Treason and Rebellion in the British Atlantic, 1685-1800

Legal Responses to Threatening the State

Peter Rushton, Gwenda Morgan

• Publisher: Bloomsbury Academic
• Year: 2020
• Print ISBN: 9781350192829
• eBook ISBN: 9781350005327
• Edition: 1
• Topic: History
• Subtopic: British History
• Index: History

This book examines internal political conflicts in the British Empire within the legal framework of treason and sedition. The threat of treason and rebellion pervaded the British Atlantic in the 17th and 18th centuries; Britain's control of its territories was continually threatened by rebellion and war, both at home and in North America. Even after American independence, Britain and its former colony continued to be fearful that opposition and revolution might follow the French example, and both took legal measures to control both speech and political action. This study places these conflicts within a political and legal framework of the laws of treason and sedition as they developed in the British Atlantic. The treason laws originated in the reign of Edward III, and were adapted and modified in the 16th and 17th centuries. They were exported to the colonies, where they underwent both adaptation and elaboration in application in the slave societies as well as those dominated by free settlers. Relationships with natives and European rivals in the Americas affected the definitions of treason in practice, and the divided loyalties of the American revolutionary war added further problems of defining loyalty and treachery. Treason and Rebellion in the British Atlantic, 1685-1800 offers a new study of treason and sedition in the period by placing them in a truly transatlantic perspective, making it a valuable study for those interested in the legal and political of Britain's empire and 18th-century revolutions.

Part One

Law, Empire and Treason

1

Treason, Rebellion and the Rule of Law

This is a study of treason and rebellion in the British Atlantic, an area which consisted of a diverse collection of jurisdictions and territories, different kinds of societies and political systems, with each unit posing difficulties of consistency in law and administration. Moreover, the territory under British control was continually expanding, often rather haphazardly, a process that repeatedly produced difficulties in relations between natives and European settlers. With British authority, it might be thought, went a single body of law and administrative policies: but, as Lauren Benton has pointed out, something as apparently simple as a law of treason, which focussed on actions of disloyalty and threats to the state, proved impossible to render consistently in so many different contexts. Geographic expansion undermined every such attempt at imperial standardization in many European empires, but particularly that of the British. Treason ‘far from kings’ proved an adaptable but slightly unpredictable strategy for authorities in far-flung colonies.¹ In this study we attempt to focus on the deployment of law in times of rebellion, ranging from the ‘home’ countries of England and Scotland to the colonies, each with their own legislative bodies and often unique configurations of classes and structures of domination. Nevertheless, there was a somewhat makeshift common framework of law, some aspects of it much clearer than others. On the one hand there were the rules of war: on the other, the rule of law. Of the two, the laws passed by individual states usually had the benefit of being clear and detailed. The laws of war, by contrast, were only gradually being developed in the seventeenth and eighteenth centuries, more as a collection of agreed procedures adopted if possible by European armies in conflicts with one another. They were more like a gentlemen’s agreement than a strict code, and entirely without any procedures of enforcement. Laws of treason, on the other hand, had a long history in each state. In civil wars and rebellions, both were in danger of becoming blurred. Britain experienced at least five civil wars between 1642 and 1800 – in Britain and Ireland in the 1640s and 1650s; in Scotland and Ireland in 1688–90; in Scotland and England in 1715–16, and again in 1745–6; and in North America in 1776–83. If the Irish rising of 1798 is included, war and rebellion, and various forms of treasonable actions against the British State, were almost an accustomed experience of rule in the first empire. As Barbara Donegan has shown, the civil wars of the 1640s and 1650s were only to some extent governed by the rudimentary laws of war. The rivals viewed each other with hostility, and proclaimed very different loyalties, to King or Parliament. For the Royalists, opponents of the king were generally regarded, but rarely prosecuted, as traitors. Parliamentarians inflicted civil and economic penalties on Royalists, attacking their estates and other economic assets, but little more. With prisoners on both sides, paroles of various kinds in force and exchanges continually being agreed, the protagonists generally conducted the war as though it was between foreign powers. There were terrible exceptions, and the record in the ‘age of atrocity’ is poor in both Britain and Ireland – most famously, the massacre by Cromwell at the end of the siege of Drogheda in 1649. Yet in the subsequent 100 years both the laws of war and treason were refined and clarified, the latter in both legislation and practice. The beginning of Britain’s sequence of wars, initially against the Dutch and then against the French, entrenched a gentlemanly common culture of courtesy and agreement in the matter of prisoners, paroles and exchanges. The law of treason, however, was radically reformed by the two parliamentary acts enshrining rights in statute law for the first time: Habeas Corpus in 1679 and the Treason Act of 1696. While, as we shall see, there were doubts about whether these operated in the colonies, they shaped the policies of the colonial authorities and the assertiveness of those they ruled. This book is therefore concerned with those incidents where rebellion and treason law converged, rather than with rebellions as such. In many ways, the question arises as to why the British state characteristically resorted to legal strategies at all. Rebels had few rights in any political philosophy of the time, and in other empires, such as that of the Turks (the Ottoman Empire), or the ancient Roman Empire, rebels were annihilated militarily and their noncombatant dependants enslaved. Going to court would not have occurred to the rulers of such imperial states. The legal details will be examined in the next chapter, but the characteristic of the British Empire at least was that it was defined by its ruling circles, as an empire of law.

