Early Modern Treason: How to try a traitor

In modern parlance treason constitutes a crime against ‘the state’, an act that puts the strategic interests and safety of a nation at grave risk. Early treason legislation proved to be something quite different, akin to a personal crime against the monarch by either attacking them personally or encroaching upon or usurping their sovereign authority. Over the course of the sixteenth and seventeenth centuries perceptions of what acts constituted treason as well as the relationship between sovereign and subject, ruler and ruled, continually evolved. Central to the changing nature and remit of treason legislation was the development of the legal and philosophical concept of the ‘king’s two bodies’; that the political and natural bodies of the King, though distinct, were legally inseparable. In simple terms this meant that a crime against the sovereignty and kingship of the monarch, whether vested in the King himself, parliament or the clerical estate also constituted a crime against the physical body of the King. Although their body was mortal, the monarch’s regal dignity was immortal and therefore lent a degree of continuity to the fundamental laws of the nation from one monarch to the next. To determine if Lieutenant Colonel Robert Lundy committed treason, the legislative basis of what acts constituted High Treason requires further explanation.

The foundation of early modern English treason law is enshrined in the statute 25 Edward III, st.5, c.2, This defined an act of High Treason to be,

When a man doth compass or imagine the Death of our Lord the King, or of our Lady his Queen, or of their eldest Son and heir; or if a Man do violate the King’s Companion or the King’s eldest Daughter unmarried, or the Wife of the King’s eldest Son and Heir; and if a Man do levy War against our said Lord the King in his Realm or be adherent to the Enemies of our Lord the King in his Realm, giving them Aid or Comfort in the Realm, or elsewhere; and thereof be probably attainted of open Deed by the People of their Condition.

High Treason also extended to counterfeiting the great or privy seal; counterfeiting the king’s coin; bringing forged coinage in the realm; and, ‘killing the Chancellor, Treasurer or Judges in execution of their duty’. The statute also carefully outlined incidents adjudged to be Petty Treason, namely ‘when a servant slayeth his Master, a Wife who slayeth her Husband, or when a Man Secular or Religious slayeth his Prelate, to whom he oweth Faith and Obedience’.

The passage of this statute was a hugely important development in the legal landscape of fifteenth century England, defining what acts constituted treason in statute rather than leaving it in the hands of the judiciary. However, a further clause contained in the statute allowed Parliament and the Courts to expand on this list of constituent acts in later centuries. It stated that,

And because that many other Cases of like Treason may happen in Time to come, which a Man cannot think nor declare at this present Time; It is accorded That if any other Case supposed Treason, which is not specified, doth happen anew before any Justices the Justices shall tarry without going to Judgement of Treason, till the Cause be shewed before the King [and] his Parliament, and it be declared whether it ought to be judged Treason or other Felony.

This clause allowed for the expansion of ‘common-law treasons’- later deemed to constitute treason but outside the explicit list laid down in 25 Edward III, st.5, c.2. As a result there was no common law definition of treason and it would be up to a monarch and his judiciary to determine if an offence constituted treason. Later referred to as the ‘salvo clause’, it also enabled Parliament to steadily increase its role in treason proceedings through the use of attainder. This legislative instrument permitted Parliament to pass an act declaring an accused to be guilty of a crime without the need for a trial to take place. During the Stuart Civil Wars of the 1640s and 1650s two of the King’s most trusted advisors, Thomas Wentworth, earl of Strafford, and William Laud, Archbishop of Canterbury, were eventually executed by attainder.

25 Edward III, st.5, c.2 applied to Ireland by virtue of the passage of 10 Henry VII, c. 22 through the Irish Parliament in 1495. This act became known more famously (or indeed infamously) as Poynings’ Law. This statute meant that in practice an Irish parliament could only be called with the prior approval of an English monarch, with potential bills first scrutinised by the Privy Council before they could be passed in the Irish legislature. The passage of Poynings Law originally intended to prevent Irish parliaments declaring their allegiance to pretenders to the English throne as had  occurred on several occasions in the later half of the fifteenth century, namely in relation to the claims of Richard, duke of York (1460), Lambert Simnel (1487) and Perkin Warbeck (1491). In 1541 the constitutional dependency of Ireland upon the English Crown reached a new apogee when the Irish parliament declared Henry VIII to be King of Ireland by virtue of 33 Henry VIII, c. 1, otherwise known as An Act that the King of England, his Heirs and Successors, be Kings of Ireland. Prior to this statute, English kings held the titles of lords of Ireland by virtue of a papal bull known as Laudabiliter, issued in 1155 by an English Pope Adrian IV to King Henry II. Henry II thereafter led an Anglo-Norman invasion of the island in 1171 and after his military conquest, was declared lord of Ireland. Though Ireland had its own parliament, in practice the legislature and the kingdom was subordinate to the English Crown.

