Political Trials in an Age of Revolutions: Britain and the North Atlantic, 1793—1848 [1st ed.] 978-3-319-98958-7, 978-3-319-98959-4

Table of contents :
Front Matter ....Pages i-xix
Introduction: Political Trials in an Age of Revolutions: Britain and the North Atlantic, 1793–1848 (Michael T. Davis, Emma Macleod, Gordon Pentland)....Pages 1-15
Front Matter ....Pages 17-17
“Subverting the Settled Order of Things”: The Crime of Sedition in Scotland, 1793–1849 (Lindsay Farmer)....Pages 19-46
The Newspaper Press, Sedition and the High Court of Justiciary in Late Eighteenth-Century Edinburgh (David G. Barrie, Joanne McEwan)....Pages 47-77
The English and Scottish State Trials of the 1790s Compared (Emma Macleod)....Pages 79-107
Sermons of Sedition: The Trials of William Winterbotham (James Epstein)....Pages 109-135
The Noise and Emotions of Political Trials in Britain During the 1790s (Michael T. Davis)....Pages 137-162
Literary Justice: Representing the London Treason Trials of 1794 (Nancy E. Johnson)....Pages 163-184
Political Trials and the Suppression of Popular Radicalism in England, 1799–1820 (Katrina Navickas)....Pages 185-212
State Trials, Whig Lawyers and the Press in Early Nineteenth-Century Scotland (Gordon Pentland)....Pages 213-236
“Some Examples Should Be Made”: Prosecuting Reform Bill Rioters in 1831–32 (Steve Poole)....Pages 237-263
Front Matter ....Pages 265-265
Political Trials, Terror and Civil Society: The Case of the Revolutionary Tribunal in Paris, 1793–94 (Mike Rapport)....Pages 267-295
Hero or Villain? The Treason Trial of Aaron Burr (1807) (Jack Fruchtman)....Pages 297-319
Irish Political Trials, 1793–1848: Associationalism, Emotion and Memory (Martyn Powell)....Pages 321-355
State Trials in Post-revolution British North America (Barry Wright)....Pages 357-383
Back Matter ....Pages 385-398

Citation preview

PALGRAVE HISTORIES OF POLICING, PUNISHMENT AND JUSTICE

Political Trials in an Age of Revolutions Britain and the North Atlantic, 1793–1848

Edited by Michael T. Davis Emma Macleod Gordon Pentland

Palgrave Histories of Policing, Punishment and Justice

Series Editor David G. Barrie University of Western Australia Crawley, Australia

Since the 1960s, studies of police, punishment and the courts have been an integral and popular part of historical scholarship, and have followed in the historical trajectory of a more expansive criminal justice apparatus around the world. This international book series aims to examine and debate some of the most pressing issues and problems in the field, and to stimulate new directions in research. It will showcase the work of both emerging and leading scholars of the social, cultural and institutional histories of police, punishment and the judicial sphere, and welcomes work grounded in various disciplines including criminology, sociology, history, law, legal history and political science. More information about this series at http://www.palgrave.com/gp/series/15080

Michael T. Davis • Emma Macleod Gordon Pentland Editors

Political Trials in an Age of Revolutions Britain and the North Atlantic, 1793–1848

Editors Michael T. Davis School of Humanities, Languages and Social Science Griffith University Southport, QLD, Australia

Emma Macleod Faculty of Arts and Humanities University of Stirling Stirling, UK

Gordon Pentland School of History, Classics and Archaeology University of Edinburgh Edinburgh, UK

Palgrave Histories of Policing, Punishment and Justice ISBN 978-3-319-98958-7    ISBN 978-3-319-98959-4 (eBook) https://doi.org/10.1007/978-3-319-98959-4 Library of Congress Control Number: 2018961424 © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2019 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover Design by Fatima Jamadar This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Foreword

The repressive response of the British state to the rise of a popular radical movement in the age of revolutions has in recent years attracted the interest of a wide range of social, cultural, literary and legal historians. Alongside detailed studies of the major ‘show trials’ of this era – particularly the trials of the leaders of the London Corresponding Society, charged with high treason in 1794 – scholars have also begun to explore what a much larger range of trials can tell us. Looking at such trials, we can learn a great deal not only about the tools of legal repression used by the state, but also about the social spaces in which radicalism operated, and the ways in which they were regulated. Since the courtroom was a central venue in the public sphere, trials also give great insight into understanding the language and ideology of radicals. For it was often in these trials of political language – or in post-trial pamphlets, lectures or newspapers  – that political ideas were debated directly between those who wanted to maintain the established order and those who wished to subvert it. Political trials did not simply put in question what those who had been accused of sedition intended by their words or actions: it gave space for rival interpretations of the constitution. As a consequence, such trials were not simply the means by which a repressive state could silence its opponents. As numerous historians have shown, they were also venues in which radical culture could find expression. If political trials were means through which the state sought to exert its power over its opponents, and v

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in ways in which the odds were often highly stacked against defendants, there remained enough uncertainty in the law for the crown’s legal claims to be contested, enough ambiguity in the constitution for its political claims to be disputed, and enough cultural space for the accused to appeal to the emotions of a wider public. The set of essays collected here enrich our understanding of the political and cultural context in which these trials took place. They also show a more nuanced view of the politics of repression than has sometimes been taken. Several of the essays presented here illustrate the complex factors at work in determining whether to prosecute at all. Not only were there risks in putting radicals on trial publicly, but there were also factors of cost to be taken into account. As Katrina Navickas shows, since it was the Home Office which footed the bill for ex officio informations, it needed to be careful in selecting which trials to take on and which to leave to local prosecutors. Small scale prosecutions at local level could be more effective than high profile trials with severe sentences; and the Law Officers in London were therefore assiduous in sifting which cases to prosecute. Officials in London were also wary of mounting trials which might have the effect of increasing unrest, rather than dampening it, as Steve Poole shows in his study of the prosecution of Reform Bill rioters of 1831. In the event, it was often local politics which was determinative. James Epstein’s study of the trials of William Winterbotham in 1793 show how this Dissenting minister had already made enemies of local elites in the very loyalist city of Plymouth, before facing two prosecutions for seditious spoken sermons in a very hostile courtroom environment. Winterbotham was convicted by jurors who believed implausible witnesses, in spite of having the support of the trial judge. Historians of the radical movement and the repressive reaction of the state to it often focus their attention primarily on the response of the English courts, with the Scottish trials of men like Maurice Margarot and Joseph Gerrald being invoked only to demonstrate the blunt brutality of Scots law and the bias of its judges in contrast to the legality of the English courts, which allowed Thomas Erskine to secure the famous treason acquittals in 1794. One of the virtues of this volume is the amount of attention it devotes to Scottish perspectives, revealing a more complicated, and more interesting picture than is sometimes perceived. Lindsay

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Farmer sets the scene by outlining the Scottish law of sedition in the era between its first use in 1793 and its final use against Chartists in 1849. He demonstrates that it was the early trials – including those of Margarot and Gerrald, who were sentenced to fourteen years’ transportation to Australia – which established sedition in Scots law. The offence was only subsequently given proper legal definition by treatise writers, initially from the Tory jurist, Baron David Hume. Farmer shows that treatise writers in the era of the French Revolution and Napoleonic wars took an expansive view of sedition, but that by 1832, writers had begun to lay a focus on violence and illegal means. As in England, the legal concept of sedition was modified as concepts of political participation changed. Comparing the English and Scottish trials of the 1790s, Emma Macleod seeks to call into question the traditional dismal view of the record of the Scots judiciary, especially Lord Braxfield, a view which rests in no small part on the verdict of the Whig Henry Cockburn, who was hardly an impartial witness. As she shows, there were high levels of conviction for sedition on both sides of the border. In other respects, as well, the records of the two systems were not dissimilar: not only are there examples of English judges who could be as biased as the Scots, but Scots law offered defendants some procedural advantages denied to the English. Whether in England or Scotland, political trials in this era, she argues, cannot be seen simply as blunt efforts to suppress the views of those who opposed the government, as some historians have assumed. Rather, those in authority who saw a revolution unfolding across the Channel into a Reign of Terror perceived a real danger of similar outcomes in the activities of the radicals. But in conducting their trials, the authorities remained constrained by legalism. Indeed, she suggests that the sentences of transportation imposed on the ‘Scottish martyrs’ should also be seen in the wider context of debates over the place of this punishment in the Scottish penal system. A number of the essays in this collection focus on the wider political or cultural uses of the trials. David G.  Barrie and Joanne McEwan show how central the press was in presenting contested interpretations of the political trial in Scotland in the 1790s. Sedition trials attracted particular attention, with mainstream and radical newspapers giving competing narratives of the trial for wider public consumption. In this context, the

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radical press was able to present an image of justice which ran counter to the narrative which the courts wished to see disseminated. This could both put the impartiality of the system in question – as it did in 1794, when press reporting of Braxfield’s handling of cases helped generate parliamentary debates on the state of the Scottish criminal justice system – and it could also help to construct an image of martyrs. Nor was it only the radical press which could make use of trials for its own purposes. As Gordon Pentland shows, Scottish Whig lawyers, who were in effect excluded from political power in Edinburgh, were able to use their position as defence counsel in post-war political trials, to put forward their own vision of liberty and to attack Tory ideas and institutions. Instead of forwarding the radical agenda of those accused of sedition, they reinterpreted their actions in the light of Whig ideology. In this way, a trial could become a venue for Whig, rather than radical, counter-theatre. However, he also shows that if the political trial was a form of theatre, it was not under the control of any particular party. Just as the Whigs might seek to use the trial as a forum to present their vision, so the mainstream and radical press were able to present their own counter narratives. Indeed, the uses which could be made of trials by a radical press were so dangerous that post-war governments began to doubt the utility of prosecuting such cases, while judges sought to restrict the reports which could be circulated. The very public nature of the trial forum is also emphasised in Michael Davis’s essay on the noise and the emotions of political trials. As he reminds us, if the state wished to use the trial to communicate its own messages, it was constrained by the fact that communication was not a one-way process. The courts needed their audience but the audience did not always take the message intended. Political trials became scenes of emotion – as all trials were – with tears wept at capital convictions and joy expressed at acquittals. However, the emotion of the public presented a threat to political trials, raising the spectre of the threatening mob. In this context, the judges were ever keener to impose discipline and order on the court. At the same time, political trials could also, as Martyn Powell reminds us in his study of Irish cases, be ‘intimate settings’ with a political culture in their own right. Those on trial, and those who tried them, were often members of networks created by family, education or

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profession, which might lead to displays of emotion and personal reflections on the backgrounds of the participants. Alongside political differences, these trials might reveal betrayals of friendship or intimacy, with emotional ramifications. Trials and executions could thus be venues for very personal expressions of emotions as well as those pitched at posterity. The emotional impact of the trials is also highlighted in Nancy E. Johnson’s chapter, which shows how William Godwin, Charlotte Smith and Mary Wollstonecraft gave narrative life to the abstract concepts discussed in trials, revealing a tyranny supported by law running through all social relations, while Thomas Holcroft drew on his experiences as an awaiting-­ trial political prisoner in Newgate to reveal the lasting human damage of the trials. The volume also puts these British experiences in a wider context, with chapters which explore developments overseas. Barry Wright’s article summarises the history of political trials in British North America before confederation in 1867. Although the political challenges faced by the authorities in Canada were different from those faced by the authorities in London, they often used similar tools, such as the suspension of habeas corpus, an Alien Act and a Sedition and Alien Act. But Canada – like Ireland, but unlike England or Scotland  – also saw extensive use of Martial Law courts in 1837–38. Jack Fruchtman relates the history of Aaron Burr’s treason trial of 1807, unravelling the personal and political animosities and ambiguous ambitions which pay behind this trial, and showing how Chief Justice Marshall’s strict legalism frustrated Thomas Jefferson’s attempt at a successful political prosecution. If these chapters show analogous proceedings in other jurisdictions in the common law tradition, perhaps the most striking place of comparison is France, discussed in Michael Rapport’s essay on the Revolutionary Tribunal which sat during the Terror in 1793–94. The contrast between ‘Pitt’s Terror’ and Robespierre’s is stark. Where England saw fewer than 200 treason or sedition trials in the 1790s, the Parisian tribunal sent 2639 people to the guillotine in less than eighteen months. Nor was it a court of law, being a court of revolutionary justice, tasked with hastening the transformation of France into a Jacobin republic. As such, it sought to engage with public opinion, by disseminating information widely about its proceedings. Its function was not merely to punish counter-revolutionaries, but also to

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educate the public, preparing them for life in a republican society. If the British authorities had ambitions that their political trials should have an educative effect, they remained much more constrained by the culture and practice of the rule of law in how far this could be achieved, as was evident from Erskine’s triumphant defence of 1794. Equally, there seems to have been much less room for the public to express dissatisfaction with the process in France than in England. In both countries, in the end, the repressive operation of the courts rested on public acquiescence – whether of the Parisian popular movement or the popular loyalism in England. Nonetheless, it seems clear that the language of law and constitutionalism in England – contested and ambiguous as it might have been – provided parameters which set definite limits to repression, and which provided points of departure of which political opponents could make use. The essays presented here open up new perspectives on the nature and culture of these trials in a number of ways. Read together, they present connections, comparisons and contrasts which open up new paths of study in this very fertile field. Department of Law, The London School of Economics and Political Science London, UK

Michael Lobban

Contents

1 Introduction: Political Trials in an Age of Revolutions: Britain and the North Atlantic, 1793–1848  1 Michael T. Davis, Emma Macleod, and Gordon Pentland

Part I Britain

  17

2 “Subverting the Settled Order of Things”: The Crime of Sedition in Scotland, 1793–1849  19 Lindsay Farmer 3 The Newspaper Press, Sedition and the High Court of Justiciary in Late Eighteenth-Century Edinburgh 47 David G. Barrie and Joanne McEwan 4 The English and Scottish State Trials of the 1790s Compared 79 Emma Macleod

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5 Sermons of Sedition: The Trials of William Winterbotham109 James Epstein 6 The Noise and Emotions of Political Trials in Britain During the 1790s137 Michael T. Davis 7 Literary Justice: Representing the London Treason Trials of 1794163 Nancy E. Johnson 8 Political Trials and the Suppression of Popular Radicalism in England, 1799–1820185 Katrina Navickas 9 State Trials, Whig Lawyers and the Press in Early Nineteenth-Century Scotland213 Gordon Pentland 10 “Some Examples Should Be Made”: Prosecuting Reform Bill Rioters in 1831–32237 Steve Poole

Part II The North Atlantic World

 265

11 Political Trials, Terror and Civil Society: The Case of the Revolutionary Tribunal in Paris, 1793–94267 Mike Rapport 12 Hero or Villain? The Treason Trial of Aaron Burr (1807)297 Jack Fruchtman

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13 Irish Political Trials, 1793–1848: Associationalism, Emotion and Memory321 Martyn Powell 14 State Trials in Post-revolution British North America357 Barry Wright Index385

Notes on Contributors

David G. Barrie  is Associate Professor of History at The University of Western Australia. His recent publications include Sin, Sanctity and the Sister-in-Law: Marriage with a Deceased Wife’s Sister in the Nineteenth Century (2018), and (with Susan Broomhall) Police Courts in Nineteenth-Century Scotland. Volume 1: Magistrates, Media and the Masses (2014) and Volume 2: Boundaries, Behaviours and Bodies (2014). Michael T. Davis  is Senior Lecturer in the School of Humanities, Languages and Social Science at Griffith University. His latest publications are Crowd Actions in Britain and France: From the Middle Ages to the Modern World (2015) and (edited with Gordon Pentland) Liberty, Property and Popular Politics: England and Scotland, 1688–1815 (2015). James  Epstein is Professor of History at Vanderbilt University, Nashville, Tennessee. His most recent book is Scandal of Colonial Rule: Power and Subversion in the British Atlantic during the Age of Revolution (2012). He is currently completing a book of essays, co-written with David Karr, entitled The Secret Purpose of the Heart: British Jacobin Politics in the Age of Revolution. Lindsay Farmer  is Professor of Law at the University of Glasgow. He is the author of Criminal Law, Tradition and Legal Order (1997) and, most recently, Making the Modern Criminal Law: Criminalization and Civil Order (2016). Jack Fruchtman  is Professor of Political Science and Director of the Program in Law and American Civilization at Maryland’s Towson University where he xv

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has taught since 1978. He has written, edited, or annotated eleven books, including studies of Benjamin Franklin, Helen Maria Williams, Thomas Reid, Richard Price, Joseph Priestley, Thomas Spence, and Thomas Hardy. His publications include The Political Philosophy of Thomas Paine (2009) and American Constitutional History: A Brief Introduction (2016). Nancy  E.  Johnson  is an Associate Dean of the College of Liberal Arts & Sciences and a Professor of English at the State University of New York at New Paltz, where she has taught eighteenth-century British Literature and contemporary literary theory. She is the author of The English Jacobin Novel on Rights, Property and the Law: Critiquing the Contract (2004); editor of Impassioned Jurisprudence: Law, Literature and Emotion, 1760–1848 (2015); scholarly editor of The Court Journals and Letters of Frances Burney, 1790-June 1791, vol. VI (forthcoming); and editor of Mary Wollstonecraft in Context (forthcoming). She has also published articles on various intersections of law and literature, including essays on narratives of the London Treason Trials of 1794 and Elizabeth Barrett Browning’s poetry and child labour laws. Michael  Lobban is Professor of Legal History at the London School of Economics and Political Science. His works include The Common Law and English Jurisprudence, 1760–1850 (2001); White Man’s Justice: South African Political Trials in the Black Consciousness Era (1996); and A History of the Philosophy of Law in the Common Law World, 1600–1900 (2007). Emma Macleod  is a Senior Lecturer in History at the University of Stirling. She is the author of A War of Ideas: British Attitudes to the Wars Against Revolutionary France, 1792–1802 (1998) and British Visions of America, 1775– 1820: Republican Realities (2013). She is working on a comparative study of the political trials of the 1790s in the North Atlantic world, and co-editing the correspondence of James Wodrow and Samuel Kenrick (1750–1810) with Martin Fitzpatrick and Anthony Page. Joanne McEwan  is a Research Assistant and short-term research fellow with the ARC Centre of Excellence for the History of Emotions (CHE), based at The University of Western Australia. Her research focuses on gender, family and criminal justice history in eighteenth- and nineteenth-century Britain, and she was formerly a Research Associate for the Australian Research Council Discovery Project, ‘Prosecution, Punishment and Print in Enlightenment Scotland’, led by David G. Barrie. She has published chapters on living arrangements, domestic violence and child murder, and is the editor (with Pamela Sharpe) of

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Accommodating Poverty: The Housing and Living Arrangements of the English Poor, c.1650–1850 (2011) and (with Philippa Maddern and Anne Scott) Performing Emotions in Early Europe (2018). Katrina Navickas  is Reader in History at the University of Hertfordshire. She is author of Protest and the Politics of Space and Place, 1789–1848 (2015) and Loyalism and Radicalism in Lancashire, 1798–1815 (2009). Her research interests centre around popular politics in northern England, particularly the historical and spatial geographies of protest. Gordon Pentland  is Reader in History at the University of Edinburgh. He has published widely on the political and cultural history of Britain and Scotland since the French Revolution. His most recent book (edited with David Brown and Robert Crowcroft) is the Oxford Handbook of Modern British Political History, 1800–2000. Steve Poole  is Professor of History and Heritage at the University of the West of England, Bristol and the Director of the University’s Regional History Centre. His research focusses on protest movements and criminality in the long eighteenth century and his most recent book (with Nick Rogers) is Bristol From Below: Law, Authority and Protest in a Georgian City (2017). Other publications include ‘The Politics of Protest Heritage, 1790–1850’, in Remembering Protest in Britain, 1500–1850: Memory, Materiality and Landscape, ed. C.  Griffin and B. McDonagh (2018); ‘For the Benefit of Example: Crime Scene Executions in England, 1730–1830’, A Global History of Execution and the Criminal Corpse, ed. R. Ward (2015); and John Thelwall: Radical Romantic and Acquitted Felon (2009). Martyn Powell  is Professor of History and Head of the School of Humanities at Bristol University. A specialist in eighteenth-century Irish political and social history, his publications include Britain and Ireland in the Eighteenth-Century Crisis of Empire (2003), The Politics of Consumption in Eighteenth-Century Ireland (2005), Piss-Pots, Printers and Public Opinion in Eighteenth-Century Dublin (2009), Clubs and Societies in Eighteenth-Century Ireland, edited with James Kelly (2010), and many articles and essays. He is currently working on an edition of the political works of Richard Brinsley Sheridan for Oxford University Press. Mike  Rapport  is Reader in Modern European History at the University of Glasgow, where he is convenor of Learning and Teaching and specialises in the French Revolution, its international impact, and nineteenth-century European

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history. He has written five books: Rebel Cities: Paris, London and New York in the Age of Revolution entitled The Unruly City in North America (2017); The Napoleonic Wars: A Very Short Introduction (2013), 1848: Year of Revolution (2008), Nineteenth Century Europe, 1789–1914 (2005) and Nationality and Citizenship in Revolutionary France: The Treatment of Foreigners, 1789–1799 (2000). With Ben Marsh, he edited Understanding and Teaching the Age of Revolutions (2017). He is now working on space and place in revolutionary Paris and on a concise history of Europe. He volunteers with Guide Dogs for the Blind and lives in Stirling, Scotland. Barry Wright  is Professor of Law and History at Carleton University, Ottawa, Canada. He is an editor of the Canadian State Trials series (most recently with Eric Tucker and Susan Binnie eds, Canadian State Trials Volume 4: Security, Dissent and the Limits of Toleration in War and Peace, 1914–39 published in 2015). His broader research concerns British colonial criminal law reform in the nineteenth century. His recent publications include “Macaulay’s India Law Reforms and Labour in the British Empire” in Legal Histories of the British Empire: Laws, Engagements and Legacies, ed. Shaunnagh Dorsett and John McLaren (2014), pp.  218–33; and “Macaulay’s India Penal Code and Codification in the Nineteenth Century British Empire”, Journal of Commonwealth Criminal Law, 2 (2012): 25–50.

Abbreviations

Cockburn, Examination Henry Cockburn, An Examination of the Trials for Sedition which have hitherto occurred in Scotland, 2 vols (Edinburgh, 1888). State Trials Thomas Jones Howell (ed.), A Complete Collection of State Trials and Proceedings for High Treason and other Crimes and Misdemeanours, 33 vols (London, 1809–1828). ODNB Oxford Dictionary of National Biography (Oxford, 2004–).

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1 Introduction: Political Trials in an Age of Revolutions: Britain and the North Atlantic, 1793–1848 Michael T. Davis, Emma Macleod, and Gordon Pentland

I My lords, I know that what has been done these two days will be rejudged;that is my comfort, and all my hope.1

The defendants in many of the political trials of the “age of revolutions”, whether speaking for themselves or through professional counsel, were confident that they would appear as protagonists in later histories. They M. T. Davis (*) School of Humanities, Languages and Social Science, Griffith University, Southport, QLD, Australia e-mail: [email protected] E. Macleod Faculty of Arts and Humanities, University of Stirling, Stirling, UK e-mail: [email protected] G. Pentland School of History, Classics and Archaeology, University of Edinburgh, Edinburgh, UK e-mail: [email protected] © The Author(s) 2019 M. T. Davis et al. (eds.), Political Trials in an Age of Revolutions, Palgrave Histories of Policing, Punishment and Justice, https://doi.org/10.1007/978-3-319-98959-4_1

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were not to be disappointed. The challenge for those placed on trial was to situate themselves and their own plights within a relevant history of liberty – British, English, Scottish, Irish, or universal – and historical narratives were the most common feature of defences. They carried with them, as did Skirving’s failed defence above, an appeal to posterity which was taken up by later lawyers, activists, politicians, and historians. As extraordinary moments within the lives of states, political trials have always attracted attention. The collections of State Trials that developed in Britain from the early eighteenth century were of course partly designed as legal textbooks. More importantly, however, they were national histories, textual monuments that rehearsed a long-range history of liberty and challenges to it explicitly through the medium of political trials. Key episodes around which that narrative developed and on which this volume pivots and much of the relevant scholarship has focused are the notorious rash of state trials for treason and sedition in England and Scotland in 1793–4. By labelling these and the other trials examined in this volume as “political” it is not intended to downplay the political dimensions of other (indeed, by some definitions, of all) criminal trials. Certainly, for a trial to be “political” may not require that it have an explicitly partisan quality, or that it garner extraordinary levels of public interest, or that its content and outcomes expressly involve contests over the distribution of power within the state.2 Many of the trials considered in this volume, however, embodied all three of these qualities. It is difficult to explain the significance of these trials for contemporary audiences or their enduring attraction to later generations without these qualities. The trials of the 1790s were almost immediately central to a number of partisan narratives about politics and the state, which were crafted in accounts of the trials themselves as well as in Parliament and other ­institutions and through the proliferating print culture of the late eighteenth and early nineteenth centuries. Most obviously for radicals and for opposition Whigs, they were evidence of the veracity of their critiques. For loyalists, ministers, and the Crown successful verdicts were evidence of the substance of their arguments that the state needed to defend itself via the law. Even acquittals, while carrying the cost of bolstering the radical cause by apparent ministerial defeat, carried benefits for the state. The acquittal of Thomas Hardy in 1794, for example, underlined Thomas

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Erskine’s plea to the jury: “let us not follow the example of that which we deplore in another country”.3 By serving “to set up her happy constitution, the strict letter of her guardian laws, and the proud condition of equal freedom, which her highest and lowest subjects ought equally to enjoy” acquittals might be personally embarrassing for ministers, but served wider loyalist arguments, which were prominent within its efforts to persuade the lower orders, about the freedom preserved by British laws.4 Partisan interpretations and uses of political trials were not, of course, novel phenomena in the 1790s.5 During and after the “age of revolutions” these uses continued to develop. There is now a rich historiography of commemoration and memorialisation of the victims of political trials. It reveals, among other things, the contested interpretations of political trials in subsequent decades. The “martyrs” of the Scottish courts in the 1790s, for example, became the focus of pan-British efforts at commemoration after the 1830s, but Whigs, household suffrage campaigners, and Chartists all imbued them with different significance.6 Similarly, the comparative visibility of different defendants has ebbed and flowed depending on the needs of and contests between the commemorators themselves: Chartists, liberals, socialists and nationalists have all selected different points of emphases within political trials and sought to commemorate accordingly.7 The nature of the source materials has frequently supported this proliferation of perspectives. The famous speech from the dock of Robert Emmet became a classic statement of republican Irish nationalism, but exists in over seventy versions supporting a range of interpretations.8 That so many different groups have sought to establish “ownership” of the political trials does speak volumes about their significance. Needless to say, partisan narratives have never been especially interested in providing detailed histories or analyses of the events themselves. Alongside the trials, however, the kinds of sources on which later historians might work were being produced. The huge volume of trial reports should not, of course, gull the historian into believing that he or she has reliable access to what was said and done during political trials. Accounts were often published with partisan purposes and their publishers and publication histories were frequently entangled with the events they

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described. The single most-cited source in this volume, for example  – Cobbett’s, later Howell’s, Complete Collection of State Trials – was begun in 1809 under the auspices of Thomas Bayly Howell and the prolific journalist and radical William Cobbett. It was to defray part of his own legal expenses and hefty fine after his seditious libel trial in 1810 that Cobbett signed this project over to the Howells.9 Part of the rationale for the State Trials was that the prosecutions of Hardy and others had major implications for the application of public law. Perhaps unsurprisingly it was lawyers who were most qualified to attempt and most forward in producing more substantial investigations of the trials, both detailing particular trials and using them to furnish analyses of different varieties of political crime. Lawyerly accounts were not, of course, devoid of partisanship. Another much-cited volume in the essays that follow, Henry Cockburn’s Examination of the Trials for Sedition that have hitherto occurred in Scotland, was part legal treatise, part Whig propaganda. Modern historical accounts of these political trials can be dated to the post-war period. E. P. Thompson’s Making of the English Working Class was, of course, pivotal in both establishing Britain during the “age of revolutions” as a site for creative historical scholarship and in affording political trials an important place in his narrative of a developing and politicising working class. At the risk of oversimplifying a rich and complex scholarship (whose complexities are, however, grappled with in many of the essays that follow), historians have been attracted to political trials in general and to specific celebrated trials, in order to answer two broad sets of questions. The first regards the scope, scale and nature of both political crime and of government efforts to police and punish it in the 1790s and after. Histories that have looked at political trials in the round, either in the 1790s or across longer periods, have revealed a good deal. The caricature of “Pitt’s Terror” was an early focus of this kind of research.10 Thompson had pointed out that political trials carried both opportunities and costs for ministers: “Persecution, we know, is a two-edged weapon”.11 Efforts to reveal the sharpness of both edges have given us a much more nuanced understanding of political trials across the period.12 Such investigations have also quantified and explained the changing nature of political crime,

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as the unreliable and blunt weapons of treason and seditious and blasphemous libel trials were increasingly (but not completely) replaced with public order offences as a means of defending the state from internal enemies.13 Overall, the development of this more complex account has seen the relative downgrading of coercion and persecution as blanket explanations for the chequered history of radicalism across this period. This has largely been done, however, without rescuing Pitt and his ministers from charges of deliberately exaggerating the nature of the radical threat, sponsoring alarmist reactions to it, and manipulating the legal process in their efforts to restrain it. Nonetheless, both the extent and the efficacy of flat legal repression in the “age of revolutions” is now very much more debatable. The proliferating histories of loyalism following on from H. T. Dickinson’s lucid treatment of the phenomenon have focused on political trials as only one part of an economy of political reaction that focused on persuasion at least as much as it did on coercion.14 The second set of questions aims more at recovering the meanings of the trials. Pioneering cultural historians (or social historians who had taken a cultural turn) were especially drawn to the performative and linguistic dimensions of political trials. Trials have been explored as crucial political sites, rare and illuminating moments when the state and its critics entered into direct, creative, and often noisy confrontation. Historians of radicalism have focused on the complex opportunities they afforded – through ideologically motivated defence speeches, processions to the court, and the exploitation of the relationship between trials and the press – to challenge the claim to dominance which lay at the centre of legal language, ritual and spaces.15 This work has multidisciplinary origins, but much of it is relevant to Olivia Smith’s brilliant treatment of the period between the French Revolution and Peterloo as involving a prolonged conflict over language.16 Some of this work has, of course, addressed the issues sketched above. One of the key ways, for example, in which trials were “double-edged” lay in the state’s inability to fix securely the spectacle and language involved. The treason trials have a privileged place here. As widely-reported and focal moments, the language and events around them have been anatomised to provide insights not only into the reshaping of treason law in

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this period, but also into the redefinition of the state, what allegiance to it meant and, in John Barrell’s monumental work, into the entire cultural history of the 1790s.17 The work outlined above has established political trials in Britain and elsewhere as key sites for the exploration of politics in the “age of revolutions”. While some of this work has looked at political trials in the round across comparatively long periods, scholarship has tended to coalesce around a few key, well-documented and long-celebrated trials. With notable exceptions, little effort has been made to recover and connect trials across different parts of the four nations, let alone to connect them to trials beyond “the isles”. In that sense, the historiography of political trials still bears the imprint of the more partisan uses to which it has been put. In particular, political trials remain locked into essentially “national” histories of liberty.

II The approaches taken by the essays in this volume seek to build on this existing body of work on political trials in the “age of revolutions”. They broaden the investigation beyond the ten most commonly discussed cases (the five sedition trials in Scotland in 1793–4, the two treason trials in Edinburgh in September 1794, and the three treason trials in London in autumn 1794); they explore more deeply the legal contexts of the prosecutions; and they suggest the value of studying political trials in this era in comparative contexts. Even a preliminary attempt by Emma Macleod, below, to compare the best-known English and Scottish trials of 1793–4 demonstrates that the different legal contexts not only of each national jurisdiction, but also of each charge under the law involved a significant variety of criminal justice procedures. When a wider view is taken, and trials heard by English magistrates, military courts, prosecutions outside Britain, cases tried during the early decades of the nineteenth century, and evolving definitions and the liminality of the laws of sedition and treason are also considered, the complexity of the systems with which prosecutors and defendants had to deal becomes very apparent.18

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While this volume does not constitute an explicitly comparative study of political trials in the “age of revolutions”, it does begin to work towards that aim by recognising the common resort to political prosecutions in this very intense and agitated few decades following the eruption of crowd intrusion into elite politics in France in 1789 and swiftly by extension elsewhere in Europe and beyond, despite the difficulties this tactic caused for governments, let alone for defendants. While the contrast between “Robespierre’s Terror” and “Pitt’s Terror” is a common one in the historiography, the extent of the similarity of the issues raised by the political prosecutions for the authorities even in France and Britain is in fact also striking, as are elements of the political culture of state trials across all of these chapters. By placing varied samples of political trials from this period – across six decades and five legal jurisdictions – alongside one another in the thirteen essays in this book, a number of themes emerge very clearly. The essays presented here demonstrate that the agency of the many actors involved in the process of political prosecutions was multivalent, ­contested, and not fully within the control of the authorities. As Ron Christenson suggests, “political trials are creative, placing before society basic dilemmas which are clarified through the trial …. But trials are not chess games which proceed according to exact rules, rigorous though the rules of evidence may be.”19 Many of the essays in this collection explore how the “rules” of political trials were inverted, interpreted or reinterpreted by various audiences. This was true even in Revolutionary France, at the height of the Terror, where, as Mike Rapport shows, the relationship of the revolutionary dictatorship with public opinion was crucial and complex. During the trial of the Girondins on 23–30 October 1793, the eloquence of the defendants caused Antoine Fouquier-Tinville, the public prosecutor of the Revolutionary Tribunal, such anxiety that five days into the hearings he solicited the intervention of the Convention, which passed a law limiting all proceedings to three days.20 These decades were an age of counter-revolutions as much as of revolutions and several contributors explore counter-revolutionary actors, practices, and limitations. Barrell argued convincingly that in Britain the crime of high treason was reinvented in the 1790s.21 In this volume, Lindsay Farmer shows here that the Scottish courts also invented the

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crime of sedition  – as opposed to the more specific existing crimes of seditious conspiracy, seditious riot, and seditious libel – in that decade, while Gordon Pentland and Katrina Navickas explore the redefinition of political crimes in the 1810s and 1820s. The power of national politicians over and within the legal process was both substantial and frustratingly incomplete. Local officials – magistrates and mayors – were often essential to the creation of a case. Judges, who had so much power over so much of the process, were, nevertheless, not infrequently disobeyed by juries or spectators. They had their suitability questioned in open court by defendants, so that they themselves were in some sense assessed at the bar of public opinion, as were the trials themselves by the public galleries, the crowds in the streets outside the courtrooms, the press, debates in Parliament, literary representations and memoirs, biographies and autobiographies. The roles of intention, context, emotions, memory, imagination, transparency, and the transience of the spoken word were all not only next to impossible to capture, characterise, define and judge (although, of course, prosecutors, judges and juries did all of these things); they also gave agency to defendants, witnesses, spectators and the press as well as to the more obviously powerful actors in the law courts – the judges, lawyers, and juries. The personal power of charisma and character inside the courtroom could be significant. Even while the defendants William Skirving and Maurice Margarot must have been aware that, following the trials of Thomas Muir and Thomas Fyshe Palmer, they had very little chance of being acquitted in Edinburgh in January 1794, they seized a temporary form of agency by refusing to accept professional legal representation and conducting their own defences. This tactic may not have had any positive impact on the outcome of their trials, but, like their publication of their own authorised versions of the trial proceedings in pamphlet form to compete with “official” publications, it did shape their content and the reception of their travails elsewhere in Britain. Meanwhile, the legal process, which the authorities dared not press beyond certain limits, afforded defendants and their legal teams the floor to make some extraordinary pronouncements and to place judges, the most senior prosecutors in the country, and on occasion the Prime Minister himself, in exceptionally awkward positions.

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Trials for treason and sedition, where the stakes were high, seized headlines and drew comment from all perspectives in the highly-strung domestic and international political atmosphere of the “age of revolutions”. The relationship between state prosecutions and public opinion was crucial, and the trials continue to arouse some remarkably strong feelings even now, just as they did for contemporaries and several of the essays in this volume examine the legacy of political trials in public opinion. Media reports were integral to constructing narratives of truth and justice, but the definitions of these concepts were not fixed and trials could be conducted as much in public opinion as they were in the courtroom. As Jens Meierhenrich and Devin O. Pendas point out: While the audience that matters most in the immediate term is typically the one that sits in judgment (judges or jurors or both), there may well be other audiences that matter as much or even more in the long term, audiences outside the courtroom. This is particularly true in political trials, where the fate of the defendant is often secondary to the “success” of an ideological message. It is entirely possible, in a political trial, to lose one’s case and win the battle for public opinion.22

Some trials in the “age of revolutions” – such as the prosecutions of the Scottish Martyrs in the 1790s – clearly demonstrate how the enduring legacy of political trials might not be the one intended by the state. The state might have written the script but not all the actors in or observers of political trials necessarily followed that script. Representations of the trials in general and of defendants, judges and politicians in particular, appeared in direct propaganda, in newspaper reports (which could themselves become the occasion of further sedition trials). Such source material makes the historian’s role in approaching these trials fascinating but hazardous. Thomas Slaughter remarked of the law of treason in the new United States of America: … direct evidence of the Framers’ understandings of the treason clause is revealing and significant, but more tantalizing than definitive. We must try to tease as much information as possible from a variety of imperfect sources – shorthand notes of deliberations, anonymous newspaper essays,

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unverifiable reminiscences, opinions circulated for public consumption and intended to affect a political outcome, and second-hand reports, in addition to a scattering of attributable private writings.23

There is a similarly delicate task to be undertaken to understand perceptions of the law and representations of the political trials in this era. The question of prejudication can be levelled at actors and spectators from all sides. Interpretation disguised itself, more or less successfully, in ­narrative, both reportage and imaginative. Both defendants and witnesses were cast as treacherous Roman Catilines in different circumstances. Political principles were (as ever, but vibrantly here) coloured in representation of the trials by the vagaries of memory, personal interest, class advantage, partisan impulse, local context, the commercial imperative, religious conviction, and literary choice. Gaps in all the various forms of record and account constitute a powerful form of negative representation. Multiple layers of competition and hostilities were created between commentators, agendas and across borders. Similarly, the effects of the prosecutions rippled out beyond the lives and careers of the central participants to affect various constituencies  – families, friendships, local communities, Dissenting communities, the radical diaspora, the political public at large, and even the British literary imagination.24

III Given the pervasive and entrenched nature of political trials during the “age of revolutions” – at least in perception, if not in reality – they provide a wide window through which to view the period. What can be learned from these trials? What do they tell us about the “age of revolutions”, how do they inform our understanding of the legal as well as political culture of the time, and which areas might be the most fruitful focus for future research? On one level, the political trials examined in this collection clearly demonstrate how the law functioned in a normative way to regulate and repress transgressive political behaviour. In times of heightened political anxiety, those members of society identified as deviant and dangerous opponents are increasingly prosecuted as part of a

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process of norm promotion.25 The political trials from the late eighteenth century to the mid-nineteenth century were no exception and, in many ways, conform with what is seen as the partisan purpose of political trials in general. As Eric Posner states: A political trial is a trial whose disposition – that is, usually, a finding of guilt or innocence, followed by punishment or acquittal, of an individual – depends on an evaluation of the defendant’s political attitudes and activities. In the typical political trial, a person is tried for engaging in political opposition or violating a law against political dissent, or for violating a broad and generally applicable law that is not usually enforced, enforced strictly, or enforced with a strict punishment, except against political opponents of the state or the government.26

Indeed, the political trials of the “age of revolutions” were fundamentally what Meierhenrich and Pendas refer to as “destructive trials”27 which sought to eliminate those members of society who advocated liberty, political rights and challenged the status quo. The trials can be understood as “reactive ‘law solutions’” that form an integral part of moral panics and an essential means for states to deal with moral threats.28 As coercive laws that responded to raised concerns about radicalism and dissent increased from the late eighteenth century into the nineteenth century, there was naturally a commensurate rise in the number of prosecutions for political crimes. Some of those prosecutions – such as the treason trials in London in 1794 – were akin to show trials and intended to be exemplary and retributive justice, exposing the villainous plots and evil intentions of political opponents. Such trials were not only “destructive”, they were also didactic. They captured public attention, excited alarmism and entertained in equal measure. In the “mediatised” world that existed by the end of the eighteenth century, the consumption of newspaper reports of political trials was a means by which the public were educated about the law as well as politics, about their political rights, obligations and legal consequences of transgression. Examining the extent to which prominent political trials were reported as well as the patterns and differences in

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reports is a space that still requires further research to gain a more nuanced understanding of interactions between the press and the law. While the attention-grabbing political trials of this period are well known, there were many more that were barely registered. Essays in this volume – for example, Katrina Navickas’ on the trials of Manchester radicals in 1812 and Steve Poole’s on the Reform Bill “rioters” – demonstrate the gains that can be made by exploring these less notorious episodes. Quantifying exactly how many political trials occurred during the “age of revolutions” might be impossible, but there are many unanswered questions for the period (some of them very old and stubborn ones), which a more extensive investigation of political prosecutions and a surer sense of their range and frequency may help to address: how far was the law used disproportionately; did governments over-react and exaggerate the threat of popular disorder and discontent to justify repression; and, in the British context, was there an actual threat of revolution and was the government’s response a “reign of terror”? Importantly, this collection also aims to highlight what might be called a transnational element to political trials in the “age of revolutions”. Typically, political trials are interpreted as part of domestic narratives and used as lenses through which to gain insights into the political concerns and anxieties of a particular nation. Issues surrounding legitimate governance, national security, radicalism and the rule of law, however, were common to political trials in many countries in Europe and the Atlantic world during the late eighteenth and nineteenth centuries. Important work is still to be undertaken on comparing and contrasting political trials in different countries to understand the role judicial systems played in countering political crime as well as to identify the continuities and departures in legal approaches to dissent. While the trials examined in this collection can be viewed in national and transnational contexts, it is important to remember that they are – perhaps above all else – stories of individuals. The human elements that comprise the hundreds of political trials in the “age of revolutions” can be easily overlooked. But the legal records, published trial accounts and newspaper reports of political prosecutions are essentially chapters in biographies. They provide a way of understanding the personalities, professionalism and passions of the trial participants. They expose the

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e­motional impact of trials on the accused, their family, friends and onlookers. From the individual experiences and stories of political prosecution emerges a sharper understanding of political and legal culture in an uncertain and tumultuous period of history.

Notes 1. The Trial of William Skirving, secretary to the British Convention (Edinburgh, 1794), 168. 2. For a very rich discussion of these issues see Jens Meierhenrich and Devin O. Pendas, “‘The Justice of my Cause is Clear, but there’s Politics to Fear’: Political Trials in Theory and History”, in Political Trials in Theory and History, ed. Jens Meierhenrich and Devin O.  Pendas (Cambridge, 2016), 1–64. 3. The Genuine Speech of the Hon. Thomas Erskine, in Defence of Thomas Hardy, tried by Special Commission on a Charge of High Treason (London, 1794), 86. 4. Ibid., 84; Will Chip [Hannah More], Village Politics. Addressed to all the Mechanics, Journeymen, and Day Labourers, in Great Britain (Canterbury, 1793), 5, 13. 5. See, for example, Melinda S.  Zook, “‘The Bloody Assizes’: Whig Martyrdom and Memory after the Glorious Revolution”, Albion, 27 (1995), 373–96. 6. Alex Tyrell and Michael T.  Davis, “Bearding the Tories: The Commemoration of the Scottish Political Martyrs of 1793–94”, in Contested Sites: Commemoration, Memorials and Popular Politics in Nineteenth-Century Britain, ed. P. A. Pickering and A. Tyrell (Aldershot, 2004), 25–56; Gordon Pentland, “The Posthumous Lives of Thomas Muir”, in Liberty, Property and Popular Politics: England and Scotland, 1688–1815. Essays in Honour of H. T. Dickinson, ed. Gordon Pentland and Michael T. Davis (Edinburgh, 2015), 207–23. 7. Mathew Roberts, “Chartism, Commemoration, and the Cult of the Radical Hero, c. 1770–1840”, Labour History Review, 78 (2013), 3–32; Gordon Pentland, “‘Betrayed by Infamous Spies’? The Commemoration of Scotland’s ‘Radical War’”, Past & Present, 201 (2008), 141–73.

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8. R.N.C. Vance, “Text and Tradition: Robert Emmet’s Speech from the Dock”, Studies, 71 (1982), 185–91; Patrick M. Geoghegan, “[Which] Speech from the Dock?”, History-Ireland, 11 (2003), 34–8. 9. George Spater, William Cobbett: The Poor Man’s Friend, 2 vols (Cambridge, 1982), I: 252–4. 10. C. Emsley, “Repression, ‘Terror’ and the Rule of Law in England During the Decade of the French Revolution”, English Historical Review, 100 (1985), 801–25. 11. E.  P. Thompson, The Making of the English Working Class, new edn (London, 1980), 141. 12. P. Harling, “The Law of Libel and the Limits of Repression, 1790–1832”, Historical Journal, 44 (2001), 107–34. 13. M. Lobban, “From Seditious Libel to Unlawful Assembly: Peterloo and the Changing Face of Political Crime, 1770–1820”, Oxford Journal of Legal Studies, 10 (1990), 307–52; Keith Smith, “Securing the State, the Institutions of Government and Maintaining Public Order” in The Oxford History of the Laws of England. Vol. XIII, 1820–1914, ed. W. Cornish et al. (Oxford, 2010), 334–51. 14. H.  T. Dickinson, “Popular Loyalism in Britain in the 1790s”, in The Transformation of Political Culture: England and Germany in the Late Eighteenth Century, ed. Eckhart Hellmuth (Oxford, 1990), 502–33. 15. See, especially, James Epstein, Radical Expression: Political Language, Ritual, and Symbol in England, 1790–1850 (Oxford, 1994), 29–69; idem, “‘Our Real Constitution’: Trial Defence and Radical Memory in the Age of Revolution”, in Re-reading the Constitution: New Narratives in the Political History of England’s Long Nineteenth Century, ed. James Vernon (Cambridge, 1996), 22–51; John Barrell, Imagining the King’s Death: Figurative Treason, Fantasies of Regicide (Oxford, 2000). 16. Olivia Smith, The Politics of Language, 1791–1819 (Oxford, 1984). 17. Barrell, Imagining the King’s Death; Lisa Steffen, Defining a British State: Treason and National Identity, 1608–1820 (Basingstoke, 2001), 99–162. 18. See J.G.A. Pocock’s discussion of experience and usage in the laws of any one country in the first chapter of his The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition, 2nd edn (Princeton, 2003), 3–30. 19. Ron Christenson, “What is a Political Trial?”, Society, 23 (1986), 26. 20. G. Walter (ed.), Actes du Tribunal révolutionnaire (Paris, 1986), 325–6. Thanks to Mike Rapport for this observation.

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21. Barrell, Imagining the King’s Death. 22. Meierhenrich and Pendas, “‘The Justice of My Cause is Clear’”, 40. 23. Thomas Slaughter, “‘The King of Crimes’: Early American Treason Law, 1787–1860”, in Launching the Extended Republic: The Federalist Era, ed. Ronald Hoffman and Peter J. Albert (Charlottesville, 1996), 54–135, at 96. 24. On local dislocations, see Mark Philp, “Preaching to the unconverted: rationality and repression in the 1790s”, Enlightenment & Dissent, 28 (2012), 73–88. 25. Marshall B. Clinard and Robert F. Meier, Sociology of Deviant Behavior (Fort Worth, 1998), 12. 26. Eric A.  Posner, “Political Trials in Domestic and International Law”, Duke Law Journal, 55 (2005), 76. 27. Meierhenrich and Pendas, “The Justice of My Cause is Clear” (Cambridge, 2016), 56. 28. David Lemmings, “Introduction: Law and Order, Moral Panics, and Early Modern England”, in Moral Panics, the Media and the Law in Early Modern England, ed. David Lemmings and Claire Walker (Basingstoke, 2009), 10.

Part I Britain

2 “Subverting the Settled Order of Things”: The Crime of Sedition in Scotland, 1793–1849 Lindsay Farmer

When James Tytler was charged with sedition before the High Court of Justiciary in Edinburgh in January 1793, it was the first time that anyone had been charged directly with the crime of sedition in Scots law.1 While there had been earlier trials in which the word sedition had been used in the indictment, it had been used to describe conduct that was linked to an allegation of some form of treason. Equally, although there were a number of statutes of the Scottish Parliament that had used the term sedition, it was not clear from these that sedition was understood as a distinct offence. The trial of Tytler, though, was to be the first of twenty-­three trials for sedition that took place in Scotland between 1793 and 1849. These trials fall into four rough groups. In the first group, which took place between January 1793 and March 1794, political radicals, inspired by the French Revolution and arguing for constitutional change, were tried and punished, increasingly severely, for the expression of their views. The second group of six cases took place between 1798 and 1802 and

L. Farmer (*) School of Law, University of Glasgow, Glasgow, UK e-mail: [email protected] © The Author(s) 2019 M. T. Davis et al. (eds.), Political Trials in an Age of Revolutions, Palgrave Histories of Policing, Punishment and Justice, https://doi.org/10.1007/978-3-319-98959-4_2

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included two cases where the accused was a member of the United Scotsmen, and was also charged with taking or administering illegal oaths. The third group, between 1817 and 1820, were in response to the social and political unrest that followed the wars with France. The fourth and final group, in 1848 and 1849, involved the trial of two groups of Chartists. Following this the crime was scarcely used by the authorities until its eventual abolition in 2010.2 The creation and use of the crime of sedition in Scots law thus largely coincides with the “age of revolution” and so should be understood primarily in this historical context. This chapter examines the history of the crime of sedition between 1793 and 1849. This history is significant because the crime was, in practical terms, created by the Scottish courts in the political trials of the 1790s. It will show how the crime was used and why it was controversial, before going on to look at the ways that the legal definition of sedition was eventually transformed in the trials of 1848–9, pulling apart word and deed in the conception of  the crime, to reflect what was understood as a new kind of democratic sensibility. It discusses this development in the context of a broader set of questions about how the scope and nature of the class of crimes against the state or political crimes changed over this period, and how this was itself related to the emergence of new spaces and forms of politics.3 The chapter is focused on a number of legal issues around the definition and use of the crime of sedition and related offences, rather than the conduct of political trials as such. The issues that I want to focus on here concern the changing conceptions of the relationship between thought, conduct and responsibility, and how the idea of the state or the political was conceptualised in the criminal law as the object of this type of crime, and thus what the criminalisation of political speech can tell us about the changing nature of the criminal law. The chapter is divided into three parts. The first gives a general overview of the use of the crime of sedition in Scotland between 1793 and 1849. The second explores some more specific issues relating to the development of the definition of the crime. The chapter concludes with a discussion of some more general points about the structure of the law of sedition and the place of political offences within criminal law.

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I 1793–4 The cases in this early period fall into three main groups.4 The first six cases between January and March 1793 were mainly prosecutions of printers and booksellers for the publishing or circulation of forms of seditious writing. These led to convictions in every case where the accused appeared for trial, but where the accused did not appear, this seems to have been treated as the end of the matter. Thus, for example, James Tytler was charged with writing and distributing a seditious broadside. He failed to appear for his trial and, in his absence, he was outlawed and his bail and property was forfeit.5 In general, these cases seem to have been regarded as relatively minor incidents, attracting short custodial sentences or requiring sureties for future good behaviour – or as remedied by the flight or disappearance of the accused.6 There was a qualitative change, though, with the trial of Thomas Muir on 30 and 31 August 1793.7 Muir was charged with “exciting … a spirit of disloyalty and disaffection to the king and the established government” by making seditious speeches, and with reading, distributing and advising the purchase of seditious writings, which included Thomas Paine’s work. The case against Muir was weak, in that witnesses even for the Crown generally testified that Muir had been cautious about recommending Paine and that he had advocated only legal means of reform. The presiding judge, Lord Justice-Clerk Braxfield, focused on general issues, such as the danger of the times, the seditious quality of Paine’s writings, and the fact that Muir had fled to France, rather than on proof of the specific charges. Muir was convicted and sentenced to fourteen years’ transportation  – a very harsh sentence that surprised even many of those who had supported the prosecution.8 This was followed by the trial of the Reverend Thomas Fyshe Palmer at Perth in September 1793 on the charge of having written, printed and circulated a seditious writing, in this case the text of an address to a meeting of the Friends of Liberty in Dundee. He also was convicted and transported for seven years.

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The third group of cases then took place between January and March of 1794. The principal cases were trials of members of the British Convention – William Skirving, Maurice Margarot, Joseph Gerrald and Charles Sinclair.9 The Convention was a short-lived organisation established to pursue constitutional reform  – universal suffrage and annual parliaments – but which was viewed as threatening by the authorities.10 All except Sinclair were convicted and, like Muir, sentenced to fourteen years’ transportation. This showed the clear determination of the authorities to secure convictions in these cases, which came in the wake of similar prosecutions (though for treason) of members of the London Corresponding Society in England.11 The attack on the British Convention in Scotland ended with the trial and execution of Robert Watt for high treason at the end of 1794, after he was alleged to have planned an armed insurrection.12 These trials established sedition in Scots criminal law, but were highly controversial. Politically the trials must be seen in the context of wider radical agitation in Britain in the wake of the French Revolution. There had by 1793 already been numbers of trials for seditious libel in England – notably the conviction of Thomas Paine in 1792 – where the crime of seditious libel was a well-established part of the criminal law.13 The Scottish authorities were anxious about the spread of radicalism, which it has been suggested, may have been even more intense than in England.14 There the crime, along with high treason, was seen as one of the principal weapons in the fight against political crime – notwithstanding changes made by Fox’s Libel Act in 1792.15 The use of sedition charges was thus normal in the English context, but it was novel in Scotland where an important feature of the Scottish trials was that they all took place before the High Court. This is an important difference from England, where seditious libel was misdemeanour and could be tried before lower courts.16 This was probably because the Crown was relying on a residual common law power to create or recognise new crimes as authority for the court’s actions, as well as the fact that the Court possessed a residual power to punish arbitrarily (i.e. non-capitally) where this had not otherwise been restricted by statute.17 However, the prosecution of sedition as a crime at common law, and the exceedingly severe sentences, brought the Scottish courts under an intense level of scrutiny.

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Much of the criticism has focused on the lack of independence of the court. The prosecutions were led by Robert Dundas, nephew of Henry Dundas, and the court was presided over by Lord Justice Clerk Braxfield – both leading Tories who did not attempt to mask their personal views.18 Braxfield, indeed, was singled out by Henry Cockburn, in his influential critical examination of the trials, as having provided the intellectual force and set the tone in the courtroom: “His blameableness [sic] in these trials far exceeds that of his brethren. They were weak; he was strong. They were frightened; he was not. They followed; he, the head of the court, led.”19 However, the other judges on the bench lost no opportunity to express their views on whether certain conduct was seditious, and to praise the law and constitution. If this showed little respect for the distinct roles of judge and jury, this was compounded by the fact that jury members in the trials had been selected for their political views. A trial before the High Court, either in Edinburgh or on circuit, was heard by a jury of fifteen, selected from amongst those who met the property qualification.20 This became a particular issue in the trial of Muir, where the identity of the jurors called was challenged by Muir, on the grounds that they were members of a society formed for the defence of the constitution, known as the Goldsmith’s Hall Association, which had not only condemned Paine’s writings, but which had specifically singled out Muir as having seditiously circulated these writings. The objection, though was dismissed by Court, virtually without comment.21

1798–1802 There were six trials for sedition between 1798 and 1802. Of these, the most significant were prosecutions against members of the United Scotsmen.22 The first (and central) case was the trial in January 1798 of George Mealmaker, a weaver who had sought to arrange meetings of the United Scotsmen in the east of Scotland. Mealmaker was charged with sedition, publishing inflammatory pamphlets, and administering unlawful oaths.23 He was convicted, notwithstanding that the indictment failed to specify what was specifically seditious about either the society or the

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pamphlets, and was sentenced to fourteen years’ transportation. The trials of Black and Paterson in September 1798, and Maxwell in June 1800 were based on similar facts, with Paterson and Maxwell both found guilty of sedition and sentenced to five and seven years’ transportation respectively.24 The final trial in this series was of Thomas Wilson in Perth in September 1802 for having acted as a delegate for the United Scotsman.25 Although found guilty he received the relatively lenient sentence of one month imprisonment and banishment for two years.

1817–1820 There were four trials for sedition between 1817 and 1820.26 These arose out of the political and industrial unrest that followed the end of the Napoleonic Wars, and the accompanying revival of radical demands for parliamentary reform. Just as the reformers and radicals looked for inspiration to the activities of their predecessors in the 1790s, the authorities were quick to see a threat of rebellion and revolution. This was reflected in their resort to the law of sedition. In the first of the trials, McLaren was charged with having made a speech at a political meeting in Kilmarnock, and Baird with having published that speech.27 Both were convicted, and were sentenced to six months imprisonment, and to give security for good behaviour for three years. The trial of Niel Douglas, a clergyman, in May 1817 for sermons casting aspersions on the character of the King and Prince Regent ended in an acquittal, and proceedings against George Kinloch were deserted after he failed to appear.28 The central trial was that of Gilbert MacLeod, printer and editor of the radical Glasgow newspaper the Spirit of the Union, in March 1820, for printing a number of articles criticising the government for, amongst other things, the Peterloo Massacre, and calling for reform of Parliament.29 MacLeod was found guilty by the jury, who recommended leniency. He was, however, ­sentenced to five years transportation, a sentence which recalled the worst excesses of the early 1790s and which reopened the debate about the legality of transportation as a sentence for sedition. This sentence was particularly controversial in view of the fact that in England the sentence for a first offence of sedition had recently been limited by statute to a fine

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or imprisonment or both.30 Transportation was finally abolished as a punishment for sedition in Scotland by an Act of 1825, which made the punishment the same in Scotland as in England.31

1848–9 The final two trials for sedition took place in 1848 and 1849 and focused on leaders of the Chartist movement who had spoken at public meetings in Edinburgh.32 Tensions had been running high throughout Scotland in the winter of 1847–8, particularly in urban areas, because of high unemployment and food shortages.33 There were riots in Glasgow in March 1848, which the authorities suppressed only with the use of military force.34 In July, as part of a nationwide crackdown, the authorities arrested a number of the Chartist leaders. Most were released on bail, but charges of conspiracy and sedition were eventually brought against Ranken, Grant, Hamilton and Cumming. All the accused were acquitted on the conspiracy charges. Grant was found not guilty of sedition; Ranken and Hamilton were convicted, having been found guilty of using language calculated to incite popular disaffection and resistance to lawful authority. They were sentenced to four months’ imprisonment. The prosecution against Cumming was eventually abandoned. Although, the conviction was not completely uncontroversial, with judicial discussion focusing on whether “calculated” was equivalent to an intention to excite popular disaffection, the general approach suggests that the authorities were indeed, as Fraser suggests, more circumspect than those in England in the charging of political offences.35 The story attached to these trials from the 1790s to the 1840s is usually understood as one of increasing moderation. In the trials of the 1790s, when there seems to have been a genuine fear that the threat of revolution was real, the authorities reacted in an extreme way. This approach was gradually modified with the recognition that there were more effective – and less provocative – ways of responding to, or even accommodating, political protest. It is also usually noted that there was a growing legal sensibility, with the conduct of the trials themselves changing in character: judges became more measured and (at least publicly) tolerant of

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dissenting political views; from the 1820s the practice of picking juries was reformed; and where sedition was charged, it was punished less harshly. Notwithstanding these changes, it is important to note that one of the most striking features of all the trials is their legalism, making their reports into an, often unlikely, combination of political factionalism and legal analysis. The accused were legally represented (except where representation was refused), often by distinguished members of the bar. As a result there was detailed legal argument over certain points. This suggests, as Emsley has commented about England, that there was, even on the part of the radicals, a genuine commitment to rule of law, even as they protested the particular conduct of these trials.36 This means that the trial reports and commentary are an extraordinarily rich source for understanding the development of sedition as a legal concept.

II The trials of the 1790s introduced the crime of sedition into Scots law, but they did not establish the clear parameters of the crime. This was something that was done mainly in subsequent doctrinal writings – treatises and cases – and that was then refracted back into subsequent decisions.37 This also required that the crime be set within a narrative that could explain the harshness of the trials, as necessary to a period of political turbulence, while also demonstrating how the crime was unexceptional and necessary to the criminal law. There were three main issues that were looked at in this process: the definition and scope of the crime; the necessary mens rea; and the relation between “real” and “verbal” sedition. The process of defining and determining the scope of the crime began in 1797, when the book that is regarded as the foundational text of modern Scots criminal law, Baron David Hume’s Commentaries on the Law of Scotland Respecting Crimes, was published.38 Hume’s text was a conscious attempt to produce a systematic modern account of the criminal law, and to this end he reviewed all decided cases and sources, presenting the law in a structure similar to that adopted by Blackstone’s Commentaries.39 There were, though, a couple of noteworthy features of the book. First,

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Hume was a dyed-in-the-wool Tory who attracted criticism from some of the Edinburgh Review Whigs for his defence of the established order. This was nowhere starker than in relation to the crime of sedition. Cockburn, one of his most vocal critics, suggested in a review of the fourth edition that Hume had undertaken the work principally to vindicate Scots law in the face of its critics.40 This is unlikely, given its scale and the fact that Hume must have been working on it for a substantial period before the early 1790s. However, Hume did acknowledge in the preface that the criminal law of Scotland was falling in the esteem of the public and Cockburn was probably right in suggesting that one of the principal causes of this falling esteem was the overtly political use of the criminal law in the sedition trials. Second, Hume was keen to assert the independence of Scots criminal law, such that he took pains to point out the superior qualities of Scots law compared to its English equivalent, a feature which led to some interesting comparisons in the law of sedition.41 It is clear that while Hume appears to have had few doubts that the law was properly used, he struggled to identify clear principles which might define sedition or distinguish the crime from related offences. Earlier texts, by writers such as Sir George Mackenzie, had mentioned the crime, but had largely treated it as descriptive of a class of crimes, rather than a separate crime in itself, and had linked it to the presence of actual unrest or insurrection.42 Hume, therefore, began by explaining why sedition amounted to a separate crime. Sedition, he argued, consisted in “stirring those foul and mutinous humours in the multitude, which, when once set afloat, may naturally issue in open violence and insurrection.”43 Thus, the crime was to be understood as: reach(ing) all those practices, whether by deed, word, or writing, or of whatsoever kind which are suited and intended to disturb the tranquillity of the State,– for the purpose of producing public trouble or commotion, and moving his Majesty’s subjects to the dislike, resistance, or subversion, of the established government and laws, or settled frame and order of things.44

This was similar to English law in noting that the crime may be committed by deed, word or writing (mirroring libel, speech and conspiracy),

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but these were seen as different modes of committing a single crime, rather than as distinct crimes. He went on to list a number of examples – including teaching that monarchy and hereditary rank are contrary to reason and justice, or that the state is corrupt, or questioning the payment of taxes or septennial parliaments – the common feature of which in his view was that they had been produced by the wickedness of the age. What these practices had in common, he suggests, is that they might disturb the relation between sovereign and subject and lead to unrest.45 Sedition was also one of the crimes discussed at some length in Burnett’s Criminal Law, a treatise published in 1811. This text is of particular interest because its author acted for the Crown in several of the trials of the 1790s. It is less systematic in ambition than Hume, but contains a robust account of crimes against the state and a defence of the common law in repressing seditious unrest. For Burnett sedition consists in: Whatever tends to unsettle the established order of Government, by producing discontent in the minds of the people; lessening the Sovereign in the estimation of his people; or in general, exciting a spirit of disloyalty to the King, and disaffection to the established Government … though there is no commotion, tumult, or rising of the people.46

This is then followed by a list of examples: reviling or scoffing at the King; declamations or invectives against monarchy in general or any branch of the legislature or any existing law or ordinance; or exhorting the people to resist or disobey the law; or seducing them from their duty and allegiance to the King. This was a much broader definition than that offered by Hume – anything which tends to produce discontent, disloyalty or disaffection, even if not aimed at a “total change or subversion of the existing system”.47 There was, however, a marked change in tone by the time Archibald Alison’s Principles of Criminal Law was published 1832. Alison followed Hume and Burnett in describing sedition as being directed against the peace of the state, but his definition sought to narrow the scope of the crime:

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[A]ll language or publications are seditious which stimulate the subjects of the realm to attempt the alteration of the laws and existing institutions by violent and illegal methods, and not in the ordinary course prescribed by the constitution for their modification.48

This narrows the object of sedition – altering the existing laws and institutions rather than attacking the sovereign – and introducing the qualification that the crime did not consist in criticism as such, but the attainment of legitimate objects by violent or illegal means. His emphasis was also on conduct or writings which were aimed at altering the laws or constitution by these means. The importance of this was a narrowing of the kinds of conduct that might amount to sedition, while introducing also a clearer focus on the aims of the conduct. This reflects an ambivalence towards the law in Alison who, while a staunch Tory, nonetheless expressed concern over the way that the law was used in the 1790s, in particular the harsh penalties.49 Alison also stressed that that the nature of sedition might depend on the circumstances: to publish seditious writings in a time of turmoil would justifiably lead to prosecution. This allowed him both to narrow the scope of the crime, and to argue that the actions of the authorities in the 1790s were completely justified. It is interesting to note the analogy that he draws here with the crime of fire-­ raising: that just as a person who scattered burning firebrands could not escape liability for the resulting fire, so too a person who scattered words which caused unrest could not avoid liability for sedition.50 This is to be contrasted with an analogy that was commonly drawn in the earlier cases between sedition and poison: the concern was not unrest as such but the damaging effects that the words would have on the social bond.51 One of the major issues of definition for these writers was the difficulty in distinguishing the crime of sedition from other related crimes – notably treason, leasing-making, and mobbing and rioting.52 Mackenzie saw sedition as a species of either treason or riot. Hume describes sedition as “the parent and forerunner of treason”.53 This clearly marks the seriousness of the crime, while linking it to his earlier definition of acts which might break the bond of loyalty between sovereign and subject. And to reinforce this point he notes the existence of a number of Acts of the Scottish parliament (1584, 1661, 1681, 1685, 1690 and 1703) which

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declared certain kinds of seditious conduct either to be treasons or to be punishable as treasons (though it is not always clear which). He also sought to distinguish the crime from leasing-making, a term which is a Scots corruption of the phrase lèse majesté, which was a form of treason and included offences against the dignity of the sovereign or the uttering of lies or libels upon the personal character of the sovereign, his court, or his family. For Burnett, leasing-making was to be distinguished from sedition in that it was primarily a verbal injury or slander against the Prince and this might be committed without a seditious intention, though it must always have a seditious tendency. Thus leasing-making would always be sedition, but not vice versa.54 Sedition was distinguished from riot in that riot was considered to have only a local or private aim concerning a particular place or neighbourhood, whereas sedition was directed at the overthrow of the institutions of the state.55 Thus by the time of Alison it is clear that sedition is treated as the form of expression, and treason or riot were the potential outcomes. The modern definition of the crime was generally regarded as having been settled in the 1848 case of James Cumming & Ors.56 The leading decision was given by Lord Justice-Clerk Hope who said: The crime of sedition consists in wilfully, unlawfully, mischievously, and in violation of the party’s allegiance, and in breach of the peace, and to the public danger, uttering language calculated to produce popular disaffection, disloyalty, resistance to lawful authority, or, in more aggravated cases, violence and insurrection. The party must be made out not to be exercising his right of free discussion for legitimate objects, but to be purposely, mischievously, without regard to his allegiance, and to the public danger, scattering burning firebrands, calculated to stimulate and excite such effects as I have mentioned – reckless of all consequences.57

While the object of sedition remains the same – uttering language calculated to produce public disaffection, disloyalty or violence and insurrection –this definition also makes it clear that the law had changed. It acknowledges the right of free discussion for legitimate objects, such that it must be established by the Crown that the accused is not exercising this right. Second, there is the distinction between ordinary and aggravated

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cases, suggesting a continuum from producing disaffection to where the language aims at producing, or is calculated to produce, violence and insurrection. And third, there is more stress on intention, though as we shall see this need not be an intention to produce unrest, but merely to be intentionally uttering the language. It is also clear that the concern is less with the general stirring up of discontent than with the immediate tendency to produce public unrest, or to breach the peace, where the words are spoken.58 There was also by this stage a recognition that sedition might be more circumstantial – that is to say that it did not depend on the language used as such, but on the context, and that language or conduct which might be permissible under normal circumstances could become seditious in other conditions.59 One of the oddities of the legal discourse around sedition was the distinction drawn in most of the writers after Mackenzie between real and verbal sedition. While this appears to be a narrow legal discussion of little practical significance, it in fact became closely related to discussion of the nature of the crime (whether statutory or common law) and the legal justification of punishment. There were two slightly different versions of this distinction. Erskine, writing in 1781, saw it in terms of cases where no tumult and violence took place (verbal) and those where it did (real).60 Real sedition was manifested in action, while verbal sedition was merely speech. Alison, writing fifty years later, slightly modified this, proposing that while every subject had a right to argue that the power of certain institutions had become overgrown, this became sedition if he then went on to argue that power should be retrenched by illegal means.61 This followed Erskine in seeing the latter as verbal sedition, with real sedition bearing a close resemblance to riot.62 Hume, by contrast, drew the distinction in a different way, seeing it in terms of “the nature and substance of the thing itself that is done”.63 Verbal sedition was the expression of inflammatory sentiments without directly proposing any action; while real sedition involved the proposal of a course of action, such as enumerating a course of measures for accomplishing change or reformation of the state.64 What was at stake was thus a question of the status of words as a form of conduct, and whether only speeches or writings might amount to the most serious forms of sedition.

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The point generally arose in cases where there was dispute over the crime that had been charged and its permissible punishment. There were many statutory offences which had been created in times of unrest, which either criminalised conduct overlapping with sedition, or laid down specific punishments for certain forms of “seditious” conduct. Thus, an Act of 1661 made it treason to question the Royal prerogative to suspend Parliament, an Act of 1681 made it treason to question the right of succession to the Crown, and an Act of 1685 made it treason to take or defend the Solemn League and Covenant.65 Later the Unlawful Oaths Acts of 1797 and 1812, or the Seditious Meetings Act 1817 created specific offences around the taking of oaths or the holding of political meetings. The offences under these Acts were often charged together with a common law charge of sedition and their existence and status gave rise to considerable confusion and debate which defence counsel sought to exploit by challenging the authority of the court to impose certain punishments.66 In the case of Sinclair, for example, the defence had sought to argue that verbal sedition was, like leasing-making, only punishable under an Act of 1703 c.4 by fine, imprisonment or banishment (i.e. exile from Scotland).67 The point of the claim was to argue that verbal sedition was not a crime at common law, and thus that its punishment would depend on the libelling of particular statutory powers to punish. Both points were, as might have been expected, dismissed by the Court, which held that verbal sedition differed from leasing-making in that the latter was narrower (verbal injury or slander against the person of the King). They also argued that sedition must be a crime at common law in any system, and that as statutory offences did not supersede the common law, sedition might be punished by arbitrary pains as the court held an inherent jurisdiction to punish crimes at common law.68 In his discussion Hume supported this interpretation, seeing verbal sedition in the cases of Robertson and Berry, who had merely published seditious writings, but real sedition in the cases of Gerrald or Fyshe Palmer. He thereby also implicitly justified the more severe punishment in the latter cases. Hume also gave a further gloss on this, arguing that the crime would exist at common law in any system of established government as it arises necessarily out of the existence of the institution

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of regular government “without the aid of any positive act or declaration of the legislature”.69 However by following the Court in the view that sedition was common law in origin Hume also lined up against those such as Mackenzie and Erskine who had linked the origins of the crime to Roman law, thus asserting the national origins of Scots law. Hume then used this to reinforce the new orthodoxy of the common law origins of Scots criminal law and of the powers of the court to respond to any criminal act.70 There were two important issues here. First, the kind of act that was required, and second whether or not there was a need to prove seditious intent (or merely that something was seditious). The first question concerned whether it was necessary that there be actual unrest for sedition to have been completed. On this point Hume is clear, arguing that the material act in sedition is the speaking or publication of the words (i.e. verbal sedition).71 In the case of verbal sedition an indictment would lie even though no tumult or violence took place, because even a pamphlet or speech could disturb the tranquillity of the state. He thus argued that the printing or publishing of a discourse, or the holding of an assembly are already “a most material step or measure towards disturbing the tranquillity of the State”.72 The second question proved to be more contentious, with the question of intention coming up in several of the cases in the 1790s, and being central to the case of Grant and others in 1848.73 The case of Robertson and Berry is a good example of how the question of intent arose in 1793. The prosecution was based on the fact that they had printed and published a seditious pamphlet, and it was argued on their behalf, first, that the pamphlet (or its author) had no seditious intent but was merely aimed at improving or reforming existing institutions.74 This was an argument that carried little weight. More importantly, it was suggested that as publishers only of a work in pamphlet form that had previously been published in a newspaper, they had no seditious intent and that it was necessary for the Crown to establish this. They went on to argue that a publisher (as distinct from an author) might publish a work without reading it carefully and so would lack the necessary malus animus. The court, though, found the indictment relevant, taking the view that printing and publishing a pamphlet provided prima facie evidence of the sedi-

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tious intent of the printer. It was moreover held to be expedient that printers should be answerable for what they print unless they could show that their intentions were different. The question of intention was not addressed at any length by any of the treatise writers before the case of Grant and others in 1848 where it was one of the central issues. The issue arose in the case because the jury returned a verdict finding Hamilton and Ranken guilty of sedition for using language calculated to excite popular disaffection, while deleting the word “intended” from the indictment.75 This led to an extensive legal debate on the legality of the verdict, specifically about whether it was necessary for the Crown to show that the language used by the accused was intended to incite popular disaffection or was merely calculated to do so – or indeed if there was any difference between the two.76 Undertaking a systematic review of the authorities, Lord Justice-Clerk Hope addressed the question of the kind of intention that was required, coming to the conclusion that what was needed was not a specific intention to produce particular results, but rather a general intention to utter or publish words that had a seditious quality. This, he argued, was no more than general dole or malice that was evidenced by the conduct itself. However, if intention or seditious purpose could be proven with reference to the precise effects that the words were calculated to produce, then this would amount to an aggravated form of sedition.77 This he contrasted with treason which required a direct object or intent to bring about insurrection. This was then illustrated with an example of an orator at a meeting, who, he argued, would be clearly guilty of sedition if, egged on by a boisterous crowd, he might want to surpass the previous speakers and is so familiar with violent and dangerous language that he does not think how this would affect others: “he is reckless as to what he says; thinks or cares little about it…; but all the while he may not desire or intend the precise effects which his words are calculated to produce”.78 In summary, what we see in these discussions of the legal definition of sedition is not merely a working out of an internal logic, but a process in which legal understandings of the crime are engaged in producing a definition in a dialogue with wider understandings of civil and constitutional order. The attempt to identify the distinct territory for the crime distinguishes sedition from treason. This marks out a new kind of space, where

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some forms of discussion and protest are legitimate, though initially the government sought to control these tightly. Where the law of treason struggled with the need to prove an overt act, this could be found more readily in sedition, where the act was the speech, writing or publication, which was easily proved. The focus on the tendency of the language to produce disruption accordingly seemed to offer greater potential for the regulation of political discourse. However, as the case law developed, the scope of the crime was narrowed to exclude forms of legitimate protest or attempts to secure reform through legitimate means, in part through the identification of a more clearly defined mental element. This process, though, was conducted in a way which sought to bring the trials of the 1790s and the writers who justified these crimes within a broader narrative of constitutional progress.

III It is not penal justice, still less penal cruelty, and least of all penal unfairness, that checks, or even averts, the movements of public opinion. These may embitter political opposition, and aggravate popular extravagance, but they rarely mitigate either.79

The understanding of the law of sedition in Scotland has been shaped by Henry Cockburn’s damning critique of the trials, published posthumously in 1888.80 The Examination is a remarkable work, recreating the milieu of the trials from his personal knowledge of many of the actors, from his Edinburgh childhood, to the later trials in which he was involved, first as counsel and then, later, as a judge. The story he tells is one in which the crime of sedition originated as a form of political oppression, enabled by a supine judiciary and a flawed criminal process. He continually compares the trials to the worst excesses of the political and religious repression of the late seventeenth century  – comparing Braxfield to Judge Jeffreys, the notorious hanging judge – and bemoaning the corrosive impact of party influence on the legal process. These flaws were gradually remedied by procedural reforms to the jury and by the limitation of punishment, such that by the 1840s sedition had a

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proper place in the ­criminal law. For Cockburn the conduct of sedition trials was a touchstone of the courts and their ability to remain above political conflict, a challenge that they signally failed in the 1790s, but which the later trials showed the courts could meet.81 In this final section I want to look more broadly at the history of crimes against the state, and how this wider category changed in this period, so as to draw some conclusions about the history of sedition. In order to address this, it is first necessary to look at the changing uses of the crime. It is now generally accepted that the law of sedition worked on the “principle of suspended terror”.82 The law was broad in its terms and capable of catching many within its net. Throughout the eighteenth century it was used in England against the publishers of radical texts, or against those who spoke at small political meetings, with prosecutions based on the evidence of spies and informers. Even if prosecutions were relatively rare, the consequences were serious, and the overall effect was a dampening of political debate and the creation of distrust. We have seen this in Scotland where, in many instances, the authorities were content to begin a prosecution in the knowledge that the accused person would flee and be outlawed and printing presses or journals shut down. Problems began to arise both for the effectiveness and legitimacy of the law when forms of political expression and participation began to change, particularly in the wake of the French revolution. Most notable here was the growth of ‘mass platform’ meetings, where the concern of the authorities became that of controlling public order at the meeting itself. As Lobban has shown, this was addressed in two ways.83 First, in the wake of the massacre at Peterloo, where the army had charged at and killed protestors, there was a move to using professional police. And in the criminal law there was a shift from using the law of sedition towards addressing the public order dimensions of the protest itself. Prosecuting for unlawful assembly brought the legal focus onto the lawfulness of the protest, rather than the motives or political objectives of the speakers. As Smith has argued, “this registered a shift from denial of the legal and political legitimacy of public censure of Establishment institutions and advocacy of political alternatives, to a position where the prosecutorial focus became challenging the means by which such political attacks might be lawfully manifested”.84 The crime of sedition was thus redefined to focus less on

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the broader political objectives of the speaker, than on the tendency of the language to produce public disorder; or, as suggested above, the concern shifted from the poison that seditious writings might introduce into the body politic, to the firebrands that a reckless orator might scatter. A further effect of this in the criminal law was to entrench the modern separation between crimes against the state and crimes against public order. Sedition remained as part of the criminal law, as a crime against the state, but the battle for civil liberties around forms of political expression and participation shifted to the area of public order law more broadly. Underlying this was a shift in the conception of the state and politics that lay at the heart of the law of sedition. For Hume, the aim of the law of sedition was to protect the settled social and political order. This view of sedition was based on an understanding of the state as a kind of personal bond of allegiance between sovereign and subject. This was not based on an understanding of the subject possessing any kind of agency; they were rather supposed to trust in the sovereign and their representatives in government. This is clear in his sense of the people, whom Hume persistently referred to as the “multitude”. For Hume the multitude was an undifferentiated mass of people, which represented a potential threat, but lacked agency. Something was done to them by seditious language, which stirred them up into unrest. Responsibility did not lie with the people to resist this, but rather with political actors, who were assumed to come from a different class, to moderate their language or to act responsibly at times of unrest so as not to disturb the “settled order of things”.85 The bond was thus between political actors  – the property-owning classes – and the sovereign, and they were expected to exercise their political power in a responsible way to as not to stir up the multitude.86 In the conception of sedition which replaced this, however, participation and the scope for criticism were broader, and in place of limiting political speech, the law sought to control forms of speech and modes of participation. This, it should be clear, was still not an idea of a democratic state constituted by the will of the people, but a recognition of a privilege of the subject to engage in political criticism.87 However, the privilege was exercised subject to certain constraints. The focus was now on public order, and the immediate danger to public order that was posed by unrestrained political criticism directed at political institutions and bringing

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them into disrespect. This understanding thus placed a respect for legally constituted authority at the heart of political order. Although, in the words of Henry Cockburn, sedition is a crime “of a somewhat orderly age”, this is probably true in a different sense from that which he intended.88 He connected the idea of sedition to the emergence of political liberty, and the order to which he appealed was one in which subjects exercised that privilege in a responsible way. He thus argued that there was always a “debateable space” between subject and state which was the natural field of sedition – the place of excessive or illegitimate criticism – and it was the role of law to tell the people what they may or may not do.89 The recognition of sedition was thus a sign of political maturity provided that the courts were able to distinguish between the proper and the improper exercise of that liberty. However, the history of the crime of sedition in Scotland between 1793 and 1849 suggests that the political maturity he thought the law recognised was slipping away – as was the crime of sedition – even as he wrote. Indeed, the paradox of the making of the crime of sedition in Scots law is that its ‘maturity’ coincided with the increasing irrelevance of the crime.

Notes 1. State Trials, XXIII: 1–6. Cockburn, Examination, I: introduction. 2. John McLean was famously tried for sedition in 1918; G.H. Gordon, The Criminal Law of Scotland, 2nd edn (Edinburgh, 1980), 909 notes that there was also an unreported prosecution for sedition in 1921 (Guy Aldred). See http://obliqueintent.blogspot.co.uk/2011/10/on-guyaldred.html. The Criminal Justice and Licensing (S.) Act 2010 s.51, abolished the crimes of sedition and leasing-making. 3. See generally Michael Lobban, “From Seditious Libel to Unlawful Assembly: Peterloo and the Changing Face of Political Crime c.1770– 1820”, Oxford Journal of Legal Studies, 10 (1990), 307–52; M. Head, Crimes Against the State (Aldershot, 2010); Keith Smith, “Securing the State, the Institutions of Government and Maintaining Public Order”, in W. Cornish et al. (eds), The Oxford History of the Laws of England. Vol. XIII, 1820–1914, (Oxford, 2010), 334–51.

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4. All the Scottish sedition trials for this period can be found in State Trials, XXIII. 5. State Trials, XXIII: 1–6. See also, for example, Elder & Stewart (10 Jan. 1793), State Trials, XXIII: 25–34. Those who did not appear for trial were outlawed, but it appears that only limited efforts were made to bring them to trial. This is consistent with the practice in England described in C.  Emsley, “An aspect of Pitt’s ‘Terror’: Prosecutions for Sedition during the 1790s”, Social History 6 (1981), 155–84. 6. See Morton, Anderson & Craig (8, 9 & 11 Jan. 1793), State Trials, XXIII: 7–26, who were sentenced to nine months imprisonment for toasting the downfall of the monarch and inciting unrest amongst soldiers in Edinburgh Castle; Callender, Berry & Robertson (Jan.–Mar. 1793), State Trials, XXIII: 79–116, sentenced to 3 and 6 months imprisonment for printing, publishing and selling seditious literature. 7. State Trials, XXIII: 117. 8. John Allen, Inquiry into the Rise and Growth of the Royal Prerogative in England (London, 1849), xiv–xv claims that the jury were “thunderstruck” by the severity of the sentence, with Muir’s guilt so trivial as to merit only a few weeks imprisonment. See Michael T. Davis, “Prosecution and Radical Discourse during the 1790s: The case of the Scottish Sedition Trials”, International Journal of the Sociology of Law 33 (2005), 148–58. See also W. D. L., “A Trial for Sedition”, Journal of Jurisprudence 35 (1891), 638. 9. See also Alexander Scott (Feb. 1794), State Trials, XXIII: 383–92 (outlawed for non-appearance). 10. State Trials, XXIII: 545 (Robert Dundas, Lord Advocate). See Henry W. Meikle, Scotland and the French Revolution (Glasgow, 1912), 143–4. 11. See John Barrell, Imagining the King’s Death. Figurative Treason, Fantasies of Regicide, 1793–6 (Oxford, 2000). 12. State Trials, XXV: 1. See Barrell, Imagining, ch. 9. 13. See generally Emsley, “Trials for Sedition in the 1790s”. 14. E.P. Thompson, The Making of the English Working Class (Harmondsworth, 1968), 13. See generally Meikle, Scotland and the French Revolution; Nigel Leask, “Thomas Muir and The Telegraph: Radical Cosmopolitanism in 1790s Scotland”, History Workshop Journal, 63 (2007), 48. 15. 32 Geo.III c.60 which placed the decision of whether or not something was seditious in the hands of the jury. For discussion see Michael Lobban, “Treason, Sedition and the Radical Movement in the Age of the French Revolution”, Liverpool Law Review 22 (2000), 205–34.

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16. It was notable that the Treasonable and Seditious Practices Act 1795 (36 Geo.III c.7) increased the maximum sentence for sedition in England to seven years transportation. See also Seditious Meetings Act 1795 (36 Geo.III c.8). 17. C.  Kennedy, “Declaring Crimes”, Oxford Journal of Legal Studies, 37 (2017), 741–69; L.  Farmer, Criminal Law, Tradition and Legal Order. Crime and the ‘Genius’ of Scots Law, 1747 to the Present (Cambridge, 1997), ch. 2. On the controversy over the sentences see Cockburn, Examination, II: 133–49 and infra. 18. See, for example, State Trials, XXIII: 183 declaring that he was “tainted from head to foot and is as unworthy to live under the protection of law as the meanest felon”. 19. Cockburn, Examination, vol. 1, 87. For a more measured view see Michael Fry, “MacQueen Robert, Lord Braxfield 1722–1799”, ODNB. Note that trial of Watt and Downie for high treason in 1794 was held before a special commission of oyer and terminer, because of reservations about Braxfield’s conduct. See Meikle, French Revolution, 151. 20. See David Hume, Commentaries on the Law of Scotland respecting Crimes, 4th edn, 2 vols (Edinburgh, 1844), II: ch. 11. The procedure varied slightly for Edinburgh where forty-five names would be submitted from each of the Lothians, and the clerk of court would reduce these to forty-­ five who would be required to appear. See Cockburn, Examination, I: 80–3. On the situation in England see Smith, Securing the State and Jeremy Bentham, The Elements of the Art of Packing, as Applied to Special Juries (London, 1821). 21. State Trials, XXIII: 133–4. 22. See generally Meikle, French Revolution, 186–93, though he is sceptical about the spread or the influence of the United Scotsmen. 23. State Trials, XXVI: 1135–64. Unlawful administering of oaths had been criminalised by 37 Geo.III c.123 (1797), and was punishable by up to seven years’ transportation. An Act of 1799 (39 Geo.III c.79) outlawed these societies by name as unlawful combinations against the government. 24. State Trials, XXVI: 1179–90. Black was outlawed for non-appearance. For Maxwell see Cockburn, Examination, II: 165. 25. Cockburn, Examination, II: 168. 26. See Gordon Pentland, Spirit of the Union: Popular Politics in Scotland, 1815–1820 (London, 2011), 39–48.

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27. State Trials, XXXIII: 1–144. 28. State Trials, XXXIII: 633–80; Cockburn, Examination, II: 204. 29. The trial was not reported, so I rely here on the account in Cockburn, Examination, II: 207. 30. 60 Geo.III & 1 Wm.IV c.8. Cockburn states that it was this trial which prompted him to undertake his work on sedition. See Examination, II: 219. 31. 6 Geo.IV c.47 i.e. fine or imprisonment only on first conviction. The power of banishing from Scotland was finally removed by 7 Wm.IV & 1 Vict. c.5 (1837). See Archibald Alison, Principles of the Criminal Law of Scotland (Edinburgh, 1832), 588–9. 32. The cases are reported in Cockburn, Examination, II: 226–44. 33. W. Hamish Fraser, Chartism in Scotland (Pontypool, 2010), ch. 9. 34. There were five deaths and sixty-four arrests. The ringleaders were tried in May 1848, presumably for mobbing and rioting, and received harsh sentences of between ten and eighteen years’ transportation, see Fraser, Chartism, 155. 35. Fraser, Chartism, 165. 36. Emsley, Trials for Sedition in the 1790s, 175. 37. See also Atle L. Wold, “Was there a Law of Sedition in Scotland? Baron David Hume’s Analysis of the Scottish Sedition Trials of 1794”, in Gordon Pentland & Michael T. Davis (eds), Liberty, Property and Popular Politics: England and Scotland, 1688–1815. Essays in Honour of H.T. Dickinson (Edinburgh, 2016). 38. David Hume, Commentaries on the Law of Scotland respecting Crimes, 1st edn, 2 vols (Edinburgh, 1797–1800). 39. On Hume see L.  Farmer, “Scots Criminal Law”, in M.  Mulhern, A Compendium of Scottish Ethnology (East Linton, 2012). 40. Henry Cockburn, Untitled review of Supplement to Hume’s Commentaries by B. J. Bell 1844, Edinburgh Review, 168 (1846), 196–223. See also James Crawfurd, “Scottish Criminal Law. Review of Bell’s Supplement to Hume’s Commentaries”, North British Review, 4 (1846), 313. 41. On Hume and national identity see Farmer, Criminal Law, Tradition and Legal Order, ch. 2. 42. George Mackenzie, On the Laws and Customs of Scotland concerning matters criminal, 2nd edn (Edinburgh, 1696), 34. Mackenzie drew heavily on Roman law, in which seditio referred to a kind of insurrection.

