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Treason and the State: Law, Politics and Ideology in the English Civil War.

by D. Alan Orr. New York, Cambridge University Press, 2002. xii, 229 pp. $55.00 US (cloth).

On January 30, 1649, the first sitting European monarch ever to be publicly tried and condemned lost his head on a scaffold outside Whitehall, having been found guilty of treason against his own people. Almost as an afterthought, several weeks later, the ruling Rump regime declared monarchy at an end and resolved England into a Republic. English and Scottish monarchs had been deposed, often violently, on several previous occasions. Charles I's trial and execution, however, were without precedent, no matter how vigorously one argues the conservative nature of the rebellion that militarily defeated him. There have been recitations of the trial before (notably C.V. Wedgwood's still-serviceable account), and innumerable narratives of how a prince who inherited three kingdoms in 1625 found himself on the block a generation later.

Alan Orr's impressive and learned new study is not concerned not with the process of Charles's fall, per se. In fact the king's trial is in some ways just a penultimate chapter in the story of how treason, once a crime against the king, became a crime against the state. It is penultimate in that there appears to be room at the end for a further chapter, or at least a longer conclusion, linking the trial of Charles and a theory of treason that posited an impersonal state (no myth of "evil counselors" here), with the more abstract state of later conceptions, beginning not very long after with Thomas Hobbes. Orr does not wish to tread very far into the dense thickets of Hobbesian scholarship, though it (and Quentin Skinner, Hobbes's greatest living authority) flits in here at various junctures. Rather, Orr is concerned with explicating the reasoning, sources and argumentation behind the theory of treason at Charles's trial, and with outlining the progressive re-conceptualizations of treason between early 1641 (when Charles's unpopular servant, Thomas Wentworth, earl of Strafford, was first impeached and then attainted), and the trial of his royal master some eight years later.

Strafford's trial has been done just about as often as the king's, beginning with the classic Victorian narrative by Samuel Rawson Gardiner and continuing through modern treatments including a biography by C.V. Wedgwood (again) and a Gardiner-influenced study by J.H. Timmis. The conventional wisdom on Strafford's trial is that the earl, nasty piece of work though he may have been, was technically innocent of the sort of constructive treason that the Long Parliament alleged against him. How could a servant acting in the name of the king (especially as Lord Deputy in Ireland, a kingdom with a contested entitlement to the rule of English common law) be found guilty within the strictest interpretation of the law? The famous treason statute of 1352, which had spelt out what was (and by exclusion, was not) treason, appeared not to cover, except by a big leap, what the earl had done in ruling despotically in Ireland. And, so we have all believed, the parliamentary managers knew as well as their prey the weakness of their own case, and in the end cut their losses, relying instead on the venerable Yorkist-Tudor expedient of attainder (legislatively declaring the culprit guilty of treason, judicial means having failed).

Conrad Russell, in an article published nearly forty years ago and underexploited till now, suggested ways in which the treason case against Strafford could in fact be deemed legitimate. Orr does not follow Russell precisely (there has been four decades of the influence of Quentin Skinner and John Pocock on the history of political thought, and much fresh research on the events themselves). Nevertheless, he does take a cue from Russell's suggestion that even if the managers were pushing the legal envelope they were not doing so in an implausible way, given the many sources and precedents on which they could draw. Orr's is a clever and largely convincing elucidation of the law of treason as it evolved in the early seventeenth century. He makes clear that no matter how well accepted was the original statute of Edward III, it did not provide the only basis for constructing the most grievous of offences. There had been various late medieval and Tudor riffs on the original statute, several continental commentaries on authority (especially Jean Bodin's) or on the legitimacy of tyrannicide, the disparate utterances of jurists such as Sir Edward Coke and Sir John Davies on the common law and its nature, and all manner of case law relevant to the theory of sovereignty (for instance Calvin's case in the very early part of James I's reign), itself critical in turn to the definition of treason.

Orr contends that the theory of treason during the sixteenth and early seventeenth century was already in a state of flux. Those alleging treason in a royal minister had a variety of tools at their disposal with which to make the crime suit the punishment that they wished to inflict. Essential in much of this was the medieval fiction of the King's Two Bodies, the notion that a monarch had both a corporeal and a corporate self. Even if an individual was not literally trying to murder the physical body of the king, various forms of crime against his corporate body (assuming some of his powers, or driving a wedge between him and his people, as alleged of Strafford) could be construed as treasonable.

It is difficult in a brief review to tease out all the subtleties of Orr's argument. The book is divided into two parts. The first explores the theory of treason as inherited by the early seventeenth century, and its political, judicial and theoretical contexts. The 1352 statute was not a rigid box into which new crimes had to be stuffed and folded; rather, it was "flexible and highly adaptable to new circumstances" (p. 28), with the consequence that in 1641, on the eve of civil war, it was also usefully ambiguous. The second and longer part of the book is a series of four case studies of treason trials in the 1640s, beginning with Strafford's and ending with the king's, with the less well-studied trials of Archbishop William Laud and the Irish rebel Connor Lord Maguire sandwiched in between. The circumstances of each case, and the arguments deployed by prosecutors and defenders, were quite different. Where Strafford was charged with appropriating royal power to rule despotically, Laud was condemned for attempting to create an ecclesiastical state within a state, in some ways acting in the old tradition of medieval prelates who had generally been let off with the lesser offence of praemunire (Cardinal Wolsey eleven decades earlier being a famous Tudor example). With Maguire the treasonable act of rebellion itself was less in dispute than the questions how, where and before whom it could be tried. Since Maguire was a peer in Ireland but not in England, the study of treason here veers into wider issues of the nature of obedience in a multi-crown "empire," and the early modern European problem of sovereignty divided by borders, religions and incompatible systems of law. In this instance, what was stretched (apart from the unfortunate young Maguire himself, hanged, drawn and quartered, since in England he was not entitled to a peer's beheading) was the constitutional relationship between England, Ireland, and Scotland. With Charles's own trial in 1648 (by a different cast of characters than prosecuted the first three), the theory of treason had been sufficiently altered in its several retellings to be able finally to constitute a crime against the impersonal and (nearly) abstract state of modern political philosophy.

Orr is always clear that he is not telling a linear story of the origins of modern treason, and seems reluctant to turn his four case studies into any kind of a progression. One wonders if he is being overcautious, since there is a developmental thread connecting his four cases. As suggested above, one might also have wished that the book did not come to a close quite as abruptly as it does. Orr emphasizes that the treason theory in the trial of the king involved both constitutionalist and more republican elements, though the classic works of republicanism by James (not John, sic p. 174) Harrington and Algernon Sidney lay some years ahead. However, the decision to abolish monarchy was itself an afterthought and in no way connected to the attack on Charles himself. There is still a book to be written on the further iterations of the theory of treason through the Commonwealth, Protectorate and the Restoration, but the present work has clarified things considerably.

Daniel Woolf

University of Alberta
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Author:Woolf, Daniel
Publication:Canadian Journal of History
Article Type:Book Review
Date:Aug 1, 2003
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