Between the passage of 25 Edward III, st.5, c.2 in 1485 and the Stuart succession in 1603, the English parliament enacted sixty-eight treason acts, reflecting perpetual crisis at the heart of the Tudor monarchy due to the need to enforce the Protestant Reformation (or in the case of Mary I, overturn it) as well as tackle malcontents, pretenders and rebels that threatened the stability of the kingdom. Perhaps the best know and certainly the most controversial was 26 Henry VIII, c. 13, passed in November 1534. This expanded treasonable offences to include words, either written or spoken against the King, his queen or their heirs which when ‘heard seen or understood, cannot be but odible, and also abhorred of all those Sorts that be true and loving Subjects’. The statute stated that it would be held as treasonable to,

maliciously wish, will or desire, by Words or Writing or by Craft imagine invent practice or attempt any bodily Harm to de done or committed to the King’s most Royal Person, the Queen’s or their Heirs apparent, or to deprive them or any of them of their Dignity Title or Name of their Royal Estates, or slanderously and maliciously publish and pronounce, by expres Writing or Words, that the King our Sovereign Lord should be Heretick Schismatick Tyrant Infidel or Usurper of the Crown.

This not only legislated against personal attack on the monarch, but against their incorporeal sovereign powers and kingship; treasonable offences were thereby extended to the office of the monarch, not just their physical body.

It is also important to note as it has particular relevance for Lieutenant Colonel Lundy, that the statute further stated that refusing to return custody of detained royal fortifications and munitions within six days of being commanded to do so, as well as preventing the lawful entry of the King and his servants, constituted High Treason, the penalty for which was death. Lundy stood accused of having sought to traitorously surrender Londonderry to James II. In doing so it could be argued that Lundy willingly colluded in a plot to permit the detention of William III’s garrison, fortifications and munitions at Londonderry by the deposed Stuart monarch and his Jacobite army.

While 26 Henry VIII, c. 13 would certainly appear to be repressive, it dealt with a specific problem which threatened the stability of the Tudor monarchy; the King’s second marriage to Anne Boleyn and his break with the Pope and the Roman Church. The statute was extended to Ireland in 1537 through the passage of 28 Henry VIII, c. 7, otherwise referred to as An Act of Slander, in response to Silken Thomas’ rebellion of 1534. This piece of legislation is still in effect in Northern Ireland.

Three pieces of subsequent legislation passed by Henry VIII’s progeny repealed the measures enacted under 26 Henry VIII, c. 13 in England. Passed in 1547, 1 Edward VI, c. 12 noted that the legislative agenda of Henry VIII may have been overly repressive, stating that it ‘might seme and appere to men of exterior Realmes and many of the Kings Maiesties subgects verie streighte sore extreme and terrible’. Therefore this new statute argued that in a time of relative peace the law relating to treason, particularly treasonous words, should be moderated, ‘as in a tempest or winter one course and garment is convenient, in cawlme or warne weather a more liberall rase or lighter garment bothe maye and ought to be followed and used’. 1 Edward VI, c. 12 abolished all definitions of treason put on the statute book since 25 Edward III, st.5, c.2, including the unlawful detention of royal fortifications and munitions contained in 26 Henry VIII, c. 13. However Edward VI also added his own interpretation of acts which amounted to High Treason. This included denying by writing, printing or deed the King’s position as Supreme Head of the Church of England and Ireland. Likewise attempting to prevent the Act of Succession passed in 1543 (35 Henry VIII, c.1) also amounted to treason, which ironically Edward VI attempted to do himself in 1553 with his ‘Devise for the Succession’ which sought to bypass the claims of his half-sister Mary in favour of Lady Jane Gray. A tiered system of punishments was also introduced to deal with treasonable words. For a first conviction an offender would be subject to imprisonment and loss of goods and chattels. A second conviction would lead to perpetual imprisonment, loss of goods and chattels and forfeiture of lands and tenements. Only a third conviction would be accounted to be High Treason and suffer execution. Any offence which involved treasonable words also had to be reported within thirty days to a Privy Counsellor, a Justice of Assize, or a Justice of the Peace. It also brought in a hugely important evidential and procedural clause which stated that an accused could only suffer the pains of punishment if indicted by two ‘sufficyent and lawfull witnesses’ or confessed to the crimes themselves.

In 1551 Parliament passed 5 & 6 Edward VI, c 11, otherwise known as An Acte for the punyshment of diverse Treasons. Similarly to 26 Henry VIII, c. 13 this Act sought to prosecute those who accused the King or his heirs of being heretics, schismatics, tyrants, infidels or usurpers of the Crown. Those who uttered the offending words were subject to a tiered punishment similar to that in 1 Edward VI, c. 12 based on a first, second and third conviction for the offence, with the time period to report any incident was extended from thirty days to three months. Again, only on the third offence would offending words be termed High Treason. In contrast any person ‘by writing pryntinge payntinge carving or gravinge’ who referred to the King or his heirs in such language would be guilty of High Treason on a first conviction. 5 & 6 Edward VI, c 11 also modified the two-witness rule first laid down in 1 Edward VI, c. 12. Under this statute ‘two laufull accusars’ had to ‘avowe and manteyne that they have to saye against the saide partie to prove him giltie of the treasons or offences conteyned in the bill of Inditement layed against the Partie arrayned’. In other words the two witnesses had to face the accused at arraignment unless the accused voluntarily confessed his crime. The Act also reintroduced the offence of seizing any of the King’s fortifications and refusing to surrender it within six days.

