and his Ministers’ had decided to try Shaftesbury (he was arrested the next day), ‘they did not want to give the malcontents the pretext of saying that they saved guilty condemned Catholics while they sought to punish Protestants’.66 But if Plunket attracted more sympathy from contemporaries, it was Fitzharris’s dying words which commanded the most interest, Jenkins posting two shorthand writers ‘in the cart under the gallows to take notes’ on his speech.67 At the place of execution, Fitzharris asserted his innocence, declaring that he was ‘no further concerned in the Libel, than to discover to the King what Practices of that kind were against him, being employed for that end’, and solemnly calling ‘God to witness, I never had a Farthing of Mony of the King, but on account of the like Service’. However, despite being aggressively questioned by the sheriffs, Fitzharris refused to speak to his religion or to elaborate on his previous testimony supporting the Popish Plot, referring officials and spectators alike to the longer confession he had left in the possession of the minister of the Tower, Francis Hawkins.68 While Fitzharris’s brief and rather ambiguous speech had not altogether dashed Whig hopes, the paper subsequently published by Hawkins consisted of a dramatic recantation of Fitzharris’s earlier sworn deposition taken at his examination in Newgate and published by the Commons. Fitzharris claimed that the sheriffs and recorder had browbeaten and cajoled him into swearing ‘a plausible Story to confirm the [Popish] Plot’: being ‘Fetter’d, Moneyless and Friendless, my Wife ready to Lye in’ and ‘my Children in a miserable condition… to save my life I did comply’. The sheriffs supposedly refused to be II, TNA, PRO 30/24/43/63, fol. 182. 63 Sir Charles Lee, Notes of the Evidence Given against the Lord Howard of Escrick… (London, 1681), p. 51. 64 See John Marshall, ‘The Trial and Execution of Oliver Plunket’, this volume. 65 John Warner, The History of the English Persecution of Catholics and the Presbyterian Plot, ed. T. A. Birrell, trans. John Bligh (2 vols, London, 1953), II, 461. 66 Barillon Letters, 14 July 1681 (new style), TNA, PRO 31/3/148, fol. 180. John Gibney has recently argued that it was necessary to hang both Fitzharris and Plunket so as to preserve the credibility of the prosecution witnesses needed to testify against Shaftesbury: Ireland and the Popish Plot (Houndsmills, Basingstoke: 2009), pp. 149–50. 67 Thomas Cheek to Sir Leoline Jenkins, 29 June 1681, SP, 29/416, fol. 66. 68 Confession of Edward Fitz-Harys, p. 2.

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fobbed off with ‘a formal story concerning the Plot, which was not prejudicial to any body… Mr. Cornish [telling Fitzharris], These were things cryed about in the Streets two years ago’. Fitzharris was not only instructed to accuse the duke of York, the queen and others, but also told by Treby that ‘unless I could speak to [the murder of Godfrey] I could say nothing’. When Fitzharris demurred, saying ‘is this not enough to save my Life? Am I not Rogue enough?’, Treby supposedly retorted: ‘Zounds, What were you ever but a Rogue?’ While Fitzharris, in order ‘to stave off my Tryal till a Parliament’, finally agreed to accuse Danby of Godfrey’s death (a charge chosen because ‘the Crime of Murder’ was ‘not incerted in his Pardon’), Treby reportedly told Fitzharris that all of ‘this would not save my Life, unless I would speak to the Libel… as a Court-trick’, adding ‘Do you but say it, we have those that will swear it’. Fitzharris also supposedly claimed that Howard (whom he implicated in the libel) had revealed to him and the Irish witness Brian Heynes a Whig plot to kidnap the king. This paper was witnessed and signed by Fitzharris and included the latter’s solemn declaration that his confession was given freely without hope of a pardon.69 Barillon wrote to Louis XIV that the court claimed to have brought off a great coup with this publication (and enclosed a French translation), but from the first there were doubts as to its authenticity, not least because Hawkins had refused to hand over Fitzharris’s paper to the sheriffs at Tyburn.70 The debate over Fitzharris’s dying confession would become not only ‘the subject Matter of Discourse amongst all People, for a considerable Time after’, but would also become ‘a Party Cause’ – a continuation of the struggle between the court and the opposition over access to Fitzharris’s testimony and control over the venue for his trial.71 A series of Whig rebuttals were published, including a pamphlet by George Treby characterising Hawkin’s publication as a ‘Libel’ and a ‘Mock Confession’. Treby claimed that the paper had either been written by Hawkins and substituted for the true confession that Fitzharris believed he was signing, or was a ‘fraud’ which Fitzharris, confident in the promise of a last-minute pardon, ‘had never intended…should pass for a true and real Confession’.72 Another ‘Vindication’ of the sheriffs and recorder claimed that Fitzharris had, in the presence of Gilbert Burnet, the lieutenant of the Tower Thomas Cheek and other ‘persons of Quality… declare[d] things of a quite contrary nature’, particularly in regard ‘to the Lord Howard, whom he always cleared till the Confession of Edward Fitz-Harys, pp. 1–2. Barillon Letters, 17 July 1681 (new style), TNA, PRO 31/3/148, fol. 183; Newsletter to John Squier, Newcastle, 2 [July] 1681, CSPD, 1680–1, p. 340; Echard, History of England, III, 633. According to Burnet, ‘the falsehood of [Fitzharris’s confession] was so very notorious, that it shewed what a sort of man Hawkins was’, adding, ‘he was soon after rewarded for this with the deanery of Chichester’ (Burnet, History of his own Time, II, 282). Hawkins did not become dean of Chichester until 1688 (Alexander Hay, The History of Chichester [Chichester, 1804], p. 488). 71 Echard, History of England, III, cols. 633–34; III, col. 631. 72 [George Treby] Truth Vindicated… (London, 1681), p. 27. 69 70

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publication of this Libel’. The author expresses his outrage at the imputation that the God-fearing Treby had sworn at Fitzharris and (less ingenuously) at the ‘Scandal’ Fitzharris cast ‘upon his Majesty’ for having supposedly ‘employed him as a Spye and a Trepann’.73 Both Titus Oates and Slingsby Bethel would claim that the fact Fitzharris thanked the sheriffs before he died demonstrated the ‘falseness’ of the confession in which he accused them of suborning him.74 Such Whig ‘vindications’ were answered by a longer ‘Narrative’ by Francis Hawkins, published by authority of the privy council. This reiterated and elaborated on the charges against Treby, the sheriffs and Howard, as well as the ‘Design to Seize the King’ by the ‘Party’. Fitzharris was reported to have told Hawkins that a certain ‘great Lord’ (presumably Shaftesbury) had visited his wife, and ‘promised to continue their allowance to her of Three Guineys a week, and to make her the same present of three hundred Guineys… on the day of his Execution… if she could persuade him not to declare anything against them [‘the Party’] when he came to be Executed’. Much of Hawkins’s Narrative is devoted to defending the authenticity of Fitzharris’s confession, and to clearing the minister to whom he had supposedly confided it of any duplicity or coercion. Hawkins here represented Fitzharris as declaring that he delivered his confession only ‘for the discharging of my Conscience’ and that did he did not believe that he would receive a pardon. Indeed, he supposedly maintained that it had been the Whigs who had ‘deluded him all along’, and it was their ‘assurances’ that he should be ‘brought off’ that had ‘made [him] obstinate’.75 In addition to the numerous print sources weighing in on the matter, some manuscripts collected in the eighteenth century by Thomas Astle, keeper of the records in the Tower, may shed light on this murky affair. Catalogued in the British Library simply as ‘Historical Papers’, they consist of draft notes by several different hands, dating (judging from internal evidence) from 1681–82.76 The first set of papers consists of part of an outline of a history of the Popish Plot, followed by a decidedly Whig account of the Fitzharris affair, containing sections of text later published in John Phillips’s Secret History of the Reigns of K. Charles II and K. James II (1690) and Titus Oates’ The Second Part of the Display of Tyranny (1690).77 The fact that the discussion of Fitzharris in this manuscript A Vindication of the Honourable the Sheriffs & Recorder of London (London, 1681), pp. 2, 1. Oates, Second Part of the Display of Tyranny, p. 157; Bethel, Providences of God, p. 20. 75 [Francis Hawkins], A Narrative, Being a True Relation of what Discourse passed between Dr. Hawkins and Edward Fiz-Harys, Esq (London, 1681), pp. 3–4; 7; 4. 76 ‘Historical Papers’, [n.d.], Stowe MS 144, BL; Catalogue of the Stowe Papers in the British Library (2 vols, London, 1895), I, iii. 77 Stowe MS 144, fols. 14r-19v, BL. It is tempting to think that Howard, in the Tower at the same time, may have also had a hand in it. Barillon wrote that ‘On a trouvé sur luy [Howard], (apres avoir esté un jour entier dans la Tour) des papiers entre lesquels il y a un discours en forme de harangue contre un Roy qui n’est pas pas [sic] nommé, mais celuy d’Angleterre est clairement designé, et Milord Hyde m’a dit qu’il avoit assez dans ce seul papier pour le faire condemner’ (Barillon Letters, 30 June 1681 (new style), TNA, PRO 31/3/148, fol. 170). This sounds very much like pages 112–13 of Phillip’s Secret History, 73 74

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account is more extensive and detailed than in either Oates’ or Phillips’s later works suggests that these papers were parts of a larger, possibly collaborative, earlier draft of a ‘secret history’, a vituperative ad hominen genre of political writing popular after the Revolution of 1688–89.78 This manuscript (henceforth ‘draft secret history’) explicitly charged the court – ‘the conspirators’ – with the ‘intention of Laying up men on sham plotts of their own contrivance’.79 According to the unknown author, shortly after Waller had delivered his report of Fitzharris’s arrest to the privy council, ‘a great man crys as soon as Waller had turnd his back from the councell table, this Waller is a rogue & has spoyled all, this he had but just before given Waller thanks’.80 This ‘great man’ was clearly Charles II, who had just moments before ‘returned… Sir William… thanks for his great care and watchful diligence’ in discovering the libel.81 The draft secret history contains crude attacks on both the duchess of Portsmouth and her maid ‘Nell Wall a common whore, once imploy’d to empty close stools, now… a Stateswom[an] & intrusted with secrets of State’, as well as on Charles II, so intent on ‘enslaving the nation by arbitrary Goverment & popery, that [he] would debase [himself] even to kiss the breach as well as the mouth of the most destitute contemptible creature in the [world]’.82 These and other equally memorable turns of phrase were later published in Phillips’s Secret History, in which Charles II – ‘England’s pious Protestant Monarch’ – was explicitly identified as ‘the Trepanner’, ‘the Suborner and Instructor of Fitzharris’ and a latter-day Tiberius, ‘Counter-plotting with his Popish Concubine and her Close-Stool Wench against his Parliament and Kingdom in favour of those that sought the destruction of both’.83 But the draft secret history contains details not included in the later publications by Phillips and Oates, most notably concerning Fitzharris’s dying confession and narrative and the underhanded means employed by Francis Hawkins, the minister of the Tower, to obtain them. Hawkins is accused of having extracted ‘these papers from the poor wretch’ (Fitzharris) in exchange for ‘promises of mercy’, having been instructed by the privy council to ‘bid him hope for mercy to the very last, & fear not tho the Rope was about his neck’. The draft secret history claimed that Fitzharris developed cold feet, repeatedly asking Hawkins ‘to deliver back of which parts of the Stowe manuscripts appear to be earlier draft versions. Hawkins also told Danby ‘that Fitsharris had further told him of 2 dangerous books of which my Lord Howard was also author & had left them to bee printed when the Parliament satt att Oxford’ (Thomas Osborne, Memoranda, ‘Informations from Dr Hawkins &c’, 2 July 1681, Add. MS 28043, fol. 50, BL). 78 See, for instance, Rebecca Bullard, The Politics of Disclosure, 1674–1725: Secret History Narratives (London, 2009). 79 ‘Draft secret history’, Stowe MS 144, fol. 17v, BL. 80 ‘Draft secret history’, Stowe MS 144, fol. 16v, BL; see similar text in Oates’ Display of Tyranny, p. 56. 81 Newsletter to Roger Garstell, Newcastle, 3 March 1681, CSPD, 1680–1, p. 194. 82 ‘Draft secret history’, Stowe MS 144, fol. 15v, BL. 83 Phillips, Secret History, pp. 107–08, 121, 112–13, 114–15.

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his papers he had given him under his hand… for he could not dy till he had them having wrongd so many innocent persons’. Hawkins then supposedly urged Fitzharris to ‘be of good comfort, never to mistrust the mercys of a gracious prince’, adding ominously that, if the court ‘should hear of his retractions & unsaying what he had said before that would be worse than any thing, & lose his wife’s & childrens maintenance as well as his own life’.84 The second and most substantial set of papers collected by Astle consists of several partial drafts and one complete draft copy of Francis Hawkins’s published Narrative of his conversations with Fitzharris and the latter’s dying confession (henceforth ‘Hawkins’s draft narrative’).85 These reveal some interesting omissions, additions and changes. In the later printed version, Hawkins countered accusations that Fitzharris had merely signed a paper that been written for him by inserting the phrase ‘I have it under his hand’. He also added several passages in which Fitzharris passionately ‘Attest[ed]’ to the truth of the confession, falling on his knees and saying, ‘sure you do not take me for so great a Villain, that I would tell lies just as I am going out of the world’, all absent from the original draft.86 The printed version also omitted some material contained in the earlier drafts, including a long defensive preface and Hawkins’s claim that ‘in all the several discourses I had with him, [Fitzharris] did never say the king imployed him… I asked who imployed him and he could not say it was the King’ – a subject the privy council may have preferred to pass over in silence.87 Several references to the duchess of Portsmouth and Jesuit ‘Consults at St James’s & Windsor’ were likewise judiciously omitted, as well as Charles II’s participation in discussions about Fitzharris’s confession and Hawkins’s attempts to negotiate a pardon for him. In the draft, Hawkins recounted how he had visited Windsor on 22 June, and how Lord Conway read Fitzharris’s confession to ‘the King and I delivered the rest to the King by word of mouth in the close of the writing Mr Fitzharris begg’d mercy of the King & at my request my Lord Conway moved the King on his behalf but his Majestie rejected the Peticion’.88 It is hardly surprising that Hawkins’s published Narrative omits details originally included in earlier drafts that could connect the king and his entourage to any dubious interaction with or interest in Fitzharris before or after the latter’s arrest. The later additions to the printed version emphasising Fitzharris’s solemn attestation of the truth of the confession that he had signed and returned to ‘Draft secret history’, Stowe MS 144, fols. 18r–18v, BL. There are also a third set of papers in Stowe MS 144 (fols. 31–42), possibly written by the author of the draft secret history, consisting primarily of a summary of and extracts from Robert Ferguson’s No Protestant Plot (1681). 86 Hawkins, Narrative, pp. 4, 9; Hawkins’s more equivocal ‘whether the matters declared to me by Fits-harys were true, God only knows, & their consciences whom they concern; I am not to be accountable for the truth of the matters’ is dropped (‘Hawkins’s draft narrative’, Stowe MS 144, fol. 26, BL). 87 ‘Hawkins’s draft narrative’, Stowe MS 144, fol. 28v, BL. 88 ‘Hawkins’s draft narrative’, Stowe MS 144, fols. 30, 26, 30v, BL. 84 85

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Hawkins were equally predictable attempts to reinforce the credibility of the court narrative. But arguably the most significant difference between the manuscript and later printed version of the Narrative is in their different timing of Fitzharris’s confession. In his earlier draft, Hawkins originally reported that Fitzharris wrote his last letter to his wife on 30 June 1681, the day after he had signed the confession that Hawkins would later publish. (Hawkins retrieved the letter from Mrs Fitzharris, ‘to compare hands with his Confession, if there should be occasion’).89 In Hawkins’s published Narrative, however, he emphasized that Fitzharris had written the letter to his wife the day before, on the 29th, before he wrote the confession, which he then signed and witnessed on 1 July, the morning of the execution. In other words, it was the confession published by Hawkins, not any letters or other papers which may have been written by Fitzharris while in the Tower, which was the last, and hence definitive, word.90 In the words of the Tory Bevil Higgons, ‘As the Declaration of a dying Man is a kind of Will and Testament, the last Assertion is the most sacred, being the Codicil that gives the Saction [sic], confirms or destroys the rest’.91 From the first, however, there were rumours, originating with Gilbert Burnet, that Fitzharris had ‘writ letters to his wife… which I [Burnet] saw and read, in which he told her, he was practised upon with the hopes of life’ and that ‘one of these was writ that very morning in which he suffered’. Upon hearing of these letters, the court was ‘confounded’, claimed Burnet, but the king’s agents ‘practiced on her by the promise of the pension so far, that she delivered up her husband’s letters to them’.92 As Elizabeth Foyster has recently pointed out, prisoners’ letters are an important and largely untapped source for understanding early modern mentalities;93 in this case, however, Fitzharris’s putative last letter(s) took on a particular importance, in that any declaration or recantation written just before his death would have been seen as superseding his prior testimony. There are various and contradictory accounts of what became of the letter or letters that Fitzharris supposedly wrote in the Tower before his execution. Several of Fitzharris’s lawyers would later testify to the Commons that they had handed over his papers – ‘very reflective things’, implicating the king and the duchess of Portsmouth – directly to Charles II (who ‘was very joyful that he had them’), in hopes of thus obtaining a pardon for Fitzharris.94 However, these papers seem to have been Fitzharris’s notes for his defence, or ‘Hawkins’s draft narrative’, Stowe MS 144, fol. 27, BL; Hawkins, Narrative, p. 8. Hawkins, Narrative, p. 8. The pamphlet also states that Mrs Fitzharris visited her husband on the 30th and that she informed him that her attempts to procure a pardon for him had failed. 91 B. Higgons, Historical and Critical Remarks on Bishop Burnet’s History of His own Time, 2nd edn (London, 1727), p. 230. 92 Burnet, History of his Own Time, II, 282. 93 Elizabeth Foyster, ‘Prisoners Writing Home: The Functions of Their Letters c. 1680–1800’, Journal of Social History, 47:4 (2014), 943–67. 94 Grey’s Debates of the House of Commons: Volume 9, 182–3 (20–24 March 1689). 89 90

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were at any rate written a considerable time before his execution. Our unknown Whig author of the draft secret history claimed that, on the night before he died, Fitzharris ‘to ease his conscience writ two letters, one to his wife; another to his father, to bid them go to the persons he had wronged & aske them for forgiveness, & told him how & for what ends he had given Hawkins those papers, out of hopes to get his life’. He had then supposedly entrusted them to Hawkins to deliver to Anne Fitzharris, ‘which Hawkins promised to do, but instead thereof carrys them to Whitehall where they never more were heard of’. The author nevertheless claimed that Fitzharris somehow managed to have a ‘paper secretly conveyed… before his execution to his wifes hands’, exposing not only Hawkins’s ‘Roguery’, but also the ‘miserable usage’ of lieutenant of the Tower, who regularly ordered Fitzharris to be searched and his papers confiscated.95 In late July 1681, the Tory pamphleteer Roger L’Estrange wrote Secretary Jenkins, warning him that ‘the widow Fitzharris is certainly tampered with, and shuffles in her tale’.96 Sure enough, Anne Fitzharris delivered a sworn deposition to the Whig justice John Wolfenham on 15 August 1681, in which she claimed to have testified against Howard because she had been told that the best means of saving her husband’s life would be to ‘lay the Libell to ye Presbiterean Party’, and that she had been assured by the courtier Henry Seymour that ‘I need not question… the King would be mercifull’. Anne Fitzharris also recounted her fruitless attempts to obtain a private audience with Charles II: ‘for what I had to say, I would not say it to any in the World but himself’, and ‘I would dye rather than doe him any harm’. However, when she tried to accost the king, walking in the gardens at Whitehall, he beat a hasty retreat (an escape aided by Jenkins who, intercepting Mrs Fitzharris, fobbed her off with ‘a purse or two’). Charles II later supposedly relayed to her ‘that he had been catched by some people already, and that he was afraid to speake with mee’.97 Anne Fitzharris now testified to Wolfenham that her husband had delivered a false confession to Hawkins in exchange for a pardon, telling her that he would ‘doe (as Job) all things to save my Life, for I believe it a lesser sinn, thenn [sic] to leave you and ye children in the condition I must leave you in and that distracts me and makes mee unfit for Death’. When his wife asked, ‘if you should have noe pardon, What then?’, he suggested he would then ‘retrieve’ his accusations against the Whigs ‘againe at ye place of Execution’. Upon Mrs Fitzharris objecting that ‘that will ruine me with the King’, the couple supposedly resolved that he would leave some ‘papers’ for her to publish after his death, ‘acquitting those we had unjustly accused’, for if ‘all things faild, and that he [Fitzharris] ‘Draft secret history’, Stowe MS 140, fol. 18v, BL; see also Phillips, Secret History, p. 120. 96 [Roger L’Estrange] to Sir Leoline Jenkins, 24 July 1681, TNA, SP 29/416, fol.132. 97 ‘A true Copie’ of ‘The Informacion of Anne ffitz Harrys’, 15 August 1681, Shaftesbury Papers, TNA, PRO 30/24/43/63, fols. 254v, 251r–51v. 95

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must dye, [he] would not be guilty of innocent blood’.98 These are presumably the letters that Anne Fitzharris delivered to the court (and thereby lost) in exchange for a pension, although in Shaftesbury’s papers there are some short ‘Extracts’ of ‘severall papers sent by Mr. Fitzharris to his wife’, including one which reads ‘I am highly courted to make a Presbyterian plot; God defend me from such villainy… I pray let my Lord Shaftesbury, Essex, & Howard have very great care of themselves’. Another supposedly declared: ‘My bloud lye att their dores that take it unjustly to lay a snare is not what God wil forgive… I… doe believe the King does soe thirst after my bloud that he will give me no fayre play: but use all advantages: Between God & him be it’.99 Mrs Fitzharris added a postscript (in which it is difficult not to see the prompting of the Whig magistrate) to her deposition: ‘As to the Accusation of the Duke, the Queen, the Earle of Danby and ye discovereyes made by him of ye popish plot, he owned to mee to be true, to the very last…’100 In his 1681 No Protestant-Plot, the radical Whig Robert Ferguson cited Anne Fitzharris’s ‘Deposition upon Oath’, but expanded on it, claiming to quote from the famous but elusive ‘Original Paper of Mr. Fitz-Harris own writing’. In this letter, ‘in the hands and custody of a certain Magistrate of London’, Fitzharris supposedly recanted his confession and claimed ‘That what he had deposed against the Papists [published by the Commons] was true; and that he had been only too sparing in accusing great people among them’.101 Roger L’Estrange responded by blasting ‘this Pretended Letter’ as a ‘Counterfeit’. He claimed further to have read ‘another Letter to [Mrs Fitzharris], and of the same Date too’, in which Fitzharris charged his wife ‘not to say one word more, or discover any thing further than you have done, since my Life is taken away’, and ‘Trust your friends HITHERTO, no furt her t han you can see, for t hey wil l NEVER FORGET &c’. Anne Fitzharris’s ‘friends’ were clearly the Whigs, and her evidence against Howard the offence that could not be forgotten. L’Estrange quoted other sections of the letter which corroborated the version Hawkins had referred to in his Narrative, challenging any reader with ‘doubts’ to ‘produce the Other Letter, and I will be answerable for the Proof of this’.102 Establishing the authenticity of documents was of critical importance in an age of perjury and ‘rampant subornation’, even – or perhaps especially – in the context of a lively and polarised press in which ‘truth’ was ‘relative to partisan conviction’ and readers were explicitly called upon as arbiters of rival truth claims.103 The Catholicism of Edward Fitzharris, like that of the ‘Popish ‘Informacion of Anne ffitz Harrys’, fols. 252v., 254v. ‘Extracts taken out of severall papers sent by Mr. Fitzharris to his wife in Mr. Nettervils hand’ [n.d.], Shaftesbury Papers, TNA, PRO 30/24/43/63, fol. 366. 100 ‘Extracts taken out of severall papers sent by Mr. Fitzharris’, fol. 255. 101 [Robert Ferguson], No Protestant-Plot (London, 1681), p. 19; see also Oates, Second Part of the Display of Tyranny, p. 155. 102 The Observator, 9 November 1681. 103 Greaves, Secrets of the Kingdom, p. 33; Knights, Representation and Misrepresentation, 98 99

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midwife’ Elizabeth Cellier, complicated and intensified the debate: Catholic truth claims were seen as both fundamentally problematic but equally impossible to ignore or dismiss when the political stakes were so high.104 As late as 1683, Whig newspapers equated Hawkins’s Narrative with forgery, claiming that one publication ‘was no more L’Estrange’s Writing, than Fitz-Harris’s confession was of his own Penning’; another ‘last Speech and Confession’ was sarcastically derided as ‘as Authentick and true as Fitz-Harris’s Confession’.105 Yet such attacks only testify to the political currency of Fitzharris’s dying words. In August 1681, the king commanded that Hawkins be sent to Oxford to be available to testify at Stephen College’s trial there, so that if ‘Mrs. Fitzharris be set up to destroy her husband’s last confession, he may be there to support it’.106 * * * Whether the last gasp of the Popish Plot or beginning of the Tory Revenge, the Fitzharris affair vividly illustrates the political weight that contemporaries invested in the dying confessions of state criminals. Indeed, dying speeches and execution accounts, as well as the debates arising from them, are often appended to the legal proceedings reported on in the State Trials. (The Whig view is typically privileged: a note appended to Fitzharris’s confession explains that ‘This Paper contains many notorious falsities, which were impossible to be true’, with Burnet’s account inserted as a corrective).107 However, despite the volume of manuscript and print sources on this highly mediatized case, much murkiness remains. There is no proverbial smoking gun: the principals have long since disposed of incriminating evidence, and the depositions, letters and confessions – many of these copies or extracts of originals – were consciously scripted to serve partisan agendas.108 As Fitzharris himself claimed at his trial, p. 6, 245; see also Dolan, True Relations, pp. 10, 116–17, and her ‘“The Wretched Subject the Whole Town Talks of”: Representing Elizabeth Cellier (London, 1680)’, in Catholicism and Anti-Catholicism in Early Modern English Texts, ed. Arthur F. Marotti (Houndmills, 1999), p. 221. 104 Dolan, ‘“Representing Elizabeth Cellier’”, pp. 218–19; Weil, ‘“If I did say so, I lyed’”, pp. 189, 193–94. 105 Pacquets of Advice from Rome, 13 April 1683, 2 September 1681. 106 Earl of Conway to Sir Leoline Jenkins, 12 August 1681, TNA, SP 29/416, fol.187. On the trial and subsequent execution of the Whig agitator and satirist Stephen College for treason, see B. J. Rahn, ‘A Ra-Ree Show – A Rare Cartoon: Revolutionary Propaganda in the Treason Trial of Stephen College’, in Studies on Change and Revolution: Aspects of English Intellectual History, 1640-1800, ed. Paul J. Korshin (Menston, 1972), pp. 77–98; Zook, Radical Whigs, pp. 89–91. 107 ST, VIII, col. 396n. 108 Greaves notes the fact that some magistrates were criticised for not submitting original depositions to authorities, and for distributing copies to partisans; amongst the suspect depositions was that of Anne Fitzharris to Wolstenholme (Greaves, Secrets of the Kingdom, p. 34).

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‘these are great persons that I have to do with; and where great state matters are at the bottom, it is hard to make them tell any thing but what is for their advantage: And so I am left in a sad condition’.109 Fitzharris was in the uncomfortable – not to mention dangerous – position of having been privy to two plots; his willingness to hint at the existence of both simultaneously proved to be his undoing. It seems likely enough that Fitzharris did overhear Howard discussing Whig schemes to force the king to call a parliament, while Treby and the sheriffs may well have been guilty of suborning Fitzharris to craft a fictitious but politically convenient Popish Plot narrative. Danby’s memoranda of his private conversations with Hawkins about Fitzharris’s confession corroborated both ‘the design to have seized the kings person’ and the subornation of the sheriffs (the latter supposedly relaying to Fitzharris Shaftesbury’s ‘assurance… that hee should not fear but they would bring him off with safety and great advantage to himselfe’).110 Fitzharris’s claim to Hawkins that ‘what he swore against the Earle of Danby [the murder of Godfrey] was soe improbable…that he could not imagine it should doe his Lordship any predujice [sic]’ has the ring of verisimilitude.111 On the other hand, there seems little doubt that Fitzharris’s libel was indeed a ‘Court-Trick’ aimed at planting a sham ‘Protestant Plot’. Regardless of what contemporaries knew or believed about Godfrey’s murder or Jesuit conspiracies to assassinate the king, there was a real popish plot afoot: that of Charles II and his Catholic mistress against his political opponents in parliament and the City. This was the ‘Popish Plot’ that Fitzharris ‘knew more about than any man’. Hawkins had almost certainly promised, or at least encouraged Fitzharris to hope for a pardon, although any hint of this is of course omitted from his Narrative. Danby reported that Hawkins had told him that Fitzharris had offered to ‘make full proofs’ of the involvement of not only Treby and the sheriffs, but also Shaftesbury in his subornation, ‘and much more in case hee might bee pardond, transported, or kept a perpetuall prisoner’.112 Hawkins’s earlier drafts also reveal that Fitzharris hoped to ‘have a Gentlemans Death, or at least not to have his body broken; he would fain have been executed on Tower Hill’. In his dying speech, Fitzharris claimed to be more troubled with the ‘Infamous kind of Death” meted out to a common traitor ‘than Death itself’.113 While Hawkins’s Narrative quoted Fitzharris’s last letter to his wife as saying that he was resigned to his death and ‘now’ had ‘no hopes’ that his ‘Body might not [be] broken’,114 he nonetheless seems to have believed the full rigour of his sentence would be ST, VIII, col. 378. BL, Add. MS 28043, fols. 60v, 59, 60. 111 ‘Hawkins’s draft narrative’, MS Stowe 144, fol. 30, BL. 112 Thomas Osborne, Memoranda, ‘Informations from Dr Hawkins &c’, 2 July 1681, Add. MS 28043, fol. 59, BL. 113 ‘Hawkins’s draft narrative’, Stowe MS 144, fol. 30, BL; Confession of Edward Fitz-Harys, p. 2. 114 Hawkins, Narrative, p. 8. 109 110

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remitted. At the place of execution, Fitzharris asked the sheriffs ‘whether his Body might not be at the disposal of his Wife, without Quartering. Upon which the Sherif [Cornish] read him the Warrant’ confirming the dreadful aggravated punishment for treason.115 In Hawkins’s manuscript draft – but not in his printed Narrative – Fitzharris expressed surprise, saying ‘he thought he should not be quartered’; in both versions he then ‘desired’ Hawkins ‘to take care of his Body’. Hawkins ‘answered the imployment was very unbecoming me, there were others appointed to do it’.116 This must have been a last crushing blow to a man who had hoped for this concession at least in return for his cooperation with the court directives relayed to him by Hawkins; the latter’s indifference could have only added insult to injury. And yet, at the gallows, despite being repeatedly pressed by the sheriffs and Dr Martin to confirm the evidence of the plot and to declare his religion, Fitzharris remained silent, only referring them to the paper he had left with Hawkins. Hume was doubtless right in assuming that Fitzharris thus ‘persisted in a story agreeable to the Court’ in the hopes that ‘some favour might on that account be shown to his family’.117 Fitzharris was certainly anxious to secure a royal pension for his wife. But here, too, Fitzharris found himself between a rock and a hard place, supposedly confiding to Hawkins his fear that ‘his Confession would Injure his Poor Wife and Children’ and that ‘her allowance… would be withdrawn, and she would lose those, who were now her best Friends’ (the Whigs).118 According to Hawkins, Fitzharris’s last words at Tyburn were – after asking the sheriffs to ‘continue their kindness’ (i.e., ‘allowance’)119 ‘to his poor Wife and Children’ – to ‘desire’ the minister’s ‘Prayers for a happy passage’.120 The earl of Danby, however, noted in his memoranda that Hawkins had confided to him that Fitzharris’s last words to his wife, at any rate, were neither so charitable nor resigned: ‘Fitsharris had charged his wife & maid to bee gone & do nothing more for the king for that they would bee but served att last as hee had been’.121 In retrospect, we know that Fitzharris’s execution marked the beginning of the so-called Tory Revenge. With the same hindsight, Whig attacks on the authenticity of his published confession and Hawkins’s Narrative – not to Last Speech of Edward Fitz-harris, p. 2. ‘Hawkins’s draft narrative’, Stowe MS 144, fol. 27v, BL; Hawkins, Narrative, p. 10. 117 Hume, History of England, VIII, 153. 118 Hawkins, Narrative, p. 8. 119 Hawkins’s Narrative specifies only ‘kindness’ (p. 10), but Hawkins supposedly reported to Danby that Fitzharris ‘said to one of the Sheriffs that hee hoped hee would continue his allowance still to his wife’ (Thomas Osborne, Memoranda, ‘Informations from Dr Hawkins &c’, 2 July 1681, Add. MS 28043, fol. 59, BL). 120 ‘Hawkins’s draft narrative’, MS Stowe 144, fol. 27v, BL; Hawkins, Narrative, p. 10. ‘The sheriffs’ is struck out in the printed pamphlet, but included in the manuscript version. 121 Thomas Osborne, Memoranda, ‘Informations from Dr Hawkins &c’, 2 July 1681, Add. MS 28043, fol. 59, BL. 115 116

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mention the hints of Charles II’s complicity in planting a sham plot – seem futile, not to mention foolhardy. Yet rumours that Charles II was a Catholic and a conspirator against his own people threatened to discredit and desacralize the monarch, just as accusations of blood guilt against his father Charles I had ‘swept aside the sacredness of his person’ and served to break the political ‘deadlock’ between moderates and radicals in parliament and the army in 1648.122 The opposition campaign to impeach Fitzharris as a material witness in a plot against parliament and the Protestant religion similarly had radical implications and recent historical precedent: the so-called ‘Popish Plot’ of 1641–42 under Charles I, in which the line between the monarch and the ‘popish party’ was increasingly blurred, and treason effectively defined as an offence against parliament rather than the king.123 We know now that the politics of memory would ultimately redound to the advantage of the court, with royalist propaganda equating the Exclusionists Whigs with the republicans and regicides of 1641 and 1648. But, as the controversy over Fitzharris’s confession raged in the summer in 1681, this was anything but a foregone conclusion.

Patricia Crawford, ‘Charles Stuart, that Man of Blood’, Journal of British History, 16:2 (1977), pp. 41, 45. 123 Caroline M. Hibbard, Charles I and the Popish Plot (Chapel Hill, 1983), pp. 224, 217. 122

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6 Constructing Conspiracy: Reporting the Rye House Plot Trials Newton Key In 1683 and 1684, contemporaries learned details of the Rye House Plot from dozens of printed pamphlets reporting the arrests, the trials and the executions of the plotters.1 Whig conspirators had floated and from about Midsummer 1682 even begun planning for several radical options to force the recall of parliament and to limit Catholic (and even Tory) access to the Crown: some planned a mass uprising, some the seizure of the Tower of London and thus the metropolis, and some the kidnapping of King Charles II and his royal brother, James duke of York. Of these different conspiracies, only one involved the plan to kill the royal brothers on the road back from Newmarket to London as it passes Rye House in Hertfordshire, and only some of the conspirators were privy to it. That plan was thwarted by a fire at Newmarket in March 1683, which forced the king’s early return to Whitehall. Alternative plans continued until June, when all collapsed after one plotter revealed what he knew to royal authorities. Virtually all the various schemes bruited by the Rye House plotters in 1682 and 1683 – seizing the king, killing the king or arming to seize control of the metropolis – would qualify as treasonous.2 Proclamations were issued for the arrest of named conspirators. Some fled, while others were arrested. The first Plot trials began on 12 July. Historians have followed contemporaries in considering all the various plans as a single conspiracy. The trials of the various conspirators can be considered collectively as the Rye House Plot trials. These trials had an eventual impact on trial procedure in cases of treason and then on all criminal trials. They had an immediate impact on political discourse. The author would like to thank Dagni Bredesen, Emma DePledge, Richard England, Michael Mendle, Noah Sangster, Angela Vietto and the participants of the State Trials Conference for advice and assistance with this paper, as well as fellowships from the William Andrews Clark Library and the Folger Shakespeare Library. 2 Lisa Steffen, Defining a British State: Treason and National Identity, 1608–1820 (Basingstoke, 2001), pp. 9–10; John H. Langbein, ‘The Criminal Trial before the Lawyers’, University of Chicago Law Review, 45:2 (1978), 263–316, esp. p. 266; Donald Thomas, ed., State Trials: Volume 1, Treason and Libel (London, 1972), p. 16; Lois G. Schwoerer, ‘The Trial of Lord William Russell (1683): Judicial Murder?’, Journal of Legal History, 9:2 (Sept. 1988), 142–68, esp. p. 142. 1

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The trials constructed the Plot, providing a focus and a single narrative with a beginning and an end to otherwise disparate ideas and actions against the government. Contextualizing the Plot trial reports and their influence helps to excavate late seventeenth-century news culture as well as the reach of treason trials. The political impact of the Rye House Plot trials depended both on when the public learned about the trials, as well as the substance of what they learned. Much substance eventually derived from the semi-official, nearly verbatim trial transcripts, which were referred to at the time and by historians subsequently as the trial ‘prints’. The lengthy prints of ten trials of the Rye House plotters from 1683 and 1684 were compiled and reprinted, composing much of the third volume of the State Trials published in 1719.3 The statements and speeches in the verbatim prints influenced public discussions and there were even attempts to enter them as evidence in later treason trials. Briefer trial summaries, preceding and scooping the longer, licensed trial prints, were also published immediately, often after each stage of every major conspirator’s journey from indictment to trial to sentencing to execution. This proliferation of hastily printed trial ephemera has often been overlooked in discussions of trial reporting. The printers and distributors of the Rye House Plot trial accounts and proceedings included Whig men and women who had been forced out of the newspaper business by the de facto reintroduction of censorship after 1681, that is, by one part of the very authoritarian regime that the Whig Rye House conspirators had feared. Because the market for trial reporting valued accuracy and comprehensiveness as well as speed, these early trial accounts often offered a surprising level of detail, in some ways prefiguring the much longer, and authorized, verbatim trial prints which followed weeks or even months later. There was a keen market not only for the immediate trial ephemera, and for the more expensive, folio trial prints, but also for Plot trial compilations. Historians have a difficult choice regarding the Rye House Plot, at one extreme narrating the Rye House Plot as an actual conspiracy, taking at face value depositions in the State Papers, or, at the other, considering the subject ‘draped in myths’ and the product of conspiracy theories, ‘the concoctions of 4 fictions and fabrications’. In practice, of course, historians have weighed the For the 1719 edition of the State Trials, see A Compleat Collection of State-Tryals, and Proceedings upon Impeachments for High Treason, and Other Crimes and Misdemeanours (4 vols, London), printed for Timothy Goodwin, Benj. Tooke, John Darby, Jacob Tonson, and John Walthoe, 1719. 4 See Richard L. Greaves, Secrets of the Kingdom: British Radicals from the Popish Plot to the Revolution of 1688–89 (Stanford, 1992), esp. chaps. 4–5; Richard Ashcraft, Revolutionary Politics and Locke’s Two Treatises of Government (Princeton, 1986), ch. 8; Alan Marshall, ‘Rye House plotters (act. 1683)’, Oxford Dictionary of National Biography (Oxford, 2004) http://www.oxforddnb.com/view/theme/93794; Gary De Krey, Restoration and Revolution in Britain: Political Culture in the Era of Charles II and the Glorious Revolution (Basingstoke, 3

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evidence for both conspiracy and concoction. Early anthologizers of late-Stuart conspiracies or trials, however, felt no compunction to temporize. They either insisted that the Popish Plot had been the most dangerous and most justly prosecuted conspiracy of the century or that the subsequent Rye House Plot was. Each camp also claimed that the other plot was a sham, and that trials on 5 charges connected with that plot were partisan. One seeming exception to the division between those who thought the Popish Plot was a sham and those who thought the Rye House Plot was real, in fact, underscores this division. In 1684, Exeter prebendary Thomas Long appeared to damn both plots equally in his lengthy Compendious History Of all the Popish & Fanatical Plots and Conspiracies. Long described a century of plots against the English government by both ‘Jesuit and Fanatick’ plotters, seemingly without being able to resolve ‘[w]hich was the Incubus, and which the Succubus 6 that brought forth the two last hellish Plots’. But Long was especially critical of the Rye House conspirators. He recounted the 1683 trials of plotters charged with treason, as well as the then just-completed 1684 trials of those charged with distributing material questioning the veracity of the plot. Moreover, Long linked the Gunpowder Plot of 1605 and the regicide of 1649 with the Rye House Plot: ‘the Principles and Practices of the Jesuits under the name of Doleman, and of the old Regicides under that of [John] Bradshaw’, matched those of ‘our new 7 Conspirators under the Notions of Sidney’. In the last years of Charles II’s reign, dozens of sermons and pamphlets likewise excoriated the plotters while praising the Rye House Plot trials. Five years later, after the Glorious Revolution, the situation reversed. Whigs openly criticized the Rye House Plot trials and placed the plotters, 8 now martyrs, in ‘an ever-expanding canon of Whig heroes’. In the second half of 1689, parliament established a ‘Committee for Inspections of 2007), esp. p. 204; Melinda S. Zook, Radical Whigs and Conspiratorial Politics in Late Stuart England (University Park, 1999), esp. pp. 103–13; Doreen J. Milne, ‘The Results of the Rye House Plot and Their Influence upon the Revolution of 1688’, Transactions of the Royal Historical Society, 5th series, 5:1 (1951), 91–108; and Mark Knights, ‘Faults on Both Sides: The Conspiracies of Party Politics under the Later Stuarts’, in Conspiracies and Conspiracy Theory in Early Modern Europe: From the Waldensians to the French Revolution, ed. Barry Coward and Julian Swann (Aldershot, 2004), esp. pp. 153, 155. Quotations are from De Krey and Knights. 5 For example, see James W[right], A Compendious View Of the late Tumults & Troubles In This Kingdom, by way of Annals For Seven Years (London, 1685). Seventeenth-century printers and publishers are selectively noted below, such as for trial ‘prints’. 6 Tho. Long, A Compendious History Of all the Popish & Fanatical Plots and Conspiracies against The Established Government in Church & State, In England, Scotland, and Ireland (London, 1684), p. 228. The pamphlet is dedicated 16 May. 7 Long, A Compendious History, p. 209. 8 Brian Cowan, ‘Introduction: Reading the Trial of Dr. Sacheverell’, in The State Trial of Doctor Henry Sacheverell, Parliamentary History: Texts & Studies, 6 (Malden, MA, 2012), p. 15n.

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Examinations concerning the murders of William Lord Russell, Sydney, Sir Thomas Armstrong, and Henry Cornish’ – all previously implicated 9 in the Rye House Plot. At the same time, John Darby Sr. printed An Exact Abridgment Of all the Trials… which have been published since the Year 1678, a collection of trial summaries ‘relating to the Popish, and pretended Protestant-Plots’. According to Darby’s publication, those Catholics accused by Titus Oates had been part of the real Popish Plot, whereas the Rye House plotters – Cromwellian Capt.-Lieut. Thomas Walcott, Russell, Sidney and the others – had been falsely charged and convicted. An Exact Abridgment rejected the idea of a Rye House Plot, as did the Williamite government which reversed the attainders of convicted conspirators Russell and Sidney 10 and of outlaws Richard Nelthorpe and Armstrong. Darby, whose sympathies lay with dissenters and Whigs, earlier had worked with Rachel Lady Russell to publish the last words of her husband Lord Russell, one of the most notable Rye House plotters, in July 1683.11 But his Exact Abridgment was also a business venture responding to a market. The 1689 Exact Abridgment was a forerunner of the more extensive 1719 collection of state trials and may have inspired Darby Sr.’s son, John Darby Jr., to help publish the Compleat Collection of StateTryals.12 The similarities between the two works are notable. The preface to An Exact Abridgement emphasized how the volume would save the reader time, effort and space: ‘Here thou hast the substance of Forty nine Trials, (consisting of near seven hundred Sheets of Paper: and which bought singly, as they were published, cost five Pounds or more…) carefully reduced, comparatively, to a small Bulk and Price’.13 The undertakers of A Compleat Collection, including Darby Jr. and compiler or editor Thomas Salmon, also noted the pains taken to gather together ‘that which before lay dispers’d in many Volumes, very difficult to be obtain’d…; that the studious Reader may make himself master of the subject, with much less labour and expense than has hitherto been LJ, XIV, 377–94 (20 Dec. 1689). http://www.britishhistory.ac.uk/lordsjrnl/vol14/pp377394, my emphasis. 10 P. N., An Exact Abridgment Of all the Trials (Not omitting any Material Passage therein) which have been published since the Year 1678; Relating to the Popish, and pretended ProtestantPlots, by (London: printed by J[ohn]. D[arby]. for Jonathan Robinson [another printing, for Awnsham Churchill], 1690), t.p., my emphasis. This pamphlet is licensed 17 June 1689. 11 The Speech Of the Late Lord Russel, To the Sheriffs: Together with the Paper deliver’d by him to them, at the Place of Execution, on July 21. 1683 (London: printed for John Darby, by direction of Lady Russel, 1683); Peter Hinds, ‘Roger L’Estrange, the Rye House Plot, and the Regulation of Political Discourse in Late-Seventeenth-Century London’, The Library, 3:1 (2002), 3–31, esp. p. 7. 12 For the Darbys, see Henry R. Plomer, A Dictionary of the Printers and Booksellers Who Were at Work in England, Scotland and Ireland from 1668 to 1725, ed. Arundell Esdaile (Oxford, 1922), pp. 97–98; Hinds, ‘Roger L’Estrange’, pp. 16–18. 13 An Exact Abridgment, sigs. A6–A6v. 9

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requisite’.14 The two works had similar coverage, including virtually identical trials for 1683 and 1684. An Exact Abridgement included the trials of Walcott, William Hone, Russell, John Rouse, sea captain William Blague, and Sidney in 1683, along with those of John Hampden, Laurence Braddon and Hugh Speke, and Sir Samuel Barnardiston in 1684. A Compleat Collection included all of these, along with 1684 proceedings for outlawry against conspirators James Holloway and Armstrong, who had been judged outlaws when they had fled before their trials. The 1719 Compleat Collection also reprinted in full several tracts debating issues raised at Lord Russell’s trial, two of which insisted on the partisan nature of the trials.15 These additional tracts served to emphasize the martyred status of the Rye House conspirators, as had An Exact Abridgment by referring to Rye House as a ‘pretended’ plot.16 An Exact Abridgment’s ‘carefully reduced’ summaries of the Rye House and other trials, however, differed from A Compleat Collection, as the latter compiled the long verbatim trial transcripts, called the trial prints, including all trial prints regarding Rye House conspirators or sympathizers originally issued between 1683 and 1684. A Compleat Collection and succeeding state trials collections reproduced trial records found solely in each individual, bulky and semi-official trial print. The reliance of the 1719 collection on these trial transcripts alone (excepting the additional tracts noted above), with no comment by Salmon, left it up to the reader to interpret them without much ancillary apparatus.17 Seventeenth-century contemporaries, however, would have viewed the trial transcripts in the context of dozens of previously published, short trial accounts and proceedings, which would have shaped their understanding of a given trial well before the definitive transcript appeared. Summaries of trials as well as of individual indictments, pleadings, sentencings, and executions were available quickly and cheaply, some within a day of the events described and generally at least a month before the full trial record was issued. This chapter begins by examining the early reporting on the Rye House Plot A Compleat Collection of State-Tryals, 1: iii. Although usually referred to as editor, Salmon later described himself simply as ‘being employed in compiling the first four volumes of state trials’. Thomas Salmon, Modern History, or, The Present State of All Nations (London, 1735), quoted in Cowan, ‘Introduction: Reading the Trial’, p. 32. 15 Sir Robert Atkyns, A Defence Of the Late Lord Russel’s Innocency, By way of Answer or confutation of a Libellous Pamphlet, Intituled, An Antidote against Poyson (London, 1689) (a response to Shower’s 1683 tract Antidote against Poison); Sir Bartholomew Shower, The Magistracy and Government of England Vindicated In Three Parts ([London], 1689); Atkyns, The Lord Russel’s Innocency Further Defended; by Way of Reply to an Answer, Entituled, The Magistracy and Government of England Vindicated (London, 1689). 16 An Exact Abridgement and A Compleat Collection also included the later trials of Cornish and Charles Bateman that rehearsed actions and thoughts from the Rye House Plot. 17 See Paul Monod’s contribution to this collection and Cowan, ‘Introduction: Reading the Trial,’ pp. 25, 29. 14

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trials in manuscript newsletters and in print and what these might have contributed to public knowledge about the Plot. It then turns to what the verbatim trial prints might further have revealed to contemporaries. Finally, it suggests what might have changed from the immediate reporting of the trial accounts and proceedings, to the lengthier verbatim prints, to the latter being collected into the State Trials. Rye House Plot Accounts and Proceedings as Context for the Trial Prints The shorter news accounts of each stage of an accused plotter’s journey through the legal process were part of the evolving pamphlet market. Scholars define the early modern pamphlet in terms of its brevity, cheapness and topical, popular interest. Quickly printed Rye House Plot accounts and proceedings had all of these attributes. They also, in Joad Raymond’s phrase, ‘excited the itch of news’, whether reporting on dramatic crimes of treason and the resulting trials, or on scaffold speeches and punishments.18 Comprised of trial proceedings, commentaries, satires and news, a downmarket set of pamphlets provided a rich context for understanding the trials, well before the trial prints could appear. By the time the firsttried Rye House conspirators were executed, the public could have learned many details of the plot and plot trials from longhand and print accounts. By the third week of June 1683, much of the English public had begun to learn that there had been secret discussions and meetings for plans collectively known as the Rye House Plot. Proclamations for apprehending conspirators who had ‘held several Treasonable Consultations, and made great Provision of Arms’ were issued on 23 and 28 June. 19 The first trials associated with the Rye House Plot took place on 12, 13 and 14 July 1683. On the 12 th, Walcott was tried, Rouse and Hone pleaded not guilty, and Lord Russell refused to plead. On the thirteenth, the same day that the earl of Essex, who had been arrested in connection with the Plot, cut his own throat with a razor in the Tower of London, Hone and Rouse were tried and sentenced along with Walcott. Russell was also tried, but was not brought to the bar and sentenced until the next day. 20 On the Joad Raymond, ‘Pamphlets and News’, in A Companion to Literature from Milton to Blake, ed. David Womersley (Oxford, 2000), p. 483. See also the discussion of ‘What is a pamphlet?’ in Raymond’s Pamphlets and Pamphleteering in Early Modern Britain (Cambridge, 2003), pp. 4–26. 19 By the King. A Proclamation for the Apprehending of Colonel John Rumsey, Richard Rumbold, Maltster, Richard Nelthorp, Esq., Edward Wade, Gent., Richard Goodenough, Gent., Captain Walcot, William Thompson, James Burton, and William Hone, Joyner (London, 1683); By the King. A Proclamation For the Apprehending of James Duke of Monmouth, Ford Lord Gray, Sir Thomas Armestrong Knight, and Robert Ferguson (London, 1683). 20 Another defendant, Capt. Blague, was acquitted. 18

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20th, Walcott, Hone and Rouse were drawn, hanged and quartered. The next day, Russell was beheaded on a scaffold. Only at the end of July, more than a week later, did His Majesties Declaration to All His Loving Subjects, Concerning the Treasonable Conspiracy Against His Sacred Person and Government, Lately Discovered lay out the government’s official narrative of the plot. The Declaration was not available in print until 2 August, when it also was printed in the London Gazette, which had an estimated circulation of 12–15,000. 21 But contemporaries did not learn about the trials from Whitehall-issued proclamations and declarations alone. 22 They could glean some information from newspapers and newsletters and even more from trial separates. The London Gazette and manuscript newsletters included brief summaries of Rye House Plot trials, sentencings and executions. The London Gazette devoted less than a hundred words to the trials and sentencing of the first conspirators, and even fewer words to their executions. For example, the complete coverage of one trial after the indictment noted simply that Walcott, ‘upon full evidence, was found guilty’. 23 Some newsletter accounts did describe the evidence presented and, for Lord Russell’s trial, the struggle over jury selection, but the following is typical in its brevity: ‘This day the Lord Russell and Hone the joiner were brought to their trials and found guilty of high treason’. Another noted solely that ‘Capt. Blagg for want of State evidence was acquitted’. 24 By early 1684, however, newsletter writer Richard Yard began to feature ‘the news of Westminster Hall’ or legal reports separate from Whitehall government reports and foreign news. 25 Newsletter writers might supplement their own telegraphic trial accounts by enclosing a newspaper or trial account in their mailings to subscribers, as newsprint ink on surviving newsletters from the period attests. For example, immediately after the trials of Walcott, Rouse, Hone and Russell ended, one newsletter writer deferred to ‘the enclosed papers mentioning His Majesties Declaration to All His Loving Subjects, Concerning the Treasonable Conspiracy (London, 1683); London Gazette, no. 1848, 2–6 Aug. 1683; Folger Shakespeare Library [hereafter FSL], Newdigate Newsletters, L.C. 1412, 4 Aug. 1683 (‘His Majesties Declaration published Thursday last’); Geoffrey Harold Kemp, ‘Ideas of Liberty of the Press, 1640–1700’ (Unpublished PhD Thesis, University of Cambridge, 2001), p. 186n., https://www.repository.cam.ac.uk/handle/1810/251776. 22 Those attending the trials of the Rye House plotters could have described them informally, of course. But there is little epistolary evidence of such transmission compared with, say, the many manuscript reports of the Seven Bishops’ Trial in 1688 or the Sacheverell hearings in 1710. 23 London Gazette, no. 1842, 12–16 July 1683. See also ibid., no. 1844, 19–23 July 1683. 24 FSL, Newdigate Newsletters, L.C.1402-1405, 14–21 July; University of Texas, Harry Ransom Center [hereafter HRC], Bulstrode Newsletters, MS 103c.1455, 1457–1458, 13, 20, 23 July 1683. 25 HRC, Bulstrode Newsletters, MS 103c.1504 and 1509, 24 Jan. and 8 Feb. 1683[/4]. 21

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the trials of the four tried’, and instead reported on the death of the earl of Essex in the Tower. As we shall see the published ‘papers’ or pamphlets were quite different from the verbatim prints of the trials.26 On 4 January 1684, the day after both the London Gazette and a newsletter announced the publication of The Arraignment, Tryal & Condemnation of Algernon Sidney, Esq., Yard confirmed that ‘Mr. Sidney’s Trial is at last published’. But he refrained from automatically sending it to his subscribers, as the ‘print’ was ‘too bulky and too chargeable to send by the post’. He offered to mail it, adding ‘though for my part I should not think it worth it’.27 In other words, newsletter writers appear to have supplemented their telegraphic news reports with the quickly printed summaries of the trial proceedings. Their service did not, however, automatically extend to posting the voluminous verbatim reports which appeared later, though their subscribers remained interested in the latter too. The waves of brief, printed trial narratives which preceded each semi-official trial print can be shown by examining the range and number of reports of one trial, in this case the earliest Rye House Plot-related trial, that of the relatively minor conspirator Walcott, tried on the 12th, sentenced on the 13th and executed on the 20th (Table 1). By the time his trial transcript would first be published as part of the 81-page Tryals of Thomas Walcot, William Hone, William Lord Russell, John Rouse & William Blagg… At the Sessions-House… July 12, 13, and 14. 1683, this trial ‘print’ had been preceded in print by at least five other trial summaries, ranging from broadsides to eight-page narratives. Not listed are the numerous other descriptions of Walcott’s arrest, last words and execution. 28

University of Wales Bangor, Mostyn MSS, no. 9091, 14 July 1683. The Arraignment, Tryal & Condemnation of Algernon Sidney, Esq; for High-Treason. For Conspiring the Death of the King, and Intending to raise a Rebellion in this Kingdom (London: printed for Benj. Tooke, 1684); FSL, Newdigate Newsletters, L.C. 1473, 3 Jan. 1683[/4]; HRC, Bulstrode Newsletters, MSS. 103c.1500, 4 Jan. 1683[/4] and 103c.1510, 11 Feb. 1683[/4]. 28 See, for example, An Account of the Sentence That Passed upon William Ld. Russell, Thomas Walcot, John Rouse, and William Hone…, on the 14th of this Instant July, 1683, for High-Treason (London, 1683), registered at the Stationers 14 July (broadside and verso); or The Execution and Confession with the Behaviour and Speeches of Capt. Thomas Walcot, William Hone, and John Rouse (London, 1683), registered 20 July (4 pages). Dates registered are from G. E. Briscoe Eyre, A Transcript of the Registers of the Worshipful Company of Stationers, from 1640–1708, A.D. (3 vols, London, 1914), vol. 3. 26 27

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Table 1. Pamphlets (1683–84) describing the Trial of Thomas Walcott The Proceedings Against the Conspirators Who were Tryed at the Sessions-House in the Old-Bayly, on the 12th of this Instant July, Anno 1683

broadside and verso (unpaginated), 1/2μ

registered with Stationers, 12 July 1683

The Tryal of Capt. Thomas Wallcot, for High-Treason… As likewise what occurred in Relation to James Duke of Monmouth, Ford Lord Gray, and others

2 pp., 1/2μ

1683, registered 13 July 1683

The Proceedings against the Lord Russel… As also the Tryals of William Hone, the Joyner, John Rouse, and William Blake

2 pp., 1/2μ

1683

An Account Of the Whole Proceedings at the Sessions. ‘especially of the Tryals of William, Lord Russel. Thomas Walcot.’ etc.