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43. Hume, Commentaries, 4th edn, vol. 1, 553. It is interesting to note that there is no substantial change in the text between the 1st and 4th editions, though Hume revised other parts of the text. 44. Ibid. 45. Hume, Commentaries, 4th edn, I: 554. 46. John Burnett, A Treatise on Various Branches of the Criminal Law of Scotland (Edinburgh, 1811), 239. 47. Ibid. 48. Alison, Principles, 580–1. He also follows Hobbes in stressing its potential to lead to civil war. On Alison generally see Michael Michie, An Enlightenment Tory in Victorian Scotland (Edinburgh, 1997). 49. See Principles, 583–8 where he defends the imposition of severe penalties against Muir, and the general principle that prosecuting sedition at common law was the correct approach in allowing punishment to be adjusted to the circumstances. 50. Principles, 583. 51. See for example Burnett, Criminal Law, 242–3 discussing the metaphor of the apothecary selling poison. 52. This was believed to have important procedural consequences, discussed in the case of Skirving. Cockburn was of the view that if the facts alleged revealed treason then this had to be charged, Examination, vol. 1, 226– 33, and that this therefore should have been the charge in the British Convention cases. This was also the view taken by John Scott (later Lord Eldon) for the Crown in England, leading him to charge treason against Hardy, Tooke, Thelwall and others, where seditious libel might have been easier to establish. See F. K. Prochaska, “English State Trials in the 1790s: A Case Study”, Journal of British Studies, 13 (1973), 66–7. 53. Hume, Commentaries, 4th edn, I: 553. 54. Burnett, Criminal Law, 249–50. See also Hume, Commentaries, 4th edn, I: 559. 55. Hume, Commentaries, 4th edn, I: 558. 56. Justiciary Cases (1848) J. Shaw 17. 57. At p.  80. See also pp.  85–7 where he is explicitly critical of Hume’s definition. 58. See Lobban, “Seditious Libel”, 349. 59. In Alison’s words, it would depend on the mode of bringing forward the measure, the means proposed to be adopted, and the temper of the times: Principles, 588. See English cases on audience: Vincent (1839) 9 C. & P. 91, 110; Collins (1839) 9 Car. & P. 456, 460.

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60. John Erskine, An Institute of the Law of Scotland (Edinburgh, 1773) Title IV of Crimes para.29. 61. Alison, Principles, 581–2. 62. Ibid. 63. Hume, Commentaries, 4th edn, I: 559. 64. Burnett, Criminal Law, 240 followed Hume’s interpretation. 65. Discussed in Hume, Commentaries, 4th edn, I: 555. 66. For example Mealmaker (1798) and Black & Paterson (1798), State Trials, XXVI: 1135–64, 1179–90. 67. State Trials, XXIII: 777–802. Discussed in Burnett, Criminal Law, 249–55. 68. This point also relied on the somewhat tenuous argument that transportation was a punishment at common law, analogous to banishment. 69. Hume, Commentaries, 4th edn, I: 554. 70. See also Alison, Principles, 583. 71. Hume, Commentaries, 4th edn, I: 558. 72. Ibid. 73. Justiciary Cases (1848) J Shaw 51. 74. State Trials, XXIII: 103. Their argument was based on the opinion of Lord Mansfield in Woodfall, 1770 Barrow, vol. 5, 2661. See also trial of Thomas Muir (1793), State Trials, XXIII: 207–14, in which he tried to make the same argument about Paine’s Rights of Man. 75. (1848) J Shaw 51 at p. 61. 76. Ibid. at pp. 62ff. 77. This argument thereby obviating the need for a distinction between real and verbal sedition. Compare the English case law on the same point from R v Burdett (1820) 106 ER 873; 1 St Tr (New Series) 1 (objective fault) to Burns (1886) 16 Cox 355 requiring an intention to cause disorder. 78. p. 81. Cf. the dissenting opinion of Lord Cockburn pp. 111–21. 79. Cockburn, Examination, II: 172. 80. Cockburn died in 1853, but did not want to publish the Examination in his lifetime for fear of offending the surviving relatives of some of the judges who he criticised. 81. Examination, I: 73. 82. Leon Radzinowicz, History of the English Criminal Law and Its Administration, 5 vols (London, 1948–1986), IV: 5. Michael T. Davis, “‘Good for the Public Example’: Daniel Isaac Eaton, Prosecution, Punishment and Recognition, 1793–1812”, in Radicalism and Revolution in Great Britain, 1775–1848, ed. Michael T. Davis (New York, 1999).

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83. Lobban, “Seditious Libel”. 84. Smith, “Securing the State”, 341. 85. It is interesting to note that Burnett, Criminal Law, 261 suggests that resistance, including inflammatory libels or secret societies, is permissible but only in times of “real oppression” – though he does not define what this is. 86. See, for example, the notorious summing up by Lord Braxfield in the case of Thomas Muir, State Trials, XXIII: 231. 87. See for example Cockburn, Examination, I: 6. 88. Cockburn, Examination, I: 1. 89. Ibid., 7–8.

Bibliography 32 Geo.III c.60, Libel Act, 1792. 36 Geo.III c.7, Treasonable and Seditious Practices Act, 1795. 36 Geo.III c.8, Seditious Meetings Act, 1795. 37 Geo.III c.123, Unlawful Oaths Act, 1797 39 Geo.III c. 79, Unlawful Societies Act, 1799 60 Geo.III and 1 Geo.IV c.8, Criminal Libel Act, 1819. 6 Geo.IV c.47, Leasing-making (Scotland) Act, 1825. 7 Wm.IV & 1Vict. c.5, An Act for amending an Act of his late Majesty, for restricting the punishment of leasing-making, sedition, and blasphemy, in Scotland, 1837. Criminal Justice and Licensing (S.) Act 2010 (asp.13). Archibald Alison, Principles of the Criminal Law of Scotland (Edinburgh, 1832). John Allen, Inquiry into the Rise and Growth of the Royal Prerogative in England (London, 1849). Jeremy Bentham, The Elements of the Art of Packing, as Applied to Special Juries (London, 1821). John Burnett, A Treatise on Various Branches of the Criminal Law of Scotland (Edinburgh, 1811). Henry Cockburn, Untitled review of Supplement to Hume’s Commentaries by B. J. Bell 1844, Edinburgh Review, 168 (1846), 196–223. Henry Cockburn, An Examination of the Trials for Sedition which have hitherto occurred in Scotland, 2 vols (Edinburgh, 1888). James Crawfurd, “Scottish Criminal Law. Review of Bell’s Supplement to Hume’s Commentaries”, North British Review, 4 (1846), 313–46.

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John Erskine, An Institute of the Law of Scotland (Edinburgh, 1773). Thomas Jones Howell (ed.), A Complete Collection of State Trials and Proceedings for High Treason and other Crimes and Misdemeanours, 33 vols (London, 1809–1828). David Hume, Commentaries on the Law of Scotland respecting Crimes, 1st edn, 2 vols (Edinburgh, 1797–1800). David Hume, Commentaries on the Law of Scotland respecting Crimes, 4th edn, 2 vols (Edinburgh, 1844). W.D.L., “A Trial for Sedition”, Journal of Jurisprudence, 35 (1891), 638–47. George Mackenzie, On the Laws and Customs of Scotland concerning matters criminal, 2nd edn (Edinburgh, 1696). John Barrell, Imagining the King’s Death. Figurative Treason, Fantasies of Regicide, 1793–6 (Oxford, 2000). Michael T.  Davis, “‘Good for the Public Example’: Daniel Isaac Eaton, Prosecution, Punishment and Recognition, 1793–1812”, in Radicalism and Revolution in Great Britain, 1775–1848, ed. Michael T.  Davis (New York, 1999), 110–32. Michael T. Davis, “Prosecution and Radical Discourse during the 1790s: The case of the Scottish Sedition Trials”, International Journal of the Sociology of Law, 33 (2005), 148–58. Clive Emsley, “An aspect of Pitt’s ‘Terror’: Prosecutions for Sedition during the 1790s”, Social History, 6 (1981), 155–84. Lindsay Farmer, Criminal Law, Tradition and Legal Order. Crime and the ‘Genius’ of Scots Law, 1747 to the Present (Cambridge, 1997). L.  Farmer, “Scots Criminal Law”, in M.  Mulhern, A Compendium of Scottish Ethnology (East Linton, 2012). W. Hamish Fraser, Chartism in Scotland (Pontypool, 2010). G.H. Gordon, The Criminal Law of Scotland, 2nd edn (Edinburgh, 1980). M. Head, Crimes Against the State (Aldershot, 2010). C.  Kennedy, “Declaring Crimes”, Oxford Journal of Legal Studies, 37 (2017), 741–69. Nigel Leask, “Thomas Muir and The Telegraph: Radical Cosmopolitanism in 1790s Scotland”, History Workshop Journal, 63 (2007), 48–69. Michael Lobban, “From Seditious Libel to Unlawful Assembly: Peterloo and the Changing Face of Political Crime c.1770–1820”, Oxford Journal of Legal Studies, 10 (1990), 307–52. Michael Lobban, “Treason, Sedition and the Radical Movement in the Age of the French Revolution”, Liverpool Law Review, 22 (2000), 205–34. Henry W. Meikle, Scotland and the French Revolution (Glasgow, 1912).

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Michael Michie, An Enlightenment Tory in Victorian Scotland (Edinburgh, 1997). Oxford Dictionary of National Biography (Oxford, 2004–). Gordon Pentland, Spirit of the Union: Popular Politics in Scotland, 1815–1820 (London, 2011). F. K. Prochaska, “English State Trials in the 1790s: A Case Study”, Journal of British Studies, 13 (1973), 63–82. Leon Radzinowicz, History of the English Criminal Law and Its Administration, 5 vols (London, 1948–1986). K.J.M.  Smith, “Securing the State, the Institutions of Government and Maintaining Public Order”, in W. Cornish et al. (eds), The Oxford History of the Laws of England. Vol. XIII, 1820–1914 (Oxford, 2010), 334–51. E.P.  Thompson, The Making of the English Working Class (Harmondsworth, 1968). Atle L. Wold, “Was there a Law of Sedition in Scotland? Baron David Hume’s Analysis of the Scottish Sedition Trials of 1794”, in Gordon Pentland & Michael T.  Davis (eds), Liberty, Property and Popular Politics: England and Scotland, 1688–1815. Essays in Honour of H.T. Dickinson (Edinburgh, 2016). http://obliqueintent.blogspot.co.uk/2011/10/on-guy-aldred.html.

3 The Newspaper Press, Sedition and the High Court of Justiciary in Late Eighteenth-Century Edinburgh David G. Barrie and Joanne McEwan

I Few events in Scottish criminal justice history are as infamous as the sedition trials of the early 1790s. The trial proceedings, convictions and punishments of the five “Scottish Political Martyrs” fuelled allegations of miscarriages of justice and attracted widespread legal, political and media condemnation.1 The use of the legal apparatus to suppress political dissent, the perceived bias with which the trials were conducted, and the Research for this chapter was supported by a Discovery Grant from the Australian Research Council (DP130104804) and funding from the ARC Centre of Excellence for the History of Emotions (CE110001011). David G. Barrie’s ORCID is 0000-0001-5186-8895; Joanne McEwan’s ORCID is 0000-0003-1214-8179. Thanks to Iain Hutchison for his research assistance in Edinburgh.

D. G. Barrie (*) University of Western Australia, Crawley, Australia e-mail: [email protected] J. McEwan School of Humanities, The University of Western Australia, Perth, WA, Australia e-mail: [email protected] © The Author(s) 2019 M. T. Davis et al. (eds.), Political Trials in an Age of Revolutions, Palgrave Histories of Policing, Punishment and Justice, https://doi.org/10.1007/978-3-319-98959-4_3

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highly publicised nature of the trials made folk heroes of Thomas Muir, Thomas Fyshe Palmer, William Skirving, Maurice Margarot and Joseph Gerrald.2 The trials followed more low-profile  – though nonetheless extremely important  – sedition trials involving newspaper proprietors and printers that reflected the Scottish High Court’s desire to protect its own image. This chapter explores how the sedition trials were represented in the Scottish newspaper press and assesses what this suggests about the latter’s relationship with the Scottish criminal justice system. Michael Davis has argued that the trials became “a crucial forum for radical expression, contest, negotiation and self-assertion” in the face of government repression.3 Newspaper accounts of these cases were particularly significant, not only for conveying details of the events and their protagonists to a wider audience, but for providing a space in which support or condemnation could be articulated. As David Lemmings has argued, the growth of the press in the late eighteenth century “fashioned a critical legal– political role through its reportage and associated commentary on trials.”4 This was an era during which the press emerged as a dominant source for shaping public perceptions of criminal justice,5 with newspaper trial narratives emerging as a central means through which the spectacle of justice was represented.6 Yet, scholarship on the “Scottish Martyrs” has largely focused on how the trials were represented in the English rather than Scottish press, or on Scottish press representations of radicalism more broadly.7 Bob Harris, for instance, has shown that the trials occurred at a time when the press in Scotland had become increasingly political and loyal to the state but a close reading of how the Scottish media reported the trials is still needed.8 The accuracy and impartiality of the press’s coverage of sedition trials was bitterly contested. The Scottish press gave considerably more coverage to these trials than others but their reportage was highly selective. Typically, the reports numbered a few pages at most. By contrast, published pamphlets claiming to provide full accounts of court proceedings numbered in some cases over 200 pages. Newspapers, therefore, did not provide an unbiased account of what went on in court but rather, through their selection of content, a discursive commentary on judicial proceedings. Reports were constructed by courtroom notetakers and supplemented by judicial records. What editors chose to include and exclude reflected the political persuasions of the newspapers and conveyed messages about how judicial proceedings had been conducted, even if we

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cannot be certain how readers interpreted them. By appealing to loyalist sentiment, stressing the dangerous and unpatriotic nature of the offences committed or attempting to evoke sympathy for the accused, competing press reports constituted and propagated what Amy Milka and David Lemmings have described as “emotional grand narratives” that legitimised or challenged the majesty of justice.9 According to Anne-Marie Kilday, newspapers in eighteenth-century Scotland “were very much the mouthpiece of the Scottish courts” and merely reflected the voice of judicial and religious authority.10 Unlike the early eighteenth-century cases of violent crime on which Kilday bases this conclusion, our essay argues that press reports on the Scottish sedition trials were multi-variant and conditioned by a variety of political, social and cultural factors. Popular mainstream newspapers  – including the Caledonian Mercury, the Edinburgh Courant, the Edinburgh Advertiser and the Glasgow Courier – utilised various rhetorical strategies to present the conduct of the Scottish High Court in as positive a light as possible and to defend Scots law in the face of English media criticism.11 While judicial discourse could provide a forum for political protest, its representation in the Scottish media was typically linked to anti-reform speeches advanced by Scotland’s legal elites. That being said, even loyalist newspapers such as the Caledonian Mercury – out of what is more likely to be have been concern over the perceived abuse of legal rights than support for political reform – were occasionally willing to advance implicit condemnation. The most trenchant criticism, however, came from the radical newspaper, the Edinburgh Gazetteer, which provided what was in all likelihood the Scottish press’s first sustained discursive condemnation of the Scottish criminal justice system despite ongoing judicial repression. Press coverage of the sedition trials was in many ways exceptional rather than typical – a fact that must be borne in mind when assessing what it reveals about the representation of the Scottish High Court. Reports on criminal trials were usually short and clinical12; by contrast, the sedition trials drew extensive coverage in conservative, liberal and radical papers alike. Lucyle Werkmeister has argued that the prosecution of the Scottish Martyrs “was the principal story in every newspaper, regardless of its politics.”13 Political trials in England were often reported widely as causes célèbre, but this had been less common in Scotland, where

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they were rarer and typically more low profile than in England. The fact that the Scottish sedition trials were so widely reported, and in more depth than other trial reports in Scotland, provides insight into media coverage of the Scottish criminal justice system not found elsewhere. Some readers’ understanding of the Scottish legal system and criminal courts may well have been informed by reporting on these trials – not least given that the London Corresponding Society published detailed accounts of them not long after they had taken place.14 The odd pamphlet and book on notable criminal trials in Scotland had been published before but accounts were few and rarely provided a variety of perspectives. The extraordinary press exposure the sedition trials received therefore put the Scottish criminal justice system on trial as well as the accused. Moreover, these trial accounts assumed particular significance for their ability to express political dissent. By reproducing radical sentiments that were voiced during courtroom exchanges, newspapers could “publicise and vindicate the cause they [the trials] were intended to suppress” in ways that other forms of print culture could not.15 This made trial coverage significant as both “a site of ideological and political struggle” and as a discursive critical resource on Scottish criminal justice history.16

II The expansion of the press in Scotland occurred much later than in England. Only ten Scottish newspapers were in circulation on the eve of the French Revolution.17 Most were published in Edinburgh and were, in effect, national papers.18 The Edinburgh Gazetteer and the short-lived Caledonian Chronicle were the only radical newspapers. The Glasgow Advertiser, as Harris points out, sought to maintain a posture of strict independence, and the Edinburgh Advertiser claimed to follow what it perceived was a middle course between “democratical infatuation” and “ministerial influence.”19 The other newspapers were either loyalist, or became loyalist, as enthusiasm for the French Revolution waned following the execution of Louis XVI and the declaration of the French republic.20 The French Revolution stimulated a wider social readership that

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included a sizeable section of the artisan class, but the overwhelming majority of readers continued to be middle and upper class.21 Political leanings were exposed by the sedition trial in early 1793 of John Morton, an apprentice printer, and James Anderson and Malcolm Craig, both of whom were journeyman printers. According to the charges laid out in the libel, the young printers had been drinking in Edinburgh Castle and had raised seditious toasts and tried to entice soldiers away from their duties. Their intention, it was alleged, was to provoke a spirit of disloyalty within the army and subvert order and government. The defence argued that the men had gone to the Castle to meet a girl, then  became drunk and engaged in “convivial discourse without any wicked or seditious design.” The jury found the libel unanimously proven, and the accused were imprisoned for nine months and ordered to find caution for good behaviour for three years. The Caledonian Mercury devoted 5,129 words to the trial – one of the longest trial reports hitherto recorded.22 It was the first time in living memory that the charge of sedition had been tried in the High Court, which added to public interest.23 The trial was likely perceived in judicial circles as necessary because it involved printers  – who had the capacity to produce and disseminate seditious literature  – and soldiers. The prospect of collusion between printers and the military was frightening for those in positions of power, as the narrow band of Scottish elites who governed the country relied on military force to maintain both social and political order.24 In late 1792, the government provided the Mercury’s proprietor with financial assistance to the tune of 400 pounds, which is indicative of the government’s desire to control the content of press coverage.25 How far the government subsidy shaped trial coverage is impossible to say, but the newspaper’s editor, Robert Allen – a renowned loyalist – did not require a financial incentive to condemn political radicalism. Over two-thirds of the paper’s trial coverage concerning Anderson, Morton and Craig was devoted to reporting on the relevance of the charge, which helped to frame the seriousness of the indictment and appropriateness of the judicial response.26 The attention devoted to these initial arguments reflects the uncertainty which surrounded the law of sedition. As Atle Wold points out, what the charge of sedition meant “in a situation where there were no actual statutes to rely on” posed problems for the court.27 A

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charge of sedition relied on the intent of the allegedly seditious act to subvert authority, not on the act itself or evidence that it had done so.28 The Mercury was not shy about conveying the opinions of Scotland’s legal elites, which included the Lord Advocate, Robert Dundas, who was chief public prosecutor and legal officer of the government in Scotland. Indeed, the Lord Advocate’s close ties with the lord justices of Scotland – themselves appointed by government representatives – had long raised questions as to the separation of judicial and executive power in Scotland. In the Mercury’s report, prosecution testimony outweighed defence ­testimony three to one, which framed the evidence in the former’s favour. While it was unusual for drunken banter such as that expressed by the printers to attract such serious charges, the newspaper assured its readers that the prosecution was warranted: it quoted at length the Lord Advocate’s voice concerning the need for the criminal justice system to respond to heightened political tension when “the country was in a very alarming situation.” This was a view shared by Lord Justice Henderland, who remarked of the printers’ toasts at the Castle: “What could be more criminal?” A similar style of reporting appeared in other mainstream newspapers, with the Edinburgh Evening Courant recording the lord justices’ anti-radical comments.29 In publishing the voices of the Lord Advocate and the lord justices, these newspapers served an important judicial function: they informed readers know about the changing direction of judicial practice. From then on, utterances or actions challenging the political order or governance structures would be considered criminal and subject to prosecution. Indeed, the unusually large press attention devoted to the views of Scotland’s judicial elites regarding sedition suggests that when it came to disseminating information about their concerns there might have been a close working dialogue between the Mercury and the court. Although it went to great lengths to establish the danger presented by sedition, the Mercury’s coverage represented the accused in a sympathetic manner rarely afforded to those on similar charges. The printers were depicted as men of good character, not members of reform societies, who had no criminal history. The paper made a point of noting the defence counsel’s claim that that “the evidence also went strongly to prove that the panels had no bad intention when they went to the Castle … [and that] … the evidence adduced on the part of the prosecutor was in several

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respects defective.”30 The contrition and deference shown by the accused was instrumental in shaping this representation. The Mercury even published a letter from the accused expressing their remorse and regret and their respect for the Lord Justice Clerk, the law and the constitution. The letter had been read in court by the clerk and was almost certainly passed to the newspapers. It read like a last dying speech and served a similar function  – garnishing public sympathy for the printers through their contrition, whilst buttressing the majesty of the courts and the fairness of the law. Deference to the court, and a strong rebuttal of political radicalism, won the accused a more positive portrayal in the press than otherwise would have been the case, but the underlying message conveyed was that even loose seditious expressions expressed “in the warmth of conviviality” would be punished. The reporting of the Morton, Anderson and Craig trial in the Edinburgh Gazetteer, a radical newspaper founded in 1792, differed markedly.31 The Gazetteer’s report incurred the wrath of the High Court and exposed the somewhat loose way trial reports were constructed. On 29 January 1793, William Johnston, printer and proprietor of the Edinburgh Gazetteer, was called before the High Court at the instance of the public prosecutor to explain his newspaper’s account of the trial.32 Such action was not common – only two recorded instances of ‘injurious reporting’ had attracted sanction from the High Court in the preceding three decades – and was indicative of the tense political climate and a growing desire to control newspaper content and the behaviour of newspaper publishers.33 Indeed, not long after the High Court would go on to summon John Mennons, printer of the Glasgow Advertiser, for placing a “seditious” advertisement in his newspaper,34 and convict the Edinburgh Chronicle’s printer and publisher (James Robertson and Walter Berry) for publishing a radical pamphlet.35 The Gazetteer’s report of the Morton, Anderson and Craig trial, the Lord Advocate contended: was not only partial, untrue, and unjust, but by imputing partiality and injustice to the court, in the conduct of that trial, as well as from other circumstances appearing in the paper itself … was clearly and evidently calculated to lessen the regard which the people of this country owe to the supreme criminal court; and appeared to him in its whole tendency to afford a precedent highly dangerous to the constitution of this country.36

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The Lord Advocate’s comment highlighted a pre-occupation in judicial circles with the public image of the court, its perceived importance to the construction of community attitudes towards the justice system and, significantly, to the central role newspaper trial reports played in this process. Johnston was accused of publishing an erroneous account of the trial that was not only “partial, untrue, and unjust,” but “by imputing partiality and injustice” was designed to lessen the regard in which people held the court.37 His report included an unflattering speech from the presiding Lord Justice Clerk, Robert McQueen (Lord Braxfield).38 In biting satire, the Gazetteer quoted McQueen, a staunch opponent of political reform, claiming that with ability low-born men could rise to the highest offices of the land. In noticeable contrast to the dignified tone traditionally reserved for judicial reporting, McQueen was quoted using his broad, Lanarkshire brogue rather than the King’s English.39 It was a ploy designed to mock him, with the voices of other courtroom participants being published accent free. Sarcastically dubbed “a most eloquent speech” in the report, Braxfield was presented in a light that stripped him of the majesty and social standing expected of someone in his position. That he was quoted in a common Scots dialect opposing the extension of the franchise to the common man added to the satire. It would not be the only instance in which discursive markers of status and authoritative knowledge would influence how justice was portrayed. On attending court, Johnston submitted a letter of “apology” expressing his regret at having displeased the court.40 While displaying deference to judicial authority,41 though, Johnston put the blame for the offending report squarely at the feet of his editor, Simon Drummond. He contended that he was partly blind at the time of the incident and unaware of its contents.42 It is clear that Johnston was concerned not just about the legal implications of the case, but also how it might impact on his reputation. He ended his “apology” by begging their lordships to enter it in the court minute book, which suggests he was keen for it to be published – or at least paraphrased – in the press.43 Having an official written record of courtroom discourse made it more likely to be picked up by court reporters. Both of his intentions were realised.44 The construction of his newspaper’s trial report was, though, more complex than Johnston acknowledged. According to Drummond, a

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manuscript including the offending passages had either been dropped into a door box at the publishing house or brought into the office itself, both of which he claimed were common practices for the submission of trial reports.45 Drummond could not say for certain how the manuscript had been acquired or who wrote it.46 Drummond claimed he did not recall reading the offending passages before the manuscript was sent for publication. After hearing the declarations of Johnston and Drummond, the court decided to charge them both. Both were found guilty, the lord justices determining that the trial report was “a false and slanderous representation of the proceedings … calculated to create groundless jealousies and doubts of the due administration of justice by the supreme criminal court.”47 They were each imprisoned for three months and required to find caution for good behaviour for three years. The Caledonian Mercury published a long history of the trial proceedings involving Johnston and Drummond stretching over two columns – significantly longer than it had devoted to the sedition trial involving James Robertson and Walter Berry in its two previous editions.48 The case provided an opportunity to shame and ridicule the men behind a rival, radical newspaper. Unusually for the mainstream press, the Mercury gave a lot of coverage to the voices of the accused. But, crucially, it did so in a way that questioned their character and trustworthiness. Drummond, it was noted, changed his testimony in order to incriminate Johnston after perceiving that he, too, was about to be charged.49 Claim and counter-­ claim from Johnston and Drummond were reported by the Mercury in detail to create the impression neither was above lying. Johnston’s claim he was “a gentleman of honour” was lambasted in the Glasgow Courier, which reported a reply from Mr. Drummond’s defence counsel “replete with the most cutting irony we have ever witnessed.”50 Both Johnston and Drummond were made to appear unmanly for attempting to blame the other. Indeed, although the sentences might have appeared harsh and disproportionate to the charge, the manner in which both men were depicted is unlikely to have won them much sympathy. Almost a quarter of a century later Johnston was quoted in Howell’s Complete Collection of State Trials proclaiming his innocence and lamenting the “patrimonial loss” he had suffered from the case.51

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Morton, Anderson and Craig were willing to admit fault in describing their drunken utterances as foolish “folly,” which afforded them more honour in the eyes of the Mercury. By contrast, Johnston and Drummond fell short of the standards expected of men of their standing.52 The charges against the three printers were more serious, yet they were portrayed far more sympathetically than Johnston and Drummond, whose conduct was deemed to constitute a malicious, personal attack on the Lord Justice and the judicial system. The press, in other words, was willing to impose its own moral standards and sanctions even as it more broadly supported the work of the court. Honour and character in these trials might not have been decisive in determining the boundaries of criminality and judicial censure, but they were critical in determining the boundaries of media censure.

III Following his conviction, Johnston relinquished control of the Gazetteer.53 Alexander Scott and George Ross, both known supporters of political reform, assumed responsibility for the newspaper’s production.54 They continued to use the trials of radicals and correspondence about them to promote political sentiments  – safe in the knowledge that “accurate” reproduction of the radical voice in courtroom discourse offered a subversive way to disseminate reformist ideas. The Gazetteer reported extensively the trials of the lawyer, Thomas Muir, and the Unitarian minister, Thomas Fyshe Palmer, who were convicted of sedition in August and September 1793 and transported to Australia for seven and fourteen years respectively.55 The Gazetteer contextualised the events leading to Muir’s trial, publishing a letter written by Muir explaining his initial non-­appearance to portray him as a man of honour who was willing to travel from France to Scotland to stand trial if afforded reasonable notice.56 It privileged radicalism in its coverage of the trial by reproducing extracts from publications such as Thomas Paine’s Rights of Man, which had been included in the indictment.57 This was the first time that so much reformist political content had explicitly been included in a trial report. The fact that Muir defended himself also provided tremendous scope for the Gazetteer to

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record his views and privilege his voice. A staggering 452 lines were devoted to his address to the jury, compared with just forty-­seven for the prosecution. The content, style and tone of the Gazetteer’s reporting was politically aware, with every opportunity taken to publish radical views. That the trial report was published alongside a Poem, “Farewell to Liberty: An Ode,” served to contextualise the Gazetteer’s intent. Larger font was used in the Gazetteer’s report to discursively mark the judges’ rejection of an objection Muir lodged to the inclusion of a juryman who had himself asked to be excused on grounds that he was employed by the government. Unusually, the names and occupations of the jury were published, which alerted readers to the social composition and likely political allegiance of jurors. This was one of the earliest examples of the Scottish press recording the jury58; it likely reflected the paper’s desire to expose concerns about the perceived partiality of the jury system in Scotland (whereby the judge was entrusted with selecting a jury of fifteen from a list of forty-five eligible men).59 Capital letters and italics were utilised throughout to question the reliability of the crown’s evidence, the verdict and perceived judicial biases against Muir.60 Unusually, the auditory of the court was reported to emphasise where public sympathy lay: “When Mr Muir sat down, a unanimous burst of applause was expressed by the audience.”61 This was particularly significant given the importance of public approval to the law’s legitimacy.62 As David Lemmings has suggested, expressions of public sympathies had the power to generate a popular view of justice at odds with official discourse.63 The Gazetteer’s report on the Muir trial did not attack Braxfield in the manner it had previously but it did make a point of noting his leading and highly political statements, including his assertion of Muir’s guilt and his question “what right have the rabble to representation?” It was especially critical of the praise other newspapers offered the Lord Advocate for his address to the jury: We cannot better express our own opinion of the merits of his Lordship’s address than by quoting the opinion of a recent author (Mr Gilbert Wakefield) of the eloquence of Mr Pitt: ‘Such a bellowing vociferation, such an impudent attempt to screen an imbecility of argument under a pretended heat and affected passion, I never witnessed. O Eloquence! How is thy name prostituted’.64

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The mainstream press in Scotland faced a difficult balancing act with the Muir and Fyshe Palmer trials. They had to juggle a perceived ­miscarriage of justice with commercial imperatives and a tough stance on political radicalism. Muir’s trial attracted widespread interest and the popular press responded by devoting much more coverage to the trial than was usual. This concomitantly had the effect of providing more space for the defence case to be articulated than was usual. They all gave a voice to Muir and his witnesses – recording that he opposed sedition and had always advocated peaceful, constitutional means for acquiring reform. For some of their predominantly middle-class loyalist readers this might have made the sentence he received appear disproportionate to the crime. The Caledonian Mercury even recorded that one of the witnesses was threatened with imprisonment for life if he did not disclose information required by the Crown.65 Some accounts, in contextualising the trials, also ended up providing a forum for radical opinion. The Glasgow Courier, for instance, published a resolution of the meeting of the Friends of Liberty in Dundee that Fyshe Palmer was alleged to have edited, published and disseminated.66 It is possible, therefore, that readers whose knowledge of the Muir and Fyshe Palmer trials was based solely on the trial reports of the mainstream Scottish press might have sympathised with the plight of Muir and Fyshe Palmer and held reservations about the sentences they received. But, it is unlikely that they would have unequivocally doubted the overall fairness of judicial proceedings or suspected the widespread condemnation to follow. The mainstream papers shared similar characteristics that collectively set them apart from the Gazetteer: the space given to prosecution and witness testimony significantly outweighed that of the defence; the voices of the bench were included throughout to explain and contextualise judicial rulings; and claims about the alleged impartiality of proceedings were inserted.67 Although reports included the seditious extracts listed in the libel, this is likely to have been designed to show seditious intent, not to provide willingly a forum for the dissemination of radical ideas in a m ­ anner similar to that of the Gazetteer. Trial accounts were especially noticeable for including anti-reform speeches pronounced by the Lord Advocate and the bench, which helped to frame the seriousness of the perceived threat posed by political radicalism. This was particularly significant: as

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Douglas Hay has argued, the rhetorical performance of the judge was an integral part of the structure and management of judicial authority and social order.68 Coverage is likely to have been designed to stimulate patriotism in readers – and, in all likelihood, address concerns that individual liberty and freedom of the press were being undermined by sedition trials. Reports carried the message articulated from the bench that liberty is best assured not by freedom of expression or political action alone, but by defending the British constitution in the face of, and in contrast to, a foreign despotic regime that had little regard for individual rights. Significantly, reports in the mainstream Scottish press were noticeable as much for what they left out as for what they included: little reference was made to courtroom auditory, the biased  – and now infamous  – summation of Lord Braxfield, or the questionable conduct of the bench in general.69 On the contrary, the Edinburgh Advertiser praised the strength of Braxfield’s summation whilst stressing that he “left it to the jury to draw their own conclusions.”70 This stood in stark contrast to the coverage that appeared in London’s Analytical Review, which noted that the Lord Justice Clerk “gave a decided opinion relative to the prisoner’s guilt” in a summation that was “mean and vulgar in some parts, and base and unconstitutional in others.”71 Similarly, courtroom personnel were identified in the Advertiser by title and in capitals in order to signify their authority; the accused, by contrast, was named in italicised lower case, literally putting a slant on the representation of courtroom proceedings.72 The Gazetteer published a barrage of correspondence – including letters from the public and commentaries – that condemned the fairness of the trial, the behaviour of the judges, the strength of the prosecution’s evidence and the partiality of witnesses.73 A letter addressed to the Lord Advocate from “One of the Rabble” provided a scathing criticism of the ways in which Scots law was being re-interpreted and disregarded by Scotland’s legal elites in order to uphold the status quo.74 Mindful of further judicial censure, the Gazetteer published criticisms secondhand by cherry-picking critical commentary from English papers. The paper served as a repository for English condemnation of the trials  – re-­ publishing critical correspondence that appeared in English newspapers.75 Pro-reform English newspapers and periodicals, such as London’s

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Morning Post, the Morning Chronicle and the Analytical Review were especially critical of Muir’s trial, with the latter referring to it as “unexampled” in any period of British history.76 The Morning Chronicle published a letter from an English lawyer to the Lord Justice Clerk of Scotland which claimed that the conduct of Muir’s trial “has excited in England universal disapprobation and disgust.”77 Much of the correspondence was written by lawyers, and was part of a much larger discussion about the perceived peculiarities of Scots law and the need for it to be brought into line with English practice.78 For the most part, English condemnation was much more trenchant and widespread than that usually expressed in the Scottish press, not least due to the much larger number of radical newspapers and, in all likelihood, the diminished capacity of the Scottish justiciary to suppress and influence press coverage. Unlike the Gazetteer, the mainstream press in Scotland offered very little implicit discursive commentary on or correspondence about the Muir and Fyshe Palmer trials in the weeks that followed their sentences. The most common post-trial references to the trials were advertisements for published pamphlets that claimed to provide detailed – and in some cases full – accounts of their cases.79 There was money to be made from the heightened public interest in the trials and both the radical and mainstream press provided a platform for the promotion and dissemination of these publications, even though they were typically sympathetic to the plight of the accused and the radical cause more broadly. There were at least three different publications of proceedings of the Fyshe Palmer trial advertised in the Caledonian Mercury – one compiled by a local publisher in Perth80; one by eminent shorthand writers from London81; and one by an unnamed short-hand writer who claimed to have drawn on court records.82 Each pamphlet was keen to stress the authenticity and accuracy of its account  – and how it had been compiled – which spoke to how contested trial narratives were and the desire to win the war of the printed word.83 Published trial reports were sometimes used to supplement the newspaper trial coverage. On 19 February 1793, the Caledonian Mercury published an extremely short paragraph on the Fyshe Palmer trial, but over its next few editions included lengthy extracts from the trial coverage published by Morrison in Perth.84 That the newspaper chose to publicise Morrison’s more conservative and

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edited version of the trial – described as “spurious and mutilated” in a pamphlet published by William Skirving, one of the Scottish Martyrs – reflected the newspaper’s political leanings. In public, ministers not only defended but also praised the conduct of the Scottish bench, as adopting a tough stance and maintaining a united front were perceived to be essential in order to quash the radical threat. In private, though, there was some unease, not least about Braxfield’s conduct.85 The legal profession was also hesitant to publicly condemn how the trials had been conducted, but there were allegations, too, of private disquiet, with the proceedings a source of much embarrassment to the Lord Advocate, Robert Dundas, and the legal and governing elites in both Edinburgh and London.86 The Morning Chronicle, which took up the cause of the “Scottish Martyrs”, reported that it was the opinion of several Scottish lawyers that the sentences passed against Muir and Fyshe Palmer were illegal.87 The Chronicle also published letters that displayed a firm understanding of Scots law and an intimate understanding of legal practice in Edinburgh – including one under the pseudonym “Scotus” – which adds credibility to its report.88 Despite this, the closest the mainstream Scottish newspapers got to alerting their readers to any possible miscarriage of justice in the weeks that followed the trials was when they published an “Address to the Public” from John Russell, a witness at Muir’s trial who had been imprisoned for prevarication. In a letter more concerned with safeguarding his own reputation, Russell expressed his regret that Muir had not received the benefit of his evidence, which “would have tended highly to his exculpation of the charges against him.”89 Some would-be commentators, especially those working in legal circles, might have been deterred from submitting correspondence to Scottish papers from fear of the impact it might have on their careers; indeed, there is evidence that some in the Scottish legal profession viewed the English press as offering a more reliable and effective forum for criticism.90 Other correspondence might have been received but not published. What is certain is that the mainstream press was reluctant at this stage to serve as a vehicle for challenges to Scottish judicial practice. Shared political values with those who staffed the bench are likely to have played a large part in this but so, too, was fear of judicial repression.

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IV The relative silence of the mainstream Scottish media would soon be challenged by a parliamentary inquiry into the conduct of the Scottish High Court during the Muir and Fyshe Palmer trials, parliamentary campaigns to overturn their verdicts and sentences, and three other high-­ profile trials for sedition. In the early months of 1794, William Skirving and two delegates of the London Corresponding Society, Maurice Margarot and Joseph Gerrald, were tried and convicted of sedition in Edinburgh.91 Charles Sinclair was also charged but turned government informer and his case was dismissed. All of these men had been placed under government surveillance for taking on leadership roles at the Convention of Delegates from Societies of the Friends of the People, held in Edinburgh in November and December 1793. The trial of Thomas Muir had raised further questions about the boundaries of sedition law – in particular, whether it was a common law crime – which Skirving and Margarot queried in their opening addresses, the latter in an attempt to force a precise definition of sedition under Scots law.92 The mainstream media, though, devoted much weight to the crown prosecution counsel’s and the lords justices’ justification for the indictments and left readers in little doubt that the lord justices were issuing sentences permitted by law.93 The Glasgow Courier published in full the indictment against Skirving, which included an account of a speech he delivered at a meeting of the Friends of Liberty in Dundee.94 Trial coverage was also often located next to reports of alarming developments in France, thereby reinforcing the perceived seriousness of the threat radical ideas posed to British liberty and the guilt of the radicals by association. With Britain then at war with France, the more staunchly loyalist press frequently highlighted radical sympathies for the French Convention. This was likely intended to appeal to the patriotism, or fear, of readers and encourage them to support the existing political system. The coverage of these later trials in the mainstream papers was shaped by the spectre of perceived miscarriages of justice, with the press choosing to publish courtroom discourse that showed the bench addressing concerns that had been raised about proceedings at the earlier trials. With

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these trials occurring in the face of mounting legal and political criticism of the conduct of court, the Scottish press was keen to highlight that the trials had been carried out fairly and in accordance with the principles of Scots law. At the Sinclair trial, the Edinburgh Advertiser stressed that the absence of legal representation for some of the accused in previous sedition trials “made the judges weigh with the greatest care, every thing in favour of the panels”; it also recorded the Lord Justice Clerk assuring Sinclair that his libel for sedition “had been founded on justice, reason, and the Law of Scotland.”95 It recorded the voice of the Lord Justice Clerk offering legal counsel to William Skirving (which he refused); published the Lord Justice Clerk’s justification for refusing Skirving’s objection to the political composition of the jury; and later recorded the bench assuring Gerrald that “in every case the Court acted as counsel for the panel, and would take care that no injustice was done.” This included granting him legal counsel even though his application was late.96 The Evening Courant published a post-trial proclamation from the Lord Provost and the Sheriff Depute of the County condemning “evil” people who had orchestrated the public show of support for Skirving on the way to trial and in the process excited “tumults and disturbances.”97 Public support for the accused, in other words, was linked to the unruly rather than the respectable in the theatre of justice. In the Margarot trial, the judges were aware that the crowd might be disruptive and instructed door stewards to allow only select individuals to enter the courtroom.98 Neither this, nor Margarot’s unsuccessful objection, drew the interest of the mainstream newspapers. Crucially, while the newspapers were willing to record political content on the indictment which might incriminate the accused and justify the charge, they were less willing to record similar content articulated by radicals in courtroom discourse. The Caledonian Mercury noted that Margarot had spent a lot of time discussing political affairs rather than the charge at hand, but refrained from providing any detail. It helped to create the impression that Margarot was something of a political maverick – and that his testimony, crucially, was irrelevant and vague. The Edinburgh Gazetteer, though, continued to be a thorn in the side of the court. By late 1793, the paper had become closely aligned and intimately connected with the proceedings of the British Convention,

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which met in Edinburgh between October and December. On 23 November, a committee that had been appointed to devise a plan for assisting the Gazetteer resolved that all members encourage their constituents to support the paper through subscriptions and other means.99 Alexander Scott attended the meetings and corresponded regularly with Skirving. By this point the Gazetteer had become the mouthpiece for the reform movement in Scotland, with the Convention explicitly committing to hand over correspondence to be published in the newspaper.100 The Gazetteer published not only seditious speeches delivered at the meeting, but also minutes of proceedings and the Convention’s motions and resolutions about how to respond to government repression. Indeed, it was likely the latter’s strategies for mobilisation that most alarmed the authorities. In February 1794, Scott was indicted for using the newspaper to print and circulate seditious writings, speeches and resolutions.101 Both he and his co-printer, George Ross, absconded before their trials. The Gazetteer folded not long after.102 In a final act of repression, the Gazetteer’s former proprietor, William Johnston, was called before the court on accusations that he had breached his bond conditions by attending the Convention.103 He claimed he was unaware of the seditious nature of the meeting and was discharged without further action.104 Nonetheless, the message was clear: those who promulgated radical sentiments would continue to be hounded by the court, especially those who had dared to weaken the respect with which the law, the courts and its dignitaries were held. The popular image of the Scottish criminal justice system was simply too important to be left at the mercy of a free press. Parliament, in the early months of 1794, engaged in a long series of debates on the legality of the radical trials at the instance of Lord Charles Stanhope and the lawyer and Whig Member of Parliament for Ross-shire, William Adams.105 These debates exposed the Scottish criminal justice system to a level of forensic examination it had not hitherto seen. A ­number of speakers, most of them Whigs, voiced concerns about the way in which the trials had been conducted and used the trials to argue for reform of Scottish legal practice.106 On the other hand, senior Scottish legal figures, mostly conservatives, were keen to defend the Scottish system and the superiority of Scots law and legal practice.107

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The mainstream media did not shy away from recording opinion on both sides. A significant amount of attention was devoted to those who criticised the Muir and Fyshe Palmer verdicts, in particular. Unlike trial reports, coverage of the parliamentary debates left readers in little doubt as to the depth of unease about the legitimacy of the Muir and Fyshe Palmer convictions and sentences. The majority of reports did not provide their own detailed commentary, but by reporting those who did they served as a vehicle for informed critique.108 The Scottish criminal justice system was portrayed as being more draconian than the English system, with the Earl of Lauderdale condemning it for transporting a man for fourteen years for an offence that, he claimed, would have resulted in twelve months’ punishment in England.109 Such condemnation, though, was always followed by explanatory comment from Scotland’s legal elites, who promulgated the notion through the press that the court was the victim of English ignorance of Scots law and practice.110 This was deployed as a defence mechanism in a somewhat desperate attempt to allay criticism of the courts by exploiting nationalist sentiment. After covering parliamentary debates over three sessions, the Caledonian Mercury offered its only commentary on proceedings: “The Lord Advocate’s speech on Mr Adams’s motion respecting Messrs Muir and Fyshe Palmer evidenced great legal knowledge, and was at the same time remarkable for its perspicuity and eloquence.”111 That it chose to offer its opinion only on the Lord Advocate’s speech, after publishing pages of legal wrangling and disparate views, might further indicate a degree of collusion with Edinburgh’s legal elites. The mainstream newspapers also tended to stress how well Muir and Fyshe Palmer were treated on board the transportation ship as well as the high quality of life and opportunities that awaited them in Australia, perhaps in an attempt to reduce public sympathy for them.112 Both sides in parliament cast aspersions on the role of the press in misrepresenting trial proceedings. The most scathing criticism of the press came from Scotland’s legal elites and government officials, who were unhappy about how the Scottish justiciary had been represented in certain unnamed (presumably English and radical) newspapers. Alexander Wedderburn, the Scottish lawyer, nobleman and Lord Chancellor, warned his political opponents in parliament that “You are not to rely on

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the authority of Newspapers attached to opposite parties.”113 While the dangers of measuring readership reception are well known, there were clearly concerns in Scottish legal circles about the damaging impact that press reports were having on the reputation of the Scottish criminal justice system and public attitudes towards it. The threat of judicial repression, it seems, could only extend so far.

V Press reports were not neutral conduits of trial coverage. Embedded within them were political, moral and cultural messages that reflected particular discourses and which utilised tried and tested rhetorical strategies. The press was not always simply the mouthpiece of the courts, but it could sometimes foster an image of justice that ran counter to the view the courts sought to project. Trial reports provided a critical avenue for newspapers to exploit, especially those who used the press as a forum to disseminate radical messages. Press accounts provided some evidence to suggest that the accused might have been harshly dealt with, but in doing so they disseminated the message that the criminal justice system was ultimately not above public and political scrutiny and censure. For the most part, the press promulgated anti-reform messages and was probably much more supportive of the criminal justice system than appears to have been the case in England, where a critical press on criminal justice matters appears to have developed much earlier.114 Cross-border cultural exchange provided greater scope for criticism than that local reportage, with shared political values and networks of exchange between Edinburgh’s legal elites and mainstream press combined with the threat of judicial censure in all likelihood going a long way to account for this.115 The sedition trials had a lasting legacy for perceptions of the Scottish criminal justice system. The conduct of the High Court became a central reference point in the early nineteenth century for Whigs who sought to bring aspects of the Scottish criminal justice system more into line with its English counterpart.116 Accounts of the trials published by the London Corresponding Society were instrumental in accounting for the growing infamy of the trials, but the significance of newspaper accounts should

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not be underplayed. It was often in the press that material – which would later be reproduced in pamphlets and state trial accounts  – first appeared.117 Press reports were important not just in bringing the trials to the public’s attention, but in laying the foundations for the construction of political martyrdom. In reporting that Muir’s final words were “too memorable to be omitted,” the Gazetteer helped in the construction of Muir as an iconic figure willing to sacrifice his liberty in the fight for the greater good. William Johnston might have been defeated by the threat of judicial repression, but the legacy of the paper he founded proved more durable.

Notes 1. John Barrell, Imagining the King’s Death: Figurative Treason, Fantasies of Regicide, 1793–1796 (Oxford, 2000). 2. See, for instance, Gordon Pentland, “The Posthumous Lives of Thomas Muir”, in Liberty, Property and Popular Politics: England and Scotland, 1688–1815: Essays in Honour of H.T. Dickinson, eds Gordon Pentland and Michael T.  Davis (Edinburgh, 2016), 207–23; H.T.  Dickinson, “Thomas Muir and the ‘Scottish Martyrs’ of the 1790s”, Historian, 86 (2005), 23–31; Alex Tyrrell and Michael T. Davis, “Bearding the Tories: The Commemoration of the Scottish Political Martyrs of 1793–94”, in Contested Sites: Commemoration, Memorial and Popular Politics in Nineteenth-Century Britain, eds Paul A.  Pickering and Alex Tyrrell (Aldershot, 2004), 25–56. 3. Michael T.  Davis, “Prosecution and Radical Discourse during the 1790s: The Case of the Scottish Sedition Trials”, International Journal of the Sociology of Law, 33 (2005), 150. 4. David Lemmings, “Introduction: Criminal Courts, Lawyers and the Public Sphere”, in Crime, Courtrooms and the Public Sphere in Britain, ed. David Lemmings (Farnham, 2012), 8. 5. See, for example, Peter King, “Newspaper Reporting and Attitudes to Crime and Justice in Late-­Eighteenth- and Early-Nineteenth-Century London”, Continuity and Change, 22 (2007), 73–112; Simon Devereaux, “From Sessions to Newspaper? Criminal Trial Reporting, the Nature of Crime, and the London Press, 1770–1800”, The London Journal, 32 (2007), 1–27.

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6. Lindsay Farmer, “‘With all the Impressiveness and Substantial Value of Truth’: Notable Trials and Criminal Justice, 1750–1930”, Law and Humanities, 1 (2007), 58. 7. Davis, “Prosecution and Radical Discourse During the 1790s”. For the representation of radicalism more broadly, see Kevin Gilmartin, Print Politics: The Press and Radical Opposition in Early Nineteenth-Century England (Cambridge, 1996). 8. Bob Harris, “Scotland’s Newspapers, the French Revolution and Domestic Radicalism (c. 1789–1794)”, Scottish Historical Review, 84 (2005), 38–62; and Bob Harris, The Scottish People and the French Revolution (London, 2008), 45–74. 9. On the role of emotions, see Amy Milka and David Lemmings, “Narratives of Feeling and Majesty: Mediated Emotions in the Eighteenth-Century Criminal Courtroom”, The Journal of Legal History, 38 (2017), 155–78. 10. Anne-Marie Kilday, “Contemplating the Evil Within: Examining Attitudes to Criminality in Scotland, 1700–1840,” in Crime, Courtrooms and the Public Sphere in Britain, 1700–1850, ed. David Lemmings (Farnham, 2012), 158–59. 11. There were a few other newspapers in Scotland at the time but these are the main ones consulted for this study. 12. Kilday, “Contemplating the Evil Within”, 156. 13. Lucyle Werkmeister, A Newspaper History of England 1792–1793 (Lincoln, 1967), 406. 14. The LCS sent short-hand writer William Ramsay to Edinburgh to record the trials. See Mary Thale (ed.), Selections from the Papers of the London Corresponding Society (Cambridge, 1983), 105. 15. Davis, “Prosecution and Radical Discourse During the 1790s”, 153. 16. Harris, “Scotland’s Newspapers, the French Revolution and Domestic Radicalism”, 38. 17. Figures derived from M. E. Craig, The Scottish Periodical Press, 1750– 1789 (Edinburgh, 1931). 18. Harris, “Scotland’s Newspapers, the French Revolution and Domestic Radicalism”, 38. 19. Ibid., 51. 20. Ibid., 46–7. 21. Harris, The Scottish People and the French Revolution, 45–74. 22. Caledonian Mercury, 12 January 1793.

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23. See the opinion of James Ferguson, defence counsel. National Records of Scotland (NRS), JC3–46: High Court of Justiciary Book of Adjournal, 1792–93, f. 161. 24. Lindsay Farmer, Criminal Law, Tradition and Legal Order: Crime and the Genius of Scots Law 1747 to the Present (Cambridge, 1997), 102. 25. Harris, “Scotland’s Newspapers, the French Revolution and Domestic Radicalism”, 53. 26. Caledonian Mercury, 12 January 1793. 27. Atle L. Wold, Scotland and the French Revolutionary Wars, 1792–1802 (Edinburgh, 2015). 28. This confusion was not lost on legal commentators. William Steele, for example, explained that “It is extremely difficult to define with precision in what sedition consists, because it is evident that the same language or publications which are calculated at one period to stir up immediate dissension, may be diffused at another without any danger”. William Steele, A Summary of the Powers and Duties of Juries in Criminal Trials in Scotland (Edinburgh, 1833), 186. 29. Edinburgh Evening Courant, 10 January 1793. 30. Lemmings, “Introduction: Criminal Courts, Lawyers and the Public Sphere”, 5. 31. Harris, “Scotland’s Newspapers, the French Revolution and Domestic Radicalism”, 51. 32. Edinburgh Gazetteer, 15 January 1793. 33. In 1765, the editors of the Edinburgh Weekly Journal, Edinburgh Courant, Edinburgh Mercury and Scots Magazine were ordered to sit themselves at the bar in relation to a report on the trial of Katherine Nairn and Patrick Ogilvie. No further action was taken after they were admonished. In 1777, James Gilkie was ordered to appear after he published a letter in a newspaper addressed to the sheriffs of Berwick regarding the murder of Archibald Rule. It was alleged that his letter was intended to inflame the minds of the people against the accused. He was imprisoned for 1 month and ordered to find caution. 34. Caledonian Mercury, 4 February 1793. 35. Harris, “Scotland’s Newspapers, the French Revolution and Domestic Radicalism”, 52. 36. NRS, JC3–46, f. 351. 37. NRS, JC3–46, f. 352. 38. For more on the speech, see Cockburn, Examination, I: 119.

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39. For example, “What mair equality wad they hae’ with political reform?”: Thomas Jones Howell (ed.), A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors, 33 vols (London, 1809–26), XIII: 43. 40. NRS, JC3–46, ff. 392–93. 41. Johnston wrote: “I have always venerated the laws. I know their necessity and their utility. No man holds a court of justice in higher respect or more revers than I do, that dignity with which your Lordships as guardians of those laws are invested by the constitution.” NRS, JC3– 46, f. 394. 42. Caledonian Mercury, 25 February 1793. 43. NRS, JC3–46, f. 395. 44. NRS, JC3–46, f. 396. 45. NRS, JC3–46, f. 398. 46. Studies of the Old Bailey in London have suggested that law students often supplemented their income from by carrying out such work. See Judith Rowbotham, Kim Stevenson and Samantha Pegg (eds), Crime News in Modern Britain (Basingstoke, 2013). 47. NRS, JC3–46, f. 446. 48. Caledonian Mercury, 25 February 1793. The Robertson and Berry trial was published on 18 and 21 February 1793. 49. Johnston had, Drummond now claimed, approved of the publication. See also a similar report in Edinburgh Advertiser, 26 February 1793. 50. Glasgow Courier, 26 February 1793. 51. Howell, A Complete Collection of State Trials, XXIII: 52. 52. On middle-class masculinity, see John Tosh, Manliness and Masculinities in Nineteenth-Century Britain (Harlow, 2005). 53. “This sentence of your lordships called the respondent’s most serious attention to the predicament in which he stood as proprietor of a newspaper, for every part of which he was responsible; with a view, therefore, not only to relieve himself from any such risk in future, but to prevent his being, even ignorantly or inadvertently, the means of conveying to the public any thing that might be offensive or dangerous to the community the respondent resolved to give up the concern, which he accordingly did at a very considerable loss to his family, as the continuation of the publication had been too short to allow him to get back the sums necessarily expended in the commencement of the work.” Howell, A Complete Collection of State Trials, XXIII: 71.

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54. Barrell, Imagining the King’s Death, 254. 55. For its commentary on Fyshe Palmer, see Edinburgh Gazetteer, 8 October 1793. 56. Edinburgh Gazetteer, 8 January 1793. 57. Quotes from the Rights of Man accounted for an entire column and a half of the trial report. Edinburgh Gazetteer, 3 September 1793. 58. The Gazetteer had named the jurors in the sedition trial of Robertson and Berry a few months earlier, which is the only preceding example we have come across. The trial was published in two editions: Edinburgh Gazetteer, 19 February 1793 and 22 February 1793. 59. Edinburgh Gazetteer, 22 February 1793. Concerns about the selection of juries were especially prominent in Whig circles. See Jim Smyth and Alan McKinlay, “Whigs, Tories and Scottish Legal Reform, c. 1785– 1832”, Crime, Histoire & Sociétés/Crime, History and Societies, 15 (2011), 115–118. 60. The Gazetteer highlighted the court’s rejection of one of Muir’s objections by printing that it had been “unanimously repelled” in larger font. 61. Edinburgh Gazetteer, 3 September 1793. 62. Peter King, Crime, Justice and Discretion in England, 1740–1820 (Oxford, 2000), 255. 63. David Lemmings, “Emotions, Power and Popular Opinion about the Administration of Justice: The English Experience, from Coke’s ‘Artificial Reason’ to the Sensibility of ‘True Crime Stories’”, Emotions: History, Culture, Society, 1.1 (2017), 59–90. 64. King, Crime, Justice and Discretion in England, 255. 65. Caledonian Mercury, 31 August 1793. 66. Glasgow Courier, 19 September 1793. 67. The trial appeared in the Caledonian Mercury on 31 August 1793; the Edinburgh Advertiser on 30 August 1793 and 3 September 1793; the Glasgow Courier on 3 September 1793; and Edinburgh Evening Courant on 31 August 1793. 68. Douglas Hay, “Property, Authority and the Criminal Law”, in Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England, ed. Douglas Hay, Peter Linebaugh, John G.  Rule and Cal Winslow. (Harmondsworth, 1975), 16–63. 69. Edinburgh Mercury, 31 August 1793. 70. Edinburgh Advertiser, 3 September 1793. 71. Quote cited in Edinburgh Gazetteer, 8 October 1793.

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72. Edinburgh Advertiser, 3 September 1793. 73. See, for instance, Edinburgh Gazetteer, 22 October 1793. 74. Edinburgh Gazetteer, 5 November 1793. 75. On 1 October 1793, for example, the Edinburgh Gazetteer published a letter about Muir’s trial and conviction from the Oracle, “a ministerial paper”, signed off “Scotus”, which was addressed to the Lord Justice Clerk of Scotland. Another, signed off “An English Lawyer”, had originally appeared in the Morning Chronicle. 76. Edinburgh Gazetteer, 8 October 1793. 77. Re-printed in the Edinburgh Gazetteer, 22 October 1793. 78. See the letter originally published in the Morning Chronicle, and re-­ published in the Edinburgh Gazetteer, 1 October 1793, about Muir’s trial. 79. See, for instance, advertisements for The Trial of Thomas Muir, esq, Younger of Huntershill at the High Court of Justiciary upon Friday and Saturday the 30 and 31st day of August 1793, to be published by A. Scott, printer of the Edinburgh Gazetteer and The Trial of Thomas Muir esq Younger of Huntershill before the High Court of Justiciary on the 30th and 31st August 1793, to be published by A.  Robertson, published in the Edinburgh Gazetteer, 3 September 1793. 80. Caledonian Mercury, 16 September 1793. 81. Caledonian Mercury, 21 September 1793. 82. Caledonian Mercury, 19 September 1793. 83. See Scott’s advert for the Muir trial, published in the Edinburgh Gazetteer, 3 September 1793. 84. Caledonian Mercury, 23, 26, 28, 30 September, and 3 and 5 October 1793. 85. Harris, The Scottish People and the French Revolution, 121. 86. Ibid. 87. The Chronicle’s article was re-published in The Times, 1 January 1794. 88. See, for instance, an anonymous letter that appeared in London’s Morning Chronicle, 7 October 1793, a letter to the editor from G. H. printed in the Morning Chronicle, 18 September 1793; and correspondence from “Scotus”. 89. The address was published on 7 September in the following newspapers: Glasgow Courier, the Edinburgh Evening Courant, the Caledonian Mercury and the Edinburgh Advertiser. 90. Much correspondence in the English press was clearly written by those with a firm understanding of Scots law or with an intimate understanding of legal practice in Edinburgh. See n. 88.

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91. Atle L. Wold, “Was there a law of Sedition in Scotland? Baron Hume’s Analysis of the Scottish Sedition Trials”, in Liberty, Property and Popular Politics: England and Scotland, 1688–1815: Essays in Honour of H.T. Dickinson, eds Gordon Pentland and Michael T. Davis (Edinburgh, 2016), 163. 92. Ibid., 164. 93. If the charges had fallen under the remit of a 1703 statute, the judges would not have been permitted to issue a sentence of transportation. The objections of Skirving and Margarot to this effect, however, were repelled by confirming that they were being charged with a common law crime. On this discrepancy, see David Hume, Commentaries on the Laws of Scotland, 2 vols (Edinburgh, 1797), II: 486–87. 94. Glasgow Courier, 9 January 1794. 95. Edinburgh Advertiser, 18 February 1794. 96. For the Skirving trial, see for instance, the Edinburgh Advertiser, 7 January 1794; for Margarot, 17 January 1794; and for Gerrald, 4 March 1794. 97. Edinburgh Evening Courant, 11 January 1794. 98. Howell, A Complete Collection of State Trials, XXIII: 630–31. 99. An Account of the Proceedings of the British Convention: Held in Edinburgh the 19th of November, 1793 (London, 1793), 28–29. 100. An Account of the Proceedings of the British Convention, 39. 101. Alexander Scott was charged with “wickedly and feloniously printing and circulating, or causing to be circulated, any writings or speeches of a seditious import and tendency, which were published through the medium of the Edinburgh Gazetteer.” See Howell, A Complete Collection of State Trials, XXIII: 384. The editions singled out were nos 78 (26 November 1793), 79 (3 December 1793) and 80 (10 December 1793). 102. The Edinburgh Gazetteer ceased publication on 29 January 1794 (issue 87). 103. See Howell, A Complete Collection of State Trials, XXIII: 66. 104. Ibid., XXIII: 66–71. 105. Barrell, Imagining the King’s Death, 186. 106. Smyth and McKinlay, “Whigs, Tories and Scottish Legal Reform”, 112–119. 107. Hume and Tories defended Scots law, saying it was better than English law in a number of ways: in relation to the nature of the criminal charge, legal representation, laws if evidence, prosecution, and the nature of discretionary justice afforded to courts allowed for humane punishment. Ibid., 123–24.

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108. Caledonian Mercury, 6 February 1794. 109. Caledonian Mercury, 6 February 1794. 110. See, for example, the view of David Murray, 2nd Earl of Mansfield, and Lord Justice General of Scotland regarding the press coverage of the trials and Alexander Wedderburn and Lord Thurlow on how criticism of the courts was based on a misunderstanding of the Scottish system. The latter, for instance, informed the House of Lords that Scots law “afforded a greater degree of looseness” in framing the indictment than was permitted in England. Caledonian Mercury, 6 February 1794. Similarly, the Lord Advocate argued that “the conduct of the Judges was strictly legal, and they had exercised their discretionary power in the most laudable manner.” Criticism was “founded in a complete misapprehension of the laws of that [Scotland] country; and he must say, a total ignorance of the practice of the Courts of Justiciary.” Caledonian Mercury, 15 March 1794. 111. Caledonian Mercury, 17 March 1794. 112. An article in the Edinburgh Advertiser, 7 January 1794 noted that Muir and Fyshe Palmer were well treated on the hulks, having a cabin to themselves and being permitted visits from their friends. A report in the Caledonian Mercury described life in New South Wales as “delightful.” Caledonian Mercury, 17 March 1794. 113. Caledonian Mercury, 6 February 1794. 114. Lemmings, “Emotions, Power and Popular Opinion about the Administration of Justice,” 59–90. 115. For more on official opposition, see Harris, “Scotland’s Newspapers, the French Revolution and Domestic Radicalism”, 51. 116. Smyth and McKinlay, “Whigs, Tories and Scottish Legal Reform”, 111–32; Cockburn, Examination, I. 117. Edinburgh Gazetteer, 8 October 1793.

Bibliography National Records of Scotland (NRS), JC3–46: High Court of Justiciary Book of Adjournal, 1792–93. Caledonian Mercury. Edinburgh Evening Courant. Edinburgh Gazetteer.

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Edinburgh Mercury. Glasgow Courier. Morning Chronicle. Oracle. An Account of the Proceedings of the British Convention: Held in Edinburgh the 19th of November, 1793 (London, 1793). Henry Cockburn, An Examination of the Trials for Sedition which have hitherto occurred in Scotland, 2 vols (Edinburgh, 1888). Thomas Jones Howell (ed.), A Complete Collection of State Trials and Proceedings for High Treason and other Crimes and Misdemeanours, 33 vols (London, 1809–28). David Hume, Commentaries on the Laws of Scotland, 2 vols (Edinburgh, 1797). William Steele, A Summary of the Powers and Duties of Juries in Criminal Trials in Scotland (Edinburgh, 1833). Mary Thale (ed.), Selections from the Papers of the London Corresponding Society (Cambridge, 1983). John Barrell, Imagining the King’s Death: Figurative Treason, Fantasies of Regicide, 1793–1796 (Oxford, 2000). M. E. Craig, The Scottish Periodical Press, 1750–1789 (Edinburgh, 1931). Michael T. Davis, “Prosecution and Radical Discourse during the 1790s: The Case of the Scottish Sedition Trials”, International Journal of the Sociology of Law, 33 (2005), 148–58. Simon Devereaux, “From Sessions to Newspaper? Criminal Trial Reporting, the Nature of Crime, and the London Press, 1770–1800”, The London Journal, 32 (2007), 1–27. H.T.  Dickinson, “Thomas Muir and the ‘Scottish Martyrs’ of the 1790s”, Historian, 86 (2005), 23–31. Lindsay Farmer, Criminal Law, Tradition and Legal Order: Crime and the Genius of Scots Law 1747 to the Present (Cambridge, 1997). Lindsay Farmer, “‘With all the Impressiveness and Substantial Value of Truth’: Notable Trials and Criminal Justice, 1750–1930”, Law and Humanities, 1 (2007), 57–78. Kevin Gilmartin, Print Politics: The Press and Radical Opposition in Early Nineteenth-Century England (Cambridge, 1996). Bob Harris, “Scotland’s Newspapers, the French Revolution and Domestic Radicalism (c. 1789–1794)”, Scottish Historical Review, 84 (2005), 38–62. Bob Harris, The Scottish People and the French Revolution (London, 2008).

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Douglas Hay, “Property, Authority and the Criminal Law”, in Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England, eds Douglas Hay, Peter Linebaugh, John G. Rule and Cal Winslow (Harmondsworth, 1975), 16–63. Anne-Marie Kilday, “Contemplating the Evil Within: Examining Attitudes to Criminality in Scotland, 1700–1840,” in Crime, Courtrooms and the Public Sphere in Britain, 1700–1850, ed. David Lemmings (Farnham, 2012), 147–66. Peter King, Crime, Justice and Discretion in England, 1740–1820 (Oxford, 2000). Peter King, “Newspaper Reporting and Attitudes to Crime and Justice in Late-­ Eighteenth- and Early-Nineteenth-Century London”, Continuity and Change, 22 (2007), 73–112. David Lemmings, “Introduction: Criminal Courts, Lawyers and the Public Sphere”, in Crime, Courtrooms and the Public Sphere in Britain, ed. David Lemmings (Farnham, 2012), 1–22. David Lemmings, “Emotions, Power and Popular Opinion about the Administration of Justice: The English Experience, from Coke’s ‘Artificial Reason’ to the Sensibility of ‘True Crime Stories’”, Emotions: History, Culture, Society, 1.1 (2017), 59–90. Amy Milka and David Lemmings, “Narratives of Feeling and Majesty: Mediated Emotions in the Eighteenth-Century Criminal Courtroom”, The Journal of Legal History, 38 (2017), 155–78. Gordon Pentland, “The Posthumous Lives of Thomas Muir”, in Liberty, Property and Popular Politics: England and Scotland, 1688–1815: Essays in Honour of H.T.  Dickinson, eds Gordon Pentland and Michael T.  Davis (Edinburgh, 2016), 207–23. Judith Rowbotham, Kim Stevenson and Samantha Pegg (eds.), Crime News in Modern Britain (Basingstoke, 2013). Jim Smyth and Alan McKinlay, “Whigs, Tories and Scottish Legal Reform, c. 1785–1832”, Crime, Histoire & Sociétés/Crime, History and Societies, 15 (2011), 111–32. John Tosh, Manliness and Masculinities in Nineteenth-Century Britain (Harlow, 2005). Alex Tyrrell and Michael T. Davis, “Bearding the Tories: The Commemoration of the Scottish Political Martyrs of 1793–94”, in Contested Sites: Commemoration, Memorial and Popular Politics in Nineteenth-Century Britain, eds Paul A. Pickering and Alex Tyrrell (Aldershot, 2004), 25–56. Lucyle Werkmeister, A Newspaper History of England 1792–1793 (Lincoln, 1967).

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Atle L.  Wold, Scotland and the French Revolutionary Wars, 1792–1802 (Edinburgh, 2015). Atle L. Wold, “Was there a law of Sedition in Scotland? Baron Hume’s Analysis of the Scottish Sedition Trials”, in Liberty, Property and Popular Politics: England and Scotland, 1688–1815: Essays in Honour of H.T. Dickinson, eds Gordon Pentland and Michael T. Davis (Edinburgh, 2016), 163–75.

4 The English and Scottish State Trials of the 1790s Compared Emma Macleod

After the conviction and sentencing in Scotland of its representative, Joseph Gerrald, the London Corresponding Society (LCS) resolved on 14 April 1794: “That our abhorrence and detestation have been particularly called forth by the late arbitrary and flagitious proceedings of the Court of Justiciary in Scotland, where all the doctrines and practices of the Star Chamber, in the times of Charles the First, have been revived and aggravated.”1 In September that year, with the Scottish sedition trials clearly in his mind, William Godwin told John Thelwall, then awaiting trial in the Tower of London, that “it is good to be tried in England, where men are accustomed to some ideas of equity, and law is not entirely what the breath of judges and prosecutors shall make it”.2 That opinion was later supported by the Scottish Whig advocate and judge, Henry Cockburn, who wrote that “the whole proceedings were wrong from the first to the last”.3 The state trials for sedition and treason prosecuted in Scotland and England in the 1790s have usually been analysed as two more or less E. Macleod (*) Faculty of Arts and Humanities, University of Stirling, Stirling, UK e-mail: [email protected] © The Author(s) 2019 M. T. Davis et al. (eds.), Political Trials in an Age of Revolutions, Palgrave Histories of Policing, Punishment and Justice, https://doi.org/10.1007/978-3-319-98959-4_4

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separate, if obviously connected, sets of events. They have rarely been compared in much detail. Where contrasts and comparisons have been drawn, these have tended to be asserted rather than demonstrated, and the general tenor of these assessments has usually followed the opinions of Godwin, the LCS and Cockburn. Although most reflection on the political state trials in Britain in the 1790s is now more careful and nuanced than the sweeping judgements of earlier commentators, which tended to emphasise the contrast between these trials in England and Scotland, there lingers a sense of greater injustice and abuse of power in the Scottish courts than the English. This is partly because the most familiar contrast between the two sets of trials is that, while the best-­ known Scottish defendants were tried for sedition, convicted and transported to Botany Bay, the most famous English cases were prosecuted for high treason and resulted in acquittals. As John Erhman wrote, the Scottish trials “left an early sense of savage repression which has been cited ever since”.4 This distinction is not to compare like with like, however. In fact most of the English political trials of the 1790s were also prosecutions for seditious offences and reached convictions in many cases; and, while the one Scottish trial for treason resulted in the execution of Robert Watt in 1794, there was also an execution in England for treason (James O’Coigly, in 1798). For a reasonable comparison of the political trials in the two jurisdictions in this decade, we need to examine the prosecutions for sedition in each country alongside each other, and the trials for treason ­likewise. Furthermore, the speeches and writings of the Whig lawyers of the 1790s and Henry Cockburn’s generation that followed them, seem likely to have cemented this sense of a greater deficit of justice in Scotland than England in the 1790s – but the Whig lawyers, as Gordon Pentland shows elsewhere in this volume in relation to the later trials of 1816–20, had agenda beyond impartial assessment.5 As well as their desire to advance the nineteenth-century Whig party political interest, the Scottish Whigs were scarred by their own experience of professional exclusion and detriment during the tensions of the 1790s.6 It is true that Robert McQueen, Lord Braxfield, Chief Justice Clerk in Scotland, who presided over all but one of the major Scottish political trials of 1793–94, was an unusually colourful character who became

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nearly as notorious as the English Judge Jeffreys of a hundred years previously.7 Yet in both jurisdictions, judges displayed bias, juries were instructed, there was more than an element of show trial, and evidence which was circumstantial, indirect, obtained by spies or from king’s evidence was relied upon. Clearly both sets of trials were politically motivated, and, although the law officers were separate and the legal systems were different in each country, the same Westminster administration was managing them both. It would be surprising if the parallels were not substantial. It is not the intention of this essay to attempt to defend the indefensible in the Scottish prosecutions. Nor can it try to offer a comprehensive comparison of the two sets of trials, which were many more than the dozen or so which are best known and revisited here. This chapter proposes only to submit a preliminary hypothesis that will require much fuller treatment in future. It argues that a closer comparison of the Scottish and English political trials of the 1790s suggests that examining the similarities between them sheds as much light on the state side of the prosecutions as does dwelling on the headline contrasts.

I The element of the state prosecutions in Scotland which caused contemporaries most horror was the sentences for sedition, and these clearly diverged from the penalties imposed in England. No defendant in England  convicted of sedition was transported to Botany Bay as were Thomas Muir, William Skirving, Maurice Margarot, Joseph Gerrald and George Mealmaker, who were all sent to Australia for fourteen years each, Thomas Fyshe Palmer, who was exiled there for seven years, and James Patterson for five years. Charles James Fox and his opposition Whig colleagues raised these sentences as a matter of outrage five times in Parliament.8 While Whig opinion was also shocked by the English punishments for sedition, these entailed at most imprisonment for up to two years with a fine of up to 200 pounds per offence (and additional sureties for good behaviour after release). This penalty, while certainly severe enough to ruin the health of some prisoners and their families, was not judged by

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contemporaries to be nearly as harsh as transportation to New South Wales.9 The Order in Council confirming Gerrald’s sentence of transportation demonstrated little interest in his exact destination: he was to be banished “to the Eastern Coast of New South Wales, or some one or other of the Islands adjacent thereto”.10 Joseph Norris, the Scottish Clerk of Justiciary, compiled a report to answer the Foxite criticisms of the Scottish sentences, relying heavily on precedent, quoting extracts of cases from 1687 to 1754 to show that in Scotland transportation was a perfectly legitimate sentence for sedition (“a very heinous Crime, and of the most dangerous tendency”).11 Transportation was very deliberately chosen by the judges in Muir’s case, however. Contemporaries had not expected more than a short prison sentence: Reverend James Wodrow of Stevenston, Ayrshire, told his friend Samuel Kenrick days before Muir’s trial began, “I suppose it will end as most of these tryals [sic] have. It draws little attention.”12 The printers John Morton, James Anderson and Malcolm Craig had each been sentenced to prison for nine months for sedition in January 1793 with a surety of 1000 merks (around fifty-five pounds sterling) to keep the peace for a further three years. Their penalty was comparable with – indeed, somewhat lighter than – the sentences for sedition in England in the 1790s. It was justified by their judges on the grounds that they were young and not “inveterate offenders” and that their crime had been a single, drunken incident at Edinburgh Castle among soldiers, although Lord Henderland did dwell at some sadistic length on the alternative possibilities of whipping, transportation and capital punishment.13 In Muir’s case, however, in August 1793, the offence was bound up with a sustained campaign for radical political reform carried out since at least July 1792 and aggravated by his having skipped bail and been outlawed in January. Henderland considered that a heavy fine would be unfair on Muir’s parents, who had already paid his bail, that whipping was “too severe and disgraceful” for a man of “his character and rank in life”, and that imprisonment was too temporary.14 He had earlier observed that “Long imprisonments are usual in our neighbouring country [England]; their accommodations for it are great: – they are not usual here”, and had expressed the desire for a secure prison to be located in Edinburgh Castle.15

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It is also worth noticing that by August and September 1793, when Muir and Fyshe Palmer were sentenced to transportation, the second Scottish Convention of the Friends of the People had been held, in May 1793, and Britain had been at war with France since February. By January 1794, when Skirving, Margarot and Gerrald were also condemned to transportation, their trials were centrally concerned with the roles of each man in the British radical reform convention in December 1793 which had followed the third Scottish convention in October 1793. Timing, tied closely to the occurrence of the radical reformers’ conventions, may have been as important as the jurisdiction in question for the severity of the sentencing. The next set of leading reformers to be arrested – Robert Watt, David Downie, and the leaders of the LCS and the Society for Constitutional Information (SCI) in London  – were charged with a crime for which capital punishment was the sentence.16 Moreover, the sentences of transportation were imposed fewer than ten years after the passing of the 1785 “Act for the more effectual transportation of felons and other offenders in that part of Great Britain called Scotland”.17 That Act had been passed as a sequel to the equivalent legislation for England in 1784, permitting the continued use of the hulks which had been used to imprison convicts since the removal of the American colonies as a destination for transported criminals in 1776, and extending their use to temporary holding locations for convicts awaiting transportation. Since 1776, moreover, Parliament had debated many new potential locations for a British convict colony, ranging from Falkland Islands to the East Indies. The Gambia and Senegal were rejected partly because it was considered unlikely that north Europeans would survive their climate. New South Wales was settled upon only in 1785.18 The debates on the sentences of the “Scottish martyrs” should therefore be understood in the context of an ongoing political discussion of why and how transportation should be imposed as a penal sentence. While convictions were secured in the Edinburgh trials of Watt and Downie for high treason in September 1794, in contrast to the acquittals in London of Hardy, Horne Tooke and Thelwall between October and December that autumn, the English authorities did convict James O’Coigly of high treason in 1798 and he was executed as Watt had been. The fact that only two men were tried for one case of treason in Scotland

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across the decade makes it impossible to suggest that the Scottish courts were more likely to convict than the English on this charge. Much research remains to be carried out on local prosecutions for sedition, most of which are not recorded in Howell’s Complete Collection of State Trials volumes.19 When only the English cases for offences of sedition in the 1790s which are listed in State Trials are considered, four out of fourteen defendants were acquitted (28.5 per cent). Of the 129 defendants on trial for sedition in England in the 1790s, identified by Clive Emsley in 1982, thirty-three were acquitted (25.5 per cent).20 None of the twenty-five defendants in trials for sedition or seditious practices in Scotland in the 1790s were acquitted, though one was pardoned (Charles Sinclair), and the cases against three collapsed (William Elder, James Smith and James Menzies). Of the remaining twenty-one, fourteen were convicted and seven were outlawed because they fled before standing trial. This certainly suggests a lower chance of achieving an acquittal in Scotland, but it should not obscure the fact that a great majority of convictions were secured in these cases of sedition on both sides of the border in the 1790s. The legal systems of England and Scotland, as Foxite questions implied and Norris’s report corroborated, remained distinct after the Union of 1707. In England there was no crime of “sedition”, and seditious libel was a misdemeanour, usually heard before magistrates, not a felony as in Scotland, heard by the High Court. This is one of the reasons why it could be punished with transportation in Scotland but not in England.21 The criminal law in Scotland, based on Roman law, prioritised “the safety of the state … before the rights of the individual”, and it awarded substantial discretion to a judge over the written law.22 On the other hand, the English law of treason was imported into Scots law in 1709, and suspension of the Scottish Act anent Wrongous Imprisonment in May 1794–July 1795 and in April 1798–March 1801 had the same result as the suspension of Habeas Corpus in England in the same periods.23 And even the laws on sedition were characterised by substantial similarities in both jurisdictions: they had not previously been defined in statute law, both depended on interpretation of intention on the part of the accused, and in both countries seditious activities were declared in the 1790s to be approaching treason. The Scots law of sedition was based on written legal authorities, and few cases of seditious offences had been brought in

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Scotland during the eighteenth century until its last decade, resulting in a dearth of precedent to be referred to during the trials.24 The more common crime prosecuted in Scotland in the eighteenth century was leasing-­ making, which involved disrespectful words about the king without any purpose behind them to raise action against the British state or constitution. Punishment for this crime, however, was also arbitrary according to the seriousness of the case, barring the capital penalty.25 The English law of sedition was more frequently used over the eighteenth century and therefore more familiar in the courts. It was, however, as in Scotland until 1793, considered a quality of some other offence such as a libel or a riot, which necessitated a similar potential legal pliability to that in Scotland. Seditious libel was only defined in English statute law in 1795.26 In Daniel Isaac Eaton’s trial for publishing a seditious libel in June 1793, his counsel, Felix Vaughan, complained that, “Among the numerous proceedings observable in our jurisprudence, there is no proceeding which contains so much obscurity, ambiguity, and confusion, as this charge of sedition, malice, and so on, by libel.”27 In their sedition trials, furthermore, the Scots law officers leant on recent English precedents. The defence tried to insist on differences in the law in each jurisdiction, but the legal distinction was not accepted by the court as making any difference in practice. Lord Braxfield insisted that Sedition in England, gentlemen, must be sedition here; and sedition here must be sedition in England; and it would be right in forming your opinion to have an eye upon the judgments of the English courts, who have condemned the publication of that work [Paine’s Rights of Man].28

The authorities in both countries, wishing to inflate the offence of sedition in a jury’s eyes, argued that there was a fine line in any case between sedition and treason.29 This was easier in Scotland, since both were crimes tried in the High Court. Yet already in Paine’s trial in absentia in London for seditious libel in December 1792, Archibald Macdonald (then Attorney General), told the jury that “With respect to the matter, in my conscience I call it treason, though technically, according to the laws of the country, it is not.”30 And as early as the trial of Morton, Anderson and Craig in Edinburgh on 8 January 1793, Lord Henderland was

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s­ uggesting that damning the king should be taken literally as expressing a wish for his death.31 Joseph Norris’s notes in late 1793, defending the sentence of transportation of Muir and Fyshe Palmer, blurred the distinction in law as well as in effect. He claimed that the sixteenth-century Scottish jurist John Skene had translated the crime denoted Seditio Regni by the medieval Scots law authority, Regiame Majestatem, as “Sedition against the Realm”, and noted that “this crime was capital by the law of Scotland and punished as Treason”.32 Sir John Mitford made it clear to Hardy’s jury in October 1794 that in his opinion Margarot and Gerrald should have been tried for treason rather than sedition in Edinburgh.33 He was of course trying to establish the legitimacy of charging his defendant with treason for the act of radical political campaigning; but the same opinion had been expressed by Margarot’s and Gerrald’s judge, Lord Braxfield, in the Circuit Court in Inverness in the previous month.34 The scale of the campaign to seize those accused of political crimes did differ markedly in each jurisdiction, but this largely reflects their different sizes. The Scottish court system was smaller and correspondingly less complex.35 The operations to seize the Scottish prisoners were much more restricted, focusing on two individuals operating distinctly in summer 1793, and the handful of leaders of the British Convention in December. The English authorities, however, conducted vast investigative operations in London and Sheffield (where Henry Redhead Yorke had been based), arresting thirty-three London leading reformers in the major sweep of May 1794 alone, and they were preoccupied with uncovering the connections of their prisoners with political reformers throughout Britain. Had Thomas Hardy, secretary to the LCS, corresponded with or did he know named individuals in Sheffield, Birmingham, Norwich, Edinburgh, Newcastle, Stockport, Warrington, Newton, Derby, Manchester, Nottingham, Longacre and Kilmarnock?36 The government spent substantial sums of money on some provincial sedition cases. The Treasury Solicitors’ bill came to 622 pounds, seven shillings and sixpence for enquiries made in Plymouth between 10 December 1792 and 28 April 1794, entirely in relation to Winterbotham’s prosecution. This was to meet the costs of “searching for evidence” (twice), the “loss of time” for various witnesses, petty expenses, and “a vast number of Attendances on the witnesses”. Most of this money was spent before the trial in July 1793,

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well before the main period of active government alarm raised by the prospect of a serious pan-British radical convention.37 None of these differences in themselves necessarily led to a comparative justice deficit in the Scottish trials if that is evaluated by adherence to the laws of each jurisdiction.38 The major difference was the sentence of transportation found available to punish sedition in Scotland but not in England. In 1793–94 the Scottish authorities prosecuted what they were sure they could convict, whereas in the most famous English cases, the authorities were playing for the highest stakes, and lost. The great majority of English cases, however, were for sedition, and resulted in convictions, just as in Scotland.

II If a greater abuse of power in the Scottish state trials is at least debatable on the issues of convictions, sentences, legal system and scale, it is easier to demonstrate cross-border comparability than contrast with regard to the charges, juries, judges, evidence and rationale. Although the trials of Muir, Fyshe Palmer, Skirving, Margarot and Gerrald in Scotland on the charge of sedition are usually contrasted with those of Hardy, Horne Tooke and Thelwall in England for treason, they are more properly compared with the trials of defendants such as Frost, Eaton and Winterbotham for sedition, and the English treason trials compared with those of Watt and Downie in Edinburgh. This eliminates most of the question of the Scottish and English authorities pressing different charges. The application of the charge of treason to London discussions of a convention or to the collection in Edinburgh of a few pikes and a handbill encouraging soldiers to mutiny was of course overblown, but the choice of prosecuting for treason rather than sedition again seems to have owed as much to timing as to jurisdiction. Watt and Downie were tried for treason in Edinburgh in August and September 1794, and Hardy, Horne Tooke and Thelwall were tried for treason in London over the following three months. The charge was pressed in the wake of the failure of the Scottish sedition trials of January 1794 to close down discussions among extra-­ parliamentary radical reformers of a political convention. Skirving,

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Margarot and Gerrald were arrested during the sitting of the British Convention in December 1793, which had followed closely on the heels of the third Scottish Convention of the radical Friends of the People societies and had succeeded that body, incorporating a handful of English and Irish delegates. Their sentences of transportation for fourteen years each did nothing to prevent the members of the LCS and the SCI from planning a further convention. This intended convention was therefore one of the chief concerns of the House of Commons Committee of Secrecy examining the activities of the LCS and the SCI in two reports published on 16 May and 6 June 1794, because it implied an autonomous anti-parliament inspired by the revolutionary National Convention in Paris.39 “I call them French Conventionists”, Robert Dundas, the Scottish Lord Advocate, had declared in summing up for the prosecution of Margarot; “it is the essence of the charge against them”.40 It is true that Scottish juries were easily packed and controlled from the bench  – “the hireling Jury and the Judge unjust”, as Southey dubbed them. The selection of Scottish jurors, Cockburn noted, proceeded at the judge’s “absolute, unexplained, unchecked, unquestioned, unquestionable, mysterious pleasure”.41 David Lemmings suggests that there was a much stronger historical tradition of popular participation and community influence over English trials, of which the jury was an important part, than in Scotland, where the dominance of lawyers was more powerful.42 Until 1825 Scottish defendants did not have the right of the English accused to object to a certain number of jurors without reason, but must successfully argue the case for each protest. Objections to jurors on political grounds made by Muir, Skirving, Margarot and Gerrald were all repelled.43 There were no outright acquittals in the Scottish cases for sedition or treason.44 Too much can also be made of the libertarian tradition of English juries, however, pace Cockburn, who optimistically suggested that an Englishman such as Margarot in January 1794 “had never seen, and probably never fancied the jury, in a political case, being selected by the presiding judge”.45 John Ehrman judges that Horne Tooke’s jury was “obviously packed”, perhaps unsurprisingly after the government had lost its prosecution of Hardy’s case.46 English defendants were not allowed, any more than Scots, to know the list of potential jurors in advance, as

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the owners of the Morning Chronicle, James Perry and James Gray were told in their trial for seditious libel in December 1793.47 Nor were they permitted to object to any potential jurors when the trial began without citing a cause acceptable to the judge, as Henry Redhead Yorke found at his trial for seditious conspiracy in Sheffield in July 1795.48 Moreover, Scottish juries had always had the right to decide on law as well as on fact, which English juries only won with Fox’s Libel Act of 1792 (though this did not apply in cases of treason).49 That Act also involved the concession of the right of English judges to instruct juries, and this they certainly did in the political trials of the 1790s, such as Sir John Mitford and Sir James Eyre in autumn 1794, and Lord Kenyon in the cases for sedition of John Frost in 1793 and of the veteran radical publishers Joseph Johnson and Jeremiah Jordan in 1798.50 On the other hand, occasionally a jury, such as Winterbotham’s, decided against a defendant despite the advice of a more liberal judge.51 Muir’s jury was made up of one baronet, seven ­gentlemen, three merchants, two bankers, a bookseller and a portioner or smallholder. It was clearly drawn from the comfortably off ranks of society; but then, so was Muir himself, a legal advocate and the son of “a flourishing hop merchant and grocer”, so it cannot be claimed that he was not tried by his peers.52 Hardy’s jury in London was, comparably, a collection of “substantial London businessmen”, brewers and wholesale grocers; all of the major London trials involved special juries, which were socially selective.53 It is not, then, obvious that the Scottish juries had less liberty or acted less liberally than their English counterparts in comparable cases. Evidence that the Scottish judges were more unreasonably harsh than their English counterparts has been obscured by the particularly two-­ dimensional portrayal of Robert McQueen, Lord Braxfield, Lord Chief Justice Clerk of Scotland, and by the differences in the legal systems. Brian D. Osborne’s biography of Braxfield usefully questioned the caricature of cruelty and crudity created by Henry Cockburn and by Robert Louis Stevenson’s Weir of Hermiston (1896), and still frequently perpetuated. Osborne portrays a much more sympathetic, warm, cultured and sociable character, details the esteem in which he was held by the profession over most of his career and by his clients, and demonstrates that there is no evidence for Braxfield having uttered some of the more

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regrettable remarks attributed to him.54 Meanwhile in England, in 1792 Lord Camden, supporting Fox’s Libel Bill’s extension of the rights of juries in cases of seditious libel, told the House of Lords that (English) judges might be susceptible to political influence and therefore it was safer to allow a jury to decide intention.55 And John Barrell’s and Jon Mee’s assessment of Sir James Eyre in Hardy’s trial is that he summed up “for a conviction, paying much more attention to the evidence for the prosecution than to that for the defence, and treating [the defence counsel]’s legal arguments with brief contempt”.56 Joseph Gerrald raised an objection to Braxfield’s sitting on his case because he had been heard, outrageously, prejudging all of the January 1794 cases at a private dinner.57 However, according to Sir John Scott’s later account, Eyre similarly expressed the view in the Privy Council’s pre-examination of the treason trial defendants in 1794, that they were guilty.58 He may have done so in a less coarse manner than Braxfield was reported to have done, but that he did so was no less procedurally objectionable. Scott also said, however, that Eyre became less certain of this assessment over the course of Hardy’s long trial and, in Horne Tooke’s trial, Eyre eventually came down on the side of his defence.59 It is difficult to imagine any of the Scottish trial judges expressing doubts about these cases; and at best they were undeniably energetic in their suppression of reform politics. Osborne also noted that even Braxfield’s colleagues, such as Robert Dundas, branded him “violent and intemperate”. Indeed, the Dundases ensured that Braxfield was only one of a commission of nine judges to sit on Watt’s and Downie’s treason trials in early autumn 1794 because his behaviour both on and off the bench was indefensible.60 Osborne’s point that Braxfield, while perhaps the most colourful and egregious of the Scottish High Court judges active in these cases, was by no means out of step with colleagues such as Lords Henderland, Swinton, Eskgrove and Abercrombie, is important for assessing Braxfield himself, but it does not rescue the Scottish judges from the charge that they were worse than their English counterparts. “God help the people who have such judges!” Fox is said to have exclaimed.61 Certainly, the Scottish judges often seemed to be engaging in prosecution from the bench.62 Yet this approach was consistent with Scottish criminal law tradition as recently established by Anne-Marie Kilday.