Just two years later, 1 Mary st.1, c.1, (An Acte repealing certayne Treasons Felonies and Premunire), once again transformed the legal landscape, effectively repealing all treason legislation passed since 25 Edward III, st.5, c.2, including the 1551 Act passed under Edward VI which legislated that the detention of royal fortifications to be a treasonable offence. Naturally ‘Bloody’ Mary, the Henry VIII’s Catholic daughter sought to repeal all Henrician legislation which had aggressively undermined the Catholic Church in England. This included repealing all legislation dealing with Praemunire, a writ that sought to remove any legislative jurisdiction of the Roman Church in England. Many Protestants believed that any lingering notion of Papal supremacy in England gravely undermined the sovereignty of English monarchs, as well as the common law and courts of the realm. However faced with growing hostility from her Protestant subjects to her religious policies and marriage to Phillip IV of Spain, Mary brought further statutes into force which once again expanded treason beyond 25 Edward III, st.5, c.2. 1 & 2 Philip & Mary, c.9 afforded Mary’s husband the same protection as she enjoyed under the law. It stated that anyone who cast prayers or made speeches which called for the Queen to convert to Protestantism, or that ‘God shorten her dayes or take her out of the waye’, committed an act of High Treason. 1 & 2 Philip & Mary, c.10, passed in 1554, inserted a tiered punishment against anyone who spoke offending words that compassed or imagined depriving Philip and Mary or their heirs of their titles as King and Queen, deposing them, or levying war against them. This reiterates that treason encompassed an act against the office and title of monarch equally as much as against their physical person. The act also extended the time limitation to report such an incident from the three months previously included in 5 & 6 Edward VI, c 11 to six months. A first offence warranted perpetual imprisonment and forfeiture of land, home, goods and chattels; a second offence would be treated as High Treason. Writing or printing such offending words would immediately be treated as High Treason. Finally the act also reintroduced the two-witness rule established under 1 Edward VI, c. 12.

During the political uncertainty occasioned by the accession of Elizabeth I, both pieces of Marian legislation were extended to cover her reign under 1 Elizabeth I, c.5 and 1 Elizabeth, c.6. Elizabeth I’s parliament further extended treason legislation in 1570 as a direct response to the passage of a papal bull Regnans in Excelsis which excommunicated Elizabeth I, deprived her of her title as monarch, and absolved her subjects from their fidelity to her. 13 Elizabeth 1, c.1, An Acte whereby certayne Offences bee made Treason essentially restated and reintroduced many of the offences contained in 26 Henry VIII, c. 13 which had been repealed by both Edward VI and Mary. As well as compassing, imagining, inventing or devising to intend the death or bodily harm of the Queen, or depriving her from the style, honour and name of monarch, the act made it a treasonable offence to levy war in England or abroad or to stir up any ‘Forreyners or Straungers with Force to invade this Realm or the Realm of Irelande’. Furthermore, to deny in speech or writing that the Queen’s right to be monarch, that a pretender ought to sit on the throne, or that labelled Elizabeth a heretic, schismatic, tyrant, infidel or usurper of the Crown was automatically adjudged to be High Treason. It also restated that incidents must be reported within six months and witnessed by two people. However, the act was time limited and restricted to the life of Elizabeth herself. This meant in theory when James VI of Scotland came to the English throne as James I, the legislative basis for treason reverted to 25 Edward III, st.5, c.2.

The time limited nature of treason legislation passed during Elizabeth I’s reign also extended to 14 Elizabeth I, c.1, passed in 1572 and known under the full title An Act for the punishment of such as shall rebelliously take or detain or conspire to take or detain from the Queen’s Majesty any of her castles, towers, fortresses, holds, &c. This legislation dealt with acts of rebellion and stated that the following acts would be treated as treason:

To unlawfully conspire maliciously and rebelliously to take or to detain from our said Sovereign Lady the Queen any of her castles, or maliciously and rebelliously to raze, burn or destroy any castle having any munition or ordnance of the Queen’s Majesty’s therein or appointed to be guarded with any soldiers for defence thereof within this realm and the same conspiracies shall advisedly express, utter or declare for any the malicious and rebellious intents aforesaid.

Anyone found guilty of committing these acts would be adjudged to be a traitor and ‘shall suffer pains of death as in cases of felony, without having any benefit of clergy or sanctuary’. 14 Elizabeth I, c.1 any person adjudged to be guilty of the following acts would also be guilty of High Treason:

Withhold from the Queen’s Majesty any of her castles within this realm or do withhold from her Majesty any of her ships, ordnance, artillery or other munitions or fortifications of wars or shall burn or destroy any of the Queen’s ships or bar any haven within any of the Queen’s Majesty’s dominions.

The English parliament did not pass any further treason legislation until after the execution of Charles I in January 1649. On 14 May & 17 July 1649 the English Council of State passed two statutes which dealt with what acts constituted High Treason against the new Commonwealth. Although previous legislation invariably related to the usurpation of sovereignty under a monarchy, the Council of State extended this to usurping sovereignty in a republic where this authority had been vested in a rump Parliament and executive. Both treason statutes borrowed heavily from the language of Tudor legislation, stating that High Treason would be committed by,

maliciously or advisedly publish by Writing, Printing, or openly Declaring, That the said Government is Tyrannical, Usurped or Unlawful; or that the Commons in Parliament assembled are not the Supreme authority of this Nation; or shall Plot, Contrive or Endeavor to stir up or raise Force against the present Government, or for the subversion or alteration of the same, and shall declare the same by any open deed.