4 pp., 2μ

[1683]

A True Narrative Of the whole Proceedings at the Sessions-House in the Old-Bayly… against Captain Thomas Walcot…, &c.

4 pp., 2μ

1683

A True Narrative Of the Discovery, of a most Horrid Plot Against His Majesty. ‘With an Account of the Tryall and Condemnation of Capt. Walcott,’ etc.

8 pp., 4μ

[1683]

The Tryals of Thomas Walcot, [etc.]… At the Sessions-House… July 12, 13, and 14. 1683 (‘for Richard Royston, Benjamin Took and Charles Mearn’)

81+ pp., 2μ

In print c. 13 Aug.; registered 28 Aug. 1683

John Turner, The History of the Whiggish-Plot: or, A brief Historical Account of the Charge and Deefnce [sic] of William Lord Russel Capt. Tho. Walcot…, etc.

71+ pp., 2μ

1684

Many of these ‘true narratives’, ‘proceedings’ and ‘accounts’ were not registered with the Stationers Company, and some were printed without publishing information, or even the year of publication. But those that were registered were generally registered on the day of the events described in them, and all these, as well as probably all trial narratives eight pages or fewer, were available for purchase within days of the trial, well before the trial transcript ‘print’. Even the briefest summaries broadcast telling details in timely fashion. The trials themselves had been preceded by, and were largely based on, informations – depositions made by conspirators before the privy council or written at length by the most literate in their prison cells and compiled in a large, well-consulted manuscript book. Early knowledge of the Plot was based

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on rumours or summaries of these informations.29 Many conspirators had either surrendered or were seized throughout late June and early July. The public could keep track of the dozens of suspects seized and where they were incarcerated – for example, John ‘Gibbons, the D. of Monmoths (sic) Footman, in the Gatehouse’ – in broadsides that were regularly updated, seemingly daily.30 Summary reports of their depositions appeared by the end of June. A small folio broadside with verso entitled An Account Of the Discovery of the New Plot had been registered at the Stationers on 23 June, the same day as the privy council met, and must have been printed within a day or two thereafter. It summarized the deposition of the earliest conspirator-turned-informer Josiah Keeling, and the surrender of fellow conspirator and ‘Councillor at Law’, Robert West, whose papers had been seized and who only had surrendered to Sir George Jeffreys that very day.31 Summaries of depositions and arrests were followed by those of pleadings and trials of the plotters, issued by printers and publishers well-versed in timely publication of news-worthy subjects. Speed was paramount (judging from typesetting errors and misspellings even in titles, there was little proofing). Complete coverage could await subsequent imprints. Those producing the accounts helped define a new genre of serial court reporting, which had begun with the News from Newgate pamphlets in the early 1670s and continued as a serial publication, the Sessions Papers or Old Bailey Proceedings, from the end of that decade into the twentieth century.32 Printed summaries of each stage of the legal process for plotters helped to fill the void left when virtually all newspapers except for the London Gazette had been shut down the year before. Elizabeth Mallet took over the presses of her husband David Mallet, who had issued several consecutive True Narrative of the Proceedings of criminal trials from Old Bailey and elsewhere before he died in early 1683.33 Elizabeth continued to publish trial accounts, including several regarding the Rye House TNA, SP 29/426, Copies of Informations (on Rye House Plot), 1683. An Account Of all those as have been taken into Custody Since the Discovery of The New Conspiracy (London, 1683); A List of all the Conspirators That have been Seiz’d…since the Discovery of the Horrid and Bloody Plot ([London, 1683]); idem, ‘the Second Edition, with many Additions and Amendments’ (London, [1683]); A New List of all the Conspirators, ‘the third edition’, (London, [1683]), reprinted in ‘An Old Political Broadside’, Walford’s Antiquarian Magazine and Bibliographical Review, 11 (Jan.–June 1887), 167–71. 31 An Account Of the Discovery of the New Plot…, before His Majesties most Honourable Privy Council at Hampton Court on the 23. of this Instant June 1683 (London: printed by W. Downing for T. Benskin, [1683]), pp. 1–2. 32 Clive Emsley, Tim Hitchcock and Robert Shoemaker, ‘The Proceedings–Publishing History of the Proceedings’, Old Bailey Proceedings Online, www.oldbaileyonline.org, accessed 17 Sept. 2017; Carolyn Nelson and Matthew Seccombe, ‘The Creation of the Periodical Press 1620–1695’, in The Cambridge History of the Book in Britain, vol. 4, 1557–1695, ed. John Barnard and D. F. McKenzie (Cambridge, 2002), p. 547. 33 Ian Maxted, ‘Mallet, Elizabeth (fl. 1672–1706)’, Oxford Dictionary of National Biography (Oxford, 2004) http://www.oxforddnb.com/view/article/66880, accessed 18 Sept. 2017; 29 30

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plotters. She issued a four-page pamphlet Here is a true and just account of a most Horrid And Bloody Plot, which had little hard news to report about the plot, but which included a list of the suspected plotters, a 21 June report from Windsor that London’s shrieval elections had been postponed and a note that ‘it is very likely, his Majesty will… issue forth a Proclamation for the apprehending the Malefactors’. In other words, she printed Here is a true and just account between 21 and 23 June, when the first proclamation was issued. The pamphlet revealed that Lieut.-Col. John Rumsey had been ‘seized, and examined, of which Proceedings, we will give you a more perfect account by the next’, thus suggesting future publications in a series.34 Bookseller Langley Curtis moved easily from publishing general news to publishing trial proceedings. Curtis, who had been especially active from 1678 to 1682 when he published many Whig tracts, had gone into hiding briefly for assertions published in his True Protestant Mercury, while his wife, Jane, continued to issue the paper until October 1682, when she was fined for a seditious issue.35 Langley Curtis resurfaced in 1683, issuing several tracts relating to the Rye House conspirators, eight of which, covering distinct stages in the legal procedure, he registered with the Stationers. At least two of his tracts were reprinted by the king’s printer in Edinburgh, even though one Edinburgh edition referred to Curtis as ‘the Phanatick Printer’.36 Langley Curtis followed each step of the legal procedure for individual Rye House plotters charged with treason – from capture and indictment, to pleading, to trial, sentencing and execution – often with separate pamphlets or broadsides for each. His Proceedings against the Lord Russel, Upon His Tryal for HighTreason, for example, also described the pleading stage of the minor conspirator Hone, who, after pleading not guilty on 12 July, the next day unsuccessfully attempted to change his plea to Henry R. Plomer, A Dictionary of the Printers and Booksellers Who Were at Work in England, Scotland and Ireland from 1668 to 1725, ed. Arundell Esdaile (Oxford, 1922), p. 195. 34 Here is a true and just account of a most Horrid And Bloody Plot Conspired against his most Sacred Majesty and his Royal Highnes (London: printed by E. Mallet, 1683), pp. 3–4. Elizabeth Mallet did not register any of her tracts in 1683. 35 Jane’s printer, none other than David Mallet, escaped without punishment, but Jane was fined £20. Timothy John Crist, ‘Francis Smith and the Opposition Press in England, 1660–1688’ (Unpublished PhD Thesis, University of Cambridge, 1977), p. 286, https:// www.repository.cam.ac.uk/handle/1810/244797. 36 The Proceedings To Execution of the Sentence awarded against Captain T. Walcot, W. Hone, and J. Rouse, for High-Treason (Edinburgh: reprinted by the heir of Andrew Anderson, printer to His Majesty, 1683), 4 pages, registered at the Stationers 21 July. The title page of this print noted that the London imprint had been ‘for Langley Curtis…, the Phanatick Printer’. See also London Gazette, no. 1904, 14–18 Feb. 1683/4; Plomer, A Dictionary of the Printers, pp. 95–96; Paula McDowell, The Women of Grub Street: Press, Politics, and Gender in the London Literary Marketplace 1678–1730 (Oxford, 1998), pp. 71–72. ‘L. Curtis-born’ was also satirized as one of the many ‘Libellars and Pamphlatiers to stir up Sedition’ in The Rebels Association in Hungary. For Reformation of Religion, and Advancement of the Empire ([London, 1683]), broadside.

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one of being guilty of conspiracy but not guilty of procuring arms.37 At the end of 1683, Langley Curtis would be committed, and later tried, found guilty and fined heavily, for publishing a seditious libel, The Night-Walker of Bloomsbury, featuring an ersatz ghost of Lord Russell, thereby taking trial commentary well beyond the grave!38 We can evaluate what these quickly printed pamphlets reveal about the trials themselves by examining both An Exact Account of the Procedings [sic] at the OldBayly this July the 13. 1683, printed by Elizabeth Mallet and reprinted by the king’s Edinburgh printer (who corrected the spelling of the title), and Langley Curtis’s Proceedings against the Lord Russel, Upon His Tryal for HighTreason. Judging from its coverage, An Exact Account was printed after the conspirators’ sentencing on 13 and 14 July, but before their executions on 20 and 21 July. In less than four folio pages, this pamphlet summarized witnesses’ statements in the four trials, and even sets the scene— ‘the Lord Russell was brought in his Coach into the yard…, [and] brought into Court before the Bar’; ‘John Rouse was then led to the bar and a new Jury sworn’, etc. Although such an epitome was not a verbatim transcript, it evidently was based on notes from someone attending the trial. For example, in reporting the trial of a relatively minor plotter, Hone, the pamphlet summarized the evidences of West, ‘Leiling’ (Keeling), Sir Nicholas Butler and a Capt. Richardson, as well as Hone’s response and his attempt to provide a character witness. West’s evidence was funneled into one long sentence to the effect that Hone conspired with others named to plan the death of the king and his brother. The court’s interrogation of Keeling, which in the full transcript was at least 1400 words long, was limited in An Exact Account to a brief sentence noting that the plotters ‘Consulted the Death of the Black-Bird, and the Gold-Finch, meaning the King and the Duke of York’. This cant phrasing might not have added to the material fact of treasonable consult, but it indirectly damned the conspirators as knowingly engaged in something illegal. An Exact Account noted that Hone acknowledged ‘that he Consulted the Death of the Black-Bird, but not of the Gold-Finch’, a seemingly bizarre statement of hatred more for the professed Protestant Charles than for Catholic James, fitting neither the Tory narrative of the treasonable tendencies of Exclusion nor the later Whig narrative of martyrdom at the hands of popishly-inclined justice. Lord Russell’s noble status ensured that his trial was given more space. The Proceedings against the Lord Russel, Upon His Tryal for High-Treason, At the SessionsHouse in the Old-Baily, on the 13th. of this Instant July… As also the Tryals of William Hone…, &c. (London: for Langley Curtis; Edinburgh: reprinted by the heir of Andrew Anderson, printer to His Majesty, 1683), p. 1. 38 Grantham’s name was on the title page and, despite L’Estrange’s claim that Grantham was some sort of anagram or code for Curtis, the printer and the bookseller most probably worked together. Old Bailey Proceedings Online, 12 Dec. 1683 (http:// www.oldbaileyonline.org, o16831212), accessed 17 Sept. 2017; Hinds, ‘Roger L’Estrange, the Rye House Plot’, pp. 24–26; Narcissus Luttrell, A Brief Historical Relation of State Affairs (6 vols, Oxford, 1857), I, 306. 37

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Although much of that focused on jury selection, the interrogations of witnesses against Russell – Rumsey, Shepherd and William Lord Howard of Escrick – were provided, including a long paragraph summarizing Lord Howard’s ‘very large Speech’. Rouse’s guilt and Blague’s acquittal were dispatched quickly in the last page of the Exact Account. It laid out clearly, nevertheless, the heads of the evidence against all the conspirators.39 Curtis’s two-page summary of the trials of Russell, Hone, Rouse and ‘Blake’ (as on the title page; spelled ‘Black’ in the pamphlet body) also reported the evidence presented. According to The Proceedings against the Lord Russell… &c., Keeling placed Hone at ‘consults’ or plotters’ cabals wherein the assassination of King Charles and his brother James was noted as ‘the Captain and Lieutenant was to be loped, or dispatched’, or ‘the Black-Bird and Gold-finch were knock’d o’th’head’. And the guns, powder and bullets needed were referred to as so ‘many Swans Quills, Goose Quills, and a pair of Crow Quills, with Ink and Sand’. Again, cant language reinforced the idea that this was a secret, illicit plot. West corroborated Keeling’s sense that Hone had worked with Richard Goodenough to secure the means to assassinate the king. At Lord Russell’s trial, Rumsey described key meetings between ‘the Duke of Monmouth, the Lord Russel, Sir Thomas Armstrong, and divers others’, those who Lord Howard described as the ‘Council of six’. This group prepared for an insurrection first in ‘a private Room’ at the house of vintner Shepherd, and later at the townhouses of Hampden and even Lord Russell.40 Like An Exact Account, this pamphlet shoe-horned a lot of fairly reliable information into its compact format. In addition to these printed trial summaries, brief pamphlets breathlessly covering the sentencings, last words and executions of the Rye House conspirators, also often rehearsed the principal evidence from the trials. Printer John Grantham, active in reporting on the Rye House Plot trials and perhaps printing for Langley Curtis, registered a broadside and verso Account of the Sentence That Passed upon William Ld. Russell, Thomas Walcot, John Rouse, and William Hone…, on the 14th of this Instant July, 1683, the very day of the sentencing. Six days later, Grantham did the same for The Execution and Confession with the Behaviour and Speeches of Capt. Thomas Walcot, William Hone, and John Rouse. The latter, at four pages, repeated summaries of the principal evidence from Rumsey, West and Keeling against the conspirators before describing the convicts’ demeanor on their last days and execution. Grantham did not here report anything about the last days of the most newsworthy convict, Lord Russell, as the pamphlet appears to have gone to press the day before Russell was executed on the 21st.41 An Exact Account of the Procedings [sic] compared with An Exact Account of the Proceedings at the Old-Bayly this July the 13. 1683. with a true Survey of the Tryal Of the Lord Russel, William Hone Joyner, John Rouse, Captain William Blage (Edinburgh: reprinted by the heir of A. Anderson, printer to His Majesty, 1683). 40 The Proceedings against the Lord Russel, pp. 1–2. 41 An Account of the Sentence That Passed upon William Ld. Russell, Thomas Walcot, John Rouse, and William Hone…, on the 14th of this Instant July, 1683, for High-Treason (London: 39

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Ephemeral pamphlets reporting the final days of the conspirators, then, had already been printed and distributed by the time the verbatim trial print was made available to the public. Publishers Benjamin Tooke (one the largest printers at the time, operating from London and Dublin) and Charles Mearne (who often took a share in large publication ventures) had been anxious to obtain sole permission to publish the trial transcript, writing to Secretary of State Leoline Jenkins several days before the trials took place. Jenkins replied that the authority to appoint a printer lay with London Lord Mayor William Prichard. In the event, Prichard did appoint Tooke and Mearne, along with Richard Royston (long ‘patronized and protected’ by the Crown), as a conger or syndicate to publish the trial transcript print of the first Rye House Plot trials, which appeared eventually as The Tryals of Thomas Walcot, William Hone, William Lord Russell, John Rouse & William Blagg…: At the Sessions-House… July 12, 13 and 14. 1683.42 In contrast to the publishers of the brief trial pamphlets, who registered their works immediately, Royston, Tooke and Mearne did not register their print until 28 August, well after the trials. They advertised in the London Gazette at the end of July that ‘The Tryals of Thomas Walcot, [etc.]’ would be available ‘in a few days’. The pamphlet was in print by the second week of August, and in the 13–16 August Gazette it was advertised as now available, a month after the trials.43 None of the earlier ‘accounts’ or ‘proceedings’ of the Rye House Plot trials had been so advertised, presumably because they had smaller print runs and were for immediate sale. Trial transcript prints, then, were not available until well after the trials of the conspirators. Trial shorthand had to be transcribed to longhand for the compositor. Typesetting and printing folio pages of lengthy trial prints was an expensive and time-consuming process. The print of Algernon Sidney’s trial at the end of November 1683 was not available for purchase until the beginning of

printed by J. Grantham, 1683); The Execution and Confession with the Behaviour and Speeches of Capt. Thomas Walcot, William Hone, and John Rouse, who according to the Sentence pronounced against them…, on the 12th Instant, were this 20th of July Drawn, Hanged and Quartered (London: printed by J. Grantham, 1683). 42 The Tryals of Thomas Walcot, William Hone, William Lord Russell, John Rouse & William Blagg. For High-Treason…: At the Sessions-House….July 12, 13, and 14. 1683 (London: printed for Richard Royston, Benjamin Took[e] and Charles Mearn[e], 1683); Plomer, A Dictionary of the Printers and Booksellers, pp. 202, 257–58, 293; H. R. Tedder, ‘Royston, Richard (1601–1686),’ rev. William Proctor Williams, Oxford Dictionary of National Biography (Oxford, 2004) http://www.oxforddnb.com/view/article/24240, accessed 18 Sept. 2017; State Papers Domestic, Entry Book 68, 328 (9 July 1683), noted in D. F. McKenzie and Maureen Bell (eds), A Chronology and Calendar of Documents Relating to the London Book Trade 1641–1700 (3 vols, Oxford, 2005), II, 370. 43 London Gazette, nos. 1846 and 1815, 26–30 July and 13–16 Aug. 1683. On 11 Aug. 1683, one newsletter writer offered to send ‘the Lord Russel’s trial with the rest’ to a subscriber in North Wales: see University of Wales Bangor, Mostyn newsletters, MS 9091.

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January 1684.44 (Jacob Tonson’s monster print of the lengthy Henry Sacheverell trial of 1710 took over seventy days to appear.)45 Contrast this delay of a month or more for verbatim trial prints with the instant printing of trial ephemera. A reported 2,500 copies of Lord Russell’s scaffold speech and paper appeared in Bedfordshire by 22 July; within a week there appeared pamphlets attacking The Speech Of the Late Lord Russel and its printer, Darby Sr. and defending the government.46 The Rye House Plot Trial Prints as Text When the verbatim trial transcripts were published a month or more after the trials, they were closely perused and used by pamphleteers and preachers. A few examples must suffice. The Dissenter Unmaskt (registered 9 August 1683) recounted how several witnesses in Russell’s trial described treasonable discourses at Lord Shaftesbury’s Thanet House and at the house of merchant Thomas Shepherd.47 Edward Pelling, in his Rye House Plot thanksgiving sermon, asked his readers to ‘see the Tryal of Walcot’ for the misguided rationale of the conspirators.48 Months later, in the aftermath of Sidney’s execution, Reflections upon Coll. Sidney’s Arcadia (that is, upon the paper Sidney delivered at his execution) quoted his trial ‘print’ – ‘[t]he general revolt of a Nation from its own Magistrates, can never be called rebellion’ – to suggest that using evidence from his own papers to witness his guilt was not unsubstantiated innuendo, but ‘Treason by Whole-Sale’.49 From the other side, the anonymous Enquiry into, and Detection of the Barbarous Murther Of the late Earl of Essex (1684) drew at length from the printed transcript of Lord Russell’s trial to show how he had been damned by association with Essex after the latter’s suicide before trial was treated by justices as tantamount to confession of guilt. The author drew from the speeches of Attorney General Sir Robert Sawyer and Sir George Jeffreys, then serjeant-at-law for London, in ‘My Lord Russel’s Trial’. Both Sidney’s arraignment, trial and sentencing took place on 7, 21 and 27 Nov. 1683. The 67-page Arraignment, Tryal & Condemnation of Algernon Sidney was advertised as forthcoming in London Gazette, no. 1887, 17–20 Dec. 1683, and as published in idem, no. 1891, 31 Dec. 1683–3 Jan. 1684. 45 Cowan, ‘Introduction: Reading the Trial’, pp. 10–11. 46 Lois G. Schwoerer, ‘William, Lord Russell: The Making of a Martyr, 1683–1983’, Journal of British Studies, 24:1 (1985), 41–71, esp. 54–56. For the printing history of the speech and paper of Lord Russell (20,000–25,000 copies), see also Luttrell, Brief Historical Relation, I, 271; Hinds, ‘Roger L’Estrange, the Rye House Plot’, p. 6. 47 The Dissenter Unmaskt, With Respect to the Two Plots (London, 1683), p. 3. 48 Edward Pelling, A Sermon Preached upon September the 9th, 1683. Being a Thanksgiving-Day For a Late Deliverance From a Fanatick-Conspiracy (London, 1683), pp. 31–32. 49 [John Nalson?,] Reflections upon Coll. Sidney’s Arcadia; the Old Cause, being some Observations Upon his Last Paper, Given to the Sheriffs at his Execution (1684), p. 11; quoting The Arraignment, Tryal & Condemnation of Algernon Sidney, p. 26. 44

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Pelling and the author of An Enquiry referred to the relevant sections of the authorized collective trial print, The Tryals of Thomas Walcot [etc.].50 More telling was the use of Rye House Plot trial prints within other state trials. During the trial of John Hampden in February 1684, in which Hampden was convicted and hit with swingeing fines for being part of the ‘council’ that planned Rye House, Judge Jeffreys asked Lord Howard to expand his testimony about what he had heard at a conspiratorial meeting at Hampden’s London townhouse that had occurred about a year earlier. Lord Chief Justice (Jeffreys). ‘[Y]ou seem to speak of… an Undertaking by my Lord Shaft(e)sbury. Pray what was that Undertaking?’ Lord Howard. ‘Your Lordship has heard of that before, and know it very well.’ Lord Chief Justice. ‘Tho’ we know it, the Jury do not. They have not heard it Judicially at least.’ Lord Howard. ‘Because it has been in the Printed Books, every body I suppose knows.’ Lord Chief Justice. ‘But that they cannot judicially take notice of.’51

Lord Howard referred to the semi-official printed version of Sidney’s trial, and he thought it unnecessary to repeat the words recorded there that he had spoken just a few months earlier in November 1683 in front of the same judge. As noted, the printed book of Sidney’s trial transcript had been published at the beginning of January, a month before Hampden’s trial. But the chief justice did not believe the printed transcript of one trial had any legal basis in another. In 1685, Henry Cornish also was stymied in his attempt to introduce printed testimony from an earlier trial into his own. When Cornish was tried alongside other supporters of Monmouth’s Rebellion, the charges against him included meeting with James duke of Monmouth, Ford Lord Gray, Lord Russell and others at Shepherd’s house in November 1682 avowedly to organize part of what would become known as the Rye House Plot. Cornish’s fate hinged on Rumsey testifying that Cornish had been present when conspirator Robert Ferguson ‘pull’d out a Paper’ and read aloud a manuscript declaration of grievances detailing the ‘misgovernment of King Charles II’ and demanding future compensation for ‘those assisting in the insurrection’. Cornish’s defense witness, a Mr Lane, questioned An Enquiry into, and Detection of the Barbarous Murther Of the late Earl of Essex ([London], 1684), p. 10, quoting The Tryals of Thomas Walcot, pp. 38, 59. 51 The Tryal and Conviction of John Hambden, Esq; upon an Indictment of High-Misdemeanour… Before the Right Honourable Sir George Jeffreys…, 6th day of February, 1683[/4] (London: printed for Benjamin Took[e], 1684), pp. 8–9, my emphasis. 50

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Rumsey’s assertion that Cornish had liked the plan ‘very well’, since Rumsey had admitted during the trial of Lord Russell that he had not arrived until after Ferguson read the declaration, an admission that would have thrown doubt on his testimony about what Cornish had heard. Lane’s claim, however, was based solely on his careful reading of the printed transcript of the earlier trial. Mr. (Roger) North. ‘Were you present at my Lord Russel’s Tryal?’ Mr. Lane. ‘No, Sir.’ Mr. Justice (Sir Creswell) Levin(z). ‘Sir, that signifies nothing.’ Mr. Cornish. ‘That is a very material thing, my Lord.’ Lord Chief Justice (of Common Pleas, Sir Thomas) Jones. ‘What is? it is not proof at all.’ Mr. Cornish. ‘Not the Printed Tryal?’ L.C.J. Jones. ‘No.’ Mr. Cornish. ‘It is by Authority.’ L.C.J. Jones. ‘Any body that was present may swear it.’52

The judges privileged eye- and ear-witnesses (‘anybody that was present’), whereas notes taken by shorthand and printed were ‘not proof at all’, even though trial judges gave their imprimatur (‘by authority’) to the ‘print’.53 The judges in Cornish’s case rejected the authority of trial ‘prints’, thereby helping to shape future rules about hearsay.54 Even so, these two conversations from state trial transcripts suggest that contemporaries placed each trial in the context of others as part of a wider conversation. Certainly, the witnesses did so. Contemporaries did not consider each plot trial as distinct, hived off by then-incipient rules of hearsay. After all, the government’s case against the Rye House conspirators hinged on the widely reported unitary nature of the Plot. And information about what the conspirators had said and done circulated as much outside as inside the courtroom. The Tryals of Henry Cornish, Esq; for conspiring The Death of the King, And raising Rebellion in this Kingdom…; at the Sessions-House in the Old-Bailey, London… on Monday, Octob. 19, 1685 (London: printed by George Croom, 1685), pp. 27, 34; James Ferguson, Robert Ferguson the Plotter: Or, The Secret of the Rye-House Conspiracy and the Story of a Strange Career (Edinburgh, 1887), pp. 85–6. 53 For Rumsey’s admission, see The Tryals of Thomas Walcot, [etc.], p. 39. 54 Barbara J. Shapiro, A Culture of Fact: England, 1550–1720 (Ithaca, 2003), p. 15; John H. Langbein, The Origins of Adversary Criminal Trial (Oxford, 2003), pp. 233–34. 52

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Although much that was printed in the semi-official trial ‘prints’ had already been outlined in earlier published accounts, the longer accounts did help to reveal both the role of the bench in shaping treason trials and the struggles between prosecution and the accused. Prosecutors and the judicial bench attempted to mold the testimony of remembered conversations to (re)build the authority and justice of the state and its law courts.55 On the other side, witnesses and the accused negotiated with that authority, manipulating rather than denying the public transcript of the trial to carve out a place for their narrative, even if their guilt was a foregone conclusion. The verbatim accounts reveal the Rye House Plot conspirators questioning the prosecutors’ and judges’ very definition of treason. The solicitor general insisted that the evidence against Lord Russell proved that ‘this is High Treason within 25 E. 3’ (57).56 The court had ordered 25 Edw 3 St 5 c 2 (1352) read aloud earlier in his trial. Both Walcott and Russell attempted to claim that their being among those planning treasonous activities and not reporting or stopping them was misprision of treason, at worst a misdemeanor, not a felony. But misprision depended on a sole occurrence. Multiple meetings became treasonous. Lord Russell repeatedly insisted that he attended only one meeting, not several (41-42). Walcott believed that his folly of associating with conspirators ‘’tis only misprision of Treason’. The chief justice replied that merely being among those who planned treason was enough: Walcott’s ‘Folly in these Cases is Treason’ (20). The statements and speeches recorded in the prints also reveal the arbitrary nature of the courtroom practice in these treason trials. One witness, Rumsey, twice interrupted another after finishing his own testimony, correcting Shepherd’s testimony at Lord Russell’s trial. Russell was understandably befuddled by this, asking ‘Is it usual for the Witnesses to hear one another?’ (42). Although the judges at times kept trials separate, refusing admission of previous trials’ prints as evidence, at other times they linked trials themselves. Thus, in Rouse’s evening trial, Judge Jeffreys referred to Rouse’s appearance before the court two years earlier, even though that had ended in acquittal. ‘This Rouse is a Gentleman very well known, ‘tis not the first time he hath been at this Barr: He was here at a time when the common justice of the Nation could not be obtained in this place… Mr. Rouse… was well tutored under a Lord you heard mentioned this morning’ (63-64).57 One witness could only point to words Rouse had used against the king for constant prorogations early in 1681, before the Oxford Parliament, which would hardly corroborate his plotting in 1683 (67). The collective print of these first Rye House treason trials, The Tryals of Thomas Walcot, [etc.] (reprinted in State Trials), further reveals a cacophonous Thomas, ed., State Trials: Volume 1, Treason and Libel, p. 19. All parenthetical page references are to The Tryals of Thomas Walcot, [etc.], reprinted in A Compleat Collection, III, 111–75. 57 Old Bailey Proceedings supplementary material, 17 October 1681, o16811017a-1, http://www.oldbaileyonline.org/, accessed 17 Sept. 2017. 55 56

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courtroom charged with emotion and theater. The hubbub must have been considerable. Witnesses were told to speak louder: ‘Mr. Rumsey, raise your voice so audibly that you may be heard’ (4); ‘Speak aloud, Mr. Bourne’ (10). The crush of spectators made it difficult to sit or stand. Sir Henry Pollexfen, one of the three lawyers Lord Russell brought in as counsel, complained, ‘Here is such a great Crowd…, we have no room’ (35). Chief Justice Sir Francis Pemberton interrupted Lord Howard’s evidence against Russell, ordering him to ‘Pray my Lord raise your voice, Else your evidence will pass for nothing’. At the same time a juryman complained, ‘We cannot hear my Lord’. In this case, Howard explained his momentary loss of voice: ‘There is an unhappy accident happened that hath sunk my voice, I was but just now acquainted with the fate of my Lord of Essex’ (10). This served as effective staging, since Essex’s suicide implied guilt. During Walcott’s trial, when Sawyer attempted to summarize conspirators’ use of cant – ‘they would discourse of these matters in Phrases, that common persons should not understand them’ – the defendant Walcott twice interrupted Sawyer, noting ‘I do not hear’. When the attorney general claimed that the conspirators used disguised language or ‘mystical terms’ (3), Walcott claimed not to understand him. It seems possible, in the first instance, that the court stage-directed handing Howard a note of Essex’s suicide, and, in the second, that Walcott knowingly interrupted and deflected the flow of the prosecutorial charge. What the prosecution termed the conspirators’ ‘mystical terms’ were often simply insider joking commentary on contemporary news, an early form of dog-whistle politics. The testimony of West that Hone had called for ‘a brisk Push… for the two Brothers: says I, what Brothers do you mean? Says he, the Captain and Lieutenant: those were the two Terms they used since the Van-herring was Printed’ (27), is virtually incomprehensible, unless one knew that several pamphlets in 1679 and 1680 had made oblique reference to a needed rebellion in England by the metaphor of a supposed mutiny on a fishing vessel.58 When Rumsey witnessed that West called Keeling ‘our Gulick’, Sawyer asked Rumsey how he interpreted this. Rumsey explained ‘Gu was Keel, and lick was ing’. In fact, this was a status-based humorous nickname, derived from a recent London Gazette report that Gulick had led a lower-class rising in Cologne. Keeling, though relatively prosperous, lived and worked in the East End, and the other West End merchants, clerks and lawyers engaged in the treasonous discussion viewed him as their conduit to the lower classes.59 Conspirators had to be taught the value of secrecy. Rumsey and Keeling talked openly of arming themselves ‘in down-right English’, until West reminded them ‘it was a foolish thing to talk so before Drawers’ at a tavern, and so began speaking about ‘Swan-quills, Goose quills, and Crow-quills’ (15), or guns, powder From aboard the Van-herring. A letter from Legorn, Decem. 1. 1679 ([London, 1679?]); From aboard the Van-Herring, being a full relation of the present state and sad condition of that ship (London, 1680). 59 London Gazette, no. 1831, 4 June 1683. 58

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and bullets as we learned from the earlier printed proceedings. And Rouse and a Mr. Leigh evidently discussed ‘Hay-making’, by which they meant ‘to get men for this business’ of the rising (70). Perhaps the absence of a professional cipher or code ensured deniability. Thus, Lord Howard noted that the conspirators were not concerned about a delay in communication with Aaron Smith who had been sent to Scotland to see about a rising there, for ‘if his Letter had miscarried, it could have done no great hurt, for it carried only a kind of Cant in it; It was under the disguise of [discussing] a Plantation in Carolina’ (47). Finally, the trial prints reveal that conspirators acted for a variety of reasons, raising doubt as to whether there was a unified plot at all. For example, Capt. Walcott reportedly agreed to attack the king’s guards but not the king himself at Rye House, that ‘he would not meddle with the King in the Coach’ (5). Walcott evidently would not besmirch his honor as a military man by attacking an unarmed king: ‘it was a base thing that way, being a naked person’ (18). Conspirator-turned-witness Zachary Bourne had refused to harm his neighbour, Sir Francis North. When Bourne had learned ‘it should be my business to secure my Lord Keeper’, he reportedly told his co-conspirators that he ‘did not care to meddle with any of my neighbours’ (11). Hone, as we have seen from the first printed proceedings, willingly agreed to kill the king, but not the duke of York: ‘As to the Black-Bird [King], I own it; as to the Gold-Finch [duke], I never heard a Word of it till this time’ (27). (Only at his execution did Hone explain ‘that the D. of Y. did openly profess himself to be R. Catholick’, and so in Hone’s view was less guilty of subterfuge than Charles II.)60 And one witness noted Rouse was ‘for seizing them; but not for shedding their blood’ (64). Despite the attorney general’s claim that the lords at their ‘great Consult… moved all the other Wheels’, the ‘Underlings’, as he termed them, seemed to follow their own dictates (38). Of course, conspirators could still act in concert even without unity of purpose. One can sympathize with Lord Russell’s riposte to Lord Howard, ‘He says it was a formed Design, when we met about no such thing’ (48), while at the same time understanding that these consults would be regarded as treason nonetheless. Overall, one is struck by the banality of conspiracy. Both Walcott and Russell claimed to have met with the others only to hear news. Even when several of the plotters met, the witnesses averred there was ‘no Discourse that had any particular point’ (16). Conclusions During the Rye House Plot scare, contemporaries decried pamphlets and news sheets as partisan and misleading. And yet the same publishers of the The Last Speech & Behaviour of William late Lord Russel… Also The Last Speeches, Behaviour, and Prayers of Capt. Thomas Walcot, John Rouse Gent. & William Hone Joyner (London: printed by J.C. and F.C. for Thomas Fox, 1683), p. 5* (2nd pagination). 60

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partisan pamphlets also printed roughly accurate (if quite condensed) running accounts of each stage of the treason trials. During the scare, His Majesties Declaration rooted treason and sedition in the influence of ‘False news, Libellous Pamphlets’, and the anonymous Dissenter Unmaskt echoed the sentiment, asking ‘how industrious is that Party in dispersing every little scribled Half-sheet (as abounding in Malice and Mischeif [sic] as defective in Sense) to every quarter of the Nation…?’, pointing in particular to the work of Langley Curtis.61 Yet the government still allowed its Scottish printers to reprint Curtis’ and Elizabeth Mallet’s Rye House Plot trial narratives and proceedings. Historians generally have overlooked more than criticized the ephemeral accounts and proceedings. Both contemporaries and historians have criticized the State Trials. Whigs drew upon the original verbatim trial prints to criticize Stuart treason trial practice in the 1680s and 1690s. And this chapter and this collection highlights the dissenter and Whig background of those involved in the compilation of the State Trials based on those prints. But those same folio-sized trial prints were authorized by government officials and defendants attempted to use them, albeit unsuccessfully, in other trials. That is, contemporaries made little criticism of the transcriptions provided in the verbatim trial prints of the Rye House Plot trials, and the prints were reproduced unedited in the State Trials collections.62 A Compleat Collection, indeed, provided transcripts for all the Rye House Plot trials. Moreover, earlier trial proceedings parallel the transcript prints. When Salmon returned to comment on the state trials in 1735, he argued that the courts essentially treated the Whig conspirators of 1683 and the Jacobite ones of 1696 much the same, even though further safeguards had been instituted in the law regarding hearsay, counsel, relation of words to treason, etc., after the 1680s. Legal practice did not change as quickly as the letter of the law. Salmon based his verdict on his reading of the reprinted trial prints in the 1719 Collection, which revealed clearly the directions and interpretations of the justices in practice.63 Yet earlier, cheaper trial pamphlets also had reported the form and evidence of the trials with considerable thoroughness. Printers, whatever their sectarian or partisan beliefs, knew that detailed accounts of treason trial sold well. His Majesties Declaration to All His Loving Subjects, p. 1; The Dissenter Unmaskt, p. 1. This chapter generally follows the view of the trial prints expressed by Michael Mendle, ‘The “Prints” of the Trials: The Nexus of Politics, Religion, Law and Information in Late Seventeenth-Century England’, in Fear, Exclusion and Revolution: Roger Morrice and Britain in the 1680s, ed. Jason McElligott (Aldershot, 2006), pp. 122–37; idem, ‘News and the Pamphlet Culture of Mid-Seventeenth-Century England’, in The Politics of Information in Early Modern Europe, ed. Brendan Maurice Dooley and Sabrina Alcorn Baron (Abingdon, 2001), pp. 57–73; and Cowan, ‘Introduction: Reading the Trial’, p. 13; in contrast to the more critical view expressed in Langbein, ‘The Criminal Trial’, pp. 265–66. 63 Thomas Salmon, A Critical Review of the State Trials (London, 1735), esp. p. 679. 61

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As we move from the brief trial accounts and proceedings to the verbatim trial prints, and from there to the state trials collections, we witness history separating from news, a process that Daniel Woolf describes as ‘the construction of the present’.64 Brian Cowan suggests that the nineteenth-century Cobbett and Howell edition of State Trials ‘may mark the moment when the memory of the trial [of Henry Sacheverell in 1710] moved from its continuing place at the heart of 18th-century political divisions into the new world of nineteenthcentury bemusement at… the past’; or, to put it another way, from news to history.65 The historicizing process began, at least for the Rye House Plot trials, as soon as the trial prints supplanted the accounts and proceedings a month or two after the trials themselves. Salmon explained the selection process for A Compleat Collection in terms of what might or might not be in a distinguished library, deciding to omit two trials because they were ‘found in Mr. Rushworth[’s Historical Collections], [and thus] are already in the hands of most gentlemen’.66 A 1680 advertisement for a catalog ‘of all the stitch’d books and single sheets &c. printed the two last years, commencing from the first discovery of the Popish plot’ noted that it was ‘[v]ery useful for Gent. that make collections’.67 Different markets existed for different types of publications: cheap trial news accounts at one end, historical collections at the other, and the transcript of the trial prints in the middle. State trial collections were not aimed merely at a books-by-the-yard market simply to fill distinguished libraries. But they were aimed, in large part, at a clientele who had been willing to spend a sizable amount to purchase 60-to-80-page folio verbatim transcripts, and had been willing to do so repeatedly, collecting them and stitching them together. To give just one example, during the 1670s and 1680s John Verney both attended state trials in person and collected relevant pamphlets, including trial prints, which he bound in several volumes. One volume included items relating to the Rye House Plot, pamphlets and a few trial prints which Verney noted cost him in total £1, 9 s., 6 d., with binding an additional 2 s., 6 d.68 Darby Sr. in 1689 had suggested a purchase price of five pounds or more would be necessary for four dozen trial prints bound together, a roughly accurate estimate given Verney’s expenses for a similar series of pamphlets which included just a couple of trial prints, and an expense which denoted a clientele of substance. State trials, whether individual prints or collected together, did play a role in public discussion of political trials. They did not simply sit on the shelves. But they did not have ‘the itch of news’. Daniel Woolf, ‘News, History and the Construction of the Present in Early Modern England,’ in The Politics of Information in Early Modern Europe, pp. 80–118; Harold Love, ‘The Look of News: Popish Plot Narratives 1678–1680’, in The Cambridge History of the Book in Britain, vol. 4, 1557–1695, ed. John Barnard and D. F. McKenzie (Cambridge, 2002), p. 652. 65 Cowan, ‘Introduction: Reading the Trial’, p. 33. 66 Reprinted in Thomas, ed., State Trials: Volume 1, Treason and Libel, p. 21. 67 Quoted in Love, ‘The Look of News’, p. 656. 68 Cambridge University Library, Verney Tracts, Sel.2.120, vol. 7. 64

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Before the collection put together by Darby Jr. and Salmon, before An Exact Abridgment put together by Darby Sr., and before the authorized individual trial print transcripts, there had been published numerous brief accounts and proceedings. Curtis, Mallet, Grantham and the other printers and publishers who responded quickly to the market for details about the Rye House Plot conspirators and their trials and executions helped form public opinion through their cheap, ephemeral news sheets of trial narratives. The technical demands of printing and the economic demands of a competitive market limited the political spin and shaped the output of Rye House Plot trial ‘accounts’ as similar factors did the subsequent trial ‘prints’.69

Michael Treadwell, ‘The Stationers and the Printing Acts at the End of the Seventeenth Century’, in The Cambridge History of the Book in Britain, vol. 4, 1557–1695, ed. John Barnard and D. F. McKenzie (Cambridge, 2002), p. 765. 69

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Part Three Revolutionary State Trials

7 Enforcing Uniformity: Public Reactions to the Seven Bishops’ Trial Scott Sowerby The response of the English public to the Seven Bishops’ Trial has often been described as one of overwhelming unity. When the bishops were acquitted on 30 June 1688, according to one observer, the ‘Clergy and Laity as wel[l] Dissent[e]rs as Church of Eng[land] seem[e]d unanimous in their expr[e]ssions of joy’. The acquittal, observed the Dutch ambassador in London, ‘makes the nation considerably more resolute, and bring[s] them to more unity than they were before’. An Anglican gentleman in Derbyshire exulted at the public response to the verdict: ‘To see the h[e]arty union amongst us upon this occasion, and that what our Enimies designed for our ruine, hath had so good an Effect; cannot but with admiration be observed, and acknowledged as the speciall worke of God’. The trial of the bishops, the marquis of Halifax noted, had ‘brought all the Protestants together, and bound them up into a knot, that cannot easily be untied’. The bishop of Carlisle was convinced that the bishops would ‘have no cause to repent of any thing they have done; the whole Nation applauding them for it’.1 Historians have echoed these contemporary observers. J. R. Western saw the petition of the seven bishops as ‘a national gesture of resistance’. George Hilton Jones wrote that ‘The people (for once, one can use that word without exaggeration) had been alarmed’ by the trial but were ‘relieved’ by the verdict. Jacqueline Rose suggested that by ordering the Anglican clergy to read the Declaration for Liberty of Conscience aloud from their pulpits, the king had taken a path that had ‘united the country against him’. Steve Pincus contended that ‘The English people were furious with their king in the summer of 1688’. But no historian sounded this motif as ardently as Thomas Babington Macaulay: the bishops had ‘received the applauses and blessings of the whole nation’; the tidings of Nath. Gerrard to Edward Norton, 4 July 1688, Add. MS 34487, fol. 9, BL; van Citters to States General, 3/13 July 1688, Add. MS 34510, fol. 139v, BL; Sir William Boothby to Dr Horneck, 7 July 1688, Add. MS 71692, fol. 12v, BL; John Dalrymple, Memoirs of Great Britain and Ireland, 2nd edn (2 vols, London, 1771–73), vol. 2, pt. 1, p. 235; [bishop of Carlisle] to [Sir Daniel Fleming], 2 July 1688, WDRY/5/3217, Cumbria Archive Service, Kendal [hereafter CAS (K)]. 1

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their acquittal flew to ‘every part of the kingdom, and were everywhere received with rapture’; and their ordeal had generated a union of ‘[a]ll ranks, all parties, all Protestant sects’ in one ‘vast phalanx’ against the government.2 The English people, in short, were united. It might seem surprising that unity should have been the response to such a divisive event. The Seven Bishops’ Trial had pitted religious against civil authority. It had split the justices of King’s Bench, with two of the judges favoring the bishops while the other two largely ruled against them. The jury of Middlesex freeholders whose verdict was celebrated so widely did not come to its decision with ease; the jurors quarreled all night in St Clement’s Vestry, deprived of food and drink and sitting in the dark without a fire. Only once the pangs of hunger and thirst set in did the stubborn holdouts give way to the majority and agree to acquit.3 The outcome of such discord would seem unlikely to be harmony. The insistence on national unity, both in the contemporary record and in later historiography, suggests how much was at stake when the bishops took their seats in Westminster Hall. The usual narrative about James II’s reign is that his natural supporters, the Anglican Tories, had become so alienated from him by June 1688 that even though they were still going through the motions of support, their loyalty had been hollowed out. Even those Tories who, as instinctive conservatives, might not join a revolution, would nonetheless stand aside and allow it to happen. The king’s disastrous policy of prosecuting the seven bishops, in this view, was an unforgivable affront that turned the long-suffering Church of England against him, while simultaneously doing little to boost his standing among the Protestant nonconformists. As John Miller put it, ‘By the summer of 1688 James had alienated the Anglicans without winning over the Dissenters.’4 An investigation of the contemporary record suggests a more complicated set of reactions to the Seven Bishops’ Trial. It is undoubtedly the case that a majority of the English populace approved of the acquittal of the bishops, and the strength of this majority has made it easy to present their opinions as a J. R. Western, Monarchy and Revolution (Totowa, N.J., 1972), p. 233; George Hilton Jones, Convergent Forces: Immediate Causes of the Revolution of 1688 in England (Ames, Iowa, 1990), p. 43; Jacqueline Rose, Godly Kingship in Restoration England: The Politics of the Royal Supremacy, 1660–1688 (Cambridge, 2011), p. 267; Steve Pincus, 1688: The First Modern Revolution (New Haven, 2009), p. 197; Thomas Babington Macaulay, The History of England from the Accession of James II, ed. C. H. Firth (6 vols, London, 1913–15), II, 1014, 1035, 1037; see also George Macaulay Trevelyan, The English Revolution 1688–1689 (London, 1938), pp. 84–7, 94–5, and F. C. Turner, James II (New York, 1948), pp. 395, 400. 3 Scott Sowerby, Making Toleration: The Repealers and the Glorious Revolution (Cambridge, Mass., 2013), pp. 190–1. 4 John Miller, The Glorious Revolution, 2nd edn (London, 1997), p. 9; see also John Miller, James II: A Study in Kingship (Hove, 1978), p. 188; David H. Hosford, Nottingham, Nobles and the North: Aspects of the Revolution of 1688 (Hamden, CT, 1976), pp. 28–9. 2

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national consensus. Yet a not insignificant minority disapproved of the verdict, and some registered their discontent vocally. James was not completely isolated, even at the nadir of his fortunes. His ability to attract even limited public support for his most controversial policy suggests that he was not quite as cut off from public opinion as some historians have indicated. While many Protestants adopted anti-Catholic rhetoric and praised the bishops for standing up against the creeping forces of Catholicization in England, there were some who adopted anticlerical rhetoric, criticizing the bishops for their defiance and alluding to their past lack of charity to nonconformists. Many of the king’s diehard supporters were Catholics, but some were Protestants, and their numbers were not negligible. Contemporary commentators sometimes failed to depict the full range of opinion regarding the bishops. Observers of the political scene sometimes preferred to dismiss minority opinions rather than to describe them accurately. News gatherers were often biased toward the conventional wisdom expressed in London’s taverns and coffeehouses. One result is that historians, reading these contemporary accounts of the political scene, can be led astray about the nature of public opinion. Most historians who have discussed the Seven Bishops’ Trial, like many of the contemporary observers, have described the thunderous cheers that shook Westminster Hall when the foreman pronounced the jury’s verdict. But just because a shout was loud does not mean that everyone was shouting. * * * The seven bishops were put on trial for having petitioned the king on 18 May 1688, requesting that he withdraw his order commanding the reading of his Declaration for Liberty of Conscience in English and Welsh churches. The seven were Thomas Ken of Bath and Wells, John Lake of Chichester, William Lloyd of St. Asaph, Jonathan Trelawny of Bristol, Francis Turner of Ely, Thomas White of Peterborough, and their primate William Sancroft of Canterbury. Although they represented less than a third of the twenty-four bishops of England and Wales, their petition was later endorsed by nine of the other bishops, and their defiance was subsequently echoed by the great majority of the clergy of the Church of England, who generally refused to read the royal decree.5 In their petition to the king, copies of which spread initially in manuscript and later in print, the seven bishops questioned the king’s dispensing power and rebutted the legal theories that underlay the Declaration. They were subsequently called before the privy council on 8 June and charged with seditious libel. The bishops refused to give bail and, as a result, were imprisoned in the Tower of London for a week to await the opening of the high courts at the start of Trinity term. On the first day of term, 15 June, they were brought before the Court of King’s Sowerby, Making Toleration, pp. 165–8. Two of the twenty-six bishoprics were vacant at the time. 5