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Kilday notes that in pre-modern Scotland, criminal prosecutions did not usually proceed where there was room for doubt about the verdict. Defence was virtually redundant in court because of the weight of investigation carried out before a trial to remove doubt of guilt, and the primary concern in the trial was therefore to lay out evidence of guilt rather than to presume innocence until proven otherwise.63 Understanding the Scottish trials for sedition in the light of Scottish criminal trial tradition suggests a facet beyond a simple monstrous brutality in the Scottish bench in 1793–94, without removing the need to admit Braxfield’s overenthusiasm for conviction and punishment in these political trials.64 Clearly a condition of prosecuting only when confident of the verdict did not hold in the case of the London prosecutions for treason in 1794. The contrast between the conduct of the judges in Edinburgh and London, though perhaps difficult to deny, is then too closely based on the Privy Council’s decision to try treason in autumn 1794, to stand as an absolute contrast between similar instances. In both Scottish and English trials evidence which was indirect, circumstantial and obtained by spies formed an important part of the prosecution’s case. Just as in the prosecution of the Baptist preacher William Winterbotham in July 1793, witnesses’ memories of speeches delivered but not printed were crucial in the trial of Henry Redhead Yorke two years later for seditious conspiracy.65 Felix Vaughan complained of the prosecution’s employment of Loyal Association members, spies and informers to procure evidence against Daniel Isaac Eaton in his trial for publishing a seditious libel.66 There was, as Barrell and Mee put it, “a running argument” in Hardy’s trial regarding the admissibility of evidence.67 It was very difficult to bring anything other than indirect evidence to support a case of intention, of course; and the prosecution insisted that the timing of the radical conventions and the activities of the radical societies were crucial in defining their activities as seditious. Muir’s question posed no difficulty to his prosecution: “Shall what was patriotism in 1782 [reform politics], be criminal in 1793?”68 Robert Dundas had already argued in January 1793, in the prosecution of Morton, Anderson and Craig, that “what at one time would be considered as an act of mere folly and rashness, and as having no seditious tendency, is, at another, and at a different conjuncture, an act of a more mischievous and serious nature”.69

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English courts admitted highly questionable evidence, such as a letter from Thelwall to a friend in America which had never been posted, or the perjury of the spy John Taylor in the same trial, and even manufactured evidence, the most flagrant of which perhaps was that brought by the spy Edward Gosling in Hardy’s prosecution, inflating radical plans for armed insurrection.70 Manipulation of the process and drastic tactics were therefore apparent south as well as north of the border. The London “Pop Gun” plot of September 1794 was thought by radicals to have been seized on by ministers, despite its absurdity, because it occurred in the latter stages of preparation of the case against Hardy and might add to the weight of circumstance being stacked against him.71 There is plenty of evidence of ruthlessness surrounding the English trials, such as John Richter’s complaint of the brutality with which his house was searched by the authorities when he was arrested in May 1794.72 On the other hand, the evidence allowed by the courts in both jurisdictions to be brought or discussed by the defence was often very limited.73

III The desperation of such tactics and the harshness of the courts in both jurisdictions beg the question as to why the authorities acted in such a fashion. Much of the published work on these trials is focused on the defendants. Government ministers, and their legal and administrative officers, who are somewhat shadowy figures, are sometimes implicitly treated as cruel opportunists rather than considered with greater curiosity. The question is not, whether or not it was reasonable for them so to fear apparently subversive activity that they took such drastic action to subdue it, but whether they in fact feared it, realistically or otherwise. How far did prosecutors and government ministers believe their own “wilder imaginings”?74 It is perhaps too attractive, with the benefit of hindsight, to follow the Whig defence counsel, Thomas Erskine, in accusing the Pitt administration of deliberately piecing together disparate pieces of evidence to construct the appearance of a widespread and dangerous but ultimately unconvincing plot.75 Given the context of revolution across the Channel, which had descended during 1793–94 into its

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most violent and arbitrary phase, and whose leaders had declared their willingness to encourage revolution abroad as recently as 1792, and given also the circumstances of a war which was not only strategic but ­ideological, it should not be surprising that the British government was easily alarmed by hints of conspiracy, convention, and arming. Nor is it remarkable that the authorities wanted, in an age before substantial police resources, to deter such activity unambiguously.76 Paine’s prosecutors argued that the popular style and cheap price of his Rights of Man demonstrated that he had intended to rouse the lower orders against the government, and the charge was frequently made that defendants had deliberately sought to rally the poor, characterised variously by the prosecution as “the mob” and the ignorant but well-­ meaning.77 Regardless of the fact that Lord Braxfield’s summings-up were laden with hyperbole and exaggeration, it is not at all impossible that the authorities seriously believed that the institution of universal manhood suffrage would lead to anarchy, as he claimed.78 It may have been a “hysterical” or “delusive” conviction on their part, but it is arguable that government ministers and senior legal officers believed that there was a conspiracy to overturn the government, and not entirely absurd that they should have feared it. It had happened in France.79 Sir John Scott later explained that he had taken nine hours to lay out the evidence for a charge of high treason against Hardy, not because convictions were the most important objective, but rather to demonstrate to the country all the evidence of its danger from the radical plotters: the swift spread of radical organisation in aid of the campaign for popular sovereignty, involving societies, sophisticated structures, correspondence, publications, an Anglo-Scottish-Irish convention of delegates, plans for emergency organisation, and hints of arming.80 Scott’s exhaustive and exhausting effort to convince the jury of Hardy’s treason certainly, as Barrell points out, exposes the weakness of the decision to try for treason; it does not suggest that he and his colleagues were not afraid of the radical movement.81 The utter defeat of the government argument in Hardy’s prosecution, whose jury took only eight minutes to decide on his acquittal, raises the question as to why ministers persevered with the trials of Horne Tooke and then Thelwall if not because they were convinced of danger.

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In fact another common government concern, rarely discussed, was with legality or at least its appearance.82 The “purchase” of the ideology of the rule of law, discussed by John Brewer and John Styles, is frequently apparent in statements and actions of ministers and law officers during these trials.83 In John Frost’s sedition trial, the Attorney General (unlike Rooke in Winterbotham’s case or Law in Yorke’s) at least discussed the difficulties involved in determining the criminality or otherwise of words spoken in the past.84 In Thomas Fyshe Palmer’s trial, Lord Abercrombie put up with a great deal of long-winded defence from the advocate John Haggart (whom Cockburn denounced as “a disgrace to any cause”), wearily responding to him at one point, “Take your own time … No, you are not obliged to me. It is your privilege and your right”, before submitting to another lengthy disquisition.85 The lengthy report of May–June 1794 by John Bruce into the Jacobite treason trials of the late seventeenth and early eighteenth centuries is a fascinating investigation of legal precedent, and not the only report Bruce was commissioned by Dundas to compile in the 1790s in order to establish historical models of process.86 On 11 October 1794 Sir John Scott and Sir John Mitford asserted that judges who were Privy Councillors must rule on the individual cases of permission sought by various individuals to visit the prisoners on the charge of high treason, rather than the trial judges, who needed to be seen as impartial towards the prisoners – perhaps not a very high standard of judicial transparency, but clearly they thought it was worth stating.87 Sir James Eyre allowed Horne Tooke to stand with his defence team rather than in the dock for his trial because of the volume of evidence that was involved, and conscientiously warned him repeatedly against admitting what he did not have to admit.88 Eyre sided with the defence on the credibility of the spies Gosling and Taylor. Sir Richard Perryn summed up, though unsuccessfully, for an acquittal in Winterbotham’s second trial.89 Even Lord Braxfield wanted to be clear that Skirving should not have been exempted from trial by the fact of his having stood as a witness for the prosecution at Palmer’s trial, though his scruples were easily assuaged by the fact that Skirving had not been called to give evidence; and all of Margarot’s many attempted legal challenges were heard and replied to, if with increasing judicial impatience.

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The bench was often long-suffering with defendants and defence, Braxfield for instance responding to a rebuke from Gerrald midway through his summing-up, rather than repressing Gerrald’s intervention.90 The judges and prosecution in the treason trial of O’Coigly, O’Connor, Binns, Allen and Leary were clearly horrified by evidence that an attempt had been made to influence the jury ahead of the trial, even though they decided that the jurors could not be discharged without impugning their characters.91 The likenesses between the sedition trials in Scotland and England, and between the treason trials in both jurisdictions, reflect the common context of panic among the political elite caused by the French Revolution and perceived constraints on the state, more clearly than differences of articulation demonstrate rougher justice in Scotland. The authorities in both countries were deeply interested in and fearful of nationwide and cross-border correspondence between political reformers, past and prospective radical conventions, popular politicisation, French influence upon radical reformers and the prospect of French aid or invasion, an Anglo-Scottish-Irish-European conspiracy to overthrow the British government, law and order and the social hierarchy, and the arming of British subjects.92 In both countries these prosecutions were show trials, staged “to deter others from Committing the like Crimes in all time coming”, and in both countries public loyalist participation and brutality were in evidence.93 The constant in both sets of trials was Henry Dundas, Home Secretary till July 1794, through the two periods of the Scottish sedition trials and the weeks of seizing leading reformers in England in May and June 1794. It was Dundas who commissioned John Bruce’s report into historic treason trials in May 1794. Moreover, although he became Secretary of State for War in July 1794, he remained centrally involved in the Privy Council pre-trial examinations of the prisoners, whose memoirs show that he led their questioning.94 He continued to manage Scottish political affairs on Pitt’s behalf (which of course included the treason trials of Robert Watt and David Downie in September). More broadly, after July 1794 Dundas continued to operate in the inner Cabinet triumvirate with Pitt and Grenville. That month, Pitt had written of Dundas that “every act of his [is] as much mine as his”.95

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IV All of the factors discussed in this chapter require much fuller examination than space here permits, and there are many more factors which remain to be compared in these two sets of trials, such as the government’s choice of defendants, the nature of the pre-trial procedures, the language used by prosecutors and defendants, the role of defence counsel (sometimes distrusted by defendants), and the witnesses and their roles. The preceding argument has suggested that the sedition and treason trials in Scotland and England in the 1790s were less dissimilar than the radical and Whig interpretation claimed and than the headline contrasts suggest. The lingering sense of rougher justice in Scotland during these trials is certainly supported by the behaviour particularly of Lord Braxfield, and by the harsher sentences available to the Scottish judges for the crime of sedition. Some contrasts between the trials in the two jurisdictions, however, do not appear to have been clearly responsible for lesser justice for defendants in Scotland, such as the choice of charge pressed against the defendants, the verdicts reached, the difference in legal traditions and the scale of operation. Many facets of the trials, moreover, seem to have been comparable, such as the treatment of juries, the general behaviour of judges, the permission of indirect and circumstantial evidence in the prosecution’s case, and the manipulation of courtroom procedures to weight the probability in favour of conviction. The impression of a comparative justice deficit has been exaggerated by three factors. First, Whigs and radical reformers, not altogether unreasonably but nevertheless inaccurately, saw a two-dimensionally tyrannical state. Britain in 1793–94 was not Paris – it was governed by an alarmed conservative elite, not a cold-bloodedly tyrannical despotism. The Whigs themselves were badly treated, particularly in Scotland, where many of them were legal advocates whose careers suffered because of the trials. But both Whigs and radical reformers, therefore, had their own agenda in commenting on the trials, and we should not follow their interpretations unquestioningly. Even in the Scottish trials, the results were not quite a foregone conclusion, although Braxfield and his colleagues did their best to help the prosecution secure victory.96 Second, the trials most often correlated are not properly comparable because the most infamous ­

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Scottish convictions were for sedition, and they have been contrasted with acquittals in England for treason. Treason was undoubtedly the wrong charge to have pursued in London in autumn 1794, and the correct verdicts were reached by Hardy’s, Horne Tooke’s and Thelwall’s juries. Third, timing, rather than the jurisdiction in question was crucial for the severity of sentencing, which was closely tied to the occurrence and anticipation of radical reform conventions. While such a conclusion vindicates the sequential approach often taken to examining the trials in Scotland and England, the comparability of the English and Scottish prosecutions has not previously been properly scrutinised. The two most important commonalities between the Scottish and English trials of the 1790s, which dominated over the legal elements, were the French Revolutionary context which created the climate of political alarm throughout Britain, and the Pitt administration at Westminster which governed both jurisdictions. Within the Pitt administration, Henry Dundas was crucial. Dundas was the single most influential individual involved in the trials across Great Britain. It is not surprising that the political trials of the decade in both jurisdictions straddled by him were harmonised in so many respects. Acknowledgement  The author wishes to acknowledge with gratitude funding from the Carnegie Trust for the Universities of Scotland (ref. 70422) in support of research for this chapter.

Notes 1. LCS General Meeting, 14 April 1794, in Mary Thale (ed.), Selections from the Papers of the London Corresponding Society, 1792–1799 (Cambridge, 1983), 133. 2. Cited by Nicholas Roe, “The Lives of John Thelwall”, in Steve Poole (ed.), John Thelwall: Radical Romantic and Acquitted Felon (London, 2009), 17. 3. Cockburn, Examination, I: 246. 4. John Ehrman, The Younger Pitt, Vol. 2: The Reluctant Transition (London, 1983), 390; cf. Atle L. Wold, Scotland and the French Revolutionary War, 1792–1802 (Edinburgh, 2015), 67–69.

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5. Gordon Pentland, “State Trials, Whig Lawyers and the Press in Early Nineteenth-Century Scotland”, in this volume; see also Jim Smyth and Alan McKinlay, “Whigs, Tories and Scottish Legal Reform c.1785– 1832”, Crime, Histoire & Sociétés / Crime, History and Societies, 15 (2011), 111–32. 6. Henry W. Meikle, Scotland and the French Revolution (Glasgow, 1912), 155–60. 7. Henry Cockburn, Memorials of His Time (Edinburgh, 1856), 116. 8. Ehrman, The reluctant transition, 390; Wold, Scotland and the French Revolutionary War, 52. 9. Clive Emsley, “An Aspect of Pitt’s Terror: Prosecutions for Sedition During the 1790s”, Social History, 6 (1981), 173. 10. The National Archives [TNA], PC 1/22/37, 31 December 1794. Draught of an Order in Council Declaring and appointing the Place to which Joseph Gerald who has been Sentenced to be Transported in Scotland beyond the Seas shall be Conveyed, f.5. 11. National Records of Scotland [NRS], GD 214/658/1; draft at NRS JC 49/6JC 49/6. 12. Dr. Williams’s Library, London, James Wodrow to Samuel Kenrick, 24 August 1793. 13. State Trials, XXIII: 22–4. 14. Ibid., 233. 15. Ibid., 25. 16. By contrast, the failure of the London treason trials in autumn 1794 caused the authorities to prosecute Henry Redhead Yorke for seditious conspiracy rather than, as originally planned, treason. Timing was also responsible for his charge. Amanda Goodrich, “Radical ‘Citizens of the World’, 1790–95: The Early Career of Henry Redhead Yorke”, Journal of British Studies, 53 (2014), 634. 17. 25 Geo III c.46. 18. A.G.L Shaw, Convicts and the Colonies. A Study of Penal Transportation from Great Britain and Ireland to Australia and Other Parts of the British Empire (London, 1966), 38–57. See Henry Dundas to William Grenville as early as 17 Dec. 1789 for Dundas’s opinion that employment in public works in Scotland such as canal building were not an appropriate substitute for transportation. “Death, transportation and Bridewell are … the only variety of punishment that the manners of our country will admit of.” Historical Manuscripts Commission, Thirteenth Report,

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Appendix, Part III, The Manuscripts of J.B.Fortescue, Esq., Preserved at Dropmore, 10 vols (London, 1892–1927), X: 555–6. 19. But see Steve Poole, “Pitt’s Terror Reconsidered: Jacobinism and the Law in Two South-Western Counties, 1791–1803”, Southern History, 17 (1995), 65–87. 20. Emsley, “An Aspect of Pitt’s Terror”, 179–84. 21. I am grateful to Lindsay Farmer for advice on this point; see his Making the Modern Criminal Law (Oxford, 2015), p. 71. 22. Christina Bewley, Muir of Huntershill (Oxford, 1981), 83; Lindsay Farmer, Criminal Law, Tradition and Legal Order: Crime and the Genius of Scots Law, 1747 to the Present (Cambridge, 1997), 44. 23. John Cairns, “Scottish Law, Scottish Lawyers and the Status of Union”, in John Robertson (ed.), A Union for Empire: Political Thought and the British Union of 1707 (Cambridge, 1995), 250; Lisa Steffen, Defining a British State: Treason and National Identity, 1608–1820 (Basingstoke, 2001), 5–6; Paul Halliday, Habeas Corpus: From England to Empire (Cambridge, MA and London, 2010); Wold, Scotland and the French Revolutionary War, 17. 24. Wold, Scotland and the French Revolutionary War, 38–69, 209; idem, “Was there a Law of Sedition in Scotland? Baron David Hume’s Analysis of the Scottish Sedition Trials of 1794” in Gordon Pentland and Michael T.  Davis (eds), Liberty, Property and Popular Politics: England and Scotland, 1688–1815. Essays in honour of H.T.  Dickinson (Edinburgh, 2016), 163–75. Lindsay Farmer points out in his Chap. 2 in this volume that sedition per se was not a crime in Scots law until 1793. Until that year, as in England, it was treated as a quality of some other offence, such as libel or the related offence of leasing-making. 25. Wold, Scotland and the French Revolutionary War, 48–51. 26. Ibid., 58; James Epstein, “‘Our Real Constitution’: Trial Defence and Radical Memory in the Age of Revolution”, in James Vernon (ed.), Re-reading the Constitution: new narratives in the political history of England’s long nineteenth century (Cambridge, 1996), 35; Barrell and Mee, Trials, I: xliii, 352. 27. State Trials, XXII: 801. 28. Ibid., XXIII: 230. 29. Barrell, Imagining the King’s Death, 164–5. 30. State Trials, XXII: 383. 31. Ibid., XXIII: 11–12, cf. Barrell, Imagining the King’s Death, passim.

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32. NRS, GD 214/658/1, unfoliated, [18]. 33. State Trials, XXV: 512. 34. Barrell and Mee, Trials, V: 475–6. 35. Ehrman, The reluctant transition, 391; Poole, “Pitt’s Terror Reconsidered”, especially 65–73; Farmer, Criminal Law, Tradition and Legal Order, 66–74; Anne-Marie Kilday, “Contemplating the Evil Within: examining attitudes to criminality in Scotland, 1700–1840”, in David Lemmings (ed.), Crime, Courtrooms and the Public Sphere in Britain, 1700–1850 (Aldershot, 2013), 151–2. 36. TNA, PC 1/21/35A, 14th May 1794. Copy. Examination of Jere.h Joyce Tho.s Hardy and John Thelwall. Evidence Wm Mainwaring Esq.r Rt Hon.ble W.m Pitt Mr. John King. Ross & Thaw, Messengers. Office. 37. TNA, TS 24/1/2, ff. 1–5, The Treasury Solicitors’ (Chamberlayne and White) bill for “Seditious Prosecutions”. 38. Epstein, “‘Our Real Constitution’”, 36. 39. T.M. Parsinnen, “Association, convention and anti-parliament in British radical politics, 1771–1848”, English Historical Review, 88 (1973), 512– 15 Barrell, Imagining the King’s Death, 182–210, passim; The First Report from the Committee of Secrecy of the House of Commons (London, 1794), 8–9, 20, 27, 40, 42; The Second Report from the Committee of Secrecy of the House of Commons (London, 1794), 11–12, 15, 49ff. 40. State Trials, XXIII: 700. 41. Robert Southey, “To the Exiled Patriots. MUIR AND PALMER” (1794), in The Poetical Works of Robert Southey, complete in one volume (Paris, 1829), 698; Cockburn, Examination, 80–3. In Scottish criminal cases till 1825 a jury of 15 men was selected by the judge from a pool of 45 presented to him by the clerk of the court. Smyth and McKinlay, “Whigs, Tories and Scottish Legal Reform”, 116, 129; T.J.  Dowds, “Muir’s ‘Good Cause’ 1820”, in Gerard Carruthers and Don Martin (eds), Thomas Muir of Huntershill: essays for the twenty-first century (Edinburgh, 2016), 266–7. 42. David Lemmings, “Introduction: Criminal Courts, Lawyers and the Public Sphere” in idem (ed.), Crime, Courtrooms and the Public Sphere in Britain, 1700–1850 (Farnham, Surrey and Burlington, VT, 2013), 7. 43. State Trials, XIX: 11 note; ibid., XXIII: 134–5, 513, 679–80, 701, 901. 44. The cases against John Elder and John Smith collapsed in 1793 and that against James Menzies, in 1798.

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45. Cockburn, Examination, II: 28. Henry Yorke, for one, had been accusing the government of packing juries well before his own trial in July 1795. State Trials, XXV: 1049. 46. Wold, Scotland and the French Revolutionary War, 67–9; Ehrman, The Reluctant Transition, 397; Emsley, “An Aspect of Pitt’s Terror”, 170; Epstein, “‘Our Real Constitution’”, 34; Philip Harling, “The Law of Libel and the Limits of Repression, 1790–1832”, Historical Journal, 44 (2001), 115; E.P. Thompson, The Making of the English Working Class, 1780–1832 (Harmondsworth, 1968), 509. See also James Epstein’s chapter in this book, which notes that Winterbotham’s supporters expected his jury to be packed. 47. State Trials, XXII: 965–85. 48. Ibid., XXV: 1004. 49. Ibid., XXIII: 114 and note, referring to John Burnett, Criminal Laws of Scotland (Edinburgh, 1811); on trials for treason see Barrell and Mee, Trials, VII: 437, 467–8. 50. Barrell and Mee, Trials, I: xvi-xvii, xliv, 257 note; State Trials, XXII: 254–5516-19; The Prison Diary of Horne Tooke, 15; Kenneth R. Johnston, Unusual Suspects: Pitt’s Reign of Alarm and the Lost Generation of the 1790s (Oxford, 2013), 192. See also the speech of the Recorder in Eaton’s trial in February 1794, State Trials, XXIII: 1047–54. 51. State Trials, XXII: 875–6; see Epstein’s essay in this volume. 52. NRS, JC 26/1793/1/4, 1–9; H.T.  Dickinson, “Thomas Muir (1765– 99)”, ODNB. 53. R.R. Palmer, The age of democratic revolution: a political history of Europe and America, 2 vols (Princeton, 1959), II: 480. 54. Brian D.  Osborne, Braxfield: the hanging judge? (Glendaruel, Argyll, 1997); see, for instance, Bewley, Muir of Huntershill, 83. 55. Peter D.G. Thomas, “Charles Pratt, First Earl Camden (1714–1794)”, ODNB. 56. Barrell and Mee, Trials, V: 324–443, 477 n. 324. 57. State Trials, XXIII: 808. 58. Lord Eldon’s Anecdote Book, eds Anthony L.J. Lincoln and Robert Lindley McEwen (London, 1960), 57; see also Walter Sichel (ed.), The Glenbervie Journals (London, 1910), 212. 59. Lord Eldon’s Anecdote Book, 57; Sichel (ed.), Glenbervie Journals, 213; State Trials, XXV: 555–743; Barrell and Mee, Trials, VII: 467. See also Douglas Hay, “Sir James Eyre (bap. 1734, d. 1799)”, ODNB.

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60. Osborne, Braxfield: the hanging judge?, 218; NRS, RH2/4/83, ff. 178–9, Robert Dundas to Henry Dundas, 27 April 1798. 61. Meikle, Scotland and the French Revolution, 136. 62. Wold, Scotland and the French Revolutionary War, 65; Epstein, “‘Our Real Constitution’”, 38. 63. Kilday, “Contemplating the Evil Within”, 153–54; Farmer, Criminal Law, 43–44. 64. This point is worth much fuller investigation; it has the potential to explain comparative acquittal rates in both countries. There were, however, a number of other factors which affected differences in acquittal rates (such as the proportion of public to private prosecutions, and the difference in law between sedition as a misdemeanour and sedition as a crime, discussed above), so care is required in laying great weight on it here. 65. State Trials, XXV: 1138; cf. Epstein, “Sermons of Sedition” in this volume. 66. Ibid., XXII: 802. 67. Barrell and Mee, Trials, II: 446–47. 68. Ibid., XXIII: 194. 69. Ibid., 10, cf. ibid., 88. 70. Palmer, The age of democratic revolution, II: 480; Steve Poole, The Politics of Regicide in England, 1760–1850 (Manchester, 2000), 97; Barrell, Imagining the King’s Death, 190, 212–16; Barrell and Mee, Trials, VIII: 30, 87–8, 94, 108. 71. Poole, Politics of Regicide, 99. 72. Roe, “The Lives of John Thelwall”, 18. 73. See, at least as reported in State Trials, the cases of Daniel Holt (XXII: 1202–35), Maurice Margarot (XXIII: 672–4), Henry Redhead Yorke (XXV: 1021); and Barrell and Mee, Trials, I: xlvi-­xlvii; ibid., II: 446–7. 74. John Barrell, “Thelwall in his own defence: the Natural and Constitutional Right of Britons”, in Poole (ed.), John Thelwall, 40. 75. State Trials, XXIV: 891. Cf. the Foxite notion of the “Pitt system” of the 1790s more broadly, a wicked, deliberate plan to go to war against France in order to have a reason to expand the power of the executive and create opportunities for personal ministerial gains. E.g. War with France! Or, Who Pays the Reckoning (London, 1793), 23. 76. F.  Murray Greenwood, “Judges and Treason Law in Lower Canada, England, and the United States during the French Revolution,

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1794–1800”, in F. Murray Greenwood and Barry Wright (eds), Canadian State Trials, I: Law, Politics, and Security Measures, 1608–1837 (Toronto: University of Toronto Press, 1996), 241–95. 77. Barrell and Mee, Trials, I: 2–3; State Trials, XXIII: 284, 696–8. 78. State Trials, XXIII: 592; see also Lord Swinton, ibid., 898–9. 79. Horne Tooke, Prison Diary, 11; State Trials, XXIV: 179 and XXV: 258. 80. Lord Eldon’s Anecdote Book, eds Lincoln and McEwen, 55–6. Scott also said (57) it had been necessary to prosecute for treason to prevent an acquittal in a trial for sedition on the grounds that the correct charge would have been treason. This is less convincing, and it is impossible to know whether, vice versa, convictions for sedition might have been secured had that charge been prosecuted instead of the unsuccessful charge of treason. 81. Barrell, Imagining the King’s Death, 329–30. 82. Though see also Katrina Navickas’s essay in this volume; and also E.P. Thompson, Whigs and Hunters: the Origin of the Black Act (London, 1975; 1990 edition), p. 263. Thanks to James Epstein for pointing out the latter. 83. John Brewer and John Styles, An Ungovernable People: the English and their law in the seventeenth and eighteenth centuries (London, 1983), 14, 16, 19. See also H.T. Dickinson, Liberty and Property: political ideology in eighteenth-century Britain (London, 1977), 159–62. 84. State Trials, XXII: 479–80. 85. Ibid., XXIII: 269; Cockburn, Examination, I: 185. 86. John Bruce (1744–1826), previously professor of logic of the University of Edinburgh and by 1794 Under Keeper of the State Paper Office. TNA HO 102/62, [John Bruce], Report by Mr. Bruce on Treason 1794. A copy of part 1 of 7 of this document (ff. 1–52 of 315ff.) is held at NRS, GD152/222/3/5. 87. TNA, PC 1/3111, 11 Oct. 1794. Letter from Mr. Attorney and Solicitor General on the subject of granting permissions to persons to visit the prisoners now under confinement for High Treason. 88. State Trials, XXV: 6–12; Barrell and Mee, Trials, VI: 474. 89. State Trials, XXIV: 1379; Barrell and Mee, Trials, VIII, 94. On Winterbotham, see note 38 above. 90. State Trials, XXIII: 509, 606–7, 629–32, 635–6, 704, 1001. 91. Ibid., XXVI: 1220–1.

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92. E.g. TNA PC 1/21/35A and 35B, passim; First Report from the Committee of Secrecy; Second Report from the Committee of Secrecy; NRS, JC 26/1793/1, passim. 93. NRS, JC26/1793/1/1/1, Criminal Letters His Majesty’s Advocate Agt Mr. Thomas Muir  – 1793. Sedition. Recorded, unfoliated [28]; John Barrell, “Imaginary Treason, Imaginary Law”, in Barrell, The Birth of Pandora and the Division of Knowledge (Basingstoke, 1992), 120; Michael T. Davis, “Prosecution and radical discourse during the 1790s: The case of the Scottish Sedition Trials”, International Journal of the Sociology of Law, 33 (2005), 148–58. 94. Greenwood, “Judges and Treason Law”, 249. 95. HMC, Dropmore, II, 595, Pitt to Lord Grenville, 5 July 1794. 96. See Mike Rapport’s helpful test of a robust legal system in his chapter below; and the figures of casualties of the French Terror cited at his note 8.

Bibliography 25 Geo. III c.46, An Act for the more effectual transportation of felons and other offenders in that part of Great Britain called Scotland, 1785.

The National Archives Home Office Papers, HO 102 Privy Council Papers, PC 1/21, 1/22, 1/3111 Treasury Solicitor’s Papers, TS 24

National Records of Scotland GD 152/222, 214/658 Justiciary Court records, JC 26/1793, 49 RH2/4

Dr Williams’s Library, London Correspondence of Rev. James Wodrow and Samuel Kenrick

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John Barrell and Jon Mee (eds.), Trials for Treason and Sedition, 8 vols (London, 2006). A.V. Beedell and A.D. Harvey (eds.), The Prison Diary (16 May–22 Nov. 1794) of John Horne Tooke (Leeds, 1995). Historical Manuscripts Commission, Thirteenth Report, Appendix, Part III, The Manuscripts of J.B.Fortescue, Esq., Preserved at Dropmore, 10 vols (London, 1892–1927). Thomas Jones Howell (ed.), A Complete Collection of State Trials and Proceedings for High Treason and other Crimes and Misdemeanours, 33 vols (London, 1809–1828). Anthony L.J. Lincoln and Robert Lindley McEwen (eds.), Lord Eldon’s Anecdote Book (London, 1960). Mary Thale (ed.), Selections from the Papers of the London Corresponding Society, 1792–1799 (Cambridge, 1983). The First Report from the Committee of Secrecy of the House of Commons (London, 1794). The Second Report from the Committee of Secrecy of the House of Commons (London, 1794). John Barrell, “Imaginary Treason, Imaginary Law”, in Barrell, The Birth of Pandora and the Division of Knowledge (Basingstoke, 1992), 119–43. John Barrell, Imagining the King’s Death: Figurative Treason, Fantasies of Regicide, 1793–1796 (Oxford, 2000). John Barrell, “Thelwall in his own defence: the Natural and Constitutional Right of Britons”, in Steve Poole (ed.), John Thelwall: Radical Romantic and Acquitted Felon (London, 2009), 39–50. Christina Bewley, Muir of Huntershill (Oxford, 1981). John Brewer and John Styles, An Ungovernable People: the English and their law in the seventeenth and eighteenth centuries (London, 1983). John Cairns, “Scottish Law, Scottish Lawyers and the Status of Union”, in John Robertson (ed.), A Union for Empire: Political Thought and the British Union of 1707 (Cambridge, 1995), 243–75. Henry Cockburn, Memorials of His Time (Edinburgh, 1856). Henry Cockburn, An Examination of the Trials for Sedition which have hitherto occurred in Scotland, 2 vols (Edinburgh, 1888). Michael T. Davis, “Prosecution and radical discourse during the 1790s: The case of the Scottish Sedition Trials”, International Journal of the Sociology of Law, 33 (2005), 148–58. H.T.  Dickinson, Liberty and Property: political ideology in eighteenth-century Britain (London, 1977).

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T.J. Dowds, “Muir’s ‘Good Cause’ 1820”, in Gerard Carruthers and Don Martin (eds.), Thomas Muir of Huntershill: essays for the twenty-first century (Edinburgh, 2016), 249–74. John Ehrman, The Younger Pitt, Vol. 2: The Reluctant Transition (London, 1983). Clive Emsley, “An Aspect of Pitt’s Terror: Prosecutions for Sedition During the 1790s”, Social History, 6 (1981), 155–84. James Epstein, “‘Our Real Constitution’: Trial Defence and Radical Memory in the Age of Revolution”, in James Vernon (ed.), Re-reading the Constitution: new narratives in the political history of England’s long nineteenth century (Cambridge, 1996), 22–51. Lindsay Farmer, Criminal Law, Tradition and Legal Order: Crime and the Genius of Scots Law, 1747 to the Present (Cambridge, 1997). Lindsay Farmer, Making the Modern Criminal Law (Oxford, 2015). Amanda Goodrich, “Radical ‘Citizens of the World’, 1790–95: The Early Career of Henry Redhead Yorke”, Journal of British Studies, 53 (2014), 611–35. F. Murray Greenwood, “Judges and Treason Law in Lower Canada, England, and the United States during the French Revolution, 1794–1800”, in F. Murray Greenwood and Barry Wright (eds.), Canadian State Trials, I: Law, Politics, and Security Measures, 1608–1837 (Toronto: University of Toronto Press, 1996), 241–95. Paul Halliday, Habeas Corpus: From England to Empire (Cambridge, MA and London, 2010). Philip Harling, “The Law of Libel and the Limits of Repression, 1790–1832”, Historical Journal, 44 (2001), 107–34. Kenneth R.  Johnston, Unusual Suspects: Pitt’s Reign of Alarm and the Lost Generation of the 1790s (Oxford, 2013). Anne-Marie Kilday, “Contemplating the Evil Within: examining attitudes to criminality in Scotland, 1700–1840”, in David Lemmings (ed.), Crime, Courtrooms and the Public Sphere in Britain, 1700–1850 (Aldershot, 2013), pp. 147–66. David Lemmings, “Introduction: Criminal Courts, Lawyers and the Public Sphere” in idem (ed.), Crime, Courtrooms and the Public Sphere in Britain, 1700–1850 (Farnham, Surrey and Burlington, VT, 2013), 1–22. Henry W. Meikle, Scotland and the French Revolution (Glasgow, 1912). Brian D. Osborne, Braxfield: the hanging judge? (Glendaruel, Argyll, 1997). Oxford Dictionary of National Biography (Oxford, 2004–). R.R.  Palmer, The age of democratic revolution: a political history of Europe and America, 2 vols (Princeton, 1959).

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T.M. Parsinnen, “Association, convention and anti-parliament in British radical politics, 1771–1848”, English Historical Review, 88 (1973), 504–33. Steve Poole, “Pitt’s Terror Reconsidered: Jacobinism and the Law in Two South-­ Western Counties, 1791–1803”, Southern History, 17 (1995), 65–87. Steve Poole, The Politics of Regicide in England, 1760–1850 (Manchester, 2000). Nicholas Roe, “The Lives of John Thelwall”, in Steve Poole (ed.), John Thelwall: Radical Romantic and Acquitted Felon (London, 2009), 13–24. A.G.L.  Shaw, Convicts and the Colonies. A Study of Penal Transportation from Great Britain and Ireland to Australia and Other Parts of the British Empire (London, 1966). Jim Smyth and Alan McKinlay, “Whigs, Tories and Scottish Legal Reform c.1785–1832”, Crime, Histoire & Sociétés/Crime, History and Societies, 15 (2011), 111–32. The Poetical Works of Robert Southey, complete in one volume (Paris, 1829). Lisa Steffen, Defining a British State: Treason and National Identity, 1608–1820 (Basingstoke, 2001). E.P.  Thompson, The Making of the English Working Class, 1780–1832 (Harmondsworth, 1968). E.P. Thompson, Whigs and Hunters: the Origin of the Black Act (London, 1975; 1990 edition). Atle L. Wold, Scotland and the French Revolutionary War, 1792–1802 (Edinburgh, 2015). Atle L. Wold, “Was there a Law of Sedition in Scotland? Baron David Hume’s Analysis of the Scottish Sedition Trials of 1794” in Gordon Pentland and Michael T. Davis (eds.), Liberty, Property and Popular Politics: England and Scotland, 1688–1815. Essays in honour of H.T. Dickinson (Edinburgh, 2016), 163–75.

5 Sermons of Sedition: The Trials of William Winterbotham James Epstein

Charles Pigott’s Political Dictionary defines “Party Jury … in law, [as] a jury of half foreigners, half natives;  – in political practice, it means a Winterbotham jury”.1 An “Ode to the English Judges” satirises:     Gadzooks, friend WINTERBOTHAM, thou’rt a fool,       A most unreverend fool, although a Parson;     That could it not of thy bible make a tool,       To carry, silly priest, the regal farce on.2

For Joseph Priestley the four-year sentence imposed for delivering two sermons was crucial to his decision to leave for America, signalling “that no man who is obnoxious, however innocent, is safe”.3 The trial and sentencing of William Winterbotham made an impression on contemporaries, particularly on radical dissenters on whom it was seen as serving notice. Winterbotham and his trials have received relatively little attention from historians of popular radicalism, mentioned only in passing by J. Epstein (*) Department of History, Vanderbilt University, Nashville, TN, USA e-mail: [email protected] © The Author(s) 2019 M. T. Davis et al. (eds.), Political Trials in an Age of Revolutions, Palgrave Histories of Policing, Punishment and Justice, https://doi.org/10.1007/978-3-319-98959-4_5

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E. P. Thompson in his classic, The Making of the English Working Class.4 Yet the case deserves attention for a number of reasons. First, during the 1790s, Winterbotham was the only person who was prosecuted for having delivered a sermon. Second, the case allows us to consider legal questions of prosecutions brought for words spoken rather than for cases of seditious libel for printed texts. How exactly was a “text” to be reconstructed in the courtroom? Third, we get a glimpse of the dynamics behind the prosecution. We see how a local community involved itself in creating the terms of the trial and the process by which the sermons became sedition; how the case mutated to produce various versions of what happened and of what was or was not said. Finally, we briefly touch on the aftermath of Winterbotham’s prosecution. On Monday evening, 5 November 1792, Winterbotham preached a sermon at How’s Lane Baptist chapel in Plymouth to commemorate the dual national deliverances from the gun-powder plot of 1605 and of the glorious revolution of 1688. He preached a second sermon on 18 November entitled “The Dawning Day”. What brought Winterbotham to the pulpit and eventually to face trial at Exeter assizes in summer 1793 can be quickly sketched. Trained as a silversmith and largely self-­ educated, he emerged from the milieu of artisan London. He supported the cause of the American colonists, and as a militant Protestant (at this time, he was an Anglican) and member of the Protestant Association he took part in the anti-Catholic campaign of 1780. Having fallen into dissolute habits, not uncommon among London’s skilled workers, he failed to establish himself in his trade. In 1786, however, he underwent a life-changing conversion. On accompanying his brother to a nonconformist meeting house, Winterbotham was moved by the simplicity and sincerity of the worshippers and the language of the preacher. He was reborn as a Calvinistic Methodist, and without formal training moved from lay preaching into the regular ministry, although in 1789 he rejected the doctrine of infant baptism. The same year he was recommended to Reverend Philip Gibbs to fill the position of assistant minister at Plymouth’s Baptist church. His youthful energy and powerful preaching style proved popular, attracting new members to the congregation.5

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On 5 November, Winterbotham addressed a gathering of between 200 and 300 women and men. There was a long tradition of reformers ­celebrating the civil and religious liberties associated with the landing of William of Orange’s army and James II’s flight from the throne.6 The “revolution” of 1688 appeared uneasily on the ritual calendars of both loyalists and reformers, marking a fragmentation in the ranks of the Protestant nation. In the wake of the Priestley riots in Birmingham and loyalist targeting of dissenters and their places of worship, many dissenters were wary about addressing politics from the pulpit.7 In testing the political waters, Winterbotham took advantage of the authorised celebration of Britain’s deliverance from papal despotism and the restoration of political liberty. The Book of Common Prayer gave the form of service to commemorate the national holiday in which clergymen were instructed to read one of the homilies on obedience and against rebellion and to preach to these texts. While the prosecution at Winterbotham’s first trial argued the impropriety of preaching politics to a congregation “of low ignorant people”, in fact the purpose of celebrating the nation’s dual deliverance was deeply political.8 Moreover, during the 1790s sermons brought out as pamphlets formed part of the print war waged between loyalists and reformers. Some dissenters and “friends of liberty” opposed national fast days and fast sermons, particularly as offered in the cause of military victory.9 Less reverently, radical pressmen published a series of cheap mock sermons, parodies intended to ridicule the hypocrisies of the established church and Pitt’s government.10 As the reference to “low ignorant people” suggests, the decision to prosecute the sermons was based not necessarily on what Winterbotham preached but on the audience he addressed. It was also about when the sermons were delivered. In political terms, Winterbotham said little beyond what Richard Price had asserted three years earlier in his Discourse on the Love of our Country, which Edmund Burke vehemently attacked in his Reflections on the Revolution in France (1790), but by November 1792 to discuss the legitimacy upon which British monarchy derived its authority and to express approval, however qualified, of the French Revolution drew the attention of established authority. In reaction to the publication of the second part of Paine’s Rights of Man, a royal proclamation was issued in May against seditious writings. Across the channel, the

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imprisonment of the royal family was followed by the September massacres and, by the time Winterbotham delivered his sermon, France was a republic at war with most of Europe. In November, the Treasury Solicitor sent requests to local solicitors to assist with prosecutions for sedition. The widespread outbreak of Paine burnings began, as effigies of Paine replaced the Guy in ritual celebrations aimed at claiming public space for the loyalist cause.11 Also, in reaction to the rising support for the alarming doctrine of equality, John Reeves launched a movement of loyalist associations that quickly spread throughout Britain.12 On 1 December, a royal proclamation ordered the embodiment of the militia against the forces of sedition; the same month saw Paine convicted in absentia. The government coordinated its first wave of prosecutions with the mobilization of a loyalist campaign of surveillance; loyal subjects, soldiers, and local authorities were encouraged to monitor the goings on at taverns and alehouses, coffee shops, theatres, dissenting chapels, streets and public squares.13 The year 1793 soon brought the spectacle of Louis XVI’s execution, widely represented in prints and illustrations. By July 1793, when Winterbotham came to trial, Britain was at war with France and the Terror was on the horizon. The south-west of England was a regional stronghold of loyalism; at Plymouth supporters formed an active association.14 In response to a request for some of their publications, Reeves’s association sent 500 copies of loyal songs to the dockyard commissioners to be distributed among dock workers and seamen at Plymouth and Portsmouth.15 At Plymouth on the afternoon of 8 December, Paine was hung in effigy outside Hart’s Ship Tavern on the parade. The hanging and subsequent committal of the traitor to the flames was an elaborate affair attended by “several thousands”, as a recruiting party of marines played “God Save the King”. That evening a group of gentlemen retired to Hart’s tavern “as a constitutional society” for dinner and a series of loyal toasts.16 A steady stream of loyalist activity, sponsored by the mayor and corporation took place at Plymouth and the surrounding area. The “melancholy intelligence” of “the murder” of the French king brought the suspension of all “amusements” and association meetings.17 Local “Anabaptists” were widely suspected of holding dangerous political views.18 Winterbotham had already made enemies of the mayor and oligarchical corporation over controversial plans to

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improve the water supply to the new town of Plymouth Dock. At a town meeting, he spoke out against a scheme that would have brought ­considerable revenues to the corporation and persuaded the meeting to adopt a rival plan.19 On 5 November at Plymouth, church bells were rung and a royal salute was delivered from the citadel to commemorate the anniversaries of 1605 and 1688.20 News that Winterbotham was to preach that evening caught the attention of townsfolk. He was almost certainly set up. Two key witnesses for the prosecution, William Paddon, a brush-maker, and John King, a shoemaker, were drinking at “a common ale-house” with a group “since known as a constitutional club” and arrived late at How’s Lane chapel to hear the anticipated political sermon.21 Like most such prosecutions, charges were initiated by concerned members of the propertied elite in league with local officials who applied to the central government for legal and financial support. Behind the prosecution moved the solicitor, William Foot, who was to serve as chairman of the loyalist association founded at the nearby village of Bere Alston.22 He canvassed the town for possible witnesses, avoiding dissenters and those favourable to the defendant, and proceeded to take depositions, exploiting personal prejudice and party spirit to produce a formidable indictment. Winterbotham was summoned to appear before the mayor, William Crees, and a magistrate whom Winterbotham identified as the “spring and motion” of the prosecution and was ordered to find security for his appearance at Exeter in the considerable sum of 800 pounds.23 The Treasury Solicitor’s files document the development of the prosecution’s case as it moved towards trial as well as providing some sense of local opinion. In correspondence with the Secretary of State, Crees related that “the political nature” of Winterbotham’s discourse “has been much the conversation of this town and given birth to some scurrilous handbills and anonymous letters” addressed to various individuals.24 Indeed, the mayor received a missive from “A Patriot” warning him, “For your personal safety you had best hold your peace about the excellent Mr. Paine … Restrain from imitating our oppressive and detestable George who is unworthy a Crown and dread to come within the Reach of a well pointed Poignard if you disregard this Advice”. A second letter was addressed to the publican, Hart, demanding that he renounced the

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proceedings against “the Exalted Patriot Mr. Tho. Paine … Testify your Sorrow or Beware your Life. A Brace of Balls, or a prepared Stiletto may shortly find the Way to your Heart and the Hearts of your detestable Accomplices.” The histrionic language belied the true strength of local radicalism.25 The weight of local intimidation came not from supporters of Paine but from men of property and the town’s corporation. In January 1793, a grand jury found true bills on the indictments brought against Winterbotham.26 What constituted seditious language? Whether printed or spoken, sedition was prosecuted as a breach of the peace, a misdemeanor with the intent and tendency to produce hatred, contempt or ridicule of the king or his government, to alienate the affections of his majesty’s subjects. The definition was vague and the outcomes at trial often uncertain.27 In practice, seditious language was that which authorities chose to prosecute and on which they could persuade a jury to convict. Jury lists were sometimes subject to vetting and juries packed; moreover, the Attorney General had the option, often used in cases of sedition, to try cases before a special jury, composed of gentleman of a higher social standing than common jurors. Reformers often enough celebrated the independence of juries for defending the constitutional rights of “free-born” Britons. But more often juries, particularly outside of London, sided with the government in such cases. There was a general expectation among dissenters that Winterbotham would be convicted, for as the Unitarian minister at Exeter, Timothy Kenrick, wrote to his father, “whatever sentence can be expected from men who have already joined some of the Associations, pledged themselves to discountenance by every means in their power, whatever had a seditious tendency”.28 Prosecutions for seditious speech were common enough; indeed, there were more prosecutions brought for seditious words than for printed seditious libels.29 Loose talk in taverns or streets, regicidal rants, republican ripostes to toasts to the king, could be dangerous even when defendants claimed diminished capacities due to heavy drink. As the “Jacobin” lawyer, Felix Vaughan, observed: “We live in times, when word-catching and libel-catching seem to be the fashion of the day”. In his defence of Thomas Briellat, a Shoreditch pump-maker accused of uttering seditious words, Vaughan told the jury: “remember that words, even if sworn to,

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are a sort of things [sic] very indeterminate, easily misconceived, and misrepresented, for words are no more than wind: the recollections of men frequently vary it, and the imaginations of men vary it likewise”.30 Variable recollections, imagined or misrepresented words, and what witnesses were willing to swear to were contested issues at Winterbotham’s two trials. Winterbotham published full versions of both his trials as a two-­ shilling pamphlet, as well as both sermons vouching for their authenticity, although his preface to the sermons suggests the difficulties in providing a verbatim text.31 The author was self-conscious about his mode of expression, describing the sermons as “hasty compositions” not meant for “public inspection” but which in the interests of veracity he left uncorrected. He claimed that the first sermon was “written at length prior to its delivery” and that the section of the second sermon “which has any respect to magistracy was not only written, but read from the pulpit”, a precaution taken due to the stir caused by the first sermon – indeed, the second sermon was intended to undo the harm of the first. At the same time, he acknowledged that opponents would claim that it was impossible to provide a literal “copy” of sermons that were delivered extempore. Indeed, in a note to readers of the first trial, Winterbotham comments that while it is his “invariable practice” to write out his sermons “yet he as invariably rejects any use of those notes in preaching”.32 Despite Winterbotham’s best efforts, the indeterminacy of spoken words remained an issue. And despite obvious differences between his considered speech and the torrent of words that Briellat was charged with declaiming – “Reformation cannot be effected without a Revolution”, “we have no occasion for kings”, “there never will be good times until all kings are abolished from the face of this earth” – the cases bear some resemblance in that they relied solely on the testimony of witnesses, on what they claimed to remember or not remember about oaths or sermons. The legal battle was joined in earnest. A letter to the crown solicitors reported that a large subscription had been raised among dissenters throughout the county for Winterbotham’s defence; “every nerve will be strained to procure his acquittal”, with Vicary Gibbs, the best special pleader on the western circuit, engaged to lead the defence. “The great

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struggle will be on the sermon of the 5th”; both the defence and prosecution were loaded with prospective witnesses. Foot had a list of six or seven “very respectable witnesses, who will all give the same testimony” to counter “a very great number” of defence witnesses prepared to swear they did not hear the objectionable parts of the sermon.33 Winterbotham was tried on successive days, 25 and 26 July 1793 at the Devon summer assizes, and although the first trial was considered the main event, both trials were drawn-out affairs. He was tried by special jury, with two jurors serving on both juries, and yet it took the jury two and a half hours in the first trial and five and a half hours in the second to deliver their verdicts, suggesting that doubts existed even among a gentlemen’s jury about sending a minister to prison based on the evidence presented.34 That said, the applause that greeted the opening address of the prosecution attorney, Serjeant Rooke, indicated the hostile, courtroom atmosphere that the defendant faced.35 Winterbotham sardonically dedicated the published version of the trials to the special jury for having failed in its constitutional duty; he claimed that some jurors slept through parts of the first trial, while conceding that others dutifully took notes. The published sermons provide the basic substance of what Winterbotham preached. Like many other dissenting ministers, he did not preach from a recommended text stressing passive obedience, but chose Exodus 13: 8, giving the Lord’s instructions to Moses on how the Jewish people should observe their deliverance from Egyptian bondage. The first sermon is divided into three parts: the first on the proper modes of observance; the second on the meaning of the events being commemorated; the third on the “present appearance of affairs in our own and neighbouring nations”.36 It is clear where Winterbotham went wrong. It was not the moment to address the meaning of the “Glorious” Revolution in connection with present events in France and Britain. Like Price, he emphasised the evils of papal tyranny and deduced similar principles from the providential deliverance of 1688: all government “originates with the people” who have the rights to “cashier their governors for misconduct” and “to change the form of their government if they think proper”. The “people” stand above faction or party expressing the will of “the whole or at least a majority of the nation”. William III’s title derived not from conquest or divine right but the “choice of the people thro’ their

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representatives”. Winterbotham eschews reasoning based on “abstracted principles” to show that the people’s rights are based solely on the British constitution and the original contract between the sovereign and the nation. In his view there existed “striking imperfections” in the government fixed in 1688, but “the great source of our evils takes its rise in a departure from its principles”.37 From here, Winterbotham outlines a familiar reformer’s catalogue of complaint  – an overburdened funded debt, high taxes, the ills of poverty and crime, a bewildering body of laws – and presses the reform agenda for shorter parliaments, abolition of rotten boroughs and ministerial influence, a more representative electorate, civil and religious liberty. He notes that at Plymouth a mere 163 inhabitants have the vote of whom no more than sixty-three “have any will of their own”.38 Whether as Christians or Britons, they should welcome the French Revolution as a blow to popery and as a pleasing spectacle of “the dawn of liberty opening to twenty-five millions of individuals”. According to the published sermon, he stated that Britain wanted “neither Revolution nor Blood” but required reform of its representative system.39 Whatever else Winterbotham may have said, how he may have qualified, embellished, or amplified his language, remained matters of controversy, as witnesses remembered or claimed to remember the sermon, and lawyers glossed meanings for the jury. The fourteen counts of the indictment of his first sermon laid out the terrain of courtroom debate, charging among other things that Winterbotham approved of the French Revolution which had opened the eyes of the English people to the ‘necessity for a similar Revolution’ in Britain; he claimed that “oppressive laws and taxes” filled the streets with beggars, workhouses with the poor, and goals with thieves and debtors; he expressed surprise that the people “do not stand forth in defence of your Rights”; he declared the laws of the country were not mild or good and that the means for reducing the debt was like a person “taking money from one pocket, and putting it in the other”; he explained that if the king did not keep certain laws that he had no more right to the throne than the Stuarts. According to the indictment, Winterbotham preached, “We … have as much right to stand up as they did in France for our liberty”, glossed as meaning that “the subjects of this Kingdom” should effect a revolution along the lines of France.40 In his opening statement,

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Serjeant Rooke underscored the need for subordination for the existence of government and society, without which anarchy would reign. He asserted that “if ever the Trumpet of sedition was sounded in the Pulpit, it was done in this instance”. Rooke also broached the delicate subject of memory, commenting that witnesses could not be expected to remember the entire sermon, but it was likely a hearer “would take notice of what was particularly grateful or particularly obnoxious” and that an attentive listener would take in the “general tenor” and “tendency of the words laid in the indictment”. He informed jurors that if the witnesses called should prove these words “or anything like them, it is impossible for you to have a doubt whether they are seditious, or whether the defendant intended to excite sedition by them”.41 Rooke set the evidentiary bar low, and for good reason, but there remained a tension between the obsessive emphasis on certain words and phrases and prosecution witnesses’ inability to remember much else from the forty-five minute sermon. The first witness, Paddon, swore that Winterbotham had referred to the burden of “oppressive” taxes and declared that it was time to “stand forward to defend your rights”. On cross examination, he related that he was a member of the Church of England who having learned that a political sermon was to be preached went to hear Winterbotham. He did not know the text of the sermon but word had spread around town “something about binding kings in chains and nobles in fetters”. He took no minutes at the time but he made some notes about a month after he gave information before the mayor, some two months later. Nonetheless, he swore all Winterbotham preached “from beginning to end was very seditious”. As lead counsel for the defence, Gibbs administered the coup de grâce by asking what he thought Winterbotham meant by “a Stuart” when he said that if the king did not observe the laws he “had no more right to the throne than a Stuart”. Paddon responded that he understood him to mean “Stewart”, as an officer under the crown. Things got no firmer for the prosecution. King admitted that he and Paddon had missed the beginning of the sermon, and that he had taken no notes. He remembered most distinctly that vagrants in the streets and crowded workhouses were attributed to “heavy” taxes – the problem here was the weight the prosecution placed on the word “oppressive”.42 Only one out of seven witnesses could remember

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anything about the text on which Winterbotham preached, and none could remember the parts into which the sermon was divided, for as Margaret Jago explained, “it was so long ago”. Miss Jago was “almost sure” Winterbotham referred to “oppressive laws and taxes”, and while previously having stated that she did not recall these words, “it appears now to me so clear, I can swear to it”. She thought he had said something about the French Revolution, “but I can’t remember the particulars”. Asked directly if she thought the sermon “was calculated to excite sedition”, she replied it did not appear so to her but she thought it improper “as ignorant persons might misconstrue it”. The next witness called by the prosecution, replied to Rooke that although he was at the sermon, he could remember very little about it, “as I have a bad memory, and was never called upon before”. The defence counsel declined to cross-examine Mary Channes, “deeming this witness not properly in her senses”.43 The crown counsel had reason to feel let down by the witnesses rustled up by Foot and the mayor. Gibbs delivered a strong opening statement for the defence. He observed that Baptists were nearer in beliefs to the established church than other sects of dissenters, some of whom were thought to hold particularly “obnoxious” views of government. Winterbotham had not received the sort of education designed for those destined for the ministry, and while this might explain “the use of expressions not strictly weighed with grammatical accuracy”, the defence asked for no indulgence on these grounds. On the contrary, Winterbotham was a man who “by his unwearied though late attention to his studies has attained a very high degree of knowledge”. While admitting that he did not generally approve of political sermons, Gibbs reminded the jury that the fifth of November was a day set apart by parliament to commemorate “our deliverance from papal power, and the establishment of our liberties”, making it the duty of a minister to illustrate the principles of the revolution and point to any departure from those principles. He maintained that most of the words attributed to the defendant were never spoken and that others were twisted out of context by the omission and transposition of his words. Prosecution witnesses had attended the service with the intent to find something incriminating in the sermon. Gibbs underscored the gaps and contradictions in their testimony, arguing, for example, that to say

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taxes were “oppressive” may be seditious but to say they were “heavy” was not. He rejected the constructions placed on words in the innuendos attached to the indictment, as “forced and unnatural”. Winterbotham never encouraged a revolution in Britain, quite the contrary, and there was nothing seditious about his interpretation of 1688. As for his calls for parliamentary reform, a man who was now the country’s idol and chief minister, Pitt himself, has held similar views. Gibbs conceded that Winterbotham might have been better advised not to speak on such subjects, but surely the jury, “who have Cornwall before, and Somerset behind them”, may have heard others complain of corruption at elections. And while Winterbotham was a man whom the jury’s verdict might utterly ruin, his client rejected such an appeal demanding only the jury’s impartial attention to the evidence.44 As anticipated, the defense called a host of respectable witnesses, five men and three women who were regular attenders at the Baptist church, including Reverend Philip Gibbs and Mary Brend who married Winterbotham in 1797 on the day he was released from Newgate. Baptists formed a close community of belief and sociability. Like many dissenters, business ties existed among several of the witnesses extending to the defendant. Needless to say, they knew the text from Exodus which was preached and collectively denied that Winterbotham uttered the incriminating language charged in the indictment. The minister approved the “first” French Revolution but did not propose it as an example or say anything about “opening the eyes of the people”; he complained about paupers filling the streets but did not say this was due to “oppressive” taxes; various amplifying phrases such as “I am astonished” and “I speak boldly” were not used. The testimony of these witnesses was tuned to Gibbs’s insistence on the prosecution’s burden to prove the precise language as stated in the indictment.45 Thus Benjamin Shepheard, who was a mercer and business partner with Winterbotham in a hemp and flax manufactory, on a trip to Exeter applied to the deputy clerk of the peace for Devon for a copy of the indictments. According to Shepheard, twelve of the counts “were lies or gross misrepresentations; and the other two were true only in part”, those referring to the national debt.46 If the defence testimony sounded rehearsed, this was because to a significant extent it was. From the testimony we get a sense of how

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Winterbotham’s sermon was “scripted” amidst controversy within the town community. Witnesses noted that the sermon was a subject of ­general public conversation, as inhabitants repeated what Winterbotham may have said, reinforcing and contradicting memories and allegations. Depositions were taken on the mayor’s orders weeks after the sermons; notes were scribbled down to help jog memories and establish veracity; people debated whether sedition had been spoken. False reports circulated about the text of Winterbotham’s sermon, as Paddon indicated in his testimony. According to Philip Gibbs, the endless questions that he had to answer about the sermon “have made me particular in remembering it”, commenting that one circumstance “made a great impression on my mind, it was said Winterbotham preached from the text, ‘Bind their kings in chains, and nobles in fetters of iron’”. He was obliged to correct this rumour as it gathered currency.47 Significantly, the text in question, Psalm 149: 8, was one that the regicide, Hugh Peter, had preached during the trial of Charles I and was cited as evidence at Peter’s trial for high treason.48 Such a choice would thus support the same accusation that Burke brought against Price: the real events Winterbotham commemorated were those of 1649 rather than 1688. Just as the ill-informed and ill-disposed spread false reports, Winterbotham prompted the memories of friends. Long before he published the two sermons, a manuscript copy circulated among his supporters. As well as having seen an outline of the sermon before it was delivered, Gibbs saw a copy four months later, although he claimed that his testimony was based on what he heard spoken. Two witnesses testified that they were present one afternoon in Mrs. Gibbs’ parlour to hear Winterbotham read his sermon aloud.49 In response, the prosecution characterised the congregants as duped followers of their minister who offered a “garbled” version of what he had actually said. Rooke maintained that it was not necessary to prove the exact words uttered in order to discern their “tendency” and underlying “motives”. The real sentiments “lurking in [Winterbotham’s] heart” were linked to the talk of “atheistical philosophers” and “the rights of man”. The prosecution relied on a familiar trope of anti-Jacobinism, maintaining that the real motives of such persons were disclosed not merely in their words but by reading the secrets of their hearts. The judge, Sir Richard Perryn, gave a measured statement to the jury, observing that a

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great many witnesses had been called and much conflicting evidence given. It appeared to him that the sermon might have been preached without seditious intent but thought the sermon “ill-timed” and improper as delivered “to some of the lowest class of the people”. He stressed that a guilty verdict would utterly ruin the defendant and urged the jury to put the “best construction they could upon the matter, and shew the utmost lenity in favour of the Defendant”. The jurors were more inclined to follow Rooke’s line of argument.50 Notwithstanding the attempts of Winterbotham and his friends to arrest the progress of misinformation and talk of seditious speech, local opinion had turned against the minister and was in turn reflected in the minds of jurors. By 18th-century standards, Plymouth was a sizeable town with a population of around 40,000 but Winterbotham was well known. We glimpse something of the animosities that brought Winterbotham down and the origins of the second prosecution in the story of a chance meeting between Winterbotham and Edward Lyne, clerk to the collector excise. In mid-December 1792, Lyne encountered Winterbotham on a return journey from Ashburton to Plymouth. Lyne was traveling with John Tyrrell, the collector of excise, who asked Winterbotham why he preached politics from the pulpit. According to Lyne, Winterbotham replied that he had not intended to cause a stir and that his words had been misrepresented. Lyne informed him that he had taken minutes of the second sermon which he thought was “calculated to mislead the Vulgar, of which description, there was a great number attended his meeting”. Winterbotham protested that he said nothing about the king but merely the present administration and mode of representation. Lyne countered that in the second sermon he had used the words king, senate, potentate, and stadtholder, as well as “dog” by which he believed Winterbotham meant “doge”. The conversation resumed when they stopped at a local inn for refreshment, where Winterbotham related that he had to travel incognito, for “if he had made himself known at Exeter, he was sure he would have been stoned”. At the inn, they fell into conversation with several strangers who were talking about him. He asked “what they had heard of this Winterbotham”? They had heard that he had been preaching against the king. Without disclosing his identity, Winterbotham told the strangers that he had been present and this was a

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false report of what was preached. As the journey resumed and discussion continued, Winterbotham referred to local magistrates as a “set of Inquisitors” (he used the same term in print). To Lyne’s objection that he was again using “unguarded expressions”, Winterbotham declared himself an advocate of liberty of the press and freedom of speech.51 The second prosecution was based on Lyne’s evidence. His account of his journey with Winterbotham accompanied the minutes that Crees forwarded to the Secretary of State. Having heard that Winterbotham had preached a seditious sermon, Lyne and John Darby, a midshipman in the navy, decided to attend the Baptist church on 18 November following dining together at Lyne’s lodgings. They were among an audience of around 500, many of whom like Lyne and Darby were “strangers”. Contrary to accusations that the men were in liquor, two women who had been in their company swore to their sobriety on departing for the service. The next day Darby visited Lyne who showed him the minutes he had taken and which Darby subsequently confirmed as a truthful record.52 Lyne and Darby were the only witnesses to testify for the prosecution in the second trial. The first trial was an ordeal, lasting thirteen hours; the following day Winterbotham faced charges arising from his second sermon. Rooke opened by asking what had warranted a political sermon on a day on which such discussion was not called for, directing the court’s attention across the channel, “Paris was a scene of misery, one massacre followed another, the palace itself was violated … the King and Queen thrown in a dungeon, and the government seized by a mob”.53 Yet, this was the moment Winterbotham thought proper to discuss the usurped powers of magistracy. His text was from Paul’s epistle to the Romans: “The night is far spent, the day is at hand; let us therefore cast off the works of darkness, and let us put on the armour of light” (Romans 13: 12). Lyne testified that Winterbotham declared that given present events he felt bound “to apply the Text politically”. In light of Winterbotham’s desire to undo the harm of the first sermon, it was unlikely that he made such an explicit statement. Indeed, the thrust of Paul’s letter, ‘the powers that be are ordained by God’ (Romans 13: 1), directs Christians to submit to temporal authority; the published version of Winterbotham’s sermon emphasises this very point. Yet, “the dawning day” and casting off of darkness

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had a millenarian tinge that one might connect to his earlier welcome of “the dawn of liberty opening” in France. As for the “armour of light”, in his sermon Winterbotham explained that this referred to “the Lord Jesus Christ”.54 While Lyne claimed that he had gone to hear Winterbotham as a “friend”, the only passages he could remember were those cited in the indictment which came down to two seditious statements. First, Lyne swore that Winterbotham declared, “magisterial powers have long been a scourge to the liberties and rights of the people and it did not matter by what names these usurped powers were known, whether by King, Senate, Potentate or Stadtholder”. Second, Winterbotham told his hearers that with “the yoke of bondage … pretty well broken” in France, “it is expected the same blessing is awaiting us … when enjoying the liberties of a free people we shall boast of having introduced amongst us that equality our neighbours have acquired”. Darby based his testimony on notes he had taken from Lyne’s minutes; he had left the service after only twenty minutes.55 The prosecution case was weak, and Gibbs implied that Lyne and Darby had perjured themselves. The seven defence witnesses, six of whom had testified at the first trial, flatly contradicted Lyne’s evidence. Rather than expounding the cause of equality, Winterbotham stressed the need for degree and subordination; he pronounced anyone who entertained the idea of equality in property “must be little less than a fool or a madman”.56 Tensions ran high. Giving her testimony, Mary Brend fainted and had to be carried from the courtroom. On her return to the witness stand, Rooke asked whether she thought that Winterbotham “spoke from his heart” when he urged the necessity of obedience, or had he “said one thing, and meant another”? She replied that she “understood it as language of his heart”, for he “is not use to dissemble”. As for breaking the yoke of bondage, witnesses confirmed that the anticipated day of “universal liberty” of which Winterbotham spoke concerned the parliamentary efforts made on behalf of “our unhappy African brethren”.57 In his charge to the jury, Perryn stressed the deficiencies in the prosecution’s evidence and pointed to the many “respectable” witnesses, regular attenders on the defendant’s ministry, who stated the sermon “to breathe nothing but loyalty, peace, order, and obedience to the law”. Furthermore, he noted the improbability that Winterbotham would knowingly preach

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another sermon which would bring him within the law’s reach with a prosecution already hanging over his head.58 The jury adjourned and after five and a half hours, they returned a guilty verdict. Given the length of the deliberations, we may speculate that one or two hold-outs buckled to the determination of fellow jurors and to establishment pressure. Twenty years later Winterbotham received an anonymous gift of 1000 pounds which he always thought came from a member of the jury.59 In November 1793, Winterbotham appeared at King’s Bench. Gibbs expressed his astonishment that Perryn had failed to provide a full report on the second trial, where one of two witnesses repeated verbatim one of the two indictments but remembered nothing else that was said. Lord Kenyon denied the defence counsel’s contention that this constituted the basis for a new trial. The following week, the reactionary Justice William Ashhurst sentenced Winterbotham to two two-year terms in Clerkenwell prison, 200 pounds in fines, and sureties totaling 900 pounds. He told Winterbotham, “of what Sect of religion you are, I know not; but I can collect from your preaching not at all connected with the Christian religion”. Ashhurst hoped the French Revolution would open Winterbotham’s eyes, “and be a scourge to those who wish to introduce Anarchy and Confusion”. Winterbotham asked to address the court, explaining that he did not understand that he could do this at the initial hearing. Kenyon rejected his request, the matter was no longer before the court; any appeal must now be made “to the fountain of mercy”, George III.60 Little wonder that radicals felt that the mysteries of the law served merely to confound the cause of justice. Winterbotham believed that Gibbs let him down and that had he been allowed to speak for himself he could have convinced the court not to pass sentence. During a break in the treason trials of 1794, Thomas Erskine, lead defence counsel, and his second, Gibbs, visited Winterbotham at Newgate prison. The prisoner was noticeably cold towards Gibbs who asked whether he had not done him justice in the trials to which Winterbotham responded that Gibbs had at Exeter but not at King’s Bench.61 Winterbotham was allowed to transfer from Clerkenwell to Newgate’s “state-side”, where he entered the republic of radical letters, sharing a suite with a group of radical pressmen, including James Ridgway, Henry Symonds and Daniel Holt, men with whom he formed a literary

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partnership. Winterbotham was a poor man, his legal expenses were heavy and prison comforts cost money. He was supported by subscriptions from dissenters, and while London Baptists kept their distance, a number of well-heeled Unitarians lent substantial aid.62 Silenced in court, Winterbotham had his say in print. The text of the two trials, taken in short-hand, was accompanied by a running commentary in long notes in which Burke is lambasted, Blackstone quoted on the constitution, the testimony of defence witnesses countered, and the defence counsel repeatedly taken to task. In response to Rooke’s assertion that it was not necessary to prove “the exact words” spoken, Winterbotham questioned, “Is this the language of a Lawyer, or is it not language at which a Lawyer must blush”, citing case law to demonstrate the law’s demand for precise language.63 The loyalist British Critic maintained that such “a flourished account, adorned with capitals, italics and notes” rendered the report suspect.64 But clearly Winterbotham was not satisfied to have his defence team speak for him, and the constant attacks on the social status of ordinary Baptists  – variously described as “low”, “ignorant”, “vulgar”, “deluded” – rankled, especially for a self-educated man proud of his learning and spiritual quest. His guilt was linked to his low social origins and the social standing of local Baptists. In response to Rooke’s assertion that the subject of government was one “that least of all become them or persons in their situation to enquire into”, Winterbotham contended that his hearers, as members of Burke’s “swinish multitude”, were of a different opinion, “for though they admit that they are DISSENTERS, and if it will give Sergeant ROOKE and Mr. BURKE, any pleasure, they have no objection to admit that they are part of what the latter so politely dignifies with the title of the SWINISH MULTITUDE – yet they contend that their situations … are such as to render the PRINCIPLES of the Revolution, and the TERMS on which his Majesty holds his Crown, objects of vast importance to them”.65 He stressed his own and his witnesses’ respectable status and “independency”, as opposed to the gang of prosecution informers and witnesses. Winterbotham’s case had a chilling effect among reform-minded dissenters. The targeting of sermons for prosecution and the loose standards of evidence caused alarm. As the Monthly Review concluded, similar

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charges pertaining to “a sermon which was only preached … should be substantiated by strong, connected, incorruptible testimony”, free from “party rage, and bigotted prejudice”. Priestley, who visited Winterbotham in prison before sailing for America, took the precaution of reading his fast sermon of April 1794 from a printed text beforehand to avoid “the consequences of such gross misrepresentations as sent Mr. Winterbotham to Newgate”.66 Coleridge, too, was aware of the risks he took in delivering political sermons. The “Jacobin” lecturer, John Thelwall, was not paranoid when he claimed that government agents regularly reported from his lecture room in Beaufort Buildings in the Strand.67 In the event, Winterbotham’s case was singular; there were no other prosecutions for words spoken at chapels, lecture-rooms or public meetings. Speech of this kind was more difficult to prosecute than printed texts, although the unpredictability of the authorities kept reformers off balance, producing an atmosphere of fear.68 Incautious outbursts, while unevenly policed, were the targets of nearly all prosecutions for words spoken. In prison, Winterbotham helped to support himself through his publishing ventures. Along with his trials, which his son claimed sold 40,000 copies (almost certainly an exaggeration) in two editions and his sermons, Winterbotham edited a two-volume collection of poetry, “sacred and moral”, complied a four-volume An Historical, Geographical, Commercial, and Philosophical View of the American United States, which Paine recommended to readers, and a two-volume history of China linked to Lord Macartney’s embassy to China. His anti-government sentiments grew stronger. The spy, John Groves, reported a conversation with Briellat and Winterbotham at Newgate, in which amid talk of daggers and the destruction of the royal family, Winterbotham advised that the people needed to begin “afresh”, “violent & noisy people wod. do no good but great harm to the cause – & that cool determined acting Men were the Men that were wanted”.69 Whatever the truth of this report, on his release from Newgate he was welcomed back to the pulpit at How’s Lane, although hostilities towards him in Plymouth remained; in 1801 he became minister at the Shortwood Baptist chapel in Gloucestershire. Winterbotham maintained a low political profile until 1817 when the lost manuscript of Robert Southey’s dramatic poem, Wat Tyler, found its way into print to become a publishing sensation. Having recently

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endorsed the Tory government’s repressive measures to quell radicalism, Southey, the poet laureate, was embarrassed by this reminder of his “Jacobin” youth. In 1795, he had put the poem into the hands of Newgate’s radical pressmen who decided it was too hot to handle. But Winterbotham retained a copy of the drama.70 The story of how the manuscript surfaced remains mysterious, although Winterbotham played a role in radicals’ pirating Wat Tyler, small compensation for being the object of anti-Jacobin rage and a victory for freedom of expression.

Notes 1. Charles Pigott, A Political Dictionary: Explaining the True Meaning of Words (London, 1795), 99. 2. A Pennyworth of Politics (Edinburgh, 1797), 5. 3. Thomas Belsham, Memoirs of the Late Reverend Theophilus Lindsey, M. A. (London, 1812), 275–77; Jenny Graham, “A Hitherto Unpublished Letter of Joseph Priestley”, Enlightenment and Dissent, 14 (1995), 46. 4. E.  P. Thompson, The Making of the English Working Class (London, 1963), 113. See, however, Michael Durey, “William Winterbotham’s Trumpet of Sedition: Religious Dissent and Political Radicalism in the 1790s”, Journal of Religious History, 19 (1995), 141–157; John Robert Parnell, “Baptists and Britons: Particular Baptists in England and English Identity in the 1790s”, PhD diss. (University of North Texas, 2005), chap. 5; Emma Macleod, “Civil Liberties and Baptists: William Winterbotham of Plymouth in Prison and Thinking of America”, Baptist Quarterly, 44 (2011), 196–222; Wil Verhoeven, Americomania and the French Revolution Debate in Britain, 1789–1802 (Cambridge, 2013), chap. 6. 5. William Howard Winterbotham, The Rev. William Winterbotham, A Sketch (London, 1893), 1–20; W.  J., “Memoirs of the Rev. William Winterbotham”, New Baptist Miscellany, 4 (January 1830), 1–5; Henry M. Nicholson, Authentic Records Relating to the Christian Church Now Meeting in George Street and Mutley Chapels, Plymouth. 1640 to 1870 (London, 1870), 82–83. 6. See Kathleen Wilson, “Inventing Revolution: 1688 and 18th-Century Popular Politics”, Journal of British Studies, 28 (1989), 347–86.

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7. David L. Wykes, “‘The Spirit of Persecutors Exemplified’: The Priestley Riots and the Victims of Church and King Mobs”, Transactions of the Unitarian Historical Society, 20 (1991), 17–39; Joseph Ivimey, A History of the English Baptists, 4 vols (London, 1830), IV: 58–61. 8. Robert Hole, Pulpits, Politics and Public Order in England, 1760–1832 (Cambridge, 1989), chap. 1; idem, “English Sermons and Tracts as Media of Debate on the French Revolution, 1789–99”, in The French Revolution and British Popular Politics, ed. Mark Philp (Cambridge, 1991), 18–37. 9. J.  E. Cookson, The Friends of Peace: Anti-War Liberalism in England, 1793–1815 (Cambridge, 1982), 134–37. 10. Peter Denney, “Popular Radicalism, Religious Parody and the Mock Sermon in the 1790s”, History Workshop Journal, 74 (2012), 51–78. 11. Nicholas Rogers, “Burning Tom Paine: Loyalism and Counter-­ Revolution in Britain, 1792–1793”, Histoire Sociale/Social History, 32 (1999), 139–71; Frank O’Gorman, “The Paine Burnings of 1792– 1793”, Past and Present, 193 (2006), 111–55. 12. See Robert Dozier, For King, Constitution, and Country (Lexington, 1983), chap. 3; H. T. Dickinson, “Popular Conservatism and Militant Loyalism”, in Britain and the French Revolution, 1789–1815, ed. Dickinson (London, 1989), 103–26; Dickinson, “Popular Loyalism in Britain in the 1790s”, in The Transformation of Political Culture; England and Germany in the Late 18th Century, ed. Eckhart Hellmuth (Oxford, 1990), 503–33. 13. Nicholas Rogers, Crowds, Culture and Politics in Georgian Britain (Oxford, 1998), 195–200; Michael T. Davis, “The British Jacobins and the Unofficial Terror of Loyalism”, in Terror: From Tyrannicide to Terrorism, eds Brett Bowden and Davis (Brisbane, 2008), 92–113. 14. Exeter Flying Post, 26 December 1792; Francis Freeling to J. Moore, 28 December 1792, British Library [BL], Add. Ms. 16,923, fol. 146. 15. “A Loyalist” to Reeves, 9 December, 1792, BL, Add. Ms. 16,927, fols. 41–43; George Cherry to J. Moore, 19 January 1793, Add. Ms. 16,924, fol. 108. 16. Exeter Flying Post, 13 December 1792. Thanks to Nick Rogers for generously sharing notes from this source. 17. True Briton, 1 February 1793; London Gazette, 22–25 December 1792, 967, town meeting to express attachments to king and country; Exeter Flying Post, 20 and 27 December (parade), 1792. 18. “Memoirs”, New Baptist Miscellany, 4 (March 1830), 93; Nicholson, Authentic Records, 91.

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19. “Memoirs”, New Baptist Miscellany, 4 (February, 1830), 46. 20. Exeter Flying Post, 8 November 1792. 21. The Trials of William Winterbotham for Seditious Words (London, 1794), 12–13. 22. William Foot to J. Moore, 24 February 1793, BL, Add. Ms. 16,925, fol. 106; Bere Alston Loyalist Address, Add. Ms. 16,929, fol. 8. 23. Trials, 76; “Memoirs”, New Baptist Miscellany, 4 (January 1830), 48. 24. Nicholson, Authoritative Records, 88–89. 25. London Gazette, 18–22 December 1792, 953, offering a 100 pounds reward for each; Exeter Flying Post, 27 December 1792. 26. William Foot to Chamberlayne and White, 17 January 1793, The National Archives [TNA], Treasury Solicitor [TS] 11/458 (1524). 27. See Clive Emsley, “An Aspect of Pitt’s ‘Terror’: Prosecutions for Sedition during the 1790s”, Social History, 6 (1981), 155–84; Philip Harling, “The Law of Libel and the Limits of Repression, 1790–1832”, Historical Journal, 44 (2001), 107–134, particularly 110–11. 28. Timothy Kenrick to Samuel Kenrick, 26 February 1793, “Kenrick Letters”, Transactions of the Unitarian Historical Society, 4 (1927–28), 177; W.  Byng Kenrick, ed., Chronicles of a Nonconformist Family: The Kenricks of Wynne Hall Exeter and Birmingham (Birmingham, 1932), 68–69. Kenrick had his own problems due to his “political” preaching. 29. See Emsley, “Aspect”, 157–58, 176–84; Steve Poole, “Pitt’s Terror Reconsidered: Jacobinism and the Law in Two South-Western Counties, 1791–1803”, Southern History, 17 (1995), 80–83. 30. Trial of Thomas Briellat, for Seditious Words … 6 December 1793, SessionHouse, Clerkenwell-Green (London, 1794), 33–34, 49. 31. The version published in State Trials, XXII: 823–906 is based on Winterbotham’s publication. In quoting from the trials, I have followed State Trials in removing italics and capitalization. 32. William Winterbotham, The Commemoration of National Deliverances, and the Dawning Day: Two Sermons Preached … at How’s Lane Chapel, Plymouth (London, 1794), 2–5; Trials, 75–76. 33. William Elford to Chamberlayne and White, 24 April 1793, TNA, TS 11/954. 34. Trials, 86, 132. Foot expressed concerns about the reliability of juries at the assize sessions. Foot to Chamberlayne and White, 16 and 24 April, 1793, TNA, TS 11/954. 35. Trials, 23.

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36. Sermons, 1–3. 37. Ibid., 16–20, 25–26. 38. Ibid., 37. Plymouth was an Admiralty borough. 112 voted at the 1790 election. R.  G. Thorne, ed., The History of Parliament: The House of Commons, 1790–1820, 5 vols (London, 1986), II: 118. 39. Sermons, 32–36 40. Trials, 1–4. 41. Ibid., 4–5. 42. Ibid., 7–13. 43. Ibid., 17–21, 23. 44. Trials, 23–36, passim. 45. Ibid., 42–3, 45–6, 48–51, 53, 57–59, 62–64. 46. Ibid., 39, 41–42. Winterbotham explained that eight dissenters formed a partnership to provide employment for the poor and clothing and education for indigent children, and that he had been forced to withdraw from the business due to “popular prejudice”. 47. Sermons, 65. Brend heard the same false reports, 47. 48. State Trials, V: 1116–46. 49. Sermons, 65, 51–52, 57–8. It is unclear if Mrs. Gibbs, a widow, was related to Reverend Philip Gibbs. 50. Trials, 75–81, 85–86. 51. Deposition of Lyne, TNA, TS 11/458 (1524); Trials, 97. 52. Depositions of Lyne and Derby [sic], and statements of Joan Palmer (Lyne’s landlady) and Anna Maria Champion, TNA, TS 11/458 (1524); William Elford to Chamberlayne and White, 24 April 1793, TNA, TS 11/954. 53. Trials, 90–91. 54. Sermons, 54–60. 55. Trials, 91–100; Depositions of Lyne and Derby [sic], TNA, TS 11/458 (1524). 56. Sermons, 41. 57. Trials, 109–10, 121–22, 127; Sermons, 50–51. 58. Trials, 131–32 59. Winterbotham, Sketch, 49–51. 60. State Trials, XXII: 906–08; True Briton, 28 November 1793; Morning Chronicle, 22 and 28 November 1793. 61. Winterbotham, Sketch, 36; “Memoirs”, New Baptist Miscellany, 4 (February 1830), 49.

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62. Winterbotham, Sketch, 36–41; “Memoirs”, 4 (1830), 89–91; “Patriots in Prison”, in Newgate in Revolution: An Anthology of Radical Prison Literature in the Age of Revolution, eds Michael T. Davis, Iain McCalman and Christina Parolin (London, 2005), ix-xxv. 63. Trials, 80–81. 64. British Critic, 3 (1794), 704–05. See also Critical Review, 11 (June 1794), 224–25. 65. Trials, 68–69. Thompson, Making, 31, notes the Baptists remained the “most plebeian” among the ranks of old dissent, but we can only infer that Winterbotham’s congregation was drawn from the middling and lower ranks of society. 66. Cambridge Intelligencer, 15 March 1794. 67. Tribune, 50 [April] 1796, 327; TNA, TS 11/951/3495. 68. For the climate of suspicion, see John Barrell, The Spirit of Despotism: Invasions of Privacy in the 1790s (Oxford, 2006). 69. TNA, TS 11/954/3498, report of 13 February 1794, reprinted in Mary Thale, ed., Selections from the Papers of the London Corresponding Society, 1792–1799 (Cambridge, 1983), 113. 70. For the work’s publication history, see Tim Fulford and Rachel Crawford, eds, Robert Southey: Later Poetic Works, 1811–1838, 4 vols (London, 2012), III: 441–60.

Bibliography Manuscript Collections British Library [BL], Add. Mss 16923-29. The National Archives [TNA], Treasury Solicitor [TS] 11/458, 11/951/3495, 11/954.

Newspapers and Journals British Critic. Cambridge Intelligencer. Critical Review. Exeter Flying Post.

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London Gazette. Morning Chronicle. Tribune. True Briton.

Printed Primary Materials A Pennyworth of Politics (Edinburgh, 1797). “The Kenrick Letters”, Transactions of the Unitarian Historical Society, 4 (1927–28), 66–82, 173–97. The Trials of William Winterbotham for Seditious Words (London, 1794). Trial of Thomas Briellat, for Seditious Words … 6 December 1793, Session-House, Clerkenwell-Green (London, 1794). Thomas Belsham, Memoirs of the Late Reverend Theophilus Lindsey, M.  A. (London, 1812). Jenny Graham, “A Hitherto Unpublished Letter of Joseph Priestley”, Enlightenment and Dissent, 14 (1995), 46. Thomas Jones Howell (ed.), A Complete Collection of State Trials and Proceedings for High Treason and other Crimes and Misdemeanours, 33 vols (London, 1809–1828). Joseph Ivimey, A History of the English Baptists, 4 vols (London, 1830). W. J., “Memoirs of the Rev. William Winterbotham,” New Baptist Miscellany, 4 (January-March 1830), 1–5, 45–49, 89–95. Charles Pigott, A Political Dictionary: Explaining the True Meaning of Words (London, 1795). Mary Thale, ed., Selections from the Papers of the London Corresponding Society, 1792–1799 (Cambridge, 1983). William Winterbotham, The Commemoration of National Deliverances, and the Dawning Day: Two Sermons Preached … at How’s Lane Chapel, Plymouth (London, 1794).

Secondary Works John Barrell, The Spirit of Despotism: Invasions of Privacy in the 1790s (Oxford, 2006). J. E. Cookson, The Friends of Peace: Anti-War Liberalism in England, 1793–1815 (Cambridge, 1982).

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Michael T. Davis, Iain McCalman and Christina Parolin, “Patriots in Prison”, in Newgate in Revolution: An Anthology of Radical Prison Literature in the Age of Revolution, eds Davis, McCalman and Parolin (London, 2005), ix–xxv. Michael T. Davis, “The British Jacobins and the Unofficial Terror of Loyalism”, in Terror: From Tyrannicide to Terrorism, eds Brett Bowden and Davis (Brisbane, 2008), 92–113. Peter Denney, “Popular Radicalism, Religious Parody and the Mock Sermon in the 1790s”, History Workshop Journal, 74 (2012), 51–78. H. T. Dickinson, “Popular Conservatism and Militant Loyalism”, in Britain and the French Revolution, 1789–1815, ed. Dickinson (London, 1989), 103–26. H.T. Dickinson, “Popular Loyalism in Britain in the 1790s”, in The Transformation of Political Culture; England and Germany in the Late Eighteenth Century, ed. Eckhart Hellmuth (Oxford, 1990), 503–33. Robert Dozier, For King, Constitution, and Country (Lexington, 1983). Michael Durey, “William Winterbotham’s Trumpet of Sedition: Religious Dissent and Political Radicalism in the 1790s”, Journal of Religious History, 19 (1995), 141–157. Clive Emsley, “An Aspect of Pitt’s “Terror”: Prosecutions for Sedition during the 1790s”, Social History, 6 (1981), 155–84. Tim Fulford and Rachel Crawford, eds, Robert Southey: Later Poetic Works, 1811–1838, 4 vols (London, 2012). Philip Harling, “The Law of Libel and the Limits of Repression, 1790–1832”, Historical Journal, 44 (2001), 107–134. Robert Hole, Pulpits, Politics and Public Order in England, 1760–1832 (Cambridge, 1989). Robert Hole, “English Sermons and Tracts as Media of Debate on the French Revolution, 1789–99”, in The French Revolution and British Popular Politics, ed. Mark Philp (Cambridge, 1991), 18–37. W.  Byng Kenrick, ed., Chronicles of a Nonconformist Family: The Kenricks of Wynne Hall Exeter and Birmingham (Birmingham, 1932). Emma Macleod, “Civil Liberties and Baptists: William Winterbotham of Plymouth in Prison and Thinking of America”, Baptist Quarterly, 44 (2011), 196–222. Henry M. Nicholson, Authentic Records Relating to the Christian Church Now Meeting in George Street and Mutley Chapels, Plymouth. 1640 to 1870 (London, 1870). Frank O’Gorman, “The Paine Burnings of 1792–1793”, Past and Present, 193 (2006), 111–55.

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Steve Poole, “Pitt’s Terror Reconsidered: Jacobinism and the Law in Two South-­ Western Counties, 1791–1803”, Southern History, 17 (1995), 65–87. Nicholas Rogers, Crowds, Culture and Politics in Georgian Britain (Oxford, 1998). Nicholas Rogers, “Burning Tom Paine: Loyalism and Counter-Revolution in Britain, 1792–1793”, Histoire Sociale/Social History, 32 (1999), 139–71. E. P. Thompson, The Making of the English Working Class (London, 1963). R. G. Thorne, ed., The History of Parliament: The House of Commons, 1790–1820, 5 vols (London, 1986). Wil Verhoeven, Americomania and the French Revolution Debate in Britain, 1789–1802 (Cambridge, 2013). Kathleen Wilson, “Inventing Revolution: 1688 and Eighteenth-Century Popular Politics”, Journal of British Studies, 28 (1989), 347–86. William Howard Winterbotham, The Rev. William Winterbotham, A Sketch (London, 1893). David L. Wykes, “‘The Spirit of Persecutors Exemplified’: The Priestley Riots and the Victims of Church and King Mobs”, Transactions of the Unitarian Historical Society, 20 (1991), 17–39.

6 The Noise and Emotions of Political Trials in Britain During the 1790s Michael T. Davis

Henry Cockburn believed that political crimes were so unique that to see no distinction between them and other offences was “the sure mark of an excited or of a stupid head.”1 Similarly, the publication of this book implies there was something recognisably noteworthy and remarkable about political trials that distinguished them from ‘ordinary’ criminal proceedings during the “age of revolutions”.2 Political prosecutions were not, of course, new to this period but they did gain a deeper meaning and new momentum between the late eighteenth century and the mid-­ nineteenth century as the British government and its loyalist supporters propagated a fear of reformers as dangerous evildoers intent on raising a home-grown revolution. This is particularly true in the 1790s when reformers were brought before the courts in extraordinary numbers for The research for this essay was funded by an Australian Research Council Discovery Grant (DP0774643).