Likewise any person who either plotted or endeavoured to subvert the Council of State; fostered a rebellion; caused a mutiny amongst the army; invited, aided or procured foreign military assistance in England or Ireland; or, made a counterfeit Great Seal would also be guilty of High Treason. An Act declaring what Offences shall be adjudged Treason passed in July 1649 added the procedural caveat that no person could be indicted and arraigned for an offence unless indicted and prosecuted within one year after the supposed offence had been committed. After the Restoration of the Stuart monarchy in 1660, Charles II nullified this act alongside many others passed by Parliament during the civil war which did not have royal assent. Nonetheless treason legislation in England’s short-lived republic owed much to previous legislation. Moreover it had become increasingly impersonal, relating to incorporeal notions of sovereignty rather than personal attacks on the physical body of any individual.

As well as legislative innovations which defined what constituted treason, the interpretations of the judiciary further shaped and widened the meaning of treason beyond what those codified in 25 Edward III, st.5, c.2. This formed a body of law known as ‘constructive treason’ through which the courts interpreted the law as they saw fit, especially when a case had wider political connotations. In a modern legal system, no crime is considered to have occurred unless the actions of the accused fall within the boundaries set by a relevant statute, outlining the offence and prospective punishment. Any notion of doubt in the legal standing or application of any piece of legislation warranted the benefit of the Court’s protection. This is particularly important when considering any potential application of treason statutes to the case of Lieutenant Colonel Robert Lundy. It might be assumed therefore that only those acts outlined under 25 Edward III, st.5, c.2 would be applicable to his case. However, the course of the seventeenth century demonstrated that the judiciary applied a range of interpretations of the law in a number of cases which significantly widened the meaning of what constituted High Treason. The judiciary looked to precedent to inform their decisions rather than applying the law on the statute books. This is particularly true in the 1670s and 1680s where the courts stood accused of taking part in ‘judicial murder’ through the overt political application and interpretation of treason statutes. The English parliament demonstrated their grave concern at how both Charles II and James II had used the judiciary to rid themselves of politically inconvenient opponents. After the Glorious Revolution it took six years of painful and fractious debate to finally pass 7 & 8 William III, c.3, in 1696, known by its full title An Act for regulateing of Tryals in Cases of Treason and Misprision of Treason. This legislation dealt with trial procedures for cases involving High Treason rather than defining the law itself. Lieutenant Colonel Lundy’s trial, had it taken place as planned in Londonderry would not have benefitted from these procedural codicils as they did not come into effect in Ireland until the passage of later treason acts in 1765 and 1821. However the procedural protections offered to an accused under 7 & 8 William III, c. 3 present an indication of how trials prior to 1696 operated in practice and the inherent disadvantage a defendant found themselves under in trials for High Treason.

This had clearly been exposed in a series of high profile cases embedded in the Parliament’s recent institutional memory before the beginning of the Glorious Revolution. Legal procedures governing English criminal trials, especially in relation to matters of treason, came under stark criticism in the aftermath of the Popish Plot (1678-1680), the Rye House Plot (1683) and the ‘Bloody Assizes’ (1685). There were many clear miscarriages of justice in which falsified and perjured evidence resulted in the conviction and eventual execution of many individuals who had become political inconveniencies or opportune scapegoats for the restored Stuart monarchy or Westminster Parliament. Judges liberally used constructive treason to widen the scope of what constituted treason, using it as a form of political control against opponents of the Stuart Crown. Throughout the 1670s and 1680s, the Crown, its Tory allies and Whig adversaries used treason trials as little more than a simple, if bloody expedient to further their own political agenda, thereby reducing the influence of their opponents. This abuse of power and process accentuated the fears of many leading Protestants in Britain and Ireland who saw the malevolent threat of Popery as the gravest menace to the political and religious security of European Protestantism. Anti-popery constituted more than a mere prejudice against Catholicism; it was an ideological tool which bound Protestants across the social classes together to be mindful of threats posed to the civil and religious safety of the nation both by agents without and traitors within. By the late seventeenth century this found expression in tracts such as Andrew Marvell’s Account of the Growth of Popery and Arbitrary Government (1677) which equated Popery with tyrannical and arbitrary government. Many English Protestants feared that Charles II’s close relationship with Louis XIV would lead to the importation of a French style of kingship which they believed promoted absolute and arbitrary government. Charles’ support for France against the Protestant Dutch Republic and his rumoured willingness to convert to Catholicism brought forth echoes of the arbitrary rule and religious ritualism favoured by his father Charles I during the 1630s, which many contemporary observers believed brought the judgment of God upon the three kingdoms and lead to a civil war accompanied by unprecedented bloodshed.