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Bench and were required to enter a plea. After their request for more time to consider the charges was denied, the bishops pled not guilty and the date of the trial was set for 29 June. They were released pending trial. Some uninformed onlookers believed that the bishops had been acquitted rather than simply released from custody, and celebratory bonfires were lit in London, Bristol and Lichfield.6 When the bishops returned to Westminster Hall two weeks later, the courtroom was thronged with sympathetic observers, including twenty-nine members of the peerage who exercised their right to sit on the bench with the judges and keep a close watch on the proceedings. The trial lasted about nine hours. The four justices of King’s Bench disagreed both on the question of whether the petition had been published by the bishops in Middlesex and also on the question of whether the petition of the bishops constituted a seditious libel. As a result, in an extraordinary outcome, the jury was permitted to rule not just on the factual question of whether the libel had been published, as was usual in such cases, but also on the substantive question of whether the petition was libelous. After hours of deliberation, the jury deemed the prosecution’s case to be not proven. Eleven of the jurors were Anglican; the twelfth, William Avery, was a Baptist: he appears to have been one of the holdouts who had initially favored conviction when the jury began their discussions.7 When the verdict was announced, the hall erupted in shouts so loud ‘that one would have thought the Hall had cracked’.8 Celebratory bonfires burned that night in London and were soon lit elsewhere as news of the verdict spread. The unexpected outcome of the trial threw the king’s affairs into disarray. One well-placed observer reported that James said ‘this bussiness of the bishops was the greatest blow’ he had received since he ‘came to the Croun [Crown]’. The governor of York, who was visiting London at the time, noted that the king seemed ‘disturbed’.9 The king’s advisers debated how to respond. One possibility was to call the seven bishops before the Ecclesiastical Commission. This much-reviled body had been revived by James in 1686 and tasked with supervising ecclesiastical affairs. It had been the mechanism for some of the most controversial measures of James’s brief reign, including the ejection of the fellows of Magdalen College, Oxford, for refusing to elect a royal nominee as Mark Goldie, John Spurr, Tim Harris, Stephen Taylor, Mark Knights and Jason McElligott (eds), The Entring Book of Roger Morrice, 1677–1691 (7 vols, Woodbridge, 2007–9), IV, 285; Sir Robert Southwell to Lord Weymouth, 20 June 1688, Longleat House, Thynne MSS, vol. 15, fol. 245; CSPD, James II, 1687–9, p. 225. 7 For these and other details of the proceedings, see ST, XII, cols. 183–521; Sowerby, Making Toleration, pp. 179–91. 8 Samuel Weller Singer (ed.), The Correspondence of Henry Hyde, Earl of Clarendon (2 vols, London, 1828), II, 179. 9 James Rivers to [Hans Willem Bentinck], 2 July 1688, PwA 2176, p. 2, Nottingham University Library [hereafter NUL]; Andrew Browning (ed.), Memoirs of Sir John Reresby, rev. Mary K. Geiter and W. A. Speck (London, 1991), p. 501. 6

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their president.10 Rumours spread widely that the Commission would soon move against the bishops directly, but if this option was ever considered, it was swiftly rejected.11 One observer alleged that this course of action was not viable given that the bishops would likely refuse to recognize the legality of the Commission and would appeal to the high courts for relief.12 It is also possible that the king, having witnessed the growing popularity of the bishops, dared not inflame the situation by targeting them again for prosecution.13 Another rumoured possibility was that the bishops’ lawyers would be prosecuted, presumably for questioning the royal dispensing power in their arguments during the trial. This option, if it was ever contemplated, was also rejected.14 The king held a meeting of his privy council on 6 July 1688 to announce his response to the verdict. He requested that the members of the Ecclesiastical Commission inquire as to whether the bishops of England and Wales had distributed his Declaration for Liberty of Conscience, as his order required, and whether the clergy had read the Declaration aloud in their churches. The Commission was also instructed to ascertain whether the clergy who failed to read the Declaration had done so because their bishop had failed to order it read, or whether they had disobeyed the orders of their diocesan, in which case they could be held to account. The king instructed the Commission ‘to proceed against’ the disobedient clergy ‘for their default’.15 The clear implication was that the refractory clergy would be punished in some way, perhaps by suspension, along the lines of the controversial punishment meted out by the Commission to the bishop of London in 1686 after he had refused to obey a royal order to suspend John Sharp, rector of St. Giles-in-the-Fields, for preaching an anti-Catholic sermon. The clergy who had not received the Declaration from their diocesan would presumably have been held exempt from any penalties. This would have put about half of the more than nine thousand parish clergy See J. P. Kenyon, ‘The Commission for Ecclesiastical Causes 1686–1688: A Reconsideration’, Historical Journal, 34 (1991), 727–36. 11 George Agar Ellis (ed.), The Ellis Correspondence (2 vols, London, 1829), II, 26; Robert Yard to marquis d’Albeville, 3 July 1688, Albeville MSS, Lilly Library, Indiana University; ‘Memoires of William Westby’, V.a.469, fol. 29v, Folger Shakespeare Library [hereafter FSL]; James Fraser to Sir Robert Southwell, 3 July 1688, V.b.287, no. 76, FSL; newsletter for 7 July 1688, Sloane MS 3929, fol. 70, BL; newsletter from Whitehall sent to Edmund Poley, 6 July 1688, OSB MSS 1, box 2, folder 85, Beinecke Library, Yale University; [J. Hill] to [Sir William Trumbull], 22 July 1688, D/ED/C32, Berkshire Record Office; Robert Sclater to Edward Parker, June 1688, DD/B/85/9, Lancashire Record Office; HMC, Portland, III, 414; HMC, Kenyon, p. 192. 12 James Rivers to [Hans Willem Bentinck], 2 July 1688, PwA 2176, p. 2, NUL. 13 For signs that the king regretted his decision to prosecute the bishops, see Singer (ed.), Correspondence of Clarendon, II, 180; Browning (ed.), Memoirs of Reresby, p. 499; J. S. Clarke (ed.), The Life of James the Second (2 vols, London, 1816), II, 158. 14 Nath. Gerrard to Edward Norton, 4 July 1688, Add. MS 34487, fol. 9, BL. 15 Entring Book of Roger Morrice, IV, 296; letter of William Blathwayt, 7 July 1688, MS Carte 130, fol. 24, Bodleian Library. 10

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in England and Wales in jeopardy, since the Declaration had been distributed by ecclesiastical authorities in about eleven or twelve of the twenty-six dioceses, including the sizeable dioceses of York and Lincoln.16 The Commission met six days later and ordered the chancellors and archdeacons of the Church of England to return to them by 16 August the names of all the readers and non-readers of the Declaration.17 The king also proceeded to remodel the law courts, ejecting from King’s Bench Richard Holloway and John Powell, the two justices who had favoured the bishops’ cause during the proceedings. At the same time, he removed one of the Court of Exchequer justices, Christopher Milton, granting him leave to retire on a full salary due to old age and infirmity.18 He added three new justices: Charles Ingleby, a Catholic; Robert Baldock, an Anglican; and John Rotherham, a Presbyterian.19 These and the nine other high court justices were sent as usual on the assize circuits in late July and August 1688. Before their departure, the king gave them a set of politically charged instructions. He urged them to use their ‘uttmost Endeavours to satisfye all Persons That the late Proceedings against the Bishops was not in the least intended upon the acco[un] t of their Religion’. The justices should instead contend that the bishops had been prosecuted solely for questioning the king’s authority. He also instructed the judges to proceed with ‘all Severity’ against those who had participated in any ‘Riotts Routs and Unlawfull Assemblies either by pr[e]tence of Bonfires or otherwise’ during the celebrations that followed the bishops’ acquittal.20 (In the end, few cases were prosecuted against those who had lit celebratory bonfires.) That summer, the chancellors and archdeacons of the Church of England debated how to respond to the Ecclesiastical Commission’s order requiring them to submit the names of noncompliant ministers. It soon became clear that many of the twenty-six chancellors and sixty archdeacons were planning on defying the Commission.21 Meanwhile, those few officials who sought to make a return were faced with rampant obstruction. The chancellor of the diocese of Lincoln, Sowerby, Making Toleration, p. 166. Minute Book of the Commission for Ecclesiastical Causes, MS Rawl. d.365, fol. 31r–v, Bodleian Library; London Gazette, no. 2364 (12–16 July 1688). 18 Publick Occurrences Truly Stated, no. 21 (10 July 1688); ‘Memoirs of William Westby’, V.a.469, fol. 29v, FSL; John Horton to Viscount Hatton, 7 July 1688, Add. MS 29563, fol. 215, BL. For Westby’s allegation that Milton was a Roman Catholic, see his ‘Memoirs’, V.a.469, fol. 2, FSL. 19 Lord Braybrooke (ed.), The Autobiography of Sir John Bramston (London, 1845), p. 311; Barrillon to Louis XIV, 9/19 July 1688, Correspondance Politique, Angleterre [hereafter CPA], vol. 166, fol. 51v, Archives des Affaires Étrangères, Paris; HMC, Le Fleming, p. 212. 20 CSPD, James II, 1687–9, p. 235; Ellis Correspondence, II, 55; Miscellaneous State Papers, MS Rawl. a.289, fols. 129v–130, Bodleian Library. Note that the copies of the instructions in MS Tanner 28, fol. 136, Bodleian Library and Add. MS 32523, fol. 54, BL are incomplete. 21 Newsletter to Lord Herbert of Cherbury, 24 July 1688, TNA, PRO 30/53/8, no. 68; letter to earl of Suffolk, 25 July 1688, Add. MS 34487, fol. 17, BL. 16 17

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for example, struggled to get adequate responses from his six archdeacons. One of the six was the archdeacon of Buckingham, who was non-resident and living in Leicestershire at the time. The archdeacon attempted to comply with the chancellor’s order, sending a letter to his deputy commanding him to collect the names of the readers and non-readers. But the deputy ‘insolently and contemptuously’ refused to obey, arguing that the order ‘concern[e]d him not neither could hee doe it with safety’. By 13 August, three days before the reports were due, the chancellor of Lincoln had received only one complete report, from the archdeaconry of Bedford, plus an incomplete report from the archdeaconry of Leicester. He had received nothing at all from the other four archdeaconries, including Buckingham.22 The bishop of Durham, by contrast, had more success. He held a visitation of his diocese, interrogating each clergyman in turn about whether he had read the Declaration. The bishop’s vigour enabled the archdeacon of Durham to make a more or less complete return.23 The bishop of Durham was an exception; in most places, obstruction was the rule. All of the churchwardens of Oxfordshire were summoned to a meeting in Oxford to give in their returns, but it is not clear who had summoned them, as the chancellor of the diocese failed to attend the meeting and none of their reports were taken.24 In seven dioceses scattered through England and Wales, some returns were made: these were Rochester, Norwich, Lincoln, York, Durham, Chester, and St. David’s. But in many cases these returns were incomplete.25 The other nineteen English and Welsh dioceses sent no returns at all. Many chancellors and archdeacons did not even bother to offer excuses for their noncompliance. Some claimed that they had no legal basis to interrogate their churchwardens outside of the usual visitations, which happened only twice a year.26 Meanwhile, one of the members of the Ecclesiastical Commission, the bishop of Rochester, submitted a letter of resignation to avoid having to sully himself with the

William Foster to earl of Huntingdon, 13 Aug. 1688, HA 3274, Huntington Library, San Marino, CA; see also John Gery to earl of Huntingdon, 12 Aug. 1688, HA 3993, Huntington Library. 23 J. C. Hodgson (ed.), ‘Mark Browell’s Diary’, in North Country Diaries (Second Series), Surtees soc., vol. 124 (Durham, 1914), 186; George Ornsby (ed.), The Remains of Denis Granville, Surtees soc., vol. 37 (Durham, 1860), 99 n.; George Ornsby (ed.), The Remains of Denis Granville, Surtees soc., vol. 47 (Durham, 1865), 147. 24 Ellis Correspondence, II, 117. 25 Adam Ottley to bishop of Hereford, 16 Aug. 1688, Ottley correspondence no. 1724, National Library of Wales [hereafter NLW]; letter to Thomas Felton, 18 Aug. 1688, Add. MS 34487, fol. 21, BL; Charles Hatton to Viscount Hatton, 16 Aug. 1688, Add. MS 29573, fol. 190v, BL; Narcissus Luttrell, A Brief Historical Relation of State Affairs (6 vols, Oxford, 1857), I, 455; Ellis Correspondence, II, 129–30. 26 ‘Memoirs of William Westby’, V.a.469, fol. 34, FSL; Entring Book of Roger Morrice, IV, 302; letter to Thomas Felton, 18 Aug. 1688, Add. MS 34487, fol. 21, BL; Publick Occurrences Truly Stated, no. 27 (21 Aug. 1688). 22

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proceedings.27 At their meeting on 16 August, the remaining commissioners beat a hasty retreat, adjourning until 6 December and ordering the chancellors and archdeacons to make their returns by then.28 The postponement was quite rightly seen as a capitulation, with one observer doubting that the body would take up the issue again.29 The fearsome Ecclesiastical Commission had been tamed. The royal machinery of inspection and control could not cope with the movement of resistance that the petition of the seven bishops had unleashed. That movement was strong enough to sweep along with it a number of Anglican clerics who had previously offered some support for the king’s religious policy. John Morton was archdeacon of Northumberland, rector of Sedgefield and chaplain to Nathaniel Crewe, bishop of Durham. After Crewe had distributed the king’s Declaration for Liberty of Conscience, Morton had refused to read it and, moreover, had refused to appear at the visitation where the bishop interrogated his clergy as to whether they had read it. To account for his absence, he argued that, as archdeacon of Northumberland, he was excused from appearing at the visitation, presumably on the tenuous grounds that anyone responsible for submitting a return to the Ecclesiastical Commissioners should not himself be interrogated. The bishop responded by firing Morton as his chaplain, not for his failure to read the Declaration, but rather for his failure to attend the visitation. 30 This punishment of a single contumacious clergyman appears to have given rise to the rumour that Crewe had ‘suspended several of his clergy, particularly Dr. Morton, his chaplain, for not reading the Declaration’. By some accounts, the bishop had suspended as many as fifty ministers. This story, which spread across the country, is not corroborated by contemporary sources from the diocese of Durham and was dismissed by Crewe’s eighteenth-century biographer. 31 The rapid Thomas Sprat, The Lord Bishop of Rochester’s Letter (n.p., [1688], Wing S5034), published on 23 Aug. 1688; for the date of this pamphlet, see William Longueville to Viscount Hatton, 23 Aug. 1688, fol. 242, Add. MS 29563, BL. 28 Minute Book of the Commission for Ecclesiastical Causes, MS Rawl. d.365, fols. 31v–32r, Bodleian Library. 29 Entring Book of Roger Morrice, IV, 302. The Commission was subsequently dissolved by the king on 5 October in a bid to bolster his sagging popularity. 30 Andrew Clark (ed.), ‘Memoirs of Nathaniel, Lord Crewe’, in Camden Miscellany: Volume the Ninth, Camden society, new series, vol. 53 (1893), 23. On Crewe’s electioneering in support of the king’s policies in 1688, see newsletter to Lord Herbert of Cherbury, 7 Feb. 1688, TNA, PRO 30/53/8, no. 57; Hodgson (ed.), ‘Mark Browell’s Diary’, p. 183. 31 Ellis Correspondence, II, 62, 105; Publick Occurrences Truly Stated, no. 23 (24 July 1688); Luttrell, Brief Historical Relation, I, 451; ‘Memoirs of William Westby’, V.a.469, fols. 31, 35, FSL; newsletter for 21 July 1688 and newsletter for 28 July 1688, Sloane MS 3929, fols. 74, 75, BL; Matthew Henry to Philip Henry, 6 Aug. 1688, Eng. lett. e.29, fol. 80, Bodleian Library; Clark (ed.), ‘Memoirs of Nathaniel, Lord Crewe’, p. 23. Crewe’s 27

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spread of this false report underscores the understandable jumpiness of many Anglicans about possible prosecutions. Morton’s defiant behavior in June and July 1688 represented a shift for a man who had previously been inclined to adopt a more conciliatory pose. He was congratulated by one of his fellow Anglicans, the dean of Carlisle, for his newfound boldness. The dean, William Grahme, urged a friend to tell Morton that ‘he has behaved himself like an honest, and a true Church of England man, his good conduct of late has atoned for his signing the addresse in which thing I myself was unluckily concern’d but have repented of it, and I hope God and men have forgiven me’. 32 Grahme was likely referring to the address sent by the clergy of Durham to the king in May 1687. This address, while studiously refraining from endorsing James’s religious policy as a whole, had nevertheless thanked the king for his promise to protect the Church of England. Similar addresses were promoted by several loyalist bishops as a way of signaling the Church’s acquiescence to the king’s edict. 33 If, as Grahme’s letter appears to indicate, Morton had signed that earlier address, then his defiance of his bishop in June 1688 can be seen as an effort to retrieve his reputation. At least one bishop had similar misgivings about his earlier actions. Herbert Croft, the bishop of Hereford, had distributed the king’s Declaration in his diocese. At the time, he published a pamphlet justifying his decision to read the edict on the grounds that obeying a royal command to read a document aloud did not necessarily imply a positive assent to all of the ideas found within it.34 But after the trial of the bishops, he had second thoughts, telling a friend that he had been ‘very unfortunate in Dispersing the Kings Declarations’ and that he ‘had not the least intention of any unkindness to my Brethren in what I did’. He penned a dejected letter to the archbishop of Canterbury, stating that his only end in complying with the king had been to ‘preserve the Kings Favour towards us; and thereby the enjoyment of our Religion’. 35 Croft had attempted to paper over the divide between church and king, but his effort had dissolved into shreds. modern biographer also rejects the story: see C. E. Whiting, Nathaniel Lord Crewe, Bishop of Durham (1674–1721) and his Diocese (London, 1940), p. 177. 32 William Grahme to William Wilson, 10 Aug. 1688, MSS Hunter, folio 7, no. 182, Durham Dean and Chapter Library. 33 London Gazette, no. 2243 (16–19 May 1687); for the king’s promise to protect the Church of England, see James II, His Majesties Gracious Declaration to all his Loving Subjects for Liberty of Conscience (London, 1687, Wing J186), p. 2. On the loyalist addresses from the clergy, see Sowerby, Making Toleration, p. 35. 34 Herbert Croft, A Short Discourse Concerning the Reading of His Majesties Late Declaration (London, 1688, Wing C6976), pp. 5–6, 8–9; see also bishop of Hereford to James II, 6 June 1688, Ottley correspondence no. 1725, NLW; bishop of Hereford to James II, [6 June 1688], Add. MS 70113, unfoliated, BL. 35 Bishop of Hereford to Adam Ottley, 8 Aug. 1688, Ottley correspondence no. 1723,

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The recantation of Thomas Harriot represents a more unusual case. Harriot was a justice of the peace for Middlesex who had served on the jury that had acquitted the seven bishops. He seems to have been part of the majority of jurors who had favored acquittal right from the start of the deliberations, as his name was not mentioned in contemporary accounts of the holdouts. And yet, he later signed an address endorsing the king’s proposed repeal of the penal laws and Test Acts against religious nonconformity. The address was presented to the king in early July.36 A few days after signing the address, Harriot was sitting on the bench at Hicks Hall along with the other justices of the peace when he asked permission to speak. In his statement, he ‘utterly recanted and retracted’ his signing of the address, claiming that he had only signed it because some of the other justices had visited him ‘at a tyme when he was indisposed in body and minde’. He then ran out of the courtroom crying ‘God bless the King’.37 It is hard to discern any principled basis for Harriot’s inconstant conduct in 1688 – he first lined up against the king by acquitting the bishops, then made a seeming volte-face by signing a repealer address, before making another reversal by condemning it. His tergiversations caused him great distress, and presumably were a result of the contrary political pressures buffeting him. Despite the shifts of many Anglicans after the trial of the bishops from quiet disapproval of the king’s policies to open defiance, James nevertheless retained some support even in the summer of 1688. A series of squibs was published attacking the bishops, presumably printed with royal support. One criticized them for their ‘Mock Martyrdom’, describing their behaviour as a mimicry of suffering and ‘act[ing] it to a Farce’. Another insinuated that the bishops had been ‘Ambitious’ to be sent to the Tower, aiming to strike a pose of martyrdom so as to render themselves more popular.38 The second pamphlet was printed by George Larkin, a Baptist bookseller who was in receipt of royal funding.39 NLW; bishop of Hereford to archbishop of Canterbury, Aug. 1688, MS Tanner 28, fol. 167, Bodleian Library. 36 London Gazette, no. 2362 (5–9 July 1688). 37 Newsletter for 14 July 1688, Verney MS 15/26, Claydon House, Middle Claydon, Buckinghamshire. I would like to thank Noah McCormack for this reference. See also Ellis Correspondence, II, 56; and newsletter to countess of Suffolk, 17 July 1688, Add. MS 34487, fol. 15, BL. For evidence that ‘Justice Harriot’ and Thomas Harriot were one and the same, see John Jeaffreson (ed.), Middlesex County Records (4 vols, London, 1886–92), IV, 310. 38 The Clergy’s Late Carriage to the King, Considered (London, 1688, Wing C4647), p. 2; W. E., Melius Inquirendum: Or, An Impartial Enquiry into the Late Proceedings against the Bishops (London, 1688, Wing E43), p. 2; see also Three Doubts Proposed to the Reverend Bishops (London, 1688, Wing T1087), p. 3; A Letter from a Country Curate (London, 1688, Wing L1371), pp. 3–4; A Dialogue between the Arch-B. of C. and the Bishop of Heref. Containing the True Reasons Why the Bishops could not Read the Declaration (London, 1688, Wing D1326), p. 2. 39 John Yonge Akerman (ed.), Moneys Received and Paid for Secret Services of Charles II and

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These tracts were part of a larger publishing effort aimed at persuading Protestant nonconformists not to be swayed by the gentler tone that many leading Anglicans had adopted towards them. The seven bishops, for instance, had pledged in their petition to the king that their opposition to the royal Declaration did not stem from ‘any want of due tenderness to Dissenters, in relation to whom they are willing to come to such a Temper as shall be thought fit, when that Matter shall be considered and settled in Parliament and Convocation’.40 The archbishop of Canterbury opened up negotiations with some of the more moderate nonconformists over the summer of 1688, aiming at a possible relaxation of some of the strictures that had driven them out of the Church of England. These negotiations appear to have made considerable progress by the end of the summer.41 The Presbyterians, in particular, might have been open to ecumenical gestures such as these, given that many of them had never fully accepted their expulsion from the Church of England a quarter century earlier. It was unclear, however, whether the bishops’ offer of ‘due tenderness’ would extend to the more radical nonconformists; as a consequence, the Quakers, Baptists, Congregationalists and the more separatist-minded Presbyterians might have been less likely to throw in their lot with the churchmen. Among the bishops’ most incendiary critics was a Presbyterian, John Rotherham, the newly appointed baron of the Exchequer. Rotherham had attracted royal favour with his open support of the king’s campaign for the repeal of the penal laws and Test Acts. He had been recommended as a justice of the peace of Essex by the king’s agents in April 1688 and had served briefly as recorder of the borough of Maldon that spring. He took charge of the electoral preparations in the Essex borough in anticipation of the king’s planned parliament in autumn 1688. He had some experience in electoral organizing, having served as a Whig canvasser for the earl of Shaftesbury.42 His repealer credentials are evident from his subsequent behaviour as a high court justice. While on circuit in Berkshire, he urged the grand jury at Wallingford assizes to ‘be for takeing off the Test and Penall lawes or for choosing such Members for James II, Camden Society, old series, vol. 52 (London, 1851), 213. Melius Inquirendum was printed for G. L., or George Larkin, at the Two Swans (Larkin’s shop outside Bishopsgate). On Larkin, see Sowerby, Making Toleration, pp. 38–9. 40 Gilbert Burnet, A Collection of Papers Relating to the Present Juncture of Affairs (London, 1688, Wing C5169A), p. 1; see also An Answer to a Paper Importing a Petition of the Archbishop of Canterbury, and Six Other Bishops (London, 1688, Wing C506), pp. 6, 17–19. 41 Sowerby, Making Toleration, pp. 173–6. 42 Sir George Duckett (ed.), Penal Laws and Test Act: Questions Touching their Repeal Propounded in 1687–8 by James II (2 vols, London, 1882–83), I, 405, 410; Autobiography of Bramston, pp. 304, 311; Maldon Courts of Record Book, 1681–1692, entry for 7 Feb. 1688, D/B/3/1/14, Essex Record Office; Maldon Book of Sessions and Assemblies and Other Courts, 1678–1696, entries for 16 Jan. 1688 and March 1688, D/B/3/1/23, Essex Record Office; CSPD, Charles II, October 1683–April 1684, p. 9; J. R. Jones, ‘James II’s Whig Collaborators’, Historical Journal, 3 (1960), 69.

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the next Parliament that would be for it’.43 He was open in his religious nonconformity, taking with him on circuit the Presbyterian minister Daniel Burgess to serve as his chaplain and preach along the route.44 Rotherham criticized the seven bishops in his opening charges at the assizes in Wallingford, Oxford and Gloucester in late July and early August 1688. In these speeches he went well beyond what the king had recommended, casting aspersions on the bishops’ characters and even on their grammar. At Wallingford he called them ‘Blockheads, noe Gramarians and that they wrote false Engl[ish] in their Petition’.45 At Gloucester he charged that the petition of the bishops had been ‘High Treason or little lesse’.46 Rotherham’s critiques appear to have stemmed from his dislike of the penal laws against nonconformity; he described the Church of England as a ‘cruel and bloody Church’ that had long persecuted the nonconformists and was only now coming to appreciate how it felt to be persecuted. At Oxford he reflected on the Anglican ministry with standard anticlerical rhetoric, falling ‘upon the debaucheries of the clergy, how they run after vice, and in the midst of their laziness eat up the fat of the land’.47 Rotherham’s speeches were widely reported, with one Anglican marveling at the ‘excesses’ to which he had ‘flown’.48 At Shrewsbury the grand jury sought to retaliate against him at the assizes: according to one account, they presented him for having attended a conventicle; according to another account, they would have done so had they been able to prove it.49 Other judges also criticized the bishops, though in less strident tones. Robert Baldock, the new justice of King’s Bench, had been one of the prosecutors of the bishops. He argued at Bristol assizes that the bishops had done ‘a very unwarrantable thing to proceed in a way of a seditious Libell’. Their choice of language had been, in his view, excessively bold and ‘ill advis’d’, especially their decision to characterize the king’s dispensing power as ‘illegal’, which indeed they had

John Verney to Ralph Verney, 8 Aug. 1688, Claydon House letters, Mic M/636, reel 42, BL. 44 Ellis Correspondence, II, 101; Richard Lapthorne, The Portledge Papers, ed. Russell Kerr and Ida Coffin Duncan (London, 1928), p. 41; Entring Book of Roger Morrice, IV, 299; HMC, Portland, III, 415; newsletter of 4 Aug. 1688, Sloane 3929, fol. 78, BL. 45 John Verney to Ralph Verney, 8 Aug. 1688, Claydon House letters, Mic M/636, reel 42, BL; see also John Gutch (ed.), Collectanea Curiosa (2 vols, Oxford, 1781), I, 435. For the dates of the assizes, see London Gazette, no. 2359 (25–28 June 1688). 46 [Dr R. Taylor] to Arthur Charlett, 5 Sept. 1688, MS Ballard 35, fol. 46, Bodleian Library. 47 Gutch (ed.), Collectanea, I, 436; Ellis Correspondence, II, 101. For more examples of anticlerical rhetoric directed at the bishops, see Sowerby, Making Toleration, pp. 175, 331–2. 48 Dr William Wake to Arthur Charlett, 11 Aug. 1688, MS Ballard 3, fol. 20, Bodleian Library. 49 John Gadbury to Sir Robert Owen, 22 Sept. 1688, Brogyntyn PQN3/2/28, NLW; [Dr R. Taylor] to Arthur Charlett, 5 Sept. 1688, MS Ballard 35, fol. 46, Bodleian Library. 43

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done.50 The Anglican justice Richard Heath told the grand jury at Northampton that ‘the Bishops were guilty of a factious and seditious Libell, but were so crafty, as to take care, there should not be evidence against [them]’.51 The Catholic justice Richard Allibone was said to have declaimed with ‘vehemence … against the Bishops in his charges to the Juries’. The one charge of his that has survived, however, is fairly moderate in tone, hewing closely to the king’s instructions in contending that the bishops had been prosecuted for their disloyalty rather than for their religion. Allibone did, however, criticize the bishops for petitioning the king about government affairs, suggesting that any such petition constituted a ‘Libel, and [was] of bad consequence’.52 Some lower officials joined in with similar critiques. William Rogers, a Roman Catholic justice of the peace in Gloucestershire, was chair of the quarter sessions at Wotton-under-Edge in July 1688. He took the opportunity to make ‘a large and sharp excursion against the B[isho]pps lately Tryd’, calling them ‘factious B[isho]pps’ and claiming that they had been ‘cleared by a packt Jury’.53 The grand jury at the assizes in Oxford presented an ‘abhorence’ of the petition of the seven bishops. The jurors had been chosen by the Catholic sheriff, Sir Henry Browne, who had impanelled ‘a Jury of almost all Papists’.54 At Middlesex assizes, the commissary-general of the army, an Anglican named John Shales, served as foreman of the grand jury and promoted an address of ‘abhorrance to the Petition of the Bishops’. He succeeded in gaining the signatures of seven jurors, but failed to gain the assent of the other thirteen.55 Elsewhere such addresses of abhorrence were proposed but not signed: at Winchester, for instance, one was rejected by a grand jury that appears to have been largely Anglican.56 These addresses were uncommon and, of the few that appear to Undated newsletter, c. Aug. 1688, Thynne MSS, vol. 24, fol. 59r–v, Longleat House, Warminster, Wiltshire. 51 G. S. to James Harrington, 28 July 1688, Add. MS 36707, fol. 38, BL; see also Gutch (ed.), Collectanea, I, 435; Henry Hunloke, George Vernon and Thomas Gladwin to earl of Huntingdon, 4 Aug. 1688, HA 6950, Huntington Library. 52 Ellis Correspondence, II, 138; MS Tanner 28, fol. 138v, Bodleian Library. 53 Sir Robert Southwell to Lord Weymouth, 21 July 1688, Thynne MSS, vol. 15, fol. 251v and same to same, 10 Aug. 1688, fols. 263v–264, Longleat House. On Rogers’ Catholicism, see Duckett (ed.), Penal Laws, I, 268; John Fendley, ‘William Rogers and his Correspondence’, Recusant History, 23 (1997), 291–2. 54 Newsletter to Sir Robert Owen, 4 Aug. 1688, Brogyntyn PQN3/1/18, NLW; G. S. to James Harrington, 28 July 1688, Add. MS 36707, fol. 38, BL; John Miller, Popery and Politics in England, 1660–1688 (Cambridge, 1973), p. 220n.; see also John Verney to Ralph Verney, 9 Aug. 1688, Claydon House letter, Mic M/636, reel 42, BL. 55 Newsletter to countess of Suffolk, 12 July 1688, Add. MS 34487, fol. 11, BL; on Shales, see Charles Dalton (ed.), English Army Lists (6 vols, London, 1892–1904), II, 28, 46, 89, 137, 178; III, 99. 56 Ellis Correspondence, II, 108–9; see also Dr George Hickes to Arthur Charlett, 8 Aug. 1688, MS Ballard 12, fol. 39, Bodleian Library; Entring Book of Roger Morrice, IV, 273. See also the failed effort of the Catholic admiral, Sir Roger Strickland, to get an address of 50

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have been sent up to the king, none were published in the London Gazette. Presumably it was felt that publishing a few such addresses would only serve to highlight their rarity, given that previous loyalist campaigns had resulted in the publication of dozens of addresses in the Gazette. Most of the grand juries at the county assizes across England and Wales in the summer of 1688 were disinclined to criticize the bishops, with many offering support for the bishops’ cause by refusing to find true bills against those who had been indicted for lighting bonfires in celebration of the bishops’ acquittal, returning the indictments ignoramus instead.57 * * * Given the sharp feelings on both sides, it is no surprise that clashes between the supporters and critics of the bishops led to violence. At the army camp on Hounslow Heath in early July, an Irish army captain came into a tent and found a group of men ‘drinking the Bish[o]ps health’. The captain ‘fell a swearing at them and can’d [caned] some of them’. One of the assembled soldiers called the captain a ‘popish Curr’ and stabbed him to death.58 In another case at Hounslow Heath, an Irish soldier at the camp pressed his tent companion to drink ‘damnation to the Bishops’ and murdered him when he refused to do so. The soldier was later executed for his crime.59 In York, a similar altercation was bloody but not fatal. A Roman Catholic painter, named by one source as ‘Mohune’ and another as ‘Morphew’, was beaten by an army officer for drinking a toast that was described alternately as ‘confusion to the bishops’ or ‘confusion to those who did not read his Majesty’s declaration’.60 All of these cases followed a similar pattern in that they involved a Catholic, a Protestant and violence mediated by the consumption of alcohol. In an account of a fourth violent altercation, the religion of the combatants was not stated. At a tavern in London in early June a group of men were drinking when one of them began a health to ‘the damnation or confusion of the Bishops’. An attorney named Pegg refused to drink the health and a quarrel broke out. Bottles and glasses were thrown

abhorrence signed by captains of the fleet: newsletter to Lord Herbert of Cherbury, 21 July 1688, TNA, PRO 30/53/8, no. 67. 57 Browning (ed.), Memoirs of Reresby, p. 502; Luttrell, Brief Historical Relation, I, 450; Entring Book of Roger Morrice, IV, 297–8; G. S. to James Harrington, 28 July 1688, Add. MS 36707, fol. 38, BL; newsletter to countess of Suffolk, 12 July 1688, Add. MS 34487, fol. 11v, BL; Sir Robert Southwell to Lord Weymouth, 21 July 1688, Thynne MSS, vol. 15, fol. 251v, Longleat House; John Lowther, Viscount Lonsdale, Memoir of the Reign of James II (York, 1808), p. 32. 58 Nath. Gerrard to Edward Norton, 12 July 1688, Add. MS 34487, fol. 13, BL. 59 Newsletter to countess of Suffolk, 12 July 1688, Add. MS 34487, fol. 11, BL; ‘Memoirs of William Westby’, V.a.469, fol. 30, FSL; Lapthorne, Portledge Papers, p. 39. 60 Entring Book of Roger Morrice, IV, 288; HMC, Portland, III, 411.

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and the attorney was ‘perswaded to leave the Roome’ to quiet matters. He was then pursued by a Mr Hamilton, who gashed him with a blade and killed him.61 Other cases of violence involved larger groups. When news of the acquittal of the bishops arrived at Kendal in Westmorland, a number of men took it upon themselves to go to the parish church and ring the bells in celebration. A Roman Catholic justice of the peace, Thomas Braithwaite, ordered a constable, Henry Hunter, to go to the church to stop the ringing, sending along one of his servants, Martin Dixon, as reinforcement. Dixon appears to have been accompanied by his friend, John Cayster. The men arrived at the church and commanded the bell-ringers to stop, by order of the mayor of the town and Justice Braithwaite. The ringers responded that ‘they cared not eith[e]r for Mr. Major or Mr Brathw[ai]t[e]’. In the scuffle that followed, the constable was thrown to the ground. The ringing was halted, but later that day Cayster was set upon by a gang who beat and bloodied him. Braithwaite and Dixon arrived on the scene and intervened to save him, after which several of the assailants were bound over to the next quarter sessions.62 On the night after the verdict was announced, crowds built bonfires throughout London, including several in front of the homes of leading Catholics. When one was built outside the home of the Catholic earl of Salisbury, some of his servants fired at the crowd. An unfortunate Mr Coggs was killed by an errant bullet; he was a beadle of the Duchy Liberty who had been summoned to put out the fire and restore order.63 Another Catholic, the recent convert Sir Nicholas Butler, drew a sword and menaced a group of boys who had built a fire outside his house. The boys ‘call’d him Quack’ and threatened him, making him ‘glad to take shelter againe’.64 Conflicts over the bonfires served as contests over public space. Both Sir Nicholas Butler and the earl of Salisbury’s servants were offended not just by any given bonfire, but by one built deliberately in front of their dwellings, in an area that was ostensibly public but over which they aspired to wield influence. Disputes elsewhere pitted local authorities against determined crowds. At Exeter, three Presbyterian town councilors attempted to extinguish the bonfires that had been lit to celebrate the bishops’ acquittal. They called out the city’s fire Newsletter for 16 June 1688, Sloane MS 3929, fol. 63v, BL. Depositions of Henry Hunter, Martin Dixon and John Cayster, 6 July 1688, WDRY/5/3221 and James Simpson to Sir Daniel Fleming, 14 July 1688, WDRY/5/3225, CAS (K). 63 HMC, Portland, III, 414; James Rivers to [Hans Willem Bentinck], 2 July 1688, PwA 2176, p. 7, NUL; Nath. Gerrard to Edward Norton, 4 July 1688, Add. MS 34487, fol. 9, BL; Lapthorne, Portledge Papers, pp. 37–8; Middlesex Sessions Papers, MJ/ SP/1692/12/003, London Metropolitan Archives. 64 Margaret Maria Verney (ed.), Memoirs of the Verney Family from the Restoration to the Revolution (4 vols, London, 1899), IV, 431; see also newsletter for 7 July 1688, Sloane MS 3929, fol. 69v, BL; Entring Book of Roger Morrice, IV, 297. On Butler’s Catholicism, see Sowerby, Making Toleration, p. 176. 61

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engines; residents of the city responded by throwing sticks from their windows at the firemen. In the riot that followed, the mayor of the town was nearly stabbed and the high sheriff was punched.65 A bonfire also led to violence in Lichfield, where several leading men had gathered on the evening of 18 June at a tavern called the Blackmoor’s Head. The group included a Roman Catholic justice of the peace named Robert Howard and a bailiff named ‘Hammon’, who was most likely James Hamond, a justice of the city who seems to have been Anglican.66 News had arrived at Lichfield that the bishops had been freed from the Tower of London, and some of the citizens, taking that to mean that the bishops had been acquitted, had begun to celebrate with bell ringing and bonfires. One such fire was lit outside the Blackmoor’s Head. Howard, Hamond and their friends emerged from the tavern, swords drawn, determined to put out the flames. They were met by a crowd armed with ‘spitts and staves and what[ever] they could gett’. One man, seeking to extinguish the fire, was pushed into it, though he managed to emerge unscathed. The two parties soon fell to blows, and it became clear that the defenders of the bonfire were better equipped for the affray. Howard took a sharp blow to the face. The justices and their companions retreated back into the tavern. Departing the scene, they grabbed one of the bonfire-men and took him with them, shutting the doors behind them. They forced the man to kneel on the floor of the tavern and drink a health to the king. The man did so ‘very willingly, and then cal’d for more drink and tould them he would drink a health too, to the honest B[i]sh[ops]’. One of Howard and Hamond’s men responded by threatening to murder him. The man on the floor said that ‘it would be small credit for them to Kill a naked [i.e., unarmed] man’. Meanwhile, the crowd outside had noticed that one of their own was missing and began to break the windows of the tavern, threatening to tear down the building if their compatriot was not freed. The man was permitted to depart and the bonfire continued to blaze.67 The most noteworthy aspect of the Lichfield affray was the desire to compel a certain kind of speech. If the justices and their companions could not silence the crowd outside, they sought at least to negate one part of the whole, by forcing one of the bonfire-men to drink a health to the king. The desire to compel a form of words was also seen in other violent altercations over the giving of toasts for or against the bishops. When, in a London tavern, Pegg the attorney had refused to drink damnation to the bishops, a Mr Hamilton had Jonathan Barry, ‘Exeter in 1688: The Trial of the Seven Bishops’, in Devon Documents, ed. Todd Gray (Tiverton, 1996), pp. 9–11. 66 On Howard, see Duckett (ed.), Penal Laws, II, 205, 289; CSPD, James II, 1687–9, p. 141; returns of Roman Catholics in Staffordshire, Main Papers, MS 321, fols. 125–7, House of Lords Record Office. On Hamond, see Hall Book of Lichfield, 1679–1732, D77/5/1, fols. 14r–v, 16v, 275v, 276, Lichfield Record Office. 67 John Mainewaring to Lord Weymouth, 23 June 1688, Thynne MSS, vol. 28, fol. 221r–v, Longleat House; for another reference to this episode see CSPD, James II, 1687–9, p. 225. 65

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silenced him by killing him. Such episodes of retribution aimed to cancel out disunity by compelling everyone in a given place to share the same toast and to voice the same sentiment. Another episode of compelled speech occurred on the streets of London on the night of the bishops’ acquittal. A crowd had gathered in the Strand near Beaufort Street to light a bonfire. A constable, several watchmen and a beadle named Madson arrived to put out the flames. At the same time, a coach was rolling by. The crowd insisted that the coachman must ‘pull off his Hat, and Cry, God Bless the Bishops!’ The constable ordered the coachman to ‘go on about his Business’. The crowd, infuriated by the constable’s interference, began to attack the watchmen, who repelled them successfully and forced them out of the Strand. Some of the crowd returned with pistols and fired on the watch. Madson was shot once in the chest; a report published three days later noted that he was on the verge of death.68 As in other similar episodes, an effort to compel a certain form of words had led to violence. It seems unlikely that the coachman was the first person that the crowd in the Strand had insisted must cry ‘God Bless the Bishops’. But perhaps he was one of the first to refuse, and his unusual defiance had provoked the crowd. If he had agreed to say the words, then there would have been no escalation. Instead, the civic authorities were put in the position of telling the crowd to back off from their implied threat of violence. When the constable sided with the coachman, the crowd turned on the constable. The contest, then, was over whether the crowd could legitimately compel a coachman to say a particular phrase. The watchmen refused to defer to the crowd’s implicit evocation of the authority of the Protestant nation as a justification for its demands. On the streets of London and elsewhere, the desire for unity became a source of vexation. In many cases, responses to the trial of the seven bishops followed religious lines, dividing Catholics from Protestants. Indeed, the willingness of so many Catholics to criticize the seven bishops suggests that English Catholics may have been somewhat less skeptical of James II’s policies than many historians have alleged.69 But some of those who criticized the bishops were Protestants, with a Publick Occurrences Truly Stated, no. 20 (3 July 1688), emphasis in original. On the supposed wariness of English Catholics regarding James II’s policies, see Macaulay, History of England, II, 704–18, 980–2; Trevelyan, English Revolution, pp. 59–60; Turner, James II, pp. 325, 351–2; David Ogg, England in the Reigns of James II and William III (Oxford, 1955), pp. 164–5; J. P. Kenyon, Robert Spencer, Earl of Sunderland, 1641–1702 (London, 1958), pp. 122, 125, 145–6, 195; J. R. Jones, The Revolution of 1688 in England (London, 1972), pp. 33–4; Miller, Popery and Politics, pp. 223–5; Pincus, 1688, pp. 138–42; Gabriel Glickman, The English Catholic Community 1688–1745 (Woodbridge, 2009), pp. 40–1. Much of this scholarship is based on contemporary reports of factions among Catholics at court, where leading Catholics were divided over how quickly James should move with his toleration campaign. For a discussion of the breadth of Catholic support for James’s religious policies, especially outside court circles, see Sowerby, Making Toleration, pp. 131, 314. 68 69

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Presbyterian, John Rotherham, among the most vehement. Some Protestants, animated by anticlerical thinking or ultra-loyalist motives, criticized the bishops after their acquittal. Even in the summer of 1688, when the king was facing down a movement of opposition that had grown too large to be easily extinguished, he still possessed some reservoirs of support. Despite the occasional descent into violence, the battles of the summer of 1688 were in most cases wars of words. The contest was largely about representation, with the king’s supporters and his opponents sparring over who could claim to speak for the nation. Gilbert Burnet was correct to argue that the Church of England needed to present a united front during the crisis in order to prevent the king from claiming that a loyalist rump of bishops and clergy represented the true Church.70 A standard mode of political rhetoric was to affiliate one’s own cause with a supposed national unity, while the cause of one’s opponents was deemed to be inspired by interlopers and foreigners. Allegiance to the seven bishops became a rallying cry that the king’s followers felt they had to oppose. The impulse towards consensus was alive in later Stuart England, but, as is often the case, true unity remained elusive.

Gilbert Burnet, Bishop Burnet’s History of His Own Time, ed. M. J. Routh, 2nd edn (6 vols, Oxford, 1833), III, 225. 70

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8 Revolutionary Justice and Whig Retribution in 1689 Mark Goldie

Transitional justice When revolutions happen, new governments confront the problem of what to do with the agents of the fallen regime. Justice and mercy make contrary demands. Justice impels condign punishment of the perpetrators of tyranny, while mercy points towards clemency and reconciliation. The former depends for its fervour on the politics of memory, the public vaunting of narratives of suffering at the tyrant’s hands; while the latter seeks oblivion, a plenary act of public forgetting, the drawing of a veil over things past. The clamourers for justice will suspect that the advocates for ‘mercy’ are driven less by charity than by protection of the guilty; while the party of mercy sees in ‘justice’ a desire for revenge and for rewards from the spoils of victory. Cutting across this tension is a third consideration, that of political prudence, which will probably cast its vote on the side of mercy, because the stability of the revolution depends upon appeasing the residually influential agents of the old regime, and upon seducing waverers into acquiescence, instead of alienating them and provoking counter-revolution. Furthermore, the functioning of the new regime may rely upon recruiting the experienced cadres of the old. In modern times, the jurisprudence and pragmatics of regime change have given rise to the public practice, and academic field, of ‘transitional justice’. The paradigmatic case is South Africa’s post-apartheid Truth and Reconciliation Commission, under which, with fine balance, the public narration of crimes was a precondition of mercy. The diverse patterns of transition in post-communist Eastern Europe – cadres sometimes wholesale dismissed, sometimes transmuted into servants of the new order – and in the post-Troubles transformation of Northern Ireland have generated substantial literatures, some juridical and philosophical, others in the form of ostracism

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through disclosure, or controversies concerning memory and forgetting. In each instance, there is the triad of voices, for retribution, mercy, and stability.1 A great deal of politics during 1689 was dominated by this triad. The Whigs pursued retribution and the Tories demanded amnesty. The king understood that preserving the new regime required conciliation, and, in 1690, his view prevailed. William III’s abrupt curtailment of retributivism and its advocates, and insistence on the passage through parliament of a statutory amnesty, was devastating for the Whigs. It kept them out of power until 1693–94, and it divided them. While Whig desire for revolutionary purity and the purging of backsliders scarcely ever dimmed, there did arise a new breed of pragmatic Whigs, ready to compromise as the price of high office. These came to be called the Junto Whigs. For them, it was better to take command of a compromised state than to remain in self-righteous marginality; better to protect the Revolution’s gains than to jeopardise them.2 But if some Whigs went back to Court, others remained of the ‘Country’, and some even became Jacobites, believing that the half-hearted Revolution betrayed Whig principles.3 A precondition of stability after both the Restoration of 1660 and the Revolution of 1688–89 was the legal nullification and official forgetting of past deeds, lest victors’ revenge produce a pogrom against ‘traitors’ and lest the monarch be deprived of the power to appoint ministers of talent and weight, whatever their pasts. In the former case an Act of Indemnity and Oblivion (1660) was passed and in the latter an Act of General and Free Pardon (1690), preventing prosecutions and disqualifications from office.4 In both cases, a few exceptions were made, thereby allowing a cathartic theatre of retribution while protecting everybody else. In 1660 it was primarily the regicides, those who had authorised Charles I’s execution, who were excepted, and, if alive, butchered for treason, or, if dead, dug up and defiled. In 1690 only members of James II’s inner circle were attainted; none was executed. In 1660 Charles II was, to royalists, shockingly forgiving of his father’s enemies, whom he took into office, showered with honours, and protected from suits for compensation. The royalists bleakly quipped that this meant indemnity for the king’s enemies and oblivion for his friends.5 In 1689–90 William was, to Whigs, no less shockingly The literature is substantial. See especially R. Teitel, Transitional Justice (Oxford, 2000); J. Elster, Closing the Books: Transitional Justice in Historical Perspective (Cambridge, 2004); N. Palmer, et al. (eds), Critical Perspectives on Transitional Justice (Cambridge, 2012); C. Murphy, The Conceptual Foundations of Transitional Justice (Cambridge, 2017); O. Simic (ed.), An Introduction to Transitional Justice (London, 2017). 2 The best survey remains J. H. Plumb, The Growth of Political Stability in England, 1675–1725 (London, 1967), and the best account of parliamentary politics H. Horwitz, Parliament, Policy, and Politics in the Reign of William III (Manchester, 1977). 3 See M. Goldie, ‘The Roots of True Whiggism, 1688–1694’, History of Political Thought, 1 (1980), 195–236; M. Goldie and C. Jackson, ‘Williamite Tyranny and the Whig Jacobites’, in Redefining William III, ed. E. Mijers and D. Onnekink (Aldershot, 2007). 4 Car II c.11; 2 W&M c.10 (also called the Indemnity Act or Act of Grace). 5 See H. Nenner, ‘The Trial of the Regicides: Retribution and Treason in 1660’, in 1

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forgiving of those complicit in the cruelties of the old regime. Lord Macaulay loftily dilated on the king’s nobility in ending ‘sanguinary proscription’ and a century of ‘alternate butcheries’.6 It is indeed true that after the Revolution England largely abandoned the practice of executing the politically defeated. Nobody understood better than William the vulnerability of his regime, at risk from France and Ireland and Scotland, from Jacobite counter-insurgency, and from the fragile allegiance of those stricken in conscience by the overthrow of the Stuart dynasty. A narrowly partisan and wholly Whig regime would have had limited chance of survival. Three developments over the course of 1689, instigated or tolerated by the king, profoundly dismayed the Whigs. First, he allowed Tories, even those in high office, publicly to affirm that they did not recognise the new monarch as de jure but merely as de facto, and he resisted Whig attempts to use oaths of allegiance as instruments for securing partisan definitions of citizenship. Second, he took into office leading agents of Charles II’s regime, whom the Whigs had expected to be annihilated, above all the trio of the earl of Danby (now marquis of Carmarthen), the marquis of Halifax, and the earl of Nottingham. Third, he undermined the Whig campaign of retribution, culminating in his dissolution of the Convention Parliament in February 1690 and the passage by a new parliament of the Act of Pardon. The second and third of these developments alerts us to the salience not only of ideology, in the sense of a contest over the theoretical foundations of the Revolution, but also to the politics of retribution, in which partisanship was mobilised through the dramatization of ancien regime martyrdom and the demonization of the Whig martyrs’ persecutors. To dwell, in this essay, on the search for justice for the victims of the Tory purges of the 1680s is to witness ‘Revolution principles’ personified in its patriot heroes.7 Whether in the contest over the grounds of allegiance or in the campaign of retribution, for the Whigs the aim was the same: to capture the meaning of the Revolution and to place Tories and Toryism beyond its pale. The Act of Pardon made just thirty-one exceptions, James II’s leading Catholic advisers and a handful of reviled Protestant officials who had administered the king’s schemes to the bitter end.8 Several had fled the country into Jacobite exile or been put into the Tower, such as the popish peers Melfort and Politics and the Political Imagination in Later Stuart Britain, ed. H. Nenner (Rochester, NY, 1997); M. Harrington, ‘Transitional Justice Theory and Reconciling Civil War Division in English Society, c.1660–1670’, in Civilians and War in Europe, 1618–1815, ed. E. Charters et al. (Liverpool, 2012); Elster, Closing the Books, pp. 49–51. 6 Lord Macaulay, The History of England (2 vols, London, 1889), II, 164. 7 On martyrdom and memory see: P. Karsten, Patriot Heroes in England and America (Madison, WI, 1978); L. G. Schwoerer, ‘William, Lord Russell: The Making of a Martyr, 1683–1983’, Journal of British Studies, 24 (1985), 41–71; J. Knott, Discourses of Martyrdom in English Literature, 1563–1694 (Cambridge, 1993); B. Worden, Roundhead Reputations: The English Civil Wars and the Passions of Posterity (London, 2001); M. Neufeld, The Civil Wars after 1660: Public Remembering in Late Stuart England (Woodbridge, 2013); and items cited below, nn. 17, 64. 8 W&M c.10. Those excepted from the indemnity are listed in M. Goldie, J. Spurr, T.