M. T. Davis (*) School of Humanities, Languages and Social Science, Griffith University, Southport, QLD, Australia e-mail: [email protected] © The Author(s) 2019 M. T. Davis et al. (eds.), Political Trials in an Age of Revolutions, Palgrave Histories of Policing, Punishment and Justice, https://doi.org/10.1007/978-3-319-98959-4_6

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political crimes under the pretence of averting an imminent threat to national security. Indeed, most scholars acknowledge that there was a quantitative distinctiveness about political trials in the 1790s. There were more trials for sedition in 1792 and 1793 alone than there had been in the previous eighty-seven years,3 and the average number of seditious libel cases per year heard before the Court of King’s Bench increased significantly in the decade after the French Revolution.4 As Kenneth Johnston states: “One strong fact about this period has a bracing, if incredulity-­producing, effect on British audiences in particular: there were more trials for sedition and treason in the 1790s in Great Britain than ever before or after in its history.”5 For Johnston, this fact combined with convictions in about two-thirds of political trials “fits in the sub-category of judicial or ‘white’ terror.”6 A “reign of terror” in Britain during the 1790s, however, is a contested concept. Clive Emsley has suggested that “the machinery of repression in England scarcely changed” during this period and most “prosecutions of English Jacobins involved existing legislation, used in a traditional way”.7 In Emsley’s analysis, political trials were a conventional and routine part of the law in operation: “The use of the law to strike terror into potential offenders was no new departure during the 1790s, nor was it confined to political offences.”8 The number of political trials, according to Emsley, was also relatively insignificant. He has identified fewer than 200 prosecutions for sedition and treason over the decade which, Emsley argues, “pales into insignificance beside the number of prosecutions for sedition during the Jacobite emergencies of 1715 to 1716 and 1745 to 1746”9 and “hardly constitutes, of itself, a reign of terror”.10 Steve Poole, however, suggests that the extent of political prosecutions in the 1790s was more widespread than Emsley allowed and their impact was undeniably deep.11 Indeed, this latter point is one that Emsley himself accepts: “Pitt’s repression clearly did constitute an attack upon the wider, newly refined conceptions of English liberty which were articulated in the 1790s by radicals and Foxites.”12 And the sweeping aftermath of political prosecutions affected more than just those on trial. As John Bugg points out, “a generation of authors felt the force of ‘Pitt’s Terror,’ and across the decade they watched in horror as writers, printers, and booksellers were arrested, imprisoned, transported, and bankrupted”.13

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Indeed, Jon Mee notes that the level of repression was “formidable enough to destroy careers and ruin lives”14 This is a point that resonates in an emotional statement by Henry Redhead Yorke during his trial for conspiracy in 1795, which exposed both his fragility and resilience: “if I must yet be doomed to languish out the most precious moments of my life in a prison, fatal as it must be to my interest, blasting every where my hopes, and sinking me down completely into ruin, my mind shall be equal to the task”.15 Such personal devastation was fundamentally collateral damage in a ‘war’ against what conservatives saw as very dangerous enemies. Edmund Burke, for instance, believed “a general war against Jacobins and Jacobinism as the only possible chance of saving Europe (and England is included in Europe) from a truly frightful revolution.”16 And it was the courts that were to be a crucial theatre of that “war”. As one contemporary put it, “the Old Bailey has declared perpetual warfare against particular opinions”.17 So effective was this judicial assault against reformers, that the Morning Post on 23 December 1793 told its readers how the state side of Newgate prison was “now so full, that there is not room for another Prisoner” and suggested facetiously the government “would be well if they directed some clever Architect to build a new wing to the prison” if they persevere in prosecuting radicals.18 Exactly one year later, a more audacious reflection on the scale and intent of political trials was presented in a letter published by the Morning Post following the acquittals of Thomas Hardy, John Horne Tooke and John Thelwall on charges of treason. In this written address to Henry Dundas, the writer asks a series of pointed rhetorical questions: “But, Sir, what was the object of the late Prosecutions? To protect the King; to preserve the Constitution. Silly supposition, for once in your life be candid; was it or was it not the real object to awe, to terrify the people, to turn the public mind from the reformation of scandalous abuses?” For this observer, the political prosecutions of 1794 were historic and portentous episodes: It will be remembered, that during the year 1794, England was under that wretched Government, in which the King suspected an enemy in his subject; and in which a shameless Ministry, under the pretence of supporting the national tranquillity, sacrificed the repose and happiness of many thousand innocent individuals …. The impartial Historian will faithfully record

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that, in this year, dark suspicion and black distrust haunted every Association, and that the foul machinations of an artful Minister rendered it imprudent and unsafe for the loyal Citizen to unbosom his political sentiments.19

Historians, however, acknowledge that political suspicion and distrust not only manifested itself in the political trials of 1794 but also extended to repressive sanctions across the entire decade. While Boyd Hilton rejects as “baloney” a contemporary suggestion that Pitt’s ‘reign of terror’ was more pernicious than anything experienced in France during the 1790s, he does identify “a significant increase in the coercive powers of the State” to deal with the perceived threat of insurrection.20 This expansion of the state’s reach and the prosecution of British radicals was – as I have previously suggested  – “a means of directing and discrediting behaviour to maintain social order, a crucial part of what sociologists call norm promotion …. It was in this context that political trials operated within the climate of a moral panic as a technology of power to construct, as Michel Foucault puts it, ‘docile bodies’.”21 Vicesimus Knox, for one, writing in 1795 understood this well, reflecting on how the “legal punishments attending the expression of discontent, by any overt act, are so severe and the ill-grounded terrors of them so artfully disseminated, that rather than incur the least danger … [the people] submit in silence to the hardest oppression” and “are terrified into a tame and silent acquiescence.”22 At one level, this conformity and timidity was the innate result of the normative and proscriptive functions of the law. As Barry Godfrey has observed, trials can be conceived of as a product of the “communicating court” and, as such, are “a form of moral criticism, and as a communicative enterprise which enables the authorities to didactically inform the sensibilities of the poor from a position of rhetorical power.”23 This is precisely the context in which Marxist historians have viewed the political trials of the 1790s and, more generally, the purpose as well as operation of the law in the eighteenth century. According to this school of thought, the law functioned as a hegemonic tool of class oppression. For Douglas Hay, criminal law in the eighteenth century was a weapon manipulated and wielded by the ruling elite against the lower classes to protect property.24 And E.P.  Thompson saw the political trials of the

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1790s as one of the “halting steps” taken by rulers in the direction of illegitimate power, whereby they would “dispense with the rule of law, dismantle their elaborate constitutional structures, countermand their own rhetoric and exercise power by force” over the common people.25 However, as David Lemmings states, the “people were not always intimidated”26 and more recent scholarship has emphasised the permissive as well as discretionary nature of the eighteenth-century criminal justice systems in England and Scotland.27 “The courts needed the crowd”, as Peter King has noted, and the “openness of the jury trial was one of the foundations of the law’s legitimacy and if the courts’ proceedings were to affect potential offenders, the labouring poor as well as the propertied had to be admitted.”28 This participatory culture of eighteenth-century criminal proceedings routinely brought with it noise and emotional outbursts from defendants as well as the onlookers that flocked to the galleries and crowded the surrounding streets. Political trials during the 1790s, in particular, could be obstreperous and emotionally charged events, and for very good reason. There was a lot at stake for the accused and their family, with imprisonment, a potentially ruinous punitive fine, a stint in the pillory, transportation or even execution potential outcomes of a conviction. When a defendant was found guilty, the overwhelming and all-consuming moment could naturally elicit an intense emotional response in the form of crying. Indeed, the shedding of tears is one of the most profound emotional releases and, from a psychological perspective “is a sign that individuals are actively experiencing their emotions”.29 This engagement with one’s feelings was clearly displayed at the trial of the United Irishmen brothers, Henry and John Sheares, on 13 July 1798. Both men were tried for high treason and, when a guilty verdict was announced by the jury, John Sheares “seemed electrified and fell into tears on the bosom of his brother, who also wept bitterly.”30 On the same day, weakened and despaired, the Sheares brothers were ordered to be executed but not before Henry made an impassioned address to the court. He implored the judge for one last request: “My Lord, as I had no notion of dying such a death as I am about to meet, I have only to ask your Lordship for sufficient time to prepare myself and family for it. I have a wife and six children, and hope your humanity will allow me some reasonable time to

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settle my affairs, and make provision for them.”31 At this point, Henry “was so overwhelmed with tears that he could not proceed”32 and the judge was reputedly so affected by this outpouring that he “could scarcely pronounce the sentence.”33 Crying, however, was not the only means by which sadness was displayed following convictions. On occasions, sentimental addresses were published that were reflections of communal grief, articulating and symbolising collective despair and sorrow. Such discourses were communicative and interpretative activities, processes akin to mourning by which guilty verdicts were given meaning and appropriated by the c­ ommunity.34 This was particularly prevalent following the convictions of Joseph Gerrald, Maurice Margarot, Thomas Muir, Thomas Fyshe Palmer and William Skirving in the Scottish courts for political crimes during 1793 and 1794. Charged with sedition and sentenced to transportation, the legalities of their punishments became the focus of widespread public debate while, at the same time, heartfelt expressions of personal deprivation and sympathy became part of the eulogising and mythologising that later transfigured these men into the so-called Scottish Martyrs.35 One letter to Muir, Palmer, Skirving and Margarot from the Sheffield Constitutional Society was filled with condolences and an acute awareness of the loss to the community. Its writer, William Bromhead, Secretary of the Society, revealed that “our loss is greater than yours: you are only banished from a country, which, however dear, is unworthy of you”. Bromhead reflected on how the outcome of their trials would see society “deprived of you, of your abilities, of your virtues, and of your examples”. The community’s degeneration was encased in an unconcealed sense of suffering at a time when the four men were merely weeks away from being transported: “At this mournful moment of separation, though we sympathise, though we feel your sufferings, yet pardon us, we weep not for you but for ourselves, for our children, for our Orphan country, thus suddenly deprived by a tyrannical decree, of four of its Fathers, at one rending pang.”36 Although melancholic responses to convictions were common, they were not universal. After a protracted trial for high treason in 1798, James O’Coigly heard the verdict of guilty and punishment by execution with a stoical and calm demeanour. At about two o’clock in the morning, as a

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large group of spectators still gathered in the court and “numbers waited in the streets to hear the event” of the trial,37 O’Coigly “bowed respectfully to the Court” and “did not appear to be at all agitated but, on the contrary, firm and serene.”38 But what subsequently transpired was an extraordinary performance that sent the court into a violent tumult. Arthur O’Connor, who had been on trial with O’Coigly but found not guilty of high treason, immediately sought to scamper from the courtroom after the passing of sentence on O’Coigly. Newspaper reports recounted how O’Connor “put one of his legs over the box where he had been standing, and endeavoured to get away out of Court”, while some of his friends assisted his escape “by placing themselves in the way of the Bow Street Officers, who, with several Peace Officers, rushed towards Mr. O’Connor.” As two swords were drawn, which apparently belonged to O’Connor, the court was “thrown into the utmost confusion” and several people were struck with them. Although the “tumult seemed to forebode dangerous consequences”, O’Connor was rather quickly seized and an earlier arrest warrant on a charge of high treason was served on him before silence was restored to the courtroom.39 However, silence during political trials in the 1790s might not last long. Verdicts of not guilty, in particular, often engendered the most pronounced uproar and commotion as feelings of joy were articulated and performed both inside as well as outside the courtroom. Happiness and relief often manifested as applause, a reflexive emotional response that was both cathartic and potentially contagious among audience members. When Daniel Isaac Eaton was acquitted in February 1794 of publishing a seditious libel which purportedly compared George III to a gamecock, the courtroom reverberated “with a burst of applause, expressed by a general clapping of hands.”40 Later in the same year, Amelia Opie attended the trials of Hardy, Horne Tooke and Thelwall with the view these hearings were “a prospect of entertainment”41 and at times they certainly turned out to be spectacles for the audience.42 At one point during Hardy’s trial, a brazen witness refused to relent to repeated attempts by the Attorney General to avow knowledge of a song about “freedom’s tree”. When the witness retorted “You know more of it than I do”,43 restraint in the gallery was inverted and, according to the True Briton, “a loud din of laughter was heard from all parts of the Court”.44 Several days later, when Hardy was

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found not guilty, “the persons present for a few moments forgot themselves, and were applauding the verdict, but desisted from their acclamations when silence was ordered in the Court.”45 But the Old Bailey courtroom was again soon filled with noise when the trial of Horne Tooke came to an end. For several minutes after Tooke’s innocence was announced, “it was received by almost every person in Court with acclamations and shouts of joy and congratulation, far beyond any thing of the kind we ever remember to have witnessed.”46 Such rejoicing was often infectious and spread beyond the confines of the courtroom. Hardy recalled how the outcome of his trial was “conveyed much quicker than the regular post could travel, to the most distant parts of the island, where all ranks of people were anxiously awaiting the result of the trial.”47 As far away as Norwich, the news of Hardy’s acquittal was welcomed “with the most lively emotions of joy” and the day ended with hearty toasts being met with universal applause at a local public house.48 But some of the most powerful and public displays of emotion were to be found much closer to the courts, as pensive crowds waited to hear the outcomes of trials. While the people in the gallery at the treason trial of Robert Thomas Crossfield in May 1796 “demeaned themselves on this occasion with the greatest degree of decorum”, the same was not observed of those gathered outside. As soon as the jury declared Crossfield innocent of attempting to assassinate George III with a poison dart fired from an airgun and “the result communicated out of doors … the air was rent by huzzas and acclamations of the populace.”49 A similar scene unfolded outside the Old Bailey as Horne Tooke’s trial was drawing to a close. A large crowd had gathered and the constables attempted to prevent them approaching too near the court. The noise could be heard inside the courtroom and the Lord Mayor, Thomas Skinner, went out into the streets to deliver a feigned and condescending speech to “the lower and middling classes of people”. After telling the crowd that “I think I have a right to expect your love and affection; and by that love and affection I conjure you to shew a regard for me this night by keeping the peace”, one newspaper reported how the “the air was rent by huzzas, which, by many at a distance, were mistaken as produced by the acquittal of Mr. Tooke”. It proved to be a pre-emptive celebration by

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the crowd, with the verdict at Horne Tooke’s trial still several hours from being delivered, but “from that moment until the acquittal, they remained with silence and in the most perfect order.”50 However, the streets were again quickly filled with noise when Tooke was freed. The cheering sound from inside the courtroom “was soon caught by the attendant Populace without, on whom it had an electrical effect, for the air instantly resounded with the loudest acclamations of joy.”51 Thomas Erskine, one of Hardy’s defence counsel, was similarly able to enliven the crowd when he “ran to the shops of the Old Bailey, and proclaimed that there was a verdict of acquittal.” This news was communicated to the people in the streets outside the court “with electrical rapidity, and in a few moments the air was filled with the shouts of the multitude.”52 But such popular enthusiasm was not confined to the streets in the immediate vicinity of the Old Bailey. As Hardy recollected: “The vast multitude that were waiting anxiously without, caught the joyful sound, and like an electric shock, or the rapidity of lightning, the glad tidings spread through the whole town”.53 The scene that was to be acted out in the streets of London was energetic, loud and filled with a clear sentiment of triumph. Although Hardy tried to leave the court covertly, the crowd “was soon apprised of the deception” and pursued his carriage to the Strand.54 There they dismissed the horses and pulled it themselves on a spirited procession that was not dampened by what “was a bleak rainy afternoon in the gloomy month of November.”55 A vast concourse of onlookers watched as Hardy was paraded through the streets around Pall Mall and St James’s Street, through Piccadilly and the Haymarket before he alighted at the house of his brother-in-law in Lancaster Court in the Strand.56 The noise of this event was clearly intended to be provocative and political, as the crowd that drew his carriage “frequently stopped, and shouted at different places, such as Charing Cross, Carleton House, and St James’s Palace.”57 When Horne Tooke was acquitted just weeks later, the crowd reenacted a similar street performance. Although Tooke had managed to leave the court discreetly and made it to the house of his surgeon to sleep the night without any attention, the people were in a mood to celebrate.58 They had come prepared with flambeaux which illuminated the streets and were determined to pay their respects to Tooke’s counsel. As Thomas

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Erskine and Vicary Gibbs sat in their carriage, the crowd “clustered about it like a swarm of bees” and removed the horses before dragging it to Erskine’s house in Serjeant’s Inn. The same fanfare greeted Richard Brinsley Sheridan  – who was one of the witnesses examined during Tooke’s trial – after the crowd recognised him in the coach of a gentleman. Once they arrived at Serjeant’s Inn, Erskine addressed the crowd from the window of his house, expressing his happiness and beseeching those who gathered in the streets to avoid a disturbance: “We now hope that you will retire to your home, rendered more secure to you from what has passed; and as there are persons still within the walls of prisons, upon similar charges, connected with the imputation of violence and disorder, your peaceable deportment, even in the moment of zeal and triumph, will operate as a sort of evidence for the unfortunate prisoners”.59 The crowd cheered loudly and then cried for Sheridan to come forward  – which he did, making a short but pertinent address. He acknowledged the efforts of Horne Tooke’s defence lawyers and expressed no surprise “at the enthusiastic gratitude which these exertions had excited in the minds of the people” before reiterating the call to the crowd for orderly conduct. “It was”, Sheridan observed, “doubly incumbent on them to make it manifest to the world, that at all times, and even in the moment of eager and honest exultation, an ardent love of freedom was compatible with a sincere respect for order and the law”. Within ten minutes of Sheridan concluding his address, the crowd had dispersed without incident.60 But the celebrations were not over. A large gathering of people lined the streets from the Old Bailey to the London Coffeehouse, forming “a lane” along which the jury walked. At their destination, about 500 men “immediately arose, took off their hats, ranged themselves on each side as they passed through, saluting them with huzzas and applauses of the most animated sort.”61 This scene was perhaps rivalled only by what transpired ten months earlier on the streets of Edinburgh during the trial of Maurice Margarot. On the morning of 9 January 1794, a large crowd had gathered in front of the Black Bull Inn where Margarot was staying. When he and three friends appeared from inside the lodgings, they were forced into a chaise by the crowd and hauled to the High Court of Justiciary. After a short appearance at the bar, Margarot and several friends were again compelled

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to ride in a carriage from which the horses had been loosened and then escorted by the crowd back to Black Bull Inn.62 The Lord Provost and magistrates of Edinburgh reacted to this procession by issuing an order that no hackney coaches should be on the street on 13 January when Margarot was next due to appear in court. The decree for no carriages in public was, in fact, obeyed on the day but the authorities seemed predetermined to take action. Cockburn recalled how some of the buildings near the North Bridge “had been secretly filled with constables, and sailors from a frigate … all armed with sticks and batons.”63 At around ten in the morning, Margarot appeared at the northern end of the bridge amid a large partisan crowd that “ranged in rank and file”.64 They were all on foot and unarmed, bearing a white flag inscribed with the words “Law, Liberty, Reason, Justice and Truth” as well as a large tree of liberty in the shape of the letter M which implied Margarot was a familiar and popular celebrity.65 The Lord Provost and city magistrates, along with about 100 loyal supporters, marched forward from the southern end before the two parties met on the bridge. The crowd was instructed to disband but, “without waiting one instant to see whether they meant to retire or not, the houses vomited forth their bludgeoned contents”. Within a matter of minutes, the tree of liberty was demolished and thrown over the bridge, the crowd dispersed and Margarot was ushered to court.66 Although this episode apparently unfolded with far less clamour than the triumphal processions that followed the acquittals of Hardy and Horne Tooke,67 it nonetheless contributed to what was a unique cultural product of political trials in the 1790s.68 The parading of defendants was not a performance that materialised with ‘ordinary’ criminal trials in this period and, in part, this was because political trials were causes célèbres. Processions were constructed as a form of publicity for the democratic reform movement, a spectacle that was as much a celebration to express joyous emotion as it was a ritual that gave final vindication to the reformer and the cause they represented. But a cavalcade in the context of a political trial was also an act of defiance, a provocative and potentially threatening phenomenon. It demonstrated the capacity of radicals to mobilise the people and harness their power in collective action, rupturing and reshaping the streets with commotion. As Nicholas Rogers has pointed out, “the radical command of public space remained very

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precious” in the 1790s69 and the processions that accompanied political trials were a symbolic – albeit temporary – means of redrawing spatial boundaries.70 They were, as John Barrell puts it, “more or less orderly invasions” and – in at least the case of the parade after Hardy’s trial – the meaning of the route taken was “unmistakeable to the crowd, the acquittal a victory for those living north and east of Charing Cross over the inhabitants of the West End, especially the king and the members of both houses of the corrupt parliament which Hardy had been tried for attempting to reform.”71 While processions were peculiar to political prosecutions, the general noise and display of emotions that accompanied these trials were actually a frequent as well as conventional part of the legal process during this period. In this way, political trials were normalised and were qualitatively indistinguishable from other types of criminal proceedings. Most criminal trials in the eighteenth century were, in fact, rough and rowdy events. The crowd that was integral to the criminal justice system had “a vigorous and vibrant … culture [which] did not necessarily disappear when its members gathered in the crowded open courtrooms of eighteenth-­ century England.”72 Hisses and shouts, cheers and crying were all ­customary parts of the courtroom’s immersive soundscape.73 The acoustic and emotional disruptions of trial proceedings in the eighteenth century were not only typical but they were, as Amy Milka and David Lemmings have argued, also acceptable: “Far from viewing … displays of emotion as inappropriate, it appears that many contemporaries held emotional expressions to be a key part of the trial process, and of natural justice, as well as the majesty of the law.”74 However, this view was distorted for the authorities and their loyal supporters when it came to political trials in the 1790s. What gave these trials one element of qualitative uniqueness were the ways in which noise and emotional outbursts were universally interpreted and perceived as repugnant by the opponents of reform. At one level,  as I have previously argued, radicals might manipulate their legal engagements to convert the courtroom into “a contested judicial space, a site of an insurgent counter-­ culture, where radical discourse and performance was used to articulate, legitimate and sustain the cause of reform.”75 Political trials could be an empowering and validating force, as one scholar has pointed out: “In 1790s

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Britain, defendants who knew how to make effective use of the verbal, cultural, and symbolic capital at their disposal could potentially turn the tables on the establishment by destabilizing its offensive stance and putting it on the defensive.”76 But the commotion that resulted from this challenge to authority also deepened already entrenched conservative attitudes towards reformers, marginalising them even further as rough and unruly. The envisaged impurity and incivility of reformers was realised in the collective mass of supportive crowds that gathered in the streets to cheer acquittals and parade the victors through the streets. The sight and sound of hundreds of people rallying in support of reformers added to loyalist narratives about the offensive nature of popular politics, reinforcing pejorative associations between radicalism and the mob.77 For fearful and suspicious members of society, the mob in the 1790s was a menacing presence: “Give me anything but mobs, for mobs are the devil in his worst shape”.78 The appearance of sympathetic crowds at political trials was the embodiment of evil, an alarming manifestation of the dangerous and uncivilised side of the community. A threatening mob was seen at the trial of Hardy and the True Briton believed it “was a wise and timely measure to station the Militia round the Old Bailey”. According to this newspaper, the “hireling mob” were excited “to a very riotous extent, and had even begun to insult the Judges as they departed” following Hardy’s acquittal.79 The same newspaper observed that the carriage in which Hardy left the court “was followed only by an inconsiderable mob of butcher’s boys” which it described as “rabble”.80 The disorderly masses were also earlier spotted in the streets of Edinburgh, parading Margarot to and from court. In his opening address to the jury on 13 January 1794, the Lord Advocate remarked on “the mob assembled this morning to conduct this man to his place of trial with triumph; and with shouts, and clamour, and noise and violence, clearly directed to intimidate court and jury, and prosecutor, in the discharge of their duties.”81 Two days earlier, three farmers from East Lothian were under examination for their role in “exciting the mob” that drew the carriage of Margarot to court on 9 January. The actions of that day were looked upon as “indecent rioting in the streets” and the magistrates issued orders to prohibit such behaviour in the future, identifying crowd support of Margarot as “subversive of good order, the peace and quiet of the city, and that respect which is

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due to the Supreme Criminal Court.”82 The presence of the mob during political trials provided an explicit source of evidence for conservative observers of the unrespectable and ominous character of reformers. Such crowd actions in the streets were identified as confrontational performances that dislocated the accepted boundaries of legal processes and violated the solemnity of the law. However, perhaps the most objectionable breach of respect for the law during political trials was raucous behaviour inside the courtroom. Although noise was a common feature of urban life in the eighteenth century and plebeian culture was often rowdy by nature,83 sound by the lower classes was politicised in the 1790s and was exposed as threatening to polite society. Peter Denney has shown how “the model artisan was reconstructed as a quiet, obedient and industrious individual” during the eighteenth century and “a shift in the polite perception of the model artisan intensified in the 1790s, when an insistence on the virtue of quietness became a staple of loyalist propaganda.”84 Sound became a key factor in the way conservative contemporaries reimagined identities of the ‘other’ in the 1790s. Those members of society who infringed acceptable boundaries of rational behaviour, who made too much noise or became overwhelmed with emotion, were labelled as unworthy and amoral. In sociological terms, disorderly conduct ensured a citizen was located in the margins of civil society’s grid, as Jeffrey Alexander explains: “If actors are passive and dependent, irrational and hysterical, excitable, passionate, unrealistic, or mad, they cannot be allowed the freedom that democracy allows. On the contrary, these persons deserve to be repressed, not only for the sake of civil society, but for their own sakes as well.”85 Even the London Corresponding Society recognised this construction of unworthiness with a warning that members “attempting to trespass on order, under pretence of shewing zeal, courage, or any other motive, are to be suspected. A noisy disposition is seldom the sign of courage, and extreme zeal is often a cloak of treachery.”86 It was, therefore, unlikely to be a surprise to reformers when the trespassing on order during political trials was frowned upon by the authorities as particularly transgressive and subversive. Despite the presence of spectators being an integral part of eighteenth-century criminal justice, there was still an underlying expectation that they would act in a befitting

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manner during court proceedings. The trial process was designed to ­subdue excitement and control emotional outbursts, with judges engaged in the stage management of courtroom users: “Emotions are recognized, managed, even instrumentalized in order to maintain control of the courtroom and deliver judgments which are prima facie free from prejudice, false assumptions, or undue sympathy.”87 To contravene court protocols was an affront to the majesty of the law, especially during political trials. This was clearly articulated by Sir James Eyre – the presiding judge at the trial of John Thelwall – when the jury retired to consider their verdict on 5 December 1794, with the spectators given a pointed warning not to repeat the behaviour that occurred at the end of Tooke’s trial: The Jury being withdrawn, I will now state that, at the last trial, which took place in this Court, the decorum and dignity of a Court of Justice were much insulted by the improper conduct of the audience in breaking out into a loud shout of applause at the delivery of the verdict. I am sorry that it happened, and still more so to say, that I think I saw a Barrister upon that occasion shouting and clapping his hands. I hope that no such insult will ever be again offered to a Court of Justice, for nothing can be more indecorous than to express by shouts, or otherwise, satisfaction or dissatisfaction at the verdict of a Jury. I therefore give this caution, that if any person in this Court shall so misconduct himself on the present occasion, if he be marked and discovered, he will be immediately sent to Newgate.88

This was not just an empty and baseless threat. The laughter that filled the courtroom after the witness at the trial of Hardy boldly and flippantly refused to admit knowing a political song was viewed by Eyre as a disagreeable noise that was boorish and characteristic of folly. Eyre was said to be “highly offended” by the hysteria and he considered it to be “an outrage upon the propriety and gravity of a Court of Justice”. He then ordered the officers of the Old Bailey to arrest anyone whose conduct in the courtroom was considered undesirable.89 Several months later, five men were tried on charges of “having riotously and tumultuously assembled in the Old Bailey” during the trial of Hardy. The prosecution declared a mob had assembled in the court and that one of the accused – who was highly intoxicated at the time – joined with them in a huzza

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before proclaiming himself to be a Jacobin. The other defendants were said to have shouted and hissed during proceedings, “interrupting the course of public Justice, in breach of public Peace, and to the great terror of the King’s subjects.” John Gurney, however, in his defence speech dismissed the charges as “almost too ridiculous for the serious attention of a Jury” and asserted that the prosecution of these men was a politically motivated ramification of the failed treason trials of 1794: “An intelligent Jury, much to their honour and the advantage of the Country, had destroyed the trunk of the tree, and it was to be hoped the Jury on the present occasion would destroy its branches.” And they did when all the men were declared not guilty.90 That prosecution, however, was by no means the first or the last time that otherwise ‘normal’ courtroom conduct was redefined as criminal in the context of political trials in the 1790s.91 During Margarot’s hearing, two persons were detained and committed to prison for what was envisaged as “improper behaviour in the galleries.”92 In December 1797, when John Henderson was declared not guilty of administering the illegal oath of the United Irishmen, one member of the courtroom audience named Kelly was taken into custody for “the act of clamouring and shouting”. He was ordered by the court to be imprisoned for a week but avoided the punishment when a number of gentleman present at the trial vouched for his good character.93 And in the previous year, a loud and unanimous shout reverberated around the Court of King’s Bench after William Stone was found not guilty of high treason but one unfortunate fellow, named Richard Thompson, was singled out for his participation in the revelry. Thompson expressed remorse for his actions, pleading “that his feelings on the joyous occasion were such that, if he had not given utterance to the joy which arose within his breast, he should have died on the spot.” However, the presiding judge, Lord Kenyon, was unmoved. He replied “that it was his duty to suppress the emotions of such tumultuous joy, which threw contempt on the dignity of the Court” and then ordered the keeper of Newgate prison to keep Thompson in custody until he paid a fine of twenty pounds.94 These cases of onlookers at political trials being victimised for expressing their feelings is evidence that the reach of Pitt’s ‘reign of terror’ extended beyond merely prosecutions for sedition and treason. They also demonstrate how noise and emotions that accompanied political trials in

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the 1790s were perceived by some contemporaries very differently to the same outpourings during ‘ordinary’ criminal trials. Loud and disorderly performances were an integral and accepted part of the trial process in the eighteenth century but not when it came to the prosecution of political crimes. This was a qualitative departure from the norm that made political trials in the 1790s distinctive and extraordinary events. And it was an anomaly highlighted in the Morning Chronicle when it reflected on Lord Kenyon’s punishment of Richard Thompson: “It is true, as his Lordship well observed, that the Law is made to restrain the impetuosity of men’s passions, and that persons that cannot command their tempers ought not to obtrude themselves upon Courts of Justice; but we have daily experience that, if such a rule was too rigidly executed, the business of the Court, from the infirmity of human nature, would be totally put a stop to.”95 But, of course, the business of the court continued unabashed despite  – or perhaps because of  – the double vision that inflicted the authorities and conservatives when they observed political prosecutions. Popular participation during political trials was looked upon askance as a destabilising phenomenon that insulted the majesty of the law and challenged the authority of the state. At the end of the eighteenth century, as Jan Plamper has pointed out, “emotion was defined as unreason, celebrated by some, damned as such by others.”96 Radical defendants and their supporters who displayed emotions and made a noise during trials in the 1790s were indeed damned by conservatives as vulgar, uncivilised and unworthy members of society. For this reason, even an acquittal could damage the image of reformers and the democratic cause – a point which highlights the fact that everything might not necessarily be as it seemed in the paradoxical political world of the 1790s.

Notes 1. Cockburn, Examination, I: 68. 2. For a discussion of political trials during the “age of revolutions”, see Michael Lobban, “From Seditious Libel to Unlawful Assembly: Peterloo and the Changing Face of Political Crime c. 1770–1820”, Oxford Journal of Legal Studies, 10 (1990), 307–352; Philip Harling, “The Law of Libel

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and the Limits of Repression, 1790–1832”, The Historical Journal, 44 (2001), 107–134; and Jon Mee, “Treason, Seditious Libel, and Literature in the Romantic Period” in Oxford Handbooks Online (New York, 2016), 1–23. 3. T.A. Jackson, Trials of British Freedoms: Being Some Studies in the History of the Fight for Democratic Freedom in Britain (London, 1940), 35. 4. Lobban, “From Seditious Libel to Unlawful Assembly”, 309. 5. Kenneth R. Johnston, Unusual Suspects: Pitt’s Reign of Alarm and the Lost Generation of the 1790s (Oxford, 2013), xiv. Italics in the original source. 6. Ibid., xvii. 7. Clive Emsley, “Repression, ‘Terror’ and the Rule of Law in England during the Decade of the French Revolution”, English Historical Review, 100 (1985), 822. 8. Clive Emsley, “An Aspect of Pitt’s ‘Terror’: Prosecutions for Sedition during the 1790s”, Social History, 6 (1981), 164. 9. Emsley, “Repression, ‘Terror’ and the Rule of Law in England”, 822. 10. Emsley, “An Aspect of Pitt’s ‘Terror’”, 174. As an integral part of a moral panic, the prosecution of radical expressions and activities is only one element of a broader cultural construction. The validity of the concept of a ‘reign of terror’, therefore, cannot be determined merely by the number of political trials but must also consider the wider societal impacts of the Jacobin panic that manifested as “unofficial terror”. See Michael T. Davis, “The British Jacobins and the Unofficial Terror of Loyalism of the 1790s”, in Terror: From Tyrannicide to Terrorism, ed. Brett Bowden and Michael T.  Davis (Brisbane, 2008), 92–113. For a discussion of political trials as part of the British Jacobin panic, see Michael T. Davis, “The British Jacobins: Folk Devils in the Age of Counter-Revolution?”, in Moral Panics, the Media and the Law in Early Modern England, ed. David Lemmings and Claire Walker (Basingstoke, 2009), 221–244. 11. Steve Poole, “Pitt’s Terror Reconsidered: Jacobinism and the Law in Two South-Western Counties, 1791–1803”, Southern History, 17 (1995), 65–87. Also see Johnston, Unusual Suspects, 329–330. 12. Emsley, “Repression, ‘Terror’ and the Rule of Law in England”, 824. 13. John Bugg, Five Long Winters: The Trials of British Romanticism (Stanford, 2014), 12. 14. Mee, “Treason, Seditious Libel, and Literature in the Romantic Period”, 8. 15. Thomas Jones Howell (ed.), A Complete Collection of State Trials and Proceedings for High Treason and other Crimes and Misdemeanours, 33 vols

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(London, 1809–1828), XXIV: 1112–1113. For a discussion of Yorke’s trial, see Amnon Yuval, “Between Heroism and Acquittal: Henry Redhead Yorke and the Inherent Instability of Political Trials in Britain during the 1790s”, Journal of British Studies, 50 (2011), 612–638. 16. L.G. Mitchell (ed.), The Writing and Speeches of Edmund Burke, 9 vols (Oxford, 1981–2015), VIII: 404. 17. The Diary or Woodfall’s Register, 10 June 1793. 18. Morning Post, 23 December 1793. 19. Morning Post, 23 December 1794. 20. Boyd Hilton, A Mad, Bad, and Dangerous People? England 1783–1846 (Oxford, 2006), 65. 21. Davis, “The British Jacobins”, 230. 22. Vicesimus Knox, The Spirit of Despotism (Trenton, 1802), 98. 23. Barry Godfrey, “Sentencing, Theatre, Audience and Communication: The Victorian and Edwardian Magistrates’ Courts and their Message”, in Les témoins devant la justice: Une histoire des statuts et des comportements, ed. Benoit Garnot (Rennes, 2003), 163, 166. 24. Douglas Hay, “Property, Authority and Criminal Law”, in Albion’s Fatal Tree: Crime and Society in Eighteenth Century England, ed. Douglas Hay et al. (New York, 1975), 17–63. 25. E.P.  Thompson, Whigs and Hunters: The Origins of the Black Act (Harmondsworth, 1977), 269. 26. David Lemmings, “Introduction: Criminal Courts, Lawyers and the Public Sphere”, in Crime, Courtrooms and the Public Sphere in Britain, 1700–1850, ed. David Lemmings (Farnham, 2012), 2. 27. See J.M.  Beattie, Crime and the Courts in England, 1660–1800 (Princeton, NJ, 1986); and Peter King, Crime and Law in England, 1750–1840: Remaking Justice from the Margins (Cambridge, 2006). 28. Peter King, Crime, Justice and Discretion in England 1740–1820 (Oxford, 2000), 255. 29. Eileen Kennedy-Moore and Jeanne C.  Watson, Expressing Emotion: Myths, Realities, and Therapeutic Strategies (New York, 1999), 48. 30. Sun, 17 July 1798. 31. Report of the Whole Proceedings on the Trial of Henry Sheares and John Sheares, Esquires, for High Treason (Cork, 1798), 85. 32. Ibid. 33. The Trial of Messrs. Henry and John Sheares, on Charges of High Treason (Cork, 1798), 18.

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34. For a discussion of this process in the psychological context of mourning, see R.A. Neimeyer, D. Klass and M.R. Dennis, “Mourning, Meaning and Memory: Individual, Communal and Cultural Narration of Grief ”, in Meaning in Positive and Existential Psychology, ed. A. Batthyany and P. Russo-Netzer (New York, 2014), 325–346. 35. On the commemoration of the Scottish Martyrs during the nineteenth century, see Alex Tyrrell and Michael T. Davis, “Bearding the Tories: The Commemoration of the Scottish Political Martyrs of 1793–94”, in Contested Sites: Commemoration, Memorial and Popular Politics in Nineteenth-­Century Britain, ed. Paul A.  Pickering and Alex Tyrrell (Aldershot, 2004), 25–56. 36. Morning Chronicle, 24 March 1794. 37. Weekly Register, 30 May 1798. 38. Mirror of the Times, 19 May 1798. 39. Whitehall Evening Post, 24 May 1798. 40. Morning Post, 25 February 1794. 41. Cecilia Lucy Brightwell, Memorials of the Life of Amelia Opie (Norwich, 1854), 49. 42. For a discussion of the theatricality of the 1794 Treason Trials, see Judith Pascoe, Romantic Theatricality: Gender, Poetry and Spectatorship (Ithaca and London, 1997), 33–67. 43. Howell, A Complete Collection of State Trials, XXIV: 977. 44. True Briton, 3 November 1794. 45. Oracle and Public Advertiser, 6 November 1794. 46. Morning Post, 24 November 1794. 47. Thomas Hardy, Memoir of Thomas Hardy (London, 1832), reprinted in Testaments of Radicalism: Memoirs of Working-Class Politicians 1790– 1885 (London, 1977), 72. 48. Morning Post, 17 November 1794. 49. Oracle and Public Advertiser, 13 May 1796. 50. Courier and Evening Gazette, 24 November 1794. 51. Morning Post, 24 November 1794. 52. Oracle and Public Advertiser, 6 November 1794. 53. Hardy, Memoir, 72. 54. Oracle and Public Advertiser, 6 November 1794. 55. Hardy, Memoir, 72. 56. Ibid.; Oracle and Public Advertiser, 6 November 1794. 57. Hardy, Memoir, 72. 58. General Evening Post, 29 November 1794.

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59. Courier and Evening Gazette, 24 November 1794. 60. Ibid. 61. Ibid. 62. Morning Chronicle, 14 January 1794. 63. Cockburn, Examination, II: 24. 64. Morning Chronicle, 17 January 1794. 65. Ibid.; Cockburn, Examination, II: 23–24. 66. Ibid., 25. 67. Margarot’s supporters were said to be “perfectly quiet” (Morning Chronicle, 17 January 1794) and Cockburn recollected the “two parties advanced … in perfect silence” (Cockburn, Examination, II: 24–25). 68. Although the promenading of reformers who had entered the criminal justice system in the 1790s occurred largely in the context of trials, there was also the case of John Frost who was escorted through the streets by the crowd after being released from prison in December 1793. See Morning Post, 23 December 1793. 69. Nicholas Rogers, Crowds, Culture and Politics in Georgian Britain (Oxford, 1998), 210. 70. On the importance of space to popular politics, see Katrina Navickas, Protest and the Politics of Space and Place 1789–1848 (Manchester, 2016). 71. John Barrell, The Spirit of Despotism: Invasions of Privacy in the 1790s (Oxford, 2006), 33. 72. King, Crime, Justice and Discretion in England 1740–1820, 255. 73. Popular interference in courtroom proceedings extended well beyond the eighteenth century. Barry Godfrey has noted “that on many occasions the majesty of justice was traduced, and that the theatres of order deteriorated into a farce or a pantomime” during Victorian and Edwardian criminal proceedings. Godfrey, “Sentencing, Theatre, Audience and Communication”, 167. 74. Amy Milka and David Lemmings, “Narratives of Feeling and Majesty: Mediated Emotions in the Eighteenth-Century Criminal Courtroom”, The Journal of Legal History, 38 (2017), 157. 75. Michael T. Davis, “Prosecution and Radical Discourse during the 1790s: The Case of the Scottish Sedition Trials”, International Journal of the Sociology of Law, 33 (2005), 149. On the way political trials were manipulated by radicals during the 1790s to challenge authority, also see Michael T. Davis, “‘I Can Bear Punishment’: Daniel Isaac Eaton, Radical Culture and the Rule of Law, 1793–1812”, in Crime, Punishment, and

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Reform in Europe, ed. Louis A. Knafla (Westport, 2003), 89–106; and James Epstein, In Practice: Studies in the Language and Culture of Popular Politics in Modern Britain (Stanford, 2003), 59–82. 76. Yuval, “Between Heroism and Acquittal”, 613. 77. For a discussion of the association between radicalism and the mob in the 1790s, see Michael T.  Davis, “‘Reformers No Rioters’: British Radicalism and Mob Identity in the 1790s”, in Crowd Actions in Britain and France from the Middle Ages to the Modern World, ed. Michael T. Davis (Basingstoke, 2015), 146–162. 78. William Cobbett, A Summary View of the Politics of the United States (Philadelphia, 1794), in Porcupine’s Works: Containing Various Writings and Selections, 12 vols. (London, 1801), I: 63. 79. True Briton, 7 November 1794. 80. True Briton, 6 November 1794. 81. Howell, A Complete Collection of State Trials, XXIII: 696. 82. London Chronicle, 16 January 1794. 83. See Emily Cockayne, Hubbub: Filth, Noise and Stench in England (New Haven and London, 2007), 106–130. 84. Peter Denney, “Clamoring for Liberty: Alehouse Noise and the Political Shoemaker”, Eighteenth-­Century Life, 41 (2017), 116. 85. Jeffrey C.  Alexander, “Citizen and Enemy as Symbolic Classification: On the Polarizing Discourse of Civil Society”, in Cultivating Symbolic Boundaries: Differences and the Making of Inequality, ed. Michéle Lamont and Marcel Fournier (Chicago and London, 1992), 292. 86. [London Corresponding Society], The Report of the Committee of Constitution, of the London Corresponding Society (London, 1794), in London Corresponding Society, ed. Michael T.  Davis, 6 vols (London, 2002), I: 339. 87. Milka and Lemmings, “Narratives of Feeling and Majesty”, 158. 88. Courier and Evening Gazette, 8 December 1794. 89. True Briton, 3 November 1794. 90. Morning Post, 13 February 1795. 91. It is worth noting there was a legal precedent for the criminalisation and punishment of courtroom behavior during state trials. When Stephen Colledge was found guilty of high treason in 1681, “there was a great shout given; at which the Court being offended, one person who was observed by the Crier to be particularly concerned in the shout, was committed to gaol for that night”. Howell, A Complete Collection of State Trials, VIII: 714.

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92. Morning Chronicle, 21 January 1794. 93. True Briton, 25 December 1797. 94. Daily Advertiser, 1 February 1796. 95. Morning Chronicle, 1 February 1796. 96. Jan Plamper, The History of Emotions: An Introduction (Oxford, 2015), 23–24.

Bibliography Courier and Evening Gazette. Daily Advertiser. General Evening Post. London Chronicle. Mirror of the Times. Morning Chronicle. Morning Post. Oracle and Public Advertiser. Sun. The Diary or Woodfall’s Register. True Briton. Weekly Register. Whitehall Evening Post. Report of the Whole Proceedings on the Trial of Henry Sheares and John Sheares, Esquires, for High Treason (Cork, 1798). The Trial of Messrs. Henry and John Sheares, on Charges of High Treason (Cork, 1798). Cecilia Lucy Brightwell, Memorials of the Life of Amelia Opie (Norwich, 1854). William Cobbett, A Summary View of the Politics of the United States (Philadelphia, 1794), in Porcupine’s Works: Containing Various Writings and Selections, 12 vols. (London, 1801), I: 35–120. Henry Cockburn, An Examination of the Trials for Sedition which have hitherto occurred in Scotland, 2 vols (Edinburgh 1888). Thomas Hardy, Memoir of Thomas Hardy (London, 1832), reprinted in Testaments of Radicalism: Memoirs of Working-Class Politicians 1790–1885 (London, 1977), ed. D. Vincent, 37–102. Vicesimus Knox, The Spirit of Despotism (Trenton, 1802).

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[London Corresponding Society], The Report of the Committee of Constitution, of the London Corresponding Society (London, 1794), in London Corresponding Society, ed. Michael T. Davis, 6 vols (London, 2002), I: 333–349. L.G. Mitchell (ed.), The Writing and Speeches of Edmund Burke, 9 vols (Oxford, 1981–2015), vol. 8. Thomas Jones Howell (ed.), A Complete Collection of State Trials and Proceedings for High Treason and other Crimes and Misdemeanours, 33 vols (London, 1809–1828). Jeffrey C. Alexander, “Citizen and Enemy as Symbolic Classification: On the Polarizing Discourse of Civil Society”, in Cultivating Symbolic Boundaries: Differences and the Making of Inequality, ed. Michéle Lamont and Marcel Fournier (Chicago and London, 1992), 289–308. John Barrell, The Spirit of Despotism: Invasions of Privacy in the 1790s (Oxford, 2006). J.M.  Beattie, Crime and the Courts in England, 1660–1800 (Princeton, NJ, 1986). John Bugg, Five Long Winters: The Trials of British Romanticism (Stanford, 2014). Emily Cockayne, Hubbub: Filth, Noise and Stench in England (New Haven and London, 2007). Michael T.  Davis, “‘I Can Bear Punishment’: Daniel Isaac Eaton, Radical Culture and the Rule of Law, 1793–1812”, in Crime, Punishment, and Reform in Europe, ed. Louis A. Knafla (Westport, 2003), 89–106. Michael T. Davis, “Prosecution and Radical Discourse during the 1790s: The Case of the Scottish Sedition Trials”, International Journal of the Sociology of Law, 33 (2005), 148–58. Michael T. Davis, “The British Jacobins and the Unofficial Terror of Loyalism of the 1790s”, in Terror: From Tyrannicide to Terrorism, ed. Brett Bowden and Michael T. Davis (Brisbane, 2008), 92–113. Michael T.  Davis, “The British Jacobins: Folk Devils in the Age of Counter-­ Revolution?”, in Moral Panics, the Media and the Law in Early Modern England, ed. David Lemmings and Claire Walker (Basingstoke, 2009), 221–244. Michael T. Davis, “‘Reformers No Rioters’: British Radicalism and Mob Identity in the 1790s”, in Crowd Actions in Britain and France from the Middle Ages to the Modern World, ed. Michael T. Davis (Basingstoke, 2015), 146–162. Peter Denney, “Clamoring for Liberty: Alehouse Noise and the Political Shoemaker”, Eighteenth-Century Life, 41 (2017), 105–21.

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Clive Emsley, “An Aspect of Pitt’s ‘Terror’: Prosecutions for Sedition during the 1790s”, Social History, 6 (1981), 155–84. Clive Emsley, “Repression, ‘Terror’ and the Rule of Law in England during the Decade of the French Revolution”, English Historical Review, 100 (1985), 801–25. James Epstein, In Practice: Studies in the Language and Culture of Popular Politics in Modern Britain (Stanford, 2003). Barry Godfrey, “Sentencing, Theatre, Audience and Communication: The Victorian and Edwardian Magistrates’ Courts and their Message”, in Les témoins devant la justice: Une histoire des statuts et des comportements, ed. Benoit Garnot (Rennes, 2003), 161–71. Philip Harling, “The Law of Libel and the Limits of Repression, 1790–1832”, The Historical Journal, 44 (2001), 107–134. Douglas Hay, “Property, Authority and Criminal Law”, in Albion’s Fatal Tree: Crime and Society in Eighteenth Century England, ed. Douglas Hay et. al. (New York, 1975), 17–63. Boyd Hilton, A Mad, Bad, and Dangerous People? England 1783–1846 (Oxford, 2006). T.A. Jackson, Trials of British Freedoms: Being Some Studies in the History of the Fight for Democratic Freedom in Britain (London, 1940). Kenneth R.  Johnston, Unusual Suspects: Pitt’s Reign of Alarm and the Lost Generation of the 1790s (Oxford, 2013). Eileen Kennedy-Moore and Jeanne C.  Watson, Expressing Emotion: Myths, Realities, and Therapeutic Strategies (New York, 1999). Peter King, Crime and Law in England, 1750–1840: Remaking Justice from the Margins (Cambridge, 2006). David Lemmings, “Introduction: Criminal Courts, Lawyers and the Public Sphere”, in Crime, Courtrooms and the Public Sphere in Britain, 1700–1850, ed. David Lemmings (Farnham, 2012), 1–22. Michael Lobban, “From Seditious Libel to Unlawful Assembly: Peterloo and the Changing Face of Political Crime c. 1770–1820”, Oxford Journal of Legal Studies, 10 (1990), 307–352. Jon Mee, “Treason, Seditious Libel, and Literature in the Romantic Period” in Oxford Handbooks Online (New York, 2016), 1–23. Amy Milka and David Lemmings, “Narratives of Feeling and Majesty: Mediated Emotions in the Eighteenth-Century Criminal Courtroom”, The Journal of Legal History, 38 (2017), 55–78.

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Katrina Navickas, Protest and the Politics of Space and Place 1789–1848 (Manchester, 2016). R.A. Neimeyer, D. Klass and M.R. Dennis, “Mourning, Meaning and Memory: Individual, Communal and Cultural Narration of Grief ”, in Meaning in Positive and Existential Psychology, ed. A.  Batthyany and P.  Russo-Netzer (New York, 2014), 325–346. Judith Pascoe, Romantic Theatricality: Gender, Poetry and Spectatorship (Ithaca and London, 1997). Jan Plamper, The History of Emotions: An Introduction (Oxford, 2015). Steve Poole, “Pitt’s Terror Reconsidered: Jacobinism and the Law in Two South-­ Western Counties, 1791–1803”, Southern History, 17 (1995), 65–87. Nicholas Rogers, Crowds, Culture and Politics in Georgian Britain (Oxford, 1998). E.P. Thompson, Whigs and Hunters: The Origins of the Black Act (Harmondsworth, 1977). Alex Tyrrell and Michael T. Davis, “Bearding the Tories: The Commemoration of the Scottish Political Martyrs of 1793–94”, in Contested Sites: Commemoration, Memorial and Popular Politics in Nineteenth-Century Britain, ed. Paul A. Pickering and Alex Tyrrell (Aldershot, 2004), 25–56. Amnon Yuval, “Between Heroism and Acquittal: Henry Redhead Yorke and the Inherent Instability of Political Trials in Britain during the 1790s”, Journal of British Studies, 50 (2011), 612–38.

7 Literary Justice: Representing the London Treason Trials of 1794 Nancy E. Johnson

In the wake of the French Revolution, political rhetoric and action in Britain reached a heightened state, with reformers agitating for parliamentary reform and universal manhood suffrage.1 Consequently, government surveillance of British reformers increased dramatically and resulted in political trials for sedition and treason. The most prominent of these trials were the London Treason Trials of 1794, in which political reformers were charged with high treason for compassing and imagining the king’s death. What makes the London treason trials particularly important to a study of political trials is the role that imagination and narrative played in the charge of treason and the operations of justice, a role that precipitated narrative responses and captured the attention of the public.2 Among the multiple narratives that engaged with the dialogue of the trials, including those written by the reformers charged with treason,3 were novels that represented the injustices of surveillance, arrests, imprisonments, and prosecutions. The novels served an important cultural N. E. Johnson (*) Department of English and College of Liberal Arts and Sciences, State University of New York at New Paltz, New York, NY, USA e-mail: [email protected] © The Author(s) 2019 M. T. Davis et al. (eds.), Political Trials in an Age of Revolutions, Palgrave Histories of Policing, Punishment and Justice, https://doi.org/10.1007/978-3-319-98959-4_7

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purpose. They materialised the political debates that prevailed in the early 1790s and that contextualised the trials. They gave concrete historical and contingent shape to abstract ideas circulating in reaction to the French Revolution, and they both supported demands by reformers for the “rights of man” and called into question the universality of those rights. Further, the novels revealed the infusion of politics into the domestic sphere of intimate and family relationships. The politicisation of the personal served as justification for political action and claims to a legal subjectivity that empowers and protects a citizenry against violations by the law. In this essay, after providing a brief overview of the London Treason Trials of 1794, I will examine four representative novels that grapple with the persecution of reformers and clarify some of the most important obstacles to, and limitations of, an expansion of the franchise. The novels supply a crucial part of the story of radical efforts in the 1790s and the trials that attempted to suppress and silence reformers.

I The London treason trials began with the arrest on 12 May 1794 of two members of the two most prominent radical societies: Thomas Hardy, a shoemaker and the founder, secretary, and treasurer of the London Corresponding Society; and Daniel Adams, secretary of the Society for Constitutional Information. The very next day, John Thelwall, an author and orator, and the Reverend Jeremiah Joyce, tutor to the sons of Charles, 3rd Earl Stanhope, were arrested, and on 16 May, John Horne Tooke, John Lovett, John Richter, and John Augustus Bonney were taken into custody.4 Dramatist and novelist Thomas Holcroft turned himself in on 7 October after the grand jury of Middlesex had indicted him on the day before.5 Those who were indicted were charged with high treason under the English Statute of 25 Edward III (1351), for the specific offence of compassing and imagining the death of the king. Arrests of more than thirty members of five different reform societies continued through the spring and summer of 1794.6 Immediately after the arrest of Hardy on 12 May, Prime Minister William Pitt sought and received the approval of the House of Commons

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to form a committee of secrecy that would review the papers and correspondence confiscated during the arrests of reformers.7 Pitt then introduced a bill to the House of Commons to suspend habeas corpus, which was approved by the Commons on 18 May and the House of Lords on 22 May.8 Both the findings of the committee of secrecy and Pitt’s plea to the House of Commons to suspend habeas corpus focused on the potential dangers of plans for another British convention and a continued alliance between British reformers and revolutionary France.9 The committee of secrecy, in their first report presented to the House of Commons on 16 May, accused reformers of trying to “supersede the House of Commons in its representative capacity and to assume to itself all the functions and powers of a national legislature.”10 After their arrests, the reformers were questioned by the Privy Council, and then imprisoned in the Tower until they were transferred to Newgate on 24 October. At their arraignment on the following day, all entered a plea of not guilty.11 Meanwhile, a commission led by Sir James Eyre, Chief Justice of the Court of Common Pleas, had reviewed the charges. On 2 October, a grand jury had been convened,12 and on 6 October, the accused had been indicted for high treason. Lord Chief Justice Eyre’s charge to the grand jury echoed the report of the committee of secrecy and Pitt’s proposal for the suspension of habeas corpus. Eyre too claimed that the plans for a British convention were “IN IMITATION OF THOSE NATIONAL CONVENTIONS WHICH WE HAVE HEARD OF IN FRANCE IN ORDER TO USURP THE GOVERNMENT OF THE COUNTRY.”13 According to Eyre, this was precisely why the actions of reformers were not acts of sedition but of high treason. Thomas Hardy was the first to be tried, followed by John Horne Tooke and John Thelwall. Hardy’s trial was a protracted one; it lasted nine long days (28 October–5 November 1794), whereas a typical trial for treason lasted a day or two.14 Because Hardy was acquitted, the trials that followed were brief. If the prosecution could not prove treason in Hardy’s case, it was unlikely it would do so successfully in the others. Horne Tooke’s trial lasted six days (17–22 November) and Thelwall’s went on for five (1–5 December). The juries returned their verdicts to acquit with striking efficiency. In Hardy’s case, the jury deliberated for only three hours, in Horne Tooke’s eight minutes, and Thelwall’s two hours.15 Some

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accused reformers were brought before the court, only to be released at once. Others, including the Reverend Jeremiah Joyce, Augustus Bonney, and Thomas Holcroft, never came to trial but were known thereafter as “acquitted felons.”16 Because imagination is invoked in the very definition of treason, compassing and imagining the king’s death, and because the charges were cast figuratively—the reformers’ attempt to “overawe” parliament was an assault against the body of the King and a kind of “virtual deposition”— interpretation proved to be at the heart of the trials.17 The ambiguity of interpretation invited narrative responses from those reformers who were charged with treason. For example, John Martin and Thomas Holcroft, who were both released without trial, wrote narratives in which they argued their cases.18 Interpretation also encouraged alternative readings of the trials and of the aims of reformers. Novelists exposed the emotional toll of the surveillance, social marginalisation, and persecution that radical reformers suffered in the 1790s, and illuminated some of the more intricate and subtle impediments to their goals.

II One of the most important novels to engage with the persecution of British reformers and the London treason trials was William Godwin’s Things as They Are; or, the Adventures of Caleb Williams. Godwin began writing Caleb Williams in February 1793 and completed it on 8 May 1794,19 just four days before the arrest of Hardy. During the trials, Godwin wrote a public response to the charges brought by Chief Justice Eyre: Cursory Strictures on the Charge Delivered by Lord Chief Justice Eyre to the Grand Jury, first published in the Morning Chronicle on 21 October 1794. In Cursory Strictures, Godwin defended the privilege of all “rational beings to discuss with perfect freedom, all the principles proposed to be enforced upon general observance … before they have by any solemn and final proceeding, been made part of a regular established system.”20 In other words, the public is at liberty to engage in discussions of politics and law, as had the reformers in their conventions.

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In the first edition of Caleb Williams, Godwin directly referenced the reform movement and its opponents in his preface, which he dated 12 May 1794, the day Hardy was arrested. He acknowledged that “things as they are,” are divisive: “one party pleads for reformation and change, the other extols in the warmest terms the existing constitution of society.”21 In addition, he asserted as a fundamental truth that “the spirit and character of the government intrudes itself into every rank of society,” a premise that justifies political activism by people of all ranks, and also explained the purpose of his novel: to bring this fundamental truth to “persons whom books of philosophy and science are never likely to reach.” He promised to provide “a general review of the modes of domestic and unrecorded despotism, by which man becomes the destroyer of man” to the general public, to readers of novels, who may not be readers of political tracts.22 Deemed to be too controversial for the times, this preface was eventually omitted from the first edition, but was included in the second edition in 1796, along with a note dated 29 October 1795  in which Godwin explains the omission: “Terror was the order of the day; and it was feared that even the humble novelist might be shown to be constructively a traitor.”23 Godwin’s use of a novel to illustrate and disseminate his political philosophy was indeed seen as dangerous. A reviewer of Caleb Williams in the British Critic in 1795 wrote: “I am not in the least apprehensive that his philosophy should make an impression upon any person of ordinary information, and of common sense; but he has given it the form of a novel, to make it circulate among the ignorant, the credulous, and unwary.”24 Caleb Williams is a study of tyranny, showcasing two tyrants and their victims. Barnabas Tyrrel, as his name suggests, is an obvious tyrant— muscular, animal-like, and educated more by a gamekeeper than a tutor. He operates by a primal “uncultivated brutality.”25 Ferdinand Falkland is a masked tyrant, who has a gentle and refined manner. He is well educated, serves as a magistrate, and has a history of behaving with diplomacy and benevolence. In the first volume of the first edition, which reads as a simple cautionary tale, the two men are set up in opposition to each other; Tyrrel’s cruelty is countered by Falkland’s heroics. When Tyrrel harasses his tenant and neighbor Benjamin Hawkins, and tries to force his seventeen-year-old cousin, Emily Melville, into a marriage,

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Falkland intervenes and attempts to save them both. But he fails, and his failure sows a seed of doubt that will grow into disappointment and outrage. Falkland, it will turn out, is the most dangerous of tyrants—one who hides under a cloak of chivalry and justice—and because he is a magistrate, a representative of the law who is entrusted with justice, we get our first glimpse of the gap between law, justice, and truth. Falkland is also a Burkean figure. Godwin counters Edmund Burke’s embrace of chivalry in Reflections on the Revolution in France in order to expose the danger of patriarchal intimidation. Victims of tyranny are destroyed if they are unprotected by the rights of man—by inalienable rights such as self ownership, self preservation, and liberty of thought and inquiry. This argument is proven through the adventures of Caleb Williams, who is a composite of the most vulnerable members of society; he is at different times an orphan, a servant, a beggar and a “wife.” Caleb’s relationship with Falkland is one of dependence, and rather than offering protection—as one might expect from a chivalrous character in a patriarchal structure—Falkland turns against Caleb because of knowledge Caleb has about Falkland’s guilt. Caleb discovers that Falkland has murdered Barnabas Tyrrel, and he has allowed two innocent men (Hawkins and his son, Leonard) to hang for his crime. It is in the story of Falkland’s pursuit of Caleb that we see the most direct correlation to the treatment of British reformers from the surveillance of 1792 to the trials in 1794. Caleb is pursued because of knowledge and resistance, as were the British reformers; and Falkland employs spies and informers, as did Pitt and his Home Secretary Henry Dundas who mobilised people unaffiliated with national and local law enforcement to inform on radical societies.26 Particularly in later editions of Caleb Williams, which appeared after the trials, the law is depicted as voracious and trials as corrupt. Justice has abandoned rationality and truth.27 In the analysis Godwin provides in his novel, two important dynamics surface that complicate the goals of reformers and the efforts of those trying to maintain the status quo. The first is that liberty is a function of property. All of the victims of tyranny in Godwin’s novel are vulnerable because they are dependent and because they cannot claim the property in themselves that would allow for self preservation, provide them with legal subjectivity, and protect them in their interactions with the law.

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Consequently, they are lawfully pursued, hunted down, tormented, and sometimes destroyed. Through his fictional stories of persecution, Godwin demonstrates that one of the conditions necessary to the expansion of the franchise is a right of property that begins with an ownership of oneself. Enfranchisement had long been connected to property, but Godwin looks back to John Locke who conceived of property first and foremost as self possession. “By Property,” Locke explains, “I must be understood here, as in other places, to mean that Property which Men have in their Persons as well as Goods.”28 And this right of property is a form of protection: “[E]very Man has a Property in his own Person. This no Body has any Right to but himself.”29 The victims of tyranny in Caleb Williams have no right of property in themselves, and thus they are vulnerable not only to the despotic impulses of men like Tyrrel and Falkland but also to the tyranny of the law. The second dynamic that Godwin brings to light in Caleb Williams is the provocative role of emotion in bringing about or impeding social reform. Terror is the instrument of tyranny, and we see Barnabas Tyrrel using it liberally as he bullies and intimidates his victims, while Falkland uses it under the guise of benevolence and with the aid of the law. However, the more complex emotions that make tyranny possible are loyalty and love. Because he is her cousin, Emily Melville trusts in Tyrrel’s goodwill and feels confident that his love will prevent him from hurting her. But she will be fatally mistaken. Caleb also loves Falkland as his benefactor, as a kind and generous man who took him into his “family” and employed him when he was orphaned. Their relationship, which is reminiscent of a feudal one, results in a twisted game of cat and mouse, but at its core, there remains a love that cripples Caleb and renders him a victim like Emily.30 The perversion of that love becomes clear early in the second volume at the very moment when Falkland claims Caleb as his possession. It is a moment when Caleb should be fearful—Falkland is beginning to realise that Caleb might know something about his guilt and thus asserts his power and control over Caleb—but Caleb responds with a sense of glorification. He feels elevated by becoming “of so much importance to the happiness of one of the most enlightened and accomplished men in England,” and he confesses that “this consciousness attached me to my master more eagerly than ever, and made me swear a

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thousand times as I meditated upon my situation, that I would never prove unworthy of so generous a protector.”31 Soon after, when Caleb is certain that Falkland murdered Tyrrel and allowed the Hawkinses to be hanged for his crime, Caleb admits, in a state of tumultuous rapture, that “it was possible to love a murderer.”32 In his representation of unrecorded domestic despotism, Godwin merges the domestic and political spheres and provides a rationale for the rights of man and the extension of these rights to the most vulnerable members of society who often go unacknowledged in a social contract. When Emily Melville and Caleb Williams are persecuted, hunted down, and imprisoned, we certainly think of the reformers who were arrested and tried for high treason. But we are also forced to consider those who have been forgotten in the political theorising and in the calls for parliamentary reform: women, servants, beggars and other economic dependents.33 The chivalric but duplicitous representative of the law, Falkland, is a reminder of the dangers of relying on the good will and benevolence of those with juridical agency and political power; they are not to be trusted, and the trials over which they preside will not produce truth and justice.

III Mary Wollstonecraft had no direct connection to the London treason trials,34 and she was abroad in the spring of 1794 when tensions reached their heights. However, she knew Thomas Holcroft and John Horne Tooke personally, and she probably would have been aware of the activities and demands of the SCI and LCS, as well as the legal actions taken to suppress the activities of its members. In addition, as her two primary treatises of political philosophy, A Vindication of the Rights of Men (1790) and A Vindication of the Rights of Woman (1792), indicate, she was an advocate of the rights of man, for women and men alike, and imagined an enlightened form of citizenship based on virtue, reason and knowledge. In her unfinished novel, published posthumously by William Godwin in 1798, The Wrongs of Woman; or, Maria, Wollstonecraft exposes egregious abuses by the law—of the kind that led to the treason trials but

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also were directed specifically at women. Like Godwin’s Caleb Williams, her novel is a study of abuse, surveillance, imprisonment, and a confrontation with the law, all of which was suffered by those charged with treason. But her focus is on women. For most men, this kind of tyranny was an anomaly and a consequence of the historical moment, but for women it was the state of their everyday existence. Wollstonecraft uses the notoriety of the reformers, who after the acquittals enjoyed a degree of public commemoration, to bring attention to the plight of women. As The Wrongs of Woman opens, Wollstonecraft sets us down in a Gothic madhouse and launches us into a story about Maria Venables, a middle-class woman who has been imprisoned in an asylum by her husband, after the kidnapping of her baby. The setting of the madhouse has significant implications for Wollstonecraft. Its Gothic architecture invokes Sir William Blackstone’s analogy of English law to a Gothic castle in his Commentaries on the Laws of England. He suggests that we inherit a legal system, that of common law, as “we inherit an old Gothic castle, erected in the days of chivalry, but fitted up for a modern inhabitant.”35 The metaphor reinforces Burke’s notion of a social contract founded on an ancient constitution and his concept of inherited rights, which was a counterpoint to the rights of man. Wollstonecraft’s setting, therefore, is ironic; a site that should be a bastion of reason is actually a hotbed of insanity. Yet she is also alluding to what Blackstone admits, that the common law can be chaotic and asymmetrical.36 Blackstone draws some comfort from the confusions of the common law, even as he tries to infuse it with order. But Wollstonecraft’s vision of civil society in her Vindications is one where rational virtue rules; she is not so enamoured of discord and the inequities of the law because it is women, most often, who suffer the repercussions. Moreover, she is not interested in renovating a Gothic castle because its foundation is corrupt. She is ready to raze it and begin anew with a revolutionised political order—one that calls for a further expansion of the franchise and greater representation than even the radical reformers could imagine. She envisages female citizenship. For Wollstonecraft, it is women, rather than radical reformers, who are the “out-laws,” and not just of London or England but “of the world.”37 As such, they are watched, stalked, captured, imprisoned, and tormented. In the madhouse, where Maria has been forcibly confined by her husband,

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and Jemima is her guard, the two women tell their stories of legal oppression—of the legally sanctioned “wrongs” that transgress women’s “rights.” Jemima’s is the story of a bastard child, born to servants. Though her father had seduced her mother, it was her mother who was punished for the pregnancy. When her mother died days after giving birth, Jemima was denied “a mother’s affection” and became unmoored. She was “born a slave,” and now she was “chained by infamy to slavery during the whole of existence.” She became “the filching cat, the ravenous dog, the dumb brute” and others saw her as “a creature of another species.”38 Maria’s story is that of a middle-class woman born into a patriarchal family. She had a mother, but that mother’s affection was directed toward the eldest son, who was the “deputy-tyrant” (deputy to the father) of the family. Maria’s status in the patriarchal structure makes her vulnerable to delusional romantic inclinations and renders her the property of others. She is “sold” into her marriage to George Venables, who was paid £5,000 by Maria’s uncle to secure the marriage. Her husband later barters Maria, offering her to a friend in exchange for a £500 loan. Both women are imprisoned in a civil society that every day violates their natural rights. In addition, their entrapment is exacerbated by two paradoxes that prevent women from becoming full citizens worthy of representation in parliament. The first has to do with property. For Jemima and Maria, as for Godwin’s characters, property is at the root of their problems. They both lack the financial means for independence and the property in themselves that would secure their liberty and their rights. However, they also suffer because they constitute property. Jemima’s status as a “beast” makes her common property—a property that others use and enjoy. She is rendered a domestic slave, and thus she does not qualify for the rights of man or woman. In Maria’s case, she is pursued because she is her husband’s property, and because she has access to her late uncle’s money, which had been left to her daughter. Despite the promise of the common law to protect property, when these women are considered property, they are least protected; what is protected, is the right of ownership, and in nearly all cases this right is vested in men. The second paradox has to do with the family. Through the course of their stories, we see that for women, the family is a prison; Maria boldly declares that marriage has “bastilled” her for life.39 However, it is Jemima’s

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lack of a family that dehumanises her and pushes her to the periphery of civilisation. Like property, both the presence and absence of the family causes trouble for women. Particularly because Burke enfolds rights into familial status and inheritance, Wollstonecraft critiques the family and finds tyranny within the household. However, familial affection is a fundamental part of the preparation for citizenship. In her Vindication of the Rights of Woman, as she argues that the goal of education is to form citizens, she also explains that “to make good citizens, you must first exercise the affections of a son and a brother.” The public virtue needed to sustain a republic requires an expansion of the heart, and that public virtue “must ever grow out of the private character.”40 Further, and most important, at the core of this virtue is a mother’s affection. Thus when Jemima laments that she never enjoyed the “feminine caresses which seem a part of the rearing of a child,” she is pointing to a critical absence, especially for women.41 Without that affection, a woman does not acquire the dignity that commands respect, and renders her worthy of citizenship. Maria is driven by this responsibility of the mother. She writes her memoir with the purpose of educating her daughter and, to the best of her ability as an absent mother, to bestow the necessary familial affection. The community the two women form, along with Henry Darnford, a male inmate, is a constructed alternative to the family, and the sympathy they share replaces the familial affection they have all been denied. Their gathering is also a form of “convention.” While they do not meet to “overawe” parliament, a charge made against the accused reformers, we will see Maria confront the law and try to overawe the court. In the fragmented ending to the novel, we find the most direct echoes of the treason trials. Maria laments that she was persecuted, she was “hunted out like a felon,” “hunted, like an infected beast” by her husband.42 Reminiscent of Godwin’s Cursory Strictures, Darnford invokes private judgment and argues that people with “minds governed by superior principles” are “privileged to act above the dictates of laws they had no voice in framing.”43 Wollstonecraft demands this private judgment for women, and in the final chapter of the novel, Maria begins to establish her own legal subjectivity. When her husband accuses Darnford of seduction and adultery, Maria is not allowed to testify against him in court because her legal identity is subsumed in that of her husband. Nonetheless, she organises

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Darnford’s defence and “instruct[s] his counsel” to plead guilty to adultery but not to seduction.44 Unable to appear in court but refusing to be silenced, Maria writes a statement to be read in the courtroom. As she exposes the legal “wrongs” levied against women, Maria takes on multiple legal roles and speaks as a prosecutor, witness and judge. She lays claim to private judgment for women, arguing that a woman “must be allowed to consult her own conscience, and regulate her conduct, in some degree, by her own sense of right” (132), and when the laws fail women, they must be allowed to pursue their “own sense of justice” (132).45 The liberation Maria requires is divorce because marriage is her prison. But she is denied this freedom, as she is her private judgment. Maria’s goals are the same as those of the reformers charged with treason, but she is far more ambitious and strives to make a case for the inclusion of women in the expansion of the franchise. Still, if we compare her fate to that of the reformers, we find that while they are liberated, to some extent, by their acquittals, Maria is sent back into the slavery that is the condition of women in civil society.

IV Charlotte Smith, in her novel The Young Philosopher (1798), delivers a defense of those accused in the treason trials and a sympathetic profile of reformers who are governed by enlightened principles. These reformers are not the destitute victims of tyranny we see in Caleb Williams and The Wrongs of Woman, rather they are strong individuals, intent on forming a model of a new family that is unencumbered by what Wollstonecraft has called the “iron hand of property”46 or by Burkean prescription that binds generations to the past. Still, these reformers struggle against forces of repression, which is a reflection of the state of reform efforts in 1793–99. By the time Smith was writing her novel, the treason trials had ended with the acquittal of the accused reformers but repression continued with passage of the Treasonable Practices Bill and the Seditious Meetings Bill in 1795. The intent of the Treasonable Practices Act was to update and expand the scope of treason to make it easier to prosecute radicals who threatened parliament and the King. Any attempt to “overthrow” the constitution would be considered treason.47 The Seditious Meetings Act

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gave officials the authority to monitor and control public meetings as well as dissolve them if they were to provoke contempt for the king.48 Both Acts were measures to suppress radical movements and make it easier to prosecute members of radical societies. The young philosopher of Smith’s novel, George Delmont, is a romantic hero, and as his name suggests, he is a “citizen of the world.”49 He is independent, a free thinker, and a defender of the rights of man and of revolutionaries in France. Engaging with the discourse of Paine’s rights of man, he argues that the aim of the French revolutionaries was “to restore to them the rights of human nature”—that is, inalienable natural rights— which have been withheld “by superstition and tyranny.”50 In response to domestic tyranny, Delmont turns down an opportunity to marry a wealthy woman who would bring him £50,000 because he is in love with Medora Glenmorris, a young woman “of nature” and a budding reformer. In the figure of a young couple who are grounded in enlightened principles, who eschew the desire for property except for that property in themselves, and who show compassion for people of all ranks, we have hope for the future. We also have justification for an expansion of the franchise. The nation would be in secure hands if people such as George Delmont and Medora Glenmorris, confident of their rights, were electing government officials and monitoring them to determine if a correction is needed. This image of the future, however, is marred by the suggestion that for this couple to thrive, they may need to relocate to America. Throughout her novel, Smith implies that the enlightened reform efforts struggling to transform Britain will thrive only abroad. Medora was born in Switzerland, but raised in America, and her father, Mr. Glenmorris, is exiled in America because he pursued “perfect freedom of speaking, writing, and acting.”51 When he returns to England, he is jailed for debt. The story of the Glenmorris family keeps the soaring expectations frequently expressed by Delmont in check. When Delmont speaks, with the voice of a triumphant visionary, about rejecting “all such prejudices as enslave the mind” and cultivating the freedom of “saying what he thinks, and, where he can, acting up to his thoughts,” Mrs. Glenmorris warns him of “existing circumstances, to which submission is compelled” and “will not allow this entire freedom of action.”52 These existing circumstances are the legal

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curtailments of political critique and assembly made possible by legislation such as the treason and sedition acts of 1795. The male reformers in this novel, despite some restrictions on their freedoms, fare well compared to the female reformers. Delmont is free to marry the woman he loves and cultivate a modest farm; Glenmorris is happy to be in America, where he feels a kinship with American culture; and Mr. Armitage, a cerebral Godwinian figure, is at liberty to live by his own “unobtrusive and simple system of ethics.”53 Yet the women who try to live according to enlightened principles are punished in a manner that recalls the persecution of radical reformers in the treason trials but is directed specifically at women. Much of Smith’s novel is devoted to telling the stories of Laura Glenmorris and her daughter Medora, both of whom are displaced, pursued, and terrorised by figures of domestic tyranny and the laws that protect that tyranny, echoing the fate of Jemima and Maria in The Wrongs of Woman. In contrast, Laura and Medora Glenmorris are both strong women, who try not to become victims. Laura embraces reason, defies her family to marry Glenmorris, and confronts the law when she pursues her daughter’s rightful fortune. Medora is a young woman of remarkable persistence, fortitude, and courage in her escape from her abductors, and she is instrumental is freeing her father from debtor’s prison. Still, they are vulnerable to persecution. Laura’s first displacement occurs because she exercises filial disobedience and marries Glenmorris against her family’s wishes. She moves to Scotland to stay with Glenmorris’s family, but he is captured by buccaneers and later presumed dead. Because as a married woman Laura’s legal identity is subsumed in her husband’s under the state of coverture,54 she has no legal subjectivity to protect herself when her husband disappears, and she becomes a victim to the potentially deadly machinations of the Kilbrodie family who want Glenmorris’s property. She is once again forced to flee, staying in caves and rustic homes until she reaches the Macarden estate, which she must in turn leave because she is again a threat to another property claim. The trappings of the Gothic illuminate much of this story, and thanks to Blackstone’s metaphor that compares English law to a Gothic castle, we are reminded that her troubles and her terror have everything to do with law (property law). Laura’s second dislocation occurs when she learns of Medora’s kidnapping. She goes in

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search of her daughter, but she succumbs to aimless wandering, overwhelmed by her emotions of fear and dread. She brought Medora from the safety of America to the dangers of England to pursue Medora’s right to her grandfather’s fortune; however, as Mrs. Grinsted reminds Laura, she will have to request “a favour” rather than demand “a right.”55 Medora’s tale directly implicates the law: she is kidnapped by the law clerk of an attorney for the purpose of being forced into a marriage. Known as the probable heir to the De Verdon fortune, she was seen as valuable property, not for herself but for her inheritance. She manages to escape her initial abductor, but as she flees, she finds herself prey of other men.  Yet  Medora’s fate differs from that of her mother, which is what gives this novel an element of hope despite the pervasive repression. In the end, Medora is resilient and resourceful, and she becomes an agent of change in her encounter with the law; she and her cousin pay her father’s debt, which releases him from prison. Smith both materialises and humanises radical reformers; in fact, she characterises them as “social” rather than “radical” reformers, emphasizing the moderation of their ideas and methods. In addition, she defends all ranks of people, such as one would find among reformers in the LCS, the SCI, and their affiliates. When Mrs. Glenmorris flees the Kilbrodie estate, it is a maid who helps her escape. Similarly, when Medora is on the run, it is a servant, an innkeeper, and a linen draper who come to her aid. Therefore, when the pretentious, meddling Mrs. Crewherne says of working people that they should not be reading “pamphlets and news-papers” or “look at matters above their sphere, and to comment on laws and on government,” the reader is far less likely to agree.56

V Thomas Holcroft’s Memoirs of Bryan Perdue (1805) is perhaps the most moving and haunting of the novels that respond to the treason trials, precisely because Holcroft was one of those reformers indicted for high treason and he carried the designation of “acquitted felon” for the rest of his life. Holcroft first responded to the trials in his Narrative of Facts, Relating to a Prosecution for High Treason (1795), which he began in

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Newgate prison while waiting to be called to the Old Bailey. In this narrative, Holcroft presents the trial that he was ultimately denied. When Holcroft appeared before the Old Bailey on 1 December 1794, Attorney General Scott announced that he would not proceed with his prosecution because he had no additional evidence beyond that which had been entered in the cases against Hardy, Tooke and Thelwall, in trials that had resulted in acquittals.57 Holcroft was frustrated by his inability to present his case to the court, and thus he used his Narrative to bring his case to the public and assert his innocence. However, it is in his novel Memoirs of Bryan Perdue that we see Holcroft trying to come to terms with his imprisonment and charge of high treason. By the time he was writing Bryan Perdue, which Gary Kelly suggests was the end of the 1790s, Holcroft’s literary career had gone into decline, as did his finances, and he was plagued by his status as an “acquitted felon.” He and his family went abroad to Hamburg and Paris.58 The theme of exile that pervades Caleb Williams, The Wrongs of Woman, and The Young Philosopher infuses this novel as well. The protagonist of Holcroft’s novel, Bryan Perdue, is exiled from the family unit when he is orphaned; at his public school where he practises his talent for gaming (inherited from his father), he is marginalised and then expelled; and after a trial for forgery, in which he is acquitted, he embarks on a path to virtue, which requires leaving London for France, and then Jamaica, where he lives out the rest of his life. Rather than enjoying the stability of a legally sanctioned place in the social contract, these characters of Godwin’s, Wollstonecraft’s, Smith’s, and Holcroft’s novels wander about unmoored and unprotected. The purpose that Holcroft articulates for Bryan Perdue, is the same as he announces in his Narrative of Facts: to demonstrate the principle of utility in systems of justice. In the Advertisement to his Narrative of Facts, Holcroft explains that his narrative is a “history of my own motives, and conduct; written in order that I may be justified to the world, and may not lose that utility of which the loss of the world’s esteem would deprive me.”59 In the preface to Bryan Perdue, he explains that his goal is “to induce all humane and thinking men, such as legislators ought to be and often are, to consider the general and the adventitious value of human life, and the moral tendency of our penal laws.”60 The message is the same

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in both texts. The lives of criminals, outlaws, and radical reformers are valuable and useful, and therefore must be preserved. Crimes are errors, and they and their perpetrators may be corrected. In the way that Caleb Williams and The Wrongs of Woman are studies of tyranny, Bryan Perdue is a study of reform. Bryan Perdue is the son of a professional gambler—a “social rogue,” we are told—who has made a life of cheating and deceiving. His hope for his son, is that he will become just as proficient—and he comes close to achieving his father’s wishes. But we are shown that despite his ability to be duplicitous, Perdue has virtuous instincts and the impulse to sympathise with others. When one of his public-school friends injures a poor village child, it is Perdue who stays to help the family; and when he cheats a romantic rival, only to discover that his rival had to steal the money to pay his gambling debts, Perdue feels guilt about the consequences of his actions and tries to rectify the situation. He also recognises goodness in others, particularly in a vicar who preaches truths, a tutor who offers forgiveness, and a friend who sets him on a path to virtue. Throughout most of the novel, Perdue’s attempts at reform are short-­ lived, and he bounds back to his life of debauchery. However, after he is arrested and tried for forgery, a crime that would result in his death if he were found guilty, Perdue is finally ready to embark on personal reform. The appropriately named Henry Fairman, a just man of the law, offers him a job as manager of an estate in Jamaica, where Perdue has the opportunity not only to reform himself but also to change the treatment of slaves. Perdue succeeds in both ventures. And as Perdue learns how to be effective in his efforts of reform, we as readers learn so as well. Early in volume 2, Perdue, as narrator, admits that his desire for reform is driven by wild passions; that he has “stormed, raved, and vowed eternal warfare, against shadowy evils of [his] own creating” while trying to enact “ecstasies of pure hope.”61 But by the end of volume 3, the elder Mr. Fairman speaks with a voice of moderation, warning Perdue about “the nature and progress of reform” in regard to improving the treatment of slaves. He urges him not to start with “a rash and fatal zeal, to make all things perfect at once” but to “[t]read cautiously, step by step”; to be “mild, gentle, and not suspected by the persons on whom they act,” and “[a]bove all things, beware of yielding to the effervescence of enthusiasm, or to the

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rashness of anger.”62 This sober advice is almost Burkean; it is no doubt the reflective voice of a reformer quieted by a decade of repression and fear. Despite the sanguine ending in which Perdue achieves social reform, marries for love and companionship, and finds admiration in his role as an estate manager, the tone of the novel, especially in the preface and in the occasional metacommentary, is dark, bitter, and cynical. The narrative voice taunts those who might try to silence him. With a sarcastic bite, he denies “new philosophy” and, as he finds himself caught up in a rant against “high ministers of the state” and “the great law officers,” he pulls back, fearful of accusations of libel.63 Bryan Perdue poignantly reminds the reader of the lasting human damage of the treason trials on one of the accused and the consequences of relentless repression on reformers. Godwin, Wollstonecraft, Smith, and Holcroft were all seeking the agency that reformers assumed in their calls for parliamentary reform and universal manhood suffrage. Characters such as Caleb Williams, Maria and Jemima, the Glenmorrises, and Bryan Perdue, were all in some way “outlaws” who needed to be brought back within the fold, within the law, and within the social contract. But they could do so only with acknowledgement of their birthright and the property in themselves that allows for self-governance. The trauma of the London treason trials of 1794, in which high treason was to be determined by interpretation, necessitated an interpretive response that understood the power of imagination and interpretation. Novelists were ready with narratives that countered and challenged the narratives of the court. In short, when the political reformers were silenced, the novelists began to speak.

Notes 1. Albert Goodwin, The Friends of Liberty (Cambridge, MA, 1979), 175. 2. John Barrell’s argument in Imagining the King’s Death (Oxford, 2000). 3. See Nancy E. Johnson, “Fashioning the Legal Subject: Narratives from the London Treason Trials of 1794,” Eighteenth-Century Fiction, 21 (2009), 413–43. 4. Goodwin, The Friends of Liberty, 332–33.

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5. Alan Wharam, The Treason Trials, 1794 (Leicester, 1992), 133. 6. Barrell, Imagining the King’s Death, 190. 7. Goodwin, The Friends of Liberty, 332. 8. Jenny Graham, The Nation, Law and the King, Reform Politics in England, 1789–1799, 2 vols (Lanham, MD, 2000), II: 605. 9. Ibid. Recent conventions were held in December 1792, April 1793, and most recently in November 1793. 10. The Parliamentary History of England from the Earliest Times to 1803, ed. William Cobbett, 36 vols (London, 1806-20), XXXI: 495–6. 11. Goodwin, Friends of Liberty, 343. 12. Wharam, The Treason Trials, 132; Barrell, Imagining the King’s Death, 285. 13. Sir James Eyre, The Charge delivered by The Right Honourable Sir James Eyre … To Enquire of Certain High Treasons and Misprisons of Treason … To the Grand Jury, … on Thursday the 2nd Day of October, 1794 (London, 1794), 12. 14. Barrell, Imagining the King’s Death, 318. 15. Ibid., 364, 391, 400. 16. William Windham, 30 December 1794, in Parliamentary History, XXXI: 1029. 17. Barrell, Imagining the King’s Death, 138–39, 319, 330. 18. John Martin, An Account of the Proceedings on a Charge of High Treason against John Martin, etc. (London, 1795); Thomas Holcroft, A Narrative of Facts, Relating to a Prosecution for High Treason … (London, 1795). 19. Pamela Clemit, “Introduction” to William Godwin, Caleb Williams (Oxford, 2009), xii n. 19. 20. William Godwin, Cursory Strictures on the Charge Delivered by Lord Chief Justice Eyre to the Grand Jury, October 2, 1794 (London, 1794), 3. 21. William Godwin, Things as They Are; or, the Adventures of Caleb Williams, 2nd edition (London, 1796), v. 22. Godwin, Caleb Williams, 2nd ed., vi. 23. Ibid., vii. 24. British Critic, 6 (1795), 213. 25. William Godwin, Things as They Are; or, the Adventures of Caleb Williams, 1st edition, 3 vols. (London, 1794), I: 96. 26. These spies would provide the prosecution with extensive information about the business of the societies and the activities of its members in the treason trials two years later. Goodwin, The Friends of Liberty, 318; Barrell, Imagining the King’s Death, 208–09.

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27. Mark Philp, “Caleb Williams and the Treason Trials” in Godwin’s Political Justice (Ithaca, 1986), 114. 28. John Locke, The Second Treatise of Government in Two Treatises of Government, ed. Peter Laslett (Cambridge, 1988), 383. 29. Locke, Second Treatise, 287–88. 30. Alex Gold, Jr., “It’s Only Love: The Politics of Passion in Godwin’s Caleb Williams,” Texas Studies in Literature and Language 19 (1977), 135–60. 31. Godwin, Caleb Williams, 1st ed., II: 45. 32. Ibid., II: 70. 33. For the full argument, see Nancy E.  Johnson, “Acquiring Political Agency” in The English Jacobin Novel on Rights, Property and the Law: Critiquing the Contract (Houndmills, 2004), 104. 34. Wollstonecraft’s name was mentioned in William Stone’s trial for treason in 1796. It appeared in a letter from Stone’s brother, John Hurford Stone, and referenced Wollstonecraft’s attendance at Christmas celebrations in Paris during the Terror. Claire Tomalin, The Life and Death of Mary Wollstonecraft (London, 1974), 191. 35. Sir William Blackstone, Commentaries on the Laws of England (Oxford, 1765), III: 268. 36. See Wolfram Schmidgen, Eighteenth-Century Fiction and the Law of Property (Cambridge, 2002), 164–70. 37. Mary Wollstonecraft, The Wrongs of Woman; or Maria in The Works of Mary Wollstonecraft, eds Janet Todd and Marilyn Butler (New York, 1989), I:146. 38. Wollstonecraft, Wrongs, I: 109–10. 39. Ibid., I: 146. 40. Mary Wollstonecraft, A Vindication of the Rights of Woman in The Works of Mary Wollstonecraft, eds Janet Todd and Marilyn Butler (New York, 1989), V: 234. 41. Wollstonecraft, Wrongs, I: 107. 42. Ibid., I: 106, 112. 43. Ibid., I: 121. 44. Ibid., I: 129. 45. Ibid., I: 132. 46. Mary Wollstonecraft, A Vindication of the Rights of Men in The Works of Mary Wollstonecraft, eds Janet Todd and Marilyn Butler (New York, 1989), V: 24. 47. Barrell, Imagining the King’s Death, 570. 48. Ibid., 572.

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49. Charlotte Smith, The Young Philosopher, 4 vols (London, 1798), III: 32. 50. Ibid., I: 147. 51. Ibid., I: 230. 52. Ibid., I: 229. 53. Ibid., IV: 359. 54. Blackstone, Commentaries, I: 430. 55. Smith, Young Philosopher, III: 99. 56. Ibid., I: 40. 57. Barrell, Imagining the King’s Death, 391. 58. Gary Kelly, The English Jacobin Novel (Oxford, 1976), 170, 173. 59. Thomas Holcroft, A Narrative of Facts Relating to a Prosecution for High Treason (London: Symonds, 1795), 21–2. 60. Thomas Holcroft, Memoirs of Bryan Perdue, 3 vols (London, 1805), I: iii. 61. Ibid., II: 4. 62. Ibid., III: 222. 63. Ibid., I:2.

Bibliography British Critic. 6 (1795): 213. Sir William Blackstone, Commentaries on the Laws of England, 4 vols (Oxford, 1765). Sir James Eyre, The Charge delivered by The Right Honourable Sir James Eyre … To Enquire of Certain High Treasons and Misprisons of Treason … To the Grand Jury, … on Thursday the 2nd Day of October, 1794 (London, 1794). William Godwin, Things As They Are; or, the Adventures of Caleb Williams, 1st edition, 3 vols. (London: G. G. and J. Robinson, 1794). William Godwin, Cursory Strictures on the Charge Delivered by Lord Chief Justice Eyre to the Grand Jury, October 2, 1794 (London, 1794). William Godwin, Things As They Are; or, the Adventures of Caleb Williams, 2nd edition (London, 1796). Thomas Holcroft, A Narrative of Facts, Relating to a Prosecution for High Treason … (London, 1795). Thomas Holcroft, Memoirs of Bryan Perdue, 3 vols (London, 1805). John Locke, The Second Treatise of Government in Two Treatises of Government, ed. Peter Laslett (Cambridge, 1988).