Early modern kingdoms in Europe were riven by divisions, and continually threatened by plots and rebellions. The law of treason figured largely in the murderous political plotting of the royal courts such as that of England in the sixteenth century, but it was also a means of handling the many protests, uprisings and rebellions that the early modern states were prone to. As religious turmoil was often accompanied by dynastic squabbles, and many riotous protests by ordinary people were directed at defending their traditional rights, customs and institutions, there were plenty of opportunities for the state to refine the application of different kinds of law for suppressing disorder. Among the weapons available to the state authorities was the law of treason. Treason as a crime was defined and redefined in many ways in the period between the civil wars and the nineteenth century, but the core was a carefully framed law, the 35 Edward III c. 2 (1352), which was seen by later commentators as a limitation on arbitrary prosecution: its introductory paragraph pointed to the ‘divers opinions’ that had existed up to that point as to the definition of treason. This is not the place to reiterate the lengthy history of this law, but it is worth noticing that the parallel development of crimes of sedition and seditious words provided an alternative to the potentially deadly charge of treason. In fact, some historians such as Holdsworth point to the development of broader and more all-catching definitions in the eighteenth century, not least of what constituted the ‘state’: ‘we can see the growth of offences cognate to treason’ but these were essentially minor or lesser than treason itself. The key to this undergrowth was seditious libel, in spoken or written words, which were deemed to presage or induce a threat to the state. The retention of the complete opposite to sedition, namely oaths of loyalty, was therefore widespread throughout the British world, and among the movements opposing British rule. Loyalty was in some ways performed in this period, in the same way that intention and action were generally required for someone to be seen to be treacherous. One theme of this study will therefore be the analysis of words, particularly when spoken in public, and how they were judged to be safe or dangerous. Blackstone was cautious in this regard, saying that words spoken in heat, or written in private, could hardly be defined as treasonable, but if the writing was published, that would be another matter. It may be significant (see Chapter 3) that prosecutions for sedition increasingly concentrated on published writings – and their publishers – after the seventeenth century, which by contrast had chosen spoken words to prosecute. It was widely recognized that the definition of treason needed constraint, or, as Blackstone put it, drawing upon the ideas of Montesquieu, ‘if the crime of high treason be indeterminate, this alone … is sufficient to make any government degenerate into arbitrary power’. Thus legislation was needed to limit the latitude given to judges to decide on the crime, or judges would invent treason where none had existed before – what came to be called ‘constructive treasons’, something that returned to dominate much of the legal debates of the 1790s when gatherings of radicals were interpreted as being an attempt to usurp Parliament with a French-style National Assembly, and were treason because they implied the destruction of the existing government system and the death of the king.²

In the fourteenth century, treason was defined as an attempt or plan (‘compassing’ or ‘imagining’) to kill the monarch, his spouse, heir or senior ministers including judges of the assizes, adhering to the king’s enemies, making war on the king and counterfeiting the coinage. Thus protection was offered to the king and the key ministers of the state, and by implication, members of parliament. Less certain was whether local magistrates were included, though they in some places had powers similar to those of assize judges. Whereas planning the deaths was sufficient proof of treason, far more was needed to prove treason by levying war: later commentators such as Edward Coke thought that just planning to levy war (i.e. conspiracy) was not treason. Similarly, aiding the king’s enemies when in rebellion at home was treason, thought Blackstone, but helping or giving relief to a rebel ‘fled out of the kingdom’ was not, because they were not at that point in actual rebellion. ³ Attempts to extend these concepts under Henry VIII were repealed by subsequent regimes, and the broader ideas of ‘constructive treason’ were concentrated on what ‘levying war’ on the king might mean. Words, written or spoken, could be proof of intending treason, though most legal theorists were uncertain whether a follow-up action was needed. The cases that stood as a ringing injustice, memorialized as creating martyrs of Lord William Russell and particularly that of Algernon Sidney in 1683, in part hinged on the revelation of unpublished papers. This explains in part Blackstone’s insistence on publication of the words as a proof of a treasonable intention.⁴ The aftermath of the Glorious Revolution was a political regime that sought to make a self-conscious break with the abuses, as they were seen, of James II’s reign, and the new direction was embodied in the 1696 Treason Act. This enshrined in law the rights of defendants to counsel, knowledge of the charges, the names of the juries and certain safeguards such as an expiry date after which prosecutions could not be brought. Because Sidney had been prosecuted for private writings from years before, the new law insisted on prosecutions being brought within three years of the alleged treasonable action. The Act of Union of 1707 allowed the Scots to keep all their existing legislation – except the treason law, which was replaced by the 1696 Act, though where the trials could be held was left to later legislation during the Jacobite risings (see Chapter 4).⁵