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Powis, the loathed Jesuit councillor Edward Petre, and the earl of Castlemaine, ambassador to the Holy See. In the parliamentary storms of 1689 not much was said about the papists: their ignominy was uncontentious. The Protestant Lord Chancellor George Jeffreys was listed, though by now dead: he served to channel national vilification. None of the Tories who had absented themselves from James’s government, or been pushed aside by it, for all that they had engaged in a vicious campaign to ensure that he came to the throne, was touched. The only senior statesman of Charles II’s last years proscribed was the earl of Sunderland, but he had converted to Catholicism and fled abroad; nor would his proscription stick, for, having reconverted, he insinuated himself back to England and became one of William’s covert advisers. The only figure of wide significance, who Whigs rejoiced to see in the list, was the master of Tory polemic and censorship, Sir Roger L’Estrange. As well as him, there was one group who also met Whig aspirations: several judges, besides Jeffreys, notably Sir Edward Herbert, Sir Thomas Jenner, and Sir Richard Holloway. But these names were present not for their role in Charles II’s treason trials against the Whigs, but for having ruled in favour of James’s dispensing power, thus authorising the intrusion of Catholics into office; and the Act barely touched them, for those who had not fled continued in legal practice or quiet retirement. The Act accorded with the Tory version of the Revolution: a reversal of the briefly aberrant popish insanity of King James, but not otherwise touching the personnel of the old regime. Their preferred tableaux of oppression were the Ecclesiastical Commission, its assault on Magdalen College Oxford, and the trial of the seven bishops, none dating earlier than 1686, and all putting the Church of England in the eye of the storm. About these incidents the Whigs had little to say. Fundamental to their reading of the Revolution was that tyranny had been as much Charles II’s as James II’s. The Whigs anathematised the entire programme that had captured the counsels of Charles II after 1675 and had underwritten the brutalities of the Tory Reaction of 1682–85. While the phrase ‘popery and slavery’ was axiomatic, and while belief in the veracity of a Popish Plot scarcely wavered, the Whig campaign was largely secular in tone, for the Tories whom they sought to indict were co-religionists, and the proceedings they wished to denounce took place in Protestant criminal courts and not in Jesuit consistories. The perversion of justice by prosecutors, judges, and juries during the Tory Reaction, and the placement of these phenomena at the heart of tyranny, and now of memory and indictment, was their threnody. The Whigs defined revolutionary virtue according to where you had stood in 1682–83, not in 1687–88.

Harris, S. Taylor, M. Knights, and J. McElligott (eds), The Entring Book of Roger Morrice (7 vols, Woodbridge, 2007–9), I, 550.

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Vindicating the Whig martyrs

As early as March 1689, King William urged the passing of an indemnity ‘with expedition’, for it ‘tends so much to union’. Fully one year later he exasperatedly reminded the following parliament ‘how often I have recommended’ an indemnity, which would ‘compose all differences’: debates on the matter ‘take up more of your time than can now be spared’.9 Progress had been arrested by Whig manoeuvres to negate indemnity by seeking to punish expansive categories of crimes and criminals. The matter had consumed an extraordinary amount of parliamentary time. Throughout those debates the Tories used the vocabulary of mercy. It was the word used by Sir Robert Cotton and Sir Christopher Musgrave. ‘Punish for the future, and pardon all that is past’, pronounced Sir John Lowther. Make examples only of papists and men of Jeffreys’ ilk; otherwise let ‘wisdom and charity’ prevail and avoid ‘the spirit of revenge’.10 The Whigs, by contrast, spoke of ‘justice’, which, at least sometimes, they elevated above revenge by invoking the scholastic principle of condignity, or the principle (later associated with Kant) that retribution is a declaratory process, a necessary affirmation that wrong had been done. The enunciation of wrong is part of the rule of right; silence is connivance; a sentence of guilt is necessary for vindicating the innocent. ‘Where mercy is to be showed, I shall be as forward as any man, but I think justice is necessary’, said John Hampden. It was not, said Thomas Papillon, a matter of ‘revenge’, but rather because we must ‘vindicate the nation’, a sentiment echoed by John Wildman: ‘it is natural to spare all, but … we must vindicate our country’s liberties’. Sir Walter Yonge insisted upon public recognition that ‘blood has been spilt’.11 Nonetheless, condignity mingled with a more acidic revenge. William Harbord called for the execution of several judges. Hampden spoke more raucously than most against Tory judicial ‘murder’ and ‘barbarity’: the ‘vipers’ in our bosom must be destroyed; there has been ‘blood no mortal man can forgive’; ‘if I forgive this, God will not forgive me’; natural justice demands reparations. In similar vein William Sacheverell pronounced, ‘when the law has been perverted … I would never forgive them’. Another said that ‘nothing washes away blood but blood’. Furthermore, insisted Wildman, the nation is unsafe while guilty men are at large: ‘those that have been the occasion of all this blood, I would have

CJ, X, 64, 349; LJ, XIV, 433–4; Anchitell Grey (ed.), Debates of the House of Commons, from the Year 1667 to the Year 1694 (10 vols, London, 1763), IX, 186; X, 2; H. C. Foxcroft, The Life and Letters of Sir George Savile, Marquis of Halifax (2 vols, London, 1898), II, 246. 10 Grey (ed.), Debates, IX, 319–22. 11 Grey (ed.), Debates, IX, 250, 319, 325, 380. 9

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such justice upon, as to procure our safety hereafter’.12 Bishop Burnet recalled that the ‘commonwealth party’ (by which he meant Whigs more vociferous than he) were ‘violent and implacable’ for revenge.13 For the Whigs, it was imperative to resist the Tories’ narrowing of Revolutionary chronology, by turning attention away from James’s Catholicising and towards Charles’s judicial despotism. John Hawles told the Commons that ‘the case of Magdalen College is but a trifle’, and Sir Thomas Littleton said that the clergy, who were ‘bashaws’ to Turkish tyranny until their own seminaries were threatened, had not lifted a finger until their precious Magdalen College was assailed. We must, asserted Paul Foley, encompass not just James’s regime but ‘the two last reigns’. Sir William Williams pronounced, ‘I cannot forget the parliament of 1680’, by which he meant the criminal subversion of the Whig Exclusion Parliament. Some spoke of the entire Restoration regime, starting in 1660. Sacheverell said that ‘we must look a great way backward’: the failure to set conditions on the Crown at the Restoration had been a disaster. Hugh Boscawen recited the early statutes of the Restoration, the Militia Act, the repeal of the Triennial Act, and the prolongation of the Cavalier Parliament for eighteen years without a new election.14 The parliamentary reporter Roger Morrice wrote off the whole of those ‘twenty-six years’ as an era of ‘notorious betrayers of religion, laws, liberties’ – he began the era with the Act of Uniformity of 1662.15 This was essentially the indictment of the Restored regime that had been set out in the Whigs’ earliest manifestoes, A Letter from a Person of Quality (1675), in which John Locke probably had a hand, and Andrew Marvell’s Account of Popery and Arbitrary Power (1677). Yet this programmatic rejection of the entire Restoration dimmed beside the visceral remembrance of the savagery of the Tory Purge of the early 1680s. What was sown by negligence in 1660 had been reaped in the last years of Charles II. The target, therefore, was ‘the reign of Toryism’ – the phrase is Morrice’s.16 The Whigs did not confine tyranny to monarchs: the Revolution had overthrown Tory tyranny. They wished to indict all the perpetrators of state terrorism of the period 1681–85, when, in the aftermath of Charles’s defeat of the attempt to exclude James from the throne, Whiggism had been crushed. Whigs had suffered with their lives on false charges of treason, or been savagely whipped or manacled in fetid dungeons, or stupendously fined for their supposed seditions, or driven into exile. In Whig polemic, the grisly poignancy of martyrdom was conjured in all its sanguinary glamour. Grey (ed.), Debates, IX, 280, 321–2, 325, 327, 549. H. C. Foxcroft (ed.), A Supplement to Burnet’s History of My Own Time (Oxford, 1902), p. 314. 14 Grey (ed.), Debates, IX, 33, 282, 322–3, 517; X, 83. 15 Goldie et al. (eds), Entring Book of Roger Morrice, V, 51, 66. 16 Goldie et al. (eds), Entring Book of Roger Morrice, V, 145. 12

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The list of victims was long.17 Lord William Russell had been executed in 1683 for his part in the Rye House Plot; and Algernon Sidney, for treasonable intent in the text of his unpublished Discourses Concerning Government (‘scribere est agere’, ‘to write is to act’, Judge Jeffreys had notoriously pronounced). The earl of Essex had died in the Tower awaiting trial – Whigs believed he was murdered. In the following year Sir Thomas Armstrong had been abducted in Holland, bundled back to England, and executed on the strength of an earlier conviction. The string of executions, on flimsy charges at perfunctory trials, had begun with that of Stephen College in 1681, his case removed from Whig London to Tory Oxford to ensure conviction for a treasonable ballad. It closed in 1685, when the City alderman Henry Cornish and the Whig physician Charles Bateman went to the gallows. John Hampden, tried twice for the same offence, and convicted of treason, was eventually pardoned. Titus Oates, the informer who had inflamed the Popish Plot investigations, was convicted of perjury, savagely flogged, and imprisoned until the Revolution. The author Samuel Johnson was convicted for seditious writing, degraded from the priesthood, flogged to within an ace of death, and jailed until the Revolution. The West Country had been drenched in blood in reprisals against the Monmouth Rebellion in 1685. Alice Lisle was beheaded for harbouring rebels and Elizabeth Gaunt burnt to death, the last women to be executed for treason. It is a tally that would permanently lodge in Whig remembrance, for murals of Lord Russell and Alice Lisle today adorn the Houses of Parliament. Nor was this all. A dozen City leaders were convicted for ‘riot’ for their conduct at an election. Fantastical sums were exacted from others to cripple them and cow others. Sir Samuel Barnardiston was fined £10,000, John Hampden £40,000, while a staggering £100,000 was levied on Thomas Pilkington; all of them were jailed. £30,000 was levied on the earl of Devonshire, while Thomas Papillon was sued for £10,000 for false arrest of a Tory Lord Mayor; he fled to Utrecht. Another City magnate, Sir Patience Ward, was convicted of perjury and likewise fled. Throughout 1689, the survivors advertised their sufferings, in print or as sworn witnesses before parliamentary committees. They petitioned for redress and sought writs of error in the courts, or statutory reversals. They wanted proclamations of their innocence, public office as their reward, and financial compensation. Figures like Titus Oates, a raucous self-publicist, expected vindication as the nation’s saviour. He was contemptuous of the modest pension provided by the king. Samuel Johnson brushed aside the offer of the deanery of Durham, expecting a bishopric.18 The state trials are listed in Goldie et al. (eds), Entring Book of Roger Morrice, I, 525–33; proceedings are in ST, vols 8–11. For those involved see R. L. Greaves, Secrets of the Kingdom: British Radicals from the Popish Plot to the Revolution of 1688–1689 (Stanford, CA, 1992); M. Zook, Radical Whigs and Conspiratorial Politics in Late Stuart England (University Park, PA, 1999); idem, ‘Violence, Martyrdom, and Radical Politics: Rethinking the Glorious Revolution’, in Politics and the Political Imagination, ed. Nenner. 18 On Johnson see M. Zook, ‘Early Whig Ideology, Ancient Constitutionalism, and the 17

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The scandal of the Purge was that the victims had not been covertly killed or thrown into jail without charge, but openly convicted in courts of law, with all the panoply of judges, counsel, and juries. As John Somers remarked, ‘murders and rapes are easily done, but it requires learning and invention to subvert laws and government’.19 Whigs routinely said that those executed ‘by colour of law’ were in fact ‘murdered’ and that the perpetrators were ‘murderers’. In saying so, they held that the personnel of those courts had, by acting unjustly, demitted from the office of magistracy and become hostes, enemies of mankind, against whom retribution might be exacted, in principle by anyone, on behalf of injured humanity. The case was eloquently expressed in an inflammatory speech by Hampden in November 1689. ‘When the laws are broke by the government, the people hath a right to do themselves justice. The consequence: he and six or more or sixteen or what number he pleaseth may execute that right. From hence, clear, that the government are the conspirators, and whoever they condemn, though by the laws in being, are murdered’. Hampden alluded here to his own membership of the Council of Six of 1682, which had conspired against King Charles, and which he now argued was ‘the foundation of this glorious revolution’.20 It is apparently the first recorded use of that term.21 The Whigs turned the Convention Parliament into a commission for truth and non-reconciliation, repeatedly calling witnesses to recount personal sufferings and legal perversions. As early as February 1689 the Lords opened an investigation into Essex’s death and arrested suspects. In March Lord Delamere reported concerning Russell’s case. That month a Commons committee invited complaints from the public from those who ‘seek redress of their injuries’.22 By May the Commons had drawn up a list of ten heads of crimes and misdemeanours not to be pardoned by an indemnity act; in June this became twelve; by late summer it had debated just three heads. The Whigs investigated judges, privy councillors, and customs and excise commissioners; they wanted lists of all privy councillors of Charles’s four last years, and all who had received secret service money since 1682.23 They attempted to except the hated Danby from the indemnity by disallowing royal pardons for persons impeached.24 In October Somers renewed the call for punishing the evil agents. ‘It is absolutely necessary that some should be punished … to justify without doors what we have done’. He said that categories of crime should first be enumerated, whereas the Tories Reverend Samuel Johnson’, Journal of British Studies, 32 (1983), 139–65. 19 Grey (ed.), Debates, IX, 541. 20 LJ, XIV, 378–80; Foxcroft, Halifax, II, 93–9 (qu. at pp. 95, 98). 21 Foxcroft, Halifax, II, 95, quoting an account of the speech in a letter by Mr Theobald to Arthur Charlett: Bodleian Library, MS Ballard 27, fo. 88 (24 Dec. 1689). 22 LJ, XIV, 105, 142–5; Sir James Dalrymple, Memoirs of Great Britain and Ireland (3 vols, London, 1790), II, pt 2, p. 12. 23 CJ, X, 145–6; Dalrymple, Memoirs, II, pt 2, pp. 106–8. 24 CJ, X, 162–3, 165; Grey (ed.), Debates, IX, 276–86. Danby had been impeached in 1678–9 but received a royal pardon.

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wanted only to list a few individual names. ‘It is of infinite consequence that the crimes be stated, else the next age will not know why you have punished persons’. 25 The Whigs scored several legislative successes, passing acts to reverse the attainders of Russell, Sidney, Cornish, and Alice Lisle.26 There were further annulments. The earl of Devonshire’s indictment was voted a violation by the House of Lords.27 Bishop Thomas Sprat was forced to apologise for his official account of the Whig seditions, albeit trying to shuffle off responsibility for his True Account … of the Horrid Conspiracy (1685), by blaming Charles II’s relentless pressure that he should write it.28 Sir Robert Sawyer, who had acted in many prosecutions, was expelled from the Commons. Not all such attempts succeeded. A bill for Armstrong fell with the dissolution of parliament, although the Commons voted his death a ‘high violation of justice’.29 After a struggle, a majority refused to overturn the fine upon Barnardiston,30 while a bill to reverse the conviction of the egregious priest hunter John Arnold failed. A bill to reverse Thomas Walcott’s conviction fell when the king indicated he would veto it.31 Pilkington failed to get reparation from the estate of the Tory Sir Peter Rich.32 Anger at the punitive financial exactions these victims had suffered found expression in the clause in the Bill of Rights against ‘excessive fines’. Periodically, yet further victims were named in the Houses. Thus was heard the narrative of John Wilmore, ‘a great sufferer’, falsely convicted of child abduction, who had fled to Holland, remaining in exile ‘until he came over as a volunteer with his now majesty’.33 Or the narrative of Edmund Prideaux, forced to secure a pardon for £15,000, and seeking reward out of the estate of Judge Jeffreys.34 Sir William Cowper reported his own case: a fine of £3,000 merely for supporting Exclusion.35 The Lords investigated the alleged attempt in 1685 to suborn witnesses to prove that four peers had engaged in treasonable conspiracy: Delamere, Devonshire, Macclesfield, and Stamford.36 Grey (ed.), Debates, IX, 541–2. ‘Without doors’ means outside parliament. W&M sess. 1, c.1, c.7, c.8, c.16. The text of the Sidney reversal is in ST, IX, cols. 995–9. 27 LJ, XIV, 202. 28 Thomas Sprat, The Bishop of Rochester’s Second Letter (1689), pp. 4ff. 29 CJ, X, 111, 284. A reversal of his attainder was belatedly passed in 1694. 30 LJ, XIV, 187, 210, 253; J. E. T. Rogers, A Complete Collection of the Protests of the Lords (2 vols, Oxford, 1875), I, 81–2. 31 CJ, X, 322; Foxcroft, Halifax, II, 242; Goldie et al. (eds), Entring Book of Roger Morrice, V, 265. 32 Grey (ed.), Debates, IX, 24, 110; HMC, House of Lords 1689–90, pp. 109–10, 196–8. A valuable compilation is J. Hoppit, ed., Failed Legislation, 1660–1800 (London, 1997). 33 The Case of John Wilmore (1692). 34 CJ, X, 113–6, 525–8. HMC, House of Lords 1689–90, pp. 109–10, 196–7. 35 Grey (ed.), Debates, IX, 50. 36 LJ, XIV, 364; HMC, House of Lords 1689–90, pp. 392–405; Goldie et al. (eds), Entring Book of Roger Morrice, V, 310. 25 26

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Sitting in the Houses were close relatives of the dead, such as the earl of Essex’s brother Henry Capel, and Lord Russell’s father the earl of Bedford. The Whigs also deployed politics ‘out of doors’. In June they recruited public support for punishing offenders, to show that ‘the genius of the people [was] running that way’. ‘Thousands’ of ‘gentlemen, citizens, and inhabitants’ of London, ‘freeborn men of England’, petitioned the Commons, demanding punishment of ‘the instruments of introducing that tyrannical government’, men who, shockingly, still ‘boldly concern themselves in the management of public affairs’, and who must be removed from office to protect the nation’s ‘religion, lives, laws, and liberties’.37 But during the summer the Whig juggernaut met with a serious reverse. The restoration of Titus Oates’s honour was a bridge too far. Though he was still vaunted by unrepentant Whigs, the Lords dared not again let loose upon the criminal justice system this dangerously inflammatory paranoid fantasist. When his case stalled, Oates petitioned the Commons, at which the Lords sent him back to jail for breach of privilege. The arch-Whig duke of Bolton sent him a gift of £50.38 On the substantive issue of Oates’s earlier conviction for perjury, the Lords refused to reverse the verdict. Tories loathed him, Danby remarking that the only way to reverse his flogging from Newgate to Tyburn was to flog him all the way back again.39 The Whigs tried a compromise: exonerate him but disable him from acting as a witness in future. This failed too. The Houses became deadlocked, and only the summer recess cooled tempers. Eventually Oates was pardoned without the verdict being annulled. On two dozen days from May to July his name appears in the Lords’ Journal.40 The Commons recited grounds for dissenting from the Lords’ majority, and voted his treatment ‘cruel and illegal’, Somers and Wildman defending his cause. Oates’s ‘barbarous’ punishment, the Commons averred, had been designed to strike terror in the people and ‘fit them for slavery’; it epitomised the ‘violation of law, partiality, and corruption, [which] were the character of the times’.41 The minority Whig lords entered a clutch of protests, culminating in a claim that the judgement against Oates was ‘the greatest blow that ever the English liberties received’, because he had acted and suffered at a time when the whole government was corrupted. The signatories included Bolton, Delamere, Lovelace, Macclesfield, Monmouth, Montague, Stamford, and Wharton.42 (The major role played at this time by this caucus of radical Whig lords is striking.) Though Oates was manifestly a perjurer, there was widespread disapproval of the extremity of his punishment, as well as that of Samuel Johnson, which, it has been argued, prompted the Goldie et al. (eds), Entring Book of Roger Morrice, I, 127–8. J. Lane, Titus Oates (London, 1949), p. 325. 39 Roger North, Examen (1740), p. 224; see Goldie et al. (eds), Entring Book of Roger Morrice, V, 122–5. 40 HMC, House of Lords 1689–90, pp. 75–84, 259–61. 41 CJ, X, 176–7. 42 LJ, XIV, 221, 228, 277–8, 299–300; Rogers, Protests of the Lords, I, 79–89 (qu. at p. 88). 37

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inclusion of the most lasting clause in the Bill of Rights, which outlawed ‘cruel and unusual punishments’, a phrase that has passed into modern legal codes.43 Neither the summer recess nor the Oates problem dampened Whig retributivism. In November the pursuit of guilty men reached its apogee. Both Houses established committees of enquiry, which interrogated witnesses under oath.44 These were public hearings and the galleries were full. The Lords’ committee continued the pursuit of those responsible for the deaths of Russell and others. Nicknamed ‘the murder committee’, it was promoted by Bolton and Monmouth, and chaired by Stamford. The ‘murder committee’ staged a prurient theatre of suffering. Thomas Armstrong’s daughter, Katharine, recounted her final interview with her condemned father. She reported that a brutal jailor had beaten her, so that ‘she had so sore a breast … that she could not put on a bodice’.45 Earlier, the whip that had flogged Oates had been put on display. The Tory lords pushed back when they could. When Stamford called for Stephen College’s death to be added to the murder committee’s agenda, he was rebuffed.46 Hampden, questioned concerning Russell’s death, made it the occasion of his sensational speech about his own heroism and the meaning of Russell’s suffering. His own case was, he said, so entwined with the ‘noble person after whose blood and murder’ their lordships enquired, ‘that he looks upon himself as much murdered as any of them, by reason of his sufferings’. Russell, he urged, was right to have acted against King Charles: resistance was ‘the way our ancestors always took, when the sovereign authority came to so great a height’.47 Throughout the year, parliamentary proceedings were seconded by pamphlet rehearsals of these cases. The most energetic reportage came from two Whig lawyers, Sir Robert Atkyns and John Hawles. Atkyns had sat as a judge in the 1670s until ousted by the Tories; in 1681 he was convicted of riot for opposing the Tory capture of Bristol corporation; in 1683 he advised Russell’s defence counsel. Now, at the Revolution, he was restored to the judicial bench, advised on the reversal of Russell’s attainder, and carried the reversal bill to the Commons.48 Atkyns’s Lord Russel’s Innocency extolled the ‘martyr’,49 while a collection of Dying Speeches reproduced the scaffold testimonies of Russell,

A. F. Granucci, ‘“Nor Cruel and Unusual Punishments Inflicted”: the Original Meaning’, California Law Review, 57 (1969), 838–65; L. G. Schwoerer, The Declaration of Rights, 1689 (Baltimore, 1981), pp. 92–4. The clause stands alongside that concerning ‘excessive fines’. 44 LJ, XIV, 331, 377–99; proceedings in Foxcroft, Halifax, II, 95–100, 119–23; and ST, IX, cols. 951ff. 45 LJ, XIV, 394; ST, IX, col. 994. 46 LJ, XIV, 364. 47 LJ, XIV, 378–80; Foxcroft, Halifax, II, 98; ST, IX, cols. 955, 961. 48 LJ, XIV, 145; CJ, X, 45–6. 49 Sir Robert Atkyns, A Defence of the Late Lord Russel’s Innocency (1689). 43

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Sidney, College, Cornish, Lisle, and others.50 Hawles sat in the Commons, where most of his speeches dwelt on the evils of the old regime, the indemnity bills, and the defence of Oates. The loss of his seat in the 1690 election hastened the demise of this phase of Whiggism. His Remarks upon the Tryals of Fitzharris, College, Russell, Sidney, Cornish, Bateman was the most substantial treatise on the theme of trumped-up charges, arbitrary justice, and cruel punishments, and did much to expose the injustice, under current law, of the lack of entitlement to defence counsel and access to indictments in advance of trial, which led to the Treason Trials Act of 1696.51 For Hawles, the essence of the Revolution was the overthrow of a regime of unfair trials.52 Some victims published on their own account. Oates’s Display of Tyranny, dedicated to Barnardiston, catalogued the victims during the decade 1678–88, his target not the Stuart crown but those men ‘who would have finished the ruin of the nation, in the dissolution of its ancient and well established government; and in the blood of its best patriots; they gloried in calling themselves Tories’.53 A further catalogue, this time a five hundred page edition of trial proceedings, was dedicated to Lord Delamere.54 Delamere, in his own defence of Russell’s innocence, The Late Lord Russel’s Case, argued, inter alia, that armed resistance against Louis XIV by the Huguenots was not treason.55 In some cases, martyrology was a vehicle for rehearsing the right of revolution. Atkyns’s Sidney Redivivus asserted that King William was ‘made our redeemer, by the consent of the people’. He quoted Algernon Sidney against Sir Robert Filmer; denounced the divine right ‘shibboleth’ of the clergy; and, in a secular revision of Lactantius’s tag about the blood of the martyrs being the seed of the Church, declared that ‘the blood of the patriots is the seed … of the people’s liberty’.56 A Tory complained that ‘all the pillars and posts in the town [are] daubed with plentiful title pages’ directing passers-by to ‘books The Dying Speeches of Several Excellent Persons (1689). There are extracts from Atkyns’s and Hawles’s tracts in ST, IX. 51 That Act was, however, partly the work of Tories angry at Whig abuse of criminal procedure in the post-Revolution period. See S. Reznick, ‘The Statute of 1696: A Pioneer Measure of Judicial Procedure in England’, Journal of Modern History, 2 (1930), 5–26; J. R. Phifer, ‘Law, Politics, and Violence: The Treason Trials Act of 1696’, Albion, 12 (1980), 235–56; A. H. Shapiro, ‘Political Theory and the Growth of Defensive Safeguards in Criminal Procedure: The Origins of the Treason Trials Act of 1696’, Law and History Review, 11 (1993), 215–55. 52 See J. Marshall, ‘Whig Thought and the Revolution of 1688–1691’, in The Final Crisis of the Stuart Monarchy, ed. T. Harris and S. Taylor (Woodbridge, 2013), pp. 57–61. On the fallen judges: A. F. Havighurst, ‘The Judiciary and Politics in the Reign of Charles II’ and ‘James II and the Twelve Men in Scarlet’, Law Quarterly Review, 66 (1950), 62–78, 229–52; and 69 (1953), 522–46. 53 Titus Oates, A Display of Tyranny (1689), sig. A5r. 54 An Exact Abridgment of all the Trials … Since the Year 1678 (1690 [i.e., 1689]). 55 Henry Booth, Lord Delamere, The Late Lord Russel’s Case (1689), p. 7. 56 Sir Robert Atkyns, Sidney Redivivus (1689), pp. 1, 8–9. 50

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of obloquy and reproach’ against agents of the old regime; he particularly objected to the exposing of judges and juries to a tide of populist fury.57 Meanwhile, in his Entring Book, the ardently Whiggish Morrice recorded parliamentary proceedings in obsessive detail, backed up by further material, especially the names of all the Tory jurors who had brought in guilty verdicts.58 These jurors, ‘besmeared with the blood’ of the Whig martyrs, were publicly named in a tract of 1690,59 which occasioned Daniel Defoe’s first published poem, in which he denounced ‘The Inquisitors of late Tyrannick Reign, / Who now Petition for Power to Ride again’.60 When the king told the Lords that indemnity was necessary to quiet the nation, Morrice flatly disagreed: rather, pardon was an inlet to those guilty of ‘heinous offences’.61 The Whig programme was selective about its martyrdoms, largely confining itself to the Shaftesburian Whigs, men of the parliamentary and City elites, and their acolytes. Aside from Alice Lisle, they generally neglected the victims of the Monmouth Rebellion,62 although the London petition of June did refer to it. Whether the Monmouthites were seen as an embarrassing distraction, its actors tainted by sectarian ‘enthusiasm’; whether the Rebellion pointed to James rather than the needful target of Carolean Tories; or whether its actors were too plebeian to command respect, is not clear. Perhaps the Whig elite left them alone because Tories continued to be unabashed about condemning this ‘pernicious crew of rebels and traitors’.63 It is also noticeable that such dissenting victims as the Presbyterian ministers Thomas Rosewell, tried for treason in 1684, and Richard Baxter, tried for sedition in 1685, did not figure either, as if dissent was slipping its moorings from the centre of public attention. Nonetheless, a counter-culture of Monmouth martyrdom was promoted by clever publicists, which, while finding little resonance in the Convention, would finally prove influential, for the evil of Judge Jeffreys and his West Country ‘Bloody Assizes’ would penetrate modern English historical consciousness more lastingly than Lord Russell or even Algernon Sidney.64 Yet elite and counter-cultures intersected, for the chief publicists for the Monmouthite victims were John Tutchin and John Dunton, who were intimate associates of Oates,65 and men with flourishing futures at the heart of Whig journalism. They issued a series Sir Bartholomew Shower, The Magistracy and Government of England (1690), p. 1. Goldie et al. (eds), Entring Book of Roger Morrice, V, 45–7. The names are also in HMC, House of Lords 1690–1691, pp. 60–6. 59 Remarks upon the Petition and Petitioners (1690) (qu. at p. 1). 60 Daniel Defoe, A New Discovery of an Old Intreague (1691) (qu. at p. 32). 61 Goldie et al. (eds), Entring Book of Roger Morrice, V, 65. 62 For which see P. Earle, Monmouth’s Rebels (London, 1977); R. Clifton, The Last Popular Rebellion (London, 1984). 63 This remark from a later period: A Caveat Against the Whigs, pt 2 (1712), p. 22. 64 M. Zook, ‘The Bloody Assizes: Whig Martyrdom and Memory after the Glorious Revolution’, Albion, 27 (1995), 373–96. 65 William Fuller, The Whole Life of Mr William Fuller (1703), pp. 62–3, 131–2; Lane, Oates, p. 333. 57

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of tracts which memorialised plebeian victims, according them ‘dying speeches’, probably confected and rendered in the familiar idiom of that most canonical of Protestant texts, Foxe’s Book of Martyrs. First came The Protestant Martyrs: or, The Bloody Assizes (1689), then A New Martyrology: or, The Bloody Assizes (1689), and later The Western Martyrology (1705).66 They turned ‘rebels’ into ‘patriots’, ‘enthusiasts’ into ‘holy martyrs’, whose oppressors acted ‘either without all form of law, or what’s worse, the wrested pretence of it’.67 Nor did the Monmouthites entirely lack elite support. Among the leading Whigs, Lord Delamere insisted that the causes of the Monmouth and Williamite risings were identical,68 while the MPs Edward Clarke and Sir Walter Yonge, together with other West Country gentlemen, successfully petitioned the king for the liberation and repatriation of rebels who had been made ‘slaves’ in the West Indies.69 Voices of Tory humiliation From the Tory perspective, Whig reprisals were vicious and vindictive, targeting those who were themselves sufferers for the common Protestant cause, since virtually all Anglican Tories had rebuffed James’s popish campaign and withdrawn, or been sacked, from office in the early part of the king’s reign. They furthermore thought the Whigs hypocritical, since many of them, especially among the dissenters, had succumbed to the allure of James’s proclamation of religious toleration, which had produced a ghastly coalition of papists and ‘fanatics’. A number of Whig MPs in the Convention Parliament had, only a few months previously, been nominated by James’s agents to stand for his intended toleration parliament.70 Throughout the coming generation, Tories would taunt the Whigs for their collaboration under James, and would trumpet the fact that the Anglican clergy had produced virtually all, and the dissenting clergy practically none, of the torrent of printed polemics against Catholicism.71 In Tory eyes, the Whigs’ vaunt of revolutionary purity was odious cant. Tory sensibility is exemplified in Roger North’s anguished biography of his brother Sir Dudley North, a Levant Company merchant and customs commissioner. He recited his two elder brothers’ conscientious resistance to James’s illegal dispensations of officeholders from the Protestant Test, for which J. G. Muddiman, The Bloody Assizes (London, 1929), sect. 1. John Tutchin, New Martyrology (1689), sig. A3v. 68 Henry Booth, Lord Delamere, earl of Warrington, Works (1694), pp. 70–81. 69 Petition, 13 Nov. 1690; Order in Council, 20 Nov. 1690. Calendar of State Papers Colonial, America and West Indies, 1689–1692, pp. 346, 348; Somerset Heritage Centre, DD/SF 7/1/22. 70 See n. 106 below. 71 The gauntlet was thrown down in Edward Gee’s Catalogue of all the Discourses Published Against Popery, During the Reign of King James II (1689), which listed 3 tracts by Dissenters and over 200 by Anglicans. 66 67

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Francis North, Baron Guilford, was sacked as Lord Chancellor, to make way for Jeffreys, and their opposition to the king’s attempted manipulation of a future parliament, for which Dudley was rebuffed. Sir Dudley had told the king personally, albeit with ‘the greatest submission that could be’, that he would not pre-commit to anything in a future parliament ‘till he had heard the debate’, and that ‘if he were to die that moment, he would make no other answer’ – an exhibition of that marriage of abject loyalism and self-sacrificial defiance that exemplified Anglican passive resistance in 1687–88.72 So much the more appalling therefore was Sir Dudley’s mauling after the Revolution. Of the Whig retributivists, Roger North wrote, ‘those that had fled into Holland were rampant … For they gave out that all the Tory party, meaning those who had acted by law against the fanatics, should at once be attainted and their estates taken away by parliament. Nor should those of the dead be exempted any more than those of the living; and they … name[d] the late Lord Keeper North and Sir Dudley North in particular’. The Whigs ‘retained … their Rye [House Plot] scheme’, but mercifully King William, ‘having secured his own game, would not roil it to gratify them’.73 It is noticeable that North thought that the émigré Whigs were the most ‘rampant’. Sir Dudley’s crime was to have accepted the City of London shrievalty in 1682 and to have empanelled hostile juries, which sent Whigs to their deaths, which, the Whigs insisted, was cruelly destructive of justice. The Whigs initially hoped by their clamours to drive such men as Sir Dudley into terrified exile. Walking together in the Royal Exchange one day, the North brothers heard a shout, ‘What! Is not he gone yet?’ The Whigs had Dudley sacked from the customs commission, and then ousted as an alderman. He was a prime target of the hue and cry in parliament after the Tory ‘murderers’, and here Roger provides a vivid first-hand account of the parliamentary committees in action. These were no better than kangaroo courts, by ‘taking it for granted that those persons [the Whig victims] were murdered’; and, whereas a court of law would have been ‘fastidious’, parliament could play fast and loose with justice. The Lords’ committee summoned whomever it pleased for interrogation. Dudley ‘answered fully and clearly’ amid heckles of ‘that’s a lie’. He endured similar treatment before the Commons, where ‘some sport was expected, for the galleries were full’. Roger was present, ‘and the famous Titus Oates was not far off; for he was a person that greatly interested himself in these affairs’. Establishing the truth was beside the point in these show-trials-in-reverse: they were rituals of public humiliation, and a device to extract self-incrimination and the naming of others. It was demanded of Sir Dudley whether Secretary of State Sir Leoline Jenkins had pressed him to take up the shrievalty; his emphatic Roger North, Lives of the Norths, ed. A. Jessop (3 vols, London, 1890), II, 222; M. Goldie, ‘The Political Thought of the Anglican Revolution’, in The Revolutions of 1688, ed. R. Beddard (Oxford, 1991). 73 North, Lives, II, 223. ‘Roil’: disturb, stir up. 72

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denial so frustrated Oates that he stomped out of the gallery. All this was not, wrote Roger with caustic bleakness, motivated merely by ‘malice’, because ‘covetousness’ had the greater share; for had the House been persuaded to vote the shrieval election illegal, then a bill would have been brought in to recompense Whig victims from the Norths’ estates. Indeed, just such a move was made in the Lords, presented by ‘Lord Stamford … chairman of the committee of murder’. The proposal fell. An attempt was made to entice Dudley, by yet another of his brothers, this time a treacherous one, the Whig Lord North, to bribe his enemies to desist from attacking him, in hopes that he could then be ruined by being exposed for engaging in bribing his way out of trouble. The pursuit of Dudley finally exhausted itself in a failed attempt to fix upon him the illegality of levying customs duties at James’s accession without leave of parliament. The failure of this whole train of attacks was, judged Roger, a vindication of the probity of the ministry of the early 1680s; yet it took a huge emotional toll, and it enhanced Roger’s profound sense of alienation from the Revolution regime.74 Roger North’s posthumously published biographical recollections were not available to contemporaries. Those Tories who accepted the Revolution but feared reprisals found immediate public voice from Sir Bartholomew Shower, who dared to defend the conviction of Lord Russell as sound in law. His Magistracy and Government of England Vindicated (1689) combined an appeal to the virtues of (present) mercy with acid denunciation of the ‘curses and execrations’ of the Whig ‘bloodhounds’. The loyal Tory servants of former monarchs were now reaping a whirlwind of ‘envy, hatred, and reproach’. Yet virtue and prudence united to demand the drawing of ‘a veil over all that’s past’, for ‘it’s impolitic as well as unjust to deny pardon to those who have submitted to the government’, and ‘it can never be deemed a politic service to rake into old sores’. The men of vengeance, the ‘republicans’, sought to set up a new arbitrary power by turning parliament into a court of summary justice. The Whigs aimed at a reign of revolutionary terror. Shower had particularly in mind Delamere’s Lord Russel’s Case, which, he said, knew no difference between party advantage and the rule of law. The ringleaders of the party of revenge shared, he believed, a common ideological undertow, for they held what he called the ‘argument from the vacancy’ of the throne, namely that, in the Revolution, ‘the government was dissolved, everything reduced into its primitive state of nature, all power devolved into individuals … to provide for themselves by a new contract’. Shrewdly turning this radical premise against the Whigs themselves, Shower contended that a people who establish a new polity cannot be supposed to consent to punish retrospectively actions committed prior to the dissolution of government. The dissolution of government creates a civil tabula rasa, the

North, Lives, II, 222–32, qu. at pp. 224, 226–7, 229; idem, Examen, pp. 618–23; LJ, XIV, 383–4. For North’s defence of the 1680s treason trials see his Life of the Lord Keeper North, ed. M. Chan (Lampeter, 1995), pp. 160ff, 397. 74

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logical entailment of which is a plenary amnesty.75 The same argument occurred in another pro-amnesty tract: where there is ‘a total vacancy … and devolution of the government upon the people; and where there is a total failure both of the politic capacity, and of the executive (or punishing) power, there must, by consequence, be an indemnity to all offenders’. It was a clever turning of a Lockean style of argument against the Revolution Whigs themselves.76 Surrenderers of the charters The personnel involved in the Tory ancien regime’s perversion of the criminal courts were relatively few: judges, lawyers, jurors. The Whigs aimed also at a far wider constituency of Tories, all those complicit in the sacrifice of borough charters between 1682 and 1688. This embraced hundreds of local officeholders who had volunteered surrenders. Under the new charters which the monarchs then issued, the Crown, and its Tory acolytes, excluded Whigs from office en masse. The post-Revolution Whig counter-attack on the surrenderers culminated in a legislative attempt to exclude them all from office for the future: a purge of the purgers. This was intolerable to the Tories and to King William, and it provoked a crisis which, in the early months of 1690, brought the Whig campaign to a halt. It is hard now to recapture the enormity in Revolution minds of the violation of the borough charters. It was fundamental to the Whigs’ sense that England had sunk into a tyranny which only armed resistance could rectify. Where unjust criminal charges against individuals might conceivably be construed as occasional malfeasances, the wholesale destruction of England’s urban commonwealths amounted to nothing other than a systematic dissolution of the constitution. It is worth providing a wider context for the furore concerning the borough charters. About two hundred English boroughs enjoyed self-governing autonomy under royal charters. The chartered boroughs fulfilled par excellence the grand paradox which has been encapsulated as ‘self-government at the king’s command’.77 England was populated by miniature city-state republics, created by royal fiat.78 A charter allowed for governance by mayor, aldermen, and common council, a miniature replica of the classical triad of Crown, lords, and commons that prevailed in the national commonwealth. These corporations had endowments, controlled trade, supported charities, punished crime, and regulated civic life. Shower, Magistracy, passim; qu. at pp. 5, 27, 31, 33–4, 36. The third part of this tract is called ‘Reasons for a General Act of Indemnity’. 76 A Letter from a Lawyer … Indemnity the Effect of Vacancy (1689), p. 3. 77 The phrase was coined by A. B. White in a book of that title (Minneapolis, 1933). 78 See P. Collinson, ‘The Monarchical Republic of Queen Elizabeth I’, in Elizabethan Essays (London, 1994); J. F. McDiarmid (ed.), The Monarchical Republic of Early Modern England (Aldershot, 2007). 75

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In most matters they were not subject to the jurisdiction of their counties, thus sharply separating urban civic life from rural. Nearly all of them sent two MPs to parliament, sometimes through narrow, aldermanic franchises, and sometimes through open, household-citizen franchises. Until modern times, this distinction between county and borough parliamentary seats was categorical; three-quarters of all seats were borough seats. Because, by the late seventeenth century, urban England was more likely than rural to house significant dissenting communities, borough autonomy meant relative liberty for religious nonconformity, and some borough corporations were notorious harbourers of ‘fanatics’, while others had earlier been loci of experiments in godly New Jerusalems. Because, by the late seventeenth century, trade loomed larger than hitherto in the national calculus, the urban merchant elites, especially of the great cities, carried ever greater political and social weight.79 There was a strong discursive tradition, scholastic and humanist, that celebrated England’s urban commonwealths as sites of civic patriotism and the fulfilment of public duty, often expressed in republican terms in so far as it tended practically to ignore the distant fact of monarchy.80 Cicero on ‘office’ was invoked, and so too Aristotle. One town clerk was speaking not of England but of his native Yarmouth when he wrote of ‘the gathering together of society … that they might be helpful one to another; … and [so] frame themselves a commonwealth … which makes a civil body’.81 And John Vowell was speaking of the governance of Exeter and addressing its ‘senators’ when he invoked Rome and Sparta, and set out the civic ‘best order of government of the commonwealth’.82 In 1557 a Venetian observer judged that England was ‘governed … by municipalities, almost like a republic’.83 In 1683, Thomas Hunt, defending the corporation of London’s right to exist, likened it to a ‘body politic’ formed out of the state of nature, so that the question ‘whether they shall continue to be a society’ must be a matter for ‘the agreement of all that enter into that society’: it is not dissoluble by the mere will of the Crown.84 It was scarcely surprising that Thomas Hobbes had warned that incorporated towns were ‘as it were, many lesser commonwealths in the bowels of a greater, like worms in the entrails of a natural man’; and that the marquis of Newcastle

See P. D. Halliday, Dismembering the Body Politic: Partisan Politics in England’s Towns, 1650–1730 (Cambridge, 1998). 80 See M. Peltonen, Classical Republicanism in English Political Thought, 1570–1640 (Cambridge, 1995); M. Goldie, ‘The Unacknowledged Republic: Officeholding in Early Modern England’, in The Politics of the Excluded, 1500–1850, ed. T. Harris (Basingstoke, 2001); P. Withington, The Politics of Commonwealth: Citizens and Freemen in Early Modern England (Cambridge, 2005). 81 Qu. in Withington, Politics of Commonwealth, p. 11. 82 Qu. in Peltonen, Classical Humanism, pp. 57–8. 83 Qu. in Withington, Politics of Commonwealth, p. 58. 84 Thomas Hunt, A Defence of the Charter (1683), p. 41. 79

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warned Charles II that ‘every corporation is a petty free state against monarchy’.85 The Tory coup de grâce to civic republican sentiment came too late. Robert Brady’s Historical Treatise of Cities and Burghs aimed to provide the ideological underpinning to the rechartering programme, but events overtook it and it was not published until 1690. Brady assailed the pretensions, the ‘absurd rights’, claimed by those ‘popular and factious writers’ who speak of towns as ‘distinct commonwealths’. The burden of his treatise was to show that the privileges of boroughs are but ‘derivative’ and revocable by kings.86 Of all chartered corporations, London was uniquely wealthy and powerful, and acutely conscious of its independence. Temple Bar was the material and symbolic marker of the boundary between the City and the Crown’s Westminster purlieus. The loss of London had ultimately cost Charles I the Civil War. The City, Newcastle told Charles’s son, was a ‘great leviathan … much too big for the body of your commonwealth’.87 The Whig earl of Shaftesbury’s remove, in 1676, from the Strand to Aldersgate Street in the City indicated his identification with resurgent urban radicalism. Later, the City’s loans to William III helped underwrite the Revolution settlement.88 During the Exclusion Crisis and its aftermath, control of the City mattered for a special reason. The sheriffs of London were elected on party tickets; they chose grand juries, of political colour; and these pre-trial jurors determined whether prosecutions were prima facie viable, finding either ‘billa vera’ (a ‘true bill’) or ‘ignoramus’ (‘we are ignorant of a plausible case’). Charles II’s attempts to prosecute Whigs were frustrated by the Whig ‘ignoramus juries’. That is why the first capital trial, of Stephen College, was removed to Tory Oxford, to ensure conviction and execution: a London jury had found ‘ignoramus’. It is also why the treason charge against Shaftesbury was thrown out in November 1681 – the jury was Whig. The crushing of the City of London was a sine qua non of the Tory Purge, in order to secure control of criminal proceedings. Several of the Whig sheriffs and ‘ignoramus’ jurors became victims of the Purge, including Henry Cornish, executed, and the juryman John Wilmore, who fled to Holland.89 The credentials of a charter could be challenged by a writ of quo warranto: ‘by what warrant do you claim to be a corporation?’ The crown’s lawyers and judges could pronounce a charter irregular and cancel it. The crown could then issue a new charter, containing novel powers of control. The legal assault on Thomas Hobbes, Leviathan, ed. N. Malcolm (3 vols, Oxford, 2012), II, 516; T. P. Slaughter (ed.), Newcastle’s Advice to Charles II (Philadelphia, 1984), p. 41. 86 Robert Brady, Historical Treatise (1690), sig. A2r–v. 87 Slaughter (ed.), Newcastle’s Advice, p. 6. 88 See G. S. De Krey, ‘Revolution Redivivus: 1688–1689 and the Radical Tradition in Seventeenth-Century London Politics’, in The Revolution of 1688–1689, ed. L. G. Schwoerer (Cambridge, 1992). 89 See J. Levin, The Charter Controversy in the City of London, 1660–1688 (London, 1969); G. S. De Krey, A Fractured Society: The Politics of London in the First Age of Party, 1688–1715 (Oxford, 1985); idem, London and the Restoration, 1659–1683 (Cambridge, 2005). 85

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London formed the centrepiece of the quo warranto campaign; a bitter political and legal fight ensued. Because the absolutist argument was one of concessio – liberties are royal franchises – the Whig lawyers responded that corporate rights were inherent in the civic community and were ‘immortal’. One judge responded that ‘if a corporation be not dissolvable, then you oust the king of his quo warranto and you likewise set up so many independent commonwealths as there are corporations in the kingdom’.90 In June 1683 the judges struck down the City’s charter, and until the Revolution, London was in the hands of the Crown. In fact, the Tories had already gained control of the London shrievalty in 1682 by dint of electoral legerdemain amid chaotic scenes: the election of Sir Dudley North. This meant that juries would no longer favour Whigs. Hence it was that Shaftesbury, despite his earlier acquittal, fled the country in November, to die in exile in Holland. New Tory juries then found a dozen leading Whigs guilty of riot during the shrieval elections.91 After London, most of the nation’s boroughs followed.92 The national campaign was far from being the singular effort of the Court; it was enthusiastically promoted by local Tory elites, who solicited surrenders. The process was collusive, Tories seeking to use the royal prerogative to stage a series of local coups. Historians, disputing the extent to which their motive was to secure control of future parliamentary elections, have suggested that a principal aim was the suppression of rival Whig factions in local affairs and of religious dissent.93 It is true that county elites sought means to ‘invade’ boroughs and stamp out nonconformist enclaves, and true that a few rechartered boroughs did not have a parliamentary franchise. Yet even if electoral motives were not initially at the forefront, a common feature of the new charters was royal power of appointment and dismissal of local officers, and hence of those who controlled parliamentary elections. As early as 1683, it was argued that, by the revocation of charters, parliament will fall to ‘the Court’s nomination’. Because the boroughs made up so high a proportion of the ‘representatives of the people’, all those who were for destroying charters are either for ‘no parliament, or for a new designed constitution of parliaments’.94 The Revolution Whigs had no doubt that the prime motive was electoral and was aimed at manipulating the composition of For the arguments: Levin, Charter Controversy, ch. 3; Halliday, Dismembering, ch. 6 (qu. at p. 208). 91 K. H. D. Haley, The First Earl of Shaftesbury (Oxford, 1968), chs. 29–30. 92 Listed in Goldie et al. (eds), Entring Book of Roger Morrice, I, 524–5; Levin, Charter Controversy, pp. 109–12; Halliday, Dismembering, pp. 350–3. 93 Discussion in Halliday, Dismembering, ch. 6; J. Miller, ‘The Crown and the Borough Charters in the Reign of Charles II’, English Historical Review, 100 (1985), 53–84; C. Lee, ‘Fanatic Magistrates: Religious and Political Conflict in Three Kent Boroughs, 1680–1684’, Historical Journal, 35 (1991), 43–61; R. Pickavance, ‘The English Boroughs and the King’s Government, 1681–1685’ (unpublished D.Phil. thesis, University of Oxford, 1976). 94 Hunt, Defence of the Charter, pp. 6, 11. 90

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parliaments. Although Charles II did not call any parliament after 1681, it is likely he intended to summon one that could be relied upon.95 James II’s sole parliament, in 1685, was overwhelmingly Tory, though it is probable that the national wave of sentiment against the Whigs would have ensured that result in any case. There was, however, one telling speech in that parliament, in fact by a Tory now apprehensive about popery. ‘He was never afraid of it [popery] while the elections of parliaments kept its due channel, but now they had by their new charters altered the old way and chosen representatives … against the wills of the inhabitants’.96 Although no more parliaments sat during James’s reign, the king showed no inclination to abolish parliament; rather he bent every effort to secure a parliament that would do his bidding. It was his overt ‘regulating’ of boroughs in 1687–88 which placed electoral motives high in Revolution minds. Under James the pace of rechartering accelerated, and Court agents (the ‘regulators’) were sent to boroughs to install suitable officers. The process was overlaid by the further campaign of ‘closeting’ people of standing and posing to them the ‘Three Questions’, by which they, as voters or potential parliamentary candidates, were pressed to pre-engage their voting intentions in relation to legislation which the king planned. As in the case of the treason and sedition trials, the Crown did not abolish legality so much as corrode it from within and retain its husk. That meant that neither law courts nor parliaments were available as free avenues for redress of public grievances; without legal means, only supralegal means remained: the right of armed resistance. As one Whig tract put it in 1689: ‘For all writers on politics do agree in this proposition, that when the legislative power is removed, or altered from that place, state, or position in which it was settled upon in the original constitution, that government is dissolved: and I think it very clear, that by the destruction of the old charters … the king had in effect usurped the whole legislative authority’.97 In the Convention, Wildman told the Commons that those who surrendered charters and who engaged electors to choose MPs whom they nominated ‘do overthrow the very foundation of parliaments’. Paul Foley said that ‘it was endeavoured, [in] the two last reigns, to pack a parliament to subvert all our constitutions’. Sir Robert Howard argued that the campaign against the corporations was the ‘civil execution’ of the Church’s ‘famous doctrine’ of the ‘divine right of passive obedience without limitation’: it was the paradigm case of absolutist doctrine put into political practice.98 In the Lords, an unnamed peer said that the ‘giving up of charters was the most treacherous practice … that had been known in any age, and the spring of all the invasions of liberty, property, and law’.99 When Sir Samuel Barnardiston sought reversal of the G. Tapsell, The Personal Rule of Charles II, 1681–1685 (Woodbridge, 2007), pp. 35–43. Goldie et al. (eds), Entring Book of Roger Morrice, III, 7. 97 The Justice of the Parliament, in Inflicting of Punishments (1689), p. 10. The language is close to that of Locke in the Two Treatises of Government, II, paras. 212–22. 98 Grey (ed.), Debates, IX, 140, 517, 519. 99 Goldie et al. (eds), Entring Book of Roger Morrice, V, 383. 95 96

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judgement against him in a case concerning a sheriff’s election return, and was rebuffed by the Lords, the Whig lords (Bolton, Herbert, Macclesfield, Stamford, and Wharton) entered a protest, declaring that rejecting the motion was an ‘encouragement to the sheriffs to make false and double returns, by which means the right of elections will be voided, and it tends thereby to the packing of a House of Commons, which may overturn the whole frame of the government’.100 When the Commons appointed a committee to investigate why a Tory magistrate had released one of the arrested ‘regulators’, its members included such leading Whigs as Birch, Guise, Hampden, Somers, and Wildman.101 The Whigs once again downplayed the travails of the Church of England. George Treby pronounced that though the prosecution of the seven bishops had been an enormity, yet ‘destroying corporations was the mother-treason’.102 Pamphlets argued the same. One author asserted that a charter surrenderer stripped himself of entitlement to citizenship, because he had become a ‘voluntary slave’ to despotism: he had handed electoral power to the Court and had destroyed the fundamental right of representation.103 As in other matters, in 1689 the Whigs were quick off the mark. As early as February they sought to create a Commons committee ‘to consider of the violations of the liberties and franchises of all the corporations of this kingdom, and particularly of the City of London’, but lost on a vote. In March the Committee of Grievances did the work anyway, resolving that the charter surrenders were illegal, leading the Commons to create a new committee to examine ‘who were the authors and advisors thereof’. Somers and Wildman were among its members. In November the Lords added to the remit of its ‘murder committee’ the question of those who had advised the quo warranto programme.104 James had partly done the Whigs’ work for them, because, at the news of William’s military intervention, he had frantically cancelled most of the recent charters, in order to appease public outrage against the ‘regulators’. It was not therefore always necessary in 1689 to seek formal restorations of charters. This made more naked the personal attacks on the surrenderers: the old charters had been restored, but those who had sacrificed them must still be named. Naturally the Tories in the Convention resisted. Sir Joseph Tredenham warned that wholesale purges would destabilise loyalty to the Revolution: so many were involved in recharterings that the House should ‘consider … how safe the government will be when so many are unsafe under it’.105 Shrewdly, the Tories played on the profound weakness in the Whig position, their rank hypocrisy. Because, by 1687–88, James had been intent on a tolerationist parliament, precisely the opposite of what the Tories had earlier intended, he had, as we LJ, XIV, 253; Rogers, Protests of the Lords, I, 82. CJ, X, 32. 102 Grey (ed.), Debates, IX, 545. 103 Seasonable Reflections on Dissolving Corporations (1689), pp. 23–4. 104 Grey (ed.), Debates, X, 35, 42; LJ, XIV, 331. 105 Grey (ed.), Debates, IX, 318. 100 101

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earlier saw, abruptly turned towards Whigs and dissenters in search of support. Many, desperate for relief from Tory repression, had co-operated, and, by 1688, numerous boroughs were in the hands of the Tories’ enemies, the new beneficiaries of forfeited charters. Historians used to call these people ‘James II’s Whig collaborators’; now they are better understood as the ‘repealers’ – that is, of the legislation for religious uniformity.106 Post-Revolution Whigs drew a veil over this aberration, but Tories drew attention to it.107 By dwelling on the surrenderers, the Whigs sought to avoid reference to recent Whig beneficiaries of the rechartering programme. In the New Year of 1690 the Whigs mounted an attempt at a comprehensive exclusion of Tories from office in the localities. This was the affair of the ‘Sacheverell Clause’. Proposed by William Sacheverell for insertion into a Corporation Bill, his proviso would, ‘for the sake of public justice’, have disqualified from office for seven years all those who had solicited the surrender of charters: that is, those who had a design ‘to subvert the constitution’ and ‘corrupt parliament’ by ‘destroying bodies politic and corporate’.108 Anyone who now took office and was latterly found to have been guilty would be fined £500 and disbarred for life. This would, wrote Morrice, ‘incapacitate the betrayers of our liberties’.109 Sprung upon a half-empty House, the clause was initially passed, but later, after a twelve-hour debate, was rejected when the Tories rallied their strength.110 The Tories, plausibly enough, said that passing the clause would push Revolution waverers into the arms of the Jacobites. A Tory pamphlet asserted that the recharterings had been necessary for ‘clearing up … after my Lord Shaftesbury left England’.111 On the Whig side, Sir Walter Yonge was among the speakers in the clause’s favour: ‘nobody can be against it, but such as approve of all the villainies of the surrenderers’, namely those who ‘abhorred parliaments’. Yonge came under threat of being formally reprimanded for slandering Sir Thomas Clarges, but Clarges waived the matter, punning that Yonge was but young.112 Somers declared: ‘to destroy corporations, and to make parliaments at the pleasure of the crown, … this is the worst means to arrive at the worst ends imaginable; they have broken their oaths and trust, to subvert the government. Is there anything more just and natural than that these offenders S. Sowerby, Making Toleration: The Repealers and the Glorious Revolution (Cambridge, MA, 2013); M. Goldie, ‘James II and the Dissenters’ Revenge’, Historical Research, 66 (1993), 53–88; idem, ‘John Locke’s Circle and James II’, Historical Journal, 35 (1992), 557–86. 107 S. Sowerby, ‘Forgetting the Repealers: Religious Toleration and Historical Amnesia in Later Stuart England’, Past and Present, 215 (2012), 85–123. 108 CJ, X, 322, 329; HMC, House of Lords 1689–90, pp. 422–9; A Letter Concerning the Disabling Clauses (1690), pp. 9–10. 109 Goldie et al. (eds), Entring Book of Roger Morrice, V, 364. 110 Grey (ed.), Debates, IX, 510–20. 111 Letter Concerning the Disabling Clauses, p. 6. 112 Grey (ed.), Debates, IX, 511, 514. 106

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should be laid aside?’113 When the judges were asked for a ruling, most came down on the Whig side. Nicholas Lechmere held that a surrender was void because it annulled the right of representation: ‘corporations that send members to parliament cannot waive it and destroy it’. Surrender was a legal suicide, a ‘felo de se’, for a corporation ‘can no more legally divest itself of its being than a natural body’. Edward Atkyns held that the action of any corporation stood for the whole nation: a charter, ‘though it is granted to a small town, it is not theirs … [for] all the people of England [are] concerned’.114 The Sacheverell clause was also defeated in the Lords, prompting a protest, signed by the usual phalanx of Whig peers (Bolton, Macclesfield, Montague, and Stamford), who asserted that its deletion gave legitimacy to the old regime and slighted those who believed in the principle of ‘the people’s taking up arms in defence of their liberties and properties’.115 This assertion captures most sharply the Whig sense that the destruction of ‘free parliaments’ lay at the core of the case for Revolution, and that the perpetrators were beyond the pale of Revolutionary citizenship. The Sacheverell Clause was the last straw for King William, not least because the Whigs threatened to refuse supply, at a time of profound threat in Ireland and from France. In February he dissolved the Convention Parliament and called a general election, a decision which sent shock waves through the Whig camp, for it marked the king’s decisive turn against them and the defeat of Whig retributivism. We know the names of the MPs who voted for the Sacheverell Clause, because a Tory election pamphlet named them. The author called them ‘republicans’: they were men of ‘fury’ rather than ‘amnesty’, who were for ‘excepting everybody out of the no-Act of Indemnity’.116 This list was issued in response to a rival Whig list of those Tory MPs who had, a year earlier, voted against the ‘abdication’ and ‘vacancy’ of the throne, thereby rejecting the ‘dethroning’ of King James, and accordingly could be charged with failing to reconcile themselves to the Revolution.117 Such roll-calls of parliamentary voting records were serious breaches of parliamentary privilege – but they are gold-dust for historians, for surviving division lists for this period are sparse. The Whigs were weaker in the new parliament and the king now put his faith in a substantially Tory administration under the earl of Nottingham. The Act of Pardon was speedily passed. Whig retributivism was at an end.