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John Martin, An Account of the Proceedings on a Charge of High Treason against John Martin, etc. (London, 1795). The Parliamentary History of England from the Earliest Times to 1803, ed. William Cobbett, 36 vols (London, 1806–20). Charlotte Smith, The Young Philosopher, 4 vols (London, 1798). Mary Wollstonecraft, A Vindication of the Rights of Men (1790) in The Works of Mary Wollstonecraft, eds Janet Todd and Marilyn Butler (New York, 1989), V: 1–60. Mary Wollstonecraft, A Vindication of the Rights of Woman (1792) in The Works of Mary Wollstonecraft, eds Janet Todd and Marilyn Butler (New York, 1989), V: 61–266. Mary Wollstonecraft, The Wrongs of Woman; or Maria (1798) in The Works of Mary Wollstonecraft, eds Janet Todd and Marilyn Butler (New York, 1989), I: 75–184. John Barrell, Imagining the King’s Death (Oxford, 2000). Pamela Clemit, “Introduction” to William Godwin, Caleb Williams (Oxford, 2009). Alex Gold, Jr., “It’s Only Love: The Politics of Passion in Godwin’s Caleb Williams,” Texas Studies in Literature and Language 19 (1977), 135–60. Albert Goodwin, The Friends of Liberty (Cambridge, MA: Harvard University Press, 1979). Jenny Graham, The Nation, Law and the King, Reform Politics in England, 1789–1799, 2 vols (Lanham, MD, 2000). Nancy E. Johnson, The English Jacobin Novel on Rights, Property and the Law: Critiquing the Contract (Houndmills, 2004). Nancy E. Johnson, “Fashioning the Legal Subject: Narratives from the London Treason Trials of 1794,” Eighteenth-Century Fiction, 21 (2009), 413–43. Gary Kelly, The English Jacobin Novel (Oxford, 1976). Mark Philp, “Caleb Williams and the Treason Trials” in Godwin’s Political Justice (Ithaca, 1986). Wolfram Schmidgen, Eighteenth-Century Fiction and the Law of Property (Cambridge, 2002). Claire Tomalin, The Life and Death of Mary Wollstonecraft (London, 1974). Alan Wharam, The Treason Trials, 1794 (Leicester, 1992).

8 Political Trials and the Suppression of Popular Radicalism in England, 1799–1820 Katrina Navickas

The Napoleonic Wars and their aftermath were an intense but challenging period in the development of the parliamentary reform movement in Britain. The revival of working-class participation in the democratic movement and a wider range of tactics and types of collective agitation created new challenges for local and national authorities. The locus of activity shifted away from London, in particular to the economically-­ depressed industrial regions of the North and Midlands, where the rapidly populating towns lacked political representation. The new Hampden clubs drew up petitions to government on the “mass platform”, huge open meetings addressed by local and national speakers on a stage.1 These mass meetings were, for both local and national authorities, a revolutionary threat on a different scale from the radical principles contained in pamphlet literature. Legislation introduced from 1799 onwards against corresponding societies and trades combinations sought to suppress the mass platform movement, with specific acts against seditious meetings

K. Navickas (*) School of Humanities, University of Hertfordshire, Hatfield, UK e-mail: [email protected] © The Author(s) 2019 M. T. Davis et al. (eds.), Political Trials in an Age of Revolutions, Palgrave Histories of Policing, Punishment and Justice, https://doi.org/10.1007/978-3-319-98959-4_8

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passed in 1795, 1817 and 1819.2 At times of more specific threat, in the aftermath of the Irish Rebellion between 1799 and 1801 and then during the winter of 1816–17, when mass meetings at Spa Fields in London organised by the republican Spenceans descended into rioting, the government looked to other legislative means. The Suspension of Habeas Corpus acts of 1799 and 1817 enabled the Home Secretary to issue direct arrest warrants against suspect radical activists without promise of trial. Samuel Bamford, leader of the radicals of Middleton, Lancashire, commented in his autobiography about the situation in 1817: King’s messengers did arrive: Government warrants were issued; and the persons they mentioned were taken to prison. A cloud of gloom and mistrust hung over the whole country. The suspension of the Habeas Corpus Act was a measure the result of which we young reformers could not judge, save by report, and that was of a nature to cause anxiety in the most indifferent of us. The proscriptions, imprisonments, trials, and banishments of 1792 were brought to our recollections by the similarity of our situation to those of the sufferers of that period. It seemed as if the sun of freedom were gone down, and a rayless expanse of oppression had finally closed over us.3

For Bamford and his fellow radicals, their imprisonments without trial were evidence of government corruption that traduced rights and principles established by Magna Carta. At least their predecessors in the 1790s could seek to defend their principles and protest their innocence at the bar; those detained under direct warrant from the Home Secretary had no such recourse to what they regarded as a fundamental constitutional right: to be tried by jury.4 The loyalist reaction to popular radicalism was severe, but it was never total nor tyrannical. This chapter examines the difficulties of prosecuting and bringing individuals to trial for political offences in this period as well as during some of the trials that took place. It first analyses the decision-­making process between the Home Office and the government’s law officers, the Attorney and Solicitor General, whose records lie in a series of pre-prosecution correspondence now in the National Archives.5 The term “state trial” suggests a more centralised and government-led process of repression of popular radicalism than it was in practice.

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Historians of political movements in this period understandably focus on the radical leaders tried at the King’s Bench, and whose state trials became well known through pamphlet literature and self-publicity.6 But the reality for many radical leaders was closer to home. Provincial reformers usually faced a battle working through the complex layers of the local justice system in their home town and county: the bench of local magistrates and the county quarter sessions and special assizes. And it was these authorities who arguably were the most “loyalist”: there are reams of correspondence in the Home Office archives from magistrates, mayors, clergy and other local elites concerning their anxious desire to suppress popular radicalism and trades agitation, all illustrating how much the workings of the state operated from below.7 The second part of this chapter examines the trial of the “Thirty Eight” Manchester radicals at Lancaster assizes in June 1812 to demonstrate the mutable definitions of treason, sedition and processes of justice in the theatre of the court.

I Prosecution for seditious libel had been one of the main legal tools of repression of the radical public sphere in the 1790s. But as seen in the cases of the London Corresponding Society members Thomas Hardy and John Horne Tooke in 1794, several high-profile state trials for treason floundered over legal technicalities and the immense difficulty of proving the seditious intent of words.8 The rise of bold and vocal defence lawyers such as Thomas Erskine, who defended many of the leading radicals, also meant that the courtrooms became a theatre where battles were fought over semantics and the linguistic intent of speeches and texts rather than proving the criminality of the actions.9 The trials of the radical publishers William Hone and T. J. Wooler in late 1817 became a further important arena where prosecutors found it difficult to define seditious libel and the defence lawyer exercised skill in picking holes in the ambiguities of language. As Philip Harling has argued, “the Home Office lacked the institutional means to embark on a policy of wholescale prosecution” against large demonstrations addressed by confident but linguistically careful orators.10 Furthermore, the battles of popular politics had moved off the

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page and into action onto the mass platform. In March 1817, following the Spa Fields riots and an attack on the Prince Regent’s coach, Home Secretary Lord Sidmouth issued a circular letter instructing magistrates to imprison anyone suspected of seditious libel. Wooler was arrested in May 1817 and charged on several counts relating to articles in his radical newspaper the Black Dwarf. Hone was arrested a week later on charges of publishing blasphemous libels. Wooler’s and Hone’s acquittals at the King’s Bench again tested the efficacy of this sort of political trial as a means of repressing the democratic movement.11 As evidence for the declining trend in prosecution for seditious libel, Harling examined the crown rolls of the court of King’s Bench, which included seventy-three indictments and one hundred and sixty-six ex officio informations (a summons filed by the Attorney General that required the accused to appear in court) for seditious and blasphemous libels recorded between 1790 and 1832.12 Here it is instructive to compare his findings with evidence from the previous step in the process before the prosecutions even got to court. The first step often lay with local authorities such as justices of the peace and mayors of towns, who expressed their suspicions about individuals and forwarded pamphlets and newspapers that they deemed seditious or libellous to the Home Office.13 The Home Secretary would then pass on the relevant information to the Attorney General and Treasury Solicitor for their opinion on whether or not to prosecute by ex officio information.14 The decision to take a more direct route than prosecuting through the county or special assizes was not taken lightly. The Treasury Solicitor, recruited from the practising bar from 1806 onwards, was responsible for briefing counsel in state prosecutions for treason and sedition. The Attorney General and his deputy the Solicitor General were the main legal advisors to the government, and could commence proceedings by ex officio informations laid in the King’s Bench. This process in effect by-passed both committal proceedings and the grand jury, but it also passed the costs on to the government.15 Hence it was in the local magistrates’ financial interest to secure a government prosecution, while conversely the Home Secretary would seek to pass the case back to the county unless there was a perceived direct threat to the state.

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Table 8.1  Decisions made by law officers recorded in “opinion books”, 1808–20 Decision: not enough evidence to Decision: Date extracts are prosecute, or range of Decision: referred to libellous Treasury prosecute indictment at Solicitor’s through ex but no opinion on the quarter “opinion officio information prosecution sessions book”

Decision: referred to prosecution Decision: for seditious extracts assembly or are not trade libellous combination Total

1808–10 1812 1813–15 1816 1817 1818–19 1819–20 Total

0 5 1 0 1 1 5 13

0 6 2 0 0 1 4 13

0 0 0 0 0 0 13 13

0 5 2 1 2 3 7 20

0 0 1 3 2 0 0 6

0 21 6 4 5 5 29 70

Source: TNA, TS 25/3, 5–8, 2034–5, Treasury Solicitor’s papers

The Treasury Solicitor’s papers at the National Archives contain multiple volumes of “opinion books” in which their decisions were recorded.16 Table 8.1 shows a summary of the balance of decisions made by the law officers in relation to first, whether there was evidence of seditious libel or behaviour, and secondly, whether it would be enough to bring the accused to trial at the King’s Bench. Seventy cases were put before the law officers and recorded in the opinion books, in amongst hundreds of other types of legal enquiries.17 The low figure is not surprising, and indeed reflects Harling’s findings of a relatively small number of cases that parallel the general pattern of waves of interest in prosecuting the reform movement. While Harling calculated peaks of indictments and ex officio informations in 1810, 1817, 1820 and 1821, the precursory step in the process of the Home Office consulting with the law officers about the potential to prosecute peaked in 1812 (twenty-one cases) and 1819–20 (twenty-nine cases). It usually took months to gather evidence and bring individuals to trial, while those arrested under the 1817 Suspension of Habeas Corpus Act did not need to go through the intermediary processes of a magistrate’s warrant and quarter sessions, so also were not reflected here. Not all the law officers’ recommendations were followed by the Home Office; but as

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Harling notes, even when cases were brought to King’s Bench, in 1808–12 the sentencing rate for libel was only twenty per cent; and even at the height of repression in 1817–22, only thirty-eight per cent of those prosecuted were tried, convicted and sentenced to prison.18 Notably, none of the decisions made in 1812 in favour of prosecution was for seditious libel, but rather for taking illegal oaths, unlawful assembly or fomenting “tumult and disturbance” during the Luddite machinebreaking agitation, especially in Lancashire.19 The revival of the democratic movement from 1816 onwards then pushed the government into seeking to prosecute radical printers and orators once more.20 The Chronicle, The People and Sherwin’s Political Register were examined for seditious libel, but again, although the law officers considered for example the latter a “mischievous publication”, none was considered a likely case for prosecution.21 The opinion books also reveal the complex and often ambiguous decisions taken by all parties concerned about whether to prosecute at all. The problematic definition of seditious libel caused the greatest doubts about the potential for successful prosecution. In 1813–15, cases of seditious libel were considered collectively against the newspapers, the Morning Chronicle, Statesman, Examiner and Carlisle Journal, but the law officers dismissed them, noting the “difficulty and much delicacy in stating and proving the real facts necessary to explain libels”. By contrast, they recommended prosecution of the Nottingham Review for publishing a threatening letter signed by “General Ludd”, which they felt would inspire a revival of the Luddite movement in the East Midlands.22 Harling argues that this shift of focus reflected the change of ministry. Whereas in 1808–11, Spencer Perceval’s government saw the radical press as a significant threat to “Church-and-King” values, by contrast, from 1812 until the end of the Napoleonic wars, Lord Liverpool was concerned more with the maintenance of public order.23 Yet even in 1812, the law officers advised against prosecution of some of the Luddites for lack of evidence.24 And indeed, many of the enquiries about the possibility of prosecution were from concerned local magistrates, particularly those in the Luddite regions, which the Home Office appears to have simply forwarded directly to the law officers and then returning their verdict.

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The risks inherent in trying radicals publicly was further weighed up against cost. Even the less prominent trials racked up large bills. For example, James Parr, a Chelsea pensioner, was indicted at Chester assizes in spring 1819 for sedition for speaking at a mass platform meeting at Stockport. The bill of indictment cost the Treasury eighteen pounds, three shillings and sixpence. Further costs mounted as the local authorities sent constables to the Chelsea hospital to arrest Parr. John Lloyd, the deeply loyalist solicitor and clerk to the magistrates of Stockport, then noted, “On bail being tendered, attending to enquire into the sufficiency and to administer oaths before the Justice to Thomas Stubbs and Thomas Rickle [sic], who notwithstanding they had sworn it they were not really worth the money and had attempted to deceive me as to their places of residence”. Together with other legal expenses and the forty miles’ journey to Chester, Lloyd also claimed for money to retrieve witnesses for the prosecution, including two pounds to “witness Lowe having removed into Liverpool, sending thence to find him”. In total, he claimed for thirty-four pounds, five shillings and eightpence.25 At the trial, however, the Attorney General announced he did not want to prosecute the case further, and would agree to discharging Parr on a recognizance of one hundred pounds, which was agreed.26 The decision not to prosecute at King’s Bench was also taken in order not to excite further agitation. The Libel Act of 1792 gave the jury the right to decide whether a publication could have provoked a breach of the peace. The offending passages would be read in open court and newspapers covered the legal proceedings in depth.27 In October 1818, for example, therefore, the law officers, S. Shepherd and R. Gifford, advised that the printer of a radical handbill not be prosecuted because “we very much doubt whether it could be made the subject of prosecution and as the spirit of combination amongst the workmen in this part of the County has apparently subsided a prosecution now instituted (and particularly if it failed) might rather tend to revive rather than extinguish it”.28 They also based their opinions on the likelihood of whether a Jury could be convinced of a pamphlet’s “libellous nature”, which they knew would be a risky gamble, not least because of the slippery definition of libel.29 Nevertheless, the financial and mental impact upon the prisoner

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as he waited between the filing of informations and trial was severe, whether or not the accused was eventually found innocent.30 Concern mounted about the potential of radical orators stirring up gullible audiences to revolution through their words and actions on the mass platform rather than in print of pamphlets. Significantly, as Lisa Steffen and Michael Lobban have argued, political trials began to widen the definitions of treason and sedition, although this shift was effected in part because of the difficulties of ensuring conviction as it was by intent.31 The government increasingly sought to try radical leaders for seditious conspiracy to “overthrow the constitution” rather than directly attacking the king. The first notable trial on these grounds was of seven members of the Manchester Constitutional Society, headed by Thomas Walker, in 1794. But the men were acquitted because the case for the prosecution relied solely on the evidence of a discredited witness.32 The 1795 trial of the members of the Sheffield Society for Constitutional Information, Henry Redhead Yorke, Joseph Gales and Richard Davison, also sought to prosecute them on a charge of seditious conspiracy, explicitly in relation to their speeches at a mass public meeting in Sheffield.33 Treason and sedition were therefore associated in the loyalist (and Whiggish) formula with the state and parliament rather than solely its monarchical head. This broader conception of the state as parliament was employed in the trials that followed, especially of the United Irish republicans in 1799 and of the conspirator Colonel Despard in 1803.34 The postwar revival of mass demonstrations and “risings” solidified this broader definition of treason as encompassing threats to parliament as well as, or indeed instead of, the monarch. The trials of the Spencean republicans for their involvement at Spa Fields in 1816, the instigators of the Pentrich “rising” in Derbyshire in 1817, Henry Hunt and the Peterloo radicals, and the Cato Street conspirators in 1820 furthered this process. Charles Weatherill, defence lawyer for the Spencean James Watson, for example, complained during the trial that the crown lawyers “have therefore, skilfully enough, put in four treasons, in order to perplex the subject, and to obtain by confusion which they could not obtain by distinctness and precision”. Although faced with a litany of government witnesses, Wetherell and the main defence witness Henry Hunt convinced the jury to find Watson not guilty and the prosecution of the other Spenceans was consequently dropped.35

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The post-Peterloo period marked the greatest level of government prosecution of radicals on a variety of charges. Local authorities were perturbed about the wave of radical propaganda and sought to prosecute newspapers and printers for libelling the Manchester magistrates and the government. The special commissions of oyer et terminer for high treason declined in number and frequency, prosecutions for seditious libel continued but with a fluctuating success rate, while charges for seditious conspiracy and disturbing the peace with intent against the constitution increased.36 Fifty informations and indictments for libel were filed at King’s Bench in 1819–1820. Their targets included Richard Carlile, publisher of the Republican, who was sentenced to six years in Dorchester gaol; and radical MP Sir Francis Burdett and the Spencean Unitarian minister Robert Wedderburn for denouncing the authorities for their actions at Peterloo. The prosecution rate for libel rose to its highest level of around fifty per cent, which Harling attributes to a more determined policy by the law officers of targeting small publishers.37 The evidence from the opinion books show that this was just the outcome of a much larger process of sifting potential cases. The law officers, faced with a bulging post-sack of printed material sent from across the country, decided that trying each case that ended up before them would be overwhelming and risked too many acquittals. Their general advice was that the smaller cases would better prosecuted locally as indictments at quarter sessions rather than taken to the King’s Bench. For example, John Hockley was apprehended on 21 August 1819 on the Strand outside the Crown and Anchor pub, carrying a placard advertising a meeting to be held at the venue concerning “Massacre in Manchester by the Yeomanry Cavalry and the Magistrates”. The law officers recommended a quarter sessions indictment for inciting disturbance.38 There were nearly a hundred prosecutions at the assizes, from high profile reformers such as Henry Hunt at Lancaster for seditious conspiracy for his leading part at Peterloo to provincial radical leaders involved at the protest meetings and various “risings” that occurred from the autumn of 1819 to spring 1820.39 As Malcolm Chase has noted, the success of Lord Liverpool’s ministry in containing the democratic movement lay less in the “big ticket” sentences passed on high profile treason cases like the Cato Street conspirators in 1820 than on

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the participation of local authorities over the longer period in bringing lesser offenders to trial on a range of minor charges for conspiracy and inciting disturbance.40

II The watchword of the early nineteenth-century democratic movement in Britain was liberty. The language of constitutionalism was integral to the radicals’ challenge to the state’s definitions of treason and sedition. They did not contest the state through Paineite republicanism, but rather used the language and the tools of the British legal system, calling for the rights of the subject through reference to Magna Carta and the rights of the accused through opposition to packed or special juries. Political trials – more so than debates conducted within the reform petitions, demonstrations, pamphlets and newspapers – were therefore a litmus test for assuring liberty in an era of repression. Radicals came to view prosecutions of their peers as evidence of how the state was unconstitutional and the legal system was corrupted.41 The decision over whether the defendants were “seditious” or not, whether they could have access to constitutional freedoms or not, did not end in words or censorship but in the choice between freedom and imprisonment or execution. The trials in effect were a microcosm of the state, its powers, and the varying levels of agency or leeway that radicals could conduct within them. Radicals did not oppose the use of open juries, that is, chosen among all eligible freeholders by the Assizes, because they saw juries as representative institutions essential to ensuring the liberty of the citizen. They attempted to foster a representative space within the courtroom, to defeat the government within their own terms of the long traditions of individual liberties of the citizen within the law.42 Many of the radicals facing trial were highly concerned about the packing of juries and the use of special juries. Their fears sprang not just from the fact that this process seemed to seal their fate but also from their adherence to the constitutional principle of a fair and uncorrupt trial as encapsulated, as they saw it, in Magna Carta.43 When prosecution was decided by the law officers by ex officio information, trial at King’s Bench

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was by special jury. The jurors were selected by the Treasury Solicitor from a special list of men of higher social status, and in practice this meant that those selected were likely to be more favourable towards the government and prosecution. Horne Tooke had made allegations of jury packing at his 1794 trial, the issue was raised in the House of Commons in 1809, and Wooler alleged in 1817 that a small group of “guinea men” paid regularly by the government biased the jury’s decisions in favour of the government.44 Following more open criticism of the system by Jeremy Bentham in 1821, Robert Peel’s government eventually passed a Juries Act in 1825, which meant that the jurors in London and Middlesex were to be selected by ballot rather than from the closed list.45 Yet the special juries at county assizes remained chosen by the Crown, and composed of gentry and aristocrats.46 A key difference between the metropolitan reformers – many of whom were able to persuade the jury of their innocence and secure acquittal – and the provincial radicals, was one of class. The social gap between the propertied judge and jurors and the working-­ class defendants was much more evident in provincial trials at quarter sessions and special assizes. Although Hone and Wooler contested a corrupt and packed jury, the political and legal culture of London nevertheless enabled more room for manoeuvre. As Epstein notes, by contrast, elsewhere, “radicals could not as easily reproduce such triumphs where lists of special jurors were restricted to esquires of the county”.47 The “ultra-radical” John Bagguley of Manchester, who had been arrested for giving a seditious speech at a reform meeting in September 1818, was imprisoned under direct warrant from the Home Secretary under the 1817 Suspension of Habeas Corpus Act. Informed that he was to be tried by special jury, Bagguley became acutely concerned about its potential to be packed and therefore weighted against him. He had clearly read Wooler’s editorials in the Black Dwarf on the subject and his pamphlet, An Appeal to the citizens of London against the alledged lawful mode of packing special juries of 1817. Bagguley immediately wrote to Wooler to seek confirmation that all freemen could serve on special juries. Wooler replied that they were eligible, “though for their own purpose, the agents of the Crown always make a point of confining the number to their own party which they think themselves more likely to make sure of among the Baronets and Esquires which they accordingly chuse”. He advised

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Bagguley, “The Decision of the Judges that the Master of the Crown Office had a right to select or pack special juries is illegal; and was given only to get rid of a dilemma as the readiest way I would advise you to object to the mode, to insist upon your jury being farely [sic] chosen out of the list of the whole body of the freeholders of the Country”.48 Bagguley also sought the opinion of Sir Charles Wolseley of Staffordshire, who was also attracting the local authorities’ attention for his speeches at radical demonstrations (and who would be arrested and tried for seditious conspiracy at Chester assizes in April 1820).49 His reply reflected the difference in class between the two men. Whereas Wooler was defiant on political prisoners’ constitutional rights to a freeholder jury, Wolseley retorted that just because gentry chosen by the county featured did not mean that the jury was partial: I am sorry to find that you have such an objection to “Baronets” and “Esquires” to tell you the truth I see very little difference between them and the “merchants”. In all the Special Jury cases that I have had any knowledge of they have generally been composed of what are called County Gentlemen – but commonly there are not more than three or four who attend the Summons and then the rest of the Jury are made up of the common jurymen – this may be the case with the Jury that is to try you. p.s. were you not aware that every man has a right either Plaintiff or Defendant to Demand a Special Jury  – a Special Jury is consequently something above a common jury.50

Bagguley was tried along with his two fellow Mancunian radicals Samuel Drummond and John Johnston for sedition and conspiracy at the Chester spring assizes in April 1819. Bagguley used the court as an arena for his complaints, not least being imprisoned for nine months under the Suspension of Habeas Corpus Act and the huge bail placed on the men of one thousand pounds each, which was clearly meant to ensure they stayed imprisoned.51 Drummond challenged that they were guilty of two counts of “inciting the people to hatred and contempt of Government and Constitution of your Country” and of seditious conspiracy against the government. He called on the Attorney General to try them on the separate indictment. Johnston took the trial as a stage to express his emo-

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tions against the hardships they had experienced in prison, and boldly addressed the judge: “My Lord, I mean to say, in plain words, that we have not had a fair trial. [After the prisoner had uttered these words, he struck the rail of the bar very violently]”. The Chief Justice was adamant about the guilt of the men, arguing that the Macclesfield reform meeting at which the radicals spoke was not intended to petition parliament for reform: Its real object was to incite the people to disaffection and to take up arms against the government … you advised them to establish what you called a National Convention which was to usurp the place of Parliament and its laws … one step more and your offence would have amounted to High Treason.

They were sentenced to two years’ imprisonment and the huge amount of five hundred pounds sureties each for good behaviour on their release.52 Bagguley, Johnston and Drummond were fiery orators, much to the consternation of the moderate reformers such as Samuel Bamford, who realised the danger inherent in taking such a tactic.53 They were well experienced in haranguing crowds about the need for democratic reform (indeed Bagguley’s inflammatory speeches in particular were the reason he attracted the attention of the local authorities and was arrested), and hence he felt no qualms in using the court as another arena in which to vent his rage at the system. The final section of this chapter demonstrates the role of local authorities and loyalist attitudes in shaping the outcomes and also the difficulties of securing prosecution because, despite packed juries, adherence to the letter of the law and adherence to the ideal if not always the reality of a fair trial persisted.

III The trial of the Thirty Eight radicals of Manchester at Lancaster Assizes in August 1812 marked a significant turning point in the development of the provincial reform movement. Led by the small manufacturer and ­veteran reformer John Knight, a group of Manchester radicals revived a

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society to petition for parliamentary reform. Hearing rumours that the deputy constable, Joseph Nadin, was about to arrest them at their original meeting place of the Elephant Inn, they adjourned to the Prince Regent’s Arms for a second meeting on 11 June 1812. Samuel Fleming, an Irish weaver and former member of Colonel Silvester’s militia, informed the boroughreeve and constables of their intentions. Nadin, backed by a band of soldiers, entered the room and arrested the men on a charge of administering an illegal oath to Fleming. Following examination at the New Bailey court house in Salford, the prisoners were sent to Lancaster Castle to await trial at the next assizes.54 The trial began at eleven o’clock in the morning of 27 August, and lasted fourteen hours in total, with the final verdict made about one in the morning of the next day.55 The formal indictment was made against William Washington and Thomas Broughton. The Attorney General decided to make a joint charge against all thirty-eight men, stating it would be too repetitive to try them all separately.56 The radicals were defended by Henry Brougham MP, leading member of the “Mountain” wing of opposition Whigs, and two other sympathetic lawyers, and were financially supported by Major Cartwright, the Liverpool polymath William Roscoe, and other sympathetic middle-class reformers.57 The trial was widely covered in the newspapers as it occurred in the middle of the Luddite machine-breaking agitation. The local authorities were desperate to clamp down on all forms of working-class collective action and attempted to associate radicalism with Luddism, and hence charged the radicals under the 1799 act against taking illegal oaths, rather than for treason.58 The address by the Attorney General, Mr. Park, to the Lancaster jury asserted that the authorities intended the trial to be “of considerable use to the public”. He felt that the impact of the trials of dozens of Luddites at special assizes in Lancaster, York and Chester a few months previously had been short-lasting, not least because the defendants “usually conduct themselves with decorum [so] there is not that sensation produced on the mind which one would wish should be felt”. Park believed that this performance by the Luddites at their trials, and the considerable sympathy expressed for them at their executions, meant that “a good deal of the impression which such trials were intended to have on the public mind was destroyed”.59

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The early nineteenth-century trial was not a neutral or unchanging process, but consciously contained elements of theatre and performance. The trial process formed the basic script and narrative that had to be followed in the right order, but there was room for improvisation and response, and the outcome was not predictable. There was humour and tragic drama, enacted not just by the performers of the defence, prosecution and jury, but also often a large audience who watched and participated.60 Regency radicals were well aware of the potential to exploit the dramatic elements of the trial process, and played on the emotions of the jury and the audience. The rise of defence lawyers heightened the appetite for drama and made the trial appear – in the narrative at least – as able to be swayed by individual performances as much as by juridical interpretation of the law and evidence. Printed versions of the trials therefore read like a theatre script, transcribing the boos and the huzzas of the audience and, as Kevin Gilmartin notes, were therefore “narrative constructions” in themselves. In bringing the political trial to a wider audience, radical publishers thus extended the “radical counter public sphere”, enabling the message of radical principles and the heroics of those on trial to reach a wider reading audience in an era when the laws of seditious libel were used against those on trial and radical literature.61 John Knight published two versions of the trial proceedings, with an extensive introduction outlining the context of the case and the radicals’ innocence. He alleged that deputy constable Joseph Nadin had attempted to frame them. Nadin, already notorious in Manchester as the “thief catcher”, became the bête noire of the radical movement. At their earlier presentation in front of the magistrates at the New Bailey court, Nadin “became very active in arranging the prisoners about the bar”. Knight claimed that Nadin did this as a means of indicating to the informer Fleming which radical (William Washington) he wished him to identify as the instigator of the illegal oath. It became clear that Fleming did not recognise Nadin’s chosen target: [Nadin] was heard to ask Fleming whether he knew Washington? Fleming replied he did not: Nadin then pointing to Washington said, “That is him, in the striped waistcoat and spotted handkerchief; swear to him first”. Washington immediately appealed to the magistrates, but no notice being

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taken, he repeated his appeal, when Nadin was ordered to be removed away from Fleming; who then swore that Washington had administered to him and two others, an unlawful oath, about 10 o’clock on the evening of the 11th June.62

Knight noted that Nadin’s subterfuge was made even more obvious when Fleming made a farcical case of mistaken identity: On being requested to point out one of the persons, he fixed upon a turnkey belonging to the New Bayley, named William Evans. He was then asked by the magistrates if he was sure that was the man, and he replied “yes I am sure”. Mr Dunstan, governor of the New Bayley, who was in the court, now said that was impossible for he could prove Evans had not been out of the New Bayley that night. As however Evans the turnkey sat in the very place into which Nadin had pertinaciously attempted to force me during his arrangement beforementioned, until ordered to desist.

Perhaps Knight further played up Nadin’s character as bogeyman in the minutes of the Lancaster trial, but it is likely that the cross-examination by defence lawyer Mr. Williams indeed followed the lines recorded in the pamphlet (Fig. 8.1): Q. (Williams) Your face is pretty well known at Manchester, there is no man so well known. A. (Nadin) I do not think there is. Q. People are much alarmed at seeing you in the night time. A. If their deeds are not evil, they have no cause to be alarmed. Q. You are continually going about to take men up and of course you are very notorious? A. Yes.63 The sketch included in The Trial at Full Length of the Thirty Eight Men is a rare example of an interior scene of a provincial trial in this period. It was included in the proceedings to show the positioning of each of the defendants and to identify the informer Fleming, whose name is underlined in the key underneath the drawing and who is pictured standing in

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Fig. 8.1  Sketch of Lancaster Assizes, in The Trial at Full Length of the Thirty Eight Men from Manchester … (J. Plant, Sickle Street, Manchester, 1812), Working-Class Movement Library, Salford

the gallery directly above the dock, grinning and looking towards the judge. The counsel for the prosecution stood directly in front of the prisoners. William Washington is sketched in the dock answering questions. The picture also indicates how the trial excited huge popular interest, with the audience packed in to watch, behind the defendants and in the direct view of the judge, onto the staircase and windowsill, and even women sitting right next to the judge. The authority of the judge and jury were symbolically demonstrated in their positioning at a higher level,

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but this difference of height also physically influenced the ways in which the defendants and lawyers interacted with them, the latter having to look up to address them. Notably in this case, the lawyers’ table was lower, illustrating how the rise of the defensive lawyer was still inhibited or shaped by their physical positioning within the court.64 Though the theatre and spatial positionings of the court were meant to enforce the hierarchy and severity of the law, historians agree that this did not result in the weight of authority being solely on the part of the prosecution. The courtroom enabled interaction and participation from all sections of the process, enabling the expression of dissent from the defendants and the audience. The public gallery in particular was retained as an essential part of the scrutiny of the law’s legitimacy, and enabled the crowd to express their views and attempt to influence judgements.65 This was beginning to change, but not yet. Julienne Hanson notes the spatial aspects of the trial process, in relation both to the “lawscape” of the court building and to the rules governing the wider social body. In the early nineteenth century, the courtroom was the site where justice was “managed” and “administered” publicly, with most of the processes of the trial taking place in one room. By the end of the nineteenth century, by contrast, the management of the trial had been separated into different spatial sections, including separate entrances, a jury room, police cells and interview rooms, with the court functioning only where decisions made elsewhere were “published” publicly. Increased concern for “practical security, but also to prevent contamination between the criminal, citizen and those officiating at the ritual process” pushed forward these developments in trial process and spaces.66 Lancaster assizes court in 1812 fits the earlier model in which all participants in the trial, including the audience, were still in close proximity to each other and the elements of the trial took place mostly in one space. The prosecution was obviously concerned about the radicals’ potential to sway the jury by words and looks. This also included the sympathetic audience. The trial report noted how “the Attorney General requested that javelin men might be placed round the Bar to keep the people off and prevent them from speaking to the prisoners, which was accordingly ordered”.67 But the defence was also keenly aware of the attempts of the prosecution to influence the witnesses by similar means. One of the defence lawyers requested that the witnesses on both sides be ordered to leave while evidence was given about Fleming’s

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involvement.68 The role of body language in shaping the trial’s progress and interpretation of the evidence was evident in Brougham’s sardonic retort to Park’s accusation that he was trying to influence the jury: I am not saying anything: I am sitting with my back to the Jury and am not armed, as the learned Attorney General is with the power of making a long address to the Jury. He is not only anticipating what he thinks we may say, but what he knows we have not the power to say. He interprets my looks – he expresses surprise and distrust, and then turns round and applies to your lordship. This is not a case in which the Attorney General ought so to conduct himself.69

The radicals were acquitted after the Manchester magistrate Colonel Silvester acknowledged in his examination that he had instructed Nadin to send Fleming to the meeting to be asked to be “twisted in”, and the witnesses of the defence each contradicted Fleming’s evidence.70 E.  P. Thompson pointed out that the decision of the judge (Baron Wood) and jury demonstrated that “Britain was not a police state”, and that the law officers were “well aware that conviction was not automatic”.71 Archibald Prentice, who later became a pro-reform journalist in Manchester, recalled in his 1851 memoir about the positive impact that the acquittal of the Thirty Eight had on the radical movement: “like the acquittal of Thomas Walker and John Horne Tooke, certainly tended to keep alive some feeling of confidence in a trial by jury as a safeguard of personal liberty”.72 He nevertheless noted the financial and psychological impact of the case: “an expensive trial (although the money was found by middle-class men …) and a long imprisonment previous to trial no doubt operated in the way of intimidation”. This view again reflects how the “reign of terror” was more about the fear of arrest and the consequences of prosecution than the actual number of prosecutions.73 In some senses, the trial of the Thirty Eight was an anomaly among the other cases brought to court in 1812–19, as it was the only one where the evidence for the prosecution was based on one informer’s testimony, which as previous trials had shown, was never a good basis for success. The law officers ensured that in all the other cases brought to court were limited to overtly criminal acts such as frame-breaking and robbery of arms, and kept any evidence about political sedition in the background.74

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IV The case of the Thirty Eight occurred at the turning point when prosecutions of political radicals began to shift away from seditious libel towards conspiracy and seditious assembly. Local and national governments became more concerned about the potential for working-class collective action in industrialising areas of Britain to instigate revolution more than the textual contents of pamphlets and newspapers. Political trials in this period widened the definition of treason to include threats to parliament as well as the monarch, and after the Peterloo Massacre and the Six Acts that followed, seditious conspiracy included intent to provoke riot and tumult against the constitution.75 Nonetheless, as illustrated in the law officers’ opinion books, the Tory governments of the era often took great care to ensure that cases were prosecutable with some chance of success, and they were usually highly sensitive to the liberties guaranteed by the process that could be exploited by clever lawyers and argued by the radicals themselves. The extent of repression was limited. It was limited by the law. It was limited by the processes of the law. It was limited by widely-held principles of an unwritten constitution. Though radicals accused the government of corruption, law makers and enforcers nevertheless respected the right to petition and to a fair trial, at least in theory if not always in practice. The government responded to periods of heightened political agitation such as 1799–1801 and 1817–18 with suspension of habeas corpus legislation, showing how the state trial could never guarantee success for the prosecutors and during crises it was easier to arrest under direct warrant and keep the prisoners under lock and key without the opportunity for them to air their views in an open court. Radicals treated trials as battles about the constitution, with their grievances drawn from the language of Magna Carta as tutored by Major Cartwright and T. J. Wooler. They were therefore especially aggrieved by the suspension of habeas corpus acts, which appeared to remove their constitutional rights to a fair trial, and the use of special juries which to them was proof of government corruption. The impact of loyalist repression was real and significant, but because it appeared so unpredictable rather than because it was total in any way. Moreover, government repression was channelled by the way in

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which power was distributed between central and provincial authorities. The main organs of law and order lay in the magistrates’ offices and the county court rooms rather than in the Home Office. The actions of local authorities were also highly significant in bringing radicals to the assizes in the first place, using spies and informers, intimidation and overtly anti-radical and indeed anti-working class statements in court and in the press. The Thirty Eight would not have been prosecuted had it not been for the zeal of deputy constable Joseph Nadin to root out all remaining “Jacobins” in Manchester, his determination proven again in August 1819 when he arrested the orators on the field of Peterloo. Power was personal. The personal interactions and the uneven balance of power between defendants and prosecution within the court room played a large part in determining the outcomes of the trials.

Notes 1. Robert Poole, “French revolution or peasants’ revolt? Petitioners and rebels from the Blanketeers to the Chartists”, Labour History Review, 74 (2009), 6–26; John Belchem, “Henry Hunt and the evolution of the mass platform”, English Historical Review, 93 (1978), 739–73. 2. Jennifer Mori, Britain in the Age of the French Revolution, 1785–1820 (London, 2000), 101. 3. Samuel Bamford, Passages in the Life of a Radical (Manchester, 1849), ch. VI. 4. See Paul Halliday, Habeas Corpus From England to Empire (Cambridge MA, 2010). 5. The National Archives (hereafter TNA), Treasury Solicitor’s Papers, TS 25, law officers’ opinion books; Home Office Domestic Correspondence, HO 48. 6. Jon Mee, Print, Publicity, and Popular Radicalism in the 1790s: The Laurel of Liberty (Cambridge, 2016), 105 7. TNA, Home Office Domestic Correspondence, HO 42 and HO 52; Home Office out-letter books, HO 41. 8. Kevin Gilmartin, Print Politics: The Press and Radical Opposition in Early Nineteenth-Century England (Cambridge, 1996), 115–20; Jon Mee, Treason, Seditious Libel, and Literature in the Romantic Period, Oxford Handbooks Online (New York, 2016).

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9. J.  H. Langbein, The Origins of the Adversary Criminal Trial (Oxford, 2003); John M.  Beattie, “Scales of justice: defence counsel and the English criminal trial in the eighteenth and nineteenth centuries”, Law and History Review, 9 (1991), 221–67; D.  Lemmings, “Criminal trial procedure in eighteenth-century England: the impact of lawyers”, Journal of Legal History, 26 (2005), 73–82. 10. Philip Harling, “The law of libel and the limits of repression, 1790– 1832”, Historical Journal, 44 (2001), 107. 11. James Epstein, Radical Expression: Political Language, Ritual and Symbol in England, 1790–1850 (Oxford, 1994), 41; Harling, “Law of libel”, 128; Gilmartin, Print Politics, 115–20. 12. Harling, “Law of libel”, 108, using TNA, KB 28/351–523, King’s Bench, crown rolls, 1790–1832. 13. TNA, HO 41 and HO 42, Home Office correspondence out and in-books. 14. Epstein, Radical Expression, 39. 15. David Bentley, English Criminal Justice in the Nineteenth Century (London, 1998), 84. 16. TNA, TS 25/3, 5–8, 2034–5, Treasury Solicitor’s papers, law officers’ opinion books, 1808–20. 17. There are about a dozen more cases recorded within the general Home Office correspondence (TNA, HO 41, HO 42) that were either not sent on to the law officers or do not include decisions. 18. Harling, “Law of libel”, 109–110. 19. TNA, TS 25/5–6, law officers’ opinion books, 1812–15. 20. Harling, “Law of libel”, 125. 21. TNA, TS 25/7, 8, law officers’ opinion books, 1816, 1817–18. 22. TNA, TS 25/6, law officers’ opinion book, 1813–15. 23. Harling, “Law of libel”, 125. 24. TNA, TS 25/5, law officers’ opinion book, 1812. 25. TNA, HO 42/191/135, expenses bill from John Lloyd of Stockport, 23 November 1819. 26. Globe, 6 September 1819. 27. Harling, “Law of libel”, 110. 28. TNA, TS 25/2034, f. 231, 19 October 1818. 29. TNA, TS 25/2034, f. 232, 19 October 1818. 30. Harling, “Law of libel”, 112.

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31. Lisa Steffen, Defining a British State: Treason and National Identity, 1608–1820 (Basingstoke, 2001), p. 7; Steve Poole, The Politics of Regicide in England, 1760–1850: Troublesome Subjects (Manchester, 2000); John Barrell, Imagining the King’s Death: Figurative Treason, Fantasies of Regicide, 1793–1796 (Oxford, 2000). 32. Frida Knight (ed.), The Strange Case of Thomas Walker: Ten Years in the Life of a Manchester Radical (London, 1957); Michael Lobban, “From seditious libel to unlawful assembly: Peterloo and the changing face of political crime, c1770–1820”, Oxford Journal of Legal Studies, 10 (1990), 323, fn 80; State Trials, XXIII: 1055. 33. Lobban, “From seditious libel”, 323; Michael Lobban, “Treason, sedition and the radical movement in the age of the French Revolution”, Liverpool Law Review, 22 (2000), 206. 34. Steffen, Defining a British State, 150. 35. The Trial of James Watson for High Treason, 2 vols (London, 1817), II: 185. 36. James Fitzjames Stephen, A History of the Criminal Law of England, vol 2 (1883, reprint Cambridge, 2014), 378. 37. Harling, “Law of libel”, 126. 38. TNA, TS 25/2035, f. 174, 2 September 1819. 39. Harling, “Law of libel”, 126; Malcolm Chase, 1820: Disorder and Stability in the United Kingdom (Manchester, 2013), p.  208; The Republican, 15 October 1819; The Trial of Sir Francis Burdett, Bart. for a Seditious Libel (London, 1820); The Trial of the Rev. Robt Wedderburn … for Blasphemy … edited by Erasmus Perkins (London, 1820). 40. Chase, 1820, 208–9. 41. Epstein, Radical Expression, 35. 42. Ibid., 35. 43. Gilmartin, Print Politics, p. 115; E. P. Thompson, Whigs and Hunters: the Origin of the Black Act (Harmondsworth, 1975), 263. 44. Harling, “Law of libel”, 117; T. J. Wooler, An Appeal to the citizens of London against the alledged lawful mode of packing special juries (London, 1817). 45. Bentley, English Criminal Justice, 90–2. 46. Epstein, Radical Expression, 64; Black Dwarf, 21 and 28 April 1818. 47. Epstein, Radical Expression, 60. 48. TNA, HO 42/185/289, Wooler to Bagguley, 2 April 1819.

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49. TNA, TS 11/1071, King vs Wolseley and Harrison, Chester Spring Assizes, 1820. 50. TNA, HO 42/185/293, Wolseley to Bagguley, 2 April 1819. 51. Chester Courant, 27 April 1819. The revived reform societies in Stockport, Hull, Manchester and Oldham raised subscriptions for the bail money, but could not succeed in the strained economic circumstances of working-class support: Black Dwarf, 3 January 1819. 52. Chester Courant, 27 April 1819. 53. Samuel Bamford, Passages in the Life of a Radical (Manchester, 1849), 24–5. 54. J.  R. Dinwiddy, “Luddism and politics in the Northern counties”, in J. R. Dinwiddy, Radicalism and Reform in Britain, 1780–1850 (London, 1992), pp. 384–5; TNA, HO 40/1/451, Milne to Litchfield, 17 June 1812. 55. TNA, TS 11/1059, King vs William Washington and others, brief for the prosecution, August 1812, and notebook transcript of the trial; A Correct Report of the Proceedings on the Trial of Thirty Eight Men… (M. Wardle, Market Street, Manchester, 1812), which is the pamphlet most widely surviving in libraries; the rarer version is The Trial at Full Length of the Thirty Eight Men from Manchester … (J. Plant, Sickle Street, Manchester, 1812), copy in Working-Class Movement Library, Salford. 56. The Trial at Full Length, 90. Newspaper reports of the trial include: Lancaster Gazette, 29 August 1812; Morning Chronicle, 1 September 1812; Cowdroy’s Manchester Gazette, 5 September 1812; Leeds Mercury, 5 September 1812. 57. Frances D. Cartwright, The Life and Correspondence of Major Cartwright, 2 vols (London, Henry Colburn, 1826), II: 34–7; Manchester Archives, BR F 324.942733, Shuttleworth scrapbook, fo. 8, Walker to Shuttleworth, 21 August 1812. 58. The Trial at Full Length, 22. 59. Ibid., 20. 60. Epstein, Radical Expression, 32; David Lemmings (ed.), Crime, Courtrooms and the Public Sphere in Britain, 1700–1850 (Farnham, 2012), 2. 61. Gilmartin, Print Politics, 123–4; Kevin Gilmartin, “In the theater of counterrevolution: loyalist association and conservative opinion in the 1790s”, Journal of British Studies, 41: 3 (2002), 291–328. 62. The Trial at Full Length, vii. 63. Ibid., 126.

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64. Thanks to Tim Hitchcock for his interpretation of the court scene. See also Claire Graham, Ordering Law: The Architectural and Social History of the English Law Court to 1914 (Aldershot, 2003). 65. David G.  Barrie and Susan Broomhall, Police Courts in Nineteenth-­ Century Scotland, vol. 1 (Farnham, 2014), 225–6; J. M. Beattie, Crime and the Courts in England, 1660–1800 (Oxford, 1986), 399; Peter King, Crime, Justice and Discretion in England, 1740–1820 (Oxford, Oxford University Press, 2003), 258. 66. Julienne Hanson, “The architecture of justice: iconography and space configuration in the English law court building”, Architecture Research Quarterly, 1 (1996), 50–9. 67. TNA, TS 11/1059, notebook minutes of the trial of the Thirty Eight, 1812. 68. The Trial at Full Length, 31. 69. Ibid., 42–3. 70. Dinwiddy, “Luddism and politics”, 385. 71. Thompson, The Making of the English Working Class, 579. 72. Archibald Prentice, Historical Sketches and Personal Recollections of Manchester (Manchester, 1851), 81. 73. Ibid. 74. Thompson, The Making of the English Working Class, 577. 75. Lobban, “From seditious libel to unlawful assembly”, 323.

Bibliography Manchester Archives BR F 324.942733, Shuttleworth scrapbook

The National Archives Home Office Domestic Correspondence, HO 40, 41, 42, 48, 52 King’s Bench, KB 28/351–523 Treasury Solicitor’s Papers, TS 11, 25 Black Dwarf. Chester Courant. Cowdroy’s Manchester Gazette.

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Globe. Lancaster Gazette. Leeds Mercury. Morning Chronicle. The Republican. A Correct Report of the Proceedings on the Trial of Thirty Eight Men… (M. Wardle, Market Street, Manchester, 1812). The Trial of Sir Francis Burdett, Bart. for a Seditious Libel (London, W. Myers, 1820). The Trial of James Watson for High Treason, 2 vols (London, 1817). The Trial of the Rev. Robt Wedderburn … for Blasphemy … edited by Erasmus Perkins (London, W. Mason, 1820). The Trial at Full Length of the Thirty Eight Men from Manchester … (J. Plant, Sickle Street, Manchester, 1812). Samuel Bamford, Passages in the Life of a Radical (Manchester, 1849). Frances D. Cartwright, The Life and Correspondence of Major Cartwright, 2 vols (London, 1826). Archibald Prentice, Historical Sketches and Personal Recollections of Manchester (Manchester, 1851). T. J. Wooler, An Appeal to the citizens of London against the alledged lawful mode of packing special juries (London, 1817). John Barrell, Imagining the King’s Death: Figurative Treason, Fantasies of Regicide, 1793–1796 (Oxford, 2000). David G.  Barrie and Susan Broomhall, Police Courts in Nineteenth-Century Scotland, vol. 1 (Farnham, 2014). J. M. Beattie, Crime and the Courts in England, 1660–1800 (Oxford, 1986). John M.  Beattie, “Scales of justice: defence counsel and the English criminal trial in the eighteenth and nineteenth centuries”, Law and History Review, 9 (1991), 221–67. John Belchem, “Henry Hunt and the evolution of the mass platform”, English Historical Review, 93 (1978), 739–73. David Bentley, English Criminal Justice in the Nineteenth Century (London, Hambledon Press, 1998). Malcolm Chase, 1820: Disorder and Stability in the United Kingdom (Manchester, 2013). J.  R. Dinwiddy, “Luddism and politics in the Northern counties”, in J.  R. Dinwiddy, Radicalism and Reform in Britain, 1780–1850 (London, Hambledon Press, 1992), pp. 371–401.

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James Epstein, Radical Expression: Political Language, Ritual and Symbol in England, 1790–1850 (Oxford, 1994). Kevin Gilmartin, Print Politics: The Press and Radical Opposition in Early Nineteenth-Century England (Cambridge, 1996). Kevin Gilmartin, “In the theater of counterrevolution: loyalist association and conservative opinion in the 1790s”, Journal of British Studies, 41: 3 (2002), 291–328. Claire Graham, Ordering Law: The Architectural and Social History of the English Law Court to 1914 (Aldershot, 2003). Paul Halliday, Habeas Corpus from England to Empire (Cambridge MA, 2010). Julienne Hanson, “The architecture of justice: iconography and space configuration in the English law court building”, Architecture Research Quarterly, 1 (1996), 50–9. Philip Harling, “The law of libel and the limits of repression, 1790–1832”, Historical Journal, 44 (2001), 101–34. Frida Knight (ed.), The Strange Case of Thomas Walker: Ten Years in the Life of a Manchester Radical (London, 1957). J. H. Langbein, The Origins of the Adversary Criminal Trial (Oxford, 2003). David Lemmings, “Criminal trial procedure in eighteenth-century England: the impact of lawyers”, Journal of Legal History, 26 (2005), 73–82. David Lemmings (ed.), Crime, Courtrooms and the Public Sphere in Britain, 1700–1850 (Farnham, 2012). Peter King, Crime, Justice and Discretion in England, 1740–1820 (Oxford, 2003). Michael Lobban, “From seditious libel to unlawful assembly: Peterloo and the changing face of political crime, c1770–1820”, Oxford Journal of Legal Studies, 10 (1990), 307–52. Michael Lobban, “Treason, sedition and the radical movement in the age of the French Revolution”, Liverpool Law Review, 22 (2000), 205–34. Jon Mee, Print, Publicity, and Popular Radicalism in the 1790s: The Laurel of Liberty (Cambridge, 2016a). Jon Mee, Treason, Seditious Libel, and Literature in the Romantic Period, Oxford Handbooks Online (New York, 2016b). Jennifer Mori, Britain in the Age of the French Revolution, 1785–1820 (London, 2000). Robert Poole, “French revolution or peasants’ revolt? Petitioners and rebels from the Blanketeers to the Chartists”, Labour History Review, 74 (2009), 6–26.

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Steve Poole, The Politics of Regicide in England, 1760–1850: Troublesome Subjects (Manchester, 2000). Lisa Steffen, Defining a British State: Treason and National Identity, 1608–1820 (Basingstoke, 2001). James Fitzjames Stephen, A History of the Criminal Law of England, vol 2 (1883, reprint Cambridge, 2014). E. P. Thompson, Whigs and Hunters: the Origin of the Black Act (Harmondsworth, 1975).

9 State Trials, Whig Lawyers and the Press in Early Nineteenth-Century Scotland Gordon Pentland

State trials have long been a fertile area for historians interested in the emergence of popular radical and reform movements in Britain. Trials have been examined as important politicals sites, hosting an always asymmetrical contest between the state and its critics. Historians of radicalism have focused on the complex opportunities they afforded – through ideologically motivated defence speeches, processions to the court, exploitation of the relationship between trials and the press, even defendants’ choice of dress – to challenge the claim to dominance which lay at the centre of legal language, ritual and spaces. Above all, trials provided opportunities for reformers and radicals to place themselves within a narrative of British liberty and to dramatise their own roles within it.1 In the Scottish context, the state trials of the 1790s, which acquired notoriety among contemporaries, commanded political and historiographical attention for a long time thereafter. The trials and transportation of the “Scottish martyrs”, five men intimately involved with a series G. Pentland (*) School of History, Classics and Archaeology, University of Edinburgh, Edinburgh, UK e-mail: [email protected] © The Author(s) 2019 M. T. Davis et al. (eds.), Political Trials in an Age of Revolutions, Palgrave Histories of Policing, Punishment and Justice, https://doi.org/10.1007/978-3-319-98959-4_9

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of radical conventions held in Edinburgh, was both an important event within British radicalism and has provided a rich source for both historical and commemorative activities surrounding Scotland’s past.2 The memory and political usability of these notorious trials persisted. They were used by a variety of groups and continued to provide tenacious myths in which eloquent victims jousted with a colourful villain in the form of Lord Braxfield, the Lord Justice Clerk (who achieved literary immortality as the model for Robert Louis Stevenson’s Weir of Hermiston). A recent restaging in Parliament House of the most notorious trial – of Thomas Muir  – is some testament to the lingering influence of these contests.3 One group which deployed these trials very effectively, both at the time and subsequently, was the Scottish Whigs (and, indeed, their English counterparts). In challenging the verdicts in Parliament, Whigs painted a lurid picture of a despotic Scottish establishment. Charles James Fox denounced this evidence of “the infamous fabric of Scottish persecution”, while Charles Grey lamented that “Scotland had no more liberty, than it had under the race of the Stuarts”.4 Such proceedings raised important questions about whether ministerial actions in Scotland could serve to poison the body politic and imperil “the safety of the British constitution” (similar arguments were made about Ireland as well).5 The subsequent use of the trials was captured most fully in Henry Cockburn’s posthumously published two-volume Examination of the Trials for Sedition which have hitherto occurred in Scotland (1888). Cockburn’s text dwelt overwhelmingly on the 1790s to present a Scotland “at nearly the lowest point of political degradation”, misgoverned by “the hardest and most absolute toryism [sic]”: There was literally nothing except the steadiness of a small whig [sic] party, composed chiefly of lawyers, without whose resolution and intelligence Scotland, politically, would have been nearly as prostrate as if it had been a province of Austria or Russia.6

In contrast, a series of high-profile trials associated with a later period of agitation – between 1816 and 1820 – have received little historical attention. Part of the explanation lies in the failure of accused radicals at these

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trials to defend themselves. They have been overshadowed in the historiography by episodes which offer some access to radical ideas and languages: the trials of the 1790s in Scotland and, for the later period, the celebrated self-defences in English courts of William Hone, T. J. Wooler and Richard Carlile. Rendered less useful as lenses onto radical culture, the Scottish trials have not been deployed to other ends. This essay aims to do just that. First, it examines the role played by one group for whom the trials did provide a real opportunity to tell its own history of liberty and deliver its own critique of Scottish law and institutions: the Scottish Whigs. A tight-­ knit group, which exerted considerable influence on the wider party in the opening two decades of the nineteenth century, the Scottish Whigs were well placed to take advantage of the trials. The Whigs were pre-­ eminently legal in their education, training and professional lives. In addition, their self-identity was tied up with a powerful narrative that they had, since the 1790s, faced proscription as a group and thus shared affinities with the martyrs sent to Botany Bay as the victims of Tory persecution. Indeed, although it was not published until after his death, a prominent member of the group, Cockburn, indicated that it was these later trials (in which he acted), which prompted him to begin work on his Examination. The express rationale was a fear of a re-run of the 1790s as the later contests “excited the utmost alarm among the whigs [sic], who felt as if the days of Braxfield had come back, or might do so”.7 The state trials afforded them a valuable opportunity to present their own history of liberty to a wider public as well as to delimit the proper boundaries of the constitution and the virtuous middle ground between democratic radicalism and Tory reaction, where citizens might enjoy liberty safely. Second, the Scottish context provides an opportunity to explore some facets of the relationship between state trials and the press in the early nineteenth century. Both Whig counsel and radicals rightly identified trials and their discussion in the press as a means of publicity. As they had in the 1790s, trials after 1817 constituted “a critical intersection of speech and writing, of oral and print culture”.8 These relationships, between what radicals and their opponents said and wrote, both inside and outside of the courtroom, were central to the state trials in Scotland. Not only did botched trials demonstrate that ministerial efforts to prosecute

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radical words were counterproductive by affording radicals greater publicity, Crown lawyers also faced the increasingly challenging obstacle that what was said and published outside of the courtroom by an increasingly voluminous press had an impact on their ability to secure verdicts within it. These twin pressures fed into the redefinition of “political” crime ­during the 1820s and the near abandonment of efforts to police speech and writing through trials for seditious and blasphemous libel.9

I In March 1817, two men  – Alexander McLaren and Thomas Baird  – were tried for sedition for respectively delivering and printing speeches and resolutions from a large open-air meeting in Kilmarnock. In May, a popular Universalist preacher, the Reverend Niel Douglas was tried for alleged seditious content in his sermons, which compared George III to Nebuchadnezzar and his son to Belshazzar. Finally, in the most celebrated case of that year, Andrew McKinlay, a weaver, was tried for and acquitted of the capital crime of administering unlawful oaths. He had been charged in connection with an alleged insurrectionary conspiracy in the West of Scotland.10 Further trials for sedition coincided with the raised tempo of radical activity following the events at Peterloo in August 1819, and included the trials and transportation of Gilbert McLeod, editor of the radical Spirit of the Union, whose sentence pathetically evoked the trials of the 1790s. The round of state trials culminated in the summer of 1820 when a special commission of oyer et terminer toured the disturbed western counties of Scotland to try for treason all of those suspected of involvement in an abortive attempt at a general rising during the week of 2 April. The assimilation of Scottish to English laws on treason in 1708 required the appointment of a special commission of oyer et terminer to try those accused of involvement in the rising. This found true bills for high treason against ninety-eight individuals in the five affected counties. Fifty-­ two individuals failed to appear and from the remainder the Crown lawyers managed to secure twenty-four capital convictions with only two acquittals after trial.11 Three of these sentences were eventually carried

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out: James Wilson was executed at Glasgow on 30 August; and Andrew Hardie and John Baird at Stirling on 8 September.12 Other sentences were commuted to transportation. Self-defence at the trials of the 1790s had provided a golden opportunity for radicals to dramatise and publicise their conflict with the state. In these later trials, by contrast, defendants invariably availed themselves of legal counsel. The absence of self-defence makes it more difficult to interpret these trials primarily as examples of radical counter-theatre. Instead, another group used the trials to tell its own history of liberty and to deliver its own verdict on post-war politics. Defence counsel was drawn from a remarkably cohesive group of Whig advocates. The most prominent were: John Clerk (1757–1832), Henry Cockburn (1779–1854), George Cranstoun (d. 1850), John Peter Grant (1774–1848), Francis Jeffrey (1773–1850), James Moncreiff (1776–1851), John Archibald Murray (1778?–1859), and Thomas Thomson (1768–1852). With the exception of Clerk, all had been born within a few years of one another and most had attended either the Edinburgh High School or the University of Edinburgh. In most cases they had received their education at both of these institutions. Perhaps most notably, Henry Cockburn and Francis Jeffrey, two of the original moving spirits behind the Edinburgh Review (Jeffrey acting as its editor from its foundation 1802 until 1829) and the eventual architects of Scottish political reform in 1832, took leading roles in the trials. The Review itself has been seen as the fruit of frustrated legal ambition during the Whig “proscription” of the Revolutionary and Napoleonic wars. With few briefs and little chance of preferment within the heavily ­politicised Scottish legal system of the early nineteenth century, a group of talented Whig advocates turned to journalism as an outlet.13 These “new Whigs” played a critical role within the ideology and activity of the party as a whole and helped to shape the Whig revival to 1830. Latterly, historians such as William Hay have incorporated the Scottish Whigs into wider accounts of Whig fortunes and Trent Orme has examined their range of political activities.14 It nonetheless remains difficult to separate Scottish Whiggism from its most influential production in the shape of the Edinburgh Review. Among many other contributions after its foundation in 1802, the Review developed the intellectual case for

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moderate reform and deployed an analysis of the French Revolution and the tradition of conjectural history to do so. It maintained an open hostility to any demands for universal suffrage or annual parliaments and rejected rights-based arguments for political reform.15 At the heart of these positions lay a sense that reform required moderate leadership and strategies. Such a concern had come to the forefront of Jeffrey’s thinking during the war on the occasion of considerable disputes amongst the Whigs: “There are but two parties in the nation – the tories [sic], who are almost for tyranny, and the democrats who are almost for rebellion. The whigs [sic] stand formless and unpopular between and must side with and infuse their spirit into one or other of them before they can do the least good.”16 Such a critique also lay behind Whig leadership in the campaign to repeal the wartime income tax after hostilities had ceased.17 Cockburn identified the income tax meeting as more profoundly important: “the first respectable meeting held in Edinburgh, within the memory of man, for the avowed purpose of controlling Government on a political matter”.18 The imperative to provide responsible leadership became all the more urgent after 1816, but was all the more challenging because Whigs neither agreed among themselves nor with the central thrust of the popular movement: “Because we are friends of Reform, we lament the course lately pursued by Reformers. We can neither agree with them in their plans for Reform, nor applaud the measures they have taken for the attainment of their object.”19 Trials and the defence of popular radicals after 1817 offered a very practical and public means of both demonstrating the kind of leadership for which critics like Jeffrey argued and of popularising their own views on reform. Without compromising themselves by appearing on the platform alongside radical orators, trials could support a kind of tutelary leadership and provided an opportunity for a resurgent Whiggism to push its own narrative into the public sphere. They were, in fact, a venue for Whig counter-theatre. These Whig efforts to earn political capital from the trials were something which attracted consistent complaint from Alexander Maconochie, the Lord Advocate: “being made a party question we have either 8 or 9 counsel for the prisoner in all the cases & speeches of inordinate length”.20

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At the trials of McLaren and Baird in 1817 Whig advocates presented the defendants as patriotic Britons who had served in the Volunteers and had only been tempted into politics by their experiences and awareness of the extreme distress following on from the end of the war. Jeffrey began his defence of Baird by highlighting the social context from which his political activities emerged: “Mr Baird, placed as he was in the heart of a manufacturing district, could not fail to be a spectator of a very general and very deplorable misery”.21 Assigning social and economic origins to radical politics became even more pronounced as radicalism developed across 1819 and 1820 into an even more obviously working-class movement. Jeffrey was once again predicting a cataclysm in early 1820 with “9/10ths or at least 4/5ths of the labouring classes disposed for insurrection”.22 He carried this analysis through to the treason trials and urged the court to look to the wider context of the “rising” and to ponder whether the accused might simply be men engaged in “the commission of that which hungry multitudes are so apt to run into, pillage and plunder, and indiscriminate attack on private property”, rather than in an organised conspiracy against the constitution.23 Such arguments from a legal point of view helped to raise questions around the intentions and motivations of radicals. They also stood as part of more general elite attempts to disarm radicalism rhetorically, by ignoring its political claims and instead characterising it as a “social pathology”.24 Henry Cockburn would later provide the neatest encapsulation of this attitude when he characterised radicalism, or “sedition of opinion”, as a product of “sedition of the stomach” with radical politics and orators as the waste products of a chemical process: “They are the froth that rises and bubbles on the surface, when the mass of the people ferments”.25 As this indicates, the Whig lawyers were contemptuous, both publicly and privately, of the democratic operations of a movement which lacked “respectable” leadership. Clerk, in defending McLaren, found it unexceptionable that “warm or intemperate expressions, not sufficiently respectful to their superiors, occasionally fell in the course of their deliberations, from people in the lowest ranks of life, unable to express themselves with that delicacy which is required from men in higher situations.”26 The conduct of politics without elite leadership was always apt to be marked by certain excesses, but these should scarcely be treated as criminal where

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they were “not more intemperate than must always attend the exercise of any popular privilege”.27 This Whig pose of a patrician indulgence towards popular movements was a feature throughout the trials. Jeffrey described the seditious pamphlet for which Baird and McLaren were tried, for example, as “foolish, ridiculous specimens of rustic oratory”.28 While the Crown officers made it plain that its case against Douglas was partly based on his preaching politics to the lower orders, Whigs could be equally dismissive. Without leadership and education, the masses simply were not equipped as political subjects. This attitude of elite indulgence to misguided plebeian radicals was taken to its logical conclusion in McKinlay’s case. Cranstoun opened by pointing out that the life of the prisoner depended on judgements on the nuanced use of words and their meaning. If the court allowed room for the construction to be placed on the words of the oath, this should err in favour of the accused, because these words had “been used not by a person well educated, and critically acquainted with language, but by one who is in the lowest situation of life, and who must be presumed to be totally ignorant of the force and delicacy of terms”.29 A prosecution based on the subtle interpretation of an oath could not be used against someone who was simply too ignorant to understand the complexities of political language. The subtext was that a subscription to – or at least the ability to subscribe to and to read – the Edinburgh Review was a prerequisite for men wishing to play an independent role in politics.30

II While most Scottish Whigs were committed reformers, parliamentary reform itself was not a ground on which the party as a whole could yet be united. Far more auspicious in that respect was the attack on ministerial tyranny and “alarms”, especially as demonstrated in the secret reports of 1817 and the measures which were based upon these. While reform, even responsibly-led and moderate reform, remained a potentially divisive issue, the Foxite ground of defending the liberties of the subject was much more familiar and reassuring. It also provided an opportunity to mark out the Whig boundaries of the constitution in a period when its proper limits were fiercely contested.

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The hinge of the defence case for McLaren and Baird, for example, rested on the assertion that all of their activities had been constitutional and fell within a reasonable interpretation of the limits of British liberty.31 This case was made partly by drawing comparisons with the more forceful language and actions of some English radicals, who had been left unprosecuted. All that the defendants had intended to do was to discuss, to petition and, if that failed, to petition again.32 Such actions, even where they involved criticism of ministers, could scarcely be regarded as unconstitutional. The right of petitioning, in particular, was both an ancient and very permissive privilege, which embodied the “healthful” and “wholesome” privilege of free discussion so central to the constitution. Without protecting such procedures, how could great milestones in the history of liberty, such as the abolition of the slave trade or (a self-­congratulatory note creeps in here) the repeal of the income tax have been achieved?33 In sketching the outer limits of constitutional actions, Whig lawyers were frequently required to offer opinions on other aspects of politics. Ideas worked out in the pages of the Review informed the rhetoric at the trials. For example, in McLaren and Baird’s trial, both Clerk and Jeffrey pointed out that it was not necessary to discuss the merits or otherwise of annual parliaments and universal suffrage. The essential question being debated was whether it fell within constitutional limits to petition for these, however ill-advised such measures might prove to be.34 Jeffrey’s speech, in particular, by exploring the imprecise (and, by his argument, arbitrary) boundary between legitimately discussing, petitioning and arraigning ministers and doing so with the “guilty intention” required of sedition, was powerful and later lauded by Cockburn as the first original and lucid treatment of the issues involved: “There has been no such speech in such a case in Scotland.”35 Having established his essential legal points, however, Jeffrey did go on to offer his own sentiments on reform: “They wished for annual elections, and that all should have votes. You may think such a plan mischievous […] I rather think so myself.” He followed this with an explanation of his opinion on the flawed intellectual and historical justifications for annual parliaments and universal suffrage, which was virtually a précis of John Allen’s Edinburgh Review article on the subject, whose appearance coincided with the trial.36 Where radical arguments were not rebutted, they were dressed up in Whig garments to prove their constitutionality. McLaren’s alleged

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statement that if petitions were rejected by Parliament and by the Regent then “to hell with our allegiance” was defended in a number of ways: as a quotation from Hamlet; as simply demonstrating the faith the people had that their generous prince would redress their grievances; and, in the last resort, as exemplary of that theory of resistance which lay at the heart of the British constitution. This latter defence saw counsel refer to the Scottish precedent that James II and VII had “forfeited the throne in consequence of his proceedings” and the more general argument that, while talk about resistance might be indecorous, it was not seditious: “The law and the constitution have pronounced that resistance is lawful for the people in certain circumstances”.37 Similar Whig readings of radical actions were a feature of the later treason trials. Murray, along with others, disputed the meaning of those “overt acts” on which the alleged counts of treason were based. While the Crown lawyers, for example, had made frequent suggestive mention of the text on the Strathaven Union Society banner – “Scotland Free, or a Desert” – Murray instead offered an alternative reading of this inscription. The sentiments behind it, he argued, were those of the most orthodox Whig as he traced progress to the free government bequeathed by Revolution in 1688–9 and Union in 1707: Is it our soil, our climate, our rocks, our marshes, that prevents this country from being anything but a desert […]? Was it not, at the period of the Revolution, visited with famines, that swept away hundreds and thousands of the people? What, Gentlemen, can it be now, that produces the wealth, riches and improvement around you […] but the course of a free government established among you? and whenever that free government is lost, it will again become a desert ;- that must be the sentiment of you all, and of every reflecting man in Scotland.38

III Whig counsel used trials and their links to the public sphere to air more obviously local party-political questions. Scottish Whiggism was in part premised on a crusading language of amending Scotland’s unfree, feudal

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institutions.39 The models for doing this might be found, among other sources, in English examples, hence the Scottish Whigs’ subsequent historiographical reputation as dogmatic Anglicisers.40 Legal questions and the separate legal system provided one profoundly important forum in which to pursue and develop these ideas. Reform of the Court of Session to include trial by jury in civil cases, for example, had been mooted since the 1780s and has been used to provide a window onto politics and intellectual currents in Enlightenment Scotland.41 There were also very ­profoundly political questions involved in the administration of criminal justice, and these were aired very publicly in celebrated state trials. One recurrent set of issues revolved around the somewhat ambiguous role of the Lord Advocate within Scottish politics and society. The Lord Advocate, as both chief prosecutor and the government’s man in the north – a kind of minister for Scotland – had both legal and political functions. These extensive powers had been attacked by Whigs on a number of occasions. In 1804 it was done on libertarian grounds by Samuel Whitbread. His attack prompted the then Lord Advocate, Charles Hope, to deliver a worryingly expansive description of his office which formed a touchstone for subsequent Whig criticisms: “he possesses the whole of the executive government of Scotland under his particular care”.42 Criminal trials and especially state trials offered a politically-charged space in which to develop this critique and to attack the Lord Advocate in the execution of his legal functions. Such concerns featured across all of the trials. In McKinlay’s, for example, Whig counsel attacked the Lord Advocate for denying access to one of the key prosecution witnesses. The language employed demonstrates how the courtroom was used to dramatise this conflict as one taking place between Whig advocates and a potentially despotic state: How can we know who the witness is from anything yet told us? He is a man shut up in a sealed casket to whom we can have no access. He is still an egg in the shell, and is not to come out until the proper process of incubation be gone through by his majesty’s advocate. The public prosecutor has been hatching this evidence in the Castle of Edinburgh, and it is not yet disclosed. If we go to the castle, and approach the sentinels to ask admission to the witnesses, they ask, who goes there, and present their muskets to us.43

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Indeed, the inept handling of McKinlay’s case in particular, provided a range of opportunities for Whigs to criticise the Lord Advocate in venues outside of the courtroom. Lord Archibald Hamilton, the brother of the Duke of Hamilton and Whig MP for Lanarkshire, launched an attack on Maconochie in the House of Commons on 20 June, three days before the Crown’s third indictment against McKinlay was to be read in Edinburgh. Hamilton raised the question during the Lord Advocate’s absence, in the context of the debates on the suspension of Habeas Corpus bill and used McKinlay’s experience – arrested and indicted for the same offence on three separate occasions – to argue that it would be “especially unsafe to extend the power of the Crown in that quarter”. He received support from Brougham and, more unexpectedly, from the Tory Kirkman Finlay, who was convinced of McKinlay’s guilt but lamented “that an individual should be confined to a solitary prison, and tried over and over again, merely because the lord advocate was unable to draw an indictment”.44 Maconochie came down from Edinburgh specifically to answer these charges during a later debate. Following McKinlay’s acquittal, however, the case and the conduct of the Lord Advocate continued to provide a useful lever for Whig arguments about the liberty of the subject.45 Lord Archibald Hamilton moved for an inquiry in February 1818 and used the opportunity to indict not only the Lord Advocate’s handling of the case but also the entirety of his conduct in dealing with the radical reform movement. The dramatic reading of the oath to excite alarm and spread prejudices; the use of spies and informers in collecting evidence against radicals; and the attempted tampering with witnesses were all woven into a general assault on the state of liberty in Scotland.46 As such, the trials stood as only part of a co-ordinated Whig critique, which was prosecuted in Parliament and the press as well. The unique nature of the special commission which tried radicals for treason in 1820 occasioned considerable further discussion of Scottish understandings of the Union and legal reform. Where sedition trials had the examples provided by the 1790s with which to frame the discussion, there was a distinct lack of precedent for the trial of treason in Scotland. The 1794 trial of Robert Watt and David Downie for the so-called “Pike Plot” was the only Scottish precedent explored by the Crown lawyers and this provided space for a wide-ranging discussion about the form and

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content of the treason laws.47 In particular, the appearance of Serjeant Hullock, an English barrister who had been involved in the trial of Henry Hunt at York, provided the opportunity for Whig lawyers to develop a technical legal defence couched in the language of patriotism. Jeffrey complained that the assimilation of English and Scottish treason law had not thus transformed a Scottish court into an English one. Only those competent to plead in a Scottish court could appear: “This is a tribunal for the trial of Scotch crimes […] it is a tribunal to administer the Scottish law only. That it resembles the law of England is no argument at all: with respect to Scotchmen it is nothing but the Scotch law; it is as much the Scotch law, as all British statutes extending to Scotland are Scotch law […] We have nothing, in short, to do with the law of England here”.48 This put the largely Tory bench in the uncomfortable position of repelling the objection. Toryism in Scotland has often been associated with a patriotism premised on an inflexible interpretation of the union settlement as a guarantor of distinctive Scottish institutions, while the Whigs have been painted as dogmatic anglicisers.49 In debates over reform of the legal system, Tories were likely to insist on the immutability of Scottish institutions, as they would do in opposing Peel’s proposed reforms to criminal law procedures in the early 1820s.50 In reality, however, this patriotic appeal on the basis of the distinctiveness of Scottish institutions was not the property of any one political position and it cut across party lines.51 The Whig approach to such questions was revealed in the fraught context of the treason trials. Such fissures were most dramatically apparent when, in a widely-reported incident, Hullock made one of many dismissive or insulting comments to Jeffrey. The Lord Lieutenant of Stirlingshire, Ronald McDonald of Staffa, a staunch Tory, passed a note to Jeffrey encouraging him to challenge Hullock and pledging to act as his second anywhere outside the county. The court told Hullock to apologise.52 One of the reasons the Tory Lord President, Charles Hope, insisted on the eventual publication of the trials was “to convince both the existing & future generations, that Treason can be as well tried here as in England – perhaps better” and to answer the “perpetual theme” of the Whigs “that in the administration of Justice, Scotland is lamentably behind England”.53

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IV Hope’s insistence on publication of the treason trials masks a rather more complicated relationship between the press, the trials and the participating parties. The trials themselves were pre-eminently spaces for Whig rather than radical interpretations of politics and an important venue for Whig counter-theatre. Such opportunities were followed up in the press and the first set of trials was widely reported in Whig papers, especially a very recent arrival in the shape of The Scotsman.54 The links between the trials and the press also demonstrate their role within radicalism. The radical press was, of course, less eager to replicate Whig critiques. Even qualified praise for Whig advocates would compromise the increasingly polarised and polarising tone which was a central feature of the radical press in this period, of which the Black Dwarf was representative: “Patriotism only thrives in a Whiggish soil, when the Whigs are out of office.”55 Prevented from meeting and discouraged from petitioning, the radical press arguably became even more important after 1817. Following the suspension of Habeas Corpus and the passing of the Seditious Meetings Act, the nexus formed by the press and radical trials became important as “a key forum for radical assembly” and a way of maintaining crucial links between the spoken and the written word.56 Scottish courtrooms provided numerous discussion points across the year. In the immediate aftermath of his trial, Douglas published an impassioned ideological defence of his actions, which he had intended to deliver in court had he been found guilty. The pamphlet excoriated ministers for the use of spies and the suspension of Habeas Corpus and profits from its sale were to be used to defray the expenses of exculpatory witnesses appearing in the conspiracy trials.57 McKinlay’s trial also fitted well into the developing narrative of a sustained alarmist assault and was widely reported in the radical press.58 The radical press was, of course, apt to celebrate McKinlay’s acquittal as a victory. To William Hone, whose own celebrated trials would come at the end of the year, it provided the cheering example of “another and most signal defeat of Ministerial machination”.59 Thomas Wooler, whose own trial for sedition had seen his triumphant acquittal in June, lam-

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basted the “theatrical display of cant and absurdity” in the Lord Advocate’s attempts to develop constructive treason and linked McKinlay’s case to his own: “Thus defeated in London, they return again to the charge in Scotland”.60 Indeed, Wooler’s experience demonstrates how trials and the publicity surrounding them provided opportunities for the expansion of radical networks. The publisher of the Glasgow edition of Wooler’s trial issued thanks to ministers: “The Black Dwarf, of the existence of which we were ourselves wholly ignorant, has been thereby happily advertised”.61 Needless to say, its readership in Scotland was constant thereafter. The state trials in Scotland thus demonstrated some of the weaknesses and vulnerabilities of loyalism and provided opportunities for radicals – through their own defences, from the witness stand, and in the expanding press – to confirm and extend their analysis. This series of spectacular acquittals in both Scotland and England certainly prompted ministers to question the utility of state trials for sedition and seditious libels. Maconochie, for example, realised that the miscarriage of McKinlay’s trial “will be made the handle for much abuse and misrepresentation of the Servants of Government in this Country”.62 The trials across this period formed part of a process whereby ministers sought through legislation to control the forum of the press and through prosecution to police its content. Historians have demonstrated that the forum they provided for radical arguments and publicity  – notably Carlile’s celebrated reading of Paine’s Age of Reason in its entirety to ensure its cheap publication – meant that they were often counterproductive.63 Such ministerial unease was only partly caused by the ways in which trials influenced the content and circulation of the radical press. As important in the Scottish context were the ways in which the press itself had shaped and compromised the conduct of the trials themselves. The press had an especially close relationship to occurrences in court in the case of Andrew McKinlay. The confusion of the Lord Advocate’s political and legal roles had seen him quote in Parliament an illegal oath at the root of an alleged conspiracy in Scotland. In the debate on the suspension of Habeas Corpus on 26 February 1817, he stood in Parliament to deliver his maiden speech which painted an alarming picture of the state of Scotland. The publications which had tended to bring the government and governing institutions into contempt and the numerous petitions for

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reform were linked together into “a settled system […] for inflaming the discontented and distressed into open violence”. This in itself justified his having taken further actions, by which he had uncovered the “secret conspiracy”, which was connected with the disaffected in England and “widely extended in Scotland and not confined to Glasgow”.64 His reading of the oath during this speech was a dramatic moment and was doubtless intended to be so. His speech was very widely reported in the press. Maconochie, however, had pledged to be able to bring trials on the basis of his discoveries. In the event, his very reading of the oath and its release into the public sphere undermined his ability to prosecute. Most spectacularly the testimony of a key witness, James Finlayson, was fatally undermined by his statement that “if I had not seen the oath in a newspaper, I could not have remembered a word of it”.65 Such blunders stood alongside a more generalised unease that the tribunal of public opinion was setting the parameters of and prejudging likely criminal trials. In the immediate aftermath of the Peterloo Massacre, for example, Eldon, the Lord Chancellor, became increasingly adamant about the need to communicate more effectively the ministerial message. Having outlined what he believed was a faultless defence of the Manchester magistrates he urged the Home Secretary: “This should be laboured in the Press, for the contrary is inculcated with such incessant & such mischievous Industry, that the prosecutions on account of this Manchester Meeting will otherwise be completely written down long before they can be tried.”66 Both of these ministerial concerns impacted on the treason trials held in 1820. In questioning the authenticity of one of the treasonable addresses attested to by a witness, Jeffrey inaugurated a discussion about the McKinlay case, seeking to throw some doubt on the accuracy of the witness’s recollections in a world of widely-circulating print.67 Jeffrey was unsuccessful but increasing sensitivity to these problems had already framed the trials. Ahead of each sitting the Lord President repeated a strict prohibition on reporting: […] no part of the proceedings on this trial, (and more especially the speeches of the counsel,) and no part of the evidence be published, till this and all the trials, in this and the other counties included in this Commission,

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be brought to a conclusion, otherwise, the severest penalties that this Court can inflict will be pronounced against them. It is essential to justice; for it is in vain that witnesses are shut up, if they can read, the next day in the newspaper, what has been said by others in Court.68

With the fiasco of 1817 at the front of their minds, the new Crown lawyers and members of the Scottish bench were concerned from the start both to prevent the world of print from infecting the proceedings and to ensure an “authentic” record by the dispatch of a proper short-hand writer from London. Such a monopoly on interpretation of the trials would allow them to dictate the version of the “Conspiracy & Rebellion” that was transmitted to posterity: “especially as the hope of a great and formidable faction is to discredit & undervalue it as much as possible”.69 Certainly, the aim of ministers and Crown lawyers was still to provide a salutary lesson and “to influence not a particular county, but the whole of Scotland”. They were far more aware, however, of the potentially counterproductive effects of over-zealous prosecution and, in particular, of unfavourable publicity.70 Similar prohibitions on the reporting followed at later trials (including one for blasphemous libel in 1824, where Jeffrey again defended the accused).71 The official report of the treason trials did not appear until 1825, five years after the commission had completed its work.

V In comparison to the state trials of the 1790s, those between 1817 and 1820 in Scotland provided fewer opportunities for direct confrontation between radicals and the state. While lay voices were largely silenced within the courtroom, however, they were not completely mute. The unsettling and (possibly deliberately) disruptive testimony of certain witnesses in 1817 as well as the jubilation both inside and outside the courtroom on news of acquittals still constituted considerable local victories. The radical press, until 1819 at least, completed the circuit and ensured that state trials continued to feature within radical narratives. Indeed, the success of the radical press in turning ministerial defeats to account as

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well as the increasing challenges of prosecuting speech and writing in an expansive world of print helped to reshape ministerial approaches to and definitions of political crime by 1820. A focus on state trials as the sites for a Manichean confrontation between two contenders – radicals and “the state” – obscures other groups who could make effective use of the political opportunities the trials provided. Such approaches unconsciously echo radicalism’s “vocabulary of political exclusion” and can serve to reproduce a binary caricature of more complex political contests.72 In Scotland, with a bar divided along party lines, criminal trials and state trials in particular provided numerous opportunities for counter-theatre, albeit of a different type. Whigs used these trials to publicise and to work through ideas they had developed in the press, to present a Whig history of liberty and stake some claims to be the tutelary and responsible leaders of reform opinion. At their hands, along with Whig persecution in the 1790s, these trials became part of the nineteenth-century foundation myth of Scottish liberalism, the training ground on which the providential deliverers of Scotland from the yoke of Toryism perfected their art.

Notes 1. See, especially, James Epstein, Radical Expression: Political Language, Ritual, and Symbol in England, 1790–1850 (Oxford, 1994), 29–69; idem, “‘Our Real Constitution’: Trial Defence and Radical Memory in the Age of Revolution”, in Re-reading the Constitution: New Narratives in the Political History of England’s Long Nineteenth Century, ed. James Vernon (Cambridge, 1996), 22–51; John Barrell, Imagining the King’s Death: Figurative Treason, Fantasies of Regicide (Oxford, 2000). 2. Alex Tyrell and Michael T.  Davis, “Bearding the Tories: The Commemoration of the Scottish Political Martyrs of 1793–94”, in Contested Sites: Commemoration, Memorials and Popular Politics in Nineteenth-Century Britain, ed. P. A. Pickering and A. Tyrell (Aldershot, 2004), 25–56; Michael T.  Davis, “Prosecution and Radical Discourse during the 1790s: The Case of the Scottish Sedition Trials”, International Journal of the Sociology of Law, 33 (2005), 148–58; David S. Karr, “‘The Embers of Expiring Sedition’: Maurice Margarot, the Scottish Martyrs

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Monument and the Production of Radical Memory across the British South Pacific”, Historical Research, 86 (2013), 638–60; Gordon Pentland, “The Posthumous Lives of Thomas Muir”, in Liberty, Property and Popular Politics: England and Scotland, 1688–1815. Essays in Honour of H. T. Dickinson, ed. Gordon Pentland and Michael T. Davis (Edinburgh, 2015), 207–23. 3. Sunday Herald, 1 August 2015. 4. William Cobbett, The Parliamentary History of England, from the Earliest Period to the Year 1803, 36 vols (London, 1806–20), XXX: 1300, 1563. 5. Parliamentary Register, 10 March 1794 [appendix], XXVIII: 492. 6. Henry Cockburn, Examination of the Trials for Sedition which have hitherto occurred in Scotland, 2 vols (Edinburgh, 1888), I: 76–7. 7. Cockburn, Examination, II: 220–1. For a more nuanced analysis of the Whigs in 1790s Scotland see E. V. Macleod, “The Scottish Opposition Whigs and the French Revolution”, in Scotland in the Age of the French Revolution, ed. Bob Harris (Edinburgh, 2005), 79–98. 8. Kevin Gilmartin, Print Politics: The Press and Radical Opposition in Early Nineteenth-Century England (Cambridge, 1994), 124. 9. Michael Lobban, “From Seditious Libel to Unlawful Assembly: Peterloo and the Changing Face of Political Crime, 1770–1820”, Oxford Journal of Legal Studies, 10 (1990), 307–52; Philip Harling, “The Law of Libel and the Limits of Repression, 1790–1832”, Historical Journal, 44 (2001), 107–34. 10. Gordon Pentland, Spirit of the Union: Popular Politics in Scotland, 1815– 1820 (London, 2011), 39–44. 11. C.  J. Green, Trials for High Treason, in Scotland, under a Special Commission, held at Stirling, Glasgow, Dumbarton, Paisley, and Ayr, in the year 1820, 3 vols (Edinburgh, 1825) [hereafter Trials for High Treason], III:. 490–1; Pentland, Spirit, 110–15. 12. The Crown remitted the part of the sentence that dictated the body be quartered, National Archives [hereafter TNA], Home Office (Scotland) Criminal Entry Books, HO 104/5, Lord Sidmouth to Sheriff Deputies of Lanarkshire and Stirlingshire and Lord Provosts and Magistrates of Glasgow and Stirling, 23 and 25 August 1820, ff. 341–2, 353–4. 13. John Clive, Scotch Reviewers: The Edinburgh Review, 1802–1815 (London, 1957). 14. William A.  Hay, The Whig Revival 1808–1830 (Basingstoke, 2005); T.  E. Orme, “The Scottish Whig Party, c. 1801–1820” (unpublished PhD dissertation, University of Edinburgh, 2013).

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15. For the political and intellectual contribution of the Review, see especially B.  Fontana, Rethinking the Politics of Commercial Society: The Edinburgh Review 1802–1832 (Cambridge, 1985). 16. British Library [hereafter BL], Holland House Papers, Add MS 52181, Francis Jeffrey to John Allen, 22 December 1809, f. 12. The occasion of the letter and the cause of much controversy was Jeffrey’s review of a pamphlet Short Remarks on the State of the Parties at the close of the year 1809 in Edinburgh Review, 15 (1810), 504–21. 17. Hay, Whig Revival, 54–62; Pentland, Spirit, 9–12. 18. Henry Cockburn, Memorials of his Time (Edinburgh, 1856), 301–2. 19. [John Allen], “Parliamentary Reform”, Edinburgh Review, 28 (1817), 126. 20. TNA, Home Office Correspondence (Scotland), HO 102/28, Alexander Maconochie to Lord Sidmouth, 21 May 1817, f. 135. 21. Trial of Alexander McLaren and Thomas Baird, before the High Court of Justiciary, at Edinburgh, on the 5th and 7th March 1817, for Sedition (Edinburgh, 1817), 94. 22. BL, Mackintosh Papers, Add MS 78767, Francis Jeffrey to James Mackintosh, 22 January 1820, f. 102. 23. Trials for High Treason, I:. 241–2, see also I: 455–7. 24. Robert Saunders, “Chartism from Above: British Elites and the Interpretation of Chartism”, Historical Research, 81 (2008), 463–84. 25. Cockburn, Memorials, 325. 26. State Trials, XXXIII: 74. 27. BL, Holland House Papers, Add MS 52181, Francis Jeffrey to John Allen, 9 April 1817, f. 94. 28. State Trials, XXXIII: 93. 29. State Trials, XXXIII: 285. 30. For an excellent analysis of the relationships between written and spoken language and politics for this period see Olivia Smith, The Politics of Language, 1791–1819 (Oxford, 1984). 31. State Trials, XXXIII: 6–14. 32. Ibid., XXXIII: 41, 84–6. 33. Trial of Alexander McLaren and Thomas Baird, 100–3. 34. State Trials, XXXIII: 71–4, 96. 35. Cockburn, Examination, II: 186. 36. State Trials, XXXIII: 100; [Allen], “Parliamentary Reform”, 126–50. 37. State Trials, XXXIII: 83, 105. For an illuminating discussion linking petitioning and contract theory see Steve Poole, Politics of Regicide in England, 1760–1850 (Manchester, 2000), 7–17.