The deep-seated fears of a malevolent papist threat were reinforced in August 1678 when rumours swept London of a Catholic conspiracy which echoed the bloodletting of the 1640s and 1650s in the Stuart kingdoms. Fanciful stories claimed that Jesuits disguised as Presbyterians planned to stir up discontent in Scotland, encourage a French led rebellion in Ireland, and use Irish assassins to murder the King. Meanwhile English papists would rise in arms, burn London to the ground and murder Protestants in a sectarian bloodlust across the country. The claims proved to be entirely baseless, a product of the surreptitious imagination of Titus Oates, a former Anglican clergyman expelled from his Anglican ministry for drunken blasphemy and from his navy chaplaincy for homosexuality. His credibility as a witness remained untarnished despite an apparent conversion to Catholicism and abortive training as a priest at the English college at Valladolid where he alleged he first heard the stirring of the convoluted Catholic plot. Oates’ improbable account gained greater currency in October 1678 after the mysterious murder of Sir Edmund Godfrey, the Middlesex magistrate who first took his deposition. When Scottish Covenanters took up arms at Rutherglen near Glasgow between May and June 1679 as Oates had forewarned, mass hysteria enveloped the Stuart kingdoms about the dangers posed by popery. This culminated in a crippling political exigency known as the ‘Exclusion Crisis’ in which Whig political leaders attempted the thwart the succession of the Catholic James Stuart, duke of York. Many entirely innocent Catholics were found guilty of imaginary treasons against the state based on perjured and falsified evidence. Many of the accused, including Viscount Stafford, Oliver Plunkett, the Catholic Archbishop of Armagh, as well as various Jesuit priests, secular priests and lay Catholics would be executed purely on the word of Oates and other perjured witnesses.

In spite of the Anti-Catholic hysteria, the Whigs failed to pass an Exclusion Bill through a succession of parliaments between 1678 and 1681 which would have excluded James, duke of York from succeeding to the throne in favour of Charles’ illegitimate son James Scott, duke of Monmouth. Growing ever more frustrated with parliament’s intransigence, in March 1681 Charles II dissolved the Oxford Parliament, finally silencing the Whig political malcontents by denying them a forum to voice their opposition to his foreign policy, government, and the likely succession of his Catholic brother. Over the next few years the King waged a political war against his most vocal opponents, assisted by ant-exclusionist Tories and leading Anglicans. They took control of the sinews of local corporations and counties in order to control who would be returned to any future parliament (should the King choose to call one). This included the forfeiture of the City of London’s charter, a hugely contentious decision that alienated the King from many of his subjects in the capital, repeating the grave misjudgement of his father during the celebrated Star Chamber trial against the London Companies in 1635 for their failure in planting Ulster. In consequence, leading Whig politicians and polemicists saw armed resistance to Stuart tyranny as not only a duty but a ‘natural right’; the last available means of self-preservation and the salvation of the nation from utter ruin.

On 12 June 1683 Josiah Keeling, a London oil merchant, betrayed details of one such conspiracy in which leading opponents of the King planned to ambush the royal coach as it returned from the Newmarket races and murder Charles II and his brother and heir James, duke of York. Known as the Rye House Plot, the authorities moved quickly and put some of the leading plotters on trial. This presented the Crown and its Tory allies with an opportunity to curb the ‘radical’ ideas espoused by many leading Whig politicians and intellectuals, including such notions as rule by consent, conditional and contractual loyalty, and greater rights for individuals in a corporate state. On 25 June the authorities arrested Algernon Sidney, brother of the earl of Leicester and leading supporter of Parliament during the Stuart Civil Wars of the 1640s & 1650s. They found a copy of his radical text Discourses Concerning Government on his person during his seizure which outlined his belief that an armed rebellion against an oppressive and tyrannical monarch could be justified to protect the rights of the individual and wider society as a whole. Sidney initially expressed confidence that he would not even face a trial, believing there to be no second witness to corroborate the perjured evidence proffered by a co-conspirator William, Lord Howard of Escrick. However the Lord Chief Justice Jeffreys interpreted the two-witness rule very liberally in his determination, permitting Sidney’s political writings contained in Discourses Concerning Government to act as a de facto second witness, on the basis that scriber est agree; ‘to write is to act’. Jeffreys concluded that the manuscript betrayed Sidney’s treasonous intentions and offered a window into the recesses of his mind and heart. A similar ruling had been applied in 1681 to Stephen Colledge, the poet and political activist, in regards his supposed authorship of the ballad A Ra-Ree Show. This salacious and controversial ballad depicted King Charles II as duplicitous, half-Protestant, half-Catholic, touring from city to city carrying a portable peep show in order to get money from his gullible audience. The underlying implication, that the King only called the Oxford Parliament to levy money, would not have been lost on contemporaries. An accompanying cartoon showed the king being tossed to the floor by parliamentary agents, with members of the House of Commons resisting the King and the House of Lords. Chief Justice Sir Francis North made it clear that this cartoon provided clear evidence of Colledge’s traitorous mind, even if he had failed to act upon it. On 31 August 1681 Colledge was executed in the surroundings of the yard at Oxford Castle.