The law of treason was therefore always to some extent in continual evolution in the early modern period rather than existing as a completely fixed set of legal concepts and practices: while its general definition remained unaltered in English law, and where adopted in the colonies, derived from that of Edward III, the 1696 Act was designed, as the preamble said, to ‘regulate’ the conduct of treason trials. In the dilemmas of governments after 1688 in facing revolts and rebellions, however, some very old solutions were occasionally deployed with a much broader sense of what a legitimate government might do. Some strategies involved martial law in specified areas of disorder, since this permitted the use of a proclamation demanding a return to order and the use of extreme military force to achieve it. This was, at best, summary justice through courts martial, though the formalities were rarely gone through in the face of popular insurgencies.⁶ The practice was exported to the colonies, and one study notes that it was in Bacon’s Rebellion in Virginia in 1676–7 that the largest number of civilians under English laws was tried and executed by martial law before the 1685 Monmouth Rebellion in the west of England, exceeding most recorded examples from England before that.⁷ This example suggests that martial law was a way of avoiding the difficulties of the common law when it might fail to achieve the desired political ends. Martial law on the British side was often the first resort of the authorities in the face of colonial resistance in the eighteenth century – Lord Dunmore, for example, declared martial law in Virginia in response to Patrick Henry’s famous speech. Thomas Gage in Massachusetts also adopted it, as Boston was placed under military occupation, ‘as if an enemy country’. In repeated proclamations, governors or military commanders used threats based on martial law. The rules of disorder inside Britain, in areas prone to industrial disputes, riots or food protests, were also subject to military intervention, albeit as an aid to the civil powers, and at their request.⁸ On the other side, coercion and force were deployed against loyalist Americans: rules of exclusion and compulsory oaths of loyalty were imposed by the newly constituted state legislatures, as colonies declared themselves states in the American Revolution. The use of martial law or, indeed, any kind of force without formal judicial processes, reflected a crisis in political power, and a failure of legitimate procedures (see Chapter 7).

An even more directly political process was for the legislature to pass an act of attainder: this, by law, named and condemned people for their treasonable actions, and ordered their arrest and punishment. No further consideration of the evidence was required, as the only question that arose was whether those arrested were in fact those named in the act. The only defence was to challenge that identification, and bring evidence that they were in fact someone else entirely. This procedure was unusual after the Glorious Revolution, though it did occur in the colonies, and in Virginia after the Declaration of Independence. To be ‘attainted’ involved many subsequent disabilities, particularly confiscation of property.⁹ An explicitly political strategy, it reduced the proceedings against alleged traitors to a personal attack. In other types of offence, too, the legislature could act as prosecutor and judge in its own case. Publisher and printer William Owen was prosecuted by Attorney-General Dudley Ryder in 1752 for publishing a critique of both electoral and parliamentary procedure. The action which provoked the pamphlet attack arose when an unsuccessful candidate in an election criticized the electoral procedure adopted. Parliament judged this to be seditious – speaking against the government and its system such as to bring it under threat – and ordered the man to be summoned to the bar of the House of Commons, where he was sentenced to a large fine and imprisonment. Owen’s printing of an account of this was deemed to be seditious libel also, and his acquittal caused Ryder extreme annoyance when the jury seemed to acquit in the face of the evidence. This ‘jury nullification’, as legal historians have called it, that is, acquittal despit...

Table of contents

• Cover
• Halftitle Page
• Title Page
• Contents 
• Preface
• Acknowledgements
• Part 1: Law, Empire and Treason
• Part 2: Rebellion to Revolution
• References
• Index
• Imprint