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38. Trials for High Treason, II: 264. 39. Gordon Pentland, Radicalism, Reform and National Identity in Scotland, 1820–1833 (Woodbridge, 2008), 7–25. 40. Michael Fry, “The Whig Interpretation of Scottish History”, in The Manufacture of Scottish History, ed. Ian Donnachie and Christopher Whatley (Edinburgh, 1992), 72–89. 41. N. T. Phillipson, The Scottish Whigs and the Reform of the Court of Session, 1785–1830 (Edinburgh, 1990). 42. Parliamentary Debates, 22 June 1804, II: 787–817; G. W. T. Omond, The Lord Advocates of Scotland, 2 vols (Edinburgh, 1883), II: 209–12. 43. State Trials, XXIII: 571. 44. Parliamentary Debates, 20 June 1817, XXXVI: 1078–81. 45. For the Lord Advocate’s defence see Parliamentary Debates, 27 June 1817, XXXVI: 1250–2. 46. Parliamentary Debates, 10 February 1818, XXXVII: 268–83. 47. TNA, Court of King’s Bench: Notes concerning Searches in the Baga de Secretis for Treason Cases, KB 33/8/5, B. Gibson to P. Dealtry, 2 June 1820. 48. Trials for High Treason, I: 92. 49. Fry, “Whig Interpretation”, 72–89. 50. Cockburn, Examination, II: 221–2. 51. Gordon Pentland, “The Debate on Scottish Parliamentary Reform, 1830–32”, Scottish Historical Review, 85 (2006), 102–32. 52. Peter Mackenzie, Old Reminiscences of Glasgow and the West of Scotland, 2 vols, 3rd edn (Glasgow, 1890), I: 155. 53. TNA, Home Office Correspondence (Scotland), HO 102/34, Charles Hope to William Rae, 23 January 1821, f. 32. 54. See, for example, the leading article “On the Late Trials”, Scotsman, 26 July 1817. 55. Gilmartin, Print Politics, 11–64; Black Dwarf, 10 March 1819. 56. Gilmartin, Print Politics, 115. 57. Niel Douglas, An Address to the Judges and Jury, in a Case of Alleged Sedition, on 26th May, 1817, which was Intended to be Delivered before Passing Sentence (Glasgow, 1817). 58. See, for example, Morning Chronicle, 28 July 1817. 59. “Triumphs of the People”, Hone’s Reformists’ Register, 9 August 1817. 60. “Ministerial Artifices Defeated in Scotland”, Black Dwarf, 30 July 1817. 61. Cited in Gilmartin, Print Politics, 123.

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62. TNA, Home Office Correspondence (Scotland), HO 102/28, Alexander Maconochie to Lord Sidmouth, 20 July 1817, f. 268. 63. Harling, “Law of Libel”, 107–34. 64. Parliamentary Debates, 26 February 1817, XXXV: 709–10, 728–30. 65. State Trials, XXXIII: 622. 66. Devon Record Office, Addington Papers, 152 M/C1819/OH86, Lord Eldon to Lord Sidmouth, 20 September 1819. 67. Trials for High Treason, I: 376–84. 68. Ibid., I: 121. 69. TNA, Home Office Correspondence (Scotland), HO 102/33, William Rae to Henry Hobhouse, 23 June 1820, f. 138 and HO 102/34, Charles Hope to William Rae, 23 January 1821, ff. 32–3. 70. Trials for High Treason, III: 483. 71. “Trial of James Affleck, for Blasphemous Publications”, Edinburgh Annual Register, 19 vols (Edinburgh, 1810–28), XVII: 127–9. 72. Gareth Stedman Jones, “The Language of Chartism” in The Chartist Experience: Studies in Working-Class Radicalism and Culture 1830–1860, ed. James Epstein and Dorothy Thompson (London, 1982), 13.

Bibliography The National Archives Home Office Correspondence (Scotland), HO 102, 104 King’s Bench, KB 33/8/5

British Library Holland House Papers, Add Ms 52181 Mackintosh Papers, Add Ms 78767

Devon Record Office Addington Papers, 152M Black Dwarf Edinburgh Annual Register

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Edinburgh Review Hone’s Reformists’ Register Morning Chronicle Scotsman Sunday Herald Niel Douglas, An Address to the Judges and Jury, in a Case of Alleged Sedition, on 26th May, 1817, which was Intended to be Delivered before Passing Sentence (Glasgow, 1817). C. J. Green, Trials for High Treason, in Scotland, under a Special Commission, held at Stirling, Glasgow, Dumbarton, Paisley, and Ayr, in the year 1820, 3 vols (Edinburgh, 1825). Thomas Jones Howell (ed.), A Complete Collection of State Trials and Proceedings for High Treason and other Crimes and Misdemeanours, 33 vols (London, 1809–1828). Parliamentary Debates Parliamentary Register Trial of Alexander McLaren and Thomas Baird, before the High Court of Justiciary, at Edinburgh, on the 5th and 7th March 1817, for Sedition (Edinburgh, 1817). John Barrell, Imagining the King’s Death: Figurative Treason, Fantasies of Regicide (Oxford, 2000). John Clive, Scotch Reviewers: The Edinburgh Review, 1802–1815 (London, 1957). William Cobbett (ed.), The Parliamentary History of England, from the Earliest Period to the Year 1803, 36 vols (London, 1806–20). Henry Cockburn, Memorials of his Time (Edinburgh, 1856). Henry Cockburn, Examination of the Trials for Sedition which have hitherto occurred in Scotland, 2 vols (Edinburgh, 1888). Michael T. Davis, “Prosecution and Radical Discourse during the 1790s: The Case of the Scottish Sedition Trials”, International Journal of the Sociology of Law, 33 (2005), 148–58. James Epstein, Radical Expression: Political Language, Ritual, and Symbol in England, 1790–1850 (Oxford, 1994), 29–69. James Epstein, “‘Our Real Constitution’: Trial Defence and Radical Memory in the Age of Revolution”, in Re-reading the Constitution: New Narratives in the Political History of England’s Long Nineteenth Century, ed. James Vernon (Cambridge, 1996), 22–51. Michael Fry, “The Whig Interpretation of Scottish History”, in The Manufacture of Scottish History, ed. Ian Donnachie and Christopher Whatley (Edinburgh, 1992), 72–89.

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Kevin Gilmartin, Print Politics: The Press and Radical Opposition in Early Nineteenth-Century England (Cambridge, 1994). Philip Harling, “The Law of Libel and the Limits of Repression, 1790–1832”, Historical Journal, 44 (2001), 107–34. William A. Hay, The Whig Revival 1808–1830 (Basingstoke, 2005). David S.  Karr, “‘The Embers of Expiring Sedition’: Maurice Margarot, the Scottish Martyrs Monument and the Production of Radical Memory across the British South Pacific”, Historical Research, 86 (2013), 638–60. Michael Lobban, “From Seditious Libel to Unlawful Assembly: Peterloo and the Changing Face of Political Crime, 1770–1820”, Oxford Journal of Legal Studies, 10 (1990), 307–52. Peter Mackenzie, Old Reminiscences of Glasgow and the West of Scotland, 2 vols, 3rd edn (Glasgow, 1890). G. W. T. Omond, The Lord Advocates of Scotland, 2 vols (Edinburgh, 1883). T. E. Orme, “The Scottish Whig Party, c. 1801–1820” (unpublished PhD dissertation, University of Edinburgh, 2013). Gordon Pentland, “The Debate on Scottish Parliamentary Reform, 1830–32”, Scottish Historical Review, 85 (2006), 102–32. Gordon Pentland, Radicalism, Reform and National Identity in Scotland, 1820–1833 (Woodbridge, 2008). Gordon Pentland, Spirit of the Union: Popular Politics in Scotland, 1815–1820 (London, 2011). Gordon Pentland, “The Posthumous Lives of Thomas Muir”, in Liberty, Property and Popular Politics: England and Scotland, 1688–1815. Essays in Honour of H.  T. Dickinson, ed. Gordon Pentland and Michael T.  Davis (Edinburgh, 2015), 207–23. N.  T. Phillipson, The Scottish Whigs and the Reform of the Court of Session, 1785–1830 (Edinburgh, 1990). Robert Saunders, “Chartism from Above: British Elites and the Interpretation of Chartism”, Historical Research, 81 (2008), 463–84. Gareth Stedman Jones, “The Language of Chartism” in The Chartist Experience: Studies in Working-Class Radicalism and Culture 1830–1860, ed. James Epstein and Dorothy Thompson (London, 1982), 3–58. Alex Tyrell and Michael T. Davis, “Bearding the Tories: The Commemoration of the Scottish Political Martyrs of 1793–94”, in Contested Sites: Commemoration, Memorials and Popular Politics in Nineteenth-Century Britain, ed. P.  A. Pickering and A. Tyrell (Aldershot, 2004), 25–56.

10 “Some Examples Should Be Made”: Prosecuting Reform Bill Rioters in 1831–32 Steve Poole

In the autumn of 1831, just one year after dealing decisively with the wave of agricultural risings that ripped through rural southern England in the name of Captain Swing, Lord Grey’s fledgling Whig administration faced another serious outbreak of popular disorder. This time, however, it was urban-based and carried out not in defiance of government but in support of it; specifically, Grey’s determination to force parliamentary reform upon a House of Lords which, on 8 October, prompted a constitutional crisis by rejecting it. The association between Swing, the Reform Bill riots, the second French Revolution, and the eventual passing of the Reform Acts has been debated thoroughly by historians and it is generally agreed that, if nothing else, the conflagrations at Bristol and Nottingham made the necessity of police reform undeniable.1 As the High Sheriff of Derby put it to Home Secretary Lord Melbourne following two days of disorder there, “the whole ineffective system of the

S. Poole (*) Faculty of Arts, Creative Industries and Education, University of the West of England, Bristol, UK e-mail: [email protected] © The Author(s) 2019 M. T. Davis et al. (eds.), Political Trials in an Age of Revolutions, Palgrave Histories of Policing, Punishment and Justice, https://doi.org/10.1007/978-3-319-98959-4_10

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Corporation, Magistracy and Police should be renovated, either by opening the Corporation to the respectable inhabitants generally or by admitting the authority of the county magistrates into the Borough”.2 Concentration on the urgency and impact of state reformation has left Melbourne’s judicial response to the reform riots less fully discussed, despite the calling of two special commissions and a clear determination to deliver swift exemplary sentences. Local specificities mitigated against any uniform policy of repression, but by April 1832 at least 259 prisoners had been hauled before a variety of courts on charges ranging from arson, demolition and grand larceny to riot, assault and petty theft. Seven were hanged and forty-three transported. It may be objected that these were not strictly “political trials”, for the defendants had no formal connection with the movements to which they were rhetorically linked. For newspapers like the Bristol Gazette, the political crisis “was seized on by those who did the mischief as an opportunity for committing crime, for we are prepared to show that those who were the practical rioters and incendiaries were not what are generally called the Towns People, but … a class of miscreants who neither care nor cared anything about Reform”.3 But this is to reduce the politics of reform to the literal campaign for a middle-class franchise, its most overt expression perhaps, but a self-limiting definition that misses much. Clearly there was no co-ordinated plan of insurrection, but the riots did share common features. The property of local elites was targeted, prisons liberated, constables and magistrates assaulted, and the chattels of the wealthy either expropriated or burned. The language of “reform” here was broad. The Nottingham rioter, Joseph Shaw smashed a bedstead in John Musters’ country house because, “he thought it a pity that Musters should have bedsteads and him none”. A Yeovil mob which broke into the house of the attorney, Francis Robins, did so while “making a great noise and bawling out ‘Reform’!”; while in Bristol, Christopher Davis, who would later die on the scaffold, hoisted his hat onto his umbrella, “as if it were a cap of liberty”, and toasted the destruction of the New Gaol. “Now, damn, won’t we have reform?” he demanded, “This is what ought to have been done years ago … I have drank some of the wine of the Mansion House; some of the feast which had been prepared for Sir Charles Wetherell, and what a shame it is that he should feast while so many of

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the poor are starving”.4 This was a stab at “reform” that went way beyond calls for the greater accountability of parliament to middle-class property owners.

I The first town to erupt was Derby where the premises of several property-­ owning anti-reformers were attacked and damaged on 8 October, as news arrived of the Lords’ rejection. When magistrates tried to calm things by arresting two ringleaders, the crowd marched on the town gaol, freed everyone in it, then turned on the county gaol. In the consequent gunfight, two rioters were wounded and an onlooker shot dead. A number of gentlemen’s windows were shattered by stones and order was not restored for two days, by which time a surgeon assisting the constables had been fatally wounded by a flying stone and a fifteen year-old boy had been killed by Hussars.5 Trouble broke out in Nottingham the following day, beginning, as at Derby, with stone-throwing against the property of anti-reformers then escalating into attacks on buildings beyond the borough jurisdiction. The first was Musters’ house, Colwick Hall, then Nottingham Castle, seat of the county’s unpopular Lord Lieutenant, the Duke of Newcastle, William Lowe’s silk mill at Beeston, and Wollaton Park, home of Lord Middleton.6 A day later, members of the Tory corporation at Tewkesbury were pelted as they processed to dinner at the Swan Inn; troops were summoned and the Riot Act read.7 At Loughborough an anti-reforming clergyman was chased through the streets and his rectory sacked along with the premises of a Tory grocer named Daulby. Rioting then spread to Mansfield, where more windows were broken.8 After a week of relative calm, trouble shifted to the less likely small market towns of Blandford, Sherborne and Yeovil. The immediate cause this time was a by-election for the county constituency, narrowly and controversially won by the anti-reform candidate. Prominent landowners and several attorneys who ran the Tory campaign were targeted and at least two borough justices assaulted. “It was so bad”, reported the mayor, “that the military were compelled to skirmish the mob and recourse to

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blank cartridges,” and several people received sabre wounds.9 It was a similar picture at Sherborne, where Tories, Justices of the Peace and the Earl of Digby came under attack, twenty houses were pillaged and “the yeomanry were dreadfully beaten”.10 At Yeovil magistrates were besieged at the Mermaid Inn and cavalry were again called upon. John Phillips of Montacute House reported fierce fighting in the town because of the “very bad disposition of all of the lower orders”, the soldiers being “obliged to fire a few pistol shots”. They “only used the flat sides of their swords but they charged them several times in the streets”.11 By far the most serious disturbances took place in Bristol between 29 and 31 October. The immediate cause this time was the arrival of the city’s Tory recorder, Sir Charles Wetherell, a staunch opponent of the Bill, to preside over the assize. In the riots that followed, two sides of the city’s most prestigious residential property, Queen Square, were ruined along with the gaols, toll houses and the Bishops’ Palace, and thousands of pounds worth of property destroyed. Several hundred people were killed, mostly as a result of ruthless military intervention on the final day. The pattern established at several other rioting towns, of special constables either failing to enrol or refusing to act, had now been repeated with the most devastating consequences.12 Moreover, crowds in the neighbouring city of Bath unexpectedly obstructed orders to send the county Yeomanry to Bristol. The Captain of the Bath troop was trapped in the White Hart Inn by a crowd who broke all the windows, both there and at the adjacent Guildhall, and confiscated the horses.13 Fears were voiced in several towns that bonfire night would become a rallying point for further outbreaks, and at Worcester the Town Hall, the Bishops’ Palace, several shops and a number of private houses were attacked. A handful of arrests were effected but once again the cavalry were called upon to repulse the crowd.14 Stern retributory measures were now inevitable but the authorities faced a number of difficulties. At Derby very few arrests had been made during the disturbances and magistrates were forced to admit that “none of those concerned … have yet been taken into custody; the persons of many of them are known but no information sufficient to apprehend them can as yet be obtained”.15 John Phillips tried to encourage informers at Yeovil but was met by a wall of silence and concluded: “I fear we shall get no evidence against the leaders”.16 Arrests had been made at

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Mansfield but “none of whom it was either desirable to make an example or of whose conviction for rioting we could be very confident. Fearful of the consequences of acquittals, we have preferred liberating the prisoners on bail to running the risk of appearing to be defeated”. Indeed, none of those arrested at Mansfield were ever prosecuted, partly because witnesses failed to come forward and partly because it was felt locally expedient to heal social wounds through forbearance rather than terror.17 At Nottingham, on the other hand, where Portland had hoped to see “nothing but the strong arm of the law rigorously exerted”,18 the main problem was jurisdictional. The principal targets chosen by the crowd, including the Castle, lay beyond the borough boundaries and were therefore the responsibility of the county magistrates. Troops could not legally act on instructions from borough Justices of the Peace within the county jurisdiction, and county magistrates had been thin on the ground.19 The ability of the crowd to slip between jurisdictions had embarrassed the borough bench and they were anxious to “wipe off that stigma of ­culpable supineness”, with which they had been saddled by rounding up the culprits. This, too, proved difficult. Plenty of arrests had been made by the military at Colwick Hall but reliable witnesses were scarce, while at Nottingham Castle, “as the mob were in complete possession of the building for an hour or two entirely by themselves and it having for some time been totally uninhabited, it will make it extremely difficult to procure the evidence of anyone who can confirm an accomplice”, reflected the chair of the Nottinghamshire bench, Lancelot Rolleston.20 After a month of investigation, he conceded, “the only evidence we have been able to obtain arises from what the parties have themselves confessed”.21 But while Whig-controlled authorities like Derby and Nottingham were accused by some anti-reformers of dragging their feet, energetic reprisals from the Tory Corporation of Bristol were never in doubt. Here the disturbances had taken place in central locations before huge crowds of witnesses and, although roundly criticised for their failure to act decisively during the riots, arrests were being made “hourly” within a few days.22 However, as discussion began over the most effective judicial response to the Nottingham and Derby riots in the uneasy peace between their suppression and their terrible resumption at Bristol, some of the more minor cases were quickly brought before local sessions. Seven

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Loughborough rioters were tried by the county sessions within a week on a range of charges, including the looting of Daulby’s shop. Jurors were instructed to put aside whatever opinions they may hold about “the excitement that had been produced by the rejection of the reform bill”, for rioting was not a political issue. Nevertheless, magistrates admonished Daulby for provocatively displaying blue ribbons in his window, an action “very absurd and foolish”, and showed no interest in referring cases to the higher courts. All seven defendants received relatively short prison sentences.23 Judicial process for the Worcester rioters was even more speedy. Rather than wait for the county sessions, town magistrates put their prisoners immediately before the borough’s summary courts, limiting possible outcomes. The first eighteen defendants, including one who had been arrested, released and then re-arrested for persistent rioting, were simply bound over and discharged with a warning from the mayor. Eight more were found to be strangers, so two were punished under the vagrancy laws and put to hard labour for a month and the rest – who claimed they had been innocent by-standers – were discharged “with a suitable admonition”. More serious charges were entertained only against three prisoners, including William Biddle, “a sort of captain of the gang”, who were accused of assaulting constables with iron palings. Here heavy fines of between 40 shillings and 5 pounds were levied which, being well beyond the pockets of the defendants, allowed the imposition of summary gaol sentences by default. The local Journal was gratified that the mayor and magistrates had “acted wisely and humanely” for, as one Justice of the Peace later put it himself: “I question much if it was the intention of the mob to do ought more than break a few windows”.24 No such forbearance marked the opening of the Nottinghamshire county sessions. Rolleston used the occasion to characterise the crowd as “regular thieves and depredators… who have taken advantage of a time of political excitement” and urged the jury to “co-operate” for “the peace of the county must be maintained”. To this end, a single prisoner, twenty-­ one year-old Stephen Clarkson, was put to the bar. Clarkson, the only one of twelve men then in custody for the misdemeanour of riotous behaviour to plead not guilty, was sentenced to a year in gaol for throwing stones at the military. His crime may have been relatively minor, Rolleston ruled, but it was “the duty of the magistrates to show that such

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offences could not be committed with impunity”.25 Waiting for either the next sessions or the assize to try the remaining prisoners would incur a delay until March however, and Lord Middleton, for one, thought that inadvisable. Amongst the prisoners were “several of infamous character who are known to possess considerable influence with the lower orders”, he cautioned. “I am as unwilling … to proceed to unnecessary extremities but … if some example is not immediately made of the leaders of these tumults and burnings, there can be no peace or tranquillity about Nottingham.”26 Here, pressure began to grow in the second week of October, for a special commission to be sent to the town. The Duke of Newcastle also demanded an “independent” inquiry, chaired by himself, into the failure of the Nottingham magistrates and accused Sir Thomas Denman, Attorney General and, coincidentally, one of the city’s two Whig members of parliament, of “screening” them. Melbourne politely held Newcastle at bay, but many other anti-reformers, expressing no confidence in the county administration, began lobbying ministers for a tough and speedy response. Sir Charles Wetherell, Bristol’s Tory recorder, publicly accused the government, and the “mute” Denman in particular, of “conniving” over the riots. But Denman would not be rushed. Nottingham was now perfectly peaceful, he retorted, and commissions like those ordered to counter Swing, were justified only “when riots were taking place in many areas of the country”. The assize, he thought, would be sufficient and, in any case, “the people who perpetrated the outrages have not been taken up so if a Commission were sent down, there would be no-one to be tried”. Wetherell’s motion for a Nottingham commission was lost on 13 October.27

II The unprecedented scale and horror of the Bristol riots little more than a fortnight later changed everything. Surely now, reasoned the Tory Evening Standard, a commission was inevitable, for although the Derby and Nottingham riots had been “palliated as trifles by the supporters of ministers in the House of Commons”, there could be no question of trying the

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Bristol rioters at the regular assize, for that would mean bringing Wetherell back into the city to preside over a disgraced aldermanic bench. Prisoners from Derby, Nottingham and Bristol should surely now be tried under a single commission.28 This was not to be, however, and even at Bristol there were dissentient voices from magistrates anxious to defend their ancient right to preside over the city’s court of oyer and terminer. Although both the 1685 “Bloody Assize” and the trial of Jacobite rioters in 1714 provided precedents for their exclusion, the town clerk urged the Home Office to absolve magistrates of any “mark of indignity” by which they might feel “prejudicially effected in their position in respect of their fellow citizens”. This was somewhat ironic, given a 3000-signature petition from the city then in the hands of ministers, demanding an inquiry into the magistrates’ ineptitude. But Melbourne assured the town clerk that they were being excluded only because the majority of defendants were accused of attacks on corporation property, making the magistrates an interested party. Some radicals – the Bristol barrister, W. P. Taunton among them – pressed not only for the exclusion of the magistrates but of local jurors as well. In Taunton’s view, prisoners were unlikely to get a fair trial as it stood because damages to riot victims were legally recoverable from “all the inhabitants of the county of Bristol, so that not a juryman can be found in the county who will not be liable to pay money by reason of the excesses of the person… he is to try and against whom he therefore may naturally be presumed to feel a strong prejudice”. Nor should soldiers be drafted in for the commission’s protection, he argued. If the civil power was insufficient, the commission should be moved to an adjacent county for no judge should be “sitting to dispense the law under the shadow of bayonets”.29 But the need for a commission at Nottingham, where slow progress in preparing cases was still holding things up, remained unproven. Melbourne accepted that it was “better some delay should take place than that the evidence should be got together hastily”, but he pressed Rolleston for a list at least of potential capital charges. In this atmosphere of uncertainty, many prisoners were taken into custody without specific charges being made known to them. “All examinations are strictly private,” complained the Nottingham Review, “The most profound secrecy is observed as to the numbers, names and offences of the prisoners. Even the relatives of some of the parties in custody do not know with what they are charged”.30

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By early December, Denman had reviewed copies of the Nottingham depositions taken so far and concluded that although government was willing to bear the costs of prosecution, “We do not think these persons sufficiently important nor their share of guilt sufficiently great to require a Special Commission”. Witnesses had been found to place four men – Adam Wagstaff, George Hearson, William Hitchcock and George Beck – as active rioters at Beeston Mill but evidence was inconclusive and Beck, who the authorities hoped to convict as a leader for allegedly carrying a “pole with ribbons tied to it like a flag” and shouting orders, claimed he had been coerced to join the mob. Denman believed they might still be indicted for arson and riotous demolition but fall-back charges should also be laid for simple rioting. The absence of reliable independent witnesses for the attacks on Wollaton Park and Nottingham Castle were an additional concern and, although stronger cases had been built against prisoners taken for the assault on Colwick Hall, Denman wanted magistrates to push some of them into turning King’s evidence. “Accomplices should be induced to become witnesses”, he urged, for this would assist in countering lingering uncertainties about alibis and mistaken identity. “There will be every possible effort made to aid the escape of the prisoners from justice, especially by alibis”, predicted the Crown solicitors, and certainly, alibis were a worry, given offences committed out of town at night, and suspects apprehended some time afterwards. Specifically, the only material evidence so far secured against a man named Charles Berkins for arson at Colwick was offered by a seventeen year-old fellow prisoner, Samuel Binks, who claimed to have witnessed it. Denman wanted him convicted but conceded, “there is no evidence against Berkins unless Binks is admitted as a witness”.31 Not until 20 December was a separate commission for Nottingham finally agreed.

III The first capital charges against reform rioters were therefore heard before the Bristol Commission on 2 January, under Lord Chief Justice Nicholas Tindal and Justices Taunton and Bosanquet. In an opening charge to the Grand Jury, Tindal explained the rationale for appointing

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a special commission. The charges of “tumultuous outrage, violence and rapine” were so serious that it was not practical “to leave the investigation and punishment of such charges to the ordinary course and stated periods of the administration of criminal judicature within this city”. On the contrary, it was “of the first importance to make it known to all, that enquiry and punishment follow close upon the commission of crime, in order that the wicked and ill-disposed may be deterred by the dread of the law from engaging in similar enormities.”32 Personally directing the prosecution of the ninety-six male and eight female prisoners on the calendar, Denman clarified the Crown’s agenda. No mitigating distinction would be made between passive and active members of the crowd and no notice taken of ameliorating motive or intention. There would be no “bystanders”, for “even if they were present, and never lifted a hand or uttered a word, they are all equally guilty – this is the law  – this must be the law of every civilised country, and will be made awfully known in this city”.33 Forty-two men and women were charged with simple theft or receiving stolen goods. Much of this “plunder” was of comparatively small value – as likely to have been picked up from the ground where it had been dropped as maliciously looted  – but opportunism would not be considered mitigating circumstances and neither would youth. A good number of the accused were young boys, many of them already known to the authorities. James Bentley, a youth indicted for rioting at the Mansion House, was recognised by a night constable and by John Gibbons, the magistrates’ clerk, as soon as he was arrested. He had been “frequently examined at the Council House” and Gibbons was “quite certain of his person”. Easily identified old offenders like Bentley were, unsurprisingly, liable to be treated as ringleaders by examining magistrates. A number of depositions were accordingly prepared, naming Bentley as a rioter “at the head of the mob”, who “appeared to have considerable influence” or “appeared to be one of the principal leaders”. Realising perhaps that the benefit of the doubt was unlikely to be extended in his favour, Bentley offered no defence, submitted a letter of mitigation instead and received a relatively light sentence of six months’ imprisonment.34 It was not a consideration of his tender years that saved him from greater punishment but his act of “atonement”, a policy made crystal clear by Justice Taunton

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as he handed down two-year sentences to Bentley’s equally youthful confederates. “You stand a striking instance of the power of the law’s justice over disorder”, Taunton told him, “It is absolutely necessary that examples should be made in the present instance”.35 The Crown’s attitude was expressed equally clearly by Denman with respect to the sixty-five prisoners charged with breaking and entering, arson, looting and aggravated riot. “We think it necessary that some examples should be made for each of these crimes”, he advised; indeed those responsible should be, “charged with the highest crimes which the evidence can bring home to them”.36 In this atmosphere, the execution of four defendants as instigators was unsurprising. The Crown concentrated its fire on a small number of men whom it regarded as the most culpable, starting with William Clarke, a man seen and recognised many times as an active rioter, carrying an iron bar, breaking into buildings, distributing goods and drink, and urging the crowd to follow him. He proudly displayed prison keys taken as a souvenir, broadcast his intention of leading the mob to the Bishops’ Palace, and made no attempt to deny his identity. “My name is William Clarke, commonly called Bill Clarke”, he had announced, brandishing the keys at the Black Horse inn. “This is the Father of all of them”, he said of one enormous key, “and there shan’t be a bloody gaol standing in a fortnight”.37 Crown solicitors regarded Clarke as the most culpable prisoner they had and would not co-operate with his attorney, the radical lawyer C. H. Walker, over repeated requests that the defence be allowed to see either advance copies of the evidence or a copy of the jury panel. Walker complained loudly about it but, as expected, Clarke was indicted as the ringleader of the mass assault on the new gaol and capitally convicted.38 Four more were selected for execution  – Thomas Gregory, Joseph Kayes, Richard Vines and Christopher Davis. The first three of these were tried as part of a small group against whom a collective charge of destroying houses in Queen Square had been prepared and much of the evidence produced against them was circumstantial. Vines, convicted for taking part in the sacking of the Reverend Charles Buck’s house, had no attorney to represent him and he offered little in his own defence.39 Only afterwards did Vines’ conviction begin to look unsafe. As several acquaintances who had not been called during the trial now came forward on his

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behalf, a solicitor took up his case and petitioned for a reprieve. Although twenty-one years old, Vines had the mental capacity of a child, it was objected, and was better known as “foolish Dicky or silly Dick”. Melbourne was sympathetic and he was eventually spared.40 Thomas Gregory made no defence in court but his conviction too was questioned. Although identified and convicted on the evidence of two witnesses for stealing candlesticks and carrying a lighted brand, it was later alleged that one of them held a grudge against Gregory and a new witness swore that although he had seen Gregory on the scene, he had entered and left the house empty-handed. If true, it was argued, his culpability was reduced. But the Crown’s sympathy was exhausted and Gregory’s petition was denied.41 Joseph Kayes was convicted for burning two houses after witnesses identified him as one of many in the building when it was fired. No conclusive evidence was produced that he had either set the blaze or stolen any property but since the identificatory evidence was strong, Kayes was left for hanging. He, too, believed himself the victim of malicious prosecution and loudly protested his innocence from the dock: “I am not guilty! My wife! My children! Murder! I am murdered!” but to no avail.42 The most extraordinary capital conviction was that of Christopher Davis, a lower-middle-class property owner given to outspoken anti-­ establishment rhetoric, especially when drunk, who was recognised by large numbers of witnesses at every stage in the riots. Although capitally convicted for destroying buildings, no evidence was produced that he had physically done so – only that he had repeatedly and loudly urged the crowd on and used inflammatory language against the bishops, the Corporation and the prison system. In the words of prosecuting counsel, Davis was to be convicted for “not assisting in preserving peace, not watching to identify persons, not in preserving property but in encouraging the rioters, not only by his presence but by his language and gestures”. Indeed, it was particularly reprehensible for “a man of his station in life, possessing property, and a father to a family” to be urging the rioters on and cheering their accomplishments. Davis was left for execution as an example to his class, in a city whose middling orders had failed to do their duty in supporting the civil power. The commission was quite determined to claim his scalp.43

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IV The Nottingham commission opened on 4 January under justices Littledale and Gazelee while testimonies were still being gathered. For both prosecution and defence, therefore, there was little time for preparation but a defence committee had been hurriedly set up to co-ordinate the collection of counter-testimony and alibis. Given a paucity of credible witnesses, the Wollaton Park and Castle cases were not expected to occupy the court for long, and Crown solicitors believed the Beeston and Colwick hearings would be the most demanding. Treasury Solicitor George Maule was too busy at Bristol to oversee the Nottingham commission as well so he engaged a Nottingham attorney, William Edward Tallents, to manage the prosecutions and keep him updated with their progress. Tallents was an intelligent choice, not only for his local knowledge but for his previous experience managing the Swing special commissions for both Hampshire and Berkshire. His brief was once again to select the most watertight cases for prosecution but he was concerned that the Crown had insufficient witnesses.44 “The attorney for the prisoners talks of having in all 200 witnesses”, Tallents warned Maule. This was may have been an exaggeration but hostility to the commission in the town was certainly an issue and Tallents was worried that unless the Crown provided sufficient maintenance and protection for their own witnesses, they “would either be tampered with or possibly carried off”. Indeed, the clerk to the magistrates deserved a reward, he thought, for “the risk he has run in procuring information”.45 The activities of the defence committee were an irritation and Tallents suspected them of manufacturing spurious alibis. Since there had been much less looting at Nottingham than at Bristol, capital charges of arson were preferred to larceny and the Crown began with Beeston Mill. But when four Beeston Mill cases were unexpectedly lost, he notified Maule: There was a good deal of clapping of hands on the verdict being given and if the juries do not look most strictly into the truth or falsehood of the alibis which it is probable most of the remaining prisoners will set up, there will be no reasonable expectation of any convictions for Colwick, as we have already had two acquittals upon alibis quite inconsistent with the statements of the prisoners when under examination.46

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Prosecution cases were far from watertight. First to be tried was George Beck, the man accused of carrying a makeshift flag and shouting orders to the mob. As expected, the defence rested on coercion but magistrates had taken Denman’s advice and persuaded another suspect, Henry Dodsley, to give more persuasive evidence for the crown in exchange for immunity. Dodsley did as he was bid but could produce no proof that Beck had actually set fire to anything and, although the jury returned a guilty verdict, they recommended him to mercy.47 George Hearson was convicted on evidence from Dodsley and a sixteen year-old boy named Charles Slater, both of whom claimed they had seen him at the Mill. Hearson insisted he had witnesses to prove he was elsewhere, but as he had not known the details of the charges against him in advance, he had not called them.48 The principal witnesses against John Armstrong were Dodsley, once again, and a man named Owen MacGawley, an erstwhile friend who claimed Armstrong had openly boasted his exploits as they drank together in MacGawley’s home town of Derby. Defence counsel believed MacGawley a hostile witness with a score to settle but could not prevent Armstrong being convicted and condemned. Another prisoner persuaded to turn King’s evidence in exchange for immunity was Samuel Binks. With his own prosecution for firing Colwick Hall now shelved, Binks swore he had seen Charles Berkins take off his shirt in an upstairs room, set light to it and then use it to spread the fire. Two further witnesses confirmed they had seen Berkins later in the street without a shirt but this was pretty thin evidence and Berkins had strong alibis. Despite two of Binks’ own brothers taking the stand, and calling Binks “a habitual liar”, Berkins was convicted.49 Defence counsel worked hard to undermine the credibility of witnesses like these, several of whom had only come forward after reward money was offered, but five prisoners were nevertheless left for execution when the commission closed. Four were for Beeston Mill; George Beck, George Hearson, George Shelton and John Armstrong. The other was Charles Berkins for Colwick Hall. Not one of the sixteen men arrested by the military at Wollaton were convicted and, for Nottingham Castle, just two men stood trial and both were discharged.50 In Tallents’ view, the failure of the Crown to procure sufficiently reliable witnesses meant that, “some have escaped who ought to have been

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convicted”. In a final note to Maule, he confided: “There were some strange acquittals, especially that of John Forman, an active leader who set up an alibi in great variance with the account he had given of himself on his examination”.51 Forman was one of those taken near Wollaton, arrested by a constable on orders from the Hussars as they galloped past him on the Derby Road, and then lodged in the county gaol for nearly five weeks before being released on bail. Unsure whether he had been formally charged, he remained in town for another three weeks before being told the constables intended to re-arrest him. He accordingly turned himself in and was immediately charged with assisting the attack on Beeston Mill, on the newly gathered evidence of a hostile fellow prisoner with whom he had fought while previously remanded. At his trial, the extraordinarily imprecise nature of Forman’s initial committal for “the affair at Colwick, the Castle or Beeston!!!”, as the Review put it, was exposed by the defence, and a number of new witnesses produced to confirm his alibi. His acquittal was perhaps not so very strange after all.52 Legal proceedings against the Derby prisoners began very differently, at the borough’s Epiphany sessions. Here, announced the recorder, John Balguy, a distinction would be made between the “successful” attack on the borough gaol (a felony by which prisoners had been released and serious damage done) and the thwarted attack on the county gaol (counted as a misdemeanour). The borough gaol incident would, therefore, take priority but even here a distinction would be made between those with a “consenting mind” and those present through “idle curiosity”, and all these cases, together with seven for simple riot, would be adjourned until the following month. Such distinctions, which effectively reduced the number of prisoners facing serious charges to a handful and then restricted proceedings to a minor court, negated any possibility of creating severe and fast-track examples. It would certainly set Derby apart from the approach taken by the Nottingham and Bristol commissions.53 In February, however, Balguy became concerned that putting prisoners before a jury of borough ratepayers, “many of them having, perhaps, been sufferers in the late riots”, would only prompt suspicions that they had not received a fair trial so he removed all cases to the assize and released everyone on bail.54

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Justices of the Peace at the Dorset county sessions did not share Balguy’s conciliatory attitude. In the words of Charles Wollaston, sentencing four Sherborne men to two years with hard labour, “You were part of the mob committing these acts of violence, you participated in the proceedings of that day, and for all of the events of that day committed by the mob, you are each responsible”. Sentences of up to a year were likewise handed down to five men for riot and assault at Blandford but, once again, the prosecution was forced to rely on crowd members who could be persuaded to turn informer and at least one case had to be abandoned when a witness was discredited as a rioter.55 A further eight prisoners were remanded to the Easter assize.

V Late January’s most pressing business, however, concerned the fate of the men condemned to death at Bristol and Nottingham. At Bristol the Corporation’s liberal critics campaigned energetically to have the sentences commuted and launched a 10,000-signature clemency petition. “When we look at the sentences”, reflected the Mercury on the Commission’s seemingly random selection of convicts for the gallows, “we certainly do wonder at their injustice, and we cannot help reiterating our ignorance of the principle on which they have been regulated”.56 Particularly stringent appeals were made on behalf of Christopher Davis and of William Clarke, whose lawyer presented fifteen “exculpatory” affidavits to the Home Office and a personal petition signed by 600 residents of the condemned man’s home parish. But, when a solitary reprieve arrived for Richard Vines on grounds of his “idiocy”, the fate of the other four was effectively sealed.57 “We had hoped that a well-timed mercy would have been shown to reconcile the violently opposed interests of the rich and poor”, commented the Poor Man’s Guardian; “but in future, the latter will look upon the former as their worst enemies”.58 The disgraced Bristol bench was now keen to draw in its horns, the mayor appealing to Melbourne that, “if the purposes of justice should be considered as ­satisfied, it would be highly desirable that no further commitments should now take place”.59

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Efforts were also made to save the Nottingham condemned. A petition from the town praying for a reprieve attracted 25,000 signatures and another, after the death warrant had been sent down, a further 17,000.60 Berkins, whose conviction had swung largely on an unreliable identification and his appearance in town without a shirt, pressed his case with a string of affidavits. Binks’ testimony was dismissed by Berkins’ counsel as a self-interested fabrication and, if some of Berkins’ alibis had been disbelieved, “the severity of the law is such that the friends of an innocent man may be driven to perjury to rescue him from danger”. Melbourne acquiesced and Berkins’ sentence was commuted to transportation along with Shelton’s who had been convicted on the questionable evidence of a fifteen year-old youth.61 Beck, Hearson and Armstrong were less fortunate. In an appeal for clemency, Hearson produced affidavits from two witnesses he would have called at his trial if only he had known what the charge against him would be. They confirmed they had met him collecting souvenir rubble in the Castle ruins and that it would not have been possible for him to have walked to the Mill from there in time to set it alight. This appeal was rejected.62 Armstrong certainly had a case and he produced a slew of affidavits against Owen MacGawley, testifying to the “spite and malice” of the witness against him and that MacGawley had been seen “rejoicing up and down in Derby how he had done Armstrong”. Even on the appointed day, there were hopes in the town that Armstrong’s appeal would succeed and his execution was delayed by two and a half hours to allow the London mail to arrive. The concession “gave general satisfaction”, recorded the Sherriff, but Armstrong’s fate was settled and he was hanged alongside Beck and Hearson on 1 February.63 Cases now remained outstanding only at the Derby, Dorset and Somerset Easter assizes. Some Derbyshire Tories, still smarting from Melbourne’s decision not to send an independent commission to the county, feared Balguy’s determination to ensure fair trials for rioters was really just a ruse to engineer their acquittal. “I am not one honoured by a summons, nor do I believe any of my neighbours are, I mean those who are called Tories”, complained one when he was not called to the Grand Jury. “There may be two ends answered by this marked omission, first an insult to the Tories … and second a jury who may ignore the bills against the rioters if they possibly can do so”.64 Certainly, the Derby assize was

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run on markedly different lines to either of the commissions. Two prisoners, John Abell and William Atchinson, were convicted of stealing from private houses and sentenced to transportation. But these were the harshest sentences pronounced. Judge James Parke repeated Balguy’s charge to the January sessions that a thwarted attack on the county gaol was not necessarily felonious and ruled the freeing of prisoners from the borough gaol a discrete offence punishable by a one-year prison sentence or, in exceptional circumstances, transportation. Clearly, there would be no further capital examples made at Derby. Eleven men were prosecuted for the forcible liberation of a single prisoner in the borough gaol, William Keeling. Since Keeling was a convicted felon, ruled Parke, his liberation became an act of felony. But much uncertainty arose over the positive identification of the eleven accused. One prosecution witness very confidently identified several of them but this was Owen MacGawley, notorious as the man whose questionable evidence at Nottingham had already sent John Armstrong to the gallows. The defence showed that MacGawley had been an active rioter himself and suggested his only motive in coming forward as an informer now was pecuniary. He had been ostracised by people he knew at Derby for “going about the country swearing mens’ lives away” and had been lodging voluntarily at the gaol for his own protection. Parke disapproved of his “flippant manner” and wondered at the magistrates’ reliance on “bringing forward, as witnesses, characters not the most respectable”. Felony charges were consequently dropped and the defendants put back to the bar to be charged with the misdemeanour of simple riot but the defence objected. This was a new charge and the defendants should be allowed to traverse to the next assize to prepare a defence. Parke considered and then, in a final act of retreat, bound over and released all eleven. Three separate misdemeanours for riot were then heard but two defendants were acquitted and the other, a young man named Joseph Tunnicliffe, was discharged because the prosecution felt the five months he had been locked up awaiting trial was punishment enough.65 This left cases from Yeovil, Bath, Blandford and Sherborne. Nineteen men stood trial for the Yeovil riots and four were capitally convicted for damaging private houses. These sentences were commuted, three to prison terms and one  – against Henry Earle who had been identified

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smashing at a front door with a bludgeon  – to transportation for life. Edward Dodge, convicted for plundering a cellar was also transported. Capital convictions were recorded and commuted against three Bath rioters, one of whom, William Richards, joined Earle and Dodge in the hulks.66 The Dorset cases were more controversial. Although all of the Sherborne rioters were acquitted, two prisoners charged with criminal damage at Blandford were selected for harsher treatment. George Long and Richard Bleathman, already serving sentences from the county sessions for riotous assault, were put back into the box and capitally convicted by Justice Gazelee, fresh from his work on the Nottingham commission. Long and Bleathman were sentenced to death and emphatically told by Gazelee to expect no mercy. The prospect of two final public executions for a riot considerably less devastating than those in either Nottingham or Bristol threw Blandford into a state of shock. Memorials and petitions praying for a commutation were sent to Gazelee and Melbourne from more than 900 people in the town and surrounding district in an effort to prevent their becoming what one anti-reform paper called, “a sacrifice upon the altar of that political Moloch – Democracy”. After several stays of execution, both sentences were eventually commuted to transportation for life.67

VI This essay has examined the trials of provincial urban rioters in 1831–32 from a collective perspective. Clearly, local authorities did not adopt identical strategies in putting culprits before the courts and the recourse to special commissions at Bristol and Nottingham would seem to have been driven less by the requirements of judicial majesty than by dysfunctional local circumstances. The aldermanic bench at Bristol, much less Wetherell as recorder, could hardly be permitted to judge capital felonies in which their own failings as peacekeepers were sure to be raised by the defence. This was less of a concern at Nottingham where although magistrates were permitted by charter to sentence prisoners to death at the sessions, in practice they never did. The problem here was that individuals were charged with offences both within and beyond the city jurisdiction and

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cases might not fall discretely within the remit of the county or the city. By sending a commission to Nottingham, the government greatly simplified the judicial process while emphasising its serious national consequence. As Tindal put it at the opening of the Bristol commission, the government had invoked “the solemn nature of a Special Commission, as issued for the speedier and more complete administration of justice”. As organs of the central state, brought down to make severe capital examples of seven selected defendants, the commissions effectively separated the executions from any notion of local responsibility.68 The riots certainly exposed unequivocally the urgent need for provincial police reform in the provinces. While military assistance of varying strength was required for the restoration of order in most of these outbreaks, trouble on the streets of the capital was restricted to a few instances of stone throwing and comfortably dealt with by the newly formed Metropolitan Police.69 However defective their police, magistrates at Loughborough, Mansfield and Worcester nonetheless exercised their discretionary powers by confining punishment and redress to local courts, eschewing judicial terror in the interests of healing social wounds. These were legal manoeuvres requiring a broad interpretation of the distinction between complicity, active participation and spectatorship. Derby’s riots, the first to erupt, were no minor affair and the light touch of their handling at law would be surprising were it not for the length of time it took the authorities to put defendants before the assize. Six months after the event, there was perhaps little taste for reviving discontent with exemplary sentences, as the acquittal of the eleven men charged with breaking open the town gaol would seem to suggest. Had a commission been sent to Derby in January, as some suspected it would, the outcome might have been quite different.

Notes 1. George Rudé, “English rural and urban disturbances on the eve of the First Reform Bill, 1830–1831”, Past & Present, 37 (1967), 87–102; M. Brock, The Great Reform Act (London, 1973), 248–54; J. Phillips, The Great Reform Bill in the Boroughs: English Electoral Behaviour, 1818–

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1841 (Oxford, 1992); J.  Stevenson, Popular Disturbances in England, 1700–1870 (London, 1979), 218–28; Nancy Lopatin-Lumis, “Public disorder and parliamentary reform: rioting and the Reform Act of 1832”, Selected Papers, Consortium on Revolutionary Europe, 1750–1850, 24 (1994), 210–23; Nancy D.  Lopatin, Political Unions, Popular Politics and the Great Reform Act of 1832 (Basingstoke, 1999). 2. The National Archives (TNA), Home Office (HO) HO 52/12, Charles Colville to Melbourne, 14 October 1831, ff, 431–3. 3. Bristol Gazette, 3 November 1831 4. Bristol Mercury, 17 January 1832; TNA, HO 40/28, Information of Catherine Shea, 15 November 1831; Trials of the Persons Concerned in the Late Riots before Chief Justice Tindal (Bristol, 1832), 35, 41; TNA, ASSI 6/3 Information of Isaac Lyons, 9 November 1831; Information of Samuel Shipstone, 14 November 1831; Information of John Harvey, 9 January 1832; British Museum, Add Ms. 27,790, f. 188; Examiner, 13 November 1831. 5. Derby Riots. The Trial of the Eleven Persons Charged with Breaking Open the Gaol of the Borough of Derby and Liberating the Felons and Other Prisoners (Derby, 1831); TNA, HO 52/12, “Statement of the Circumstances and the Time of the Attack on the County Gaol, 26 October 1831”; Joseph Strutt to Lord Melbourne, 10 October 1831, f. 467. 6. For a detailed account of the Nottingham riots see John Beckett, “The Nottingham Reform Bill Riots of 1831”, Parliamentary History, 24 (2005), 114–138. For the wider local context see also Malcolm I.  Thomas, Politics and Society in Nottingham, 1785–1835 (Oxford, 1969), 217–237. 7. Worcester Herald, 15 October 1831. 8. Nottingham Review, 14 October 1831. 9. “Dorset”, in D. R. Fisher (ed.), The History of Parliament: The House of Commons, 1820–1832 http://www.historyofparliamentonline.org/volume/1820-1832/constituencies/dorset (accessed 12 August 2017); Sherborne Mercury, 24 October 1831; Public Ledger, 28 October 1831; TNA, HO 52/12, John Smith to Melbourne, 19, 20 October 1831, f. 13–15; George Chard to Melbourne, 29 October 1831, ff. 36–9. 10. TNA, HO 52/12, Sir Henry Digby to Melbourne, 20 October 1831, ff. 17–19; Rev. John Parsons to Melbourne, 22 October 1831, ff. 21–24, 25 October 1831, f. 33.

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11. Sherborne Mercury, 24 October 1831; Taunton Courier, 26 October 1831; TNA, HO 52/15, J. Phillips to Lord Bath, 23 October 1831, ff. 580–1. 12. See Chapter 10, “This is the Blaze of Liberty! The Burning of Bristol in 1831”, in Steve Poole and Nicholas Rogers, Bristol From Below: Law, Protest and Authority in a Georgian City (Woodbridge, 2017), 325–361; Mark Harrison, Crowds and History: Mass Phenomena in English Towns, 1790–1835 (Cambridge, 1988); Jeremy Caple, The Bristol Riots of 1831 and Social Reform in Britain (New York, 1990). 13. Public Ledger, 2 November 1831. 14. Worcester Journal, 10 November 1831; Worcester Herald 12 November 1831; Courier, 8 November 1831; TNA, HO 52/15, Henry Clifton and John Williams to Lord Melbourne, 1 November 1831, ff. 46–9; TNA, HO 40/29, anon to Melbourne, n.d. (October), f. 298. 15. TNA, HO 52/12, Lord Vernon to Melbourne, 21 October 1831, ff. 440–1. 16. TNA, HO 52/15, J. Phillips to Lord Bath, 23 October 1831, ff. 580–1; TNA, HO 52/15 John Goodford to Lord Melbourne 27 October 1831, ff. 606–8. 17. TNA, HO 52/15, Duke of Portland to Melbourne, 16 October 1831, ff. 315–6; TNA, HO 41/10 Melbourne to Portland, 18 October 1831; Nottingham Review, 21 October 1831. 18. TNA, HO 52/15, Duke of Portland to Melbourne, 16 October 1831, ff. 315–6 19. Beckett, “Nottingham Reform Bill Riots”, 124–5. 20. TNA, HO 52/15, Lancelot Rolleston to Melbourne, 28 October 1831, ff. 288–9. 21. TNA, HO 52/15, Rolleston to Melbourne, 19 November 1831, ff. 337–8. 22. TNA, HO 40/28, J. Gardner to Sir Francis Freeling, 2 November 1831, ff. 64–5; TNA, HO 42/29, P O’Farrell to Melbourne, 5 December 1831, ff. 490–492. 23. Leicester Chronicle, 22 October 1831. 24. Worcester Journal, 10, 17 November; TNA, HO 52/15, Charles Ridout to Melbourne, 6 November 1831, f. 63. 25. Nottinghamshire Archives, Quarter Session minute book, QSM/1/42, 17 October 1831; Nottingham Review, 21 October 1831. 26. TNA, HO 52/15, Middleton to Lord Melbourne, 20 October 1831, f. 284.

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27. Evening Standard, 14 October 1831; Examiner 16 October 1831; TNA, HO 52/15, Rolleston to Melbourne, 2 November 1831, ff. 329-30A; TNA, HO 52/15, Duke of Newcastle to Melbourne, 3 November 1831, ff. 317–9. 28. London Evening Standard 3, 8 November 1831; Caple, Bristol Riots, 197–8. 29. HO 40/28, E.  Ludlow to J.  M. Phillips, 16 November, 2 December 1831, ff. 109–10, 133–4; HO 41/10, Melbourne to Ludlow, 3 December 1831, ff. 457–8; TNA, TS 11/415/1261, W.  P. Taunton to Sergeant Ludlow, 7 December 1831. 30. Concern about this local veil of secrecy as well as the practice of putting capitally indicted prisoners up for trial within days of their arrest would haunt the handling of the Nottingham commission for the next six months, producing a petition of complaint to parliament. TNA, HO 41/10, Melbourne to Rolleston, 29 October 1832, ff. 298–9; Thomis, Politics and Society in Nottingham, 236–4; Nottingham Review, 9, 23 December 1831; Evening Mail, 21 December 1831. 31. TNA, HO 40/28, evidence submitted to Crown Solicitors, 2 December 1831, ff. 383–99; TNA, HO 52/15, Maule to Phillips, 24 December 1831, ff. 344–5. 32. Charge Delivered to the Grand Jury of the County and City of Bristol by the Right Hon. Sir Nicholas Conyngham Tindal… (London, 1832). 33. Trials of the Persons Concerned in the Late Riots before Chief Justice Tindal… (Bristol, 1832), 2. 34. TNA, HO 40/28, Information of John W. Gibbons and John Hobbs, 15 November 1831, ff. 308–9. 35. Trials of the Persons Concerned in the Late Riots, 137. 36. TNA, HO 40/28, ff. 306–7, Denman to Mayor of Bristol 22 November 1831. 37. Evidence of Robert Trickey, Mary Anne Coper, Trials of the Persons Concerned, pp.4, 10; TNA, ASSI 6/3, Information of Mary King, 19 November 1831 and Robert Harding Trickey, 24 November 1831. 38. C. H. Walker, The Petition of William Clarke, Convicted at the Late Special Commission at Bristol… with Prefatory Observations (Bristol, 1832); TNA, TS 11/415/1261, C. H. Walker to G. Maule, 31 December 1831. 39. Trials of the Persons Concerned, p.115. 40. A number of petitions on Vines’s behalf were forwarded to the Home Office. See for example, HO 17/68, affidavits of William Earle, Richard Lessey, John Williams, William Merryfield, and Henry Davis.

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41. TNA, HO 17/69, Thomas Roberts to Sir Francis Denman, 24 January 1832. 42. Trials of the Persons Concerned, p.114; Incidents in the Life of Joseph Kayes who was Executed at the New Gaol (Bristol, 1832), 11. 43. Trials of the Persons Concerned, 105–112. 44. Carl J. Griffin, The Rural War: Captain Swing and the Politics of Protest (Manchester, 2012), 254–7. 45. Nottingham Archives, C/QA/CP/5/4/328, William Tallents to Thomas Godfrey, 8 January 1832; TNA, HO 52/19, Tallents to S M Phillips, 8 January 1832, f.88; TNA, TS 11/415/1261, Tallents to Maule, 6 January 1832; TNA, TS 11/1116/5736, Tallents to Maule, 15 January 1832. 46. TNA, TS 11/414/1260, Tallents to Maule, 11 January 1832. 47. TNA, TS 11/415/1261, Tallents to Maule, 8 January 1832. 48. Nottingham Review 13 January 1832. 49. Report of the Proceedings Against the Persons Charged with Burning Nottingham Castle, Firing Lowe’s Mill and Sacking Colwick Hall… (Nottingham: 1832); Nottingham Review 13 January 1832, 50. Report of the Proceedings; Nottingham Review 13 January 1832; TNA, HO 40/28, evidence submitted to Crown Solicitors, 2 December 1831, ff. 383–99. 51. TNA, TS 11/116/5736, Tallents to Maule, 15 January 1832. 52. Nottingham Review 13 January 1832. 53. Derby Mercury 18 January 1832. 54. Derby Mercury 8 February 1832. 55. Dorset County Chronicle 12 January 1832; Salisbury Journal, 16 January 1832. 56. Bristol Mercury, 17 January 1832. 57. C. H. Walker, The Petition of William Clarke. 58. Poor Man’s Guardian, 4 February 1832; A.  Layman, Narrative of Conversations held with Christopher Davis and William Clarke, who were Executed January 27th, 1832 (Bristol, 1832). 59. TNA, HO 40/28, Pinney to Melbourne, 21 January 1832, f. 209. 60. John F.  Sutton, The Date Book of Remarkable and Memorable Events Connected with Nottingham and its Neighbourhood, 1750–1850 (London, 1852), 431. 61. TNA, HO 17/64 Martin to Lord Melbourne, 4 February 1832. 62. TNA, HO 17/69, testimony of John Pearson and William Street, 25 January 1832.

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63. TNA, HO 17/64, Deposition of Rosamund Martin, 30 January 1832; Deposition of John Armstrong n.d.; TNA, HO 40/30, Thomas Moore to Lord Melbourne, 2 February 1832, ff. 286–7. For the executions see also Nottingham Archives, DD/275/3, Some Particulars of the Life, Trial, Behaviour and Execution of George Beck, George Hearson and John Armstrong… (Nottingham 1832), and The Nottingham Tragedy!!! (Nottingham 1832), 64. Derbyshire Archives, 239  M/F/8936, Godfrey Meynell to Henry Fitzherbert, 10 March 1832. 65. Derby Riots. The Trial of the Eleven Persons; Derby Mercury 21 March 1832; Evening Mail, 19 March 1832. 66. Sherborne Mercury, 9 April 1832; Bath Chronicle, 5 April 1832; Salisbury Journal, 9 April 1832; TNA, HO 27/18 English Criminal Registers, Somerset. 67. Salisbury Journal, 19 March 1832; Morning Chronicle, 17 March 1832; Dorset County Chronicle, 22 March 1832; Hampshire Advertiser, 5 May 1832. 68. Trials of the Persons Concerned, 9. 69. Stanley H. Palmer, Police and Protest in England and Ireland, 1750–1850 (Cambridge, 1988), 310–11.

Bibliography British Museum Add MS 27790

Derbyshire Archives FitzHerbert Papers

Nottinghamshire Archives Quarter Sessions, Clerk of the Peace Miscellaneous Papers Quarter Session minute book, QSM/1/42

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The National Archives Assizes, ASSI 6 Home Office papers, HO 17, 27, 40, 41, 42, 52 Treasury Solicitor’s papers, TS 11 Bath Chronicle Bristol Gazette Bristol Mercury Derby Mercury Dorset County Chronicle Evening Mail Evening Standard Examiner Hampshire Advertiser Leicester Chronicle London Evening Standard Morning Chronicle Nottingham Review Poor Man’s Guardian Public Ledger Salisbury Journal Sherborne Mercury Taunton Courier Worcester Journal Worcester Herald Charge Delivered to the Grand Jury of the County and City of Bristol by the Right Hon. Sir Nicholas Conyngham Tindal… (London, 1832). Derby Riots. The Trial of the Eleven Persons Charged with Breaking Open the Gaol of the Borough of Derby and Liberating the Felons and Other Prisoners (Derby, 1831). Incidents in the Life of Joseph Kayes who was Executed at the New Gaol (Bristol, 1832). A. Layman, Narrative of Conversations held with Christopher Davis and William Clarke, who were Executed January 27th, 1832 (Bristol, 1832). Report of the Proceedings Against the Persons Charged with Burning Nottingham Castle, Firing Lowe’s Mill and Sacking Colwick Hall… (Nottingham, 1832). Some Particulars of the Life, Trial, Behaviour and Execution of George Beck, George Hearson and John Armstrong… (Nottingham, 1832).

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John F. Sutton, The Date Book of Remarkable and Memorable Events Connected with Nottingham and its Neighbourhood, 1750–1850 (London, 1852). The Nottingham Tragedy!!! (Nottingham, 1832). Trials of the Persons Concerned in the Late Riots before Chief Justice Tindal (Bristol, 1832). C.  H. Walker, The Petition of William Clarke, Convicted at the Late Special Commission at Bristol… with Prefatory Observations (Bristol, 1832). John Beckett, “The Nottingham Reform Bill Riots of 1831”, Parliamentary History, 24 (2005), 114–138. M. Brock, The Great Reform Act (London, 1973). Jeremy Caple, The Bristol Riots of 1831 and Social Reform in Britain (New York, 1990). D.  R. Fisher (ed.), The History of Parliament: The House of Commons, 1820–1832, http://www.historyofparliamentonline.org/volume/1820-1832/ constituencies/dorset Carl J.  Griffin, The Rural War: Captain Swing and the Politics of Protest (Manchester, 2012). Mark Harrison, Crowds and History: Mass Phenomena in English Towns, 1790–1835 (Cambridge, 1988). Nancy Lopatin-Lumis, “Public disorder and parliamentary reform: rioting and the Reform Act of 1832”, Selected Papers, Consortium on Revolutionary Europe, 1750–1850, 24 (1994), 210–23. Nancy D. Lopatin, Political Unions, Popular Politics and the Great Reform Act of 1832 (Basingstoke, 1999). Stanley H.  Palmer, Police and Protest in England and Ireland, 1750–1850 (Cambridge, 1988). J.  Phillips, The Great Reform Bill in the Boroughs: English Electoral Behaviour, 1818–1841 (Oxford, 1992). Steve Poole and Nicholas Rogers, Bristol From Below: Law, Protest and Authority in a Georgian City (Woodbridge, 2017). George Rudé, “English rural and urban disturbances on the eve of the First Reform Bill, 1830–1831”, Past & Present, 37 (1967), 87–102. J. Stevenson, Popular Disturbances in England, 1700–1870 (London, 1979). Malcolm I.  Thomis, Politics and Society in Nottingham, 1785–1835 (Oxford, 1969).

Part II The North Atlantic World

11 Political Trials, Terror and Civil Society: The Case of the Revolutionary Tribunal in Paris, 1793–94 Mike Rapport

On 4 April 1794, during the trial of Georges Danton and his associates (2–5 April 1794), the public prosecutor of the Revolutionary Tribunal, Antoine Fouquier-Tinville, sent an alarmed letter to the Committee of Public Safety, one of the two governing committees during the Terror.1 The letter warned that Danton and his co-accused were noisily demanding sixteen witnesses. What particularly worried Fouquier was what would happen when this demand was rebuffed, as the defendants were already “appealing to the entire people” and “it is impossible to sketch out for you the agitation in people’s minds”.2 The eyewitness Villain d’Aubigny confirmed that the spectators’ shouts that Danton’s witnesses be heard scared the members of the tribunal.3 The result was a notorious decree extracted from the National Convention, disbarring from the proceedings any defendant who “resisted or insulted national justice”.4 The following day Danton and his associates (the “Indulgents”) were banned from the courtroom and condemned to death.

M. Rapport (*) School of Humanities, University of Glasgow, Glasgow, Scotland e-mail: [email protected] © The Author(s) 2019 M. T. Davis et al. (eds.), Political Trials in an Age of Revolutions, Palgrave Histories of Policing, Punishment and Justice, https://doi.org/10.1007/978-3-319-98959-4_11

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This episode reveals a friction within the workings of the central judicial body during the Terror of 1793–94. On the one hand, the Tribunal showed that it was acutely sensitive to public opinion, but, on the other hand, its proceedings were politically-driven, to the point of government intervention. This court was established by the Convention on 10 March 1793, during the crisis of war, factional strife, economic crisis and domestic opposition that threatened to tear the young French Republic apart.5 The Tribunal was composed of five judges, a twelve-member jury and a public prosecutor who was supported by two substitutes. The accused had no right of appeal and – at first – faced a range of penalties that were prescribed by the penal code of 1791 (and any subsequent laws), including imprisonment, deportation and death. The court’s purpose was to try cases of: …counter-revolutionary enterprises, all attacks against liberty, equality and the unity and indivisibility of the Republic, against the internal and external security of the state, of all conspiracies seeking to re-establish royalty or to establish any other authority hostile to liberty, equality and the sovereignty of the people…6

The Tribunal became the central judicial institution of political terror, standing at a juncture where the repressive apparatus of the revolutionary state came face-to-face with the public – in the guise of defendants and, as the episode during the prosecution of the Indulgents showed, the spectators. It was because the court directly engaged with the public that it was subject to contradictory pressures from both citizens and the state. This is true of all political trials. Since their first purpose is “the legal protection of the state”,7 they are pursued at the behest of the government – thus it is the organs of the state, from police spies on the ground right up to the central authorities, who identify those to be arraigned, and who (effectively) define their acts and their intentions as seditious or treasonous.8 Depending upon how robust and independent the legal system is, the government’s claims are either openly tested in court, or they are simply given the aura of legality by a trial in which the result is a foregone conclusion. In either case, since the prosecution has been instigated by the government there is always a political price to be paid for an

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acquittal, so few regimes can resist the temptation to exert influence on the proceedings. Such interference might include the kinds of direct intervention undertaken by the Convention in the trial of the Indulgents, ensuring that the presiding judges and officials were politically-reliable, packing the jury or imposing sanctions upon individual jurors and limiting the scope for mounting a defense, including the barring or intimidation of witnesses and restricting the timescale for each trial. In most of these respects, the differences between the Revolutionary Tribunal and the political trials in Britain were a matter of scale – and of human cost.9 Yet just as important to both was that the political trials were held in public and under the gaze of civil society at large. In France, the Convention had established the Revolutionary Tribunal partly in response to pressure from the militants of the Paris sections.10 Like other parts of western Europe, Britain and France had experienced the expansion of a critical, reading public accustomed to engaging in politics and to the clamour of debate. In France, “public opinion” had been critical in the emergence of opposition to privilege and royal authority prior to 1789, and then, in the absence of censorship, in the explosion in print culture, political clubs and societies during the Revolution. Public views on politics had been steadily infused with an oppositional, civic language that included such concepts as the nation, patrie (fatherland), popular sovereignty, reason, citizenship, and natural rights. To contemporaries, this “public opinion” was supposed to enjoy an authority independent of the state, a space within which the people freely gathered, wrote, published, discussed and engaged with ideas, passed judgment over good and bad taste and claimed its rights.11 In this context, the political trials held in Paris – and particularly those of political celebrities such as Marie-­Antoinette, the Girondins (the “moderate” republican opponents of the Jacobins), the left-wing Hébertists (of whom more later) and the Indulgents, were also battles for public opinion in a way the summary justice meted out by military commissions in rebel-infested areas were not. Yet there was a crucial difference between the French and British experience of political trials in the 1790s. The British trials were aimed at defending an existing political and social order, even if laws of sedition and treason were themselves hard to define. This meant that there were

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extant institutions and individuals – the King, the Lords, the Commons, for example, as well as the more abstract values that they were purported to uphold, such as British liberties, religion and the rights to property. Both prosecution and defence agreed on this basic point: at the trial of Thomas Hardy in October 1794, the defence counsel, Thomas Erskine, agreed with the Attorney General John Scott’s “praise which he bestowed on the law and constitution of England…which every good man must wish to hear”, while also taking the opportunity to “deplore the anarchy and calamities that prevailed in France”.12 The British treason trials were conservative in the strict sense of the term. In France, however, the new political order had yet to come into being. The “Jacobin” constitution, ratified by a referendum (the results of which were announced on 10 August 1793), was formally suspended by the Convention on 28 August. Subsequently, the meaning of the term “revolutionary” – as opposed to “constitutional”  – was clarified by Louis-Antoine Saint-Just in the Convention on 10 October 1793, when he persuaded the deputies to proclaim that the government would be “revolutionary until the peace”. “Revolutionary” meant extra-legal, working outside constitutional norms when the rule of normal civil law was dangerous to the very survival of the state. Saint-Just urged that, “In the light of the situation confronting the Republic, the constitution cannot be put into effect: it would be used to destroy itself.”13 The deputies to the National Convention, dominated as they were as a body by lawyers,14 were too immersed in the law to claim that the Revolutionary Tribunal was operating within normal constitutional and legal safeguards. This was why from 10 March 1793 the court was initially called the Extraordinary Criminal Tribunal. They took on Saint-­ Just’s meaning when they voted, on 30 October 1793, to rename the court the “Revolutionary Tribunal”.15 With the suspension of the constitution, the legal question arose as to what the political trials were supposed to be defending. As Carla Hesse has noted, the absence of a constitution meant that revolutionary justice had to define “crimes against the nation as crimes against the abstract attributes of an as-yet-to­be determined sovereign”. She notes the contrast with the modern-day French Penal Code, which defines crimes of treason as violent acts against the Republic’s democratic institutions. At first, the revolutionaries

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rebranded treason  – lèse-majesté  – as lèse-nation, but with the national institutions in flux, or yet to be created, the revolutionaries were compelled to define treason in relation to the values that were to underpin the new order when it emerged.16 This was why the decree establishing the Tribunal defined its remit in terms that included “all attacks against liberty, equality and the unity and indivisibility of the Republic” and any attempt to establish a government “hostile to liberty, equality and the sovereignty of the people”. This gave revolutionary justice a particular quality. At one level, it was, as Ronan Steinberg has suggested, an exercise in “transitional justice”. This began with the trial of Louis XVI between October 1792 and January 1793, an attempt to hold the monarch accountable to the law and to the people’s representatives. The King’s trial carried with it a promise of a new, stable republican order. It was not to be. What followed was not the rule of law and democracy, but repression: the purpose of the Terror was to transform French politics through the abuse of judicial norms.17 One strict definition of the term “transitional justice” presumes that the transformation from one regime to another has already taken place – the purpose of transitional justice being restoring order, achieving unity and punishing offences committed under the previous order. It is not about achieving the revolution or transition itself.18 Yet this was the purpose served by revolutionary justice: on 5 February 1794, Robespierre claimed that “in order to arrive at the peaceful reign of constitutional laws, we must finish the war of liberty against tyranny and safely cross through the storms of revolution”.19 The Revolutionary Tribunal’s role was not to settle the new order by reckoning with the pre-revolutionary past (it rarely, if ever, judged actions taken before 1789), but to hasten the transformation itself, a transformation, moreover, that was to take a Jacobin, republican shape. One of the purposes of the political trials – it will be argued here  – was to reshape the narrative of the more recent, revolutionary past to legitimise Jacobinism’s pursuit of its enemies and to prepare citizens for a republican future, however distant that may have been. Yet this attempt meant engaging with a public which was being storm-tossed in the revolutionary flux: if the constitution was suspended, then in what direction was the revolution to travel and, meanwhile, what shape would republican institutions and laws take? So as the Jacobin

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regime tried to impose its own direction and vision on the Revolution, it competed with different currents, each offering alternatives. This chapter will explore this problem by, first, discussing how the Tribunal attempted to reach opinion among a public that had grown accustomed to publicity in the legal process and to political debate. Secondly, it will analyse this publicity in more detail. Because the Tribunal occupied a position where the institutions of terror confronted and communicated with the public, the choice of detail and language in the printed material served particular purposes which sought, in a variety of ways, to reinforce both republican principles and the terror itself. Thirdly, it will investigate the public response to the Tribunal’s proceedings – reactions which, as one might expect, were not always those for which the magistrates or government might have hoped. In doing so, it will focus on the particularly fraught month of Germinal in the Year 2 – or March– April 1794. This is because, first, the archival sources for both the Tribunal’s printed publicity and reports on public opinion are particularly rich for these weeks and, secondly, in a reason that helps to explain the first, this revolutionary month saw, in rapid succession, the trials of the Hébertists and the Dantonists. The two political groups presented challenges to the Jacobin direction of the Revolution and both enjoyed, at least potentially, powerful public support. Thus Germinal was a pivotal month, and one that offers illuminating examples of how the Revolutionary Tribunal sought to engage with public opinion and how that public, aware of the alternatives to the Jacobin values and policies, reacted. As Colin Jones has suggested, if we are to understand fully the revolutionary struggles, we need to put the popular perspective into the analysis.20 And the friction suggested by the sources reveals much about the nature of the Terror and is suggestive of the interaction between political trials and civil society in general.

I The Revolutionary Tribunal publicised its hearings in two ways. Firstly, unlike ancien régime trials, its sessions were open to the public, which permitted journalists to report on the proceedings and the curious to

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watch, listen and then spread the word by mouth. Moreover, as the trials unfolded, the court’s charges and the judgments were read out loud in the streets near the Palais de Justice: on 3 Germinal Year 2 (23 March 1794), the police agent Perrier noted during the trial of the Hébertists (the left-­ wing opponents of the revolutionary government) that “a long list of charges against the conspirators was read out to the people on the street that leads to the lawcourts”.21 Yet word of mouth was not enough for the revolutionaries, who were well aware that oral testimony was ephemeral and, above all, open to distortion and falsehood.22 So, secondly, the court publicised its proceedings in print. It produced the Bulletin du tribunal révolutionnaire, which printed the proceedings, including the questioning of the witnesses and the accused, the arguments of both the prosecution and the defence and the judgment of the court. This newspaper was produced by a printer named Clément, whose shop was just opposite the Palais de Justice, in the Cour des Barnabites on the Île de la Cité. Providing a full account of the trials, the Bulletin was available by subscription – 30 numbers costing 4 livres in Paris and 5 livres in the departments.23 Given that, at the height of the Terror, this journal was produced almost daily, this involved a considerable expense and so was probably only bought by people with a professional interest, legal or political, in the cases – although its actual readership will almost certainly have been wider. So the Tribunal also freely distributed posters and pamphlets explaining its judgments and proceedings. The posters spelled out – often in considerable detail – the nature of the treasonous activity, the character and alleged motives of the accused and the legal reasoning behind the verdict and the sentence. The pamphlets came in two forms. There were, firstly monthly summaries that listed each case in chronological order. These were the Suite des Jugemens rendus par le Tribunal révolutionnaires, an ongoing, chronological list of the cases and judgments, each numbered in sequence and running on from the previous month’s bulletin. Secondly, there were individual pamphlets reporting on each trial. These carried much the same basic information as on the posters, but their format, namely unstitched folded sheets producing anything between a four-page leaflet to a more substantial pamphlet of twenty or thirty pages – occasionally more – gave them far more scope for expanding on the case, including the process by which the defendant was

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identified and arrested, the public prosecutor’s motives for arraigning the suspect, citations from the evidence (often at length), the arguments of the public prosecutor, followed by the verdict and the penalty, with quotations from the relevant articles of the law. The pamphlets and posters were far from neutral and nor were they full accounts: although the name of the presiding judge always appeared at the end, the lion’s share of space was taken up by the indictment and by the public prosecutor’s case against the accused. The defence appears little, if at all.24 The Revolutionary Tribunal’s printer, Bérard, produced these posters and the pamphlets from his print shop in the Grand Salle, next to the guard room of the Palais de Justice in Paris. His invoices show that his shop usually produced 3100 copies of each judgment – 400 in pamphlet form (in 4° format) and 600 hundred as posters, to be distributed and pasted up around Paris. This devotion of resources suggests that the Tribunal laid particular importance on the management of opinion in the capital, because order there was essential to the security of the regime. The remaining 2100 copies were posters, to be sent to the Commission des Administrations Civiles de Police et Tribunaux.25 Using this conduit implied that the nationwide distribution of the judgments would go through the civil and lower criminal courts  – both important public spaces at departmental and municipal level. An additional route used was through the commissions of agriculture and arts, and of commerce and food supply – organisations that had a nationwide reach.26 These forms of publicity were produced quickly. This and their free distribution potentially gave the posters and pamphlets an immediate impact that the Bulletin probably did not enjoy. The focus of this chapter will therefore be on these more ephemeral forms of print. This material was aimed at a public – at least in Paris and its immediate environs  – that had long been accustomed to witnessing and reading about the exercise of justice. Under the ancien régime criminal cases were held in camera, but sentences were published and given wide publicity. Sentences were read aloud outside the court buildings and the court’s arrêts (decisions or orders) would be printed as posters and as pamphlets of two to four pages in length. These would be sold by booksellers and the hawkers of print, the colporteurs. In the later 1780s, Louis-Sébastien Mercier described how these figures “yelled out and sold the sentences of

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criminals … [while the] posters are torn down the next day, to be replaced by others” – a remark on the rapid turnover of publicity that underscores the day-to-day exposure to print experienced by Parisians.27 Moreover, these arrêts became increasingly detailed, breaking with the traditional format (the narration brève, which provided just a brief statement of the crime, the verdict and the sentence) and offering instead the narration majeure, which also explained the judges’ reasoning and publication of which the crown made compulsory in 1788.28 These developments reflected the expansion of literacy, the availability of print and, with it, growth of the more critically-engaged public that wanted to be informed and convinced. From the courts’ perspective, such publicity was a means of showing that justice had been done, acted as a warning to others, and inflicted further shame on the convict (and conversely, after an acquittal, removed such infamy). Where a royal official had been condemned, it showed that the state could be trusted to police itself. Politically, the publication of judgments may have been a side-­ effect of the magistrates’ constitutional struggles with the crown, in which the Parlement’s remonstrances – legal objections to royal decrees – became part of the battle for the hearts and minds of the French public. Ambitious lawyers had developed the habit of publishing their briefs to satisfy a public demand for enlightened logic, laced with the fiery spice of courtroom drama. Some causes célèbres could give rise to briefs that enjoyed print runs of up to 20,000 copies.29 Legally-permitted journals such as the Mercure de France or the Journal de Paris made use of the arrêts in their reporting, often with a reassuring narrative that, however, horrible a crime, the criminal always faced justice. There was also a sensationalist sub-culture of canards  – reports of criminal judgments and executions that may have been based on the official arrêts, but added details, including visuals such as woodblock or engraved images of the crime and the punishment.30 Thus the publicity issued by the Revolutionary Tribunal drew heavily on ancien régime habits. Moreover, in opening its proceedings to public scrutiny, the revolutionary court was following ancien régime precedents in another way: it ensured that justice was a public spectacle. In cases where the death penalty was to be imposed the initial intention of the revolutionaries had been to ensure that both the suffering of the

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c­ ondemned and its impact on onlookers were minimised. This was the initial purpose behind the guillotine, first used on 25 April 1792. Yet the process of guillotining developed a ritual of its own, from the departure of the condemned from prison to the shouts of “Vive la République! Vive la Nation!” as the blade fell. As Daniel Arasse has suggested, there was “a theatre of the guillotine” no less potent than the horrifying agonies of ancien régime executions.31 Under both the Terror and the absolute monarchy, moreover, the visual impact of the rituals and violence of execution was preceded – or accompanied – by the announcement, by voice and in print, of the judgment of the court. The official publicity, in other words, was an integral part of  – or a supplement to  – the spectacle of public execution both under the ancien régime and during the Terror. Michel Foucault has argued that the torments of the death penalty had to be spectacular in order to reassert the power of the sovereign against those who had wounded or offended it.32 If so, then for both regimes the official explanation of the case became an essential part of the spectacle, the explanatory narrative or gloss on the ‘theatre’ of judicially-imposed suffering and death. The print emanating from the court itself gave particular authority and meaning to the visual spectacle.33

II Despite these continuities, an analysis of the content of the publicity produced by the Revolutionary Tribunal shows that it used the printed material in ways very different from its ancien régime predecessors. This can be discerned in two ways. First, the Tribunal differentiated itself from old regime courts by emphasising the public nature of its proceedings and the role of a jury. Its monthly digest of trials – the Suite de Jugemens – opened each summary with the standard line “Jugement rendu en audience publique”, thereby repeatedly emphasising the importance of the public nature of the Tribunal’s hearings. They also stressed the role of the jury (“sur la declaration du juré de jugement”). Both phrases are repeated formulaically, but they emphasised the role of the public as audience and as participants, distancing the proceedings from the more opaque manner of ancien régime courts.34 Both public trials and trial by jury were

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reforms introduced by the Constituent Assembly, culminating in the introduction of a new Penal Code in 1791. Underpinning the Revolution’s extensive legal reforms were the principles of popular sovereignty and the idea that civic-minded citizens would directly participate in the administration of justice in their communities.35 The role of citizens as jurors connected with the idea that the proceedings would also unfold under the watchful gaze of the sovereign people. With citizens watching – and reading about – the political trials, and others acting as jurors and witnesses, the revolutionaries could claim that the Tribunal’s proceedings were transparent. Publicity and public vigilance would prevent the exercise of self-interest and corruption: there had to be transparency between citizen and citizen, and between citizens and the government.36 Secondly, the Tribunal’s publicity sought to educate citizens in Jacobin republicanism  – civic virtue, self-abnegation, patriotism, good morals and an attachment to the sovereignty of the people  – by highlighting their opposites: corruption, self-interest, immorality and conspiracy against the people. It also, in the process, legitimised the regime’s identification and pursuit of its alleged enemies. Examples from the printed materials held among the Tribunal’s papers are legion, but one example from Germinal Year 2 laden with this kind of detail was the judgment against Euloge Schneider, condemned to death on 12 Germinal 2 (1 April 1794). Schneider was a German priest who had arrived in France in the summer of the 1791, after being dismissed from his post as a literature professor at the University of Bonn for his revolutionary sympathies. In Strasbourg, he wove his way into local politics and, on the outbreak of the war in April 1792, became the civil commissioner for the army of the Rhine. It was in this capacity that he collided with Saint-Just and Lebas, the Convention’s representatives on mission, who had him arrested on 15  December 1793 and transferred to Paris, where he languished in prison until his trial and condemnation on 1 April.37 Schneider offered an embarrassment of riches in the types of behaviour and immorality that were meant to be the opposite of Jacobin values. The main charge was of fomenting revolt by abusing his authority through excessive measures and exactions against the population, the better to

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alienate them from the Republic, and by corrupting their morals. Six of the twelve pages in the pamphlet were devoted to Fouquier-Tinville’s indictment. The defence does not appear at all, the rest of the pages being taken up by his arraignment, the charges, the verdict and the sentencing. Fouquier’s case combined some well-worn Jacobin tropes with the political imperatives of the moment. Among the familiar Jacobin themes, Schneider “hid behind a mask of patriotism”, displaying the “external appearance of an extreme patriotism” to hide his true intentions.38 This concern touched a particularly sensitive problem for the Jacobins: if a display of patriotism could be false or exaggerated, then how could one tell genuine patriots from the false? Public scrutiny of politicians, magistrates and individual citizens alike would expose corruption, self-interest, and counter-revolution. The virtuous, those honest, self-abnegating citizens who conducted themselves for the public good, had nothing to fear from such exposure.39 Schneider’s exaggerated patriotism was a “mask” that was the antithesis of transparency. Moreover, Schneider, it was alleged, exploited his position to live in outrageous luxury at the expense of the people. He was also claimed to have used his power for the sexual exploitation of women.40 In these ways, Schneider’s behaviour was the opposite of civic virtue. He was a “modern Caligula”, “only envisaging the Revolution as a source of lucre”.41 Virtuous citizens thought and worked only for the public good: here Schneider is depicted as the opposite, abusing his authority in the self-interested pursuit of luxury and wealth. Fatally for Schneider, the revolutionaries did not easily distinguish between graft for material gain and political corruption: the former sapped the moral fibre of citizens and tarnished the Republic. Schneider’s trial permitted the Revolutionary Tribunal to present moral lessons about patriotism, virtue and transparency, but it also arose in a precise political context. It is telling that, although Schneider was arrested in mid-December, the government (or rather, in this case, the Convention) chose to wait three and a half months to put him on trial. This was because Schneider’s prosecution fitted the political needs of the moment. As a foreigner and as someone who allegedly abused his power, Schneider usefully could be linked to the government’s left-wing, extremist enemies, the Hébertists. It did not matter that Schneider’s i­ nvolvement in politics was provincial and connected to the localised religious conflict

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in Alsace.42 From the government’s perspective, Schneider’s German origins and connections allowed Fouquier-Tinville to link him with the “foreign plot”, in which the Hébertists had been implicated. The government could show that the conspiracy was wide-ranging and that not all its plotters had yet fallen beneath the blade of the law. Schneider had joined in a “perfidious coalition with the foreign powers” and was “one of the agents of the new conspiracy hatched against the French people”.43 Fouquier-Tinville was locking the prosecution of Schneider into the Jacobin government’s struggle against its opponents. In the process, the publicity emphasised Jacobin values and demonstrated the need for vigilance against those who hid behind the “mask” of patriotism. The judgment justified the verdict against Schneider, while underscoring the continuing purpose of the Revolutionary Tribunal itself. Schneider’s case also demonstrated that a person’s revolutionary past could be re-interpreted in light of the present, thereby legitimising the Jacobin perspective on its opponents. One further, brief example from Germinal will illustrate this point. Louis Brossard, a public official at Térasson in the Dordogne, was brought before the Tribunal on 24 Germinal 2 (13 April 1794). Between 1790 and 1792, Brossard had served in a range of judicial and public offices. In the autumn of 1792, he was alleged to have opined: The time has come when more than ever families must come together and stay close. You see that the human heart is now only that in name, without religion, without morals, without government, without laws, without country; we would look in vain for those benefits within men.44

Brossard’s words in the autumn of 1792 could be read simply as the language of disillusionment rather than of counter-revolutionary intent, but for Fouquier they were “a diatribe against the revolution [attacking] the national representation and the constituted authorities”, proof of Brossard’s “liberticide principles”. He was later heard, it was alleged, to have suggested that Louis XVI was innocent and did not deserve to die. He was condemned, however, by his complaint about conscription, when he said that the men would be put to better use bringing in the harvest in the Limousin. Later on in 1793, he publicly denounced the committee of surveillance as illegal, despotic and of fomenting civil war.

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If all these accusations were true, then Brossard may indeed have been motivated by counter-revolutionary intentions. Or, as a local notable, he was simply trying to protect local interests from such unwelcome intrusions as conscription and political surveillance. His sympathies for Louis XVI and his gloomy assessment in the autumn of 1792 may certainly suggest that he was a monarchist. Or he may simply have been exhausted and demoralised after the years of upheaval, violence and uncertainty. Yet any nuances were lost when they were passed through Fouquier-Tinville’s lens. From the prosecutor’s vantage point of 1794, Brossard’s civic commitments in 1790–1792 were motivated by sinister motives, his speech and actions evidence of counter-revolutionary intent. Brossard had “always been the enemy of the revolution” and his patriotism had always been false. In these ways, Brossard was made into one of the stock enemies in the Jacobin rhetorical arsenal: the false patriot with counter-revolutionary motives. He had, moreover, tried to deflect public vigilance against himself by trying to obstruct the activities of the surveillance committee. Revolutionary commitment in 1790–92 was no evidence of civic virtue and patriotism in 1794, so the reworking of the revolutionary past in the light of the present could condemn not only the actively counter-­ revolutionary, but also the indifferent, or the disillusioned. As Saint-Just had declared on 10 October 1793, “You not only have to punish traitors; your wrath must also fall on the indifferent. You must punish whoever is passive in the Republic and does nothing for it”.45 Underscoring Jacobin values and rewriting the narrative of the past gave the Revolutionary Tribunal a role beyond the punishment of counter-­revolutionaries: it was, implicitly at least, an organ for civic education. This was, certainly, a secondary, even distant, purpose, but it points to a significant aspect of the Jacobin regime: alongside political terror the revolutionary government was embarking on a broader social and cultural project. In his work on the relationship between the Terror and the French variant of republicanism based on concepts of “natural right”, Dan Edelstein has suggested that for the Jacobins the French people reverted to a state of nature when they overthrew the monarchy on 10 August 1792. Thus there was some doubt that a new constitution was necessary at all, since a republic was in itself already close to nature: what

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was essential was the moral preparation of all citizens to live in a republican society. If the shape of the future Jacobin republic was not yet obvious, all Jacobins could agree on the need for public instruction in civic virtue and republican values.46 The wider Jacobin aim was nothing less than the moral and political “regeneration” of the people, to equip them for the plenitude of republican citizenship. Thus, during the Year 2, alongside the political repression the Convention passed a flurry of legislation for free, compulsory education and for social welfare, ranging from the state care of abandoned children to the redistribution of land for the poor. These measures were infused with a veritable ‘cultural revolution’ that included changes in sartorial styles, speech, personal and place names and the measurement of time. It involved a wealth of popular songs and theatre (with government subsidies for free performances), painting, cartoons and engravings. Most spectacularly of all, it involved revolutionary festivals, the most successful of which was the Festival of the Supreme Being, held across the country on 10 June 1794 (20 Prairial 2).47 Revolutionary justice interlocked with this programme of moral regeneration – and, from the spring of 1794, the preferred word for Robespierre and his colleagues on the Committee of Public Safety was “justice” rather than “terror” being the “order of the day”. On 2 Germinal 2 (22 March 1794), the Convention in effect decreed this. Yet “terror” was used in the passive sense, meaning the feelings felt by the true “enemies of the people” (a term that now replaced “suspect”), rather than in the active sense of a “Terror” being inflicted by the government on the people.48 It was not a promise of an end to the repression, because the Jacobin theory of justice held that it was “terrible” – but against those who opposed the Republic and so had placed themselves outside the law and indeed outside humanity at large. This conception of “justice” may explain the logic behind the Law of 22 Prairial (10 June 1794), which intensified the activities of the Revolutionary Tribunal. Georges Couthon, one of Robespierre’s allies, explained of those enemies that ‘it is less a matter of punishing them than of annihilating them’.49 Such notions of justice help to explain why the Tribunal’s publicity outlined all acquittals as well as convictions: innocence had nothing to fear from the searching gaze of revolutionary justice.

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The new law stripped those arraigned before the Revolutionary Tribunal of legal counsel; in the absence of evidence, the jurors could convict on the basis of “moral proofs”; and the only sentence the court could impose on the guilty was the death.50 With the removal of the legal protection of the accused, the pace of executions beneath the guillotine in Paris quickened: of the 2639 victims between March 1793 and August 1794, more than half (1515) were decapitated in the weeks that followed the Prairial Law. The Tribunal certainly continued to acquit, but the drop in these judgments was noticeable: from over 50% prior to the law to 19.5% afterwards.51 That this draconian law came only two days after the Festival of the Supreme Being has perplexed historians. Intended as a joyful display of national unity, it raised popular hopes and expectations that the Terror might end.52 Yet for the Jacobins, there was no contradiction between the celebrations and terror: the one was essential to the other. The Revolutionary Tribunal’s publicity, therefore, was not merely to sow terror, but also to educate the public. Terror was interwoven with civic institutions, education, social welfare, and the cultural revolution and the tribunal stood at the very juncture of this relationship. If this is so, then it provides a further, deeper explanation as to why the Tribunal insisted on publicity being given to its proceedings – it had become one of many instruments in the Jacobin attempt to shape the republican citizen. The political trials were intended not only to punish counter-­ revolutionaries and to instil terror, but also to educate the public about the traps and pitfalls that befell those who strayed from the path of republican citizenship.