Sidney’s trial began on 21 November 1683, with the jury returning guilty verdict five days later. On 7 December he was beheaded. Similarly other leading Whig conspirators met grizzly ends. Arthur Capel, earl of Essex was arrested on 9 July 1683 and died under mysterious circumstances while incarcerated in the Tower of London. According to the coroner’s inquest he had slashed his own throat with a razor, although leading Whigs such as Lawrence Braddon, Robert Ferguson and Henry Danvers fervently believed he had been murdered. The trial of William, Lord Russell, (arrested on 26 June 1683 and incarcerated in the Tower of London for his part in the Rye House Plot) proved unremarkable; indeed it can be observed that the presiding judge, Francis Pemberton, the Lord Chief Justice of the Common Pleas ensured that the trial was ‘fair’ by the standards of a seventeenth century trial. However Russell’s scaffold speech on 21 July turned him into a martyr for the Whig cause. He disavowed the treason charge, claiming to be guilty of a misprision of treason- that he knew of the planning of a plot by others but did not report it to the authorities. He railed against his prosecutors, arguing that they stretched the evidence and twisted the law to ‘construct’ a treasonable offence and that unqualified jurors had wrongly convicted him, thereby allowing judicial murder to take place. His powerful ideological trope would echo through to the Glorious Revolution.

On the death of Charles II in 1685, James Scott, duke of Monmouth led a rebellion in the west of England to prevent the accession of James duke of York to the throne. Monmouth had been a member of the so-called ‘council of six’ alongside Lord Russell, Algernon Sidney and the earl of Essex, in the organisation of the failed Rye House Plot. On the failure of the venture Monmouth pleaded ignorance of the plot, although he admitted his involvement in some conspiratorial machinations. Both sides wanted Monmouth to give evidence at the trials of Algernon Sidney and John Hampden (another member of the council of six), but the duke fled England for exile in the Dutch Republic, residing at The Hague under the protection of William, Prince of Orange. While resident there he met with leading Scottish exiles led by the earl of Argyll, eventually agreeing to a joint invasion and rebellion in Scotland and England. His rebellion of June/July 1685 led collapsed in abject failure on the fields of Sedgemoor. Monmouth’s supporters were treated to the full brutality the Crown could muster.   Hundreds of soldiers were summarily executed on the battlefield, while a series special assize commissions tried around 1,300 suspected of assisting in the rebellion.  These ‘Bloody Assizes’, so named due to the large number of defendants executed, condemned around 200 individuals to a gruesome death- many were hanged until unconscious, disembowelled while still alive, beheaded and quartered, before the remains were boiled in brine, covered in black tar and then hung from poles, trees and lampposts as a lesson to other would-be rebels. Around 850 other suspected insurgents were sentenced to transportation and exile to the West Indies. In perhaps the most notorious case, Chief Justice Jeffreys interjected during the defence of the deaf widow Lady Alice Lisle, persuading the jury to find her guilty and sentenced her to be burned at the stake. James II later commuted the punishment to beheading.  Likewise a jury returned a guilty verdict against the Baptist widow Elizabeth Gaunt for aiding one of the conspirators, James Burton, escape to Amsterdam. Burton had implicated her as an accomplice in the hope of saving his life even though she had played no part in the rising. Burnt at the stake, Gaunt was the last woman executed for a political crime in England. The clear partiality exercised by the judiciary in favour of the interests of the Crown against the rights of innocent individuals encouraged many Whigs to support William of Orange. The Whigs opponents of James also had martyrs to their cause like Sidney and Russell who had sought to secure Protestant religion and English liberties against papists and malignants, both headed and personified by the Catholic monarch James II.

The passage of legislation in the aftermath of the Glorious Revolution reflected the discontent occasioned by the partiality of the Stuart judiciary. 1 William & Mary St. 2 c.2, An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown, more famously referred to as the Bill of Rights, codified many of the complaints originally contained in the Declaration of Rights, which the Convention Parliament had presented to William and Mary in March 1689. The Bill stated that James had:

by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome by Assumeing and Exerciseing a Power of Dispensing with and Suspending of Lawes and the Execution of Lawes without Consent of Parlyament.