Grey (ed.), Debates, IX, 516–7. HMC, House of Lords 1689–90, pp. 429–32. 115 LJ, XIV, 424; Rogers, Protests of the Lords, I, 94. 116 Some Queries Concerning the Election of Members for the Ensuing Parliament (1690), pp. 3–4. List in A. Browning, Thomas Osborne, Earl of Danby (3 vols, Glasgow, 1951), III, 164–72. 117 A Letter to a Friend, upon the Dissolving of the Late Parliament (1690). List in E. Cruickshanks et al., ‘The House of Commons Vote on the Transfer of the Crown, 5 February 1689’, Bulletin of the Institute of Historical Research, 52 (1979), 37–47. 113 114

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Coda The Whigs of 1689 were revolutionary purists. They believed that the Revolution belonged to them and that Tories could not be citizens of their new world. They held that the agents of the ancien regime were enemies of the people, incapable of embracing ‘Revolution principles’. From 1690 onwards they were forced to live in a compromised world, or otherwise to reject the Revolution as a failure. They hated the fact that Tories could find a home in the Revolution regime. But hardliners never abandoned the view that retribution had been the right course. Writing in 1706 and referring to the Act of Pardon, Defoe wrote: ‘Nothing is more certain, than, that if, at the Revolution the king had proceeded with more severity with the authors of the former oppressions, and brought the evil counsellors to justice, … it had crushed the hopes of this party, as well as deprived them of the means of disturbing and distracting this nation again with their continual projects of restoring tyrannic arbitrary rule among us’. This was a gloss on his own verses, in which he spoke regretfully of Britannia’s and William’s fatal errors: Had She but mov’ed the Hero’s juster Hand, To that True Vengeance Treason did demand: Had He that Retribution but prepar’d Which all the trembling Party justly fear’d.118

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9 Relitigating Revolution: Address, Progress, and Redress in the Long Summer of 1710 Brian Cowan In a formal sense, the celebrated and contentious trial of the Tory clergyman, Doctor Henry Sacheverell, ended on the 23rd of March 1710. But if one takes a broader view of the turmoil surrounding the controversies provoked by Sacheverell’s prosecution, it is better to say that the real contest had only just begun. The contested nature of the guilty verdict, which was obtained only after a prolonged and hotly debated trial, along with the ideological debates about the nature of the Glorious Revolution of 1688 and the so-called ‘Toleration Act’ which followed in its wake, made it clear to all concerned that the Doctor’s trial had really settled nothing. Indeed, if anything, Sacheverell and his supporters acted as if they had won an acquittal. By contrast, the Whig regime that had managed to eke out a lukewarm guilty verdict played up Sacheverell’s conviction as proof that the political doctrines espoused by the Tories had been effectively refuted and condemned by the highest court in the kingdom. The questions raised at Sacheverell’s trial were substantial: they aimed at the heart of the Glorious Revolution and the tenuous ‘Revolution Settlement’ that had developed, more by circumstance than by design, during the two decades after James Stuart made the fateful decision to abandon his supporters in Britain and move his court to France. Was the accession of William and Mary an instance of legitimate resistance to tyrannical authority or not?1 With regard to the ‘toleration’ of Protestant dissent enacted by law, Sacheverell’s prosecution raised the question: Was the Toleration Act something like a new amendment to the ancient constitution, or was it (as Sacheverell and his Tory supporters would have it) a begrudging indulgence granted to heretics and sinners for the time being, but certainly subject to further alteration by new legislation?2 On the post-revolutionary debates about resistance, see J. P. Kenyon, Revolution Principles: The Politics of Party 1689-1720, (Cambridge, 1977), and Mark Goldie, ‘The English System of Liberty’, in The Cambridge History of Political Thought, ed. Mark Goldie and Robert Wokler, (Cambridge, 2006), pp. 40–78. 2 On the post-revolutionary debates about toleration, see Ole Peter Grell, Jonathan I. Israel, and Nicholas Tyacke (eds), From Persecution to Toleration: The Glorious Revolution and 1

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Although he had been found guilty of high crimes and misdemeanours by the House of Lords, Sacheverell’s punishment was ultimately more symbolic than anything else: his infamous sermon The Perils of False Brethren (1709) was ordered to be burned by the common hangman, and he was banned from preaching for three years. The Doctor was spared any of the more severe penalties that had been contemplated, such as removal from office, a substantial monetary fine, or imprisonment. He emerged from his trial in a particularly strong position: he could cultivate all of the cultural capital that accrued to martyrs for their political beliefs (and parallels to the martyrdoms of King Charles I and Archbishop Laud were often resurrected by Tories after Sacheverell’s conviction), but his own punishment was rather light. He could therefore reap all of the rewards that accrued to martyrs for their cause without actually having suffered very much.3 For Sacheverell’s Tory supporters, this was enough, and they sought to cash in on his unlikely martyrdom; for his Whig detractors, this was further evidence of the Doctor’s (and by extension, the Tory party’s) hypocrisy. In short, there was a clear sense in late March 1710 that the trial was not over. Indeed, it had only just begun. The events of the ‘long summer’ of 1710 – a summer that lasted roughly from April until October of that year, or from the conclusion of Sacheverell’s parliamentary trial through to the ministerial revolution that saw the queen cashier most of her Whig junto ministers and replace them with a Tory ministry led by her new Lord Treasurer, Robert Harley, and the general election results that further consolidated the Tory revanche by returning record numbers of Tory MPs to the House of Commons – can be understood as a process of extra-judicial relitigation with regard to Sacheverell’s trial. The long summer of 1710 saw Sacheverell put on trial once again, but this time his case was litigated in the court of public opinion rather than in the House of Lords. Any Whig hopes that Sacheverell’s formal conviction in parliament would put an end to the matter and provide an imprimatur of condemnation upon high church principles quickly dissipated in the midst of the agitation and controversy that would ensue over the course of the succeeding months. This relitigation would take the form of two related, but separate and distinct, political campaigns: the first was comprised of a series of corporate addresses offered to the queen, and the second included a remarkable ‘progress’ from Oxford through the English West Midlands to Shropshire conducted by the Doctor and a large entourage of his supporters in the summer. Both campaigns demonstrated the centrality of an appeal to public opinion as a source of legitimacy, and both were conducted Religion in England, (Oxford, 1991), and Ralph Stevens, Protestant Pluralism: The Reception of the Toleration Act, 1689–1720 (Woodbridge, 2018). 3 Brian Cowan, ‘The Spin Doctor: Sacheverell’s Trial Speech and Political Performance in the Divided Society’, Parliamentary History, 31:1 (February 2012), pp. 28–46. This form of performative political martyrdom was pioneered by puritan opponents of the early Stuart regime. See Mark Kishlansky, ‘Martyrs’ Tales’, Journal of British Studies 53:2 (2014), pp. 334–55.

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according to pre-established scripts for ‘political theatre’, but they also adopted different strategies of political persuasion. Whereas the addressing campaign was designed to demonstrate the popularity and the putative orthodoxy of Sacheverell’s arguments about passive obedience and the limits of the Toleration Act, the Doctor’s progress centred on his personal appeal as a charismatic figure and a genuine celebrity.4 In other words, the addresses purported to be about principles and abstract values, while the progress capitalized on the cult of personality that had grown up around Sacheverell during his trial. These two forms of appeal to public opinion illuminate the ways in which the controversies ignited by Sacheverell’s trial could be at times deeply ideological and at other times almost entirely personal. Whereas the addressing campaign was best suited for ideological debate, the Doctor’s progress was an explicitly personal appeal to Tory supporters that was designed to capitalize on his newfound celebrity as a living martyr for the high church cause. Neither side could afford to ignore either the ideological or the personal aspects of the post-trial relitigation campaign, but on the whole the Tories managed to appear more successful in their loyal addressing than they did through the Doctor’s audacious tour through the West Midlands. Sacheverell’s political celebrity was paradoxically both the inspiration for the Tory revanche of 1710 and also a source of considerable vulnerability for the high church cause as Sacheverell’s political allies sought to vindicate the principles upheld by the Doctor at his trial without necessarily associating them with his bold and often self-aggrandizing publicity mongering. * * * One of the first signs that Sacheverell’s state trial would not end with his conviction and sentencing was the actions of the high sheriff, grand jury and justices of the peace at the Gloucester county assizes in late March. Several days before Sacheverell had even been found guilty, the gentlemen assembled at the assizes composed a ‘loyal address’ which declared their readiness to defend the queen, the Protestant succession, and the Church of England ‘against all republican, traitorous, factious, and schismatical opposers at home’ and they promised to endeavour to ‘suppress all seditious tenets, immoralities, and prophaneness; and in the ensuing Parliament, [to] choose such representatives as are most affectionately dutifull to your majesty, religiously zealous for our Holy Church and have the tenderest regard for the lives, liberties and estates

On Sacheverell as a celebrity, see Brian Cowan, ‘Henry Sacheverell and the Politics of Celebrity in Post-Revolutionary Britain’, in Public Interiors: Intimacy and Celebrity in Eighteenth-Century Literary Culture, ed. Emrys Jones and Victoria Joule, (Houndmills, 2018), pp. 111–37; see also Brian Cowan, ‘News, Biography, and Eighteenth-Century Celebrity’, in Oxford Handbooks Online, ed. Thomas Keymer, general ed. Colin Burrow, (Oxford, 7 Sep. 2016): [DOI: 10.1093/oxfordhb/9780199935338.013.132]. 4

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of their fellow-subjects’.5 Just a day later, the House of Commons entered into a debate over the presentation of a loyal address to the queen as well. The original motion, proposed by the Tory William Bromley, called for ‘a generall fast and humiliation to deprecate the judgement of God upon the account of the many vile and blasphemous books & pamphlets that have been and are daily published’.6 The resolution that passed put a decidedly Whig spin on the matter by adding that ‘many of [these] blasphemies have been again in a most irregular extraordinary and insolent manner been printed published and dispersed throughout the kingdom to the scandal of all good Christians by Doctor Henry Sacheverell during the course of his late trial’.7 These two addresses, one of which was Tory and the other of which was Whig, were just the first of what would ultimately become scores of similar loyal addresses that would be drawn up, declared, sealed and presented to the queen from late March until late November 1710.8 Altogether 141 addresses were presented between the Gloucestershire county address of March and the clergy of Peterborough’s address of 16 November.9 They were officially printed in the London Gazette, and many were also published in the Tory Post Boy and the Whig Flying Post. They were soon also collected in folio format by enterprising publishers such as John Morphew in his folio Collection of the Addresses which have been Presented to her Majesty (1710).10 Abel Boyer also republished these addresses a year later in his Annals with the observation ‘that tho’ that business [of Sacheverell’s trial] … seem’d to terminate with small flames (viz. The burning his sermons and other books) yet it new Post-Boy, no. 2324 (4–6 April 1710), also reprinted in numerous other sources. The date of the Gloucester address was Thursday, 23 March: British Library [hereafter BL], Add. MS 70421 (25 March 1710). 6 BL, Add. MS 70421 (25 March 1710). 7 BL, Lansdowne MS 1024, fo. 208r. Complaints against the blasphemies read out during Sacheverell’s trial were common, although Whigs and Tories blamed each other for the scandalous passages. See Brian Cowan (ed.), The State Trial of Doctor Henry Sacheverell (Oxford, 2012), pp. 106–7; Geoffrey Holmes, The Trial of Doctor Sacheverell, (London, 1973), p. 187; Mark Knights, The Devil in Disguise: Deception, Delusion, and Fanaticism in the Early English Enlightenment (Oxford, 2011), pp. 155–56; Brian Cowan, ‘Daniel Defoe and the Transformations of the English Periodical’, Huntington Library Quarterly 77:1 (Spring 2014), 88. 8 On the political culture of addressing and petitioning more generally, see Edward Vallance, Loyalty, Memory and Public Opinion in England, 1658–1727 (Manchester, 2019), and Mark Knights, Representation and Misrepresentation in Later Stuart Britain: Partisanship and Political Culture (Oxford, 2005), esp. ch. 3. 9 Francis Falconer Madan, A Critical Bibliography of Dr. Henry Sacheverell, ed. W. A. Speck, (Lawrence, Kansas, 1978), 211–234 (hereafter Madan, followed by the title catalogue number). Madan’s Bibliography is a crucial reference tool for identifying the numerous publications, often with very similar titles, resulting from the controversies provoked by Sacheverell’s trial. 10 [John Morphew], A Collection of the Addresses which have been Presented to the Queen, since the Impeachment of the Reverend Dr. Henry Sacheverell, Madan 705 (1710). 5

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kindled old animosities, which soon after shew’d themselves in many addresses, of very different stile and tenor, that were presented to the Queen. The several papers that were publish’d, soon after, by both parties … will give the reader an idea of the temper the nation was in at this juncture’.11 This was indeed the point of the addressing craze that raged through England in 1710: the addresses were designed to represent the state of public opinion in the wake of the controversies unleashed by Sacheverell’s trial. Morphew’s Collection forthrightly proclaimed that the addresses made it clear ‘that the sense of the kingdom, whether nobility, clergy, gentry, or commonalty, is express for the doctrine of passive-obedience and non-resistance, and for her majesty’s hereditary title to the throne of her ancestors’.12 Boyer similarly claimed that the high church addresses were ‘more numerous, and according to the general opinion, receiv’d with more graciousness and countenance’.13 Certainly, most of the addresses were sympathetic to the Tory cause. Only 19 of the 141 (or about thirteen per cent of the total) professed definite Whig principles.14 The rest of them expressed variations on several obviously Tory sentiments: stressing the queen’s hereditary title to her crown; subscription to the doctrines of passive obedience and nonresistance; detestation of ‘antimonarchical’ and ‘republican’ principles; an unshakable zeal for the Church of England; the condemnation of deists, atheists and Socinians; and declaring a desire for a new parliament. It is worth pointing out, as Ted Vallance has, that the actual contents of the addresses were not entirely on the same page, and many were rather more moderate in content than their Tory promoters wanted to claim.15 All of this is reasonably well established fact, and the scope and significance of the enthusiasm for addressing was clear to contemporaries as well.16 But what explains the sudden outbreak of this craze for ‘loyal addressing’ in the wake of Sacheverell’s trial and conviction? Geoffrey Holmes saw in the loyal addresses ‘an organized campaign of almost unprecedented dimensions, aimed at first at precipitating an Election and then at ensuring [a Tory] victory in every constituency where public opinion counted for anything’.17 The goal of the campaign was to persuade the queen that ‘an overwhelming majority of the electorate desired [a new election], in her interest Abel Boyer, The History of the Reign of Queen Anne, Digested into Annals [hereafter Annals], (11 vols, 1703–13), IX,158. 12 A Collection of the Addresses (1710), Madan 705, title page. 13 Boyer, Annals, IX,165–66. 14 Madan, Bibliography. Knights’s totals are different, but the proportions remain roughly the same: 92 Tory as opposed to 15 Whig addresses, or 84% Tory to 16% Whig. See Representation and Misrepresentation, p, 117. Vallance follows the figures found in Morphew’s Collection: see Loyalty, Memory and Public Opinion, p. 103. 15 Vallance, Loyalty, Memory and Public Opinion, pp. 109–110. 16 John Miller, Cities Divided: Politics and Religion in English Provincial Towns 1660–1722 (Oxford, 2007), pp. 270–75. 17 Holmes, Trial, p. 239. 11

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as well as theirs’.18 Both Queen Anne Tories, and Queen Anne historians, it seems, found common ground in assuming that there was a battle for command of public opinion in the spring and long summer of 1710, and that the Tories won it. It would be quixotic to contest the basic correctness of this narrative, and I do not wish to do so here, but I would like to suggest that the story was perhaps more complicated than has been previously assumed.19 Firstly, not all of the addresses were particularly designed to spur a new election, and if there is any evidence that the addressing campaign was centrally coordinated, Holmes does not cite it, nor has any come to light. Even a zealous Tory such as Ralph Bridges doubted that the loyal addresses would result in the calling of a new parliament.20 But these are minor quibbles. More importantly, the loyal addresses and the efforts to publicize their proliferation can be understood as defensive measures as much as offensive ones. After all, they followed upon Sacheverell’s conviction as a criminal charged with high crimes and misdemeanours, and the implicit condemnation of the principles of passive obedience and non-resistance that he had upheld in his sermons. The Whig party remained in power in the summer of 1710, and the party had engaged Jacob Tonson and his presses to produce an authoritative folio volume of the proceedings of the trial that would present Sacheverell’s conviction as a settled matter, and the condemnation of his views on the Revolution and the Toleration Act as the uncontestable law of the land. 21 It is not for nothing that Morphew’s printed collection of loyal addresses was hastily assembled and rushed to sale by mid-June, just in time to coincide with the publication of Tonson’s official account of the trial; Morphew’s admonition that this collection ‘may serve as an Appendix to the Doctor’s Tryal’ on the title page was no idle piece of puffery. 22 The timing of these addresses mattered, but the timetable they were concerned about was not limited to a call to elect a new parliament. The publication of the addresses in particular should be seen as part of a Tory relitigation campaign in the court of public opinion. They were designed to repudiate the ‘Revolution Principles’ supposedly upheld by the Whig condemnation of Sacheverell’s defence of non-resistance and his criticisms of toleration for Protestant dissenters. Holmes, Trial, p. 238. Kevin Sharpe notes that ‘there has been no systematic study or close reading of the hundreds of speeches presented to Queen Anne and published’ in his Rebranding Rule: The Restoration and Revolution Monarchy, 1660–1714 (New Haven and London, 2013), p. 576. 20 (Ralph Bridges to William Trumbull, 3 April 1710) in Cowan, (ed), State Trial, p. 273. 21 Cowan (ed), State Trial, pp. 1–34. 22 Collection of the Addresses (1710), Madan 705, title page. Morphew’s collection was indeed bound up with copies of Tonson’s Tryal as an ‘appendix’ by Tory readers. See Charles Burd’s ‘Case of Henry Sacheverell,’ Harvard Law School, Rare Trials S folio, in Cowan, (ed), State Trial, p. 160. 18

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Figure 1: Address of the borough of Appleby in the county of Westmorland (1710), with wax seal and seventy signatures. © The British Library Board, Add. MS Ch. 76116. Courtesy of the British Library, London.

ADDRESS, PROGRESS, AND REDRESS IN THE LONG SUMMER OF 1710

Secondly, it is worth thinking more seriously about what an address was meant to do, and how the practice of addressing fit into the repertoire of political options in post-revolutionary England. Loyal addresses were a particular form of political performance in later Stuart Britain, and they should be understood as one part of a range of different kinds of early modern political performance.23 Sacheverell’s trial provoked a plethora of different political performances, from the drama of the trial itself and its somewhat anti-climactic conclusion, right through to the local and national debates that quickly ensued in its wake.24 Although far from being a novel practice, addressing became a particularly popular, and an increasingly common, form of political expression in Queen Anne’s reign; it was certainly more popular than it had been in the seventeenth century and perhaps more so than during the Georgian era as well, although more research on Hanoverian addressing is needed.25 The power of the address came not entirely from its content, but also from the way in which it was performed, and the context in which it was received. Above all, the address was a corporate act: it was typically made in the name of an established, corporate authority and it came more often than not with an official seal. As Phil Withington has observed, ‘the institutional and symbolic resources of the borough [as well as other corporate entities] were embodied in halls, chests, and common seals, and defined and exercised on the basis of personal presence as much as political abstraction’.26 The majority of the surviving manuscript copies of the 1710 addresses were presented with a corporate seal attached and the presence of the corporate seal added authoritative gravitas to the text of each address.27 For example, the address of the borough of Appleby in Westmoreland included a wax seal affixed to the document, along with the signatures of seventy members of the city’s government, including the Lord Mayor, the aldermen and members of the common council, along with the ‘free burghers’ as well as ‘other inhabitants of the borough … assembled in the publick hall’.28 (Figure 1) The address was presented to the Queen on 9 June by Edward Duncomb, an MP for the borough and introduced by the duke of Shrewsbury. In the printed Vallance, Loyalty, Memory and Public Opinion, pp. 160–83, develops a similar argument at length; compare Michael J. Braddick and John Walter, (eds), Negotiating Power in Early Modern Society (2001); Braddick, State Formation in Early Modern England c. 1550–1700 (2000); Richard Cust and Peter Lake, ‘Sir Richard Grosvenor and the Rhetoric of Magistracy’, Historical Research, 54 (1981), 40–53. 24 Cowan, ‘The Spin Doctor’. 25 Vallance, Loyalty, Memory and Public Opinion documents the rise of addressing in the later Stuart era; see also Knights, Misrepresentation and Representation, pp. 109-62; Sharpe, Rebranding Rule, p, 576; and Hannah Smith, Georgian Monarchy: Politics and Culture, 1714–1760 (Cambridge, 2006) for a few instances of the persistence of loyal addressing in early Hanoverian England. 26 Phil Withington, The Politics of Commonwealth: Citizens and Freemen in Early Modern England (Cambridge, 2005), p. 121. 27 Vallance, Loyalty, Memory and Public Opinion, p. 178. 28 BL, Add. MS Ch. 76116. 23

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version of the address, it is reported that Queen Anne ‘receiv’d [the address] very graciously; and Mr. Duncomb had the honour to kiss Her Majesty’s Hand’.29 The manuscript copy of the address of the borough of Ipswich was a large and elaborately decorated charter, measuring approximately 56cm by 48cm. The content of the address was remarkably anodyne given the febrile partisanship of the moment. It expressed the borough’s ‘most humble acknowledgements for the many remarkable instances of [Queen Anne’s] regard to our welfare and happyness, particularly that of uniting your kingdoms of England and Scotland’.30 Although praise of the union tended to be associated with Whig politics, the address says nothing about non-resistance, the revolution, succession, or any of the other controversial issues taken up by other more contentious addresses. The most notable aspect of the document is the elaborate calligraphy and the great size of the document itself. (Figure 2) Other manuscript addresses could be even larger. The Whiggish address of the ‘deputy lieutenants, militia, officers, gentlemen and others’ of Norwich comprised two long sheets of paper stitched together, thus creating a document that was over 163 centimetres long and forty-four centimetres wide. It was also personally signed by 543 men, by far the largest number of signatures found on an address responding to the Sacheverell controversies.31 The substantial size and number of signatories for this address was likely designed to demonstrate that it, rather than the earlier Tory address of the Norwich City government, reflected the true sentiments of the people of Norwich.32 The symbolic and personal aspects of the political theatre of addressing explain the sometimes violent disputes at the local level over the wording, signing, and corporate approbation for these addresses (e.g., the Shrewsbury and Surrey assizes, and the address of the London clergy).33 Addresses were just one of a range of symbolic gestures open to corporate bodies: other options included the presentation of gifts or honours. Sacheverell’s legal counseller, Sir Simon Harcourt, was presented with a dozen bottles of wine by the Corporation of Monmouth as a gesture of thanks for his service in defence of the Doctor. The City of Hereford gave Harcourt the Freedom of the City. Sacheverell himself ceremoniously presented Harcourt Collection of the Addresses which have been presented to the Queen… Part II, Madan 706, (1711), p. 4. For context, see Eveline Cruickshanks, Stuart Handley, and D. W. Hayton, (eds), History of Parliament: The House of Commons 1690–1715 (6 vols, Cambridge, 2002), II, 646; III, 944. 30 BL Add. MS Ch. 76119. 31 BL Add. MS Ch. 76121; printed in Collection of the Addresses, (1710), Madan 705, (June 1710), p. 47; Flying-Post, no. 2235, (3–6 June 1710). Earlier addresses could attract even larger numbers of signatories. Vallance, Loyalty, Memory and Public Opinion, pp. 124, 143. 32 Collection of the Addresses, (1710), Madan 705, (3 May 1710), p. 32; Post-Boy, no. 2341, (13–16 May 1710). 33 Dawks’s News Letter, (11 April 1710); BL, Add. MS 70421, 30 March 1710; Evening Post, no. 103, (8–11 April 1710); Post-Man, no. 1869, (8–11 April 1710); Flying-Post, no. 2211, (8–11 April 1710); Cowan, (ed), State Trial, pp. 276–77. See also Vallance, Loyalty, Memory and Public Opinion, pp. 104–6. 29

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Figure 2: Address of the borough of Ipswich in the county of Suffolk (1710). © The British Library Board, Add. MS Ch. 76119. Courtesy of the British Library, London. with a gilt basin inscribed with Latin verse praising him for his service in defending the ‘pristine discipline’ of the inviolable laws of the Church.34 The power of the loyal address therefore came from the way in which it combined the representative function of a corporate body, the symbolic authority that was represented through the physical presence of the corporate seal, and the ideological force of the actual content (and precise wording) of the address. Finally, the address was only complete after it had been presented to the queen, and signs of the queen’s approbation (or lack thereof) were eagerly Post-Boy, no. 2324, (4–6 April 1710); BL, Add. MS 4292, fo. 51; Bodl. Libr., MS. Top Oxon. C. 108, p. 167. 34

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sought out by observers. If the queen allowed those who presented the address to kiss her hand, this was a good sign; if the address received a warm reply from her majesty, so much the better.35 The presentation of a loyal address, therefore, consisted of the performance of a series of actions by a variety of different actors. It was meant to be an expression of corporate unity, but at moments of extreme division and crisis, such as during the summer of 1710, such unity was difficult, if not impossible, to obtain. * * * The 1710 addresses raised several issues that had not been at stake during Sacheverell’s trial: most notably the vexed question of the nature of the queen’s title to the throne (especially the relative importance of her hereditary and parliamentary rights), and the need to call a new parliament. The former issue had been a longstanding dilemma throughout Anne’s reign, and it demonstrated the fragility of the revolution settlement and widespread anxiety over the security of the Protestant and Hanoverian succession.36 The latter issue was more immediate, and it amounted to a pressure tactic designed to encourage the queen to dissolve her current Whig parliament and replace it with a new (and presumably more Tory) one.37 The addresses also proffered competing views of the contested history of English politics from the reign of Charles I through to Anne’s reign. A Whiggish address from Pembroke county reflected back on the time ‘before the last civil war’ when ‘were advanc’d enslaving principles from the pulpit, the supremacy of the church above that of the crown, and inciting and promoting riotous and tumultuous assemblies, for influencing Parliamentary justice; that the jealousies and animosities then reigning were fomented by the emissaries of France’.38 This address was remarkable in its attempt to parallel the 1630s with the 1710s and its glossing over the significant changes wrought by the Glorious Revolution, but it was exemplary of the way in which Anne’s reign was continually haunted by the memory of the seventeenth-century wars and revolutions.39 If the Whigs harkened back to the Laudian movement of the 1630s and even more so to the

Boyer, History of the Reign of Queen Anne, (1711), IX, 168, 244, 413; Collection of the Addresses, Madan 705, passim. 36 Howard Nenner, The Right to be King: The Succession to the Crown of England, 1603–1714 (Chapel Hill, 1995). 37 Geoffrey Holmes, ‘The Great Ministry,’ unpublished MS on deposit at the History of Parliament Trust. I am most grateful to the late Bill Speck for allowing me to consult his copy of this important study. 38 Flying-Post, no. 2227, (16–18 May 1710). 39 Matthew Neufeld, The Civil Wars After 1660: Public Remembering in Late Stuart England (Woodbridge, 2013); see also Edward Legon, Revolution Remembered: Seditious Memories after the British Civil Wars (Manchester, 2019). 35

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experience of tyranny during the short-lived reign of James II, the Tories kept the memory of the regicidal and republican 1640s and 50s alive in their addresses. While the post-Sacheverell trial addresses were dedicated to the queen as their sovereign ruler and protector, it is worth remembering that the royal address worked both ways. Addresses were not only composed by subjects for their sovereign prince; they could equally be given by the sovereign as a message for the ruled. Indeed, in the early modern era, more often than not, it was the crown who addressed her/his subjects (especially as represented in parliament, and often in the form of royal proclamations) rather than the other way around.40 This was the form of royal presentation that constituted Jürgen Habermas’s ‘representative public sphere’ and this alternative ‘absolutist public sphere’ coexisted alongside the more celebrated ‘bourgeois public sphere’ in later Stuart political culture.41 * * * The addressing campaign took place at the same time as Doctor Sacheverell engaged in his progress to his new living in the Shropshire rectory of Selattyn. Sacheverell’s progress should be understood as part of the context that framed the addressing campaign of 1710. What is remarkable in all of this posturing is the ways in which politically invested individuals (above all, Sacheverell himself) saw fit to manipulate the symbolism of power, and particularly royal power, for partisan purposes. While the addresses could be packaged as the humble advice and stalwart profession of loyalty from her majesty’s subjects, Sacheverell’s progress appeared to mimic the full pomp and circumstance of royalty, right down to the trumpets and cavalry.42 This was accomplished at a moment when royal progresses were no longer common. Although she had revived certain practices that emphasized royal majesty, such as touching for the king’s evil, Queen Anne was not energetic enough to endure long journeys through her kingdoms in the early eighteenth century. This left room for others to appropriate the symbolism and See Sharpe, Rebranding Rule, for several examples of the uses of royal addresses to their subjects from the post-Restoration period. 41 T. C. W. Blanning, The Power of Culture and the Culture of Power (Oxford, 2001). 42 The history of the royal progress and triumphal processions has been central to studies of the Tudor monarchy, but much more controversial in histories of the Stuart era. See William Leahy, Elizabethan Triumphal Processions (Aldershot, 2004); Malcolm Smuths, ‘Progresses and Court Entertainments,’ in A Companion to Renaissance Drama, ed. Arthur F. Kinney, (Oxford, 2004), pp. 281–93; and Mark Kishlansky, ‘Charles I: A Case of Mistaken Identity,’ Past & Present, 189, (2005), 41–80. The history of non-royal progresses, such as General Monck’s journey to London in 1659 or the duke of Monmouth’s progresses in 1680 and 1682, has not received much attention. Such events were rare, and they too tread dangerously close to royal privilege, as was the case with Sacheverell’s progress. On the latter, see Anna Keay, The Last Royal Rebel: The Life and Death of James, Duke of Monmouth (London, 2016). 40

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charismatic authority of monarchy, and Sacheverell’s ambition rose to the occasion. The queen was no mere cipher in the political culture of the early eighteenth century, but her image and authority was perhaps more manipulable than ever before in the context of the post-revolutionary ‘rage of party’. 43 Sacheverell’s personal progress began when he was granted a living worth two hundred pounds per annum associated with the rectory at Sellatyn in Shropshire just five days after the conclusion of the state trial. The living was in the gift of one Robert Lloyd of Aston, a wealthy Tory gentleman and a former pupil of Sacheverell’s from Magdalen College, Oxford. The timing of Lloyd’s gift was obviously meant as a political statement, although it could also be couched innocuously enough as ‘an irreproachable gift from a grateful student to an old tutor’.44 Despite some resistance from Bishop Fleetwood of St. Asaph, in whose see the appointment was to be administered (and who had voted for the conviction of the Doctor at his trial), supposedly due to Sacheverell’s inability to speak Welsh, there was little that could be done to prevent Lloyd from granting the living to his old tutor, as it was a position compatible with holding a university fellowship.45 News of the gift quickly circulated, however, and the Doctor’s celebrated political martyrdom (his punishment had been to be banned from preaching for three years) encouraged his supporters to invite him to read prayers to large crowds, to dine handsomely with his aristocratic supporters, and, as the newswriter John Dyer reported, ‘tis said most of the young ladys about town are resolved to be marryed by him’.46 Not long after Lloyd’s gift of the living had been announced, plans began to be made for Sacheverell to travel triumphantly from London to the town of Sellatyn, which was located very close to the border with Wales. It took about a month and a half to prepare for his journey, which was clearly well thought out and designed in advance with careful thought to turning the whole enterprise into a major propaganda exercise for the Tory cause. It is unlikely that Sacheverell’s Salopian progress was designed particularly to emulate a royal progress, for to do so would be a clear case of lèse-majesté, but it is telling that the whole endeavour could not help but resemble such an event. This points to the enduring appeal, and the persistence of, the cultural templates for the presentation of power that had been established by the Tudor and Stuart monarchs.47 By the early eighteenth century, those cultural templates could be appropriated by non-royal actors

43 Robert O. Bucholz, The Augustan Court: Queen Anne and the Decline of Court Culture (Stanford, 1993). 44 Holmes, Sacheverell, p. 239. 45 BL, Add. MS 707421 (27 Apr. 1710); Holmes, Sacheverell, p. 239. 46 BL, Add. MS 70421 (28 March 1710). 47 See Kevin Sharpe’s magisterial trilogy: Selling the Tudor Monarchy; Image Wars; and Rebranding Rule.

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such as Sacheverell, particularly at a moment when the queen was not able to play the role herself.48 Sacheverell left London early on a Monday, 15 May, with a substantial entourage of sixty-six horsemen, and they made their way to Uxbridge, where they stopped at a pub, The Crown (perhaps the same place where King Charles I had negotiated the Treaty of Uxbridge in 1645). His crew dined handsomely there. Thereafter, the Doctor’s procession made its way towards Oxford. Along the way, he was welcomed by crowds who gathered to see the Tory icon as he rode through the towns of Beaconsfield, High and West Wycombe, Stokenchurch, and Tetsworth. At Wheatley, five miles from Oxford, he was met by the Tory earl of Abingdon, who had voted against Sacheverell’s conviction at the trial, along with leading gentry and notables of Oxford University. He was escorted into the town by Abingdon’s entourage, which included several coaches and perhaps as many as two to three hundred horsemen.49 As he made his way to his lodgings at Magdalen College, Sacheverell was greeting by a large cheering crowd in the city.50 He had made the journey from London to Oxford in one day. At Magdalen he enjoyed a fortnight’s lavish entertainment, while multitudes collected to hear him read prayers, including the University’s vice-chancellor, William Lancaster, who appeared prominently as a means of deflecting rumours that he had abandoned Sacheverell’s cause on the eve of his trial. On Thursday, 1 June, the Doctor set off and proceeded to Banbury, halting at Sir Edward Cobb’s at Adderbury on the way; ushered by great crowds into the town, he was received by the mayor and corporation in their robes and conducted to his inn, while the evening’s entertainment included the lighting of bonfires, the ringing of bells, and ‘other demonstrations of joy’.51 While at Banbury, the recorder was reported to have presented Sacheverell with a present of twenty guineas. Other reports claimed that a ‘common councill’ had been summoned in order to collect sums ‘towards defraying the great expense [the Doctor] has been lately at’ in conducting his magnificent feasts and celebrations.52 Later contributions raised for the purpose of defraying Sacheverell’s exorbitant expenses incurred on his progress came from several Oxford colleges. White Kennett received reports claiming that Jesus College donated sixty guineas, Lincoln and Queen’s College each gave thirty guineas ‘and some single persons gave considerable sums’.53 On the persistence of monarchical charisma as an aspect of modern political celebrity, see Brian Cowan, ‘Histories of Celebrity in Post-Revolutionary England’, Historical Social Research/Historische Sozialforschung 32 (2020), pp. 83–98. 49 Holmes, Sacheverell, p. 242; Boyer, Annals, IX,202. 50 BL, Add. MS 88475B, [unfoliated]. 51 Post Boy no. 2351, 6–8 June 1710; no. 2352, 8–10 June 1710; BL, Add. MS 70420 (6 June 1710). 52 Les Tours d’une Tabatière: or, The Travels and Misfortunes of the Enchanted Snuff-box, Madan 676 (London, 1710), p. 4; BL, Add. MS 70420 (6 June 1710). 53 BL, Landsdowne MS 1024, fo. 220r; printed in White Kennett, Wisdom of Looking 48

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From Banbury, Sacheverell moved on to Hinton, a village in Warwickshire where he was similarly fêted and entertained by the gentry and clergy of the region. He dined with another Tory lord, Richard Verney, Lord Willoughby of Brooke, and proceeded on to the town of Warwick. Dyer reports that ‘tho twas market day and the towne had not halfe an houres notice of his comeing he was met by severall of the inhabitants on horseback the windows and streets were filled the people crying God bless Doctor Sacheverell & he was waited on by the Mayor and aldermen and recorder, thanked by them and invited to supp that night with the corporation which he refuseing they treated him and the many gentry and clergy that came to waite on him very generously’.54 And so was established the template for the Doctor’s triumphant progress towards Sellatyn. Both the Tory and the Whig press had a field day with reporting on the journey: the Tory Post Boy was quick to point out how Sacheverell was greeted by adoring crowds and grateful magistrates and clergy throughout the West Midlands, whereas the Whig Flying Post suggested the horsemen who rode to meet him were only lowly shopkeepers, and that the mayors and aldermen who greeted him often forgot to wear their robes and declined to offer him entertainment and hence instigated disputes over paying the reckoning at local inns when it was produced.55 Sacheverell continued on through the cites of Coventry, Birmingham, Wolverhampton and Cannock on his way to Lichfield, where he arrived on 18 June. At Lichfield, the city corporation presented him with a gift of three dozen bottles of wine, which was surely much appreciated by the famously bibulous Doctor. It was claimed that ‘the high sheriff of the county, and the government of the city [met Sacheverell]… with the same solemnity with which they would have met their sovereign’.56 This is a telling remark, and it demonstrates the awareness that contemporaries had that Sacheverell was aping the actions of the monarchy by conducting his journey to Shropshire in this way. By 23 June, Sacheverell was on his way to Wrexham, where his entry to the city was celebrated by lighting bonfires and burning the effigy of Benjamin Hoadly (his Whig clerical nemesis). The Tory press claimed that the dishonour shown to Hoadly (who was after all an ordained minister of the church just as Sacheverell was), ‘so disgusted him that he hurried through the town and proceeded to the house of Mr George Shakerly, within one mile of Sellatyn. There he was acclaimed by a crowd numbering over 3000’.57 Sacheverell remained at Sellatyn until his induction to his rectory, which took place on 27 June, and was followed by a luncheon party to all present at the ceremony. The Doctor did not stay long at his rectory (indeed, there is no evidence Backward: To Judge the Better of One Side and T’other, by the Speeches, Writings, Actions, and Other Matters of Fact on Both Sides for the Four Years Last Past, Madan 1118 (London, 1715), p. 70. 54 BL, Add. MS 70420 (8 June 1710). 55 Flying Post, nos. 2243, 20–22 June; 27–29 June; 2248, 1–4 July 1710. 56 BL, Additional MS 88475 B, [unfoliated]. 57 Post Boy, no. 2360, 27–29 June 1710.

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Figure 3: The Banb---y [Banbury] Apes: Or, the Monkeys Chattering to the Magpye. In a Letter to a Friend in London, Madan 545 (London, 1710); frontispiece. Beinecke Library, shelfmark: Ik.D362 710Be.

that he would ever return to the place), and he soon made his return through the cities of Worcester and Marlborough and on back to Oxford, where he arrived on 19 July in order to receive another hero’s welcome from vice-chancellor Lancaster. Sacheverell’s return to Worcester occasioned additional controversy when the Whig bishop of Worcester, William Lloyd, ordered that no bells in his diocese should be rung on the occasion of Sacheverell’s entry into towns under his jurisdiction. It is unclear as to whether Bishop Lloyd’s orders were successful or not: Whig accounts claim that while some zealous Tories tried to defy the bishop’s orders, they were unsuccessful in their attempts to provide the Doctor with a hero’s welcome to the town, and Sacheverell’s return to Worcester was anti-climatic.58 Tory accounts, on the other hand, claim that the Doctor was greeted by several hundred horsemen, as was now usual, and that ‘the inhabit[ants], tho comanded to the contrary, rung the bells till the church doors were broke open and the ringers forced out. Dyer claimed that so ‘fearfull were they [i.e., the diocesan authorities] of the zeal of the people in one parish that they took the clappers out of the bells’. The clash between Worcester Whigs and Tories became so fierce in this account that it resulted in an attempted desecration of the city’s statue of King Charles I ‘which The Worcester Triumph, or a true account of Dr Sacheverell’s entrance and reception in that city on Friday July 14th, 1710, Madan 530, (1710). 58

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was drest with flowers and laurels’.59 Sacheverell’s journey through the Midlands provoked many reminders of the civil wars of the 1640s and indeed many of the cities he had visited, such as Uxbridge, Worcester, and of course Oxford, had been important centres of royalist defiance of the parliamentary regime during the interregnum.60 The anxieties provoked by Sacheverell’s pseudo-royal progress were not limited to a few offhand remarks: they were indicative of a deep anxiety provoked by a royalist revanche conducted by a high church clergyman who had recently been condemned by the highest court of the land and without the approbation of the queen. An anonymous pamphleteer, who may or may not have been Daniel Defoe, satirized the Doctor’s journey as little more than an overblown peep show and an imposition on the public. This tract, entitled, The Banb---y [Banbury] Apes (Madan 545–50, 1710) compared Sacheverell’s entry into Banbury to an attempt by an Elizabethan-era fraudster to convince the city dignitaries to welcome and honour the entry of the queen’s favourite ape. Sacheverell in this case, was likened to be a modern-day ape, and one who was fraudulently emulating the trappings of royal majesty as well as duping an ignorant public. 61 The frontispiece to the tract made explicit this comparison, whilst also insinuating that Sacheverell’s triumphant entry into the cities on his tour might also be seen as a blasphemous re-enactment of Christ’s entry into Jerusalem on Palm Sunday. (Figure 3) The memory of the Quaker James Nayler’s similar procession through the city gates of Bristol in 1656 likely provoked this representation of Sacheverell as a false idol for his high church followers. Nayler rode into Bristol on an ass as his disciples waved branches and spread garments before him; like Sacheverell, Nayler was also subject to a parliamentary trial and was convicted. Unlike Sacheverell, however, Nayler’s punishment was severe: he was publicly whipped, branded with a ‘B’ (for blasphemer) on his forehead and had a hole bored through his tongue.62 The implication here was that Sacheverell – ‘the High Ch[ur] ch IDOL’ who rode into Banbury on a Sorrel Horse, presumably named after the famed horse that had thrown King William III to his death – was akin to Nayler, and that the Doctor was lucky that his punishment had been so much more lenient than that meted out to Nayler.63 BL, Add. MS 70421, (29 July 1710). I am grateful to Michael Braddick for this suggestion. 61 Defoe’s authorship of this tract, and the related A New Map of the Laborious and Painful Travels of our Blessed High Church Apostle, Madan 566, (1710), is disputed by Furbank and Owens, Defoe De-Attributions, (London and Rio Grande, 1994), nos. 175, 181, on the grounds that they contradict Defoe’s certain account of Sacheverell’s progress in the Review, (13 July 1710; 27 July 1710). But Defoe was never known for his consistency, so his authorship remains possible, but not probable. 62 Phyllis Mack, Visionary Women: Ecstatic Prophecy in Seventeenth-Century England, (Berkeley and Los Angeles, 1992), pp. 198–99. 63 The Banb---y [Banbury] Apes, Madan 545, (1710), 5. The horse upon which King 59 60

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Figure 4: Design for bas-relief on the base of the statue of Samuel Johnson at Lichfield; R. C. Lucas (1800–83), undated, 17 x 13 cm. Houghton Library, MS Hyde 76 (1.1.39.3), courtesy of the Houghton Library, Harvard University.

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Sacheverell’s legal counsellor Joseph Trapp felt so compelled to defend his friend from accusations of rising beyond his station that he penned an entire pamphlet entitled An Ordinary Journey No Progress, or, A Man doing his Own Business No mover of Sedition (Madan 565, 1710). The title of this otherwise unremarkable tract sums up the gist of its argument. The work attempted to deny the obvious propagandistic purpose of Sacheverell’s progress: it claimed instead that Sacheverell’s West Midlands journey was nothing more than the honest attempt of a humble clergyman to take up the rightful institution of his living at Selattyn. If he had been mobbed by adoring crowds and fêted by the Tory gentry and aristocracy of the places he happened to venture through on his way, that was no fault of his own. Few were convinced by this disingenuous explanation.64 Sacheverell’s progress later became the stuff of legend. In his biography of Samuel Johnson, James Boswell recounted a story told to him by one Mary Adye of Lichfield, which attested to Johnson’s reputation as ‘the infant Hercules of toryism’. She recalled how When Dr. Sacheverel was at Lichfield, Johnson was not quite three years old. My grandfather Hammond observed him at the cathedral perched upon his father’s shoulders, listening and gaping at the much celebrated preacher. Mr. Hammond asked Mr. Johnson how he could possibly think of bringing such an infant to church, and in the midst of so great a croud. He answered, because it was impossible to keep him at home; for young as he was, he believed he had caught the publick spirit and zeal for Sacheverel, and would had staid for ever in the church satisfied with beholding him.65

While this story is highly unlikely to be true, it attests to the long-lasting memory and cultural importance that Sacheverell’s journey held through the rest of the eighteenth century.66 In 1838, the moment was ensconced in stone as one of the foundation bas relief pieces for Dr. Johnson’s memorial statue in Lichfield.67 (Figure 4) William was riding when he fell and incurred the broken collar-bone that caused his death was named Sorrel. From that moment onwards, Jacobites celebrated Sorrel the horse for his service to their cause. G. M. Trevelyan, England Under Queen Anne, (3 vols, London, 1930), I, 160. 64 The work did not generate much enthusiasm, although it was praised by the nonjuror George Hickes. See Bodl. Libr., MS Ballard 12, fo. 180r, (7 Sept. 1710, George Hickes to Arthur Charlett). 65 James Boswell, Boswell’s Life of Johnson, ed. George Birkbeck Hill, (6 vols, Oxford, 1934) I, 38–39. 66 For sceptical accounts of Johnson’s purported visit to see Sacheverell at the tender age of three, see the biographies by Walter Jackson Bate, Samuel Johnson (New York, 1975), p. 16; Robert DeMaria, The Life of Samuel Johnson: A Critical Biography (Oxford and Cambridge, Mass., 1993), p. 27; and Peter Martin, Samuel Johnson: A Biography (2008), p. 23. 67 ‘Statues and Memorials in the British Isles’, Notes and Queries (2 Sept. 1911), 181.