III This begs the question as to how people actually responded to the trials. They certainly had plenty of sources of information about them, in the absence of any formal system of censorship. Pamphleteers and journalists were always on hand to publish their own reports on what was unfolding at the tribunal. Writers had to exercise caution, for the Law of Suspects of 17 September 1793 included amongst those defined as “suspect” anyone who, by their “words, or writings…show themselves to be partisans of

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tyranny and federalism and the enemies of freedom”.53 Even so, writers offered their satires and polemics of the trials, and their printed accounts sold on the streets.54 Newspapers published their own reportage: while much of the detail may have been gleaned from the Tribunal’s own publications, journalists could – within limits – editorialise for their readers in a way that the (apparently) straightforward accounts offered in the Tribunal’s publicity did not. That the reading public could find alternative perspectives was an important factor in shaping its responses. The public prosecutor received regular reports from police agents  – commissaires observateurs – who remarked on the state of opinion in Paris more broadly, but also, specifically, on the behaviour of the crowds in the courtroom and on conversations about the trials in the streets and cafés.55 Police reports are, of course, notoriously problematic as sources  – not least in that they habitually tell their readers what they want to learn. The commissaires observateurs do not disappoint in this respect. The responses of public opinion to government policy  – and to the Revolutionary Tribunal – are repeatedly described in positive, though often formulaic ways: in Germinal, morale is “strengthened by the salutary means taken by the Convention to save the patrie”; public opinion is “still at the same height” (twice); “the thermometer of public opinion is at a good level: the wind of the Revolutionary Tribunal keeps it and will keep it there”.56 Yet the reports remain the primary, even the only source for public responses to the trials themselves. The fact that some reports even admit of some public anxiety probably reflects a deeper unease with some of the proceedings. When they reported such conversations, the agents were almost always careful to finish by saying that the discordant voice was a solitary one, or that the dissenting citizen was silenced by his hostile audience. This is more likely to be an attempt to reassure the agent’s employers, but the fact that they admitted of such dissonance is in itself suggestive of a wider malaise. It was with the more high-profile political trials that the police reports hint at serious unease. The trials of the Hébertists (21–24 March 1794) and the Indulgents or Dantonists (2–5 April 1794) represented the elimination of two wings of the opposition to the revolutionary government. On the left, the Hébertists, around the journalist Jacques-René Hébert and his journal, Le Père Duchesne, claimed leadership of the sans-culotte movement,

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demanded an intensification of the Terror and the application of harsh measures in the enforcement of a controlled economy. On the right, the Indulgents, around the deputy Georges-Jacques Danton, and through the eloquent pen of Camille Desmoulins in the Vieux Cordelier, pressed for clemency or an end to the Terror. In the end, the government struck at both. The trial of the Hébertists was a risk, because of the potential size of Hébert’s following in the Parisian popular movement and the faction’s domination of both the Paris Commune and the War Ministry. The police reports certainly show that there was a great deal of scepticism among some Parisians. On 2 Germinal (22 March), for example, the agent Latour-Lamontagne reported on a debate among citizens about the trial: “They are not being given any freedom to defend themselves, they were saying…The people, angry that they all are against the conspirators, none the less see with pain the Tribunal taking such steps so contrary to the duties of humanity and of justice”.57 The following day, the same agent reported that some people were grumbling that the prosecution was using as evidence ‘facts prior to and totally foreign to the revolution’ because it was struggling to secure a conviction.58 As the trial reached its climax, the police officer Bacon remarked flatly that “in the cabarets, people are saying that the judges of the tribunal don’t know their job”.59 On the last day of the trial, a police report bluntly stated that “opinions are divided and groups yesterday were extremely agitated”. Although it offered an assurance that people were waiting for the verdict calmly, and that they were hostile to the accused, the police officer warned that “there will be precautions to take in case of a guilty verdict”.60 The government’s repressive capacities were certainly felt, for some Hébertist supporters were now reportedly re-­ examining their political alignments. The agent Charmont on 1 Germinal noted that “among the public [watching the trial]…many citizens confessed to having been fooled by Hébert, in good faith, but a larger number declare that they have never been fooled…[that] they never saw Hébert as anything other than an incendiary”.61 Six days after nineteen of the twenty accused were condemned and guillotined, a police agent reported that “for several days it has been noticeable that the big talkers among groups and in the cafés have shut up”, but he later added that “there still exist men who are convinced that Hébert was the victim of his

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own patriotism; but they say so in hushed voices”.62 The sans-culotte movement was certainly cowed by Hébert’s fate and by the subsequent purges of the seats of its power. Yet that some people were still willing to venture opinions sympathetic to Hébert suggests that, in Paris at least, there were those who did not entirely accept the direction in which the Jacobin government wanted to push the Revolution. The police reports hint at unease – though not strong vocal sympathy – over the trial of the Dantonists. It is possible that the charges of corruption resonated with the public. Equally, the campaign for clemency had lost some momentum since its main mouthpiece, Le Vieux Cordelier, had ceased publication around the time of Fabre’s arrest in January 1794.63 Still, the anxiety probably came from the shock at seeing figures with good revolutionary records fall victim to the Terror. On 2 April, the first day of the trial, a report claimed that “the anxiety of good patriots over the arrest of Danton and of other deputies has diminished noticeably; the indictment against them seems to have calmed some minds.”64 The reassurance intended in that sentence does not obscure the admission that there was anxiety. The day after the Dantonists – sixteen in all – were guillotined, a police agent reported that although “the opinion of the mass [of people] is still good, and had no desire other than to see the heads of the guilty fall”, some “spirits were a little agitated”65 – another coy admission that there was at least some public malaise over the fate of the Indulgents. It is noticeable that the police reports do not hint at any hostility towards the actual existence of the Revolutionary Tribunal itself. This was almost certainly because, since 1789, French people had been prey to both rumours of corruption and conspiracies (beginning with the “Great Fear” in 1789) with the hard evidence of actual counter-revolution, compounded from 1793 by the very real facts of foreign invasion, civil war and insurrection and by the daily, grinding experience of inflation, unemployment, shortages of food, rising prices and the exploitations of a black market. The point, as David Andress has suggested, is not that any of the elements of the Terror can today be justified, but that the genuinely dangerous environment made institutions such as the Revolutionary Tribunal seem necessary at the time.66 Where public dissent was expressed, it seems to have been shaped by political sympathies, as individual Parisians found

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themselves on the “wrong” side as the revolutionary government imposed its own direction on the Revolution during the Year 2. The police reports offer tantalising suggestions that not everyone fully accepted the Tribunal’s Jacobin gloss on the trials and the values that they were meant to defend. One of the important factors that turned these misgivings into an outright rejection of the Terror was almost certainly the Law of 22 Prairial, which dashed the high expectations generated by the Festival of the Supreme Being67 and alarmed many deputies in the Convention who felt targeted by it. They marshalled their forces and, in a parliamentary coup on 9 Thermidor (27 July 1794) overthrew the Jacobin “triumvirs”  – Robespierre, Saint-Just and Couthon. It was a rejection not only of a system of government, but also of the very notion that ‘justice’ entailed an interlocking of “regeneration” with terror. The Revolutionary Tribunal would persist until it held its last session on 17 May 1795, but its political trials now aimed at distancing the surviving revolutionaries from the Terror in which so many of them had acquiesced.68

IV The uneasy relationship between the tribunal and Parisian public opinion suggests that there was a complex relationship between political terror and civil society. From the government’s point of view, it was not just that the extraordinary court needed to eliminate the Republic’s enemies. They also wanted to use the trials to inform the public of republican values by punishing their antitheses. In the process, the publicity sought to convince a volatile public of the continuing necessity of the tribunal, of the legitimacy of its proceedings and so sustain acquiescence in the terror. Ultimately, the publicity surrounding the trials became a part of a much broader programme of political regeneration along Jacobin lines. This interpretation alters the linguistic turn, which interprets the Terror as the product not of circumstances but as the inevitable outcome of revolutionary ideology or discourse. Yet this has been challenged recently by analyses that emphasise an interaction of social pressures and political relationships, the immediate circumstances, as well as discourse.69 The very efforts of the Tribunal to engage, convince

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and shape public opinion and the glimpses of popular responses suggest that there was indeed a more complex dynamic at work: the terror navigated between state repression and public participation. Recent research, in fact, is suggestive of this. David Andress’ analysis of popular violence gives agency to popular initiative, but also emphasises the ways in which the revolutionary elites manipulated and co-opted it for their own ends.70 Colin Lucas’ study of denunciation shows how the surveillance committees relied on public willingness to offer information and accusations in order to pursue “suspects”.71 The Revolutionary Tribunal itself could not have functioned without public co-operation. Alex Fairfax-Cholmeley’s work in “mapping the Terror” has shown that local surveillance committees, administrators, municipal and departmental authorities, district and departmental courts accounted for 34.5 per cent of all cases originating outside Paris, while inside the capital the sections, Commune and department originally opened 28.2 per cent of cases. The role of local activists was therefore critical to the smooth functioning of the Revolutionary Tribunal in the gathering of evidence, in the preliminary interrogations of the accused and the questioning of witnesses.72 The government was sensitive to the public response to the trials in part because public acquiescence and participation in the system of revolutionary justice would continue only for as long as it had some legitimacy. No authoritarian regime is possible without a certain critical level of such acquiescence. The reciprocal, if fraught, relationship between popular initiative and state-sponsored terror suggests a more complex picture than a dichotomy and conflict between the two.73 Certainly, Danton, in his speech of 10 March 1793 in favour of a revolutionary tribunal argued that it would remove revolutionary justice from the hands of the people (“let us be terrible to prevent the people from being so”).74 Some historians have argued that the aim was to restrict popular vengeance by giving an official, institutional form to the violence against the Republic’s enemies.75 Yet, the relationship of the tribunal itself with public opinion shows that popular anxieties and action interlocked in a more complex way with state-­ sponsored repression. This may carry important lessons for all the political trials in the 1790s. First, the context of civil society was essential, even central, to

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understanding not only their impact, but also the motivations behind them. They were driven by a relationship between the repressive arm of the state and the public that worked at different levels: on the one hand, the government’s attempt to meet the political needs of the moment, to underscore and implant the values of the regime and to stamp its authority on the political direction of the country and, on the other hand, public anxieties, acquiescence, scepticism and hostility. Secondly, there was less a dichotomy between official repression (revolutionary terror or official Pittite repression) and the popular response (the Parisian popular movement or British popular loyalism) than a complex, interwoven relationship between the two – a relationship that might create conflict, but which could also enable either side. The political trials of the 1790s were significant not only in their practical role as instruments of state security, but also in the multiple ways in which they were motivated by and interacted with the critical publics of the later eighteenth century. As for the French Revolution itself, this interaction shows that the Terror cannot be interpreted with reference to revolutionary discourse and political culture alone: the main driver was how people, circumstances and discourse acted upon each other in a bewildering variety of different contexts.

Notes 1. On the problematic nature of this term, see B.  Baczko (trans. Michel Petheram), Ending the Terror: The French Revolution after Robespierre (Cambridge, 1994), especially 49–53, and D. Andress, “The Course of the Terror, 1793–94”, in A Companion to the French Revolution, ed. P. McPhee (Oxford, 2013), 293–309. 2. G. Walter (ed.), Actes du Tribunal révolutionnaire (Paris, 1986), 577. 3. Walter, Actes, 576. 4. Walter, Actes, 578. 5. For studies of the Revolutionary Tribunal, see J. L. Godfrey, Revolutionary Justice: A Study in the Organization, Personnel and Procedures of the Paris Tribunal, 1793–1795 (Chapel Hill, 1951); E.  Campardon, Le Tribunal Révolutionnaire de Paris, d’après les documents originaux conserves aux archives de l’Empire 2 vols (Paris, 1866); H.  Wallon, Histoire du Tribunal Révolutionnaire de Paris: avec le journal de ses actes 7 vols. (Paris, 1880–82).

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6. Quoted in Campardon, Tribunal Révolutionnaire, I: 8. 7. As the Soviet Criminal Code of 1922 put it. R.  Pipes, Legalised Lawlessness: Soviet Revolutionary Justice (London, 1986), 19. 8. Unlike the Scots and English courts, the Revolutionary Tribunal did not legally distinguish between ‘sedition’ and ‘treason’. 9. The Revolutionary Tribunal sent 2639 people to the guillotine in Paris between March 1793 and August 1794 (W. Doyle, Oxford History of the French Revolution (Oxford, 1989), 275). Yet while it is perhaps the most notorious of all the institutions of the Terror, it was not its bloodiest. According to Donald Greer, perhaps 17,000 were executed during the Terror at the behest not only of the Revolutionary Tribunal, but also by departmental criminal courts and Extraordinary Commissions – a figure which is drawn from official statistics and may have been twice as high. Either way, it puts in perspective the Paris court’s contribution to the carnage (D. Greer, The Incidence of the Terror: a statistical interpretation (Cambridge, MA, 1935)). This figure does not include the victims of summary executions ordered by the military commissions in areas of open rebellion, such as the Vendée and other parts of western France, where the numbers of those killed may have risen to 200,000 (P. McPhee, Liberty or Death: The French Revolution (New Haven and London, 2016), 345). 10. Walter, Actes, 7–8. 11. K. M. Baker, “Public Opinion as Political Invention”, in his Inventing the French Revolution: Essays on French Political Culture in the Eighteenth-­ Century (Cambridge, 1990), 167–99. 12. The Proceedings in Cases of High Treason under a Special Commission of Oyer and Terminer…taken in Short Hand, by William Ramsay (London, 1794), 329. 13. Quoted in M.  A. Goldstein (ed.), Social and Political Thought of the French Revolution, 1788–1797: An Anthology of Original Texts (New York, 1997), 497. 14. Doyle, Oxford History, 194. 15. Campardon, Tribunal révolutionnaire, i, 156. 16. C. Hesse, “The Law of the Terror”, Modern Language Notes, 114 (1999), 714–15. 17. R. Steinberg, “Transitional Justice in the Age of the French Revolution”, International Journal of Transitional Justice, 7 (2013), 267–85. 18. J.  Thompson, “Transitional Justice in Historical Perspective”, Social Justice Research, 20 (2007), 511–22.

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19. R.  T. Bienvenu (ed.), The Ninth of Thermidor: the Fall of Robespierre (New York, 1968), 34, 39. 20. C. Jones, ‘The Overthrow of Maximilien Robespierre and the “Indifference” of the People’ American Historical Review, 119 (2014), 711–13. 21. Archives Nationales [hereafter, AN] W174 (Perrier’s report, 3 Germinal II). 22. C. Hesse, ‘La preuve par la lettre: pratiques juridiques au tribunal révolutionnaire de Paris (1793–1794)’ Annales: Histoire, Sciences Sociales, 51 (1996), 634. For revolutionary anxieties about calumny, see C. Walton, Policing Public Opinion in the French Revolution: the Culture of Calumny and the Problem of Free Speech (Oxford, 2009). 23. Available online via Gallica, the online library of the Bibliothèque Nationale de France (www.bnf.fr) 24. This could sometimes also be true of court proceedings in Britain in this period: see T. Hitchcock and W. J. Turkel, “The Old Bailey Proceedings, 1674–1913: Text Mining for Evidence of Court Behavior”, Law and History Review 34 (2016), 933. 25. AN W541 (Bérard’s papers). 26. AN W536–540 contain copies of the printed judgments disseminated through these organs. 27. L.-S. Mercier, Tableau de Paris, 11 vols (Geneva, 1979), IV: 51. 28. P. Bastien, L’exécution publique à Paris au XVIIIe siècle: une histoire des rituels judiciaires (Paris, 2006), 20, 22–3, 25, 29, 38. 29. S.  Maza, Private Lives and Public Affairs: the causes célèbres of pre-­ revolutionary France (Berkeley, Los Angeles and London, 1993). 30. Bastien, L’exécution publique, 24–5, 44. 31. D.  Arasse (trans. C.  Miller), The Guillotine and the Terror (London, 1989), 88–92. 32. M.  Foucault, Discipline and Punish: The Birth of the Prison (London, 1995), ch. 1. 33. Bastien, L’Exécution publique, 93–142. 34. AN W536 has the monthly bulletins for Brumaire (22 October-20 November) and Germinal (21 March-19 April) Year II (1793–4). 35. R.  Allen, Les tribunaux criminels sous la Révolution et l’Empire 1792– 1811 (Rennes, 2005), 23–53. See also B. Shapiro, Revolutionary Justice in Paris, 1789–90 (Cambridge, 1993). 36. L. Hunt, Politics, Culture, and Class in the French Revolution (Berkeley, Los Angeles, London, 1984), 44–46. 37. C. Betzinger, Vie et mort d’Euloge Schneider, ci-devant franciscain (1756– 1794) (Strasbourg, 1997).

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38. AN W536 (judgement against Euloge Schneider, 4, 8). 39. M.  Linton, Choosing Terror: Virtue, Friendship, and Authenticity in the French Revolution (Oxford, 2013), 193. 40. AN W536 (Schneider, 6–7). 41. AN W536 (Schneider, 8). 42. D.  Schönpflug, “Le culte de la Raison à Strasbourg: facteurs locaux, nationaux et régionaux”, in Les Politiques de la Terreur 1793–1794, ed. M. Biard (Rennes, 2008), 429. 43. AN W536 (Schneider, 8). 44. AN, W537 (Louis Brossard, 6). 45. Quoted in Goldstein, Social and Political Thought, 492. 46. D.  Edelstein, The Terror of Natural Right: Republicanism, the Cult of Nature, and the French Revolution (Chicago, 2009), 169, 219. 47. McPhee, Liberty or Death, 236–42; J.-P. Gross, Fair Shares for All: Jacobin Egalitarianism in Practice (Cambridge, 2003); J. Smyth, Robespierre and the Festival of the Supreme Being: The search for a republican morality (Manchester, 2016). 48. A. Jourdan, “Les discours de la terreur à l’époque révolutionnaire (1776– 1798): Étude comparative sur une notion ambiguë”, French Historical Studies, 36 (2013), 65–7; A. Jourdan, Nouvelle histoire de la Révolution (Paris, 2018), 256, 260. 49. Quoted in Edelstein, Terror of Natural Right, 252. 50. Campardon, Tribunal révolutionnaire, I: 335–9. 51. Doyle, Oxford History, 275; A.  Simonin, “Les acquités de la Grande Terreur. Réflexions sur l’amitié dans la République”, in Politiques de la Terreur, ed. Biard, 183–4. 52. Smyth, Robespierre and the Festival, 129–30. 53. Quoted Walton, Policing Public Opinion, 134. 54. AN W174 (Perrier, 1 Germinal). 55. These can be found in AN, W112 (Ventôse); W124 (Frimaire, Nivôse and Germinal); W191 (Pluviôse); and W174 (Germinal). 56. AN W124 (10th, 16th, 17th, 28th Germinal). 57. AN, W174 (Latour-Lamontagne, 2 Germinal). 58. AN, W174 (Latour-Lamontagne, 3 Germinal). 59. AN, W174 (Bacon, 3 Germinal). 60. AN, W124 (4 Germinal). 61. AN, W174 (Charmont, 1 Germinal). 62. AN, W124 (10 Germinal).

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63. P.  Pachet, “La Restitution du Texte de Camille Desmoulins: une exigence politique”, in C. Desmoulins (ed. P. Pachet), Le Vieux Cordelier (Paris, 1987), 13–31. 64. AN, W124 (12 Germinal). 65. AN, W124 (17 Germinal). 66. D. Andress, “Teaching the Terror and its Lessons”, in Understanding and Teaching the Age of Revolutions, eds B. Marsh and M. Rapport (Madison, 2017), 256–7. See also D. Andress, The Terror: Civil War in the French Revolution (London, 2005), Chapters 1–3. 67. Smyth, Robespierre and the Festival, 147–8. 68. R. Steinberg, “Terror on Trial: Accountability, Transitional Justice, and the Affaire Le Bon in Thermidorian France”, French Historical Studies, 39 (2016), 419–44. 69. See, among others, the works of Andress, Linton and McPhee, already cited. 70. D. Andress, “Violence populaire durant la Révolution française: révolte, châtiment et escalade de la terreur de l’État”, Politiques de la Terreur, ed. Biard, 69–80. 71. C.  Lucas, “The theory and practice of denunciation in the French Revolution”, Journal of Modern History, 68 (1996), 779. See also A. Soboul, Les sans-culottes parisiens en l’an II: movement populaire et gouvernement révolutionnaire (1793–1794) (Paris 1968), 180–3. 72. A.  Fairfax-Cholmeley, “Mapping the Terror: The Paris Revolutionary Tribunal and the Development of a National System of ‘Revolutionary Justice’ in France, 1793–94”, European History Quarterly, 44 (2014), 16. 73. A.  J. Mayer, The Furies: Violence and Terror in the French and Russian Revolutions (Princeton, 2000), 101, 102, 118. 74. Quoted in Campardon, Tribunal révolutionnaire, I: 7. 75. S. Wahnich, La Liberté ou la Mort: Essai sur la Terreur et le Terrorisme (Paris, 2003), 63.

Bibliography Archives Nationales W112, 124, 174, 191, 536–541 M.  A. Goldstein (ed.), Social and Political Thought of the French Revolution, 1788–1797: An Anthology of Original Texts (New York, 1997)

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The Proceedings in Cases of High Treason under a Special Commission of Oyer and Terminer…taken in Short Hand, by William Ramsay (London, 1794) G. Walter (ed.), Actes du Tribunal révolutionnaire (Paris, 1986). R.  Allen, Les tribunaux criminels sous la Révolution et l’Empire 1792–1811 (Rennes, 2005). D. Andress, “Violence populaire durant la Révolution française: révolte, châtiment et escalade de la terreur de l’État”, Les Politiques de la Terreur 1793–1794, ed. M. Biard (Rennes, 2008), 69–80. D. Andress, “The Course of the Terror, 1793–94”, in A Companion to the French Revolution, ed. P. McPhee (Oxford, 2013), 293–309. D. Andress, “Teaching the Terror and its Lessons”, in Understanding and Teaching the Age of Revolutions, eds B.  Marsh and M.  Rapport (Madison, 2017), 245–61. D. Arasse (trans. C. Miller), The Guillotine and the Terror (London, 1989). B. Baczko (trans. Michel Petheram), Ending the Terror: The French Revolution after Robespierre (Cambridge, 1994). K. M. Baker, Inventing the French Revolution: Essays on French Political Culture in the Eighteenth-Century (Cambridge, 1990). P.  Bastien, L’exécution publique à Paris au XVIIIe siècle: une histoire des rituels judiciaires (Paris, 2006). C. Betzinger, Vie et mort d’Euloge Schneider, ci-devant franciscain (1756–1794) (Strasbourg, 1997). R. T. Bienvenu (ed.), The Ninth of Thermidor: the Fall of Robespierre (New York, 1968). E.  Campardon, Le Tribunal Révolutionnaire de Paris, d’après les documents originaux conserves aux archives de l’Empire 2 vols (Paris, 1866). W. Doyle, Oxford History of the French Revolution (Oxford, 1989). D. Edelstein, The Terror of Natural Right: Republicanism, the Cult of Nature, and the French Revolution (Chicago, 2009). A. Fairfax-Cholmeley, “Mapping the Terror: The Paris Revolutionary Tribunal and the Development of a National System of ‘Revolutionary Justice’ in France, 1793–94”, European History Quarterly, 44 (2014), 5–32. M. Foucault, Discipline and Punish: The Birth of the Prison (London, 1995). J. L. Godfrey, Revolutionary Justice: A Study in the Organization, Personnel and Procedures of the Paris Tribunal, 1793–1795 (Chapel Hill, 1951). D. Greer, The Incidence of the Terror: a statistical interpretation (Cambridge, MA, 1935). J.-P.  Gross, Fair Shares for All: Jacobin Egalitarianism in Practice (Cambridge, 2003).

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C. Hesse, ‘La preuve par la lettre: pratiques juridiques au tribunal révolutionnaire de Paris (1793–1794)’ Annales: Histoire, Sciences Sociales, 51 (1996), 629–42. C. Hesse, “The Law of the Terror”, Modern Language Notes, 114 (1999), 702–18. T. Hitchcock and W. J. Turkel, “The Old Bailey Proceedings, 1674–1913: Text Mining for Evidence of Court Behavior”, Law and History Review, 34 (2016), 929–55. L.  Hunt, Politics, Culture, and Class in the French Revolution (Berkeley, Los Angeles, London, 1984). C. Jones, ‘The Overthrow of Maximilien Robespierre and the “Indifference” of the People’ American Historical Review, 119 (2014), 689–713. A. Jourdan, “Les discours de la terreur à l’époque révolutionnaire (1776–1798): Étude comparative sur une notion ambiguë”, French Historical Studies, 36 (2013), 51–81. A. Jourdan, Nouvelle histoire de la Révolution (Paris, 2018). M.  Linton, Choosing Terror: Virtue, Friendship, and Authenticity in the French Revolution (Oxford, 2013). C. Lucas, “The theory and practice of denunciation in the French Revolution”, Journal of Modern History, 68 (1996), 768–85. A. J. Mayer, The Furies: Violence and Terror in the French and Russian Revolutions (Princeton, 2000). S. Maza, Private Lives and Public Affairs: the causes célèbres of pre-revolutionary France (Berkeley, Los Angeles and London, 1993). P. McPhee, Liberty or Death: The French Revolution (New Haven and London, 2016). L.-S. Mercier, Tableau de Paris, 11 vols (Geneva, 1979). P. Pachet, “La Restitution du Texte de Camille Desmoulins: une exigence politique”, in C.  Desmoulins (ed. P.  Pachet), Le Vieux Cordelier (Paris, 1987), 13–31. R. Pipes, Legalised Lawlessness: Soviet Revolutionary Justice (London, 1986). D. Schönpflug, “Le culte de la Raison à Strasbourg: facteurs locaux, nationaux et régionaux”, in Les Politiques de la Terreur 1793–1794, ed. M. Biard (Rennes, 2008), 421–33. A. Simonin, “Les acquités de la Grande Terreur. Réflexions sur l’amitié dans la République”, in Les Politiques de la Terreur 1793–1794, ed. M. Biard (Rennes, 2008), 183–205. J. Smyth, Robespierre and the Festival of the Supreme Being: The search for a republican morality (Manchester, 2016).

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R.  Steinberg, “Transitional Justice in the Age of the French Revolution”, International Journal of Transitional Justice, 7 (2013), 267–85. R.  Steinberg, “Terror on Trial: Accountability, Transitional Justice, and the Affaire Le Bon in Thermidorian France”, French Historical Studies, 39 (2016), 419–44. J.  Thompson, “Transitional Justice in Historical Perspective”, Social Justice Research, 20 (2007), 511–22. S.  Wahnich, La Liberté ou la Mort: Essai sur la Terreur et le Terrorisme (Paris, 2003). H. Wallon, Histoire du Tribunal Révolutionnaire de Paris: avec le journal de ses actes 7 vols. (Paris, 1880–82).

12 Hero or Villain? The Treason Trial of Aaron Burr (1807) Jack Fruchtman

The 1807 conspiracy trial of Aaron Burr, former senator and vice president of the United States, has enrapt journalists, scholars, and commentators since its occurrence in Richmond, Virginia. It was a quintessential political trial, pitting the former vice president against a current sitting president and superintended by one of the most important Supreme Court justices in United States history. Accused of treason, the disgraced Burr faced possible execution if found guilty.1 Innuendo, rumour, lies, and distortions have so encumbered the facts that it has been virtually impossible to know for certain whether he conspired, as the Constitution puts it in Article III, Section 3, “to levy war” against the United States, the only crime specifically set out in the document.2 The entire provision reads: “Treason against the United States, shall consist only of levying war against them, or in adhering to their enemies, giving them Aid and Comfort. No person shall be convicted of Treason, unless on the Testimony of two Witnesses to the same overt act, or on Confession in

J. Fruchtman (*) Department of Political Science, Towson University, Towson, MD, USA e-mail: [email protected] © The Author(s) 2019 M. T. Davis et al. (eds.), Political Trials in an Age of Revolutions, Palgrave Histories of Policing, Punishment and Justice, https://doi.org/10.1007/978-3-319-98959-4_12

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open Court”. The United States charged Burr with acting to slice off all or a chunk of the Louisiana Territory that the Jefferson administration purchased from France in 1803, add it to the Spanish colonial territories in the West, including Mexico after waging war against Spain, and establish a new nation with himself as king or emperor or president. Perhaps he had no such grandiose scheme. Perhaps he merely wanted to terminate Spain’s declining control of land in the New World on behalf of the new United States. Or perhaps he was preparing to support the United States with troops of his own in the event war broke out with Spain. Was he, in other words, working on behalf of the United States or for Aaron Burr? If the latter, he was therefore working against the United States. Commentators agree that Burr was ambitious, opportunistic, aggressive, and handsome, indeed a lady’s man. He was neither a political philosopher nor a member of the founding generation. He did not serve in either of the two Continental Congresses (1774–1776), the Confederation Congress (1776–1789), or the Constitutional Convention (1787). He was a loner who longed for acceptance and sought self-gratification. According to Gordon Wood, Burr “was a freethinking, free-spending aristocrat who lived always on the edge of bankruptcy; who had lynx-like eyes that charmed everyone he met; who was a notorious womaniser who left broken hearts (and numerous offspring scattered over two continents)”. For Wood, if Burr were a traitor, he was more a traitor to his class than to his nation.3 Nancy Isenberg presents a more pleasant image of Burr. He was, she writes: “a Christian man of action” and a proponent of “a new democratic ethos”, a man who opposed slavery and promoted women’s equality. He lavished everything he could on his daughter, Theodosia, who he thought could develop the same intellectual interests and sensibilities as a man.4 Historian Peter Charles Hoffer is more realistic in his assessment: “In politics, Burr was a modern, a hands-on party manager. Too disillusioned by the conduct of the ordinary man in the Continental army to believe in democracy, too familiar with poverty to believe in its virtues, Burr still loved the game of politics. He would have been perfectly happy at home in the next generation, when party loyalty far outweighed ideology”.5 Whatever his personal attributes, Burr clearly understood the role geography of the new nation in the years 1805–1806. Because he knew

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that the nation was so unstable, especially in the West, Jefferson had no guarantee that he would realise his vision of “an empire of liberty”.6 American settlers had already started to move into the riparian sectors west of the Mississippi River, lands still barely part of the United States.7 And yet, before the Jefferson administration made the Louisiana Purchase in 1803, the Spanish government often denied American settlers shipping access to the Caribbean from the port of New Orleans or even the ability to deposit their goods there. When Napoleon obtained Louisiana from Spain, he planned to use it as a foothold for French influence in the region and to establish a French empire in America. With the outbreak of the Haitian Revolution, when he realised he desperately needed cash, Napoleon quickly sold it to the United States. The purchase nearly doubled the size of the United States for the discounted price of fifteen million dollars. The country increased in size from 892,000 square miles to 1,720,000.8 Jefferson’s passion for an empire of liberty outwitted his reason and this compromised his objectivity about Burr’s western adventure. This was not the first time he encountered a conflict between, as he once put it, “my head and my heart”. In France in the 1780s as the United States minister, he fell in love with Maria Cosway, the twenty-seven year-old wife of the older portraitist, Richard Cosway (Jefferson’s wife had died at the young age of thirty-three, just four years earlier in 1782). He wrote her the now-celebrated romantic letter observing the conflict between his passion and his reason.9 In 1807, he experienced another conflict in his hatred for Burr. It even clouded his view of the Louisiana territory. Three years earlier, he told Joseph Priestley that “whether we remain in one confederacy, or form into Atlantic and Mississippi confederacies, I believe not very important to the happiness of the either part”. He called the United States the “eastern” sector, while Louisiana was the “western”. While the two areas could join together to achieve their mutual interests, he could “foresee a separation at some future day”.10 In judging Aaron Burr, he conveniently forgot his words to Priestley as his passion overwhelmed his reason and he only saw Louisiana as part of the new nation. According to law professor Buckner Melton, Burr’s plan “had something to do with the land beyond the Appalachian-Allegheny Range, the great Mississippi and Ohio River Valleys”.11 The geography of this territory,

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argues Paul Schneider, was vast: “the truth is that any moving water south of the Great Lakes and between the Appalachians and the Rockies – with the exception of a few relative trickles  – is going to Louisiana. The Mississippi, the Mississippi watershed, the Mississippi basin, the Mississippi catchment  – 41 percent of the continental United States  – it’s all one river”.12 The enormity of the space captured Burr’s imagination as he travelled to the West with a reputation ruined after killing Alexander Hamilton in 1804, failing to serve as Jefferson’s vice presidential candidate in the presidential campaign that same year, and experiencing a devastating defeat in the New York governor’s race.

I Aaron Burr possessed few friends and many enemies.13 As Thomas Jefferson’s vice-presidential candidate in the election of 1800, he declined to support Jefferson’s candidacy when the vote ended in an electoral tie.14 In hindsight, Jefferson later recalled that before that election, Burr’s “conduct very soon inspired me with distrust. I habitually cautioned Mr. Madison against trusting him too much. I saw afterwards that under General Washington’s and Mr. Adams’s administrations, whenever a great military appointment or a diplomatic one was to be made, he came post to Philadelphia to shew himself & in fact that he was always at market, if they had wanted him”, which no one ever did.15 Democratic-Republicans, including Jefferson himself, detested him for his disloyalty when he declined to step aside. At the time, the Constitution required the electors to cast two ballots, one for president, and one for vice president. The candidate with the highest vote won the presidency, the second highest the vice presidency.16 In the event of a tie vote, the House of Representatives decided with each state having one vote. It took thirty-six ballots until the representative from Delaware, James Bayard, changed his mind to elect Jefferson. In revenge, Jefferson dumped Burr in the reelection campaign in 1804, choosing George Clinton, the governor of New York, as his vice-presidential candidate. Federalists also hated Burr after he killed their leader Alexander Hamilton that same year in the famous duel in Weehawken, New Jersey.17

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With no vice-presidential prospects, Burr announced his candidacy for governor of New York, the office George Clinton was vacating. Despite his family background, education, senatorial experience, and his conduct as a military officer, he generated very little support in the largest loss in a New York gubernatorial election ever. Most writers agree about Burr’s innate qualities. He came from an American “aristocratic” family: born in Newark, New Jersey, in 1756, he was the son of Aaron Burr Sr., the president of the College of New Jersey (which became Princeton). His maternal grandfather was the great American theologian Jonathan Edwards, author of some of the most inspiring sermons of the age. His cousin was Timothy Dwight, the president of Yale. After graduating from the College of New Jersey, Burr studied law with Tapping Reeve, one of the most prominent lawyers in America, and fought with distinction in the Revolutionary War, rising to the rank of colonel. When Washington promoted several commanders over him, including Hamilton, and then declined to promote him to general, Burr resigned his commission and moved to New York to establish a political career. There, he encountered three powerful Democratic-­ Republican families: the Clintons, the Livingstons, and the Schuylers. These families opposed ratification of the new Constitution in 1788 largely because it created a too-strong central government and lacked a bill of rights. They preferred state and local government rather than a central one far removed from the people’s oversight. The Schuylers were surprised when their daughter, Eliza, married Alexander Hamilton, who promoted ratification. The old saying in New  York was that if the Clintons had power and the Livingstons had numbers, the Schuylers had Hamilton.18 In 1784, Burr was elected to the New York State Assembly and then five years later Governor George Clinton, who would hold that office for two decades, appointed him Attorney General. When the first Federal Congress was elected in 1789, the Livingstons and Schuylers divided the seats between them (the actual election of senators until the seventeenth amendment was ratified in 1913 was by state assemblies, not direct popular vote). When this alliance broke down and the Schuylers supported Hamilton’s friend, Rufus King, the Livingston’s joined the Clintons to defeat the then-sitting senator, Philip Schuyler. Their candidate was Aaron Burr, who won the election. Hamilton never forgave him.19

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Hamilton at first counted Burr as a friend and professional colleague but, when Hamilton witnessed Burr’s unfettered opportunism and ambition, he turned against him and worked incessantly to ensure Jefferson’s election in 1800. In January of 1801, Hamilton wrote to James Bayard that Burr “is a man of extreme & irregular ambition—that he is selfish to a degree which excludes all social affections & that he is decidedly profligate. But it is said, 1st. that he is artful & dexterous to accomplish his ends—2nd. That he holds no pernicious theories, but is a mere matter of fact man—3rd. that his very selfishness is a guard against mischievous foreign predictions”. He branded Burr nothing more than “a complete Catiline in his practice & principles.”20 The reference was telling: Catiline was the Roman statesman, who, after challenging Cicero in the Senate, conspired to rebel against Rome and torched the city. Hamilton made many comments like this about Burr in his successful attempt to undermine his ambitious effort to become president of the United ­ States.21 Burr was well aware of these comments but they were insufficient to inspire a challenge: that would come later when the rumour spread that Hamilton allegedly charged Burr with having an affair with his beloved daughter. Burr demanded that Hamilton publicly apologise for spreading this rumour. When Hamilton declined to respond, the Weehawken affair of honour was inevitable. After New Jersey authorities were preparing to indict Burr for murder and with no real political prospects, Burr moved to the West. But to do what and where? In 1806–1807, the new United States was still very much a fragile young nation.22 Many Northerners were unsettled by the so-called Great Compromise in the 1787 Constitutional Convention that classified slaves, though unnamed as such, as three-fifths of a person for purposes of representation both in the House and in presidential elections (electors in each state are comprised of the total number of representatives plus the two senators). Their concern was not slavery but the continuing domination of the Virginia “faction” in presidential elections until the contested election of John Quincy Adams in 1824 (the sole exception was the administration of John Adams, 1797–1801). Because of this domination, Northern agitation to secede from the nation was debated as early as the 1790s when John Adams supported Britain in the so-called quasi-war with France.

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In 1804, Representative Roger Griswold of Connecticut inspired talk of a northern confederation (he called it “a union of the Northern States”) and tried to enlist Burr and his followers, the “Burrites,” to join the effort.23 Griswold wrote to Oliver Wolcott, then president of the Merchants’ Bank in New York, that he was uncertain how Burr felt about the idea. However, he knew “he [Burr] speaks in the most bitter terms of the Virginia faction, and of the necessity of an union at the northward to resist it, but what the ultimate objects are which he would propose, I do not know”.24 In a note by Rufus King on 5 April 1804, Griswold stated that “the only remedy is separation. Will Burr agree and pledge himself to this Object?”25 He thought Burr might. Meantime, Gideon Granger, a prominent Connecticut Republican who served as Jefferson’s postmaster general, wrote to DeWitt Clinton, George Clinton’s nephew, that “the political ballance [sic] of your State is to be decided by the Ten Western Counties who are principally Yankees, and who if I mistake not, will go with New England whenever her Citizens are agreed among themselves…. I do not hesitate to say three years will not pass away before the Six eastern States will be united and they will take with them New Jersey”.26 Not only was Burr aware of these manoeuvres, he saw opportunities in the West. For Mary-Jo Kline, “The West … was a land of promise for [Aaron Burr] in 1805”: his defenders claimed that his “expedition” in the spring and summer of 1806 was designed only to overthrow Spain’s rule in its North American colonies and that tales of his “conspiracy” against the United States were the work of his Jeffersonian foes.27 The key venue of the Burr conspiracy was a small island in the Ohio River in today’s West Virginia. The island was owned by a wealthy Irish aristocrat and immigrant called Harman Blennerhassett whom Milton Lomask, Burr’s chief biographer, describes as a “bumbling” though “well-meaning”, “decent, honest, charitable man, whose nearsightedness, a family weakness, was matched by a congenital inability to see the deficiency of those qualities in other people”.28 If Burr were to carry out whatever plans he had in the West, he needed money, and Blennerhassett had it. Despite his upbringing in County Kerry, Ireland, the Irishman was early on imbued with the thinking of the Enlightenment. He joined the United Irishmen in the aborted fight for Irish independence, feared for his life (and wealth),

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­ arried his cousin, and fled to America. He and his wife Margaret hated m the hustle and bustle of New York and Philadelphia and longed for the countryside, after reading Rousseau’s writings on a natural life. In 1797, they purchased the island that took their name and where the conspiracy was allegedly hatched. There, they built a huge mansion, barns, outbuildings, and established a farm. In 1805, Burr stopped at Blennerhassett’s Island “unsolicited” where he found his mark.29 He did not know that Blennerhassett’s fortune was in steep decline for having built his farm and estate and with only a moderate success of his business enterprises in nearby Marietta, Ohio. When Burr told him that his adventure would be lucrative, Blennerhassett jumped at the opportunity. He wrote in December 1806 that “I contemplated not only commercial enterprise or land purchase, but a military adventure was distinctly mentioned in which I would engage”.30 Several biographers of Burr have pointed to his three maps found long after his death. According to Walter Flavius McCaleb, “the secret of these maps in broad outline is this: that nothing less than the Empire of Spain in North America was at stake”.31 Blennerhassett’s Island thus became the organisational point of the move to the West, which would involve raising funds, assembling supplies (supposedly 200 barrels worth), engaging men (500, it was said), and constructing boats (allegedly fifteen) to sail down the Ohio to the Mississippi. Joining them on the island were Burr’s daughter, Theodosia Burr Alston, and his namesake grandson, a very frail young Aaron Burr Alston, who soon died at age eleven.

II The Burr investigation and his subsequent trial developed like a stage play, often a comedy, sometimes a tragedy, but mostly a melodrama.32 The main characters included, of course, Burr and Jefferson but also Chief Justice John Marshall. Though distant cousins, Jefferson and Marshall were at constant loggerheads in politics and personality. Jefferson resented President Adams’s decisions in the final days of his presidency when he, among other actions, appointed Marshall as chief justice of the Supreme Court and created new justices of the peace for the District of

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Columbia. Jefferson was especially annoyed by Marshall’s opinion in the iconic 1803 case resulting from those appointments, Marbury v. Madison.33 William Marbury was one of those new justices of the peace but, while the Senate easily confirmed his nomination, as the Constitution demands, he did not receive his commission from John Adams who was leaving office. His successor, Thomas Jefferson, ordered his secretary of state – James Madison – to withhold the commission. When Marbury sued Madison, the chief justice ruled that the duty of the judge was to declare all laws and actions by public officials void when they violated any provision of the Constitution. Such expansive judicial power infuriated Jefferson who sought ways from that moment on to impeach Marshall.34 He was unsuccessful: Marshall became the longest-serving chief justice in American history, holding the office for thirty-five years. By the end of 1806, the scene was set: Jefferson, who detested Marshall, wanted the chief justice impeached; Marshall distrusted Jefferson who knew he wanted him out of office; and both men abhorred the unlikable Burr. Burr’s chief “co-conspirator,” General James Wilkinson, the commanding officer in New Orleans, now entered the melodrama: Burr worked with him to organise his expedition to the West. If Burr’s goal was to eliminate Spain’s grip on the American southwest, Wilkinson was the man to lead the charge. He hated the Spanish because he constantly faced them in East Texas. And yet, ironically, at the same time he was in their pay. When rumours of Burr’s actions were beginning to incriminate him, Wilkinson turned against him.35 A key piece of evidence was the “cipher” letter of 1806 that Wilkinson doctored in an attempt to incriminate the former vice president.36 Most historians attribute the letter to Burr’s friend and confidant, Jonathan Dayton, which he addressed to Wilkinson.37 It never mentions Burr at all. After receiving the letter from Samuel Swartout, a Burr loyalist, Wilkinson changed its wording to make it appear that Burr wrote it. Unfortunately, the only surviving copy is one that Wilkinson altered, not the original. This version, designed to clear himself by removing all of references to himself, is most damning about Burr’s intentions to sever the Louisiana Territory from the United States and establish an independent nation there. By this time, Jefferson had already learned that Burr’s activities were questionable when his US Attorney for the district of

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Kentucky, Joseph Hamilton Daviess, told him about Burr’s wanderings, his attempts to raise money, and his association with Wilkinson. Jefferson ignored his warnings. When Burr travelled to Kentucky, Daviess arrested him, but released him when Jefferson declined to allow him to prosecute Burr. Dumas Malone presumes that Jefferson disliked Daviess because he was a Federalist: he called him “a purveyor of rumors and a partisan trouble-­ maker”.38 In November 1806, Wilkinson forwarded the cipher letter to Jefferson with three damning enclosures. One allegedly by Dayton attacked the president: “Jefferson will affect to yield reluctantly to the public sentiment, but yield he will”.39 Another was an alleged letter from someone identified only as “Stephens” who addressed land purchases and supplying horses for the expedition. The final one, also allegedly from Dayton to Burr, stated that “every thing, and even Heaven itself, appears to have conspired to prepare the train for a grand explosion; are you also ready?”40 Wilkinson wished Jefferson to believe that Burr was involved deeply in the conspiracy. Jefferson, however, had a “very general suspicion of infidelity” on Wilkinson’s part.41 Even so, once Wilkinson warned Jefferson that an army of some 8000 to 10,000 men was about to attack New Orleans, he became Burr’s main accuser until Jefferson himself supplanted him.42 The cipher letter indicated that Burr’s plan was “to move down rapidly from the falls on fifteenth November [1806], with the first 500 or 1000 men in light boats now constructing for that purpose; to be in Natches [Natchez, Mississippi] between 5 and 15 of December…. The people of the country to which we are going are prepare[d] to receive us – their agents, now with me, say that if we will protect their religion [Catholicism] and will not subject them to a foreign power, that in three weeks all will be settled”.43 Burr even allegedly hoped to gain British support for his effort to separate the western territory from the United States. On 22 January 1807, Jefferson addressed a special session of Congress accusing Burr of treason. His words received widespread attention in the National Intelligencer, a Republican newspaper. He asserted that Burr wanted to achieve “two distinct objects, which might be carried on either jointly or separately, and either the one or the other first, as circumstances should direct”. One of these was the severance of the Union west of the

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Alleghany mountains; the other, an attack on Mexico. A third object was to settle a tract of land on the Washita River, claimed by a Baron Bastrop, west of Mississippi.44 This settlement supposedly served as the pretext for Burr’s preparations and a place to which he could retreat if he failed.45 In his address to Congress, Jefferson publicly accused Burr of committing two illegal acts: first, treason, because he sought to separate large chunks of territory from the United States while working with British authorities; second, violating the Neutrality Act, because he contemplated a war against Spain in Mexico or in any Spanish territory. In effect, Jefferson acted as prosecutor, judge, and jury. He ended his address with a call to have the “criminals,” as he called them, tried for their offenses.46 Jefferson’s first action was to pursue two of Burr’s younger associates, Erick Bollman and Samuel Swartout. Wilkinson arrested them as he continued to attempt to conceal his own involvement. They stood trial for treason in federal district court for the District of Columbia, where they were found guilty. They appealed their conviction to the US Supreme Court, which for the first time had to determine the meaning of the treason clause of the Constitution.47 In Britain, the common law defined treason as words or actions that remotely threatened the King or his rule. It was a judicial tool to suppress dissent, much like the Sedition Act of 1798 passed by Congress and signed by President Adams. This definition, known as figurative or constructive treason, was codified in the Treason Act of 1351 during the reign of King Edward III. It meant that any actions or utterances that placed the government or a governmental official in a negative light constituted “levying war” against, or imagining the death of, the King.48 When Bollman and Swartout’s cases reached the Supreme Court, Chief Justice John Marshall for the first time had to deal with the meaning of these words as handed down in the common law. In Ex parte Bollman, he noted that To constitute that specific crime for which the prisoners now before the court have been committed, war must be actually levied against the United States. However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offences. The first

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must be brought into operation by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed…. [I]f war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men for the treasonable purpose, to constitute a levying of war.49

Marshall declined to define “levying war” in figurative or constructive terms. It was not imagining the death of the king but instead required the action of actually assembling a body of men to engage in war against the United States. Finding that this had not happened here, Marshall – to Jefferson’s disdain – overturned Bollman and Swartout’s convictions. On 19 February Burr was arrested in what is today Alabama and sent to Richmond, Virginia, for trial. Blennerhassett and most of Burr’s men were similarly charged.50 While some were released, Burr and Blennerhassett were indicted for treason and high misdemeanor  – the former charge for their actions of “levying war” against the United States, the latter for violating the Neutrality Act of 1794 for attempting war against Spain with which the United States was at peace. The accusation was that they committed these crimes on Blennerhassett’s Island on 10 December 1806.51 As the justice assigned to the circuit court in Virginia, Chief Justice Marshall presided.52

III The lawyers on each side were highly trained, highly experienced, and highly able. The lead prosecutor was the United States attorney for the district of Virginia, George Hay, assisted by William Wirt, who most often argued that Burr was a traitor.53 Burr himself was the chief strategist for his trial, though he barely uttered a word. His lead counsel, John Wickham and Luther Martin, were ably assisted by Charles Lee and Benjamin Botts. The major problem for the prosecution, as historian and

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law professor R. Kent Newmyer notes, was that its witnesses “were prepared to testify only to what Burr intended to do and not what he and his followers had actually done. This gap in evidence brought the prosecution to the meaning of ‘levying war’ in Article III. Not only was Burr absent when war was supposed to be levied (he was not on Blennerhassett’s Island on December 10), but little evidence supported the charge that the two dozen young men who were present had ‘levied anything that resembled war’”.54 In other words, prosecutors maintained that guilt could be based on the old figurative or constructive treason principle that Marshall had already rejected in the Swartout decision. The defense demanded the prosecution to prove that Burr had actually, not figuratively, levied war on the United States.55 The trial, which lasted from 17 August until 1 September, turned from a criminal action into a political show trial.56 Political motivations clearly emerged in Jefferson’s 22 January address to Congress. Political motivations stimulated James Wilkinson’s distortions of the cipher letter to throw suspicion onto Burr and away from himself. Political motivations inspired John Marshall to charge the jury properly to ensure a just outcome. Underlying this goal was the chief justice’s knowledge of Jefferson’s hatred for him, especially under the shadow of the 1803 Marbury decision. Marshall even attempted to subpoena the president considering his association with Wilkinson in the fall of 1806 and his 22 January 1807 address to Congress.57 As a matter of the separation of powers, as Marshall well knew, an angry and embarrassed Jefferson declined on constitutional and national security grounds to appear or send to him communications he had had with Wilkinson. If there was a hero in this spectacle, it was John Marshall who, according to Newmyer, was “evenhanded, modest, and remarkably patient”.58 In his charge to the jury on 31 August he laid out the grounds for a conviction with such force and clarity that the jury returned an acquittal the next day. The charge, which set forth his rulings on all the major issues, was, according to Charles Hobson, “masterly,” “voluminous, intricately argued, full of careful and subtle distinctions,” and ultimately “a probing inquiry into the English law of treason and a creative application of that law to the case at hand”.59 First, Marshall reiterated the view of treason he used in Swartout and Bollman: levying war must be an authentic, not

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figurative or constructive, act. The prosecution must prove that Burr, who was not on Blennerhassett’s Island on 10 December actually levied war against the United States. But, Marshall wrote, the indictment charged Burr “with levying war on Blennerhassett’s Island” and it contained “no other overt act”. Thus, the United States cannot prove “that war was levied at that place by other persons in the absence of the prisoner, even admitting those persons to be connected with him in one common treasonable conspiracy”. Second, with Burr’s absence from the island, the prosecution must prove that someone else levied war because Burr “advised [them] or procured [supplies to undertake] that act”.60 In other words, the charge was specific: “the law does not expect a man to be prepared to defend every act of his life which may be suddenly and without notice alleged against him. In common justice, the particular fact with which he is charged ought to be stated, and stated in such a manner as to afford a reasonable certainty of the nature of the accusation and the circumstances which will be adduced against him”.61 Citing British legal sources, Marshall ruled that “the fact that the accused procured the assemblage on Blennerhassett’s Island must be proved, not circumstantially, but positively, by two witnesses, to charge him with that assemblage”.62 But two witnesses failed to come forward: only Wilkinson had and his testimony was questionable. The assemblage must not merely have the appearance of a man levying war against the United States but there must be an overt act of war. “The present indictment”, Marshall wrote, “charges the prisoner with levying war against the United States, and alleges an overt act of levying war. That overt act must be proved, according to the mandates of the constitution and of the act of congress, by two witnesses. It is not proved by a single witness”.63 The prosecution speculated that Burr’s acts in a different place at a different time prove he levied war on the nation but Marshall rejected that conjecture. “The overt act is not proved by a single witness; and, of consequence, all other testimony must be irrelevant”.64 To ask the jury to make assumptions unrelated to the charge against him without two witnesses made no sense in law or fact. Thus, he concluded that “no testimony relative to the conduct or declarations of the prisoner elsewhere, and subsequent to the transaction on Blennerhassett’s Island, can be admitted; because such testimony, being in its nature merely corroborative

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and incompetent to prove the overt act in itself, is irrelevant until there be proof of the overt act by two witnesses. This opinion does not comprehend the proof by two witnesses that the meeting on Blennerhassett’s Island was procured by the prisoner”.65

IV Marshall charged the jury that their duty was to apply the law, as he explained it, to the facts. The next day, within twenty-five minutes, the jury found Burr not guilty.66 But was he? We will never really know for certain, but we do know that Jefferson was so incensed at the not guilty verdict he told Senator William Giles that the only recourse was Marshall’s impeachment: “the nation will judge both the offender & judges for themselves. If a member of the Executive or Legislature does wrong, the day is never far distant when the people will remove him”.67 And yet, scholarly opinion is divided. Francis Beirne thinks that Burr was likely guilty of treason.68 Donald Barr Chidsey’s title tells all: “the great conspiracy”.69 Joseph Wheelan notes that after Burr had been cleared of all charges against him, he “had not given up on his scheme to invade Mexico,” even if it were to help the United States in its border disputes.70 Peter Charles Hoffer holds an intermediate view: the conspiracy was wrought only in the minds of those who hated Burr. For “had the plot been real, then surely during the War of 1812 the principals had another opportunity to press for Western independence. … But nothing happened”. He notes that the New England secession movement, the so-­ called Hartford Convention, was well underway by 1812 at the same time that American troops were repelling Indian attacks, thanks to British agitation: it would have been a good time to move on secession.71 Walter McCaleb, meantime, contends that Burr only wanted to free Mexico from Spain, and he told the British ambassador that severing American territory was only a “sharp scheme to secure [British] funds for the gloating of his designs on Mexico”.72 Milton Lomask argues that just after his infamous duel with Hamilton, Burr became “a man whose mind was already busy with the plans that would eventuate in the Burr Conspiracy”. He continues: “This was the objective of the Burr

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Conspiracy. That it was illegal [in violation of the Neutrality Act of 1794] is obvious, but it was not a betrayal of, or separation, from Burr’s own country. It was not treasonable”.73 Nancy Isenberg suggests that even when he was vice president, Burr was well aware of the border disputes between Spain and the United States and the possibility of a war between the two nations could break out at any moment. Burr contemplated that “in the event of war with Spain, he would lead a filibuster into Spanish territory taking Mexico by force of arms and bold leadership”.74 Kent Newmyer agrees: “Recent scholarly biographers agree that the object of Burr’s expedition was not to separate the western states from the Union, but rather to liberate Mexico from Spanish colonial rule”.75 Perhaps the answer to Burr’s true guilt or innocence may never be found. Buckner Melton observes that that “the ultimate version – if anyone ever writes it – will be massive, full of fact and conjecture … yet it will still fall short of the truth, for the truth died with Burr”.76 Kline concludes that “in the 175 years that have passed, the controversy has not died…. The truth of the matter may never be known”.77 Finally, David Stewart, one of the most recent commentators on Burr, follows the same reasoning: “Reaching a final judgment on Burr is difficult, beginning with the chronic confusion over what he was really doing out West”.78 As a political trial, we do know that beyond Jefferson’s personal dislike for Burr, the president viewed him as a threat to his vision of an empire of liberty, embodied in his purchase of the Louisiana territory in 1803. This action was a grand overreach of executive power, a political consequence of the president’s sought-after overweening power. Jefferson knew he had no constitutional authority to enlarge the United States by executive action. It also negated everything that he had stood for in terms of a modest presidency but he made the deal with Napoleon anyway. Understanding the implications of the sale for the still-infant United States, Napoleon noted that “the accession of territory affirms forever the power of the United States, and I have given England a maritime rival who sooner or later will humble her pride”.79 Still, Jefferson regarded Burr as a political threat undermining his “empire of liberty” when, in his address to Congress, he accused Burr of seeking to separate the West for his own personal gain. But this is the nature of the problem: these territories, including the Spanishcolonial lands, were so geographically vast they were open to all ambitious and opportunistic men. Burr was clearly among them.

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Notes 1. Key sources include volume 5 of Dumas Malone, Jefferson and His Time, Jefferson the President: Second Term, 1805–1809, 6 vols (Boston, 1981); and Milton Lomask, Aaron Burr: The Conspiracy and the Years of Exile, 1805–1856 (New York, 1982). See also Joseph Wheelan, Jefferson’s Vendetta: The Pursuit of Aaron Burr and the Judiciary (New York, 2005), and David O.  Stewart, American Emperor: Aaron Burr’s Challenge to Jefferson’s America (New York, 2011). 2. Jonathan W.  White points this out in “Thomas Jefferson, Aaron Burr and the American Way of Treason”, Smithsonian Magazine, http://www. smithsonianmag.com/history/thomas-jefferson-­a aron-burr-andamerican-way-treason-180962573/ (accessed 31 March 2017). 3. Gordon S.  Wood, Revolutionary Characters: What Made the Founders Different (New York, 2006), 226. 4. Nancy Isenberg, Fallen Founder: The Life of Aaron Burr (New York, 2007), 2. 5. Peter Charles Hoffer, The Treason Trials of Aaron Burr (Lawrence, KS, 2008), 15. 6. Peter S.  Onuf, The Mind of Thomas Jefferson (Charlottesville, 2007), 111–18, 134, and Walter Lafeber, “Jefferson and an American Foreign Policy”, in Jeffersonian Legacies, ed. Peter S. Onuf (Charlottesville, 1995), 374. 7. Stewart, American Emperor, 9, 62–65, who notes that “much about the United States was in flux in 1805. Even its physical boundaries were changing”. 8. François Furstenberg, When the United States Spoke French: Five Refugees Who Shaped a Nation (New York, 2014); Peter Kastor, The Nation’s Crucible: The Louisiana Purchase and the Creation of America (New Haven, 2004); and Thomas Fleming, The Louisiana Purchase (Hoboken, NJ, 2003). The 1783 Treaty of Paris ending the Revolutionary War recognised the Mississippi River as the official western boundary of the new United States. After the Purchase, the Rocky Mountains became the new boundary. See Joseph J.  Ellis, The Quartet: Orchestrating the Second American Revolution (New York, 2015), 26, 32, 68. 9. Thomas Jefferson to Maria Cosway, 12 October 1786, in Thomas Jefferson, Writings, ed. Merrill D.  Peterson (Washington, DC, 1984), 866–77. 10. Jefferson to Joseph Priestley, 29 January 1804, in ibid., 1142–3.

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11. Buckner F. Melton, Aaron Burr: Conspiracy to Treason (New York, 2002), 1. 12. Paul Schneider, Old Man River: The Mississippi Rover in North American History (New York, 2014), 1–2. 13. Aside from the studies previously mentioned, other valuable works include R. Kent Newmyer, The Treason Trial of Aaron Burr: Law, Politics, and the Character Wars of the New Nation (Cambridge, 2012), and Jean Edward Smith, John Marshall: Definer of a Nation (New York, 1996), 352–374. Older works include Donald Barr Chidsey, The Great Conspiracy: Aaron Burr and His Strange Doings in the West (New York, 1967); Thomas Perkins Abernethy, The Burr Conspiracy (New York, 1954); Francis F. Beirne, Shout Treason: The Trial of Aaron Burr (New York, 1959); Walter Flavius McCaleb, The Aaron Conspiracy and A New Light on Aaron Burr (New York, 1966). 14. Isenberg, Fallen Founder, 196–220. 15. Thomas Jefferson, The Anas, in Jefferson, Writings, 693. 16. The twelfth amendment, ratified in 1804, required presidential and vicepresidential candidates to run together, thus avoiding the events of the 1800 election. 17. This duel has long been the focus of historians. See, for example, Joanne B. Freeman, Affairs of Honor: National Politics in the New Republic (New Haven, 2001), 159–171, 187–198; W.  J. Rorabaugh, “The Political Duel in the Early Republic: Burr v. Hamilton”, Journal of the Early Republic, 15 (1995), 1–23. 18. Noted in Melton, Aaron Burr, 30. 19. Milton Lomask, Aaron Burr: The Years from Princeton to Vice President, 1756–1805 (New York, 1979), 141–144; Melton, Aaron Burr, 30–31. Lomask’s two-volume study is the definitive biography. 20. Alexander Hamilton to James Bayard, 16 January 1801, in Alexander Hamilton, Writings, ed. Joanne B. Freeman (Washington, D.C., 2001), 978, 981. 21. See, for example, Hamilton to Gouverneur Morris, 26 December 1800, and Hamilton to John Rutledge Jr., 4 January 1801, in ibid., 972–6. 22. Maya Jasanoff recounts the “Bowles” conspiracy in the 1790s linking it to the Burr conspiracy. William Augustus Bowles sought to seize the Floridas, New Orleans, and Mexico from the Spanish and turn the territory into an independent country allied with Britain. Maya Jasanoff, Liberty’s Exiles: American Loyalists in the Revolutionary World (New York, 2011), 237–242 with the link to Burr on 242, 309, 321–3. 23. Stewart, American Emperor, 45–6.

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24. Political Correspondence and Public Papers of Aaron Burr, ed. Mary-Jo Kline, 2 vols. (Princeton, 1983), II: 863–4. 25. Ibid., II: 865. Kline makes clear that King opposed the idea while recording it. 26. Ibid., II: 840–841. 27. Ibid., II: 921. 28. Lomask, Burr: The Conspiracy and the Years of Exile. 60. 29. Quoted in ibid., 63. 30. William H.  Safford, The Life of Harman Blennerhassett (Freeport, NY, 1850), 64–5, with the quotation on 65. 31. McCaleb, The Aaron Burr Conspiracy, 78. 32. R. Kent Newmyer, “Burr versus Jefferson versus Marshall,” Humanities: The Magazine of the National Endowment for the Humanities, https:// www.neh.gov/humanities/2013/mayjune/feature/burr-versus-jeffersonversus-marshall, (accessed 18 September 2017). 33. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). 34. Bruce A.  Ackerman, The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy (Cambridge, MA, 2005). 35. On Wilkinson’s duplicity, see Andro Linklater, An Artist in Treason: The Extraordinary Double Life of General James Wilkinson (New York 2009), who shows that as “Agent 13” for Spain, he undermined the United States, even betraying state secrets. 36. For a copy of the cipher letter, see Stewart, American Emperor, 309–312, and Kline, Political Correspondence, II: 986–8. 37. Ibid., II: 973, 985; Newmyer, The Treason Trial of Aaron Burr, 30; and Stewart, American Emperor, 309–310. 38. Malone, Jefferson the President: The Second Term, 1805–1809, V: 225. 39. Kline, Political Correspondence, II: 988. 40. Ibid., II: 989. 41. Quoted in Malone, Jefferson the President: The Second Term, V: 244. 42. Newmyer, The Treason Trial of Aaron Burr, 12. 43. Kline, Political Correspondence, II: 987. 44. The self-styled Baron de Bastrop was a Dutch Guiana-born adventurer who eventually moved to Holland where he was accused of embezzling taxes he had collected for the government. He fled to Spanish Louisiana and then settled in Spanish Texas after the Louisiana Purchase by the United States in 1803. There he established a colony, which became the Bastrop lands to which Jefferson referred in his address. See McCaleb, The Aaron Burr Conspiracy, 76.

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45. Thomas Jefferson, “Special Message on the Burr Conspiracy”, 22 January 1807, in Jefferson, Writings, 534. 46. Ibid., 538. Burr’s friend, Jonathan Dayton, was seeking British support. 47. For the case against them, the trial, verdict, and appeal, see Newmyer, The Treason Trial of Aaron Burr, 46–65. 48. See John Barrell, Imagining the King’s Death: Figurative Treason, Fantasies of Regicide, 1793–1796 (Oxford, 2000). 49. Ex parte Bollman, 8 U.S. (4 Cranch) 75, 127 (1807). 50. For Burr’s indictment, see Stewart, American Emperor, 313–15. 51. Abernethy, The Burr Conspiracy, 220, 240. 52. Supreme Court justices were each assigned to sit as trial judges along with one federal judge to hear cases involving violations of law against the United States. The local judge was Cyrus Griffin who served from 1789 until his death in 1810. The United States Courts of Appeal were not created until 1891 when the justices were relieved of their “circuit riding” duty. See Russell R. Wheeler and Cynthia Harrison, Creating the Federal Judicial System, 2nd ed. (Washington, 1994). 53. Coincidentally, both prosecutors in 1800 represented journalist James Callender in his sedition trial for publishing material critical of the Adams administration. 54. Newmyer, The Treason Trial of Aaron Burr, 112. 55. Marshall equivocated on this issue. In a letter to Justice William Cushing, he stated that “the opinion of the supreme court in Bollman & Swartout, certainly adopts the doctrine of constructive treasons”. But, he asked, “How far does that case carry this doctrine? Ought the expressions in that opinion to be revised?” Marshall to Cushing, 29 June 1807, in John Marshall, The Papers of John Marshall, ed. Charles F. Hobson, et al., 12 vols. (Chapel Hill, 1974–2015), VII: 60. 56. The trial report was fully recorded by court stenographer, David K. Robertson. See Robertson, Reports of the Trials of Colonel Aaron Burr, 2 vols. (1808; rpt. Delhi, 2016). Another court stenographer, Thomas Carpenter, also published a record, which included Burr’s misdemeanor trial in violation of the Neutrality Act of 1794 for contemplating war against Spain. The trial immediately followed the treason proceedings. See Carpenter, The Trial of Col. Aaron Burr, 3 vols. (Washington, 1807–1808). 57. John Marshall, United States v. Burr, 13 June 1807, 7:37–50. 58. Newmyer, The Treason Trial of Aaron Burr, 148. 59. Editor’s note, in Marshall, Papers, VII: 7.

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60. John Marshall, United States v. Burr, (25 Cas 55, Virginia), 31 August 1807, in ibid., VII: 95, for the subpoena. 61. Ibid., VII: 96. 62. Ibid., VII: 108. Throughout his opinion, Marshall cited the authorities such as jurists Edward Coke, Chief Justice Matthew Hale, Michael Foster, Edward Hyde East, Sir William Blackstone, and his colleagues on the Supreme Court, Justices Samuel Chase and William Paterson. 63. Ibid., VII: 113. 64. Ibid., VII: 114. 65. Ibid., VII: 115–116. 66. Hoffer, The Treason Trials of Aaron Burr, 171. 67. Jefferson to William Branch Giles, 20 April 1807, in Jefferson, Writings, 1175. 68. Beirne, Shout Treason, though Beirne’s views remained fairly objective in his treatment of the accusations against Burr. 69. “[Burr] was one of history’s greatest losers.” Chidsey, The Great Conspiracy, 144. 70. Wheelan, Jefferson’s Vendetta, 263. 71. Hoffer, The Treason Trials of Aaron Burr, 193. 72. McCaleb, The Aaron Burr Conspiracy, 27. 73. Lomask, Burr: The Conspiracy and the Years of Exile, 112, 358–359. 74. Isenberg, Fallen Founder, 282. Isenberg explains that “a filibuster was an invasion by a private army without government sanction”. 75. Newmyer, The Treason Trial of Aaron Burr, 181. 76. Melton, Aaron Burr, 235. 77. Kline, Political Correspondence, II: 921–922. 78. Stewart, American Emperor, 299. Stewart comments, “The search for Burr’s single plan is a pursuit of a mirage”. See also James E. Lewis Jr., The Burr Conspiracy: Uncovering the Story of an Early American Crisis (Princeton, 2017), which was published too late for consideration in this essay. After two decades of work, Lewis also notes the inconclusiveness of Burr’s motives and is interested in the stories that developed after the events of 1805–7. Eric Foner observes that “this is a book about the indeterminacy of historical evidence rather than history itself. Instead of offering his own narrative of the conspiracy, Lewis reconstructs the ‘stories’ Americans told themselves in order to decide what Burr’s aims were, how he succeeded in winning the support of several hundred men who knew about his plans, and what these events said about the stability of republican government in general and the US in particular.” In the end,

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Foner notes that Lewis “sits on the fence,” unable to determine what exactly Burr was up to. See Eric Foner, “The Embryo Caesar,” London Review of Books, 14 December 2017. 79. Quoted in many sources. See, for example, Schneider, Old Man River, 189.

Bibliography Political Correspondence and Public Papers of Aaron Burr, ed. Mary-Jo Kline, 2 vols. (Princeton, 1983). Thomas Carpenter, The Trial of Col. Aaron Burr, 3 vols. (Washington, 1807–1808). Alexander Hamilton, Writings, ed. Joanne B.  Freeman (Washington, DC., 2001). Thomas Jefferson, Writings, ed. Merrill D. Peterson (Washington, DC, 1984). John Marshall, The Papers of John Marshall, ed. Charles F. Hobson, et al., 12 vols. (Chapel Hill, 1974–2015). David K. Robertson, Reports of the Trials of Colonel Aaron Burr, 2 vols. (1808; rpt. Delhi, 2016). Thomas Perkins Abernethy, The Burr Conspiracy (New York, 1954). Bruce A. Ackerman, The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy (Cambridge, MA, 2005). John Barrell, Imagining the King’s Death: Figurative Treason, Fantasies of Regicide, 1793–1796 (Oxford, 2000). Francis F. Beirne, Shout Treason: The Trial of Aaron Burr (New York, 1959). Donald Barr Chidsey, The Great Conspiracy: Aaron Burr and His Strange Doings in the West (New York, 1967). Joseph J. Ellis, The Quartet: Orchestrating the Second American Revolution (New York, 2015). Thomas Fleming, The Louisiana Purchase (Hoboken, NJ, 2003). François Furstenberg, When the United States Spoke French: Five Refugees Who Shaped a Nation (New York, 2014). Peter Charles Hoffer, The Treason Trials of Aaron Burr (Lawrence, KS, 2008). Nancy Isenberg, Fallen Founder: The Life of Aaron Burr (New York, 2007). Maya Jasanoff, Liberty’s Exiles: American Loyalists in the Revolutionary World (New York, 2011).

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Peter Kastor, The Nation’s Crucible: The Louisiana Purchase and the Creation of America (New Haven, 2004). Walter Lafeber, “Jefferson and an American Foreign Policy”, in Jeffersonian Legacies, ed. Peter S. Onuf (Charlottesville, 1995), 370–91. James E. Lewis Jr., The Burr Conspiracy: Uncovering the Story of an Early American Crisis (Princeton, 2017). Andro Linklater, An Artist in Treason: The Extraordinary Double Life of General James Wilkinson (New York 2009). Milton Lomask, Aaron Burr: The Years from Princeton to Vice President, 1756–1805 (New York, 1979). Milton Lomask, Aaron Burr: The Conspiracy and the Years of Exile, 1805–1856 (New York, 1982). Dumas Malone, Jefferson and His Time, Jefferson the President: Second Term, 1805–1809, 6 vols. (Boston, 1981), vol. 5. Walter Flavius McCaleb, The Aaron Burr Conspiracy; and A New Light on Aaron Burr (New York, 1966). Buckner F. Melton, Aaron Burr: Conspiracy to Treason (New York, 2002). R.  Kent Newmyer, The Treason Trial of Aaron Burr: Law, Politics, and the Character Wars of the New Nation (Cambridge, 2012). R.  Kent Newmyer, “Burr versus Jefferson versus Marshall,” Humanities: The Magazine of the National Endowment for the Humanities, https://www.neh. gov/humanities/2013/mayjune/feature/burr-versus-jefferson-versus-marshall, (accessed 18 September 2017). Peter S. Onuf, The Mind of Thomas Jefferson (Charlottesville, 2007). William H. Safford, The Life of Harman Blennerhassett (Freeport, NY, 1850). Paul Schneider, Old Man River: The Mississippi Rover in North American History (New York, 2014). David O. Stewart, American Emperor: Aaron Burr’s Challenge to Jefferson’s America (New York, 2011). Joseph Wheelan, Jefferson’s Vendetta: The Pursuit of Aaron Burr and the Judiciary (New York, 2005). Russell R. Wheeler and Cynthia Harrison, Creating the Federal Judicial System, 2nd ed. (Washington, 1994). Jonathan W. White, “Thomas Jefferson, Aaron Burr and the American Way of Treason”, Smithsonian Magazine, http://www.smithsonianmag.com/history/ thomas-jefferson-aaron-burr-and-american-way-treason-180962573/. Gordon S. Wood, Revolutionary Characters: What Made the Founders Different (New York, 2006).

13 Irish Political Trials, 1793–1848: Associationalism, Emotion and Memory Martyn Powell

In 1798 and 1803 two leaders of Irish rebellions were tried in Dublin, found guilty and then executed outside the prison in Thomas Street. Both had undergone lengthy, arduous, and emotionally fraught trials. Both had been betrayed by informers. Both had “proclamations” outlining revolutionary plans presented against them as evidence. Both also had more literary pretensions and examples of their poetry survive. The first, John Sheares, effective leader of the Leinster Directory of the United Irishmen in the lead-up to the rebellion, has uncontrovertibly been overshadowed by the second, Robert Emmet, now firmly established in the pantheon of heroes of the Irish liberation struggle. It could be argued that their trials played a major role in establishing the degrees of their fame. Both men had “moments” in the trial process that shaped the way in which public opinion later viewed them. For Sheares it was the link to his brother Henry, tried with him and also executed, that forged his posthumous reputation. For Emmet, it was his

M. Powell (*) Department of History, University of Bristol, Bristol, UK e-mail: [email protected] © The Author(s) 2019 M. T. Davis et al. (eds.), Political Trials in an Age of Revolutions, Palgrave Histories of Policing, Punishment and Justice, https://doi.org/10.1007/978-3-319-98959-4_13

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speech from the dock and sparring with the judge, that, while designed to remove any sense that he may have been colluding with authoritarian France, confirmed him as a nationalist hero, who refused to let his epitaph be written until Ireland was free.1 As Emmet himself said, “it is a claim on your memory, rather than on your candour, that I am making”.2 Popular memory of the two men was shaped by the reporting of the trials and then by the way in which they were written about. Robert Southey and Percy Bysshe Shelley were inspired to write poems on Emmet and his childhood friend Thomas Moore wrote verses on Emmet and on the death of the woman he admired, Sarah Curran. Richard R.  Madden wrote Emmet’s biography in 1847, and more biographies have followed, three coming with the 2003 bicentenary of his rising.3 John Sheares also received poetic attention; the primary vehicle being a poem written by Lady Jane Wilde under the pseudonym “Speranza” and published in the Nation newspaper. It came five years after Madden’s United Irishmen, Their Lives and Times, which devoted the second of the first two volumes to the Sheares and likely influenced both Wilde and Lady Christine Longford, whose United Brothers play of 1942 took its title, and much else, from Madden.4 Wilde’s poem is said to have been a huge success in Dublin, and was performed by balladeers throughout the city. “The Brothers” (1847) was a celebration of the two men’s affection for each other – a tour de force of emotional lyricism but, arguably, like its author, it has not been taken particularly seriously by historians and literary critics. There are relatively few academic studies focusing on Wilde, who ill-­ fitted the literary revival scene (much too political) and is remembered instead as mother of the more famous Oscar. Indeed, while we are waiting for the first serious article devoted to “The Brothers”, a number of works have focused on the variations of Emmet’s trial speech.5 Historiographical developments – particularly new approaches to the history of sociability, emotion and intimacy  – make this an apposite moment to look at these trials again, and, indeed, others involving Irish radicals and republicans from the “age of revolutions”. The “revisionist controversy” focused in part on the significance of emotion in the historical enterprise. It tended to be with the accent on the historian’s craft but those under examination were not entirely removed from the question. Brendan Bradshaw argued that it was very difficult to produce good

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­istory if a commitment to emotional detachment was driving the h agenda.6 This was a controversial point, and aspects of it resurfaced during the bicentenary of the 1798 rebellion. Tom Dunne published a personal remembrance of 1798 in response to work by Kevin Whelan.7 In an article that came out in the run-up to 1998, Louis Cullen asked historians whether we were remembering the right leaders – and that we should more properly be commemorating the United Irish “men of action”. It was, by implication, a call for historians to engage not with wordsmiths but those who were prepared to fight and die for their country.8 Elsewhere, the notion of blood sacrifice has been examined from a position of historiographical hostility by Conor Cruise O’Brien.9 Most interesting as a starting point for this case study, however, is the first great historian of the United Irishmen, R.R. Madden, as here we find a combination of emotional commitment from the historian, and an interest in the sociability and intimacy that was such an important part of eighteenth-century club-life. Barbara Rosenwein, in her work on emotional communities, notes that “the study of emotions should not (in the end) form a separate strand of history but rather inform every historical inquiry”. And, taking this as good advice, it is not my intention here to provide an emotional history of Irish political trials – though the courtroom setting has been judged as worthy of investigation by William Reddy, a leading historian of emotions, and Rosenwein herself referenced “law courts” as an emotional community.10 Instead, I would argue that although popular emotional responses to Irish political trials have been key to the way in which they have been ingested by historians, these have usually been removed from their context, and seen rather as the legitimising of a place in the nationalist canon. It could be argued that such case studies need to be put back into the court setting, and the particular emotional resonances created by the trial situation – which were not always “national” in their focus. There has, of course, already been work on Irish political trials. Biographies of leading Irish radical figures such as Wolfe Tone and Emmet could not but include reference to the experiences in court at the close of their lives. Patrick Geoghegan in his biography of Emmet begins and ends with his famous trial speech.11 In 2009, Myles Dungan published a popular study of Irish political trials, with chapters on Emmet,

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the printer John Magee, who was tried in 1813 for his “history” of the Duke of Richmond’s administration, and Daniel O’Connell.12 Kenneth Johnston’s Unusual Suspects, focusing more generally on the victims of Pitt’s clampdown on radicalism, includes a chapter on William Drennan,13 and Guy Beiner covers William Orr’s trial in his article on the social remembrance of Orr.14 Other more general works on the law have touched upon trial situations, including Niamh Howlin’s book on Irish juries, and perhaps most relevant here Katie Barclay has explored masculinity and emotion in the nineteenth-century Irish courtroom experience.15 With Dungan’s work as an obvious exception, there has been relatively little attention devoted to Irish political trials as a historical phenomenon worthy of synthesis. Indeed, even Dungan keeps his trials separated by chapter. This essay looks to establish commonalities within some of the major political trials of the French Revolutionary period. But while the majority of the coverage will dwell upon the period covered by United Irish activity, the run up to 1848 is crucial as it shows the ways in which trials of those earlier radicals influenced later trial performances, and the reporting thereof. In this sense it ties in with recent work by James Quinn on the intellectual interests of the Young Ireland movement, and, more generally with studies of historical memory and the 1790s.16 There is a deliberate attempt in this essay to put the emotion back into the trial experience, but this is less about the history of emotions for its own sake and more an attempt to explore the ways in which Irish trials could be associational and intimate settings – exhibiting a political culture in their own right. Claire Armon Jones has written on the social functions of emotion and, in the context of the sociability that could occur in and around the trial spaces as well as in the clubs and societies that so often enveloped those accused, this is an important issue.17 Outside of the court, public opinion reacted to these performative occasions. Some of those on trial were aware of audiences both within and without the courtroom, and the ways in which trials were reported influenced the ways in which the proceedings – and the crimes and sentences – were received in Britain, Ireland and beyond. Noteworthy popular reception was usually reserved for senior figures in republican and radical circles who were put on trial and, though this study would seek to

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avoid being concerned only with a ‘leadership’ generation, it is perhaps inevitable that the material available would elevate certain trials above others. That said, a range of trials will be included here, and as well as considering how they were understood at the time, this study will look at their future uses to those seeking to drive forward visions of Irish independence, through lineages of association; the role of witnesses and informers; the transmission of trial speeches and last words, often creating and reinforcing emotional communities.

I Major Irish political trials during this period were dominated by associational culture. Almost all of the individuals put on trial were members of the United Irishmen, and then, in the nineteenth century, the Catholic Association and the Repeal movement. Later radical figures enthusiastically recalled the sprouting of associationalism in the 1780s and 1790s. The Young Irelander Thomas MacNevin produced an edition of the trials of the United Irishmen in 1844,18 and in 1845 published The History of the Volunteers of 1782. John Mitchel titled his newspaper the United Irishman. As we will see, commentators connected with Young Ireland and Repeal found the personal relationships that were forged in these associations key to their lustre. Trials also reveal a variety of intimacies in the courtroom that existed outside of these formal associations  – networks created by family, education, and particularly those forged in professions. To a degree the professional linkages were a consequence of the careers pursued by the United Irish leadership group. Many of these men – Wolfe Tone, the Sheares brothers, Thomas Addis Emmet, Simon Butler, William Sampson – were lawyers, or had at least received legal training. Many had also known each other at Trinity College Dublin. The consequence of these connections was an unusually personal texture to the Irish political trials of the 1790s and early 1800s. Lord Norbury made this point as judge in Emmet’s trial, noting that Emmet had been educated “amidst the ingenuous youth of your country, many of whom now surround you”. Norbury imagined them feeling: “Had it been an open enemy I could have borne it; but that it should be my companion and my

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friend!”19 In some cases friendship was unlikely. Henry Sheares and John Fitzgibbon, later Lord Clare, were rivals for the hand of Alicia Swete; indeed, Madden puts much of the blame for the fatal direction of the trial upon personal conflict between Clare and the Sheares brothers.20 Nevertheless, some friendships were either still evident, or could at least be called on, notwithstanding the defence-prosecution divide. Tone was permitted to go into exile because Marcus Beresford, a lawyer friend from his youth, and son of the influential John Beresford, head of the revenue commission, had intervened in his favour. William Plunkett, prosecuting Robert Emmet, had been close to the Emmet family, and had represented Henry Sheares. It was also common for United Irishmen from a legal background to act for other radical figures. United Irish newspaper printer Peter Finnerty’s team included the ever-present John Philpott Curran, but also Leonard MacNally, Henry and John Sheares and William Sampson.21 Thomas Addis Emmet defended Hamilton Rowan, and Rowan, along with Henry Sheares and Thomas Addis Emmet acted for the printer of the Cork Gazette, Denis Driscol, who had been accused of seditious libel. John Sheares believed – at least according to his defence brief – that these activities had made the brothers a government target.22 These individuals rubbed shoulders in Dublin’s multifaceted associational culture, and the political trials that took place from the early 1790s demonstrated why it was so difficult for it to continue in the same form as the decade progressed. Madden noted the “private intimacy which existed between persons of such incongruous public sentiments, as those members of the first Reform and United Irishmen Societies, the Historical Society, and various clubs and associations of a later date”.23 The schisms in the Whiggish Aldermen of Skinner’s Alley present a good example of this fractured sociability. The society accommodated a number of United Irishmen, and some of these were lawyers – Archibald Hamilton Rowan, Matthew Dowling and George Joseph Browne for example – and some would find their way into the dock – Hamilton Rowan and James Napper Tandy. Dublin’s Bar club had eight members of Dublin’s United Irishmen, including Hamilton Rowan and John and Henry Sheares.24 Even a body as apolitical as the musical society, the Hibernian Catch Club – which also had a strong lawyerly membership – managed to include Wolfe Tone and James Whitestone, who prosecuted Napper Tandy in his trial for

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provoking and challenging Dublin Castle-supporting lawyer John Toler.25 Whitestone replaced Tone in the Catch Club when his position became vacant. Another lawyer member, John Boardman, was called on to act as a character witness for the Sheares brothers. He affirmed that he had been “tolerably intimate with them”, and that they were eager to bring about a parliamentary reform and Catholic emancipation, “No farther as far as I could collect”.26 Associational connections were also evident in trials involving activity outside of Dublin. Orr’s masonic links were affirmed by the involvement of his brother Freemasons in his burial following execution.27 The trial of Lawrence O’Connor, a schoolteacher, accused of administering an unlawful oath to a soldier in Kilcock, revealed that O’Connor was both a Freemason and a member of the Friendly Brothers of St Patrick. O’Connor’s lawyer, William Ridgeway, used this associational background to render more legitimate his adherence to Defenderism. As Ridgeway put it, in forming a new association, O’Connor had “adopted those cabalistic figures, which were calculated to furnish harmless diversion, but by the magic of crown lawyers were tortured into plans for promoting a French invasion”.28 These connections led to displays of emotion, and occasionally very personal reflections on the backgrounds, even the kin, of those involved. The Emmet case was particularly entangled as the most likely barrister to act on his behalf – John Philpott Curran, was the father of Sarah Curran, for whom Emmet had strong affection and, more seriously, to whom he had disclosed elements of his plan. Curran was furious, and Emmet realised that this could not but have serious ramifications for the make­up of his legal team.29 Lord Carleton, judge in the Sheares trial, who, like the Sheares, was from Cork, said that he knew both the Sheares’ mother and father: “one of them, happily for himself, is no more; the other, for whom I have the highest personal respect, probably by the events of this day, may be hastened into futurity”.30 Lord Norbury referred to Emmet’s father, who “left you a proud example to follow” and brother, “one of the greatest ornaments of the bar”.31 William Plunkett’s decision to further upbraid Emmet in a prosecution recap, notwithstanding the fact that Emmet had offered no evidence in his defence, became a more sensitive issue due to Plunkett’s close relationship with Emmet’s father. William Cobbett attacked Plunkett in his Weekly Journal, presenting the views of

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a fictitious Emmet: “That viper whom my father nourished!”, who “has wantonly lashed, with a speech to evidence, the dying son of his former friend”. As a consequence, Plunkett successfully prosecuted Cobbett for libel but his behaviour became part of the popular memory of the trial.32 The Repealers had an anti-Plunkett poem that referred to the Emmet trial,33 and his obituary in London’s Standard referred to his “unnecessary speech to evidence”, and pointedly referred to his friendship with Wolfe Tone, Temple Emmet and Thomas Addis Emmet.34 The Freeman’s Journal, on the hundredth anniversary of Emmet’s birth, wrote that Plunkett had “needlessly, unprofessionally, and inhumanly delivered the fierce philippic against the all but sentenced man”.35 Historians have discussed jury-packing in the Irish context and the failure to keep pace with British reforms.36 But outside of the legislative history, it is clear that the qualifications for jurors meant another example of personal connection might come into play  – prominent figures in Dublin civic life could appear in juror lists; though they could also be vetoed, and Emmet eventually challenged twenty-one jurors.37 John Claudius Beresford was challenged in the William Jackson trial, as was Mark Bloxham, who sat on Dublin’s Common Council.38 More acceptable to Jackson was the Dublin alderman and printer John Exshaw, who had worked closely with Hamilton Rowan on the notorious Mary Neil seduction case.39 Sir John Ferns, also in the Hibernian Catch Club, and a friend of Curran’s was a juror in the Sheares trial. At the start of his trial speech Curran played on this intimacy: “I have known some of you, – more than one, or two, or three – in some of those situations where the human heart speaks its honest sentiments”.40 A number of cases became notorious for problematic jury selection. The jury in Orr’s case was a central element of defence disquiet, as two of the jurors claimed that spirituous liquor had been brought to the jury the night before the verdict was delivered; drunkenness ensued, and two jurors were threatened with being prosecuted as United Irishmen if they did not find Orr guilty. In his dying declaration, William Orr complained at the “verdict of twelve men, who should have been indifferently and impartially chosen; how far they have been so, I leave to that country from which they have been chosen to determine”.41 An affidavit in Hamilton’s Rowan’s trial was produced to show that one juror, George

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Perrin, of Castle Street, had declared that “this country and its commerce could never flourish until Napper Tandy and Hamilton Rowan were hanged or transported”. Rowan also complained that the sheriff responsible for impanelling the jury, John Giffard, was the printer of the government-­supporting Faulkner’s Dublin Journal and a government office-holder, and therefore predisposed against him.42 Issues with jurors being predisposed against the United Irishmen also came up in Arthur O’Connor’s trial.43 That said, affection and respect for those on trial could also spread through the courtroom. The jury in the Orr case wanted “to know whether they might not find some qualified verdict, of the Prisoner’s having administered an unlawful oath, which should not affect the life of the Prisoner”. This was refused, and instead, when they found Orr guilty they recommended him for mercy.44 The jury in William Jackson’s trial also recommended clemency, as did the jury for Kildare United Irishman Michael Griffin. In all of these cases it was denied.45 Popular remembrance of the Sheares case may have been influenced by the possibility that some respite might have been granted for Henry, had it not been for Lord Clare’s spite, though Jonah Barrington’s recollections provide a version more favourable to Clare.46

II It is not the intention of this article to weigh up deficiencies in the late-­ eighteenth-­century Irish legal system, or indeed to gauge the extent to which the measures employed by Pitt’s ministry were appropriate. Rather it aims to consider these dimensions within an alternative framework – looking, in this section, at the role of witnesses and informers from the perspective of associational and other intimate linkages, and also considering their resurrection in later radical contexts. Trial questioning from defence barristers, often armed with assiduously compiled local knowledge, brought up issues of character and friendship, risk and reward and credit and debt. One of the oddities of the treason cases brought against leadership figures in the United Irish movement, is that if they had taken place in England the Crown cases would have been much more difficult to prove, requiring as they did more than one witness. This made the role

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of Irish informers critical – one successful spy, if believed, could send a United Irishman to the scaffold. Thomas Bartlett has written on informers in this period, and particular attention has been paid to the most notorious spy, the ex-United Irishman, and defence counsel for numerous colleagues, Leonard MacNally. The testimony of another informer, Thomas Reynolds, was key to the prosecution of leading members of the Leinster Directory in 1798.47 The Sheares trial was one of the most egregious examples of men being condemned on the evidence of a single witness and informer. And, as in many other cases, Captain John Warneford Armstrong’s reputation was far from untarnished. John Sheares’ defence brief contained evidence of his radicalism and indebtedness.48 One witness, his uncle, alleged that Armstrong had been forced to leave the Somerset militia because of his democratic principles. He claimed to have heard Armstrong say, “that if there could be found no other person for the purpose, he would, with pleasure, become the executioner of king George III and glory in the deed”; words that Armstrong says in Henry Sheares’ house in Longford’s The United Brothers.49 The testimony of John Cockayne, another informer, was sufficient to condemn William Jackson. Cockayne had been tried, and acquitted, of perjury, and Curran referred to his “infamously bad” public character as an attorney.50 Cockayne acknowledged that he was due to receive financial recompense from Pitt; as Curran put it: “Is it then on the evidence of a man of this kind, with his pardon in his pocket, and his bribe – not yet in his pocket – that you can venture to convict the prisoner.”51 Orr insisted in court and in his dying declaration that Hugh Wheatley had committed perjury.52 At the scaffold, James O’Coigly also pronounced that “My life is falsely and maliciously taken away, by corrupt and base perjury”.53 Negative character testimony was introduced against Thomas Reynolds in the trial of Oliver Bond, including from his brother-in-law, Henry Witherington, and another relation, Valentine O’Connor.54 A case of fraud using a fictitious bond practised on an elderly woman living with him, was revealed through the efforts of Oliver Bond’s wife; Reynolds accused Mrs. Bond of attempting to bribe the woman, and of threatening her with gaol; an indication of the “informal” efforts being made by United Irish sympathisers in the lead-up to trials.55

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Rewards proffered by government were revealed under questioning. John Lyster, a witness against Hamilton Rowan, had no employment at the time of meeting Rowan, but after going to the authorities he became an ensign in the 40th regiment – a position that he said was obtained through the interest of Lady Hobart. Curran claimed that “he came to court against Mr Rowan to pay down the purchase money”.56 Frederick Dutton, a key witness against Arthur O’Connor had already acted as a crown witness in another case and may have been given the position of quarter master as a consequence. Reynolds’ monetary rewards were detailed under questioning by Curran in the Leinster Directory trials. This could also work in the other direction, and another witness in the O’Connor trial claimed that he had been offered 300 pounds not to testify against the prisoners.57 Leonard MacNally certainly received financial recompense and, though not a witness, he was a key member of many of these trials, acting as a none-toohelpful defence counsellor. He kept the government briefed on his clients’ tactics, and on one occasion at least his behaviour may have proved lethal to his former friends. Lord Cork wrote two letters on Armstrong’s character for the Sheares trial undermining his credibility as a witness. MacNally did not forward them to the Castle until the day of the Sheares execution. As with other areas of the trial process, the role of the witness had emotional ramifications for those involved. There was a strong likelihood of a betrayal of principle, of friendship, of intimacy. Edmund Burke, in his speech to the electors of Bristol in 1780, touching on informers in the context of the penal laws, broadened the question to include dangers to sociability and civil society. He referred to the way in which “seeds of destruction are sown in civil intercourse, in social habitudes”, and the lines were used by Thomas Erskine in Thomas Hardy’s trial as well as by Madden in reference to Armstrong and the Sheares.58 Cockayne had known William Jackson for eighteen years, and had enjoyed “greatest and most confidential friendship with him”.59 As Curran put it: “He was a spy upon his friend”.60 Patrick Lynch, an Irish language scholar, said in court that he had not wanted to testify against Thomas Russell as “he was a friend and benefactor, and he wished not to be his prosecutor”.61 Some of these individuals – as in the case of Armstrong – had been welcomed into family homes. His design, wrote John Sheares, “was to Entrap the unwary virtue and betray whom he kissed”.62 Henry Sheares blamed Armstrong for the

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way in which his beloved family was torn apart; he was the “wretch who took away our lives”.63 John painted a touching familial scene to draw out this element in his defence brief – a passage that was later quoted by Young Irelander Thomas Davis: “During Dinner and until the Females withdrew, The most perfect picture of Domestic happiness that could soften the most obdurate heart was presented in the Family then collected together – It consisted of the Prisoners Mother and Sister and the Wife and three young children of the prisoner Henry on all of whom he Doats with the tenderest affection”. Yet, he continued, “could not this Scene move the prosecutor from his purposed Treachery”, rather “he was very lively and seemed to enjoy the ruin he meditated”.64 It is echoed in Wilde’s “The Brothers”: Before them, shrinking, cowering, scarcely human, The base informer bends, Who, Judas-like, could sell the blood of true men, While he clasped their hands as friends. Aye, could fondle the young children of his victim, Break bread with his young wife, At the moment that for gold his perjured dictum Sold the husband and the father’s life.