The Bill of Rights further stated that ‘excessive baile ought not to be required nor excessive fines imposed nor cruell and unusuall punishments inflicted’. It also complained of ‘severall grants and promises made of fines and forfeitures before any conviction or judgement against the persons upon whome the same were to be levyed. All which are utterly directly contrary to the knowne lawes and statutes and freedome of this realme’. The Bill further railed against ‘partiall corrupt and unqualifyed persons’ who had served on juries, especially noting that jurors impanelled during treason trials should be required to be freeholders. This sense of injustice greatly informed the intellectual and legal debate which shaped the passage of the statute 7 & 8 William III, c. 3, An Act for regulateing of Tryals in Cases of Treason and Misprision of Treason. Repairing fundamental flaws in treason procedure became a central tenement of the Whig ideology in the aftermath of the Glorious Revolution. James I, grandfather of Charles II and James II, believed that one of the prerogative rights and duties of the Crown was to be the ultimate authority and interpreter of the law, a notion which his son Charles I and grandsons Charles II and James II shared. Many Tories who supported the Stuart kings believed that individual rights were subordinate to the wider public good. Leading advocates such as Roger l’Estrange admitted that though an individual might occasionally be subject to injustice, fundamentally laws did not require alteration. In contrast, leading Whig thinkers such as John Locke, Robert Ferguson and Andrew Marvell advocated increasing individual rights against Crown tyranny. They believed in a contractual notion of kingship in which the monarch served the interests of their subjects, with the royal prerogative little more than the implicit permission to exercise sovereign power for the public good. Therefore the King’s prerogative rights in relation to the law should serve the interests of the people, with the monarch’s ultimate interest in the laws of the realm to ensure be that the fountain of justice flowed, rather than garnering some personal or political profit. Sir William Blackstone’s eighteenth century legal maxim, that ‘it is better that ten guilty persons escape than that one innocent suffer’, remains a central tenet of modern English law. However in the uncertainty caused by the Glorious Revolution many politicians, fearing that the ancient laws of the kingdom would be swept away alongside the House of Stuart, maintained that the needs of the many trumped the rights of the few. During a debate on the need for a new treason act on 18 November 1692, Sir Thomas Trevor, the Solicitor-General, argued that,

I shall not deny, but there have been misinterpretations of the Law in former reigns; the way to prevent that for the future is to prevent the authors of them. This Law now will have no greater sanction than the former Laws. There are too many, I fear, that correspond with our enemies abroad. Now, whether is it proper to pass a law more difficult for prosecution, than in times of our ancestors? Nobody but will think then that this bill is an encouragement to impunity. will the innocent be protected in letting loose so many ill men against the Government? What then will be the consequence? Tyranny and Popery will be the subversion of this Government. Then will this be a protection to posterity? All the Laws we can make, will not protect us, if there be an encouragement to those who would subvert the Government.

Nonetheless after much political wrangling, a new treason act eventually passed through Parliament in 1696.  The procedural changes in regards to treason trials wrought by 7 & 8 William III, c. 3 facilitated the protection of a ‘natural’ right to self-preservation and self-defence in order to oppose arbitrary and corrupt practices of a monarch or his government.  The Act bolstered the belief that harm caused to one subject resulted in harm caused to society as a whole as public safety amounted to little more that the collective rights of each subject. Therefore, if one person could be exposed to injustice then it could conceivably happen to anyone. The procedural codicils effectively ‘equalised’ the accused and the prosecution in the eyes of the law, ensuring that an actual trial took place, not just a kangaroo court which aimed at the elimination of political foes. The statute stated that,

Whereas nothing is more just and reasonable than that Persons prosecuted for High Treason and Misprision of Treason whereby the Lib[er]ities lives honour estates bloud and posterity of the subjects may bee lost and destroyed should bee justly and equally tried and that persons accused as offenders therein should not bee debarred of all just and equal means for defence of their innocencies in such cases.

Thanks to this legislation the accused had every opportunity to demonstrate their innocence and have access to the same procedures as the prosecution. This included, for the first time, statutory authority for the defendant to have legal counsel (limited to two persons), ‘learned in the law and to make any proof that hee or they can produce’. Prior to the passage of the 1696 Act there was no defence counsel as understood today. Limited counsel was permitted to the defendant, but restricted to providing assistance on matters of law, not on matters of fact. Early legislators feared that permitting counsel to speak for the defendant on matters of fact would lead to the obfuscation of the particulars of the case and that the legitimacy of proceedings would deliberately undermined by skilled legal practitioners. Therefore, instead of being represented by a barrister or a learned legal professional, an accused had to conduct their own defence. It was also thought that their innocence would be obvious to all concerned by their performance during the trial, especially their unprepared response to accusations from the prosecution and witnesses. The candour and vigour of a defendant’s protestations, in theory at least, would demonstrate the true extent of their professed innocence. The trials of the 1670s and 1680s brutally exposed the flaws in the legal system by showing that constructive, or common law treason had been increasingly used on an ad hoc and case-by-case basis to suit short-term political needs. With the ever-widening definition of what acts constituted treason, it became clear that defendants required the assistance of legal counsel to inform them of the legal complexities at stake. Even the most informed and educated defendant struggled to grasp the jurisprudential basis of judicial decision-making. Prior to the passage of the 1696 Act, the Court could essentially act as counsel to the defendant to ensure that they would not be put to unreasonable disadvantage due to a lack of knowledge of the law. This may have included, for example, emphasising the shortcomings in a prosecution case when instructing the jury, or cross-examining an unreliable witness. However in trials for treason the role of the judge is further complicated because of the constitutional position of the judiciary. The separation of the three branches of the state (executive, legislature and judiciary) could not be so clearly delineated in the seventeenth century as they are in the twenty-first century. Judges effectively formed another arm of the Crown and often sought to advance royal policy rather than advance ‘justice’, as had been clearly apparent during the Popish plot and the Bloody Assizes in the 1670s and 1680s. Neither independent nor appointed in perpetuity, the Crown could dismiss any member of the judicial bench whenever they saw fit. This was not rectified until the passage in 1701 of 12 &13 William III, c. 2, An Act for the further Limitation of the Crown and better securing the Rights and Liberties of the Subject. This act, more famously referred to as the Act of Settlement, stated that judges held their posts Quam diu se bene Gesserint (‘during good behaviour’) and could only be removed by Parliament rather than the monarch.