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* * * By the end of the long summer of 1710, the Sacheverell debates were even more alive than they had been at the beginning of the year, thanks to the relitigation of the trial in the court of public opinion after his conviction and sentencing. Neither the Doctor’s Whig opponents nor his Tory defenders won their case. The debates inspired by Sacheverell’s trial would continue to rage through the next few years, but they would ultimately die down only with the passing of time.68 The death of the queen put a final damper on the debates as a new political era would arrive in the wake of the Hanoverian accession. Although the Sacheverell addresses and the Doctor’s personal progress show in some ways the fissiparous dissipation of royal charisma and authority into the politics of a now polyvalent public sphere, it is worth remembering that it took a royal death and the installation of a new dynasty – one of the most traditional kinds of high political watershed moments – to finally extinguish the flames that had been lit by Sacheverell’s prosecution in the first place.69

The best account of the years between the Sacheverell trial and the death of Queen Anne is Geoffrey Holmes’s unpublished manuscript ‘The Great Ministry’, which is held on deposit at the History of Parliament Trust. 69 The recent tercentenary of the Hanoverian succession has occasioned several substantial reassessments, including Andreas Gestrich and Michael Schaich (eds), The Hanoverian Succession: Dynastic Politics and Monarchical Culture (Farnham, 2015); William Gibson with Elaine Chalus and Roberta Anderson (eds), ‘Religion, Loyalty and Sedition: The Hanoverian Succession of 1714’, Journal of Religious History, Literature and Culture, 2:2 (Nov. 2016); Allan Macinnes and Brent Sirota (eds), The Hanoverian Succession in Great Britain and its Empire (Woodbridge, 2019); and Nigel Aston and Benjamin Bankhurst (eds), Negotiating Toleration: Dissent and the Hanoverian Succession, 1714–1760 (Oxford, 2019). 68

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10 Politics and Sentiment in the Jacobite State Trials Paul Monod

How were texts read in the past?1 This simple question raises so many knotty problems – of locating and assessing sources, of interpreting behavior and of theoretical assumptions concerning the practices of reading – that it might be regarded as nearly unanswerable with regard to individual texts.2 What strategies did authors, editors and publishers use to determine how texts might be read? Here we may be on firmer ground. As an influential compendium of materials that appeared in several different editions, State Trials provides a fascinating case study of how a set of texts was designed to be read. State Trials was part of what Julia Rudolph has called the ‘deep engagement with print’ that was typical of eighteenth-century English law.3 Until recently, however, the early versions of State Trials were regarded as highly biased sources. The exasperated editor of the so-called fourth edition, Francis Hargrave, pointed this out as early as 1776. Complaints from historians about the incompleteness and partisanship of State Trials date back to J. G. Muddiman in the 1920s and have been repeated by George Kitson Clark and John Langbein.4 In an article published in 2006, however, Michael Mendle dismissed such criticisms, For suggestions in preparing this essay, I would like to thank Paul Halliday, the participants in the Newberry Library ‘Rethinking the State Trials’ symposium and those in the Early Modern Britain Seminar at Merton College, Oxford, led by Ian Archer and Steven Gunn. 2 The starting point for addressing this question is Guglielmo Cavallo and Roger Chartier (eds), A History of Reading in the West, trans. Lydia G. Cochrane (Amherst, 1999). For reading as a physiological response, see Adrian Johns, The Nature of the Book: Print and Knowledge in the Making (Chicago, 1998), ch. 6. 3 Julia Rudolph, Common Law and Enlightenment in England, 1689–1750 (Woodbridge, 2013), p. 268. The conventional sequence of State Trials editions is as follows: first edition 1719, revised 1720; second edition 1730, revised 1735, reprinted 1766; third edition 1737, reprinted 1742; fourth edition 1776–81; fifth edition 1809–28. The editions did not have identical titles but all are referred to here as State Trials. 4 J. G. Muddiman, State Trials: The Need for a New and Revised Edition (Edinburgh, 1930); G. Kitson Clark, The Critical Historian (London, 1967), pp. 92–114; John Langbein, ‘The Criminal Trial Before the Lawyers’, University of Chicago Law Review 45:2 (1978), 264–7; John Langbein, The Origins of Adversary Criminal Trial (Oxford, 2003), pp. 14–15, 54. 1

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asserting first, that State Trials was based on accurate shorthand accounts of trial proceedings and second, that later editors were not pursuing particular agendas. Therefore, Mendle concludes, ‘a general confidence in the integrity of the process was not misplaced’. The trials belonged to a ‘culture of fact’ that appealed to the contemporary spectrum of political and religious points of view.5 Mendle’s brief argument did not delve into ‘factuality’ as a hermeneutic strategy; nor did he consider whether State Trials might embody sentiment as well as facts. The subject demands a more critical approach. Because we cannot grasp at first hand the objective reality of a seventeenth- or eighteenth-century courtroom, the claim of ‘factual accuracy’ for a trial transcript kept by a shorthand writer, often in the employ of the court itself, is questionable. Without doubt, State Trials reflected the contemporary obsession with ‘facts’ in imagining the legal system. By reference to them, the justness of English law might be displayed, or the deficiencies in its application revealed. The interpretation of ‘facts’, however, was affected by further considerations, including the ways in which words spoken in court were selected, edited and presented. The criticisms of Muddiman and Langbein, therefore, remain well-founded. Nevertheless, they ignored an important purpose behind State Trials: it made the past usable. It was meant to be a practical guide for defendants, jurors, lawyers and judges. To achieve that purpose, it presented examples of how English law had operated. Because the first editor of State Trials, Thomas Salmon, regarded the administration of justice in recent political cases as seriously flawed, he sought to advise those who might be wrongly accused of similar crimes. As a result, he aimed to elicit sympathy for defendants, although not necessarily for the causes in which they had suffered. He ignored the ‘Reports’ on which legal precedents were based, relying instead on popular printed trial records, from which he expunged extraneous materials like prefaces, commentaries or dying speeches that might be attached to the originals. In selecting trial records, he sought to achieve balance, avoiding those that proclaimed a particular political viewpoint. He preferred trials that focused on a clearly identified defendant – a person, not a group, movement or institution – and that progressed through dialogue. Salmon’s editorial approach has to be understood in a broad cultural framework as well as a narrower political one. It served his aims, but it also validated the historicity of legal narrative and deferred to varied perspectives, allowing texts to be appropriated in different ways by individual readers. From the start, State Trials concentrated on the recent past. Within the four volumes of the 1719 collection were found only thirty-five trials that took place before 1660, among them cases of murder, divorce and sodomy, as well as sedition. No fewer than seventy-seven trials marked the period after the Michael Mendle, ‘The “Prints” of the Trials: The Nexus of Politics, Religion, Law and Information in Late Seventeenth-Century England’, in Fear, Exclusion and Revolution: Roger Morrice and Britain in the 1680s, ed. Jason McElligott (Burlington, 2006), pp. 123–37, quotation on p. 136. 5

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Restoration, most of them involving high treason. Among the latter were a large number of proceedings against Whigs and dissenters – the Rye House Plotters, Algernon Sidney, Lord Russell, the Monmouth rebels. Salmon eschewed personal commentary and cited only a few contemporary remarks on these trials. With deliberate even-handedness, he included two pamphlets against and one in favour of the conviction of Lord William Russell in 1683, as well as a piece by the Whig lawyer Sir John Hawles, questioning the regularity of trials under Charles II and James II but studiously avoiding issues of guilt or innocence.6 While these careful interventions are not unambiguous, they hint strongly at the possibility of miscarriages of justice. The concentration on trials that had become iconic to the Whig party further suggests that the reader was meant to take notice of them as a group. If the Compleat Collection of State Tryals had stopped at the overthrow of James II, the reader might have been left with the impression that the later Stuarts had abused English justice, but subsequent events had set it right again. Significantly, Salmon did not end his collection in 1688. Instead, he included a number of trials of those accused of conspiring to restore the Stuart claimant to the throne after the Glorious Revolution. The Jacobite treason trials were even more recent than the Restoration trials, and equally contentious. Their inclusion reveals with striking clarity what Salmon wanted to convey to readers – a message charged with politics, but also appealing to broadly humane sentiments. The abuses in English justice associated with the Stuarts had not ceased with the Revolution, Salmon implied, and had continued under subsequent reigns, when the prosecutors were mainly Whigs and the victims were Catholics or Tories. The political tables had been turned, but the courts had not become fairer. The Jacobite trials, in short, provide a key as to how the whole collection was supposed to be read. Salmon’s first edition of State Tryals contained thirty-four post-1688 trials, of which ten dealt with Jacobite conspirators. Several other cases mentioned Jacobitism in passing but will not be considered here (among them, the trials of the earl of Castlemaine, the privateer Thomas Vaughan and the printer William Fuller). The Jacobite trials included those of Viscount Preston and John Ashton in 1690; eight proceedings connected with the Assassination Plot of 1696; and a Scottish case related to the planned rising of 1708. The first edition ended with the 1710 Sacheverell trial, but the folio version of 1720, entitled Tryals for High Treason, included one further Jacobite treason trial, that of the Jewish merchant Francis Francia. 7 Additional Jacobite trials were added to later editions of State Trials down to 1776, but the original ten trials were never replaced. [Thomas Salmon], Compleat Collection of State Tryals (4 vols, London, 1719), III, 174–204, 611–53. The inclusion of Hawles’s remarks may be ironic, as he led the prosecution of Sir John Fenwick in 1696 and was one of the managers of the trial of Dr Sacheverell in 1710. 7 [Salmon], State Tryals, vols 3 and 4; Thomas Salmon, Tryals for High Treason (6 vols, 6

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The importance of Jacobite conspiracy in State Tryals was hardly surprising, as the contested succession remained significant in all three British kingdoms until 1722.8 The first editor of State Trials might have been expected to take a position on these matters, but what were his views? Thomas Salmon had religious dissent in his background, which may explain his sympathy for Whig and dissenting defendants under the Restoration. His maternal grandfather was a Congregational minister deprived in 1662, his grandmother a devout puritan whose death occasioned a eulogy by the preacher Isaac Watts. Salmon’s mother was said in 1720 to have been ‘walking in the same Steps’ as her pious dissenting relatives.9 Salmon’s father, however, was a conforming Anglican clergyman, who along with writing pamphlets on musical notation composed a highly orthodox catechism for the Church.10 Salmon’s older brother, Nathaniel, gave up a career in the Church in 1702 because he refused to take an oath abjuring the Stuart Pretender. Like many other nonjurors, Nathaniel became a physician and a writer on antiquities.11 Thomas Salmon the younger did not initially aspire to enter the literary world where his father and brother had gained minor fame. He began his career, like many younger sons of clerical families, by seeking fortune as a soldier. He served with the East India Company in South Asia and later fought with Marlborough’s army in Flanders. He also lived in the West Indies and kept a coffee-house in Cambridge, before turning to writing for a living.12 His global adventures gave him a taste for travel and for commercial gambles. They did not make him into a supporter of the Whig government, although he was willing to work for those who were. The commission to write State Tryals, his first publication, came from the printer John Darby the younger, whose father was an ardent Whig in politics and Anabaptist in religion. A defender of the Hanoverian succession, the younger Darby appeared in 1719 as a witness against the young printer John London, 1720). I have used State Tryals when referring to these two editions and that of 1737, State Trials to denote other editions or the complete corpus of editions. 8 See Eveline Cruickshanks (ed.), Ideology and Conspiracy: Aspects of Jacobitism (Edinburgh, 1982); Paul Monod, Jacobitism and the English People, 1688–1788 (Cambridge, 1989); Daniel Szechi, The Jacobites: Britain and Europe, 1688–1788 (Manchester, 1994); Murray Pittock, Jacobitism (Basingstoke, 1998); Eveline Cruickshanks and Howard Erskine-Hill, The Atterbury Plot (Basingstoke, 2004); Rachel Weil, A Plague of Informers: Conspiracy and Political Trust in William III’s England (New Haven, 2013). 9 Anon., An Account of the Life and Death of Mrs. Elizabeth Bury (Bristol, 1720), pp. 3–4. 10 Thompson Cooper, ‘Salmon, Thomas (bap. 1679, d. 1767)’, rev. Philip Carter, Oxford Dictionary of National Biography [hereafter ODNB] (Oxford, 2004); online edn (http:// www.oxforddnb.com/view/article/24558, accessed 4 Sept 2017); Thomas Salmon, The Catechism of the Church of England (London, 1699); Penelope Gouk, Music, Science and Natural Magic in Seventeenth-Century England (New Haven, 1999), pp. 62–3, 231–2. 11 W. Raymond Powell, ‘Salmon, Nathanael (1675–1742)’, ODNB, online edn; John Nichols, Biographical and Literary Anecdotes of William Bowyer, F.S.A., and of Many of his Learned Friends (London, 1782), pp. 150, 638. 12 Cooper, ‘Salmon, Thomas’, rev. Carter, ODNB, online edn.

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Matthews, who was put to death for typesetting a Jacobite pamphlet.13 Lists of books sold by Darby from 1706 to 1717 show that he followed in the family tradition of religious dissent and radical Whiggism. Darby also stocked various historical collections, among them State Tracts, Poems on Affairs of State and John Rushworth’s Historical Collections.14 If he wanted Salmon to prepare a similar compendium, it was probably on account of the commercial potential of such a work, not because he trusted the fledgling editor’s political judgment. Perhaps Darby also placed confidence in Salmon’s ties to dissent. If so, he was badly misled. Salmon’s next publication after State Tryals, a life of the late Queen Anne that appeared in 1721, expressed the opinions of a committed Tory. Salmon defended Dr Sacheverell, the Treaty of Utrecht and the Tory governments of 1710–13. As for the Jacobites, he thought them ‘hardly considerable enough to be mention’d’, except that the Whigs used them to defame the Tories in the same way the Tories used the small group of republicans to embarrass the Whigs. According to Salmon, the Jacobite party consisted of: some Members of the Church of England, and all the Roman Catholics of this Kingdom; the First of whom, upon a Principle of Conscience, the Others of Duty, Inclination, and Interest, did constantly adhere to the late King James, and as far as in them lay, promoted his Restauration, as they do now that of the Pretender.15

This was neither a hostile nor a sympathetic characterization. It avoided the anathemas usually bestowed on Jacobites by Whigs, but stopped short of justifying opposition to the ruling monarch. Salmon added, however, that party distinctions were for ‘the second Class, or inferiour Rank of Men’. He opined that ‘Persons of the first Rank’ took on the leadership of parties only ‘as they judge it most subservient to their private Ends or Designs’.16 It was aristocrats like this – Marlborough and Godolphin in particular – whom Salmon blamed for the abuses of state power in recent English history. He was, in short, a Country Tory with an animus against the self-serving magnates who headed British administrations. Salmon followed up this prickly performance in 1724 with a two-volume Review of the History of England, the purpose of which was to inquire into the legality of royal titles to the throne, as ‘surely it behoves every private Man to Francis Hargrave (ed.), A Complete Collection of State Trials and Proceedings for High Treason (11 vols, London, 1776–81), IX, cols. 693–4. A synopsis of Matthews’s trial appeared in The Bloody Register: A Collection of the Most Remarkable Trials… from the Year 1700, to the Year 1764, inclusive (London, 1764), 232–6. 14 John Nichols, Literary Anecdotes of the Eighteenth Century (9 vols, London, 1812–15), VIII, 367; Books Sold by John Darby in Bartholomew Close, London ([London], [1706, 1710 and 1717]). 15 Thomas Salmon, The Life of her late Majesty Queen Anne (2 vols, London, 1721), II, 281. 16 Ibid., II, 282. 13

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make a particular Scrutiny into these Matters’.17 This sounds as if it might lead to Jacobitism, which was exactly the accusation made against him by a certain J. Henley – quite likely the clergyman and hack writer John Henley – in February 1724. Salmon’s Review had a ‘dangerous tendency’, Henley griped in a letter forwarded to the secretary of state. To prove it, he cited passages from the work, to the effect that ‘bare Possession was never thought to give any of our Princes a Title to the Throne’, and that ‘Government is, no doubt, the Ordinance of Heaven, and not of the People’.18 Henley neglected, however, to quote Salmon’s statement ‘that when the Crown is settled by the King and the Three Estates, no Authority less than that can defeat such a Settlement’.19 In other words, the succession could be altered only by consent of the monarch and parliament. Salmon seems here to uphold the 1701 Act of Settlement, establishing the Hanoverian Succession. A Jacobite reader like Salmon’s brother Nathanael would have found such words discouraging. Perhaps the secretary of state read them, as the government wisely decided not to prosecute their author. Like the Review, Salmon’s State Tryals was not compiled for Jacobites, although it did not exclude them from the lessons it presented either. It sought to appeal to readers of all political opinions by pointing out recurring themes in the practical application of the law. The first paragraph of the preface to State Tryals, most likely penned by Salmon rather than Darby, clearly spelled out the work’s intentions: Since ‘tis observable that the Best and Bravest of Mankind are far from being exempted from criminal Prosecutions, and that potent Malice, or prevailing Faction, have too often attempted the most consummate Merit; that Learning which shews how Life, Honour, and Innocence are to be defended, when they shall happen to be injuriously attack’d, will not, ‘tis presum’d, be thought inferiour to that, which instructs us how to defend our less important Rights.20

Like the question of allegiance, in other words, the right to scrutinize the legal means by which he might defend himself against unjust accusations belonged to ‘every private Man’. This was a message addressed to defendants, not to prosecutors. It could appeal to Whig or Tory, Hanoverian or Jacobite, depending on which way the political winds were blowing. As editor, Salmon insisted on his own impartiality in assembling the collection, and the illustrious list of subscribers, both Whigs and Tories, testified to his success, or to that of his publisher. Of 325 non-institutional subscribers, 35 Thomas Salmon, A Review of the History of England (2 vols, London, 1724), I, ii. The groundwork for this publication was laid in Thomas Salmon, The Chronological Historian (London, 1723). See Laird Okie, Augustan Historical Writing: Histories of England in the English Enlightenment (Lanham, 1991), pp. 99–114. 18 J. Henley to Charles Delafaye, Feb. 4, 1723/4, TNA, State Papers 35/48/42. The citations are from Salmon, Review, vol. 1, Dedication, pp. vi and 73 (misquoted). 19 Salmon, Review, Introduction, p. xvii. 20 [Salmon, ed.], State Tryals, I, Preface, iii. Francis Hargrave attributed this preface to Salmon. 17

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were peers or peeresses, including the earls of Sunderland and Stanhope, leaders of the Whig ministry. The list included 19 baronets, many of them staunch Tories, 9 knights, 106 esquires (among them Joseph Addison), 11 gentlemen, 9 plain Misters and 3 military officers. Of these peers and gentlemen, 13 held an office related to the law, while a further 81 names were those of lawyers of the Inns of Court, alongside 6 serjeants-at-law (barristers with right of precedence in the high courts). Only 12 clergymen, 6 doctors and 7 merchants or tradesmen (excluding 16 booksellers) subscribed to the expensive work, which was priced at £6.4.0 in quarto, £10.6.8 in folio.21 Salmon’s subscribers were landed gentlemen and lawyers, not those of the trading sort. He aimed to instruct rather than entertain them. While hoping that State Tryals might ‘be useful to the Learned in the Law, and to those whose Misfortune it might be to fall under a Criminal Prosecution’, he also saw it as a record of ‘Justness of Argument and true Eloquence’.22 Far from being a celebration of English justice, State Tryals was a guide to the rhetoric of the courtroom for lawyers and gentlemen who might run afoul of the law in an age of faction. Salmon’s choice of Jacobite conspiracy trials upheld this approach. The ten cases he included center on two issues: the evidence of treasonable behaviour, and whether the accused should have been provided with counsel. Of course, these aspects of the law were not invented by Salmon, but he selected cases that clearly illustrated them, omitting others where the issues were murkier. The parallels between treason trial procedures before and after 1688 would have been obvious. While concerns about fairness to defendants should have been addressed by the Treason Trials Act of 1696, Salmon did not chronicle any English trial in which the Act had benefited a defendant through acquittal. Instead, he chose to include a notorious 1696 parliamentary proceeding for attainder – not a state trial at all, but a debate over a bill – which demonstrated how the government could circumvent the Act in its pursuit of suspected conspirators. He also inserted a truncated account of a Scottish treason trial in which counsel for the defense obtained a ‘not proven’ verdict. The Jacobite cases in State Tryals begin with the proceedings at the Old Bailey in January 1691 against Richard Grahme, Viscount Preston, and Major John Ashton, who were captured with a naval captain, Edmund Elliott, while hiding on a boat bound for France, carrying what were said to be treasonable letters.23 Arraigned together but tried separately within two weeks of their arrest, Ibid., I, v–viii. Ibid., I, Preface, iv. 23 Salmon’s sources were The Arraignment, &c., of Sir Richard Grahme, Baronet, Viscount Preston in the Kingdom of Scotland, and John Ashton, Gent. (n.p., n.d.) and The Arraignment, Tryal, Conviction, and Condemnation of John Ashton, Gent. for High Treason (London, 1691). He reprinted these sources in State Tryals (1719), III, 856–933. For Jacobite conspiracies in this period, see Paul Hopkins, ‘Sham Plots and Real Plots in the 1690s’, in Cruickshanks (ed.), Ideology and Conspiracy, pp. 89–110; Paul Monod, ‘Jacobitism and Country Principles in the Reign of William III’, Historical Journal 30:2 (1987), 289–310; 21

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the accused had almost no time to prepare a defense. Preston claimed that he was a peer of England, and must be tried in the House of Lords, but he was unable to produce letters patent to that effect. The Lords had already rejected his peerage, granted by James II during his last days in England, and the court did not reopen the matter. Preston and Ashton had more compelling demands, as summarized by the Whig chronicler Narcissus Luttrell (later a subscriber to State Tryals): “Then they desired a copy of their indictment, and that they might have council allowed them: the 1st was denied, being it was never granted, and the other unless they raise a point in law, which the court thought material, they would assign them council…”24 As the provision of a copy of the indictment and of access to counsel had been important issues in treason trials under the later Stuarts, the defendants were making a pointed political statement by raising them. Ashton further noted that there was no proof he had written any of the letters found on the ship, but Lord Chief Justice Pollexfen replied that his behaviour showed he knew what was in them, which was enough to convict him.25 If this was considered sufficient to convict it assumed a frighteningly vague definition of high treason. Ashton was duly found guilty and executed on 28 January, but the full penalty of strangling, disemboweling and beheading was not carried out, and he was simply hanged and quartered. His declaration on the scaffold proclaimed his Protestantism and vindicated his loyalty to James II. Ashton appealed ‘even to the Judges themselves, whether or no, upon my Tryal, there appeared the least Proof that I knew a Tittle contained in the Papers’. He maintained that ‘I am the First Man that ever was Condemned for High Treason upon bare Suspition or Presumption’.26 While his claim for precedence was unlikely, the broader point was hard to counter, since no evidence had been presented to prove that he was even aware of the contents of the letters he was carrying. A hostile reply to Ashton’s scaffold speech maintained that his desire to have the letters thrown overboard was sufficient proof he knew what was in them, and implied that a copy of one of the letters was in his own hand, which had not been mentioned at his trial.27 The appearance of a paper purported to have been written by Ashton prior to his execution further complicated the case. It asserted, falsely, that the notorious letters were concerned with demonstrating the legitimate birth of the Prince of Wales, not with a conspiracy, and added that Captain Elliott knew nothing of what was Weil, Plague of Informers, ch. 3. The papers of Edward Clarke, MP, contain Preston’s copies of the letters; see Somerset Record Office, DD/SF/13/2/20. 24 Narcissus Luttrell, A Brief Historical Relation of State Affairs from September 1678 to April 1714 (6 vols, Oxford, 1857), II, 160. 25 [Salmon, ed.], State Tryals (1719), III, 936 [sic: should be 931]. 26 A Copy of Mr. Ashton’s Paper, Delivered to the Sheriff at the Place of Execution, January 28, 1690/1 (n.p., [1691]), [p. 2]. 27 An Answer to the Paper, Delivered by Mr. Ashton at his Execution (London, 1690 [i.e. 1691]), pp. 29–30.

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in them.28 The tactics of Ashton’s defenders may have had some effect: Elliott was released, and no further charges were brought against participants in the plot, in spite of a confession from Viscount Preston, who implicated a number of other well-known figures. Preston himself was eventually pardoned. Salmon’s account of the trial includes none of this subsequent detail, but many of his readers would have been familiar with it. Those who were not might rely on a sympathetic identification with the accused in order to apprehend that the charges against Ashton were not fully proven. The text of the trial easily lends itself to such a reading. Pollexfen’s apparent firmness in the face of a villainous Jacobite can also be read as the vindictive prosecution of an innocent man. To some extent, this interpretation arises from the presence in trial transcripts of dialogue between discordant voices – those of the accused and their accusers – making it almost impossible to read them unambiguously, no matter how much the evidence may be stacked in favour of the prosecution. Here, we may be reminded of the Russian linguist Mikhail Bakhtin’s theory of ‘dialogism’: that words can be understood only through their interaction with the expressions of others within a given context.29 Because Salmon eliminated context from the Ashton trial, the reader has no guidance in interpreting the words of different participants in the courtroom drama, except in following their self-presentation through the process of dialogic interaction. Salmon selected transcripts in which self-presentation was not one-sided, so that both parties had credibility. We may therefore follow the advice of the preface to State Tryals and put ourselves in the shoes of the defendants. If we do, even a guilty person who complains of not being given a copy of the indictment may arouse our sympathy. * * * For an early eighteenth-century reader, of course, the sense of sympathy or personal identification generated by reading trial transcripts was not a natural reaction. It depended on assumptions about the importance of sentimental relationships between human beings. Sympathy with the accused, in other words, had to be learned and accepted. It ran against a presumption of guilt that was very strong among an early-modern reading public dominated by the social values of landowners and ‘respectable’ middling folk. These were people who feared crime and had no truck with those who threatened property and security. The dying speeches of criminals, which sold very well throughout this period, were marked, as J. A. Sharpe has shown, by an ‘insistence that the condemned True Copy of Part of that Paper which Mr. Ashton left in a Friend’s Hands: Together with the Letter in which he sent it enclosed (n.p, [1691]). See also the Jacobite commentary, De Ventre Inspiciendo: Or, Remarks on Mr. Ashton’s Answerer in a Letter to a Friend (n.p., 1691). 29 Mikhail Bakhtin, The Dialogic Imagination: Four Essays, trans. Caryl Emerson and Michael Holquist (Austin, 1981); Tsvetan Todorov, Mikhail Bakhtin: The Dialogic Principle, trans. Wlad Godzich (Minneapolis, 1984). For courtroom interaction as ‘negotiation’, see Peter King, Crime, Justice and Discretion in England, 1740–1820 (Oxford, 2000), ch. 7. 28

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should be brought to a state of penitence and contrition before their death’.30 The literature of criminality that became widespread in the early decades of the eighteenth-century, centered on highwaymen and other condemned offenders, assumed that they were ‘rogues’ who deserved the punishment meted out to them.31 The need to preserve order and authority, in short, precluded sympathy for the hanged. The reporting of politically motivated treason trials after 1660, however, may have tempered such presumptions. Following the Restoration, the publication of defiant rather than penitent statements from the scaffold by convicted conspirators against the state, whether Whig ‘martyrs’ of the 1680s or Jacobite plotters of the 1690s, became common.32 Most of these conspirators came from ‘respectable’ propertied backgrounds and could not be regarded as ‘rogues’ sprung from the lower orders. Salmon’s State Tryals heightened the similarities between their situations while minimizing the differences between them. By documenting a continuous series of treason cases, it suggested that sympathy with the accused should not follow the ups and downs of factional politics. The presumption of guilt may have been further weakened by a religious trend towards sympathetic identification, which had started among dissenters but was spreading among High Churchmen. Ministers began to stress the importance of the affections or sentiments in awakening sinners to grace, not only through self-examination but also through connecting emotionally with the sufferings of the Saviour.33 The ties between Salmon’s family and one of the most important dissenting preachers of affectionate religion, Isaac Watts, may be relevant in this regard. In his sermons, Watts urged his listeners to heed the ‘inward language and groaning of our hearts’, which would lead to the conviction that every believer was ‘crucified with Christ’.34 Within the Church of England, however, J. A. Sharpe, ‘“Last Dying Speeches”: Religion, Ideology and Public Execution in Seventeenth-Century England’, Past and Present, 107:1 (May 1985), 144–67, quotation on p. 165. 31 David J. Cox, Crime in England, 1688–1815 (Abingdon, 2014), ch. 7; Hal Gladfelder, Criminality and Narrative in Eighteenth-Century England: Beyond the Law (Baltimore, 2001); Craig Dionne and Steven Mentz (eds), Rogues and Early Modern Culture (Ann Arbor, 2006); Kirsten T. Saxton, Narratives of Women and Murder in England, 1680–1760 (Burlington, 2009); Richard Ward, Print Culture, Crime and Justice in Eighteenth-Century London (London, 2014). 32 Melinda Zook, ‘“The Bloody Assizes:” Whig Martyrdom and Memory after the Glorious Revolution’, Albion 27:3 (Autumn 1995), 373–96; Daniel Szechi, ‘The Jacobite Theatre of Death’, in The Jacobite Challenge, ed. Eveline Cruickshanks and Jeremy Black (Edinburgh, 1988), pp. 57–73. 33 Isabel Rivers, Reason, Grace and Sentiment: A Study of the Language of Religion and Ethics in England (2 vols, Cambridge, 1991, 2000), esp. I, 185–204; Paul Goring, The Rhetoric of Sensibility in Eighteenth-Century Culture (Cambridge, 2005); Michael L. Frazer, The Enlightenment of Sympathy: Justice and the Moral Sentiments in the Eighteenth Century and Today (Oxford, 2010). 34 Isaac Watts, Nine Sermons, Preached in the Years 1718–1719 (New York, 1813), pp. 28, 30

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the ‘inward language of our hearts’ was more often awakened by aesthetic experience. The interest of Salmon’s father in music may have played a part in shaping his son’s sentimental viewpoint, because for Anglicans, the affections were as likely to be aroused by music as by words. Music, according to Salmon senior, was a ‘celestial accomplishment, which God ordained to enliven our dull Affections’.35 State Tryals similarly appealed to the affections, and to a growing culture of sentiment among readers who wanted not just to know but to feel the experience of redemption.36 It was not always possible, however, for readers to identify fully with the defendants in Jacobite treason cases. The trials of the Assassination Plot conspirators in 1696 focused on men who were apparently guilty of a dire conspiracy. They included former officers in James II’s army as well as Protestant and Catholic gentlemen who had received military commissions from the king since his exile. The accusation made against them by several witnesses was that they had planned to assassinate King William III while he rode out hunting. The conspiracy had been revealed to the authorities at the last minute by informers. Whether the plotters actually intended to kill William or to seize him as the signal for a general uprising remained unclear. Both actions constituted high treason, but the former was reminiscent of the Gunpowder Plot of 1605 and was sure to awaken anti-Catholic fears, while the latter resembled William’s own intentions during the Revolution of 1688–89. Under the circumstances, the ambiguous aims of the plotters played directly into the government’s hands. The chief informer, Captain George Porter, was crucial in shaping the impression that this was another Gunpowder Plot. Accused in court by counsel for the defense of having ‘Trepann’d’ or set up his colleagues, Porter manipulated the objectives of the conspiracy in order to dramatize his role in its discovery.37 William’s ministers had a good reason for wanting to uncover a plot in the winter of 1695–96. The recently elected House of Commons was dominated by an uneasy coalition of dissident or Country Whigs and Tories. One of its first priorities was to pass a treason trials bill, allowing defendants to be given written copies of indictments and to be represented in court by counsel. The bill further required the evidence of two witnesses for a conviction. John Langbein has argued that this bill, which William III reluctantly signed into law on 21 January, addressed the abuses of justice 45–75. 35 Thomas Salmon the elder, A Proposal to Perform Musick in Perfect and Mathematical Proportions (London, 1688), ‘Epistle Dedicatory’, [p. vii]. 36 The result might be greater leniency towards certain types of crime, such as has been noted with suicide: Michael Macdonald, ‘The Secularization of Suicide in England 1660–1800’, Past and Present, 111 (May 1986), 50–100. 37 Jane Garrett, The Triumphs of Providence: The Assassination Plot 1696 (Cambridge, 1980), accepts the story as told by informers; Weil, Plague of Informers, ch. 7, underlines the difficulties in linking the rebellion plot to the assassination.

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that had occurred under the later Stuarts. The execution of John Ashton, however, provided a more recent example.38 In explaining the genesis of the Act, James Phizer has pointed to the fiasco of the Lancashire Plot trials of 1694, when government informers failed to convince a northern jury that a group of Catholic gentlemen had received military commissions from King James.39 The Treason Trials Act took effect on 25 March 1696, meaning that only four of the Assassination Plot defendants were able to take advantage of it. This did not prevent the first conspirator to be tried, Robert Charnock, from asking that the Act be applied to him. He was unsuccessful.40 Sir William Parkyns requested the same privilege, on the grounds that the Act merely recognized common-law tradition, but he too was refused.41 The disadvantage of having no counsel was illustrated by the hapless Sir John Friend, a wealthy Protestant brewer who had raised men for King James but had not known of the Assassination Plot. He fumbled through a maladroit defense, arguing that his Catholic accusers could not be trusted. After sentencing, he begged for advice from counsel, which was denied.42 The first conspirators to be granted the benefit of counsel in the courtroom were Ambrose Rookwood, Charles Cranburne and Robert Lowick. Their Tory attorney, Sir Bartholomew Shower, immediately addressed Lord Chief Justice Holt with what a modern reader may find to be an oily attempt at self-justification, hoping that ‘nothing which we shall say in Defense of our Clients, shall be imputed to our selves’. He continued in the same vein. ‘Never was there such Freedom and Liberty of Debate and Argument allowed to the Bar’, Sir Bartholomew gushed, ‘and we thank your Lordship for the same’. At one point, Holt had to instruct him not to make so many apologies to the bench! Shower’s deference gave the impression that Holt himself was the source of his clients’ rights. The counselor’s presence, however, was not merely decorative; he raised a number of well-considered procedural objections, and even made a spirited effort to undermine the credibility of the prosecution’s main witness, telling the court that if Robbing upon the High-way, if Clipping, if Conversing with Clippers, if Fornication, if Buggery, if any of these Irregularities, will take off the Credit of a Man, I have Instructions in my Brief, of Evidence of Crimes of this Nature, and to this Purpose, against Mr. Porter.

Langbein, Origins of Adversary Criminal Law, ch. 2; see also Samuel Rezneck, ‘The Statute of 1696: A Pioneer Measure in the Reform of Judicial Procedure in England’, Journal of Modern History 2:1 (1930), 5–26; James R. Phizer, ‘Law, Politics, and Violence: The Treason Trials Act of 1696’, Albion 12:3 (1980), 235–56. 39 Phizer, ‘Law, Politics and Violence’, 252–4; Weil, Plague of Informers, ch. 6. 40 [Salmon, ed.], State Tryals (1719), IV, 2. 41 Ibid., IV, 65–97. 42 Ibid., IV, 37–67, 96–7. 38

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Unfortunately for his client, the witnesses summoned to testify to Porter’s bad character did not show up in court. Rookwood was convicted.43 On the scaffold, he denied that he had known about the plot until an hour before it was to have taken place.44 The same thing happened in the trial of Charles Cranburne, whom Porter had actually recruited into the plot. Having been allowed a copy of the indictment, Shower was able to raise a number of objections as to its accuracy, but none of them saved his client from death.45 He tried a different tactic in defending Robert Lowick, eliciting from one of the prosecution witnesses an admission that ‘he had always the Character of a good Man, and was always ready to serve any Man in his Necessities, and to do Good’. Lowick himself claimed that he had never been told of a plot to assassinate King William. His protests, which may have been genuine, did not prevent his execution.46 Realizing the futility of a defense, the last of King James’s Catholic officers to be tried, Alexander Knightley, pleaded guilty and threw himself on the mercy of King William. Having bigger fish to fry by that point, William pardoned him.47 Salmon’s accounts of these trials were based on transcripts printed ‘by Authority’, that is, by order of Chief Justice Holt. Determined to uphold the authority of the judiciary, Holt doubtless wanted to demonstrate the ability of judges to manage cases of treason under the old rules, and to show that the new Act had made little difference.48 While he emerges from the transcripts as eminently fair in applying the law, Holt also appears obstinate in his unwillingness to give rights to defendants before being required to do so. Salmon did not criticize him directly and made no attempt to undermine the credibility of the official transcripts. Salmon also avoided extraneous materials that might have put their adequacy into question. For example, Charnock’s and Parkyns’s trials had been printed in 1696 along with the papers delivered by the accused to the sheriffs immediately before their executions, in which they insisted that King James knew nothing of the planned assassination.49 Salmon omitted these Ibid., IV, 100, 104, 129. A True Account of the Dying Behaviour of Ambrose Rookwood, Charles Cranburne, and Major Lowick (London, 1696). 45 Salmon (ed.), State Tryals, IV, 135–55. 46 Ibid., IV, 165, 169. 47 Ibid., IV, 213–16. 48 For Holt, see Philip Hamburger, Law and Judicial Duty (Cambridge, MA, 2008), esp. chs. 7 and 8, and George Artley, `Law and Politics under the Later Stuarts: Sir John Holt, The Courts, and the Constitutional Crisis of 1688’ (Unpublished DPhil thesis, University of Oxford, 2019). 49 See The Tryals and Condemnation of Robert Charnock, Edward King, and Thomas Keyes, for the Horrid and Execrable Conspiracy to Assassinate His Sacred Majesty, K. William, in order to a French Invasion of this Kingdom… Together with a true Copy of the Papers delivered by them to the Sheriffs of London and Middlesex at the time of the Execution (London, 1696); The Arraignment, Tryal, and Condemnation of Sir William Parkins Knt. for the most Horrid and Barbarous Conspiracy to Assassinate His Most Sacred Majesty King William… Together 43

44

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in State Tryals, thus sidestepping a major issue arising from the plot, namely, the extent to which the exiled monarch was behind it. Salmon also failed to mention the trials of two nonjuring clergymen who were accused of absolving Sir John Friend and Sir William Parkyns on the scaffold.50 The charges against them were eventually dropped, but their plight might have raised doubts about vindictive prosecutions. While some of the trial transcripts, like those of Rookwood or Lowick, evince pity from the reader, Salmon’s inclusion in his collection of every one of the ‘authorized’ 1696 accounts emphasizes the horrendous nature of the Assassination Plot and distances their editor from suspicions of Jacobitism on his own part. Yet State Tryals differed from Chief Justice Holt’s intentions by tacitly endorsing the need for the Treason Trials Act. It did so by including two Assassination Plot trials that create a much more ambivalent impression than the rest, in part because they were not based on ‘authorized’ judicial transcripts. Both involved Protestant defendants not closely linked to the conspiracy, whom the government believed could be induced to give evidence against leading politicians. Peter Cook, the son of a Whig master of Chancery, had attended meetings in anticipation of a Jacobite military uprising, but neither the arch-informer Porter nor the actor and erstwhile plotter Cardell Goodman could link him to the assassination attempt. He seems to have been indicted in hopes that, in exchange for a pardon, he would implicate King James’s chief operatives in England and Scotland. The evidence against Cook was vague, and for once, Sir Bartholomew Shower was able to make a coherent case against conviction. ‘The Question’, Shower told the jury, foreshadowing the words of defense attorneys for generations to come, ‘is not whether Mr. Cook be guilty, but whether in your Consciences he be legally proved guilty’.51 Cook was in fact convicted, but was eventually pardoned. In the end, he did not provide evidence against the Jacobite agent and former major-general Sir John With A true Copy of the Papers delivered by Sir William Parkyns, and Sir John Friend, to the Sheriffs of London and Middlesex, at the Time of their Execution (London, 1696). Salmon’s other sources were The Arraignment, Tryal, and Condemnation of Sir John Friend, Knight for High Treason (London, 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, In Order to a French Invasion of this Kingdom (London, 1696); The Arraignment, Tryal, and Condemnation of Ambrose Rookwood, for the Horrid and Execrable Conspiracy to Assassinate His Sacred Majesty King William, In Order to a French Invasion of this Kingdom (London, 1696). 50 I know of no transcript of this trial. See The Case of the Two Absolvers that were Tryed at the Kings-Bench-Bar at Westminster on Thursday the 2d of July 1696. For giving Absolution at The place of Execution to Sir John Friend and Sir William Parkens (London, 1696). 51 [Salmon, ed.], State Tryals (1719), IV, 174–212, quotation on 203. Salmon’s source is The Arraignment, Tryal, and Condemnation of Peter Cooke, Gent. For High Treason (London, 1696). Lord Chief Justice Treby did not authorise its publication. A shorter version, more flattering to Treby, is found in A Brief Account of the Tryal of Peter Cooke, Esq. (London, [1696]).

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Fenwick, whose attainder provided the second longest post-1688 segment in Salmon’s State Tryals, after the Sacheverell impeachment. Embroiled in every Jacobite plot of the period, Fenwick had opposed the assassination of King William, but had supported an insurrection. The government hoped he would implicate the aristocratic leadership of the Jacobite party in England. Instead, while stewing in the Tower after his arrest, he raised allegations against leading Whig and Tory politicians who had made overtures to the exiled Stuart court. All of them had in fact made promises of various sorts to James II since 1688, but none of them was an active Jacobite, and Fenwick knew little about their actual dealings with King James. Meanwhile, Fenwick’s plucky wife, together with a hired gang, kidnapped Cardell Goodman and smuggled him over to France. With only one witness remaining against him, Sir John could not be prosecuted legally under the Treason Trials Act. As a result, the government decided to try him by a parliamentary bill of attainder.52 State Tryals printed only the debates in the House of Commons over the bill. These hinged mainly on the question of whether two witnesses were necessary in all proceedings for high treason, even those judged by parliament, and whether an affidavit sworn by Goodman before his disappearance could be read, which the rules of the Commons seemed to deny. The most ardent speakers against Fenwick were supporters of the government; his strongest advocates were Country Tories. Among the latter was the fiery Sir Edward Seymour. ‘For my part’, Seymour asserted as the debate concluded, I can’t go so far as some Gentlemen have done, to say Sir John Fenwick is guilty; for where there is no Law, there is no Transgression… And the Law hath required and said, that there shall be no Treason but what is proved by two Witnesses, and here it appears that you have not one.53

On the third and final reading of the bill, the Commons attainted Fenwick on a vote of 189 to 156. The House of Lords upheld the attainder by seven votes, and Fenwick went to his death on 28 January 1697. It was not a signal victory for King William’s government. The alliance between Tories and Country Whigs, which had been under intense strain since the revelation of the Assassination Plot, began to coalesce again over opposition to the attainder. The staunch Whig Robert Harley, flag-bearer for Country principles, had spoken in favour of the two-witnesses rule during the debate. The reaction of many country gentlemen can be gauged by that of the Essex Tory Sir John Bramston, who compared the Paul Hopkins, ‘Fenwick, Sir John, third baronet (c.1644–1697)’, ODNB (Oxford, 2004), online edn (http://www.oxforddnb.com/view/article/9304, accessed 4 Sept 2017); Hopkins, ‘Sham Plots and Real Plots’, pp. 98–9; Weil, Plague of Informers, pp. 270–5. 53 [Salmon, ed.], State Tryals, IV, 317. Salmon’s source was The Tryal, Attainder, or Condemnation of Sir John Fenwick, Baronet, before the Parliament (The Hague [?], 1697). For the speakers, see Eveline Cruickshanks, Stuart Handley and D. W. Hayton (eds), The History of Parliament: The House of Commons, 1690–1715 (5 vols, Cambridge, 2002), vols 3–5. 52

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unfair attainder to that of the earl of Strafford. Assuming that the Treason Trials Act revived common-law practices, Bramston noted with satisfaction that ‘some there were that would not be flattred nor frighted out of the good old way of tryall’.54 As for Salmon himself, his Chronological Historian depicted the Court Whigs as scrambling to screen themselves from Fenwick’s revelations, while the Country spokesmen upheld the liberties of the subject: tho’ they admitted Sir John to be guilty, yet it might happen that innocent Men might be deprived of their Lives by future Parliaments when there wanted Evidence to convict them in a Court of Law; and the Subject could never enjoy any Security, if Acts of Attainder were encouraged when the Person was in Prison, and the Government in no apparent Danger from his Power or Interest.55

In short, opposition to the attainder protected the rights of future defendants. The last Jacobite high treason trial to appear in the 1719 collection further underlines the point that defendants might be unjustly accused through the machinations of government. It involved five Scottish Jacobite lairds, among them James Stirling of Keir, who were indicted at the High Court of Justiciary in Edinburgh for having set out with men and arms to support the attempted French invasion of 1708 in favour of the Stuart claimant. Although only a summary of the prosecution’s arguments was provided, the accused men (or ‘Pannels’, as they were called in Scottish law) were evidently defended with skill, and in spite of the efforts of the lord advocate, the jury brought in the uniquely Scottish verdict of ‘not proven’.56 Salmon’s stripped-down account leaves out crucial details, which appear in the original published version of the trial. The prosecution was initiated, according to the original version, at the insistence of the Whig ministry, which was anxious to assert its authority in Scotland after the passage of the Act of Union. Stirling and his friends had been arrested in March 1708 and sent three months later to London, where they were imprisoned at Newgate. Their trial began back at Edinburgh in November, after nine months of confinement. The original version also noted a complaint from the defense counsel, to the effect that the witnesses against his clients had been ‘lybelled against [charged] as Socii Criminis [accessories in the crime]: but furder, the Lybel [formal charge] did bear expressly, that as such they were declared Fugitives for the same Crime; And therefore could not be [i.e. should not have been] received as Witnesses, unless they were previously pardoned and indemnified.’ In short, the prosecution used witnesses who were not legally qualified to testify. As the editor of the original transcript put it, ‘the Accusation was plainly Vexatious’.57 The Autobiography of Sir John Bramston (London, 1845), p. 400. Salmon, Chronological Historian, pp. 223–4. 56 Ibid., IV, 764–74; HMC, 10th Report: Reports on the Manuscripts of the Earl of Eglinton, Sir James Stirling-Maxwell… (London, 1885), p. 60. 57 Extract of the Process, of Treason: At the Instance of Sir James Steuart, Her Majesties Advocat, and as having special Warrand for that effect, against James Stirling of Keir and others 54

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Here, at last, was an example of defendants in a treason case successfully warding off accusations by a vindictive government. To be sure, nobody could have understood this from Salmon’s bare account, but as the trial had happened only eleven years earlier, it can be assumed that many would have remembered it. * * * Some readers may have wondered why State Tryals ended so abruptly with Dr. Sacheverell’s impeachment in 1710. The prosecutions after the Jacobite rebellion of 1715 were entirely ignored, as were the impeachments of the former Tory ministers of Queen Anne’s last government. Salmon evidently wanted to avoid these controversial episodes. Nonetheless, the folio edition of Salmon’s Tryals for High Treason, published in 1720, did include one further Jacobite case. Francis Francia was a Jewish merchant of London, accused in 1716 of conveying treasonable letters to France from Tory conspirators in England. The prosecution was only able to produce the answers to these letters, written into the merchant’s copy book, and was hard-pressed to prove that Francia’s handwriting was on them. The parallel with Ashton’s case was obvious. The most sensational moment of Francia’s trial came when Lord Townshend, the Whig secretary of state, confessed that he had given the accused money during his examination, probably to encourage him to cooperate with the government, although the earl claimed that it was merely proffered as charity.58 In contrast to Ashton, Francia was acquitted by a sympathetic jury. Salmon’s decision to include this trial, and no other after 1710, in the folio version of his collection was telling. It manifested the dangers of ‘Vexatious’, state-managed prosecutions. At the same time, Salmon chose not to imitate another contemporary editor, who published both Tory and Whig versions of Francia’s case, so that the reader ‘might chuse which Dish he pleases, and which he thinks most agreeable to his Stomach’.59 As usual, Salmon’s nod towards impartiality was to avoid commentary, not to give opposing views.60 Salmon’s State Tryals were intended to create distrust in the minds of readers about the role of government in prosecutions for treason. Whether Whigs or Tories, readers could appreciate how the judicial power of the state might be set against either party. Of course, this implicated the current government as well. Eventually, Salmon faced a Whig competitor who exposed and challenged his anti-government slant, forcing his Country Tory views into the open. This competitor was the lawyer and dissenter Sollom Emlyn, who put his name to a Complete Collection of State Trials that appeared in 1730. In the preface to this work, Emlyn admitted that formerly, some judges had ‘sacrific’d the (Edinburgh, 1709), preface, 4. The London edition of the same year changed the lively Scottish spellings. 58 Salmon, Tryals for High Treason, VI, 670–728, esp. 680. 59 The Case of Mr. Francis Francia the Reputed Jew (London, 1716), p. 11. 60 Salmon’s source was The Tryal of Francis Francia, for High Treason (London, 1716).

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Constitution and Liberties of the Kingdom to the Pride and Ambition of an Arbitrary Monarch’. But he meant to indict the Stuart bench, not that of more recent times. He went on to praise ‘the Excellency of our Laws and the Advantage an Englishman therefore enjoys above his Neighbours’, which had not been so obvious in Salmon’s collection. ‘In cases of TREASON’, Emlyn added, ‘the English Subject has peculiar Advantages’, including ‘an express Law’ defining the offense through specific acts and the requirement of having two witnesses. Emlyn praised the writ of habeas corpus, although its use had been frequently suspended since 1688.61 While he admitted that traditional safeguards had not always protected defendants from ‘the arbitrary Proceedings of… wicked and unjust Judges’, Emlyn noted that ‘one good Effect that has follow’d from them’ – namely, the Treason Trials Act. He pointed out further alterations in favour of the accused ‘that the Legislature has not thought fit should take place during the Life of the present Pretender’, including the right to see a list of prosecution witnesses and the provision that heirs should not be disinherited by an attainder.62 Apparently, fear of Jacobitism had curtailed these reforms. Emlyn’s Whig edition included treason trials from the reign of George I that were intended to demonstrate the continuing Jacobite threat. All the aristocratic rebels of 1715 were now there: the earls of Derwentwater, Nithsdale, Carnwath and Winton, Viscount Kenmure and Lords Nairn and Widdrington. Their high rank seemed to heighten their treason, while Emlyn’s reliance on summary transcripts rather than verbatim accounts gave less of a voice to the accused. Francia’s trial could still be read in Emlyn’s collection, but so could those of Christopher Layer, of Francis Atterbury, bishop of Rochester, and of the other conspirators in the so-called Atterbury Plot of 1721–22 – again, in versions that tended to omit their own words.63 The only newly-added trial for Jacobite high treason that had resulted in an acquittal was that of Robert Harley, earl of Oxford, who had been impeached in 1716 for corresponding with the Pretender. He was cleared by the House of Lords, but as Emlyn noted, the Whig-dominated Commons ‘resented this Proceeding so far as to address the King, that the Earl of Oxford might be excepted out of the then intended Act of Grace, which was done accordingly’.64 By finishing on this sour note, the editor conveyed a strong Sollom Emlyn, Complete Collection of State Trials (6 vols, London, 1730), I, Preface, ii–v; N. G. Jones, ‘Emlyn, Sollom (1697–1754)’, ODNB (Oxford, 2004), online edn (http://www.oxforddnb.com/view/article/8792, accessed 4 Sept 2017); Paul Halliday, Habeas Corpus: From England to Empire (Cambridge, MA., 2010). 62 Emlyn, State Trials, I, v, vi. 63 Ibid., IV, 1–17 (Derwentwater et al.), 17–58 (Wintoun), 229–334 (Layer), 335–477 (Atterbury et al.). Emlyn’s source was The whole Proceeding to Judgment Upon the Articles of Impeachment of High Treason… against James Earl of Derwentwater, William Lord Widdrington, William Earl of Nithisdale, Robert Earl of Carnwath, William Viscount Kenmure, and William Lord Nairn (London, 1716). 64 Emlyn, State Trials, IV, 156. 61

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sense of Oxford’s guilt. Unlike Salmon, Emlyn commented on the outcomes of trials and provided further context, which might strengthen the suspicion of guilt or cast doubt on those who were acquitted. Emlyn seemed determined to guide his readers away from sentimental identification with the accused, towards supporting the need for strong measures against treason. No fewer than thirty-eight booksellers, including John Darby the younger, participated in publishing Emlyn’s edition, indicating that good money was still to be made from treason trial collections. Never one to miss an opportunity for profit, Thomas Salmon quickly issued three additional volumes of his Tryals for High Treason, containing all the new Jacobite trials, without preface or commentary.65 The battle of State Trials editions had commenced, and it was evidently a partisan struggle. The contest quickly became more complicated. Emlyn’s collection was supplemented by two further volumes, appearing in 1735, that were not edited by Emlyn himself – in fact, their editor disparaged his predecessor by noting that ‘[t]he Business of collecting the several Pieces was by no means his Province’.66 In contrast to Emlyn’s work, the supplementary volumes showed a surprising sympathy towards those accused of Jacobitism. The public was offered not only the 1692 proceedings for Jacobite conspiracy against Thomas Sprat, bishop of Rochester, written by the abused cleric himself, but also the explosive trial of the Jacobite printer William Anderton, put to death for issuing treasonable libels in 1693.67 Anderton’s innocence had been vigorously asserted by the nonjuror Samuel Grascome, who published an account of his trial sensationally entitled An Appeal of Murther from certain unjust Judges. The 1735 editors reprinted this piece, the first and last time a Jacobite version of a proceeding was allowed a place in State Trials.68 Thomas Salmon was so alarmed by the decision to include Anderton’s trial that he refused to reprint it in his 1737 New Abridgement and Critical Review of State Trials. He called Grascome’s account ‘a very imperfect Piece, and clogged with a great deal of Rubbish, not fit to be bound up with State Trials, and was only inserted by the Booksellers to enhance the Price of the Work, or for the Advantage of the Person they employed in compiling this Volume’.69 Thomas Salmon, State Tryals and Proceedings upon High Treason, 3 additional vols (London, 1731), VIII, 161–207 (Derwentwater); 208–64 (Wintoun); 265–336 (Oxford); 409–524 (Layer); IX, 1–203 (Atterbury). 66 [Anon.], A Collection of State Trials, and Proceedings, Upon High Treason, and Other Crimes and Misdemeanours (8 vols, London, 1735), VII, iii. 67 Ibid., VIII, 37–49. 68 Ibid., VIII, 63–73. The original is [Samuel Grascome], An Appeal of Murther from certain unjust Judges, lately sitting at the Old Baily, to the Righteous Judge of Heaven and Earth, and to all sensible English-men, containing a Relation of the Tryal, Behaviour, and Death of Mr. William Anderton, Executed June 16. 1693. for pretended High Treason (n.p., n.d.). 69 Thomas Salmon, A New Abridgement and Critical Review of the State Trials (2 vols, Dublin, 1737), I, 641. 65

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Salmon’s huffy remark implied that State Trials should remain an ‘impartial’ legal compendium, free from partisan ‘Rubbish’. Sentimental identification had its limits, for Salmon as for Sollom Emlyn. Indeed, by 1737, Salmon’s editorial approach had changed. He added marginal glosses, summaries of outcomes, dying speeches and critical remarks on some of the transcripts because ‘every Man is not qualified to distinguish Cases that have a near Resemblance to each other, or discern the Force of every Argument advanced by the learned Counsel in these Trials’.70 Was he now targeting State Trials at a pro-government audience, as his Whig rival had done? Not at all; he was still courting a readership that was inclined towards the Country opposition of the period, which attracted both Whigs and Tories. Salmon’s 1737 comments on the Jacobite trials were exactly what an astute reader of his 1719 version might have surmised, but his opinions were now made obvious rather than submerged in his editorial practices. Salmon wrote in 1737 that ‘I cannot find there was anything but presumptive Evidence against [John] Ashton, and he rightly observes [in his dying speech], that he was one of the first Men to be convicted of High Treason upon Presumptions’.71 Of the Assassination Plot defendants, Salmon remarked that they ‘had not that Injustice done them’ as had been done in the Rye House Plot trials against the Whigs (a backhanded compliment to Chief Justice Holt). However, he also denied that King James had ever given out a commission for King William’s murder.72 Not surprisingly, Salmon launched a fulminating attack against the proceedings for attainder against Sir John Fenwick. The treason charges against him were never proved, in Salmon’s opinion. Worse still, the same parliament that had attainted him had only recently passed a law demanding two witnesses in cases of treason! ‘Was it decent’, the editor asked, ‘for them to condemn a Man without one Witness, till that Law was repealed?’ His remarks on Fenwick reached a final pitch of furious partisanship: ‘no Laws can defend a Man against the Rage and Fury of a certain Party, who carry Malice in their very Countenances, and will not scruple to overturn the best Constitution, to revenge themselves on their Fellow-Subjects, when they have Power in their Hands’.73 This virulent anti-Court diatribe, aimed as much at the Walpole government of 1737 as at the Junto government of 1696, was Salmon’s last word on the Jacobite trials. He was silent about the 1708 Scottish case, as it was ‘a foreign Trial, and of no great Moment’.74 Although he included the trials of the 1715 rebels, the earl of Oxford, Christopher Layer and Bishop Atterbury, he refrained from making remarks on any of them, ‘[i]t being much too soon to make Remarks on the Trials of the last Reign, as to write the History of it’.75

72 73 74 75 70 71

Ibid., I, Preface, [i]. Ibid., II, 628. Ibid., II, 671, 673. Ibid., II, 705. Ibid., II, 807. Ibid., II, 853.

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* * * Salmon’s commentary of 1737 was consistently anti-government, although not Jacobite. A sentimental reader could have read the 1719 State Tryals in the same way; eighteen years later, the reader was instructed to interpret them so. Yet in spite of the striking changes in editorial strategy, there was no fundamental shift in Salmon’s political position. In response to competition, he had merely taken the step of making the implicit explicit. The texts themselves had not been altered, and readers might still make up their own minds about individual cases. Some may have been alienated by Salmon’s commentary, but others no doubt purchased the third edition on account of its anti-government diatribes. Salmon’s occasionally injudicious comments led to him being lambasted for bias by the next editor. The so-called fourth edition of State Trials, published between 1776 and 1781, was edited by an eminent lawyer, Francis Hargrave. Hargrave included for the first time the perfunctory reports of the Jacobite rebel trials of 1746; he also documented the pathetic fate of the Jacobite printer John Matthews and Dr. Archibald Cameron, tried for treason in 1753.76 By the time Hargrave wrote, Jacobitism was no longer a threat, but he still saw fit to remark on the supposedly Jacobite prejudices of his predecessor, Thomas Salmon. ‘In his political principles apparently an inveterate enemy to the revolution’, Hargrave wrote with a mixture of disdain and dismay, ‘he is frequently betrayed by an intemperate zeal into a false notion of characters and opinions, and too often disguises both when the demon of party demands a sacrifice’.77 Hargrave was not quite right: Salmon was a Country Tory rather than a Jacobite, and his aim was to empower future defendants against unjust political accusations. In this sense, he was not very different from a later promoter, William Cobbett, who sought to make State Trials into a handbook for the defense of personal liberties against the government. While Cobbett left the work of editing to the barrister Thomas Bayly Howell, his famous name and his political vision would stick to it.78 Once again, sympathy for the accused became central to its message. We might regard the use of ‘dialogism’ and sentimental identification in Salmon’s 1719 State Tryals as a marketing ploy. It was designed to attract a wide audience by appealing to sympathies that were grounded in shared religious and cultural attitudes. Although a distrust of government prosecutions underlay the Hargrave (ed.), Complete Collection of State Trials, IX, cols. 543–51 (Francis Townley); 551–5 (George Fletcher); 555–7 (Thomas Chadwick and William Battragh [sic]); 557–9 (Thomas Theodorus Deacon); 559 (John Berwick); 559–65 (David Morgan); 565–7 (Alexander MacGrowther); 557–75 (Alexander and Charles Kinloch); 575–9 (James Bradshaw); 579–81 (Sir John Wedderburn); 581–5 (Charles Ratcliffe); 585–7 (Aeneas MacDonald); 587–615 (earl of Kilmarnock, earl of Cromartie and Lord Balmerino); 615–751 (Simon, Lord Lovat); 589–715 [sic] (Archibald Stewart, Lord Provost of Edinburgh); 679–716 (Matthews); X, cols. 201–4 (Cameron). 77 Ibid., I, Preface to the present edition, [i]. 78 G. D. H. Cole, The Life of William Cobbett (Abingdon, 2011), pp. 87–8. 76

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whole collection, the presentation of trial transcripts without commentary or context may have served to downplay a strictly partisan reading. Because readers were being coaxed to judge through personal reactions, anyone, Whig or Tory, could put their own interpretation on the compilation. They could ignore or admire the author’s own anti-government bias. These observations may in turn help us to situate eighteenth-century sentimentality as a cultural strategy, one that might arise from a partisan point of view, but one that nonetheless sought to draw the reader away from factionalism and towards a shared sense of what was ‘humane’. While such humanity did not extend to the ‘rogues’ whose misdeeds were catalogued in the Newgate Calendar, it embraced gentlemen who had been misled by loyalty or passion into treasonable acts. Clearly, sentimentality was an approach suitable for an avowedly non-partisan publication directed at a ‘respectable’ public. Salmon’s competitors, however, drew his opinions out into the open in the 1737 edition. After that, critics like Hargrave felt entitled to judge his work as ragingly biased. Sentimental identification may have begun as a strategy, but it would become a philosophy. In 1728, John Darby printed Francis Hutcheson’s Essay on the Nature and Conduct of the Passions and Affections, in which the Scottish scholar argued in favour of a ‘publick Sense… by which the Happiness of one is made to depend upon that of others’.79 Hutcheson went on to become professor of moral philosophy at the University of Glasgow. His most celebrated student, Adam Smith, refined Hutcheson’s views in The Theory of the Moral Sentiments (1759). Smith argued that ‘the source of our fellow-feeling for the misery of others, is by changing places in fancy with the sufferer, that we come either to conceive or to be affected by what he feels’. Like Hutcheson, Smith perceived the law as no more than a system of external constraint. He was particularly critical of treason laws, which he saw as inflicting the personal vengeance of the monarch: ‘In the punishment of treason, the sovereign resents the injuries which are immediately done to himself… he is very apt to be more violent and sanguinary in his punishments than the impartial spectator can approve of’.80 Whether or not they were influenced by reading State Trials, the philosophies of Hutcheson and Smith reflected an approach to sentimental identification that resembled Thomas Salmon’s. That approach has lasted until today, especially in popular culture, although the tendency to sympathize with defendants has always been tempered by considerations of gender, social status and ethnicity. Viewed in this light, Salmon seems less ‘intemperate’ than Francis Hargrave made him out to be. On one ‘humane’ issue, in fact, Hargrave and Salmon might have seen eye-to-eye, in spite of their differences. Hargrave had defended the escaped slave James Somerset at the famous 1772 trial that ruled the state Francis Hutcheson, An Essay on the Nature and Conduct of the Passions and Affections, with Illustrations on the Moral Sense, ed. Aaron Garrett (Indianapolis, 2002), p. 15. 80 Adam Smith, The Theory of the Moral Sentiments, ed. D. D. Raphael and A. L. Macfie (Indianapolis, 1982), pp. 10, 99. 79

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of slavery to be unknown in English law.81 For his part, Salmon had criticized the brutality of slavery in the final volume of his immense Modern History; Or the present State of all Nations, completed in 1735. Slaves who rebelled during the Atlantic passage, Salmon wrote, were simply ‘rescuing themselves from these barbarous Masters, in whose Service they cannot expect but to live very miserably, when they find themselves so hardly used at first’.82 Seventeen years later, after taking up his wandering ways again and accompanying Admiral Anson’s expedition around the world, Salmon reproduced these remarks in a new publication, the Universal Traveller. After describing the Guinea slave trade, he concluded succinctly: ‘this is surely such a Trafick as can never be justified or defended’.83 Here and in other passages, the Country Tory shades into a radical reformer. A sympathy once reserved for the gentleman accused of treason has now been extended to the suffering slave. We may still have something to learn from the sentimental pen of Thomas Salmon.

J. H. Baker, ‘Hargrave, Francis (1740/41–1821)’, ODNB (Oxford, 2004), online edn (http://www.oxforddnb.com/view/article/12313, accessed 4 Sept 2017); William R. Cotter, ‘The Somerset Case and the Abolition of Slavery in England’, History, 79:255 (1994), 39–56; Ruth Paley, ‘After Somerset: Mansfield, Slavery and the Law in England, 1772–1838’, in Law, Crime and English Society, 1660–1830, ed. Norma Landau (Cambridge, 2002), pp. 165–83; Steven M. Wise, Though the Heavens May Fall: The Landmark Trial that Led to the End of Human Slavery (Cambridge, MA, 2005). For sentimentality and anti-slavery, see Markman Ellis, The Politics of Sensibility: Race, Gender and Commerce in the Sentimental Novel (Cambridge, 1996). 82 Thomas Salmon, Modern History; Or, the Present State of All Nations (28 vols, London, 1734–35), XXVIII, 193–4. 83 Thomas Salmon, The Universal Traveller: Or, A Compleat Description of the Several Nations of the World (3 vols, London, 1752), III, 370. 81

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11 Defeating Innuendos: The Trials of Thomas Rosewell (1684) and Daniel Isaac Eaton (1794) Annabel Patterson I want to begin by arguing for reading the State Trials of England, really reading. By which I mean, if you read as many of them as you possibly can, rather than cherry-picking, which is what usually happens, you will discover astonishing riches. You will discover how the editions of 1719 (Thomas Salmon), 1730 (Solom Emlyn), 1776 (Francis Hargrave) and 1816 (Thomas Bayly Howell) were created, and how they built on each other, such as Hargrave’s decision to reprint his predecessors’ prefaces. You will discover how many different kinds of trials were considered ‘State Trials’ by the editors, not only those for treason or seditious libel, but also trials for murder, perjury, forgery and occasionally bizarre domestic cases. You will notice how the number of State Trials tended to increase exponentially in periods of political stress (surprise, surprise), such as the end of the reign of Charles II and the reign of George III in the immediate wake of the French Revolution. You will be able to compare the editorial practices of the four compilers named above, of whom Hargrave and Howell are the most interesting: Hargrave for what he added in the form of notes despite denying in his preface that he had anything to do with the edition other than letting it come out under his name; Howell for incorporating Hargrave’s notes but also including great blocks of material from contemporary historians such as Gilbert Burnet that served to explain the political context of, or responses to, the trials, thus recording an intellectual debate. There is a whole other paper to be written on this alone, because it is our entry into the question of whether these editors themselves had a political agenda. Also, if you read at least a hundred trials from different periods you will see how the lawyers changed sides over time (or from time to time), so that the concept of good guys and bad guys is imperiled. And you will realize how ubiquitous the presence of professional shorthand writers was at these trials, which also deserves a paper of its own. One thing I do want to insist on: that we regard the State Trials as they have come down to us as a large enough body of writing sufficient to define what counts as a ‘State Trial’. Some of my colleagues have attempted to use this important category as an umbrella under which to shelter their current research into, say, court corruption. This, to my mind, perverts the importance 247

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of these extraordinary documents as they have been handed down to us – for a purpose. I take that purpose to be the record – the everlasting record – of what constituted the most important struggles – constitutionally and morally – between the monarchs of England and those of their subjects who took a poor view of those monarchs and their styles of government. What we are remembering here is how long it took to reign in autocratic government in England. In what I hope will eventually be a larger study, I will focus on those who preserved and created that record: Salmon, Emlyn, Hargrave and Howell (who is often the only one whose name is normally invoked as responsible), as well as on a few trials that both test our definition of a State Trial and make for very lively reading. In this chapter I have a much narrower agenda. I focus on a legal issue which appears in trials frequently, and one which underlines the role that interpretation of words – a matter naturally of interest to a literary scholar. The issue is that of Innuendo, a trick used by prosecutors in state trials to claim that what the defendant had actually written, said or was reported to have said concealed a seditious or illegal meaning. Today, as we listen to the weight given in Congress to specific words in the testimonies of James Comey and Jefferson Sessions (both participating in state trials of a sort), this old trick comes back to haunt us. I will not dwell on the analogy, which is far from perfect, but I shall offer up for analysis one trial for treason from the reign of Charles II and one for seditious libel from the reign of George III because each shares a focus on an issue of considerable legal and interpretive importance: the use of innuendos in prosecutions where words spoken or printed were asserted to be criminal. The use of innuendos in indictments (which until 1730 were written in Latin) was a naked ploy to persuade the jury that words spoken or printed contained a hidden treasonous or seditious message. Innuendos were introduced into the indictment in parentheses, (e.g., abc meaning xyz). Looking back at such trials today, one is not only flabbergasted at the insignificant events (insignificant to us) that were deemed worthy of the most lethal prosecution; one is also moved to grim laughter at the extremes to which prosecutors would go in defiance of common sense. * * * We need to be clear that the law as then received did not countenance such travesties. In his Fourth Report, Sir Edward Coke, using the word innuendo, had specifically warned against stretching the natural sense of words in a direction unfavourable to the defendant. 1 This case was actually cited, in November 1684, when Thomas Rosewell, indicted for high treason, was tried before George Jeffreys, then Lord Chief Justice, soon to be a legendary Edward Coke, Le quart part des reportes del Edvvard Coke Chiualier, [Fourth Report], (London, 1610), STC 5503, fo. 17b. 1

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monster.2 Rosewell had been preaching to an illegal conventicle in a private house, which might very well have led to his arrest even before the words of his sermon were brought in question. One of the informers claimed there were three to four hundred people in the audience, though the house they described could not possibly have accommodated so many. The same informer said she had to sit on the bed! Jeffreys made the size of the audience an issue, delivering a long sermon on the illegality of conventicles and reminding the jury of the role of dissenters in bringing Charles I to the scaffold. True, he told the jury that Rosewell was not on trial for preaching to a conventicle, but the cat was intentionally let out of the bag, and almost certainly helped to persuade jurors that the words cited were treasonable. Thus speech, which in the law of the day was not treasonable, because not an overt act, became insidiously contaminated by its origin, an illegal meeting of a large number of persons. Thomas Rosewell was a Nonconformist minister based in Rotherhithe, Surrey who seems generally remembered as the most honest, pious Nonconformist one could hope to find, habitually in his talk loyal to Charles II. Ejected from his parish in Wiltshire by the 1662 Act of Uniformity, Rosewell went quietly, and spent over a decade in the households of Nonconformist gentlemen as a private chaplain. However, in 1674, perhaps encouraged by the King’s short-lived Declaration of Indulgence, he was elected to serve as the parson of Rotherhithe parish, in the Dockside area of London. In 1684, his trial started in Kingston but quickly moved to the center of London, to the court of King’s Bench. It was clearly deemed to be of great importance – a show trial, to act as an awful warning to the Dissenters. The transcript of the trial is one of the longest in the collection. We have no evidence as to how it got into print, but clearly there was a skilled shorthand writer, or more than one, in the courtroom on all three occasions when Rosewell faced the already ominous George Jeffreys. The political climate in 1684, though no longer intensely focused on the role of Dissenters in the country, remained overheated in the aftermath of the Rye House Plot of 1683, which had brought to the scaffold Lord William Russell and Algernon Sidney, and led to the death of the earl of Essex in the Tower. Sidney’s case, of course, had helped Jeffreys’ rise to the position of Lord Chief Justice, and brought back into focus the legal question as to whether words could be declared treason in themselves, without an overt act. But there must have been something else in the air that had created a climate of spying and informers in relation to London conventicles. On 23 October, Mrs. Elizabeth Smith testified that she was in the house on 14 September when Rosewell spoke the following words: Smith: He said, ‘The people made a flocking to the king, to cure the king’s evil, which he could not do’; but, says he ‘we are they should flock unto, for we are priests and prophets, that by our prayers can cure their grievances’. He said, ‘We have now had two wicked kings together, which have permitted ST, X, 147–307.

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Popery to come in under their noses, and could be compared to nothing but the wicked Jeroboam’. And then after he had preached a good while, again he said, ‘If they would stand to their principles he did not fear but they should overcome their enemies, as in former times, with broken platters, ramshorns, and a stone in a sling.3

Later in the trial, it emerged that Elizabeth Smith made a habit of frequenting conventicles, and had informed upon them previously. But Jeffreys would not let Rosewell question her on this matter, for the reputation of witnesses for the Crown was to be kept intact. This was part of the absurd and unjust doctrine that witnesses for the Crown could be sworn and so could lie with impunity, whereas witnesses for the defense were not permitted to be sworn, and therefore their testimony was discounted. Howell’s edition of the State Trials provides a long note about the repressiveness of this doctrine, citing Coke (3 Institutes, Inst. 70), and observing that the practice would not be reformed until the statute of 7 William 3, c.3, confirmed by 1 Anne. St. 2, c. 9.4 Two other witnesses, Mrs. Hilton and Mrs. Farrar, both women, testified to almost identical words being spoken by Rosewell, though neither could remember any other parts of the two sermons, nor the texts on which they were based.5 One of these was Genesis 20, the second 11 Hebrews 12, in which, discontinuously, most of the phrases parroted by the informers could be found, though not at all in the context pretended by the innuendos. Here is what the indictment, prepared by Sir Thomas Sawyer as attorney general, made of the above. I cite the English version, though the indictment was written in Latin, and neither Rosewell nor his counsel were allowed a copy, a common practice. ‘That the People’ (meaning the subjects of the said sovereign lord the king), [n.b. the ‘said’ refers only to what the indictment stated in its opening, not to any mention of the current king by Rosewell] ‘made a flocking to our said sovereign lord the king, upon pretence of healing the kings’s evil, which he’ (meaning our said sovereign lord the king) ‘could not do but that we’ (meaning thyself and other traitorous persons, subjects of our said lord the king) ‘are they to whom they’ (meaning the subjects of our said lord the king) ‘ought to flock, because we’ (meaning thyself, and the said other traitorous persons) ‘are priests and prophets, that by our prayers can heal the dolours and griefs of the people. We’ (meaning the subjects of our said sovereign lord the king) ‘have had two wicked kings’ (the most serene Charles the First, late king of England, and our said sovereign lord the king that now is) ‘together, who have permitted popery to enter in under their noses; who’ (meaning the said Charles the first, late king of England, and our said sovereign lord the king that now is) ‘we can resemble to no other person but to most wicked Jeroboam. And that if they’ (meaning the said evil-disposed persons then ST, X, 161. ST, X, 213-14. 5 ST, X, 170-78. 3 4

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and there, so as aforesaid with thee unlawfully assembled and gathered together) ‘would stand to their principles, thou’ (meaning thyself) ‘didst not fear, but they’ (meaning thyself, and the said evil disposed persons) ‘would overcome their enemies’, (meaning our said sovereign lord the king and his subjects) ‘as in former times, with rams horns, broken platters, and a stone in a sling.’ 6

Later Rosewell successfully explained, to any mind not already determined against him, where the phrases came from in his exposition of his biblical texts. Then he brought in one of his own witnesses, one Mr. Hudson, who had taken extensive notes on the sermon, and several others who could and did supply the biblical contexts for the phrases so egregiously distorted and patched together. The next phase of the trial, which was lengthy, was devoted to Rosewell’s efforts to demonstrate that the women who had sworn against him were in the business, literally, of being informers, and were of disreputable character. However, all the witnesses he called to that effect were dismissed by Jeffreys as themselves unreliable or only speaking hearsay. Jeffreys suggested that all the testimony about Rosewell’s loyalty to, and frequent prayers for, the King might have come from the period right after the Indulgence of 1672, ‘But whether his complexion altered towards the government, when it was though fit to restrain that indulgence, that you have to consider’.7 Further, Jeffreys delivered a lengthy sermon against the dangers of inciting insurrection, using the fate of Charles I as his moral platform. Given the length, vehemence, and cleverness of his summing up, it is not surprising that the jury voted Rosewell guilty.8 At this point Rosewell used the law that allowed a defendant to sue for arrest of judgment on the grounds, first, that ‘without these innuendos there could be nothing made out of such words as these are, neither treason, nor anything else’; and, second, that the Latin used in the indictment was faulty – ‘such Latin, as I believe your lordship never saw’.9 Following this, Jeffreys suddenly became very interested, and seems to have changed sides. He accused the Attorney General, Sir Robert Sawyer, of having created innuendos not supported by averments, that is, by any actual previous mentions of the Stuart kings by Rosewell. Plaintively, Sawyer replied, ‘My lord, I do not know how we could have done it better than we have done’, in effect admitting that there were not, and could not be, such averments.10 The supposedly treasonous sentences and phrases were, as I have said, nowhere near each other in Rosewell’s sermons; and the fact that there were two sermons, morning and afternoon of the same day, was 8 9

ST, X, 150-51. ST, X. 250. ST, X, 259. ST, X, 262, 202. 10 ST, X, 263. 6 7

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conveniently overlooked during the trial. This means that the connections between them were created by the witnesses, who had evidently compared notes. Indeed, at one point the prosecutors admitted that the text of the indictment ‘seems to be several sentences’, to which Justice Wythens, though supposedly speaking for the Crown, remarked, ‘Mr. Solicitor, if you make it several speeches, then it is ten times worse, for then the latter part is uncertain, without an averment of whom the words were spoken, that sure it can never be made good’.11 Now the law governing arrest of judgment allowed Rosewell to have counsel, and Jeffreys admitted Richard Wallop, who had argued in defense of Fitzharris; Henry Pollexfen, who had previously been defense counsel for Fitzharris, Lord Russell and William Sacheverell, but, alas, would change sides in the trial for treason of Lady Alice Lisle; and Thomas Bampfield, who seems to have played no role in this or any other trial. The case was re-heard on 27 November, over a month after the first hearing. Wallop took up the first of Rosewell’s own points, that without the innuendos the words cited could not possibly be construed as treason. Wallop tellingly drew in the opinion of Lord Coke, in his Fourth Report, and with that at his back delivered an eloquent summary of what the law should be in relation to innuendos: Innuendos are to follow the meaning of the words as they lie in the record,… and not to draw the meaning of the words after the innuendo; for you will never (especially in case of life) press words, or strain them to speak more willingly than they mean or intend. It is not the practice of the law to do, to make any such stretches. ‘Qui nimis emungit, elicit sanguine’, he that wrings the nose too hard, will draw forth blood, that is the rule of that great lawyer, my lord Coke, who applies that saying to the forced meaning of words beyond what in themselves they naturally and easily will bear. And it is plain that God is not well pleased with such enunciations: nor does the law of the land at all allow it, but absolutely forbids it, for the law of England speaks thus, ‘in dubiis et generalibus, benignior sensus est praeferendus’, in all dubious, uncertain, and general cases, the most benign and candid interpretation is to be taken: so that if there should be a doubt about these words, what sense they be taken in, the law of England does injoin your lordship to take the way that lies on the right hand, and make the most favourable construction, that can be of them. We say then the words, as I conceive, standing quite otherwise, and without the innuendos, are insensible, at least uncertain, to what they should be applied, and to whom.12

Sir Francis Wythens, who had argued for the Crown in the case of Fitzharris, was interested enough in Wallop’s authority to question its location in Coke’s ST, X, 298, 299. ST, X, 276. Cook’s opinions are from Lord Cromwell’s case (1579–81) in Sir Edward Coke, The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard, (3 vols, Indianapolis: Liberty Fund, 2003). I, 105–111. 11

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Fourth Report, and was given the folio number (17B).13 Wythens would be explicitly omitted from the indemnity passed at the Revolution of 1688, which confirms the side he chose.14 It was rather clever of Wallop to pair with Coke the authority of scripture, since the striking sentence, ‘he that wrings the nose too hard, will draw forth blood’ comes from 30 Proverbs 33 in the King James Version, though the Latin comes, unsurprisingly, from the Vulgate. I wager the audience remembered that colourful sentence in Wallop’s testimony. The main part of Rosewell’s defense, however, was entrusted to Pollexfen, who tried first to argue that words were not treason, either under 25 Edward III or 13 Car.2, which declared that the worst of words uttered from the worst of motives could be at worst only a punishable misdemeanor. This argument scandalized the prosecutors, and required Pollexfen to retreat to the second of Rosewell’s own points: that indictment was faulty in its form, that its Latin was unintelligible; for instance, that ‘Nos habuimus nunc duos reges insimul’, created an incoherence of time, since ‘habuimus’ (we have had) conflicts both with ‘nunc’ (now) and ‘insimul’ (at the same time) thereby making an implied reference to both Charles I and Charles II impossible. A similar problem arose with ‘Sed ipsi starent ad fundamentalia’, where the grammatical reference of ‘ipsi’ must, by the laws of grammar, apply to the two kings, not Rosewell’s audience. Jeffreys joined enthusiastically into this discussion of the Latin, and said crisply to Sawyer, ‘the relative must go to the last antecedent, or else Dr. Busby (that so long ruled in West-minster school) taught me quite wrong’. And later, ‘it is so loose a hung-together indictment, as I truly have scarce seen’.15 So he deferred judgment until the next law term, by which time Rosewell had received a pardon from Charles II. Jeffreys’ astonishing change of demeanor was commented on by Roger North, and his comment was cited by Howell in his opening notes to the trial as follows: The Lord Chief Justice could not contain himself, or be concealed, but openly rejoiced at the accident, and was tickled with mirth and laughing at the king’s counsel. But the serious observation was that, after he had urged the prosecution of Rosewell, and a fault slipt, he should so merrily discharge him.16

To turn back a little, Rosewell’s case brought to the forefront the role, or the passivity, of the jury. During the trial, Pollexfen said, ‘the jury have not found that [the phrases objected to] were spoken of the king, for there is no such thing ST, X, 276. Stuart Handley, ‘Wythens, Sir Francis (c. 1635–1704), judge and politician’, Oxford Dictionary of National Biography. 23 September 2004; Accessed 17 June 2021. https://www-oxforddnb-com.proxy3.library.mcgill.ca/view/10.1093/ref:odnb/9780198614128.001.0001/ odnb-9780198614128-e-30178. 15 ST, X, 299, 301. 16 ST, X, 150, citing Roger North, The Life of the Right Honourable Francis North, Baron of Guilford, (2 vols, 1808), II, 107. 13 14

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averred’. Sawyer replied, in a torrent of negatives, ‘nor they have not found them to be not spoken of the king, for there is no such thing averred’. At this point one of the counsels for the King broke ranks. Said Sir Thomas Walcot: ‘I do think that the averment that these words were spoken of the King, is a point of fact that ought to be averred and proved. Might not the jury in this case have found that they were not spoken of the king? If they had found that, why then they would have acquitted him’.17 We do not find any trace of Walcot in the State Trials thereafter. Possibly he was thought to have blotted his copybook. Walcot’s scenario implies, however, that juries at this date were still assumed to be able to decide for themselves whether the defendant’s words were actually treasonous (that is, to speak to the legal issue), and not merely to adjudicate the material facts (that is, that Rosewell had preached in a private house on 14 September). This presumption was completely overruled in the next century by the legal doctrine of Lord Mansfield, who declared that juries might only rule on the facts (e.g. whether an author or publisher was actually the material source of a book or pamphlet) but not on whether the contents of such a publication were really seditious).18 It was not until 15 June 1792 when Charles James Fox got his Libel Act passed through Parliament (32 Geo.III.xc.60) that the earlier presumption was reinstated. In the interests of full disclosure and perhaps the education of some, I quote the Act here at length: Whereas doubts have arisen, whether, on the trial of an indictment for the making or publishing any libel, on the plea of not guilty… it be competent to the jury impaneled to try the same to give their verdict upon the whole matter in issue; Be it therefore declared and enacted… that on every such trial the jury sworn to try the issue may give a general verdict of Guilty or Not Guilty upon the whole matter put in issue… and shall not be required or directed, by the court or judge before whom such indictment or information shall be tried, to find the defendant or defendants guilty, merely on the proof of the publication by such defendant or defendants of the paper charged to be a libel, and of the sense ascribed to the same in such indictment or information. …………………………………………………………………………………………....................... Provided also, that nothing herein contained shall extend or be construed to extend to prevent the jury from finding a special verdict, in their discretion as in other criminal cases. Provided also, that in case the jury shall find the defendant or defendants guilty, it shall and may be lawful; for the said defendant or defendants to move

ST, X, 301. R. v. Shipley (1784) 4 Doug 73; on which see Anthony Page, ‘The Dean of St Asaph’s Trial: Libel and Politics in the 1780s’, Journal for Eighteenth-Century Studies, 32:1 (2009), pp. 21–35. 17

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in arrest of judgment, on such ground and in such manner as by the law he or they might have done before the passing of this act.19

* * * It is certainly no coincidence that the second case I have chosen to focus on arose just two years after Fox’s Libel Act. On 24 February 1794, Daniel Isaac Eaton came before the recorder of London, Sir John William Rose, in the Old Bailey for publishing a pamphlet deemed seditious. The title of the pamphlet was Politics for the People, or Hog’s Wash, and the indictment, which could now be presented in English, used a set of innuendos, which the jury were invited to test. Since the Libel Act had reinstated the interpretive role of juries, the prosecuting justice Fielding bent over backwards to remind jurors of their new status, insisting as follows: The proper province of a jury upon such occasions as the present: it is this, and God forbid it should be otherwise, that in the very frame-work of the crime, the jury should have a full cognizance of it, and a full jurisdiction over it; that the jury should be alone the judges, as to the nature and extent of the criminality charged.20

I now invite you to act as a jury, to see whether the innuendos were properly or even plausibly averred. Before this exercise, however, I should point out that, unlike the transcript in Rosewell’s trial, we know the source of this transcript. Eaton’s trial was published in full in 1794, in a quarto pamphlet of sixty-two pages.21 We do not know who arranged for this, but it was almost certainly Eaton the publisher himself, and he and his friends had had plenty of time to round up one or more good shorthand writers between the finding of the grand jury in December 1793 and the trial on 24 February 1794. The trial took place in the Old Bailey. The transcript reveals that the prosecuting counsel, William Fielding,22 who was standing in for the attorney general, Sir John Scott, was astonishingly careful, civil and generally above reproach in his handling of the trial, considering that this was not the first time Eaton had been prosecuted for libelous publications. Nor was it the last, as we shall see. The passage in question was a beast fable, a genre reactivated in the early modern period by the exigencies of political communication. Its source was ST, XXII, 306–7. ST, XXIII, 1017. 21 The Trial of Daniel Isaac Eaton, for Publishing a Supposed Libel, Intituled Politics for the People; Or, Hog’s Wash, (1794). 22 John Barrell, Imagining the King’s Death: Figurative Treason, Fantasies of Regicide 1793–1796, (Oxford, 2000), p. 108. William Fielding (1748–1820) was the son of the famous novelist, Henry Fielding (1707–54). 19

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identified as a speech by John Thelwall during a social debate. Justice Fielding made a point of mentioning this, since the name of Thelwall might already be toxic, though his trial for treason would take place several months later in October 1794.23 The ‘I’, therefore, which governs the disputed passage must be assumed to be Thelwall. The passage formed only part of a pamphlet whose title was itself, according to Fielding, socially dangerous, Politics for the People, and contained other inflammatory remarks, for instance, the citation of a heartless remark by Condorcet on the execution of Louis XVI by his subjects. These helped to provide a context in which the fable should be interpreted, and the intentions of its maker identified. The question of intention, always slippery, was thus introduced as a primary warning to the jury not to be too softhearted: ‘I used… to be very fond of birds and poultry; and among other things of this kind, I had a very fine majestic kind of animal, a game cock’, [meaning thereby to denote and represent our said lord the king], ‘a haughty, sanguinary tyrant, nursed in blood and slaughter from his infancy, fond of foreign wars and domestic rebellions, into which he would sometimes drive his subjects, by his oppressive obstinacy, in hopes that he might increase his power and glory by their suppression; now, this haughty old tyrant’ [again meaning our said lord the king] ‘would never let my farm-yard be quiet; for not content with devouring by far the greater part of their grain that was scattered for the morning and evening repast, and snatching at every little treasure, that the toil of more industrious birds might happen to scratch out of the bowels of the earth, the restless despot’ [meaning our said lord the king] ‘must be always picking and cuffing at the poor doves and pullets, and little defenceless chickens, so that they could never eat the scanty remnant, which his inordinate taxation left them, in peace and quietness: now, though there were some aristocratic prejudices hanging about me from my education, so that I could not help looking, with some considerable reverence, upon the majestic decorations of the person of king Chaunticlere’, [meaning our said lord the king], ‘such as his ermine spotted breast, the fine gold trappings about his neck and shoulders, the flowing robe of plumage tucked up at his rump, and, above all, that fine ornamented thing about his head there, his crown or coxcomb, I believe you call it (however the distinction is not very important), yet I had, even at that time, some lurking principles of aversion to bare-faced despotism struggling at my heart, which would sometimes whisper to me, that the best thing one could do, either for cocks and hens, or men and women, was, to rid the world of tyrants’ [meaning our said lord the king, among others].24

If this fable had been republished today in, say, the New York Times, and without the original innuendos, it might readily have been adapted to the autocrat who embarrassed the United States as president from 2017 until January 2021, not least since caricaturists have focused the public mind on ‘that fine ornamented thing about his head there, his crown or coxcomb’. Barrell, Imagining the King’s Death, pp. 392–400. ST, XXIII, 1014–15.

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What was the context of Eaton’s trial? First, it was of course that of the French Revolution, whose ideals or practices men like Fielding and indeed probably the majority of Englishmen, viewed with horror, especially the execution of Louis XVI in January 1793. Second, the context was shaped by that weird counterproduct of revolutionary ideas, the rise of Napoleon and the declaration of war by France upon England on 12 February 1793, which meant the raising of massive defensive funds. Behind these contexts was the long, drawn-out war with the American Colonies that had certainly manifested the ‘obstinacy’ of George III and that had put England’s finances seriously in the red. The ‘inordinate taxation’ complained of in the fable, however, cannot be confirmed by any modestly serious account of the financial policies of William Pitt the Younger, which at the level of taxation probably inconvenienced only the upper classes, falling, for example, on horses and hair powder. The dreadful income tax, to which the cartoonist Gilray so effectively drew attention, did not fall on everyone until 1799. More significant as a sign of the times was the bill brought in by Pitt in May 1794 to suspend Habeas Corpus, an event that symbolized the return of the arbitrary government practiced by the Stuarts. It was definitely the will of the government at this point to make civil liberties give way to national security, and the upcoming trials of Hardy, Tooke and Thelwall were as much demonstrations of that will as had been Thomas Rosewell’s. But an additional aspect of the context for this trial was provided by the trials that had almost immediately preceded it: Eaton’s first trial on 23 February 1793 for publishing the Second Part of Thomas Paine’s Rights of Man, which had come out in 1792; a second trial of Eaton for publishing A Letter addressed to the Addressers on the late Proclamation (viz. George’s proclamation of 21 May 1792); the trial of Thomas Briellat on 6 December 1793, for speaking seditious words out of a 1747 pamphlet, evidence given by an informer, in which Vaughan and Gurney also were defence counsel; and the proceedings against Daniel Holt, for reprinting without alteration ‘a pamphlet by Major Cartwright; to which the minister, Mr. Pitt, as a member of a political society, had given countenance and circulation’.25 It was not just the heated juridical climate which had been inflamed by the above-mentioned events, but the results of those recent trials must have been in the mind of the prosecution when the focus returned to Eaton. In the first of Eaton’s trials, to the extreme irritation of Lord Kenyon, the jury returned the verdict ‘Guilty of Publishing, but not with a criminal intent’; in the next case, the jury brought in a verdict of ‘Guilty of Publishing’, and despite Lord Kenyon’s protest, held to their verdict.26 In the Briellat and Holt trials, despite the assistance of the great liberal lawyer Thomas Erskine, who seems to have disapproved of the new Libel Law, the verdict was guilty, possibly because what was in question were spoken words, which the new Libel Law 847 ST, XXII, 1199. ST, XXII, 780, 822.

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did not address. In other words, Fielding had a reputation to make or lose in the third Eaton trial, with which we are primarily concerned. Even since the libel act, it could go either way. Fielding’s arguments were of three kinds: first, that the allusions in this passage to George III were so obvious that they could not otherwise be explained; second, that the author’s (and hence the publisher’s) intentions were to address the lowest of the low (‘the People’, or the swinish multitude, as Burke had called them in his Reflections on the Revolution in France (1790)), to ‘excite them to discontents and commotions’; and third, that the essential reverence due to the chief magistrate had been replaced under the veil of an allegory by ‘a degree of sarcasm, which manifests a strong malevolence’ to that same chief magistrate, and that it was meant to inspire ‘perfect detestation’ of the ruler, while ‘suggesting that the means of getting rid of such a character must be by a stroke similar to that which has taken place in a neighboring unhappy country’.27 Hence the allusion to the guillotine. It is interesting, at least to me, that Fielding focused on the rather superficial ‘trappings of royalty’ (George III was particularly fond of ermine in his state portraits), and not on the allusions to ‘foreign wars and domestic rebellions’ in which the cock’s ‘oppressive obstinacy’ had involved his subjects.28 In tribute to Fielding, I want to cite his advice to the jury about how to deal with this case, which was to determine the intentions of the defendant. As a literary scholar, I find this amusing, for our discipline had for three quarters of a century been denied the right to try to determine the intentions of a writer, words in question being interpretable only by the (much later) reader. That is a cheap shot at the New Criticism, since the embargo in question has long since gone the way of other dogmas. At any rate, Fielding expressed himself in a way that could even now be useful to literary scholars, at least in his first sentence: In a publication… it may sometimes be difficult to come at the intent of the author; but in order to do that, you must necessarily go into the context and into the whole publication. Where it can arise as a defence for the man accused, that the words which are selected for prosecution convey a different meaning when taken in detached sentences, from what they bear in connexion with the general context, it is fair that he should have that defence; he should have the advantage of the whole being taken together.

If this legal doctrine had been articulated in the trial of Thomas Rosewell, there would have been no case against him. Here, Fielding did his best to supply the literary context (though not the political context, that would have been much too dangerous) for the fable about the rooster. He carefully Edmund Burke, Reflections on the Revolution in France, (1790), in Revolutionary Writings, ed. Iain Hampshire-Monk, (Cambridge, 2014), p. 81; ST, XXIII, 1028. 28 ST, XXIII, 1027.

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guided the jury through the rest of the little offending pamphlet, making sure that they understood the political sentiments of the ‘Thelwall’ who was supposed to be its author. We now turn to the defense. This should have been the task of Felix Vaughan, who had led the defense of Eaton before, successfully, but who was too ill to conduct it. Vaughan therefore handed it over to John Gurney, who had worked with him as junior counsel on Eaton’s two previous trials in 1793. Gurney was at least as brilliant as his senior counsel. No doubt they consulted on tactics. And the first tactic, a bold one, was to bring in the context of the French Revolution and give the Revolution itself a strong defense. ‘It would have been an anomaly in the prosecutions of the present day, if the affairs of France had not been introduced. And why are they introduced?’ Answering his own question, Gurney stated that that tactic was designed to use English horror of the Revolution in its later phases to influence the jurors. Whereas if they thought more carefully about ‘the French question’, they would realize that ‘whatever disorders may have tarnished the French revolution, they afford an argument to Englishmen to prize and maintain every liberty they possess, and above all the liberty of the press’.29 The French, he argued, had been given for so long ‘lessons in barbarity’ that it was not surprising that ‘when restraint was removed, ‘some of them should practice the lessons their former masters had taught them’. If in their progress from slavery to freedom they have had to traverse a narrow and a slippery path, assailed by foes without, and by traitors within, is it to be wondered at that many of them should stumble and fall?30

This description makes the French sound like Christian in Bunyan’s Pilgrims Progress. ‘But,’ asked Gurney, moving to a rhetorical commonplace, ‘Is liberty to be decried, because at any time, or upon any occasion, licentiousness has assumed its name?’ He added that the boundaries between those two concepts are impossible to set with any precision, and that ‘no two men, no two lawyers, are agreed upon the subject’.31 So Gurney was not going to base his defense on a distinction of his own between liberty and licentiousness. He was going to argue, indeed, that the distinction was irrelevant here, because the pamphlet Eaton had published could not conceivably be deemed something that had crossed over to licentiousness. But first he had to deal with the complaint that by calling his pamphlet Politics for the People, Eaton was sowing sedition among the lower classes – a typical government position. ‘Whom are politics for, but for the people?’ asked Gurney (you will be beginning to appreciate his use of the rhetorical question): ST, XXIII, 1032. ST, XXIII, 1033. 31 ST, XXIII, 1033. 29 30

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Are politics for placement and pensioners only? Are they alone blessed with understanding fitted to the investigation of this sublime and mysterious science … But the price is twopence, hinc illae lachrymae. If it be a crime to sell a political pamphlet cheap, Mr. Easton must plead guilty to that charge, but so far from confessing it as a crime, I state it as a merit, I challenge for his applause. Political pamphlets, I think, should be cheap. I am very sure that public order and tranquility will never be maintained so well as when every man reads and understands political pamphlets, because there is no obedience to law so exemplary, there is no attachment to a good constitution so strong, as that which results from a knowledge of the reason and obligation of law, and the true principles as well as beneficial effects of the constitution.32

Having gotten that objection out of the way, Gurney turned to the topic which is the basis of my paper, and ties my two trials together: the use of innuendos. Beginning with a statement that there is not a single syllable ‘of and concerning our sovereign lord the king’ in the fable, that is, as the trial of Thomas Rosewell taught us, no averment, Gurney attacked the innuendos head on: Innuendos have in former times gone to such lengths as to draw down some degree of ridicule upon them, but never before, I believe, have they gone the length of the innuendos in this indictment. The sole purpose of an innuendo is, to fix the true meaning. An innuendo is not to be an arbitrary thing at the pleasure of the drawer of the indictment; it must be warranted by the context; it must be conformable to the sense of the paper: the sense of the paper must not be forced or strained; it must be the natural, the plain, the obvious, the necessary sense.

And now Gurney begins to enjoy himself: The art of drawing indictments, and contriving innuendos, and so manufacturing libels, is indeed a curious art. I do not know, and I really am at a loss to conjecture, who could have been the drawer of this indictment. From its internal evidence, I am led to suppose, it must have been the author of the Arabian Nights Entertainments, or some person equally conversant in the wild and extravagant fictions of the East. He must have given unbridled and unbounded license to an imagination the most wanton and the most heated, before he could have sat down to ascribe meanings to this paper, so foreign and indeed so ridiculous. All of the innuendos, in my opinion, are far from innocent, but one of them contains the most seditious assertion I have ever seen. [He] might just as well have employed himself, like Dean Swift’s projector, in attempting to extract sedition from this story of the game cock.33

Later he will explain which of the innuendos was itself seditious: the one that states that the phrase ‘to rid the world of tyrants’ meant ‘our said lord

ST, XXIII, 1034. ST, XXIII, 1035.

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the king among others’.34 This was to turn the indictment itself into a libel, which would not only be on record, but would be published to the world in the form of the trial transcript, as happened in 1794. I cannot discover who in fact drew up the indictment. But, unlike John Gurney (if he was not being disingenuous,) I am not at a loss to conjecture. The attorney general, Sir John Scott, did not attend the trial, and in fact Eaton came before the court after having been found guilty by a Grand Jury, rather than by an ex officio information. Still, someone had to have drawn it up. Shortly after having been promoted to attorney general, Scott had been chief counsel for the prosecution in the second case against Eaton referred to above. I argue, therefore, that he likely would have interested himself in this one. Later he would lead the legal charge against the sympathizers with the French Revolution, Thomas Hardy and Horne Tooke.35. Gurney’s arguments in defense of Eaton were to be threefold: first, the political tenor of the fable was in fact to be praised, since it merely expressed the same hatred of tyranny that, Gurney claimed, the English had long ago developed and cherished: What language do our ancestors hold out to us by Magna Charta, by the Habeas Corpus Act [a topical dig], by the Bill of Rights, and above all by the Revolution, but this. ‘We have found monarchy, unlimited and unfettered incompatible with rational freedom and social order; we have therefore prescribed limits to it, that you and posterity may be free and happy’.36

Second, the fable of the cock was by no means inevitably aimed at George III. But why is it to be supposed that this game cock, who is described as an haughty and sanguinary tyrant, nursed from his infancy in blood and slaughter, must necessarily mean the present mild and merciful king of Great Britain?37

Surely, Gurney claimed, there are more apt comparisons to be made by looking at Asia, or even only at Europe, where one monarch had just recently been executed by his subjects, however mild and merciful in character he might in fact have been, for having continued the absolutist practices of his ancestors. What about James II, who having fled in 1688 for his absolutist practices, would have certainly, had he returned, ‘expiated, and justly expiated, his crimes upon the scaffold?’.38 Since there was no specific averment that the fable applied to George III, it could not be applied to him, it must have been only speaking in generalities. Third (and this is the best part), the prosecution had read the fable incorrectly: ST, XXIII, 1039. Barrell, Imagining the King’s Death, pp. 318–401. 36 ST, XXIII, 1036. 37 ST, XXIII, 1036. 38 ST, XXIII, 1037. 34

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For never was the king of Great Britain represented by the emblem of a cock. The king of Great Britain has always been denoted by a lion, and the king of France by a cock; the reason of which I suppose, was, that gallus, as you well know, is Latin for a cock. None of us, I am sure, can have forgot that which we taught in our youth, that the crowing of the gallic cock should be silenced by the tremendous roaring of the British lion.39

In the first part of this final assertion, Gurney was correct. Not only had the rooster, because of its religious associations, been a national symbol of France since the Middle Ages, but it had been revived during the French Revolution, when the republicans rejected the religious tradition and insisted that gallus derived from the ancient Gauls, a useful myth of origins. Napoleon, however, rejected it on the grounds that cocks have no strength, and replaced it by the eagle. But for the second assertion, Gurney was being deeply disingenuous. What the English were taught in their youth was that the crowing of the cock would make the lion turn tail and run. This old legend derived from one of Aesop’s fables, ‘The Ass, the Cock and the Lion’, in which a rooster’s crowing does indeed make a lion run away, and thus saves the Ass’s ass. Obviously, this would not serve Gurney’s purposes. Now it becomes evident that Gurney had, in preparing his defense, been reading an edition of Aesop. After this brilliant turning of the tables, he would admit that if the fable referred to anyone in particular, it would obviously be Louis XVI, and ‘whatever you or I may think of that monarch or his fate, we cannot deny to any man the right of thinking or speaking of him, and of his fate’.40 He could have pointed out, though he did not, that state portraits of Louis XVI show him just as furred in ermine as those of George III. But he had more to say about Aesop’s fables, which were often given to children to read. And here comes a brilliant twist: If when any man publishes a paper on tyranny in general, or Louis the sixteenth in particular, he is to be charged by an innuendo of this sort with meaning king George the third, what will become of the security and peaceful exercise of the freedom of the press? … It is not booksellers only who are liable to prosecution… any of you who may happen to give a book to one of your children may be prosecuted, and your children may be dragged into this court to lay you in gaol by their evidence… Upon the principles of this prosecution, if it has any principle, a book, which I dare say, once afforded us much pleasure, I mean Aesop’s Fables, is the most seditious book that ever was published. Woe to Mr. Eaton, if he has ever sold that book; woe to any man that has sold it, if he has given offence to the ministers, or to any of those spies and informers who now invest this country… There is scarcely a fable that will not furnish an indictment.

Moreover, Gurney selected as an example the fable of the Ape, who was made ST, XXIII, 1037, ST, XXIII, 1038.

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king, and was punished for his presumption by a Fox, who led him into a trap. ‘With this receipt for drawing indictments, I could go through the book, and draw five hundred’, Gurney finished with a flourish.41 If we were to be imaginative, and to imagine Gurney as maliciously playful, we could cite a 1795 cartoon by William O’Keefe of Pitt as a monkey carrying the crown round his neck and the orb in his hand; that is, taking over the rule of the country.42 Perhaps this could be used as evidence for creating an indictment that this fable of Aesop was libelous in the context of the current regime. Having now dealt with the shaky basis on which the innuendos had been created, Gurney turned to the central issue – the freedom of the press. And here he delivered a sermon in its own way as striking in defense of that principle, and of liberty generally, as George Jeffreys’ sermon against nonconformity had been astonishing in the contest of Rosewell’s trial. It is necessary, in order to support that contention, to quote large chunks of it. Gurney begins what, in the history of rhetoric is called a peroration – a conclusion of greater emotional force than what had already been said: I have bestowed some pains in searching for an indictment like the present, and I can find none even in that sink of iniquity, the collection of indictments in the reign of Charles 2nd. I believe neither the records of the star chamber, nor the annals of Jeffries will furnish an indictment in which a general reflection upon the nature and tendency of tyranny, or the desert of tyrants, had been deemed a libel upon the king of Britain.43

Where had Gurney been searching? No doubt in the 1776 edition of the State Trials by Francis Hargrave. And he conveniently overlooks the example of Algernon Sidney, convicted for exactly that kind of ‘general reflection’, in that reign and by that judge, in an unpublished political treatise. Perhaps if challenged he would have said that Sidney was not convicted of libel but high treason! Gurney then turned to the history of convictions for libel, motivated, so he said, by some recent cases. Harking back to the evils of Star Chamber, he proposed that since its fortunate demise some of its doctrines were after a very long interval, revived, and continued in existence till within these two years: when they were, I trust, completely destroyed by that act of parliament, for which we are indebted to the bright ornament of the English bar, and the great model of its eloquence – an act which has assured and confirmed to every Englishman the right of being tried by a jury of his equals, when accused of having written or published a libel.44.