A further change implemented by 7 & 8 William III, c. 3 permitted a defendant to ‘compell their Witnesses to appeare for them att any such Tryal or Tryals as is usually granted to compell Witnesses to appeare against them’. Defence witnesses were also permitted to provide their testimony under oath for the first time. However an accused’s testimony could not be given under oath, perpetuating an implication that they were not legally treated as a material witness in the case. The 1696 Act also stated that the accused should also receive,

a true copy of the whole indictment but not the names of the witnesses delivered unto them or any of them five days att the least before hee or they shall bee tryed for the same whereby to enable them and any of them respectively to advise with counsell thereupon to plead and make their defence’

This right to an advance copy of the indictment meant that the defence counsel could be much more effective in challenging the legal basis of the charges laid against the accused. Furthermore no evidence could be introduced during the trial that had not formed part of the original indictment. However the 1696 Act stated that judgments against an accused could not be quashed on account of ‘miswriting mispelling false or improper Latine’ in the indictment document, thereby preventing a defendant from overturning a verdict based on a clerical error or technicality. Though an accused would be given an advance copy of the indictment, they had no right to pre-trial discovery in regards to the prosecution’s witnesses or likely testimony, probably in an effort to prevent them being threatened or intimidated. The 1696 Act also codified that, ‘copies of the pannel of the jurors who are to try them duely returned by the sheriff and delivered unto them and every of them soe accused and indicted respectively two days at the least before hee or they shall bee tryed for the same’. This allowed the defence counsel to investigate the background of prospective jurors, thereby permitting the accused and their counsel to use their right to peremptory challenge a maximum thirty-five members of a potential jury. To further protect the interests of the accused their counsel ‘shall have free accesse at all seasonable houres any law or usage to the contrary notwithstanding’. In other words, this prevented any individual accused of High Treason from being imprisoned and confined in such a manner that prevented them engaging with their legal representatives.

Furthermore two witnesses were required to testify under oath to the guilt of the defendant, thus reaffirming the requirement first defined in 1 Edward VI, c. 12 and 5 & 6 Edward VI, c. 11 in the mid-sixteenth century that single testimony did not carry enough evidential weight to prove guilt. The Act also stated that if a defendant stood accused of two or more distinct treasons in one bill of indictment, then two witnesses would have to prove each of them. Finally an indictment had to be found by a Grand Jury within three years of the incident taking place, otherwise no prosecution would be possible.

In the political environment of the 1680s & 1690s the procedural codicils in the 1696 Treason Act demonstrated the complexities of what treason actually meant- how the line between loyal opposition and treason could be drawn, what acts constituted subversion of the state and how much weight could be put on witness statements. Though the 1696 Act would not have provided any protection to Lieutenant Colonel Robert Lundy had he stood trial in the aftermath of the siege of Derry, the values and ideological imperatives which sought to protect the rights of individuals against arbitrary justice posed serious challenges to the evidence offered against him. This short account of the state of treason legislation at the time of the Glorious Revolution should inform consideration of the evidence presented on this website. By presenting the evidence in separate components rather than one long grand narrative, it should make it easier to analyse the strengths and weaknesses of the material presented against Lieutenant Colonel Lundy.

SUGGESTED FURTHER READING:

  • S.C.A. Pincus, 1688: the first modern revolution (London, 2009)
  • T. Harris, Restoration: Charles II and His Kingdoms, 1660-1685 (London, 2005).
  • J.H. Langbein, The Origins of Adversary Criminal Trial (Oxford, 2003), pp. 67-105.
  • D.A. Orr, Treason and the State: Law, Politics and Ideology in the English Civil War (Cambridge, 2002).
  • L. Steffen, Defining a British state: treason and national identity, 1608-1820 (Basingstoke, 2001).
  • E. Cruickshanks, The Glorious Revolution (Basingstoke, 2000).
  • 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), pp. 215-255.
  • J.L. Greaves, Secrets of the Kingdom: British Radicals from the Popish Plot to the Revolution of 1688-1689 (Stanford, 1992).
  • P.K. Monod, Jacobitism and the English people, 1688-1788 (Cambridge, 1989)
  • L.G. Schwoerer, William, Lord Russell: The Making of a Martyr, 1683-1983’, Journal of British Studies, 24 (1985), pp. 41-71.
  • J.R. Phifer, ‘Law, Politics, and Violence: The Treason Trials Act of 1696’, Albion: A Quarterly Journal Concerned with British Studies, 12, (1980), pp. 235-256.
  • H. Nenner, By colour of law: legal culture and constitutional politics in England, 1660-1689 (Chicago, 1977).
  • J. H. Baker, ‘Criminal Courts and Procedure at Common Law, 1550-1800’, in J. S. Cockburn (ed.) Crime in England, 1550-1800 (New Jersey, 1977), pp. 15-48.
  • J.P. Kenyon, The Popish Plot (London, 1972).
  • J.G. Bellamy, The Law of Treason in England in the Late Middle Ages (Cambridge, 1970).