ST, XXIII, 1038. William O’Keefe, ‘Farmer George’s Wonderful Monkey’, (1795) British Museum, Dept. of Prints and Drawings, Registration no. 1991,0720.19. 43 ST, XXIII, 1040. 44 ST, XXIII, 1042. 41

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That is to say, Charles James Fox and his Libel Act. ‘Gentlemen,’ Gurney continued, we look back to the prosecutions for sedition in the reigns of the Stuarts with detestation and horror. Are we absolutely certain that our posterity will look back upon the prosecutions of the present day with very favorable sentiments? There was then the same cry of sedition, there was then the same pretence of conspiracies and plots, when all the time the sedition was the sedition of the ministers against the people, and the conspiracies and plots were theirs, to subvert the constitutional liberty of the country. Has this prodigious dread of sedition slept from the time of Charles the 2nd, until now, and is it to awake precisely at the present moment? Were libels so abundant then? Have they been so scarce from that time to this? And do they suddenly abound again? No such thing. Publications reprobating tyranny and tyrants, and arraigning ministers, have never failed to issue from the press. But it is not all ministers who have been troubled with the same irritability of temper… It is a bad omen when ministers wish to stop the current of free inquiry… Never yet was the frequency of publications lessened by prosecution, but on the contrary they have always been increased ten-fold. If the ministers wish to extract the sting from these publications, they should adapt a system exactly the reverse of that [into which the press] has provoked them… Let them not cling to every corruption and every abuse… Let them not pursue those measures which induce the necessity of increasing the heavy load of taxes which extorts from the poor the scanty subsistence that their labour can procure.45

Thus Gurney, by subtle indirection, supported the contention of the fable that the tyrant cock (who has now slipped from being the King to being the Prime Minister) has enforced ‘inordinate taxation’ upon the laboring poor. He then moved to the highest level of appeal to principle: To attack the freedom of the press, and I conceive it is attacked most violently by this prosecution, is to aim a fatal stroke at liberty itself. And is it now at the close of the eighteenth century, in an age which boasts of being the most enlightened the world ever saw, that liberty is to be proscribed in its most favoured residence? No, gentlemen, so long as we preserve those bulwarks of our constitution, the liberty of the press and trial by jury, and juries preserve their independence, I am sure all the efforts of tyranny to obtain a footing on this island will prove abortive.46

It was a masterly performance. Sir John Rose, recorder of London, did his best in summing up to bring the jury’s attention back to the question as to whether the fable about the cock was in fact a libel, though he shifted the focus of the presumed attack from George III to his minister(s). Rose also pointed out that in bringing the question of taxation back into his peroration, Gurney had breached his own main point, that the fable does not, and never did, apply to the King and government of England. Scott called this ‘rather an aukward ST, XXIII, 1044, 1044–45. ST, XXIII, 1046.

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circumstance’. To no avail. ‘The jury retired, taking with them the pamphlet and a copy of the indictment; in about an hour they returned with a verdict of – Not-Guilty.’47 * * * Both my trials reached a happy ending, though by different legal means, the first on a technicality, the second on principle. The fact that the second one connects itself to the first, via Gurney’s study of the state trials of the previous century, is not at all an awkward circumstance but a tribute to the political power that the published, collected and edited State Trials cumulatively acquired, to be consulted by lawyers and the general reading public alike. And in the somewhat special case of Eaton’s trial, made special by Gurney’s exceptional courage (this was at the very height of anti-Jacobin frenzy), the English reading public was treated to a high-minded defense of English liberal thought in terms of which nobody could complain without self-incrimination. There is one serio-comic postscript. When Eaton was tried again, on 6 March 1812, for publishing the third part of Paine’s Rights of Man, he was an old man, between 59 and 60. He insisted on giving his own defense. Unsurprisingly, he was convicted, and sentenced to a prison term of eighteen months and to spend time in the pillory once a month, for a stay of two hours. His intended humiliation drew huge crowds, who did not behave as expected. It is at least to my delight that the Newgate Monthly Calender (1825), reported that ‘to the credit of the populace, instead of saluting him with what his prosecutors desired, cheered and even endevored to convey him some refreshment’.48 Around the pillory, Eaton’s own pamphlets and other liberal publications found an effective new distribution point. And when he was released, presumably on the first occasion, some wag placed a rooster cock on top of the pillory to commemorate his previous victory.

ST, XXIII, 1053, 1054. Newgate Monthly Calendar (1825) I, 292, cited in H. R. Tedder, ‘Eaton, Daniel Isaac, d. 1814’, Dictionary of National Biography, (London, 1888), xvi, 336. 47

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Index A Letter addressed to the Addressers on the late Proclamation 257 A Letter from a Person of Quality (1675) 184 A New Martyrology: or, The Bloody Assizes (1689) 192 A Relation of the Strange Apparition of the Five Jesuits (1679)  100 Abingdon, second earl of, see VenablesBertie, Montagu Account of Popery and Arbitrary Power (1677) 184 Account of the Sentence That Passed upon William Ld. Russell, Thomas Walcot, John Rouse, and William Hone..., on the 14th of this Instant July, 1683 147 Act of General and Free Pardon (1690) 180 Act of Indemnity (1660)  77, 78, 91, 180 Act of Pardon (1690)  181–2 Act of Settlement (1701)  36, 229 Act of Uniformity (1662)  184, 249 Act of Union (1707)  239 Acton, Richard  57, 60, 64 acts of attainder  8, 27, 37, 40, 138, 187, 189, 230, 238–9, 241, 243 Adderbury 217 Addison, Joseph  230 addresses  25, 169, 170, 173, 206–15 adultery  10, 30 Adye, Mary  222 Aesop 262–3 Aikenhead, Thomas  28 Ailesbury, second earl of, see Ailesbury, Thomas Ailesbury, Thomas, second earl of Ailesbury 39 Aislabie, John  54, 61, 69 Albemarle, duke of, see Monck, George aldermen  11, 185, 195, 211, 218 Allibone, Richard  173 American colonies  257 amnesty  180, 201

An Account of the Discovery of the New Plot (1683) 144 An Appeal of murther from certain unjust Judges (1693)  242 An Ordinary Journey No Progress, or, A Man doing his Own Business No mover of Sedition (1710)  222 Anderton, William  242 Anne, Queen  21, 42, 53, 67, 119, 122, 186, 207, 208, 209, 211, 212, 214, 215, 223, 228, 240 Anson, Admiral  246 anti-popery (anti-Catholicism)  98, 101, 104, 106, 107, 111, 122, 127, 132, 137, 163, 165, 182, 192, 234; see also Catholics/Catholicism; conspiracy theories Appleby, borough of (Westmorland)  210, 211, 212 archdeaconries  Bedford, 167; Buckingham, 167; Durham, 167; Leicester, 167; Northumberland, 168 Aristotle 196 Arlington, first earl of, see Bennet, Henry Armstrong, Katherine  189 Armstrong, Thomas  47, 138, 147, 185, 187, 189 armies  35, 43, 64, 134, 174, 227, 234 army officers  83, 173, 174, 230, 234 Arnold, John  110, 187 Ashton, John  226, 230, 231, 232, 235, 240, 243 Ashurst, Henry  109 Ashurst, William  105, 109 Assassination Plot (1696)  17, 37, 43, 49, 226, 234, 238 assize courts  40, 206; Bristol assizes, 172; Gloucester assizes, 206; Oxford assizes, 173; Shrewsbury assizes, 212; Surrey assizes, 40, 212; Wallingford assizes, 171, 172; see also courts of law Astle, Thomas  125, 127

INDEX

Atkyns, Edward  202 Atkyns, Robert  189, 190 Atterbury, Francis, bishop of Rochester  37, 49, 241, 243 Avery, William  164 Axtell, Daniel  83, 84, 85, 89, 90, 92 Aylmer, Gerald  58 Bacon, Francis  50 Bakhtin, Mikhail  232 Baldock, Robert  166, 172 Bampfield, Thomas  252 Banbury  217, 218, 219, 220 Baptists  92, 96, 164, 170, 171, 227 Barillon, Paul  115, 120, 121, 123, 124 Barnardiston, Samuel  185, 187, 190, 199 Baston, Thomas  60, 68 Bastwick, John  6 Bateman, Charles  185 Bates, Charles  53, 57, 58, 64 Bawdy House Riots (1668)  40, 46, 97 Baxter, Richard  191 Beaconsfield 217 Bedford, fifth earl of, see Russell, William beheading, as judicial punishment  73, 87, 94, 100, 141, 185, 231 Bennet, Henry, first earl of Arlington 52 Bentinck, Hans William, first earl of Portland 37 Bethel, Slingsby  117, 118, 125 bigamy 40 Bill of Rights (1689)  187, 261 Birch, Col. John  200 Birmingham 218 Blague, William  139, 141, 147 Blaney, Robert  14 Blunt, John  57 Bolingbroke, first Viscount, see St. John, Henry Bolton, second duke of, see Paulet, Charles bonfires  164, 166, 175–7, 218 Booth, George, first Baron Delamer [Delamere] 186 Booth, Henry, second Baron Delamer [Delamere]  187, 188, 190, 192, 194

Boscawen, Hugh  184 Boswell, James  222 Bourne, Zachary  154 Boyer, Abel  207–8 Bradshaw, John  73 Brady, Robert  197 Braithwaite, Thomas  175 Bramston, John  238 Breillat, Thomas  257 Bridgeman, Orlando  79, 80, 81, 82, 83, 85 Bridges, Ralph  209 Bristol  164, 172, 189, 220 broadsides  78–9, 99, 142, 144, 145, 147 Bromley, William  207 Browne, Henry  173 Bucknall, Ralph  109 Bunyan, John  259 Burgess, Daniel  172 Burke, Edmund  258 Burnet, Gilbert, bishop of Salisbury  28, 39, 41, 124, 128, 131, 178, 184 burning at the stake, as judicial punishment 185 Burton, Henry  6 Bury St. Edmunds  31 Butler, James, second duke of Ormonde 37 Butler, Nicholas  146, 175 Cambridge 227 Cameron, Archibald  244 Cannock 218 Capel, Henry  188 Capell, Arthur, first earl of Essex (ninth creation)  83, 98, 102, 130, 142, 149, 153, 185, 186 Care, Henry  29 Carew, John  81, 82, 87, 90, 92 Carnwath and Winton, fifth earl of, see Dalzell, Robert Cartwright, Major  257 Cartwright, Thomas, bishop of Chester 38 Castlehaven, second earl of, see Tuchet, Mervyn Castlemaine, countess of, see Palmer, Barbara

268

INDEX

Castlemaine, earl of, see Palmer, Roger Caswell, George  54 Catherine of Braganza, Queen  117, 122 Catholics/Catholicism  18, 19, 24, 34, 35, 43, 48, ch. 4. passim, 113, 115–18, 120, 122–3, 130–2, 134, 135, 138, 146, 154, 163, 166, 173–7, 181–2, 184, 226, 228, 234–6; see also anti-popery (anti-Catholicism), Jesuits Cavalier Parliament (1660–78)  184 Cavendish, William  196–7 Cavendish, William, third earl of Devonshire  185, 187 Cecil, James, fourth earl of Salisbury (fifth creation)  175 celebrity, political  7, 40, 205-6 Cellier, Elizabeth  131 Charles I  6, 8, 18, 29, 41, 73, 75, 76, 77, 80, 83, 84, 87, 99, 118, 134, 180, 197, 205, 214, 217, 219–20, 249–53 Charles II  11, 18, 24, 29, 34, 35, 38, 40, 42, 45, 46, 64, 73, 74, 75, 77, 78, 88, 91, 95, 101, 105, 109, 115–21, 122, 126–9, 132, 133–4, 135, 137, 146–7, 150, 154, 166, 169, 180–2, 184, 186–9, 197, 199, 226, 247, 248, 249, 253, 263–4; exile of, 18, 74–5; return to England, 18; as the ‘black bird’, 146–7, 154 Charnock, Robert  235, 236 charters, borough  195–9 Cheek, Thomas  122, 124 Churchill, John, first duke of Marlborough  53, 227, 228 Cicero 196 Clarendon, earl of, see Hyde, Henry Clarges, Thomas  201 Clark, George Kitson  224 Clarke, Edward  192 Clayton, Edward  119 Clement, Gregory  88, 89 Cleveland, duchess of, see Palmer, Barbara Cobb, Edward  217 Cobbett, William  4, 7, 8, 9, 10–11, 22, 26, 27, 33, 34, 35, 37, 49, 244, 247

coffeehouses 163 Coke, Edward  248, 252, 253 Coleman, Edward  34, 107 Colepepper, William  27 College, Stephen  26, 29, 47, 112, 115, 131, 185, 189, 190, 197 Collier, Jeremy  44 Committee of Secrecy  68 common law  4, 22, 34, 35, 40, 44, 61, 113 Congregationalists  83, 171 Coningsby, Thomas, earl of Coningsby 37 conspiracy theories  17, 18, 29, 92, 101–5, 107, 117–18, 122, 132, 134, ch. 6 passim, 264; see also Assassination Plot (1696), Irish Plot (1680–81), Meal Tub Plot (1679), Popish Plot (1678–79), Rye House Plot (1683) Convention Parliament (1660)  75 Convention Parliament (1689–90)  181, 186, 192, 199 Conway, Edward, first earl of Conway 121 Conway, first earl of, see Conway, Edward Cook, John, Solicitor General  82, 88, 90 Cook, Peter  237 Cook, Thomas  53 Cooper, Anthony Ashley, earl of Shaftesbury  24–7, 29, 36, 43, 93, 95, 99, 102, 105, 111, 112, 113, 119, 125, 130, 132, 149, 171, 197, 198, 201 Cornish, Henry  95, 105, 109, 117, 121, 124, 150–1, 185, 187, 190, 197 corruption  17–18, 50, 56, 66, ch. 2 passim; bribery, 54, 57; as partisan tool, 51, 56; in the navy, 68; of juries, 107; embezzlement, 52; extortions, 59; gifts, 57, 59 Cotton, Robert  183 Council of Six (1682)  186 courts of law  6, 11, 34, 36, 112, 152, 155, 166, 185–6, 195, 226; High Commission, 34; King’s Bench / Queen’s Bench, 27, 28, 47,

269

INDEX

93, 109, 120, 162, 164, 166, 172, 249; London Guildhall, 27; High Court of Justiciary, Edinburgh, 27, 33; Convocation of the Clergy (Canterbury), 27, 28; ecclesiastical (church) courts, 29–30; see also assize courts, Hicks Hall, Old Bailey, quarter sessions, Star Chamber, Westminster Hall Coventry 218 Cowper, William  187 Cowre, Richard  110 coxcomb, as insult  256 Craggs, James, the elder  54 Cranburne, Charles  235 Cromwell, Oliver  73, 94 Crosfield, Robert  68 crowds  24, 38–9, 42, 88–9, 94, 99, 101, 106, 121, 153, 175–7, 217–18, 222, 265 Curtis, Jane  145 Curtis, Langley  145–6, 147, 157 Dalzell, Robert, fifth earl of Carnwath 241 Danby, earl of, see Osborne, Thomas (first duke of Leeds) Dangerfield, Thomas  45, 48 Darby, John  138, 156, 157 Darby, John, Jr.  8, 30, 227–8, 229, 242, 245 Deal, William  28 de Caritat, Marie Jean Antoine Nicolas, marquis de Condorcet  256 Declaration of Breda (1660)  75 Declaration of Rights (1689)  29, 45, 48 Defoe, Daniel  191, 203, 219, 220 de Kérouaille, Louise, duchess of Portsmouth  116, 119, 121, 126, 128 De Krey, Gary  114 Delamer [Delamere], first Baron, see Booth, George Delamer [Delamere], second Baron, see Booth, Henry Delaune, Thomas  96 Derwentwater, third earl of, see Radclyffe, James

Devonshire, third earl of, see Cavendish, William dioceses  Chester, 167; Durham, 167; Lincoln, 166; Norwich, 167; Rochester, 167; St. David’s, 167; York, 167 disembowelment, as judicial punishment  73, 89, 97, 231 dispensing power, royal  182 dissenters, see nonconformists divorce  10, 27, 30, 225 Dolben, William  105–7 Dormer, Fleetwood  55 Dover 75 Downes, John  84 Drogheda 94 Drummond, John, earl of Melfort  182 Dublin  103, 148 Dugdale, Stephen  24 Duncomb, Edward  211–12 Duncombe, Charles  60, 61, 67, 69 Dundalk, Ireland  93 Dundas, Henry, first Viscount Melville 66 Dunton, John  191 Duras, Louis, second earl of Feversham 119 Dyer, John  216, 218 dying speeches, see last dying speeches Earsby, Thomas  109, 110 East India Company  53, 58, 60, 61, 64, 227 Eaton, Daniel Isaac  22, 255–65 Ecclesiastical Commission  164–6, 168, 182 Echard, Laurence  114, 120 Edinburgh  43, 239 Edward VI  47, 62 Elliott, Edmund  230, 231 Emlyn, Sollom  3, 8, 9, 14, 17, 29, 30, 33, 40, 44, 240–3, 247 engravings 43 Erskine, Thomas  257 Essex, first earl of (ninth creation), see Capell, Arthur Everard, Edmund  116, 120, 121, 123

270

INDEX

Exclusion Crisis (1678–79)  40, 42–3, ch. 5 passim executions (capital punishment)  8, 26, 34, 35, 40, 46–9, ch. 3 passim, 93–4, 123, 131–3, 138–42, 145–7, 149, 154, 174, 180–1, 185, 197, 231, 235–6, 256, 261; see also regicide of Charles I; Tyburn Exeter  175, 196 Fairfax, Anne  83 Fairfax, Thomas, third Lord Fairfax of Cameron 83 Fenwick, John  27, 37, 49, 238–9, 243 Ferguson, Robert  130, 150–1 Fielding, Robert  40 Fielding, William  255, 256, 257–8 Fifth Monarchists  32, 80, 81, 91, 92 Filmer, Robert  190 Finch, Daniel, second earl of Nottingham  181, 202 Finch, Heneage  79, 81 fines, as judicial punishment  47–8 Firebrace, Basil  53 Fitzgerald, Maurice  103 Fitzharris, Anne  116, 119, 122, 129, 120, 131, 133 Fitzharris, Edward  19, 35, 95, ch. 5 passim, 111, 252 Fleetwood, William, bishop of St. Asaph 216 flogging, as judicial punishment  185, 189 Flying Post  207, 218 Foley, Paul  184, 199 Foster, Robert, Chief Justice  82 Fox, Charles James  254, 263 Foxe, John  96, 192 Foyster, Elizabeth  128 France  181, 202, 204, 230, 238 Francia, Francis  226, 240, 241 Francis, Robert  46 freedom of the press  49 Friend, John  44, 235, 237 Fuller, William  226 Gascoigne, Thomas  106 Gauden, John  6

Gaunt, Elizabeth  185 George I  4, 27, 37, 241 George III  248, 257, 258, 261 Gerard, Charles, first earl of Macclesfield (first creation)  187, 188, 200, 202 Gibbons, John  144 gifts, as political symbols  212–13 Giles, John  110 Gillray, James  257 Glorious Revolution (1688–89)  20–1, 48, 52, 137, 180, 181, 204, 226, ch. 8 passim, 234 Gloucester 172 Gloucestershire 173 Godden v Hales (1686)  20, 35, 36, 39, 48 Godfrey, Edmund Berry  96, 99, 101, 105, 107, 108, 110, 113, 117, 124, 132 Godfrey, Michael  99, 105, 119 Godolphin, Sidney, first earl of Godolphin 228 Goodenough, Richard  147 Goodman, Cardell  237, 238 Goodwin, Timothy  8 Gordon, Thomas  66 Gordon, William, sixth Viscount Kenmure 241 Grahme, Richard  230 Grahme, William, dean of Carlisle  169 grand juries  25–6, 36, 47, 105, 109, 110, 171, 173, 174, 197, 261 Granovetter, Mark  56 Grantham, John  147, 157 Grascome, Samuel  242 Greaves, Richard  113 Grey, Ford (Lord Grey)  150 Grey, Thomas, second earl of Stamford  187, 188, 189, 200, 202 Guise, John  200 Gunpowder Plot (1605)  137, 234 Gurney, John  159, 261–5 Guy, Henry  52, 53, 58, 67 Habermas, Jürgen  215 Habeus Corpus Act (1678)  16, 24, 47, 241, 261; suspension of (1794), 257

271

INDEX

Hacker, Francis, Col.  84, 85, 89, 90 Halifax, first earl of, see Montagu, Charles Halifax, marquess of, see Savile, George Hampden, John (1595–1643)  4 Hampden, John (1653–96)  48, 55, 150, 183, 185, 186, 189, 200 hanging, as judicial punishment  73, 90, 91, 97, 113, 120, 231 Hanoverian succession (1714)  36 Harbord, William  183 Harcourt, Simon  212 Hardy, Thomas  10, 31, 257, 261 Hargrave, Francis  3, 8, 9, 17, 28, 30, 224, 244, 245, 247 Harley, Robert, earl of Oxford  37, 205, 238, 241–2, 243 Harriot, Thomas  110, 170 Harris, Benjamin  43 Harrison, Thomas, Major General  80, 87, 90, 92 Hastings, Warren  66 Hawkins, Francis  119, 123, 124, 126–7, 128, 129, 131, 132 Hawles, John  113, 189–90, 226 Hayne, John  109–10 Heads of Grievances (1689)  36 Heath, Richard  173 Henley, John  228 Herbert, Arthur, earl of Torrington  200 Herbert, Edward  36, 182 Herbert, William, marquess of Powis 182 Hereford 212 Herrup, Cynthia  15–16 Hetherington, William  102 Heynes, Brian  124 Hicks Hall, Middlesex  27, 170 Higgons, Bevil  128 High Court of Justiciary (Edinburgh) 239 High Wycombe  217 Hinton, Warwickshire  218 Hoadly, Benjamin  218 Hobbes, Thomas  196 Holloway, Richard  166 Holloway, Roger  182 Holmes, Geoffrey  208–9 Holt, Daniel  257

Holt, John, Lord Chief Justice  235, 237 Hone, William  139, 140, 141, 146, 147, 153 Horne Tooke, John see Tooke, John Horne Hounslow Heath  174 House of Commons  18, 53, 103, 110, 116–18, 121–3, 128, 130, 184, 188, 189, 190, 193, 199, 200, 207, 234 House of Lords  69, 81, 82, 102, 103, 110–11, 187–9, 194, 199–200, 205, 231, 238, 241 Howard, Robert, Sr.  58 Howard, Henry, seventh duke of Norfolk, divorce of  27 Howard, Robert  199 Howard, William, first Viscount Stafford  100, 102, 105, 108 Howard, William, Lord of Escrick  119, 123, 124, 130, 132, 147, 150, 153, 154 Howell, Thomas Bayly  4, 7, 8, 9, 10–11, 22, 26, 27, 33, 34, 37, 49, 244, 247 Howell, Thomas Jones  4, 26 Huguenots  112, 190 Hulet, William, Capt.  84 Hume, David  114, 133 Hunt, Thomas  196 Hunter, Henry  175 Hutcheson, Francis  245 Hutchinson, Lucy  74 Hyde, Henry, earl of Clarendon  4, 27, 35, 51, 58, 60, 91 ignoramus verdicts  24, 26, 43, 112, 115, 174, 197 impeachment (parliamentary)  35–6, 37, 50, 63 indemnity  180, 183, 186, 191, 253 Ingleby, Charles  166 Inns of Court, London  29 innuendo  22, 248, 251, 252, 255, 256, 260, 263, ch. 11 passim international law  23, 27–8 Ipswich, borough of  212, 213 Ireland  93, 101, 108, 112, 181, 202

272

INDEX

Ireland, William  34 Ireton, Henry  73 Irish Plot (1680–81)  24, 102–3 Ivey, Edward  119, 122

Khashoggi, Jamal Ahmad  17 Kingston 249 Knight, John  57 Knox, Thomas  110

Jacobites  21–2, 34, 37, 44, 49, 180, 181, ch. 10 passim, 226, 227, 228, 229, 230; planned rising of 1708, 239; rising of 1715, 49, 240–1 James VI & I  19–20, 24, 27, 29, 32, 35, 36, 38, 39, 43, 45, 46, 47, 48 James VII & II  11, 13, 18–20, 21, 24, 35, 40, 43, 45, 47, 95, 101, 102, 103, 105, 112, 117, 122, 130, 135, 146–7, 164, 169, 177, 180–2, 184, 192, 200, 226, 231, 235, 236–7, 243, 261 James, John  32 James, M. R.  13, 16 James, William  92 Jeffreys, George, Lord Chancellor  37, 47, 95, 144, 149, 150, 182, 183, 185, 187, 191, 248, 253, 263 Jenkins, Leoline  115, 118–19, 123, 129, 148, 193 Jenner, Thomas  182 Jesuits  34, 80, 87, 100, 106, 107, 109, 110, 127, 182 Johnson, Samuel (1649–1703)  43, 48, 185, 188 Johnson, Samuel (1709–84)  221, 222 Jones, George Hilton  161 Jones, J. R.  113 Jones, John  81, 88, 89 Jones, Thomas  36, 105, 107 juries  45, 47; see also grand juries

L’Estrange, Roger  85, 90, 129, 130, 182 Lactantius 190 Lake, John, bishop of Chichester  163 Lambert, John  78 Lambert, John, Col.  92 Lancaster, William  217, 219 Lane, John  110 Langbein, John  224, 225, 234 Laqueur, Thomas  86 Larkin, George  170 last dying speeches  30, 41, 86, 90–1, 100, 112, 115, 123, 124, 131, 140, 149, 189–90, 192, 225, 231, 232–3, 243 Laud, William, archbishop of Canterbury  8, 98, 99, 205, 214 Lawton, Charlwood  52 Layer, Christopher  241, 243 Lechmere, Nicholas  202 Leighton, Alexander  6 Levellers  9, 98 Libel Act (1792)  254, 263 Licensing Act (1662)  39; lapse of (1679), 39; renewal of (1685), 39; lapse of (1695), 39, 49 Lichfield  164, 218, 221, 222 Lilburne, John  6, 9 Lincoln, diocese of  166 Lisle, Alice  185, 187, 190, 191, 252 Littleton, Thomas  184 Lloyd, Robert  216 Lloyd, William, bishop of St. Asaph  163 Lloyd, William, bishop of Worcester 219 Locke, John  36, 104, 184, 195 London  24–5, 47, 95–8, 132, 145, 148, 164, 174, 185, 193, 197, 198, 216; Aldersgate Street, 24, 25, 197; Fountain Tavern, 24; Gracechurch Street, 32; The Strand, 177, 197; Royal Exchange, 193; Temple Bar, 197; Thanet House, 149; St. Clement’s Vestry, 162; Aldgate,

Kant, Immanuel  183 Keeling, Josiah  144, 146, 147, 153 Kelly, James  37 Ken, Thomas, bishop of Bath and Wells 163 Kendal, Westmorland  175 Kenmure, sixth Viscount, see William Gordon Kennett, White  217 Kenyon, J. P.  45 Kenyon, Lloyd  257

273

INDEX

46; Newgate, 46, 81, 88, 89, 93, 95, 102, 188; Charing Cross, 88; Somerset House, 96; Guildhall, 97, 101; London Bridge, 100; Merchant Taylors’ Hall, 101; Cheapside, 101; Monument to the Great Fire, 102; Skinner’s Guild, 105; see also Hounslow Heath; Old Bailey; Lord Mayor’s Shows; Tower of London; Tyburn; Whitehall Palace London, corporation of  36, 75 London Gazette  40, 42, 43, 141–2, 148, 153, 174, 207 London Orphans Fund  53, 64 Long, Thomas  137 Lord Mayor’s Shows, London  101 Louis XVI  256–7, 262 Love, William  100 Lovelace, John, Baron Lovelace  188 Low Countries (the Dutch Republic and the Spanish Netherlands)  47 Lowick, Robert  235, 237 Lowther, John  183 Ludlow, Edmund  74, 79, 92 Luttrell, Narcissus  115, 117, 121, 231 Lutwyche, Thomas  63 Macaulay, Thomas Babington  7, 10–11, 12, 16, 161–2, 181 Macclesfield, first earl of (first creation), see Gerard, Charles Macclesfield, first earl of (second creation), see Parker, Thomas Macnamarra, John  111 Magdalen College, Oxford  164, 182, 184, 216, 217; see also Oxford University Magna Carta (1215)  261 Malden, borough of  171 Mallet, David  144 Mallet, Elizabeth  144, 146, 155, 157 Manchester, second earl of, see Montagu, Edward Mandeville, Bernard  61 Mansfield, first earl of, see Murray, William manuscripts  42, 211–12; accounts of trials, 30–1, 42, 125, 131; newsletters, 140–1

Marlborough 218–19 Marlborough, first duke of, see Churchill, John Marshall, Peter  16 Marten, Henry  84 martyrdom, religious and political  34, 41, 74–7, 82, 94, 96, 102, 115, 123, 137, 139, 146, 170, 181, 183–92, 204–6, 216, 233 Marvell, Andrew  184 Matthews, John  49, 227–8, 244 Maxwell, William, fifth earl of Nithsdale 241 Maynard, Serjeant  108, 110 Mayne, Simon  84 Mead, William  32 Meal Tub Plot (1679)  117 Mearne, Charles  148 media and mediation  6, 42, 44, 131 Melfort, earl of, see Drummond, John Mendle, Michael  224–5 Messenger, Peter  40 Militia Act (1661)  184 Miller, John  162 Milton, Christopher  166 Milton, John  6 Monck, George, first duke of Albemarle 116 Monmouth Rebellion (1685)  185, 191, 226 Monmouth, corporation of  212 Monmouth, duke of, see Scott, James Montagu, Charles, first earl of Halifax  37, 53 Montagu, Edward, second earl of Manchester 83 Moran, Cardinal  94 Morphew, John  207–8 Morrice, Roger  33, 43, 184, 191, 201 Morton, John, archdeacon of Northumberland  168, 169 Muddiman, J. G.  14, 16, 224, 225 murder (non-judicial)  8, 12, 14, 17, 27, 40, 46, 96, 98, 99, 101, 102, 107, 108, 110, 117, 124, 132, 138, 174, 176, 183, 185, 186, 189, 193, 194, 200, 225, 243, 247 Murphy, Edmund  111

274

INDEX

Murray, William, first earl of Mansfield 50 Murray, William, second Lord  241 Musgrave, Christopher  183 music  94, 227, 234 Nairn [Nairne], second Lord, see William Murray Napoleon I  257, 262 Nash, James  103 Naylor, James  220 Nelthorpe, Richard  138 Nenner, Howard  45 Newcastle, marquis of, see Cavendish, William Newmarket 135 newspapers and periodicals  49; see also Flying Post; London Gazette; Post Boy Nicholas, John  87 Nicholson, John  8 Nithsdale, fifth earl of, see Maxwell, William Noble, Richard  27, 40 nonconformists  9, 30, 48, 74, 96, 98, 100, 138, 155, 162, 163, 171, 172, 192, 198, 201, 209, 226, 233, 240, 249; see also Baptists, Congregationalists, Presbyterians, Quakers nonjurors  44, 227, 242 Norfolk, seventh duke of, see Howard, Henry North, Dudley  192–3, 194, 198 North, Francis, Baron Guilford  36, 154, 193 North, Roger  114, 115, 192–3, 194, 253 Northampton 173 Norwich 212 Nottingham, second earl of, see Finch, Daniel O’Keefe, William  263 Oates, Titus  24, 29, 48, 115, 119, 120, 121, 125, 138, 185, 188, 189, 190, 193, 194 Old Bailey, London  24, 47, 230, 255 Old Bailey Sessions Papers (also Proceedings)  10, 23 Orford, first earl of, see Walpole, Robert

Ormonde, second duke of, see Butler, James Osborne, Thomas, earl of Danby, marquess of Carmarthen, and duke of Leeds  27, 35, 52, 57, 58, 60, 64, 67, 68, 117, 120, 122, 124, 130, 132, 133, 181, 186, 188 Oxford University  103, 152, 164, 167, 172, 173, 182, 185, 205, 217, 220; Jesus College, 217; Lincoln College, 217; Queen’s College, 217; see also Magdalen College Oxford, city of  47, 131 Oxford, earl of, see Harley, Robert Pagett, Richard  110 Paine, Thomas  31, 257, 265 Palmer (née Villiers), Barbara, first duchess of Cleveland and countess of Castlemaine  40 Palmer, Roger, earl of Castlemaine  182, 226 pamphlets  99, 32, 68, 99, 129, 135, 137, 140, 141–4, 148, 154, 200–2, 222, 226, 228, 255, 256, 257, 258, 260, 265 Papillon, Thomas  183, 185 papists see Catholics/Catholicism, anti-popery (anti-Catholicism) Parker, Thomas, first earl of Macclesfield (second creation)  37, 55, 58, 60, 61, 62, 63, 66, 68 Parkins, William  235, 236, 237 Parkyns, William  44 Parliament  (Westminster), 5, 93, 99, 113, 132, 134, 135, 183, 194, 196; (Oxford), 114, 117 parliamentarians  74, 83 Parteridge, James  110 passive obedience/resistance  12, 193, 199, 206, 208–9 Paulet, Charles, second duke of Bolton  188, 189, 200, 202 Peacock, Theresia  122 Pelling, Edward  149, 150 Pemberton, Francis, Lord Chief Justice  95, 105–7, 110, 153 Pembroke (county)  214 Penn, William (1621–70)  52

275

INDEX

Penn, William (1644–1718)  32 Pepys, Samuel  52, 87, 90, 91 Peter, Hugh  76, 78, 83, 88, 90 Peterborough 207 petitions  103, 104, 105, 109, 110, 191 Petre, Edward  182 Phillips, Samuel March  10–11, 12 Pilkington, Thomas  47–8, 100, 105, 185, 187 pillory, as judicial punishment  43, 265 Pincus, Steven  161 Pitt, William (the younger)  257 Plumb, J. H.  37 Plunkett, John  37 Plunkett, Oliver  18–19, ch. 4 passim, 123 Poems on Affairs of State  9–10, 228 poetry, political  9–10, 42 Pollexfen, Henry  153, 231, 252, 253 Pollock, John  45 pope-burning processions  42–3, 98–9 popery see Catholics/Catholicism, anti-popery (anti-Catholicism) Popish Plot (1678–79)  4, 17, 18, 24, 34, 40, 45, 94, 99, 102, 103, 107, 112, 115, 116, 131, 137 Porter, George, Captain  234 Portland, earl of, see Bentinck, Hans William, first earl of Portland Portsmouth, duchess of, see de Kérouaille, Louise Post Boy 207 post-communism 179 Powell, John  166 Powis, marquess of, see Herbert, William prerogative, royal  27, 34, 48, 75, 198 Presbyterians  92, 105, 109, 117, 122, 130, 166, 171, 172, 175, 178, 191 Preston, Viscount  226, 230, 231, 232 Price, Anne  107, 110 Prichard, William  148 Prideaux, Edmund  187 printed accounts of trials  30–1, 32, 42, 136–7, 139, 142, 143, 151 privy council  41, 91, 95, 110, 118, 125–7, 143–4, 163, 165, 186 Prynne, William  6

public opinion / public sphere  37, 69, 205, 209, 215 Pulteney, William  67 Quakers  9, 32, 171, 220 quarter sessions  173, 175 Radclyffe, James, third earl of Derwentwater 241 recusants see Catholics/Catholicism regicide of Charles I (1649)  137 regicides of Charles I, punishment of  ch. 3 passim, 180 regicide trials (1660–61)  18, 34, ch. 3 passim, 99 repealers (proponents of repeal of the penal laws and Test Acts)  170, 171, 201 republicanism, civic  196–7 Reresby, John  39 Restoration of the monarchy (1660)  180 Revolution of 1688–89, see Glorious Revolution Rich, Peter  187 Richardson, Captain  146 Roberts, John  109, 110 Rogers, William  173 Roman Catholics, see Catholics/ Catholicism Rookwood, Ambrose  235, 236 Rose, John William  255, 264 Rosewell, Thomas  22, 191, 248–54, 257, 258, 260 Rotherham, John  166, 171, 172, 178 Rotherhithe 249 Rouse, John  139, 140, 141, 146, 147, 152 royalists  8, 9, 75–6, 86–7, 90–1, 113, 134, 180, 220 Royston, Herefordshire  52 Royston, Richard  148 Rudolph, Julia  224 Rudyard, Thomas  32 Rugg, Thomas  79 rule of law  xv, 10, 17, 22, 23, 45–6, 48, 194 Rump Parliament  81

276

INDEX

Rumsey, John  145, 146, 147, 150–1, 152, 153, 155 Rushworth, John  4, 156, 228 Russell, Rachel (Lady Russell)  138 Russell, William, fifth earl of Bedford 188 Russell, William, Lord Russell  34, 38, 41, 115, 138, 140, 141, 146–7, 149, 150, 151, 152, 153, 154, 185, 187, 189, 194, 226, 249, 252 Rye House Plot (1683)  4, 17, 19, 29, 34, 41, 47, ch. 6 passim, 226, 243, 249 Sacheverell, Henry  21, ch. 9 passim, 226, 228; progress of, 215–23; trial of, 4, 7, 12, 13, 16, 21, 27, 32, 37–8, 43, 44, 238, 240 Sacheverell, William  183, 201–2, 252 Salisbury, bishop of, see Burnet, Gilbert Salisbury, fourth earl of, see Cecil, James Salmon, Nathaniel  227, 229 Salmon, Thomas  3–4, 8, 9, 10, 14, 15, 17, 22, 23, 26, 29, 30, 44, 46, 138, 155, 156, 157, ch. 10 passim, 234, 247 Sancroft, William, archbishop of Canterbury  163, 169, 171 Savile, George, marquess of Halifax  37, 41, 161, 181 Savile, Henry  58 Savoy Conference (1661)  27 Sawyer, Robert, Attorney General  121, 149, 153, 187 Sawyer, Thomas  249 scandalum magnatum 47 Scotland  33, 47, 49, 181, 230, 237, 239; Scottish law, 33, 47 Scott, James, duke of Monmouth  147, 150, 188 Scott, John  255, 261 Scott, Thomas  81, 82, 88, 92 Scroggs, William, Lord Chief Justice  36, 105, 115 Scrope, Adrian  81, 88, 89 seals, wax  210–11 secret histories  126–7, 129 Selattyn (Shropshire)  215, 216, 218, 222

sentiment and sentimentality  225, 232–4, 245 sermons  21, 38, 41, 42, 95, 97, 99, 137, 149, 165, 205, 207–8, 209, 233, 240, 250, 251, 263 Seven Bishops’ Trial (1688)  4, 20, 32, 38, 43, 45, 48, ch. 7 passim, 182, 200 Seymour, Edward  238 Shaftesbury, first earl of, see Cooper, Anthony Ashley Shakerly, George  218 Shales, John  173 Sharp, John  165 Sheppard, Thomas  147, 149, 150, 152 sheriffs  19, 36, 62, 87, 88–90, 95, 105, 118, 123, 132, 133, 173, 193–4; see also shrieval elections Shewsbury, first duke of, see Talbot, Charles Shirley v. Fagg (1675)  27 shorthand writing  9, 22, 31, 123, 151, 225 Shower, Bartholomew  194, 235, 237 Shrewsbury 172 shrieval elections  194, 198 Shropshire 205 Shute, Samuel  24, 105 Sidney, Algernon  34, 138, 139, 148, 149, 185, 187, 190, 191, 226, 249 Smith, Adam  245 Smith, Elizabeth  249–50 Smith, Henry  84 Smith, John  120 Smith, William  76 sodomy  15, 16, 225 soldiers see armies, army officers Somers, John, first Baron Somers  37, 186–7, 188, 201 Somerset, James  245 songs  42, 101, 102 Sorrel the horse  220, 222 South Sea Company  53–4, 64, 66, 67 Spencer, Henry, first earl of Sunderland  38, 182, 230 Spencer, Robert, second earl of Sunderland 54 Spierenburg, Pieter  86

277

INDEX

Sprat, Thomas, bishop of Rochester  187, 242 St. John, Henry, first Viscount Bolingbroke 37 Staley, William  99 Stamford, second earl of, see Grey, Thomas Stanhope, Charles  54 Stanhope, James, first earl of Stanhope 230 Star Chamber  9, 34, 263 State Trial  definition of the term, 3, 5, 7, 9–10, 22, 27, 48–9, 224–6, 247–8; A Compleat Collection of State-Tryals (1719), 3, 4, 8, 10, 16, 138, 139, 155, 156, 163, 216, 225–7, 232, 239, 240, 242, 246, 247, 248; Complete Collection of State Trials (1730), 3, 10, 16, 240, 242; State-Trials (1776-81), 3, 8, 10, 16, 28, 30, 224, 245, 247, 248; State-Trials (1809-26), 4, 9, 11, 14, 26, 34, 37, 49 Stationers Company  143, 144, 145 statutory law  18, 28, 30, 47, 48, 73, 184, 190, 234–5, 250; see also Act of General and Free Pardon (1690), Act of Indemnity (1660), Act of Pardon (1690), Act of Settlement (1701), Act of Uniformity (1662), Act of Union (1707), Habeus Corpus Act (1678), Libel Act (1792), Licensing Act (1662), Militia Act (1661), Test Act (1673), Toleration Act (1689), Treason Trials Act (1696), Triennial Act (1641), Union of Great Britain (1707) Stephen, Leslie  12–13, 16 Stirling, James (of Keir)  239 Stokenchurch 217 Strafford, first earl of, see Wentworth, Thomas (1593–1641) Strafford, first earl of (second creation), see Wentworth, Thomas (c. 1672–1739) Strickland, Agnes  13 Sunderland, first earl of, see Spencer, Henry

Sunderland, second earl of, see Spencer, Robert Swift, Jonathan  260 Talbot, Charles, first duke of Shewsbury  211 Tasborough, John  107, 110 taverns  24, 43, 97, 153, 163, 174, 176 Test Act (1673)  39, 43, 171 Tetsworth 217 Thackeray, William  11, 12 thanksgiving days  41 Thelwall, John  31, 255–6, 257, 258 Thomas, Donald  14 Thompson, E. P.  23 Throckmorton, Nicholas  15 Tillotson, John, archbishop of Canterbury 41 toleration, religious  43, 96, 104, 192, 200–1, 204, 209 Toleration Act (1689)  204, 206, 209 Tonson, Jacob  8, 32, 209 Tooke, Benjamin, II  8 Tooke, Benjamin  148 Tooke, John Horne  10, 31, 257, 261 Tories  4, 7, 11, 14, 16, 25–6, 29, 36–7, 46–7, 53, 114–15, 120, 128–9, 135, 146, 162, ch. 8 passim, ch. 9 passim, 226, 228–30, 234–5, 238, 240, 243–6 Tory Reaction or Tory Revenge  46, 113, 131, 133, 182 Torrington, earl of, see Herbert, Arthur torture, law of  47, 97 Tower of London  24, 163 Townshend, Charles, second Viscount Townshend 240 Trapp, Joseph  222 Treason Trials Act (1696)  190, 235, 237, 241 treason, law of and trials for  5, 6, 10, 11, 14, 15, 19, 22, 24–6, 29, 32, 34–5, 36, 37, 28, 40, 41, 46, 47, 49, 66, 73–4, 78, 79–80, 83, 93, 95, 98, 99, 105, 106, 108, 114, 121, 122, 133, 134, 135–7, 140, 145, 152, 154–5, 180, 182, 184, 185, 187, 190, 191, 197, 199, 226,

278

INDEX

230, 231, 233, 234, 235, 236, 237, 238, 239–40; definitions of, 46, 152, 190; treasonous letters, 240; treasonous words, 254 Treby, George  117, 124, 125, 132, 200 Tredenham, Joseph  200 Trelawny, Jonathan, bishop of Bristol 163 Trevor, John  53, 58 Triennial Act (1641)  184 True Protestant Mercury  104, 145 Trump, President Donald J., first impeachment of  16 Truth and Reconciliation Commission (South Africa)  179 Tuchet, Mervyn, second earl of Castlehaven 15 Turner, Edward  80, 81, 82 Turner, Francis, bishop of Ely  163 Tutchin, John  191 Tyburn  46, 73, 89, 90, 93, 94, 99, 111, 123, 124, 133, 188 Ulster 179 Union of Great Britain (1707)  33 Utrecht 185 Utrecht, Treaty of (1713)  228 Uxbridge  217, 220 Vallance, Ted  208 Vane, Henry  78 Vaughan, Felix  259 Vaughan, Thomas  226 Venables-Bertie, Montagu, second earl of Abingdon 217 venality  ch. 3 passim Venner, Thomas  91 Verney, John  156 Verney, Richard, Lord Willoughby of Brooke 218 Vernon, Thomas  54 Vowell, John  196 Vyner, Thomas, Sr.  58 Wakeman, George  28, 105–6, 115 Walcot, Thomas  254 Walcott, Thomas (Capt. Lt.)  138, 139, 140, 141, 143, 150, 152, 153, 154, 187

Wall, Mrs. (maid for the duchess of Portsmouth)  121, 126 Waller, William  98, 119, 120, 126 Wallop, Richard  252 Walpole, Robert, first earl of Orford  18, 37, 53, 54, 67, 243 Walsham, Alexandra  114 Walthoes, John, Jr.  8 Walthoes, John  8 Ward, Patience  100, 101, 112, 185 Warner, John  123 Warwick 218 Watts, Isaac  227, 233 weavers’ riots (1675)  46 Wedgwood, C. V.  79 Weil, Rachel  116 Welsh language  216 Wentworth, Thomas (1593–1641), first earl of Strafford  4, 8, 9, 98, 99, 108, 239 Wentworth, Thomas (c. 1672–1739), first earl of Strafford (second creation) 37 West Wycombe  217 West, Robert  144, 146, 147, 153 Western, J. R.  161 Westminster (city of)  101, 197 Westminster Hall  38, 39, 49, 93, 120, 141, 162, 163, 164 Weston, William  36 Whalley, Edward, Major General  92 Wharam, Alan  14 Wharton, first marquess of, see Wharton, Thomas Wharton, Thomas, first marquess of Wharton  188, 200 Wheatley 217 Whig history  10–12, 15–17, 48, 49 Whigs  14, 94–6, 99, 113, 116, 119, 122–3, 132–4, 146, 171, 182–5, 193–5, 203, 204, 209, 219, 223, 227, 229, 233, 237, 245; as authors and publishers, 14, 29, 43, 97, 104, 106, 111–12, 114, 124–5, 129, 131, 136, 138, 145, 155, 184, 191, 199, 207, 218, 231, 241, 243; and conspiracy or supposed conspiracy, 29, 135–7, 143, 155; and electoral

279

INDEX

politics, 171, 190, 202; and grand juries, 26, 197; in government, 32, 37–8, 53–5, 62, 102, 180–1, 205, 207, 230, 239–40; as judges and lawyers, 107–8, 118, 129–30, 189, 198, 226; and London shrievalty, 24–5, 36, 105, 109–10, 112, 115, 117, 120, 197; in parliament, 35, 36, 38, 100, 103, 186–8, 192, 200–2, 234, 238, 241; as popular movement, 42, 98, 104–5, 188, 207–8, 212, 214; as radicals and activists, 26, 34, 130, 188, 228; see also Exclusion Crisis (1678–79) whipping, as judicial punishment  46, 48, 184 Whiston, William  27, 28 White, Thomas, bishop of Peterborough 163 Whitehall Palace  40, 99, 129, 141 Widdrington, William, fourth Baron Widdrington 241 Wild, Jonathan  41 Wildman, John  183, 188, 199, 200 Wilkes, John  49 William III  17, 20, 21, 33, 36, 37, 43,

109, 138, 180, 181, 182, 183, 195, 200, 203, 204, 220, 243; see also Assassination Plot (1696) Williams, William  184 Wilmore, John  187, 197 Winchester 173 Windsor 144 Winnington, Francis  118 witchcraft, trials for  27, 31, 45 Withington, Phil  211 Wolfenham, John  129 Wollaston, William  28 Wolverhampton 218 women  85, 86–7, 94, 123, 126, 136, 185, 250–1, 256 Woolf, Daniel  156 Worcester  218, 220 Wotton-under-Edge 173 Wrexham 218 Wythens, Francis  28, 252–3 Yard, Richard  141 Yarmouth 196 Yonge, Walter  183, 192, 201 York 174

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STUDIES IN EARLY MODERN CULTURAL, POLITICAL AND SOCIAL HISTORY I Women of Quality Accepting and Contesting Ideals of Femininity in England, 1690–1760 Ingrid H. Tague II Restoration Scotland, 1660–1690 Royalist Politics, Religion and Ideas Clare Jackson III Britain, Hanover and the Protestant Interest, 1688–1756 Andrew C. Thompson IV Hanover and the British Empire, 1700–1837 Nick Harding V The Personal Rule of Charles II, 1681–85 Grant Tapsell VI Royalism, Print and Censorship in Revolutionary England Jason McElligott VII The English Catholic Community, 1688–1745 Politics, Culture and Ideology Gabriel Glickman VIII England and the 1641 Irish Rebellion Joseph Cope IX Culture and Politics at the Court of Charles II, 1660–1685 Matthew Jenkinson X Commune, Country and Commonwealth The People of Cirencester, 1117–1643 David Rollison

XI An Enlightenment Statesman in Whig Britain Lord Shelburne in Context, 1737–1805 Edited by Nigel Aston and Clarissa Campbell Orr XII London’s News Press and the Thirty Years War Jayne E.E. Boys XIII God, Duty and Community in English Economic Life, 1660–1720 Brodie Waddell XIV Remaking English Society Social Relations and Social Change in Early Modern England Edited by Steve Hindle, Alexandra Shepard and John Walter XV Common Law and Enlightenment in England, 1689–1750 Julia Rudolph XVI The Final Crisis of the Stuart Monarchy The Revolutions of 1688–91 in their British, Atlantic and European Contexts Edited by Tim Harris and Stephen Taylor XVII The Civil Wars after 1660 Public Remembering in Late Stuart England Matthew Neufeld XVIII The Nature of the English Revolution Revisited Essays in Honour of John Morrill Edited by Stephen Taylor and Grant Tapsell XIX The King’s Irishmen The Irish in the Exiled Court of Charles II, 1649–1660 Mark R.F. Williams

XX Scotland in the Age of Two Revolutions Edited by Sharon Adams and Julian Goodare XXI Alehouses and Good Fellowship in Early Modern England Mark Hailwood XXII Social Relations and Urban Space Norwich, 1600–1700 Fiona Williamson XXIII British Travellers and the Encounter with Britain, 1450–1700 John Cramsie XXIV Domestic Culture in Early Modern England Antony Buxton XXV Accidents and Violent Death in Early Modern London, 1650–1750 Craig Spence XXVI Popular Culture and Political Agency in Early Modern England and Ireland Essays in Honour of John Walter Edited by Michael J. Braddick and Phil Withington XXVII Commerce and Politics in Hume’s History of England Jia Wei XXVIII Bristol from Below Law, Authority and Protest in a Georgian City Steve Poole and Nicholas Rogers XXIX Disaffection and Everyday Life in Interregnum England Caroline Boswell

XXX Cromwell’s House of Lords Politics, Parliaments and Constitutional Revolution, 1642–1660 Jonathan Fitzgibbons XXXI Stuart Marriage Diplomacy Dynastic Politics in their European Context, 1604–1630 Edited by Valentina Caldari and Sara J. Wolfson XXXII National Identity and the Anglo-Scottish Borderlands, 1552–1652 Jenna M. Schultz XXXIII Roguery in Print Crime and Culture in Early Modern London Lena Liapi XXXIV Politics, Religion and Ideas in Seventeenth- and Eighteenth-Century Britain Essays in Honour of Mark Goldie Edited by Justin Champion, John Coffey, Tim Harris and John Marshall XXXV The Hanoverian Succession in Great Britain and its Empire Edited by Brent S. Sirota and Allan I. Macinnes XXXVI Age Relations and Cultural Change in Eighteenth-Century England Barbara Crosbie XXXVII The National Covenant in Scotland, 1638–1689 Chris R. Langley XXXVIII Visualising Protestant Monarchy Ceremony, Art and Politics after the Glorious Revolution (1689–1714) Julie Farguson XXXIX Blood Waters War, Disease and Race in the Eighteenth-Century British Caribbean Nicholas Rogers