Madden used the line “caressed his infant children”, and he also included reference to Reynolds’ intimacy with Bond’s family: “fondling his infant child in his arms”.65 Armstrong’s role in the trial consequently became part of its historical memory. The MP Dominick Ronanyne, cousin to Daniel O’Connell, apparently said that “Rome had her Catiline, Ireland her Armstrong”. In 1843 the Nation reported on Armstrong’s continued activity in the public sphere and in this sense it was clear that the emotional register of Armstrong’s betrayal suited the needs of the Young Ireland radicals, influenced as they were by romantic nationalism. Broader interest in the role of informers was indicated through the anonymous publication of the provocative The Mercenary Informers of ’98 in the mid-1840s.66 Peter Finnerty, accused of publishing a libel in the Press relating to the William Orr trial, was prepared to say in court that informing on the guilty party did not sit well with his conscience. For Finnerty, it was “a proposal which every man of common honesty, or common pride, must

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spurn at”, a stance that did not sit well with the judge.67 Demonstrating another betrayal of intimacy, James O’Coigly was furious that a clergyman attending him before his execution had tried to persuade him to confess his guilt and then name his accomplices in return for a pardon; the same clergyman was also present at Marcus Despard’s execution, and he was also pressed for information.68 The Finnerty case moved Curran to pronounce in some detail on the role of the informer in trials. Using nightmarish Gothic imagery, he described the informer, “after having been dug out of the region of death and corruption”, becoming “the living image of life and of death, and the supreme arbiter of both”. He asked his audience, “Have you not marked how the human heart bowed to the supremacy of his power, in the undissembled homage of deferential horror? How his glance, like the lightening of heaven, seemed to rive the body of the accused, and mark it for the grave, while his voice warned the devoted wretch of woe and death”.69 More positive personal connections were evinced through the character witnesses that were brought to speak on behalf of prisoners. Perhaps the most famous came in Arthur O’Connor’s Maidstone trial which saw a number of high-profile Whigs, including Charles James Fox and Richard Brinsley Sheridan, testify to his loyalty. The Foxite lawyer Thomas Erskine said that “he is a man of the strictest honour and integrity”, and that he is incapable “of acting with treachery or duplicity to any man”. Fox considered him “perfectly well affected to his country”. Sheridan said that he “Never met any man who was so determined in reprobating the idea of any party or body of men in this country, under any pretence of grievances whatever, encouraging the idea of French assistance”.70 James Gillray would later use a direct transcript of the court proceedings in his caricature Evidence to character; − being a portrait of a traitor, by his friends and & by himself (1798), juxtaposing it with O’Connor’s confession to the Commons Secret Committee.

III Many of the most senior United Irish figures were given death sentences and a fatal reward for involvement in radical activity went some way towards ensuring that these trials left a very particular imprint upon the

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minds of the public. This was certainly the case for William Orr, the Sheares brothers, Wolfe Tone and Robert Emmet. Death sentences could provide opportunities for emotional declarations; for last words to the court-house – supposedly in request that the sentence should not be carried out, though this was court ritual rather than court reality. Such responses contributed to the emergence of a new breed of secular (and some not so secular) martyrs. Robert Emmet, it could be argued, occupies the premier position in this pantheon. Although the emotional outpourings at the Sheares trial were arguably as intense as during Emmet’s, the inward nature of the Sheares’ tragedy – directed towards each other as brothers, and towards their families – was less useful in nationalist (with the possible exception of Young Ireland) iconography than Emmet’s more tub-thumping address. Lord Norbury was certainly aware of the dangers as the nature of Emmet’s speech became apparent – he referred to “the dangerous medium of eloquent, but perverted talents”.71 This was partly a consequence of their differing expectations from the trial; the Sheares – even John – had hopes of being found not guilty. And so, in his defence brief, John Sheares planned to present his proclamation not as a call to arms but as “a mere Speculative Writing”.72 John’s trial speech made it clear that his primary thoughts were for his brother: “I do not pray that I should not die” – rather he asked for more time for Henry: “the husband, the father, the brother and the son, all comprised in one person, holding these relations, dearer in life to him than any other man I know”.73 These lines were echoed in Wilde’s poem: I have no ties of children or of wife; Let me die – but spare the brother who more dearly Is loved by me than life.

Emmet’s speech was designed to recalibrate the way in which he would be remembered – as leader of an Irish national movement rather than as an agent of Napoleon and the French. Indeed, he directed MacNally to ask questions of witnesses to that purpose, as prosecution witnesses had hinted otherwise.74 John Sheares may have had some sense of his reputation, as he began his pre-sentence speech with a rebuttal of a prosecution charge – “that of holding out to the people of Ireland a direction to give

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no quarter to the troops fighting for its defence”. He passionately denied this, claiming “that the favourite doctrine of my heart was  – That no human being should suffer death, but where absolute necessity required it”.75 It is clear from his defence brief – at a time when he may have had hopes of avoiding a guilty verdict – that he recognised that this was a feature of the proclamation that would need to be countered in court. Sheares wrote: “It will be difficult for Counsel to explain these parts so as to do justice to the sentiments and feelings of the writer and save his character from the unmerited imputation of Cruelty”.76 He wrote a letter further explaining the matter to the clergyman attending him in his last days.77 Longford allows him to add a footnote to the proclamation in her play: “I want to make clear that this is war, and must be waged honourably”.78 Emmet had a similar issue with his proclamation, as he requested a section of the document found in the depot to be read out that emphasised the wish to avoid death sentences and flogging after the uprising.79 Emmet has had his trial speech portrayed in a range of literary and theatrical works, the first performance coming as early as 1806.80 Remembrance of the Sheares brothers has fallen to two female writers – Wilde in the middle of the nineteenth century with ‘The Brothers’ and Longford in her mid-twentieth century play The United Brothers. In both cases the familial drama dominates. Grief focuses on the individual in the Southey, Shelley and Moore verses on Emmet, though it also moves to the national stage. That said, Moore shows that Emmet’s latter days could be pitched with an inflection of romantic intimacy  – a figure brought down by his determination to see Sarah Curran once more before he went into exile; Michael Davitt, the land league founder, later noted this aspect.81 Emmet’s fondness for Sarah was made clear by the publication of his final letters: “there have been moments in my imprisonment when my mind was so sunk by grief on her account, that death would have been a refuge”, and by his trial speech, “For the public service, I abandoned the worship of another idol I adored in my heart”.82 It might be noted that Longford’s version of the Sheares story does not focus on the trial, but rather the lead up to their downfall – Maria Steele, the woman John loves, becomes a much more central character. And yet although there is no trial scene, no emotional brotherly embrace, it does make use of courtroom evidence – particularly relating to Armstrong – and

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the surviving correspondence from John Sheares between sentence and execution, which explains why it has been seen as a shift to realism in fictional treatment of the 1798 rebellion.83 Drennan’s ‘Wake of William Orr’ also invokes the familial tragedy that was a key part of the Orr case: Who is she with aspect wild? The widow’d mother with her child, Child new stirring in the womb! Husband waiting for the tomb!

Orr’s family featured in his dying declaration: “To the generous protection of my country I leave a beloved wife, who has been constant and true to me, and whose grief for my fate has already nearly occasioned her death. I leave five living children who have been my delight”.84 In the Finnerty case, Curran exhorted the jurymen to tell their children, “the story of Orr; tell them of his captivity, of his children, of his crime, of his hopes, of his disappointments, of his courage, and of his death”.85 There are also references in Drennan’s poem to Orr as a “brother” in a homosocial sense – “Here our murdered brother lies”, “Brothers’ blood will not unite” and “Here we watch our brother’s sleep”. The United Irishmen, according to Drennan, were to be: “a benevolent conspiracy – a plot for the people  – no Whig Club  – no party title  – the Brotherhood of its name”.86 When radical bookseller Patrick Byrne recommended Captain Armstrong to the Sheares, he described him as a “true brother”, a line used in Longford’s The United Brothers.87 Longford also references a poem written by John for Henry, most likely ‘Friendship’, written in 1789, and included by Madden in The United Irishmen.88 The timing of Wilde’s publication, appearing in the Nation at the height of the Repeal movement, is particularly significant, and made a mark in the popular Dublin consciousness. The way in which Wilde’s poetry could be moved out of its historical context and applied to new political circumstances was further demonstrated when another poem, ‘Ruins’, originally appearing in the Nation and regarded as part of her work on the Great Famine was republished in Dublin University Magazine in January 1849, and then (without the author’s identity) recast as “The Fallen” in the Chartists’ Northern Star, and elsewhere, in tribute to the

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arrested confederate Repeal leaders William Smith O’Brien, Thomas Francis Meagher and John Mitchel.89 Its lines suited perfectly the sacrifices made by generations of Irish leaders: How with God-like aspirations, Up the souls of men would climb, Till the fall’n, enslaved nations Trod in in rhythmic march sublime; Reaching heights the people knew not, Till their prophet Leaders led – Bathed in light that mortals view not, While the spirit life lies dead.

Significantly this was a shortened version of the poem that allowed the line “‘Till the fall’n, enslaved nations” to be much more prominent, justifying the change in title. A number of prominent United Irishmen who faced trial in the 1790s were celebrated through the names of confederate Repeal clubs, including the Oliver Bond Club, the Arthur O’Connor Club, the Sheares Club, the Emmet Club and the Fitzgerald Club.90 Thomas Davis took an interest in the Sheares brothers, and had a copy of their defence brief in his possession. He included sections from it in his edition of Curran’s speeches.91 Fitzgerald, killed in the act of being arrested, remained a figure of some popular resonance but the inclusion of Oliver Bond and Arthur O’Connor is interesting as both gave evidence on the conspiracy, published in the Report from the Secret Committee (1798). Marsh’s Library’s Report has a copy of John Sheares’s proclamation attached to the inside of the cover.92 In the same period, Chartists in Manchester and Glasgow performed Emmet’s trial93 and, when Keighley Chartists performed it in January 1841, particular reference was made to Emmet’s speech from the dock – delivered on this occasion “with soul-stirring effect”. Its emotional resonance remained powerful, as “nearly the whole audience melted into tears, as if they had had actually seen the original Emmet, with all the dignity of youth and love of country, placed before their eyes”. The Chartists also sold engravings of Emmet and a version of his memoirs – complete with an account of the trial and his speech.94

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Emmet wished to be executed in his uniform  – a request that was denied. But uniforms did play a significant evidential role in several of the trials, including those of Emmet and Thomas Russell. For the government it was evidence of preparation for military uprising as well as suggestive of personal vanity. However, Irish radicals  – by prioritising uniform-wearing – were also tapping into important patriotic memories, particularly the affection for the Volunteers, a body that was revived, at least in name, in the 1790s. Curran, in defending Rowan, denied that “a new and unknown body of men” were being called to arms; rather it was “an appeal to the old volunteers”. His speech also saw reference to the Dungannon Convention of 1782 and the parliamentary reform convention of 1783. Daniel O’Connell later tied his associationalism to the Volunteers by styling his new reform society the “’82 Club” – their uniforms were predictably lavish. The fact that so many United Irish defendants and their prosecutors were steeped in Whiggish associationalism allowed barristers to play to a common political culture in the courtroom. In his speech during Hamilton Rowan’s trial, Curran referred to James II, with “his corrupt judges, and venal tools to execute submissively his orders”. He added that, “Even then were to be found servile Sheriffs to pack juries”. Curran reminded Clonmell and the other senior court officials that a miscarriage would have echoes for them of “when their hearts beat, and their eyes overflowed at reading the melancholy fate of a Russel and a Sydney”.95 The Dublin Recorder, Denis George, referenced Algernon Sydney in defending Napper Tandy.96 Many United Irishmen became discomforted by Whiggish symbols and rituals due to their anti-Catholicism; though evidence given by Oliver Bond seems to indicate that he did not view Catholics as civic equals and, at least according to Maria Steele, John Sheares “afterwards thought that Roman catholics were not suited for republican institutions”.97 Certainly political discourse around these Whig martyrs was long-lived. Even Emmet – so MacNally’s report of their last interview went  – compared himself to them, claiming that “Sydney and Russell bled on the scaffold in a similar cause”.98 A hostile piece on Smith O’Brien and Meagher referenced their wish to “enjoy the sensations of a Russell or a Sydney, without the prosaic and disagreeable certainty of sharing their fate”.99

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IV Political trials offered a number of opportunities for communal emotional feelings to be expressed – in the courtroom itself and at the place of execution. The example made of Orr at trial had an impact upon other radicals. In his proclamation, John Sheares referred to the government’s “legal murders” and advised his United Irish followers to “Remember Orr”.100 The Orr case is a good example of the way in which the United Irishmen can be investigated as an “emotional community”, to use Rosenwein’s term. As she puts it: emotional communities are similar to social communities – what differs is the mode and focal-point of investigation.101 In the Orr case the forging of emotional bonds with this United Irishman was assisted by a powerful, defiant speech prior to his execution, and then its immediate publication across Ireland and Britain. The Nation later described his printed declaration as “full of beauty and nobility”.102 The burgeoning consumer demand for political memorabilia allowed United Irish sympathisers to demonstrate personal sympathy for Orr. The slogan, ‘Remember Orr’ was engraved upon rings and in The United Brothers John Sheares presents one to Maria Steele.103 Trial descriptions in the press and elsewhere did not neglect to describe reactions within the court. During Hamilton Rowan’s trial, a section of Curran’s speech dealing with personal liberty and the British constitution was given, “with such pathos and energy, that the auditors in every part of the court and hall expressed their approbation as if by an irresistible impulse, in loud and repeated plaudits”; and the same reaction occurred at the end of the speech. Lord Clonmell reminded the court of the need for decorum but acknowledged that “he could at the same time make allowance for the momentary effusion of pleasure which he himself felt as strongly as any man at hearing talents like those of the learned gentleman exerted on such a subject”. A sense that the court was not always a ­government space is revealed through such reactions. When Curran gave his final speech applying for the verdict to be overturned, “the multitude which crowded the court and hall gave a sho[u?]t and clap which continued for some minutes”. Clonmell lost his patience and requested that the following day the hall of the courts should be kept clear – by military

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guard if necessary.104 It was said of Curran’s speech in the Sheares trial that “nothing could exceed” its effect upon the courtroom.105 According to press reports, Oliver Bond’s “fortitude, modest cheerfulness and decorum” during his trial “drew on him not only the endearing sensibility of a numerous audience, but a peculiar warmth of testimony from the crown lawyers and the bench”. This was seen in the light of “his manly virtues and dignified mind”. Such language was a feature of the trials of a number of senior United Irishmen – though it is perhaps significant that they were usually Protestant and from the commercial or professional classes. Bartholomew Teeling, part of the French invading force, but also the son of Luke Teeling a Lisburn linen merchant and a former Trinity College student, conducted himself “on the awful occasion with a fortitude impossible to be surpassed and scarcely to be equalled. Neither the intimation of his fate, nor the near approach of it, produced on him any diminution of courage.”106 Crying in the courtroom was not unusual  – and this applied to both prisoners and legal counsel and even, on occasion, the judge, although how the emotionally expressive were regarded at the time and decades later is an interesting question. Charles James Fox and Edmund Burke were mocked by satirists for their tearful parting in the Commons. While Emmet’s defiance both in court and at his execution has been celebrated, there were mixed responses to the Sheares, who upon hearing the verdict, “embraced each other and burst into tears, exhibiting a scene of affection and distress which penetrated every person present”.107 Henry is remembered chiefly for his emotion during the trial process. When speaking of his family and the time needed to settle his affairs, Henry Sheares was “so overwhelmed with tears, that he could not proceed”.108 Madden wrote that he was “unmanned” at his execution  – picking up on evidence from Jonah Barrington and Lord Clare. As Julia says in Longford’s play: “John died bravely, Maria. He was braver than poor Harry”.109 This perhaps explains the need for later defenders. Wilde describes them in the following lines: “Then silently they rose up in their places,/And embraced each other fervently”. And on Henry: “it is not death he fears”, “But thoughts of home and wife his heart hath broken,/And his words are stopped by tears.” In fact, Henry’s tears are not the first to be shed in Wilde’s poem, as the audience is affected by the sight of the brothers in

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the dock, “In pride of life and manhood’s beauty/ […] Some, sobbing, turn away,/And the strongest men can hardly see for weeping”. Wilde also includes a “faltering” judge Lord Carleton pronouncing the sentence; Madden had heard that Carleton wept once back at his home.110 When sentencing Orr, the judge Lord Yelverton’s “voice was scarcely articulate, and at the close of it he burst into tears!”111 As late as Daniel O’Connell’s trial in 1844, the judge was observed to have been tearful when passing sentence.112 It is possible that the press highlighted emotional responses from prosecuting counsel as a means of demonstrating their humanity  – it legitimated the tough sentences that were being meted out, as the obvious personal regret clashed with the duties owed to profession and the law. Drennan’s poem on Orr rejects that tearfulness, adjudging it as a feminine trait: “Here our murdered brother lies; Wake him not with women’s cries” and “Here we watch our brother’s sleep; Watch with us, but do not weep”. Rather, Drennan urges his readers to “Mourn the way that manhood ought”. Orr himself was remembered in the Nation as dying “with perfect coolness, fearless, and unruffled”.113 Crowds were permitted to gather around the Thomas Street prison, where many of the executions took place, although care seems to have been taken to prevent incendiary last words from being uttered. For example, although Emmet was forbidden to give a final oration, and the same was true of Teeling, Emmet’s fellow conspirator, Henry Howley, having shown true remorse was allowed to make a statement in front of those watching, and consequently, “His whole conduct excited a degree of compassion which it required the full recollection of his crimes to overcome”.114 Orr read his dying declaration to the onlookers, and, it was reported, was able to distribute copies.115 O’Coigly’s execution near Maidstone also provoked an emotional response, even though one record of his speech had him rail against his persecution by government and those who acted as witnesses against him  – even naming them on the scaffold. According to one observer: “When he declared his innocence, a buzz of applause ran through the multitude, and there was even some clapping of hands. Towards the close of his address, many of the spectators wept, and some of the soldiers were unable to repress their tears.”116 It is clear that the press could play a major role in extending and creating communities beyond the courtroom. The final lines of Emmet’s trial

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oration – only allowing his epitaph to be written when “my country takes her place among the nations of the earth” – were included or excluded depending on the political viewpoint of the organ involved, influencing the way in which Emmet was remembered. According to Madden, Castlereagh paid for an “improved” version of the Sheares’ trial to be published.117 Reports in some British newspapers of the Emmet speech focused on the anti-French angle  – a valuable propaganda tool.118 Newspapers and periodicals, and later the State Trials volumes, also made an impact by publishing ancillary material along with trial coverage, including memoirs and letters.119 Walker’s Hibernian Magazine published a memoir of Archibald Hamilton Rowan in February 1794, the same month in which his trial account occurred in the periodical. It also produced a sketch of William Jackson’s life, again, in the middle of its coverage. The same periodical regularly included an engraving of the figure whose trial was reported on in that issue – as was the case with Archibald Hamilton Rowan, “an elegant Portrait of that distinguished Gentleman”, Robert Emmet, William Jackson and Thomas Russell.120 Fintan Cullen has written of the importance of the exchange of portraits in cementing United Irish connections,121 and on the day of his execution O’Coigly “lamented that his friends could not be gratified with his portrait”; apparently a gentleman had paid a painter to attend the prison, but a magistrate had driven him away.122 This additional material contributed to the humanising of the figures involved and thus served to invoke public sympathy. Newspapers in Ireland and Britain published the whole of William Orr’s ‘dying declaration’ as part of what Guy Beiner describes as ‘an alternative unofficial trial, which took place in the public sphere’.123 The Orr affair, as a consequence, had a powerful emotional charge. As one government-­supporting newspaper put it: “The dying declaration which this unfortunate man was prevailed upon to distribute, has been too industriously circulated not to demand our notice.”124 The Orr case returned to the courts when Peter Finnerty, printer of Dublin’s Press newspaper, was charged with libel for bringing into disrepute the verdict and for charging the political establishment with cruelty in its failure to grant Orr clemency. The case dealt with the freedom of the press, and Curran put this at the heart of a much-garlanded defence speech; a point reiterated by the Nation, which

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itself was in difficulty with government prosecutors in the 1840s. The Nation presented detailed material from both Orr’s trial and the press response to it – including discussion of an alleged confession and testimonies against Wheatley’s character.125 Walker’s Hibernian Magazine’s report of the Sheares trial included an emotionally-charged letter from John Sheares written days before the trial to his sister Julia. It is particularly poignant as John seemed convinced that his brother was to be set free and released into the arms of his wife and family: “While I feared for Harry’s life – hell itself could have no tortures for the guilty, beyond what I suffered”. It is possible that the defence strategy, outlined by John, was predicated on the belief that Henry was very unlikely to be prosecuted successfully.126 In many ways it is this letter – and its publication – that crystallised the Sheares brothers’ status in the Irish national pantheon. Madden noted that in some versions the more controversial aspects – Sheares’ religious views and illegitimate daughter – were omitted.127 Ultimately the letter re-emphasised the closeness of the brotherly  – and familial  – bonds that became evident during the trial. John switched from mother to sister, to sister-in-law, and to his own illegitimate daughter in considering their fates, his own guilt and wretchedness.128 A similarly tortured letter was sent by Henry Sheares to his brother-in-­ law, in which he inserted a section addressed to his wife Sally: “Oh my angel, my lovely, my injured Sally – will you forgive a man whose soul since he has ever known you has doted on you to distraction”.129 Neither of these letters was political – they privileged family over nation. And yet it is difficult to imagine that John Sheares’ final lines were not read with empathy by the Dublin and wider Irish public adorned as they were with the language of sentiment: “Adieu, my Julia! my light is just out. The approach of darkness is like that of death; since both alike require – I shall say – a Farewell for ever! – Oh, my dear family – farewell! – Farewell for – Ever!”130 It might be noted that Emmet used similar phrasing at the close of his courtroom address: “I have now done. I have burned out my lamp of life”.131 And this was not where John Sheares’ letter ended; lines from it appeared in Longford’s The United Brothers.132 Longford also used John’s ‘Elegy on the Death of Maria’, which Madden had included in The United Irishmen.133 Tales of John Sheares’ activities in revolutionary Paris

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reinforced his image as a man of sentiment. He was rumoured to have been a lover of the leading revolutionary Théroigne de Mericourt, though this was later refuted by Arthur O’Connor.134 According to the British radical, Henry Redhead Yorke, on visiting Marie Antoinette’s Petit Trianon in Versailles, John Sheares was supposed to have been “so enchanted with the taste of a person who could conceive so beautiful a retreat, that he fell on his knees, and swore he would plunge a dagger in the heart of every Frenchman he met, if a hair of her head were touched”.135

V In 1871 the reviewer of a new book on Robert Emmet complained that there was “Not one syllable of Emmet’s trial, prosecution, defence, or death”.136 For Emmet and the Sheares their trials elevated them beyond their radical careers. When introducing a speaker on Emmet in 1888, Michael Davitt speculated on his lasting fame, and eventually concluded that: ‘his immortal speech from the dock might be a truer explanation of the extraordinary hold which he had upon Irish imagination. It would be hardly possible to invent new praise for that immortal pronouncement. He thought it might safely be said without fear of contradiction that no nobler speech was ever delivered by a martyr to liberty on the eve of execution’.137 Pádraig Pearse termed Emmet’s speech as “the most memorable words ever uttered by an Irish man”.138 At the same time it is difficult to determine what, outside of their trial (and Cork interest), would have led the Southern Star newspaper, in 1903, to have termed the Sheares “Heaven-destined leaders for the people”. Theirs, it stated, was a “touching story”, “their betrayal, trial, and execution”.139 Daniel O’Connell spent a good proportion of his life in a courtroom, usually as a consequence of his profession but on occasion as punishment for his campaigning political activities. He was well aware of Emmet’s speech from the dock  – even paraphrasing the ending in a letter.140 O’Connell died peacefully rather than by offering blood sacrifice for Irish independence, and even his prison stints did not always garner respect – tales of largesse within prison and compromised principles once released, appeared in the Irish and British press.141 In 1846, Wilde wrote ‘The

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Lament’, a criticism of O’Connell’s bargains with the Whig administrations: ‘Gone from us – dead to us – he whom we worshipped’.142 The changed nature of the public sphere in the 1840s led to sniping at those who were likely to avoid the scaffold – they were expected to enjoy “the sympathy of a few sentimental ladies and amateur Ribbonmen”, “at select dinner parties and in anti-Saxon drawing rooms”.143 Men of the “Smith O’Brien and Meagher school” were described as “lolling jauntily in the dock, kissing their hands to excitable ladies in the galleries” and “scrawling autographs”.144 Even their sympathisers could recognise the peculiar melodrama of the situation. As Lady Jane Wilde put it: “they are all in prison here, writing verses and sitting for their portraits and giving banquets”.145 The fakery of the sentiment outlined above is in contradistinction to the way in which those on trial during the French Revolutionary period were regarded; explaining why John Mitchel cultivated a connection with United Irishmen on trial by appointing Emmet’s eighty-two-year old brother-in-law as his defence counsel.146 This reception was helped by the fact that the United Irishmen were part of a sentimentalist generation, and later romantic nationalists associated with Young Ireland found it easier to remember the characters of these men rather than their revolutionary politics.147 In this sense it was important that the likes of Tone, Emmet and Russell were all in their twenties and thirties when they died. William Orr was “cut off in palmy youth”, in Drennan’s poem; the Sheares, “two noble youths”, in Wilde’s (though Henry was in his forties). The emotional response to their ends was, and is, shaped by the potential lives that would go unlived; wives and families left abandoned. Though many of these individuals would take time in prison to make clear their wills, and provide for loved ones, the state appropriated the property and goods of those found guilty of treason. A final associational perspective to consider is the way in which the courtroom battles in this period appeared as continuations of a trajectory in Irish politics, linked to the framing of Protestant Ascendancy. This went beyond Lord Clare at the top of the judicial hierarchy as Lord Chancellor. John Scott (Lord Clonmell) and John Toler (Lord Norbury) were key figures in Lord Townshend’s Castle Party in the early 1770s, and their opponents were men who would forge a new patriotic public sphere.

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In the 1790s, political questions were reshaped away from ‘legislative independence’ and towards Catholic relief and a new national identity. When Daniel O’Connell looked to combine these strains in his ’82 Club, he clearly felt that 1782 was a good deal safer than 1798 or 1803. But his confederate Repeal opponents had no such qualms when seeking historical lineages and those meeting their fate in courtrooms were good places to start. As one newspaper article sardonically put it in reference to the 1848 leaders: “The culminating point of the life of a young Irish club orator must be to stand before a special commission on his trial for high treason”.148 The Sheares brothers and Robert Emmet left an indelible impact on the history of Ireland through their courtroom appearances; and both politics and sentiment would influence the precise way in which they were remembered.

Notes 1. In 1868 the Sullivan brothers, editors of the Nation, compiled Speeches from the Dock, courtroom oratory from 1798 onwards. It was re-edited in 1945 by Sean Ua Ceallaigh to extend coverage to the Irish war of independence, Speeches from the Dock; or Protests of Irish Patriotism (Dublin, 1945). 2. State Trials, XXVIII: 1171–2. 3. Patrick Geoghegan, Robert Emmet: A Life (Montreal, 2002); Ruan O’Donnell, Robert Emmet and the Rebellion of 1798 (Newbridge, 2003); Marianne Elliott, Robert Emmet: The Making of a Legend (London, 2003). 4. R.R.  Madden, The United Irishmen, Their Lives and Times, 2 vols (London, 1942); Christine Longford, The United Brothers (Dublin, 1942). 5. R.N.C. Vance, “Text and Tradition: Robert Emmet’s Speech from the Dock”, Studies, 71 (1982), 185–91; Patrick M. Geoghegan, “[Which] Speech from the Dock?”, History-Ireland, 11 (2003), 34–38. 6. Brendan Bradshaw, “Nationalism and Historical Scholarship in Modern Ireland”, Irish Historical Studies, 26 (1989), 329–51. 7. Kevin Whelan, The Tree of Liberty Radicalism, Catholicism and the Construction of Irish Identity (Cork, 1996); Tom Dunne, Rebellions: Memoir, Memory, and 1798 (Dublin, 2004).

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8. Louis Cullen, “The 1798 Rebellion in its Eighteenth-Century Context”, in P.J. Corish, Radicals, Rebels and Establishments: Historical Studies XV (Belfast, 1985), 91–113; Louis Cullen, “The 1798 Rebellion in Wexford: United Irishman Organisation, Membership, Leadership”, in Wexford: History and Society, ed. Kevin Whelan (Dublin, 1987), 248–95. 9. Conor Cruise O’Brien, Ancestral Voices: Religion and Nationalism in Ireland (Chicago, 1994). 10. William Reddy, The Navigation of Feeling: A Framework for the History of Emotions (Cambridge, 2001); Barbara Rosenwein, “Review Essay: Worrying about Emotions in History”, American Historical Review, 107 (2002), 842. 11. Geoghegan, Emmett, 3–22, 226–254. 12. Myles Dungan, Conspiracy: Irish Political Trials (Dublin, 1999). 13. Kenneth R.  Johnston, Unusual Suspects: Pitt’s Reign of Alarm and the Lost Generation of the 1790s (Oxford, 2013). 14. Guy Beiner, ‘Forgetting to Remember Orr: Death and Ambiguous Remembrance in Modern Ireland’, in Death and Dying in Ireland, Britain and Europe: Historical Perspectives, eds James Kelly and Mary Ann Lyons (Dublin, 2013), 171–202. 15. Niamh Howlin, Juries in Ireland: Laypersons and Law in the Long Nineteenth Century (Dublin, 2017); Katie Barclay, “Performing Emotion and Reading the Male Body in the Irish Court, c. 1800– 1845”, Journal of Social History, 51 (2017), 293–312. 16. James Quinn, Young Ireland and the Writing of Irish History (Dublin, 2015); Ian McBride (ed.), History and Memory in Modern Ireland (Cambridge, 2001); Guy Beiner, Remembering the Year of the French: Irish Folk History and Social Memory (Madison, WI, 2007). 17. Claire Armon-Jones, “The Social Functions of Emotions”, in The Social Construction of Emotions, ed. Rom Harré (Oxford, 1986), 57–83. 18. Thomas MacNevin, The Leading State Trials of Ireland from…1794– 1803 (Dublin, 1844). 19. State Trials, XXVIII: 1175. 20. Madden, United Irishmen, II: 172. 21. Oracle and Public Advertiser, 3 January 1798. 22. K.R. Brady, “The Brief for the Defence at the Trial of John and Henry Sheares in 1798”, Journal of the Royal Society of Antiquaries of Ireland, 68 (1937), 4.

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23. Madden, United Irishmen, II: 49. 24. Martyn J. Powell, “Ultra-Protestantism before the Orange Order: The Aldermen of Skinner’s Alley” and James Kelly, “The Bar Club, 1787– 93: A Dining Club Case Study” in Clubs and Societies in EighteenthCentury Ireland, eds James Kelly and Martyn J. Powell (Dublin, 2010), 203–23 and 373–92. 25. Marsh’s Library, Hibernian Catch Club Mss A8, Account book, 1787–1801. 26. State Trials, XXVII: 359. 27. Beiner, ‘Forgetting to Remember Orr’, 177. 28. Walker’s Dublin Magazine, November 1795, 425–26. 29. State Trials, XXVIII: 1100–1103. 30. Walker’s Hibernian Magazine, August 1798, 510. 31. State Trials, XXVIII: 1175. 32. Aberdeen Journal, 6 June 1804. 33. Northern Star, 19 December 1840. 34. Standard, 7 January 1854. 35. Freeman’s Journal, 16 March 1878. 36. Niamh Howlin, “English and Irish Jury Laws: A Growing Divergence 1825–1833” in The Laws and Other Legalities of Ireland, 1689–1850, eds Michael Brown and Seán Donlan (Dublin, 2011), 117. 37. State Trials, XXVIII: 1110. 38. Ibid., XXV: 804. 39. Autobiography of Archibald Hamilton Rowan, Esq (Dublin, 1840). 40. State Trials, XXVII: 365. 41. Lloyd’s Evening Post, 23 October 1797. 42. Walker’s Hibernian Magazine, March 1794, 257. 43. State Trials, XXVII: 176–254. 44. Morning Post, 24 October 1797. 45. Walker’s Hibernian Magazine, November 1795, 433. 46. Madden, United Irishmen, II: 253–63 47. Thomas Bartlett, “Informers, Informants and Information: The Secret History of the 1790s Re-considered”, in 1798: A Bicentenary Perspective, ed. Thomas Bartlett, David Dickson, Dáire Keogh, Kevin Whelan (Dublin, 2003), 406–422 48. Brady, ‘Brief for the Defence’, 19–20. 49. Walker’s Hibernian Magazine, August 1798, 508; Longford, United Brothers, 50–51.

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50. Walker’s Hibernian Magazine, April 1795, 162. 51. State Trials, XX: 829, 857. 52. Morning Post, 24 October 1784. 53. State Trials, XXVII: 251. 54. Ibid., XXVII: 595–8. 55. Walker’s Hibernian Magazine, August 1798, 517. 56. Ibid., February 1794, 99–100, March 1794, 261. 57. Ibid., May 1798, 535–38. 58. Edmund Burke, A Speech of Edmund Burke, Esq. at the Guildhall in Bristol… (London, 1780), 34; Madden, United Irishmen, II: 147–48. 59. Walker’s Hibernian Magazine, June 1795, 530. 60. State Trials, XXV: 857. 61. Walker’s Hibernian Magazine, November 1803, 580. 62. Brady, “Brief for the Defence”, 20. 63. Terry de Valera, “Letters of Henry and John Sheares”, Dublin Historical Record, 43 (1990), Henry Sheares to Brent Neville, 13 [?] 1798, 64. 64. Brady, “Brief for the Defence”, 10. 65. Madden, United Irishmen, II: 147, 155. 66. Nation, 23 September 1843; Anon, The Mercenary Informers of ’98: Containing the History of Edward Newell, Major Sirr, Jemmy O’Brien, & Thomas Reynolds…(Dublin, n.d [1846]). 67. True Briton, 2 January 1798. 68. State Trials, XXVII: 247–8; Belfast Newsletter, 1 March 1803. 69. State Trials, XXVI: 989–90. 70. Ibid., XXVII: 38–49. 71. Ibid., XXVIII: 1175. 72. Brady, ‘Brief for the Defence’, 15. 73. State Trials, XXVII: 394. 74. Ibid., XXVIII: 1136, 1145. 75. Ibid., XXVII: 394. 76. Brady, ‘Brief for the Defence’, 16. 77. Madden, United Irishmen, II: 228–31. 78. Longford, United Brothers, 67. 79. State Trials, XXVIII: 1153. 80. Geoghegan, Emmet, 269. 81. Freeman’s Journal, 5 March 1888. 82. State Trials, XXVII: 1102–1103, 1177. 83. Cheryl Herr (ed.), For the Land they loved: Irish Political Melodramas, 1890–1925 (Syracuse, 1991), 55.

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84. Lloyd’s Evening Post, 23 October 1797. 85. State Trials, XXVII: 985–6. 86. Jean Agnew (ed.), The Drennan-McTier Letters, volume 1, 1776–1793 (Dublin, 1999), Drennan to Samuel McTier, 21 May 1791, 357. 87. Walker’s Hibernian Magazine, August 1798, 502; Longford, United Brothers, 41. 88. Madden, United Irishmen, II: 133. 89. Dublin University Magazine (January, 1849), 60–2; Northern Star and National Trades’ Journal, 3 February 1849; Glasgow (Missouri) Weekly Times, 31 May 1849. 90. Irish Examiner, 19 July 1848. 91. Brady, “Brief for the Defence”, 1–2; Kilkenny People, 23 July 1898. 92. Marsh’s Library, Mss G4.2.29, Autograph letter by [John?] Sheares. 93. Northern Star, 19 December 1840, 29 April 1843, 2 January 1841. 94. Northern Star, 2 January, 9 October 1841. 95. Walker’s Hibernian Magazine, February 1794, 101–03, March 1794, 262. 96. Ibid., June 1792, 485. 97. Madden, United Irishmen, II: 124. 98. Morning Chronicle, 26 September 1803. 99. Irish Examiner, 16 May 1849. 100. Marsh’s Lib. Mss, G4.2.29, Autograph letter. 101. Barbara Rosenwein, “Problems and Methods in the History of Emotions”, Passions in Context, 1 (2010), 11. 102. Nation, 16 September 1843. 103. Express and Evening Chronicle, 16–18 January 1798; Star, 18 June 1799. 104. Walker’s Hibernian Magazine, February 1794, 104, March 1794, 262. 105. The Life of the Right Honourable John Philpot Curran, by his son William Henry Curran, 2 vols (London, 1819), II: 63n. 106. Walker’s Hibernian Magazine, July 1798, 528, September 1798, 580. 107. Ibid., August 1798, 508. 108. State Trials, XXVII: 393. 109. Madden, United Irishmen, II: 248–9. Longford, United Brothers, 96. 110. Madden, United Irishmen, II: 257. 111. Morning Post, 24 October 1797. 112. Freeman’s Journal, 3 July 1844. For more on weeping judges see Barclay, “Performing Emotion”, 303–7.

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113. Nation, 16 September 1843. 114. Hull Packet, 11 October 1803. 115. Lloyd’s Evening Post, 25 October 1797. 116. State Trials, XXVII: 252. 117. Madden, United Irishmen, II: 203n. 118. Morning Post, 24 September 1803. See also Geoghegan, “[Which] Speech from the Dock?”. 119. State Trials, XVII: 141–76 includes a ‘Life of James O’Coigly’, as well as several letters. 120. Walker’s Hibernian Magazine, February 1794, May 1795, September and October 1803 121. Fintan Cullen, “Radicals and Reactionaries: Portraits of the 1790s in Ireland”, in Revolution, Counter-Revolution and Union: Ireland in the 1790s, ed. Jim Smyth (Cambridge, 2000), 161–194. 122. State Trials, XVIII: 249. 123. Morning Herald, 24 October 1797, Morning Post, 26 October 1797, Beiner, ‘Forgetting to Remember Orr’, 175. 124. True Briton, 27 October 1797. 125. Nation, 16 September 1843. 126. Brady, “Brief for the Defence”, 1–2. Madden focused here on their brotherly unity, United Irishmen, II: 171. 127. Madden, United Irishmen, II: 218–19. 128. Walker’s Hibernian Magazine, October 1798, 657–58. 129. de Valera, “Letters of Henry and John Sheares”, 64. 130. The lines in the play are: “Goodbye, Julia, my light is just out. The approach of darkness is like that of death, since both alike require I should say farewell for ever”, Longford, United Brothers, 96; Walker’s Hibernian Magazine, October 1798, 657–58. 131. Other versions had him say: ‘My lamp of life is nearly expired; my race is finished’, Cobbett’s Weekly Political Register, July–December 1803, 1968. 132. Longford, United Brothers, 96. 133. Madden, United Irishmen, II: 131–32. 134. Nation, 7 November 1874. 135. Literary Examiner, 7 October 1848. 136. Robert Emmet: The Cause of his Rebellion; the Cause of its Failure; His Eloquence, Conversation, &c: His Character (Dublin, 1870). 137. Freeman’s Journal, 5 March 1888.

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138. Quoted in Geoghegan, Emmet, xii. 139. Southern Star, 26 December 1903. 140. Patrick Geoghegan, King Dan: Daniel O’Connell 1775–1829: The Rise of King Dan (Dublin, 2008), 99. 141. Standard, 24 July 1844; Northern Star, 14 September 1844. 142. Joy Melville, Mother of Oscar: The Life of Jane Francesca Wilde (London, 1994), 22. 143. Aberdeen Journal, 16 May 1849. 144. Irish Examiner, 16 May 1849. 145. Quoted in Melville, Mother of Oscar, 41. 146. James Quinn, Young Ireland, 96. 147. Ibid., 85. 148. Irish Examiner, 16 May 1849.

Bibliography Marsh’s Library, Dublin Hibernian Catch Club Ms A8 Ms G4.2.29 Aberdeen Journal Belfast Newsletter Cobbett’s Weekly Political Register Dublin University Magazine Express and Evening Chronicle Freeman’s Journal Glasgow (Missouri) Weekly Times Hull Packet Irish Examiner Kilkenny People Literary Examiner Lloyd’s Evening Post Morning Chronicle Morning Herald Morning Post Nation Northern Star

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Northern Star and National Trades’ Journal Oracle and Public Advertiser Southern Star Standard True Briton Walker’s Dublin Magazine Walker’s Hibernian Magazine Jean Agnew (ed.), The Drennan-McTier Letters, Volume 1, 1776–1793 (Dublin, 1999). Autobiography of Archibald Hamilton Rowan, Esq (Dublin, 1840). Edmund Burke, A Speech of Edmund Burke, Esq. at the Guildhall in Bristol… (London, 1780). Sean Ua Ceallaigh (ed.), Speeches from the Dock; or Protests of Irish Patriotism (Dublin, 1945). Thomas Jones Howell (ed.), A Complete Collection of State Trials and Proceedings for High Treason and other Crimes and Misdemeanours, 33 vols (London, 1809–1828). Thomas MacNevin, The Leading State Trials of Ireland from…1794–1803 (Dublin, 1844). Terry de Valera, “Letters of Henry and John Sheares”, Dublin Historical Record, 43 (1990), 58–69. The Life of the Right Honourable John Philpot Curran, by his son William Henry Curran, 2 vols (London, 1819) The Mercenary Informers of ’98: Containing the History of Edward Newell, Major Sirr, Jemmy O’Brien, & Thomas Reynolds…(Dublin, n.d [1846]). Claire Armon-Jones, “The Social Functions of Emotions”, in The Social Construction of Emotions, ed. Rom Harré (Oxford, 1986), 57–83. Katie Barclay, “Performing emotion and reading the male body in the Irish court, c. 1800–1845”, Journal of Social History, 51 (2017), 293–312. Thomas Bartlett, “Informers, Informants and Information: The Secret History of the 1790s Re-considered”, in 1798: A Bicentenary Perspective, ed. Thomas Bartlett, David Dickson, Dáire Keogh, Kevin Whelan (Dublin, 2003), 406–422. Guy Beiner, Remembering the Year of the French: Irish Folk History and Social Memory (Madison, WI, 2007). Guy Beiner, ‘Forgetting to Remember Orr: Death and Ambiguous Remembrance in Modern Ireland’, in Death and Dying in Ireland, Britain and Europe: Historical Perspectives, ed. James Kelly and Mary Ann Lyons (Dublin, 2013), 171–202.

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Brendan Bradshaw, “Nationalism and Historical Scholarship in Modern Ireland”, Irish Historical Studies, 26 (1989), 329–51. K.R. Brady, “The Brief for the Defence at the Trial of John and Henry Sheares in 1798”, Journal of the Royal Society of Antiquaries of Ireland, 68 (1937), 1–25. Fintan Cullen, “Radicals and Reactionaries: Portraits of the 1790s in Ireland”, in Ireland, Revolution, Counter-Revolution and Union: Ireland in the 1790s, ed. Jim Smyth (Cambridge, 2000), 161–194. Louis Cullen, “The 1798 Rebellion in its Eighteenth-Century Context”, in P.J. Corish, Radicals, Rebels and Establishments: Historical Studies XV (Belfast, 1985), 91–113. Louis Cullen, “The 1798 Rebellion in Wexford: United Irishman Organisation, Membership, Leadership”, in Wexford: History and Society, ed. Kevin Whelan (Dublin, 1987), 248–95. Myles Dungan, Conspiracy: Irish Political Trials (Dublin, 1999). Tom Dunne, Rebellions: Memoir, Memory, and 1798 (Dublin, 2004). Marianne Elliott, Robert Emmet: The Making of a Legend (London, 2003). Patrick Geoghegan, Robert Emmet: A Life (Montreal, 2002). Patrick M. Geoghegan, “[Which] Speech from the Dock?”, History-Ireland, 11 (2003), 34–38. Patrick Geoghegan, King Dan: Daniel O’Connell 1775–1829: The Rise of King Dan (Dublin, 2008). Cheryl Herr (ed.), For the Land they loved: Irish Political Melodramas, 1890–1925 (Syracuse, 1991). Niamh Howlin, “English and Irish Jury Laws: A Growing Divergence 1825–1833” in The Laws and Other Legalities of Ireland, 1689–1850, eds Michael Brown and Seán Donlan (Dublin, 2011), 117–32. Niamh Howlin, Juries in Ireland: Laypersons and Law in the Long Nineteenth Century (Dublin, 2017). Kenneth R.  Johnston, Unusual Suspects: Pitt’s Reign of Alarm and the Lost Generation of the 1790s (Oxford, 2013). James Kelly, “The Bar Club, 1787–93: A Dining Club Case Study” in Clubs and Societies in Eighteenth-Century Ireland, eds James Kelly and Martyn J. Powell (Dublin, 2010), 373–92. Christine Longford, The United Brothers (Dublin, 1942). R.R.  Madden, The United Irishmen, Their Lives and Times, 2 vols (London, 1942). Joy Melville, Mother of Oscar: The Life of Jane Francesca Wilde (London, 1994).

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Conor Cruise O’Brien, Ancestral Voices: Religion and Nationalism in Ireland (Chicago, 1994). Ruan O’Donnell, Robert Emmet and the Rebellion of 1798 (Newbridge, 2003). Martyn J. Powell, “Ultra-Protestantism before the Orange Order: The Aldermen of Skinner’s Alley” in Clubs and Societies in Eighteenth-Century Ireland, eds James Kelly and Martyn J. Powell (Dublin, 2010), 203–23. James Quinn, Young Ireland and the Writing of Irish History (Dublin, 2015). William Reddy, The Navigation of Feeling: A Framework for the History of Emotions (Cambridge, 2001). Robert Emmet: The Cause of his Rebellion; the Cause of its Failure; His Eloquence, Conversation, &c: His Character (Dublin, 1870). Barbara Rosenwein, “Review Essay: Worrying about Emotions in History”, American Historical Review, 107 (2002), 821–45. Barbara Rosenwein, “Problems and Methods in the History of Emotions”, Passions in Context, 1 (2010), 66–104. R.N.C. Vance, “Text and Tradition: Robert Emmet’s Speech from the Dock”, Studies, 71 (1982), 185–91. Kevin Whelan, The Tree of Liberty Radicalism, Catholicism and the Construction of Irish Identity (Cork, 1996).

14 State Trials in Post-revolution British North America Barry Wright

Political trials manifest various political objectives in a legal form and courtroom setting. Governments may deliberately choose a legal response to real or perceived security threats to deal with breaches of allegiance in the circumstances of insurrection, invasion, war and a wide range of activities thought to undermine the existing order. During the “Age of Revolutions” this sort of political trial involved prosecutions for treason or sedition and related executive measures such as suspensions of habeas corpus and deportations. At the same time courtrooms were a terrain of political struggle and resistance and could become a platform for counter-­ hegemonic causes that challenged authority.1 This chapter provides an overview of such political trials, or to use a term apposite to the late eighteenth and early nineteenth centuries, “state trials,” in the British North American colonies that remained after the American Revolution and became the Dominion of Canada.2

B. Wright (*) Department of Law and Legal Studies, Carleton University, Ottawa, ON, Canada e-mail: [email protected] © The Author(s) 2019 M. T. Davis et al. (eds.), Political Trials in an Age of Revolutions, Palgrave Histories of Policing, Punishment and Justice, https://doi.org/10.1007/978-3-319-98959-4_14

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British North America has a rich record of state trials but rather than selecting a couple of illustrative cases, the chapter attempts to discern broader patterns by way of overview. The trials fall into three periods: the loyalist counter-revolution (c.1774–1814); colonial crisis and rebellion (1815–39) when organised political opposition to governing colonial elites and the developing popular public sphere became increasingly difficult to suppress; and the modernisation of the colonial state and its consolidation (from 1840). Canada’s “revolutionary moment” in 1837 and 1838 was contained by the further restructuring of British imperial administration as it had taken shape after the American Revolution. Liberal colonial reform continued past 1848, culminating in the establishment, in 1867 of the first “self-governing” dominion within the British Empire. Political trials remained a feature of ongoing colonisation, subsequently directed from Ottawa rather than London and the postscript to this chapter very briefly refers to Canada’s most famous treason trial, that of Louis Riel, and related proceedings against other Métis and First Nations leaders in the wake of 1885 North West Rebellion. Analysis that distinguishes legal responses from more arbitrary forms of state repression, prosecutions in the criminal courts from exercise of crown prerogatives (executive measures) and military intervention (martial law and military justice), is a prominent theme here, and one that helps to make sense of Canadian experiences in the “age of revolutions.” As E.P. Thompson recognised, in order for the law to legitimise the exercise of authority effectively, governments must take into account popular expectations of justice and respect formal rule of law claims. Responses that fail to conform or confound such public expectations undermine the legitimacy of government actions.3 Legal responses to real or perceived security threats by resort to regular processes of justice tended to enhance public support for government responses to a greater degree than more arbitrary forms. These inherent advantages also entailed risks. The accused contested their prosecutions in public tribunals where governments had to attend carefully to popular expectations about justice, demonstrate commitment to the integrity of formal legal and constitutional claims, and at least appear to respect them. Effective defences were possible. Prosecutions could be frustrated and acquittals could discredit governments and enhance public support for the accused and his or her cause.

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Thompson’s insight, that the constraint of popular expectations, or check of engaged public opinion, limits the law’s repressive potential resonates with the record of experiences in British North America. The distinction between legal and more arbitrary government responses was widely understood in popular expectations of British justice, and it figured prominently in the calculations of governments that faced a choice of repressive options. There was popular awareness of formal rule of law claims and colonial governments were also aware of how the legitimacy of their actions would be assessed according to such claims by both colonial inhabitants and their imperial overseers. That said, during the most ­serious security crises there was wider resort to exceptional measures authorised by temporary emergency legislation or exercise of prerogative powers. These included procedural expedients that favoured the Crown’s case and suspensions of habeas corpus that supported indefinite detentions. Where colonial governments faced extreme situations of imminent challenge to their power, the regular administration of justice was suspended altogether, martial law was imposed and civilians were subjected to military justice (as in Quebec in the late eighteenth century, Lower Canada in 1837–8 and parts of Upper Canada in late 1838). However, it remained the case that the resort to more arbitrary exceptional measures depended not only on the gravity of the security threat but also on popular perceptions and toleration for such measures. A second major theme in this chapter is that British North America experienced revolutionary moments second-hand and in a diffused fashion. Colonial governance there was founded in reaction to the American Revolution and its local administration much influenced by the experiences of the Loyalist refugees, their ongoing fears of American influence across the enormous, easily-crossed frontier, and anti-republicanism was reinforced by the French Revolution and the events of 1798 in Ireland. The anxieties of a British minority in Quebec, vastly outnumbered by French residents, compounded reaction. From the 1780s to the conclusion of the War of 1812, powerful local Tory governing elites were established, notably the Family Compact of Upper Canada/Ontario and the Chateau Clique of Lower Canada/Quebec. Their hegemony was increasingly contested in the post-war period as attempts to further consolidate

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power and new arbitrary and discriminatory policies encountered an emerging public sphere. The period to 1837 saw growing popular resistance to government policies and privileges, the transformation of previously fragmentary manifestations of opposition into organised political opposition movements active in colonial legislative assemblies and extra-­ legislative meetings, and a rapidly expanding opposition press with widening readership. Towards the end of the 1820s imperial administrators in London became increasingly receptive to local reform concerns, although local elite recalcitrance towards reform pressures from “below” also extended to these new pressures from “above”. Liberal accommodation accelerated in response to the rupture of the 1837–1838 rebellions. The political reforms of Lord Durham’s Report on the Canadas and Lord Sydenham’s utilitarian-inspired institutional reforms aimed to modernise the colonial state, seemingly progressive developments that complemented local reform aspirations and reflected wider shifts in British colonial administration. They also entailed a range of legal, institutional and cultural transformations, that aimed to achieve a more fully regulated and policed social order, characteristic of what Philip Corrigan and Derek Sayer have described as modern state formation.4 A brief note about the colonial constitutional and legal terrain is helpful before turning to a closer look at the first period of Canadian state trials. The conquest of New France in 1759 expanded British influence on the North American continent before it was scaled back by the American Revolution. Indigenous or pre-existing European systems of law and governance continued for residents who were not British subjects until their status was clarified by treaty or proclamation.5 The Royal Proclamation of 1763 and the Treaty of Paris of the same year aimed to better secure alliances with native populations and to implement English law outside the original American colonies. Once colonial legislatures and courts were established  in a new British North American colony, English criminal laws dating from that time came into effect over all residents there.6 French settlers resident in Quebec became British subjects in 1763 but a British colonial legislature and regular courts were not established until the Quebec Act, 1774. The Act recognized that British residents would long continue to be a demographic minority and that concessions were

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prudent, especially as tensions mounted in the American colonies. The Catholic disabilities that limited office-holding, as in Ireland and Scotland, were ended (allowing the appointment of francophone magistrates and judges), French civil law was restored for private disputes, and French was recognised in the operation of public institutions and legal proceedings. The Constitutional Act of 1791 divided the new colony of Upper Canada (Ontario) from the western portion of Quebec, accommodating Loyalist refugees from the American Revolution (a similar division of Nova Scotia created the colony of New Brunswick). Upper Canada’s new colonial courts and legislature adopted all English laws in effect in 1791. In this manner the colonies shared foundational English criminal law but doctrinal details varied according to reception date and subsequent local amendments.7 Six constitutionalised British colonies emerged in what remained of British North America by the end of the Napoleonic Wars and their legislatures and courts quickly disregarded the Royal Proclamation undertakings toward First Nations, interpreting received laws and developing new ones to displace indigenous populations in favour of European settlers. By mid-century, local legal regimes were elaborated to open Crown lands not ceded by treaty to European development or settlement, to confine indigenous population to marginal territories, and new projects to remake their societies and cultures were initiated and elaborated by Ottawa after 1867. The political trials in British North America of the late eighteenth to mid-nineteenth century involve settler populations, movements of opposition and critics of colonial oligarchies influenced by the European age of revolutions and British and Irish experiences in particular. The major political trials of indigenous resistance did not occur until the 1885 North West Rebellion, very briefly described at the end of this chapter. While there were significant indigenous movements of resistance before, they were met by largely unprosecuted trader and settler violence, direct state violence and legal responses other than political trials. Despite formal claims that these colonial constitutions were formed in conformity to the British constitution, there was of course ongoing imperial supervision of the colonial legislatures and courts and relatively greater local executive influence over local law and politics as well. Upper

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Canada’s Constitutional Act of 1791 was described at the time as the “image and transcript” of the British constitution, but it also responded to the perceived errors in the administration of the Thirteen Colonies. Local government was suppressed, legislative councils were executively dominated with limited accountability to elected legislative assemblies, colonial judges held office according to royal pleasure and chief justices played a prominent role in legislative and executive councils, the crown prerogatives around prosecutions were exercised more widely than in the metropole, and jury-packing was endemic. It was hardly surprising that contested constitutional and rule of law claims and rhetoric figured prominently in the discourse of colonial legislatures and courtrooms. The British constitution (the implications of the “Glorious Revolution” of 1689 and 1701 Act of Settlement), and related legal protections from arbitrary authority (the Habeas Corpus Act, 1679, the Treason Act, 1696) were understood in different ways by Tories, court Whigs, libertarian Whigs and radical reformers, and so too by colonial elites and opposition movements. The influential Loyalist refugees, who had experienced and understood organised opposition and a free press as a prelude to revolution, provided a decided reactionary spin to the administration of colonial institutions.

I As noted,  British military government and courts martial replaced the French colonial regime in Quebec in 1759 and the transition to civilian administration culminated in the Quebec Act, 1774.8 The Act was not only a pragmatic response to demographic reality, it secured the alliance of the seigneurial class and the Church (both hostile to the aims of the American revolutionaries), and allowed the southward deployment of British troops as tensions mounted in the American colonies. The American rebels invaded Quebec in May and November 1775, the first led by Benedict Arnold resulting in the suspension of the newly formed colonial courts and legislature and the proclamation of martial law. Popular support for the revolt in the Thirteen Colonies was largely confined to the colony of Nova Scotia, where at the end of 1776 a group of

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Patriots laid siege to Fort Cumberland. Over thirty-five rebels were named on treason indictments but only two were tried and convicted. Parker Clarke and Thomas Faulkner escaped custody to New England before London could confirm their death sentences. A later patriot incursion into the Saint John River valley had little traction. Local sympathies quashed by property confiscations and the civil courts became the focus of local disaffection in the wake of the American Revolution as Loyalist refugees (including Arnold in the end) began their long campaign for compensation for their American losses.9 Sir Guy Carleton’s successors in Quebec pursued a less accommodating approach that anticipated British alarmism in the 1790s about revolutionary movements.10 As John Barrell puts it, after the French Revolution, advocacy of a republican form of government was equated in London with imagining or compassing the death of the sovereign, and such a figurative construction of treason played out in over a dozen treason prosecutions.11 Prosecutions for seditious meetings and seditious libel increased, despite the advance of Fox’s Libel Act in 1792 on the scope of the jury’s verdict, as Pitt’s repression extended to constitutional reform societies and published criticism.12 The way was paved for such measures at an earlier point in Quebec, and an even deeper reaction was experienced after 1789 that prevailed until the demise of Napoleon. Murray Greenwood describes the ‘garrison mentality’ among the governing English elite of officials, merchants and officers, allied at times with the Catholic Church leadership and seigneurs: This frame of mind was generated by numerous factors — among them the small number of regular troops in the Canadas; the absence of professional police; a sense, by no means confined to loyalists, of the fragility of the social order; and the common eighteenth-century belief in the efficacy of a few conspirators manipulating the ignorant masses, examples of such supposed situations being the American colonies in 1776 and France in 1789. But of the greatest importance was the simple fact that the English were outnumbered about fifteen to one by people still culturally French…13

Habeas corpus was suspended by the colonial legislature in 1794. The colonial Alien Act, modelled on the 1793 British act, expanded powers to

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register, regulate and summarily deport foreigners and subjects who associated with them and also expanded the definition of sedition offences.14 Chief Justice James Monk’s address to the grand jury at the March 1797 assizes, in the context of riots by road-building workers, noted that any violent resistance to law enforcement would be considered acts of treason. Nearly one hundred were interned, and several sedition prosecutions followed, as well as five indictments for high treason. The Crown proceeded to trial in one case, David McLane, while the others – all French Canadians – were held in indefinite detention, thereby avoiding potential French martyrs to British rule. McLane was a naturalised American citizen, recruited as a spy by France’s Revolutionary Directory to assist with the recruitment of a “fifth column” in Quebec in concert with a planned French naval invasion. Despite the acquisition of American citizenship, the Irish-born McLane was held to owe “perpetual allegiance” to the Crown (a largely discredited doctrine after 1776, replaced by “temporary allegiance” based on residency under the protection of the Crown). Compassing the sovereign’s death was extended to republican plots in overseas colonies.  Unlike Hardy, Tooke and Thelwall, McLane did not benefit from a robust defence despite the applicability of the procedural protections of the 1696 Treason Act, and his conviction was followed by the grisly traditional form of execution reserved for those convicted of treason, entailing several symbolic deaths.15 After McLane’s execution, the Alien Act was replaced by the Better Preservation Act (1797), which combined provisions of earlier habeas corpus, alien and sedition legislation, and it was renewed every year to 1812.16 Quebec/Lower Canada was not alone in elaborating counter-­ revolutionary measures for local circumstances. Temporary legislation was passed in 1797 in Upper Canada, and in 1798 a similar package of counter-revolutionary measures to manage migration, dangerous aliens and sedition was enacted in the United States as the Federalists attempted to work around constitutional constraints on federal powers.17 The temporary act in Upper Canada was replaced by a permanent Sedition and Alien Act in 1804, just as the colony’s first organised political opposition emerged led by William Weekes, an Irish Whig barrister who came to the colony after 1798. Unlike the British and Quebec laws, Upper Canada’s

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legislation did not need renewal every legislative session. Executive powers extended indefinite detention and summary deportation to all migrants who had not sworn a local oath of allegiance, aliens, non-­loyalist Americans as well as British subjects from other jurisdictions whose residence in the colony was less than six months. Following its passage, Weekes was killed in a duel, Joseph Willcocks, editor of the colony’s first opposition newspaper, was prosecuted for seditious libel and convicted of contempt by way of parliamentary privilege proceedings, and Robert Thorpe, a King’s Bench judge, also an Irish Whig, was removed from the bench.18 The 1804 legislation was widely resorted to during the War of 1812. Many of the engagements during the War of 1812 between the United States and Britain, which continued to late 1815, took place on the Upper Canadian frontier. A significant portion of the colony’s population included recently arrived American immigrants. The 1804 Sedition and Alien Act was combined with war-time militia legislation that applied to all adult males to purge the colony of hundreds of Americans. In 1814, legislation was passed to expropriate the land of disloyal residents who had left or had been deported during the hostilities, habeas corpus was suspended for all persons suspected of aiding the enemy, and out of district trials for high treason were authorised. A number of indictments for sedition and treason in absentia had been issued in 1812 and 1813, and in late 1813, a six-member government committee of information under Acting Attorney General John Beverley Robinson undertook a systematic review of dispositions concerning sixty suspects, half of whom were selected for prosecution for treason, sedition and other offences. Many of the suspects had evaded or escaped custody and fled across the frontier, but Robinson resisted the expedient of military justice. He recognised that the greater legitimacy of regular legal proceedings, especially in those parts of the colony where there were divided loyalties, would outweigh the risks of further delays. The remaining cases for possible treason trial were held over to the Ancaster assize in May 1814. Of the nineteen indicted and tried, fifteen were convicted of high treason, seven of whom received pardons on condition of banishment outside British territories, and eight were executed.19

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II Although British North American colonies remained intact during the war in the face of American aggression, solidarity with maintaining the British connection was not equated with the popular legitimacy of local governing elites. The hegemony of the ruling Family Compact in Upper Canada and Chateau Clique in Lower Canada began to erode quickly in the post-war years. There were challenges to colonial governments elsewhere in British North America — the 1835 Joseph Howe trial in Nova Scotia is perhaps the best-known seditious libel trial in Canadian history — but opposition was more sustained in the two Canadas, and it was there that the crisis of the colonial state became acute, culminating in the 1837–1838 rebellions.20 In Upper Canada, post-war grievances grew over compensation for war losses and executive domination of the legislature by way of the appointed legislative council and control over office-holding. There were sustained discriminatory measures against American immigrants such as prohibition on land grants and disqualification from sitting as elected members of the colonial legislative assembly. The resurgence of organised political opposition was accompanied by a growing public sphere — in other words, a widening popular engagement with politics and civic life fuelled by new local voluntary associations, libraries and reading rooms, and a proliferation of independent newspapers. Sedition prosecutions were the favoured means of suppressing opposition opinion in Upper Canada. The nearly fifty cases taken in the colony to the 1837–1838 Rebellion exceeded the English rates of the period, relative populations taken into account, including Pitt’s “terror” and a flurry of prosecutions in 1817 and 1819.21 Upper Canada’s immediate post-war opposition was led by the recently arrived Scottish radical Robert Gourlay, an associate of William Cobbett and Henry Hunt. Gourlay organised constitutional meetings to collect grievances and directly petition the British government for redress and was twice prosecuted and acquitted of seditious libel in highly publicised trials. The government then consulted with the judges of the Court of King’s Bench who supplied an extra-judicial opinion confirming that the

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1804 Sedition and Alien Act could be applied to Gourlay who had had limited residency in the colony and had not taken a local oath of allegiance. He was imprisoned indefinitely after refusing a deportation order, and at subsequent legal proceedings several months later, the King’s Bench confirmed his immediate removal upon pain of death should he return to the colony. The Crown then proceeded on an ex officio information on a long-hanging threat of prosecution against his publisher, Bartimus Ferguson. He was convicted of seditious libel and ruinous fines closed his newspaper.22 The reaction did not curb the growing reform movement. Eight bills to repeal the Sedition and Alien Act were passed by majorities in Upper Canada’s legislative assembly only to be denied by the appointed legislative council. Repeal came only in 1829 when the last bill was petitioned directly to the British government. The number of newspapers in the colony grew from three in 1819 (two after the conviction of Ferguson) to ten by 1830. Subscription rates exceeded those of England outside of London. The growing popular expectation of free discussion of public measures and growing reform influence in the colonial legislature prompted further government reaction with three newspaper editors a particular concern: Hugh Thompson of the Upper Canada Herald, William Lyon Mackenzie of the Colonial Advocate, and Francis Collins of the Canadian Freeman. Thompson was called to the legislature to answer charges of contempt, Mackenzie’s press was dumped into Lake Ontario by pro-government hooligans, and Collins was convicted of seditious libel after a jury acquittal at his first trial. During this time, Judge John Walpole Willis, recently arrived from England, was removed from the King’s Bench for his support of reform criticism of the anomalies in the administration of colonial justice, prompted by his public concern about the Crown’s refusal to prosecute those responsible for the destruction of Mackenzie’s press. When Mackenzie was subsequently elected to the legislative assembly, he was repeatedly expelled for contempt.23 However, the broader public sphere had developed in Upper Canada by the 1830s where the acceptable standards for political expression and activity were to be set by informed public opinion, not by executively dominated ­government or the Crown prosecutor. Reform pressures from below were accompanied by growing complementary pressures from above, as

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suggested by the imperial intervention in 1829 to uphold the repeal of the 1804 Act and concerns about the difficulties faced by Britishappointed officials such as Willis. Colonial governments came under closer scrutiny by Parliament and the Colonial Office, particularly after the defeat of Wellington’s government at Westminster, although the situation in Quebec was somewhat different. In Lower Canada, the governing Chateau Clique, supported by leading figures of the Church and anti-republican Canadien seigneurs, was increasingly challenged by a group of mainly francophone members of the elected legislative assembly, known as the Canadien Party and after 1826 as the patriotes. Influenced by mercantile interests and preoccupied with the ongoing British demographic minority presence in the colony, London proved decidedly less receptive to reform demands from Lower Canada. The 1837 Russell Resolutions rejected all patriote constitutional claims and authorised the governor to spend public money without legislative approval. Tensions in the Canadas and colonial government recalcitrance spiralled into the rebellion in 1837 and 1838, and associated “patriot” invasions from the American frontier that continued to the beginning of 1839. Before the mid-twentieth century, English Canadian historians tended to portray the rebellions as the interruption of the legitimate aims of moderate reformers by radical republicans and reactionary local Tories, the crisis discrediting both revolutionary change and reaction, feeding the narrative that Canada evolved without extended rupture towards democratic self-government within the British Empire. French Canadian historians tended towards an exclusive Quebec focus, emphasised the struggle to preserve cultural identity against British hegemony, building upon the protections of the 1774 Quebec Act by way of a partnership that led to the British North America Act, 1867 and Dominion status. More critical accounts have recently explored a range of social and economic complexities masked by these whiggish narratives. And as Allan Greer has noted, they have begun to place the Canadian crises within the wider international currents of what Eric Hobsbawm and others describe as “the age of revolution.”24 The crises in the Canadas were met in the short term by state trials and in the longer term, by the development of liberal but more effectively policed colonial orders.

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The rebellions and border invasions were arguably the most serious state security crisis in Canadian history. Over 350 were tried in 1838 and early 1839 for treason, and equivalent political offences punishable by death, in criminal trials and courts martial proceedings. Both colonial governments faced the broad choice between expedient military interventions and military justice and more credible but unwieldy civilian criminal trials. The British government was obliged to deal directly with international repercussions, matters ranging from the treatment of armed invaders from the United States to the transportation of political convicts to Australian penal colonies. The crises and repressive local responses underscored the urgency of the need to reform colonial administration not only in the Canadas but elsewhere in the Empire. The crisis was deeper and more violent in Lower Canada with wide popular support for the patriote cause. The Russell Resolutions precipitated popular protests endorsed by Louis-Joseph Papineau, Cyrille Coté and Wolfred Nelson. The emergence of armed patriote camps led to the imposition of martial law in late 1837 and the suspension of habeas corpus, the colonial legislature and the criminal courts. The colonial legislature was replaced by an executive governing council called the Special Council that would continue to 1841. In June 1838, under the advice of recently-arrived Lord Durham, the Special Council administered summary justice without the courts by way of the Bermuda Ordinance, releasing over 150 prisoners and exiling eight rebels to Bermuda.25 During this time, patriotes who had escaped to the United States laid plans for another revolt. Although the regular criminal courts were restored shortly after Durham’s Ordinance, earlier concerns about jurors sympathetic to the rebel cause seemed to be confirmed by the outcome of the Chartrand murder trial in September 1838 when four rebels accused of the murder of a government informer were acquitted by a francophone jury. Governor Sir John Colborne decided that future political cases would go to military tribunals. A second insurrection involving over 10,000 rebels broke out in November 1838. Immediately following its suppression by British troops and local militia, a General Court Martial was held in Montreal. Like the proceedings in Ireland after the 1798 Rebellion, the accused were deprived of the procedural protections set out under the 1696 Treason

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Act. There were more executions in Ireland but fewer acquittals in Montreal. In fourteen court martial sessions, 106 prisoners faced charges of treason (levying war or compassing the death of the sovereign) and a dozen faced further murder charges. Ninety-nine were convicted of treason and sentenced to death: twelve were hanged and the remaining fifty-­ eight were given conditional pardons and transported to New South Wales.26 Although the rebellion was not as deep and violent in Upper Canada, more political prisoners faced proceedings. The legislature continued in operation, as did the criminal courts, and the option of military justice was resisted during the period of rebellion, turned to only in response to the large-scale border raids in late 1838. This reflected government’s confidence in  local juries, and a compliant legislature that readily passed emergency legislation to strengthen the Crown’s hand at trials (temporarily suspending habeas corpus, permitting trials in districts outside where alleged offences committed, legislative delegation of the exercise of the prerogative of mercy, and creation of a new political offence called ‘lawless aggression.’) Chief Justice Robinson, the architect of this comprehensive security legislation in Upper Canada’s Executive Council, and who had orchestrated the 1814 treason trials as Attorney General, again recognised that regular trial processes would lend greater legitimacy to the government’s repression than military justice. This became less ­compelling by late 1838, when the invasions from the United States appalled many residents and the partial suspension of civil authority was widely seen as a justified response to outside aggression. Mackenzie, whose newspaper was targeted in the late 1820s and who was later repeatedly expelled from the legislature for contempt, organised extra-parliamentary political meetings mid-decade, and by 1837 attempted to persuade fellow reformers that armed resistance was necessary and inevitable. This culminated in an ill-fated march on Toronto, coordinated with risings elsewhere in the province. Indictments for high treason were issued in Toronto against 133 prisoners in March 1838. Of those that eventually proceeded to trial on Toronto, as well as in Hamilton and London from March to May, three of the convicted were hanged. Most of the others found guilty of treason and related offences at these trials were conditionally pardoned, with twenty-four held over for transportation, the favoured

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option of Lieutenant Governor Sir George Arthur, whose previous appointment had been as Governor in Van Diemen’s Land.27 The cross-border raids marked the second phase of the crisis, as rebels who escaped capture joined with American supporters in a series of skirmishes during the winter and on the Niagara peninsula in June. Larger organized, more violent raids culminated in battles near Prescott in November and Windsor in December, leading to courts martial proceedings against captured prisoners in Kingston and London. Of the 184 men tried, 181 were convicted, and of these, seventeen were executed and seventy-eight political convicts were added to the numbers transported to Australia.28 While the majority of political prisoners tried by the criminal courts earlier in 1838 were convicted of treason, and only a small handful were convicted of the new capital offence of lawless aggression, the majority of prisoners tried at the Kingston and London courts martial were charged and convicted for this latter offence. This offence, passed by the colonial legislature in March 1838 to deal with the issue of border raids, became a permanent feature of Canadian law, deployed against Fenian raiders in the 1860s and added to the treason provisions of the 1892 Canadian Criminal Code. It reflected continuing official anxieties about disorder spilling across the long, easily crossed border with the United States, originating with the experience of the War of 1812, confirmed by the patriot invasions of 1838, and reinforced in the 1860s by the Fenians. Lawless aggression was an equivalent to treason for those who did not owe allegiance and could not be found to come under the temporary protection of the Crown by way of local residency.

III The crisis of the 1837–1838 rebellions opened the way to political change in the form of the union of the colonies of Upper and Lower Canada (a single colony called Province of Canada) and the development of responsible government (replacement of executively dominated appointed legislative councils with cabinets directly accountable to the elected legislative assemblies). Lord Durham’s Report on the Canadian crisis reflected a larger push for colonial reform by Westminster in the

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1830s. Reforms extended from the plantation colonies (abolition of slavery in 1834), to India (Thomas Macaulay’s utilitarian-inspired reforms), Ireland (1829 Emancipation Act) as well as to the more distant British settler colonies. These initiatives neither avoided renewed colonial resistance in Jamaica (1865, echoing the 1831 slave revolt), India (the 1857–1858 “Mutiny”), nor did they curb the resurgence of Irish nationalism and its connection with the European revolutionary movement of the 1840s. In Canada, public order in the wake of the 1837–1839 rebellions was stabilised by public interventions that went beyond the political changes of the union of the two Canadian colonies, responsible government, and reduction of colonial anomalies in the administration of justice. The new institutional means of managing sources of potential conflict and ­associated cultural changes, described by Corrigan and Sayer and others as “modern state formation,” resulted in a more closely regulated and policed political, social and economic order. Reforms such as the emergence of professional policing, the penitentiary, and criminal law consolidations, pre-date the rebellions but these utilitarian-inspired institutional and administrative changes led by Governor General, Lord Sydenham, went well beyond the political changes coming out the Report of his predecessor Lord Durham.29 Threats to the colonial order could be prevented through the promotion of self-regulation, the introduction of new institutions and mechanisms of surveillance, and the proactive regulation of sources of disorder that would lessen reliance on reactive state responses such as political trials. At the same time, ever-increasing popular engagement with, and participation in, public affairs, and widening availability of effective defence counsel, combined with closer imperial scrutiny, made heavy-handed prosecutions for treason and sedition risky for governments. The older repressive responses did not disappear. They were retained as key resources in government responses to mid-nineteenth century revolutionary movements and growing colonial movements of self-­ determination. The initiative to federate the British North American colonies was as much defensive as a move to greater autonomy, and represented an extension of colonial modernisation after the Rebellions. The American model of division of jurisdictional powers, seen as a contribut-

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ing factor to the American Civil War, was avoided and the British North America Act of 1867 provided the new Dominion of Canada government wide jurisdiction over defence, security matters and substantive criminal law and procedure. The offences of treason and sedition, the colonial lawless aggression legislation and mid nineteenth century UK treason legislation were included in the Dominion criminal law consolidations, which in turn were absorbed into a Canadian Criminal Code (1892), along with new official secrets and espionage-related provisions. Codification, long advocated by utilitarian reformers, was also related to the modernization of colonial governance, and just as the 1857–1858 “Mutiny” prompted enactment of Thomas Macaulay’s India Penal Code, the 1885 North West Rebellion in Canada made codification there a legislative priority. Political trials remained prominent in mid nineteenth century Canada, although after 1867, Ottawa displaced London as the focus of colonial power. The 1848–1849 tensions in Ireland followed a decade of political rallies initiated by Daniel O’Connell, who had fought against the 1801 legislative union with Great Britain and for the 1829 Emancipation Act. After his 1843 seditious conspiracy conviction by a packed jury was overturned, nationalist resurgence was mobilised by the Young Ireland movement and inspired by revolutionary movements in Europe. The British government responded with passage of the Treason Felony Act of 1848 and a series of sedition prosecutions that included editors John Mitchel and Kevin Izod O’Doherty, whose convictions led to transportation to Australia (among the last political prisoners sent there). The Treason Felony Act was a reversion to older repressive approaches. It created a permanent lesser (non-capital) version of treason, expansively defined, designed to overcome the reluctance of jurors to convict. It integrated periodic extensions to the definition of treason (such as Pitt’s temporary 1795 treason legislation and various judicial constructions).30 These mid-­ century Irish experiences were an important setting for political trials that were soon to follow in Canada. The Treason Felony Act was included in the Dominion of Canada’s criminal law consolidations in 1868 as it continued to contend with Fenians, whose earlier raids across the American border brought urgency to the confederation project. Most were Irish-born naturalised American

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citizens who had fought in the civil war and sought to overthrow British rule in Canada in exchange for Irish independence. They were prosecuted under the Lawless Aggression Act, a legal legacy of the 1837–1838 rebellion.31 Further postscript to 1848–1849 is necessary to encompass an important set of Canadian political trials that followed the Fenian crisis and concerned indigenous resistance to Ottawa’s development agendas. Pre-­ confederation security concerns about the long, easily-crossed American border were supplemented by new ones about indigenous resistance on the North West frontier, territories long governed by the Hudson Bay Company, reaching from western Upper Canada to British Columbia on the Pacific coast. Increasing European permanent settlement in these territories, American incursions, and economic development priorities associated with the shift from the fur trade to agriculture and staples extraction, intensified indigenous resistance to colonisation. The proceedings that followed the 1885 North West Rebellion manifested government responses to anti-colonial resistance by way of state trials. These were first state trials involving Canada’s indigenous populations, and included the country’s best-known treason trial, that of Métis leader Louis Riel. The North West Rebellion generated a complex array of over 130 cases. Several of these were leading Métis associates of Riel, others were First Nations leaders accused of widening the resistance. In the shadow of Riel’s conviction and execution, the other leaders charged with high treason received summary justice, pleading guilty to the lesser treason felony offence and receiving penitentiary terms.32 The North West Rebellion was inspired by indigenous claims and local struggles, the influence of the “Age of Revolutions” was indirect at most. Ottawa’s response was nonetheless informed by repressive strategies developed in those earlier conflicts. Moreover, indigenous struggles in Canada were not unconnected to anti-colonial struggles elsewhere in the British Empire that continued through the nineteenth and into the twentieth century. In Ireland during the period 1798–1849, resistance to colonial authority was directly married to the “age of revolutions.” Elsewhere in the British Empire the connections to indigenous resistance are more complex.

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IV Political trials in British North America played a central role in Canada’s experiences of colonisation. Settler conflicts with the colonial state, and the associated political trials were influenced by the “Age of Revolutions,” and by experiences in Britain and Ireland in particular. While the American and French revolutions had less of an influence on settler resistance to colonial governments, they certainly fuelled the fears and reaction of colonial governing elites. The conflicts that ensued informed emerging Canadian political cultures and public spheres, and in turn, the modernisation of colonial government after the 1837–1838 Rebellions informed the development of the federal Canadian state, along with a wide array of other measures to suppress indigenous cultures. While subtler national security measures, supported by political policing and intelligence operations, eventually displaced the prominent place of state trials characteristic of the “age of revolutions,” political trials continued to be an important repressive resource of the modern state, deployed against indigenous anti-colonial resistance long after the age had passed.

Notes 1. On political trials, see e.g., Otto Kirchheimer, Political Justice: The Use of Legal Process for Political Ends (Princeton, 1961). He distinguishes political trials involving prosecutions for political offences, the focus in this chapter, trials for routine offences committed for political purposes, and trials designed to discredit political opponents. See also the work of Judith Shklar. T.L.  Becker, Nathan Hakman, Austin Turk, Ron Christensen, Victor Ramraj, and most recently, Jens Meierhenrich and Devin O.  Pendas, Political Trials in Theory and History (Cambridge, 2017). Political trials also figure in the context of regime transition, and while this chapter focuses on British North America in the wake of the American Revolution, political trials during the establishment of the American republic are not examined. 2. “State trials” as genre of legal, constitutional and political literature are examined in the introductory chapter of F.M.  Greenwood and Barry

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Wright (eds), Canadian State Trials Volume One: Law, Politics and Security Measures, 1608–1837 (Toronto, 1996), 3–11. Reflecting a general libertarian Whig sensibility, the Howells’ English State Trials series ranged beyond treason and sedition cases to suspensions of habeas corpus, deportations, resorts to martial law and the trials of civilians by military courts. This provides a definitional range for the modern Canadian state trials series, but rather than presenting annotated trial records, the published volumes in this series examine the Canadian record of such proceedings to 1939  in the form of scholarly studies placed in political, social, cultural, economic and comparative contexts (in four volumes, a fifth and final volume in progress). 3. See eg., E.P. Thompson, Whigs and Hunters: The Origins of the Black Act (Harmondsworth 1977); “The Moral Economy of the English Crowd,” Past and Present, 50 (1971), 76. On suspensions of regular law and emergency measures in British colonial contexts that contradict formal claims about British Justice and the rule of law, see N. Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor, 2003) and R.W. Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford, 2005) 4. P.  Corrigan and D.  Sayer, The Great Arch: English State Formation as Cultural Revolution (Oxford, 1985) 5. In the earliest periods of British influence over claimed, conquered, ceded or discovered territories in North America, British subjects brought their laws with them, applied as far as local British executive authority determined feasible, an “informal reception” of English law derived from the 1608 precedent, Calvin’s Case (Case of the Postnati, 7 C0.Rep.1) 6. Subsequent criminal statutes passed at Westminster did not apply unless they were explicitly imperial in reach, a colony was indicated, or a colonial legislature expressly adopted them. However, imperial oversight continued beyond the local presence of London appointed governors and senior judges. From 1801 colonial legislation was reviewed by the Colonial Office and from 1833 colonial cases could be appealed to the Judicial Committee of the Privy Council. 7. For instance, Robert Peel’s Criminal Law Consolidations of the late 1820s and early 1830s were adopted by Upper Canada’s legislature in 1833, and only 11 capital offences were retained after that date, while Lower Canada (Quebec) had over 200, reflecting the unreformed state of English criminal law as it stood in 1774.

  State Trials in Post-revolution British North America 

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8. See Douglas Hay, “Civilians Tried in Military Courts: Quebec, 1759– 64” in Canadian State Trials I, 114. 9. See Earnest A.  Clarke and Jim Phillips, “Rebellion and Repression in Nova Scotia in the Era of the American Revolution” in Canadian State Trials I, 172. 10. Carleton’s successor Haldimand confiscated property and repeatedly suspended habeas corpus by executive order, detaining 25 activists, lawyers, journalist/printers for “republican sedition”. Pierre Du Calvet, who had called for law reforms and criticised executive decrees, took his petitions for “state justice” to London, calling for Haldimand’s recall (the governor was, ironically, defended by Thomas Erskine) and initiating actions for compensation in the English courts, only to die when his ship sank in the Atlantic – see Jean-Marie Fecteau and Douglas Hay, “Government by Will and Pleasure Instead of Law: Military Justice and the Legal System in Quebec, 1775–83” in Canadian State Trials I, 129. 11. John Barrell, Imagining the King’s Death: Figurative Treason, Fantasies of Regicide, 1793–1797 (Oxford, 2000). As noted elsewhere in this collection, after the acquittals of Hardy, Tooke and Thelwall, the remaining ‘Jacobin’ cases were dropped. Temporary legislation passed by Westminster in 1793, renewed to 1797, restricted foreign correspondence, extended prerogative registration and deportation powers over aliens and British subjects with contacts in France. In 1794 habeas corpus was suspended for these persons and anyone suspected of high treason, renewed every year (except 1796) until 1802. 12. 33 Geo.III c.3, c.27; F.K Proschaska, “English State Trials in the 1790s: A case Study”, Journal of British Studies, 13 (1973), 63; Clive Emlsey, “An Aspect of Pitt’s ‘Terror’: Prosecutions for Sedition During the 1790s” Social History, 6 (1981), 155. 13. F.  Murray Greenwood, “Judges and Treason Law in Lower Canada, England, and the United States during the French Revolution, 1794– 1800”, in Canadian State Trials 1, 243. 14. 34 Geo. III c.5 (L.C.); See generally, F. M. Greenwood, Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution (Toronto, 1993). 15. Greenwood, Canadian State Trials 1, 266–9. 16. J-M Fecteau, J-P Wallot and F.M. Greenwood, “Sir James Craig’s Reign of Terror and its Impact on Emergency Powers in Lower Canada, 1810– 13”, in Canadian State Trials I, 323.

378 

B. Wright

17. 37 Geo. III c.1 (U.C.). American criminal law fell within state level jurisdiction and Article 3, section 3 of the US Constitution limited the reach of treason, article 1, section 9 limited the suspension of habeas corpus, while the First Amendment limited measures against the press. The Federalists attempted to work around these constraints with the Sedition Act, Alien Enemies Act, Alien Friends Act and the Naturalization Act (Statutes at Large, 1798, 1:566–97). See J.M.  Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca, NY, 1956), L.W Levy, Freedom of Speech and the Press in Early American History: A Legacy of Suppression (New York, 1963); also, Barry Wright, “Migration, Radicalism and State Security: Legislative Initiatives in the Canadas and the United States c. 1794–1804” Studies in American Political Development, 16 (2002), 48. 18. Wright, “Migration”, 51–2; F.M.  Greenwood and Barry Wright, “Parliamentary Privilege and the Repression of Dissent in the Canadas” in Canadian State Trials 1, 418. See also John McLaren, Dewigged, Bothered and Bewildered: British Colonial Judges on Trial, 1800–1900 (Toronto, 2011), 63–71. 19. See Paul Romney and Barry Wright, “State Trials and Security Proceedings in Upper Canada during the War of 1812”, in Canadian State Trials 1, 379. 20. See e.g., Barry Cahill, “R v. Howe (1835) for Seditious Libel: A Tale of Twelve Magistrates”, in Canadian State Trials I, 547. 21. See Barry Wright, “Libel and the Colonial Administration of Justice in Upper Canada and New South Wales, c. 1825–30”, in Hamar Foster, Benjamin Berger and A.R. Buck(eds), The Grand Experiment: Law and Legal Culture in British Settler Societies (Vancouver, 2008), 15. See also J.L.  McNairn, The Capacity to Judge: Public Opinion and Deliberative Democracy in Upper Canada, 1791–1854 (Toronto, 2000) and more generally C. Calhoun (ed.), Habermas and the Public Sphere (Cambridge, MA, 1992). 22. Barry Wright, “The Gourlay Affair: Seditious Libel and the Sedition Act in Upper Canada, 1818–19”, in Canadian State Trials I, 487. 23. See Wright, “Libel”; Greenwood and Wright, “Parliamentary Privilege”; and Paul Romney, “Upper Canada in the 1820s: Criminal Prosecution and the Case of Francis Collins”, in Canadian State Trials I, 505. 24. A.  Greer, “1837–38: Rebellion Reconsidered” Canadian Historical Review, 76 (1995), 6.

  State Trials in Post-revolution British North America 

379

25. See Jean-Marie Fecteau, “This Ultimate Resource: Martial Law and State Repression in Lower Canada, 1837–8”, in Greenwood and Wright (eds), Canadian State Trials Volume Two: Rebellion and Invasion in the Canadas, 1837–39 (Toronto, 2002), 207; Steven Watt, “State Trial by Legislature: The Special Council of Lower Canada, 1838–41”, in Canadian State Trials II, 248. 26. See F.  Murray Greenwood, “The General Court Martial at Montreal, 1838–9: Operation and the Irish Comparison”, in Canadian State Trials II, 279; Beverley Boissery, “The Punishment of Transportation as Suffered by the Patriotes Sent to New South Wales”, in Canadian State Trials II, 383. 27. See R.  Baehre, “Trying the Rebels: Emergency Legislation and the Colonial Executive’s Overall Legal Strategy in the Upper Canadian Rebellion”, in Canadian State Trials II, 41; P. Romney and B. Wright, “The Toronto Treason Trials, March–May 1838”, in Canadian State Trials II, 62; C. Read, “The Treason Trials of 1838 in Western Upper Canada”, in Canadian State Trials II, 100. 28. B.  Wright, “The Kingston and London Courts Martial”, in Canadian State Trials II, 130. The 78 transported joined 24 convicted at the Toronto, Hamilton and London criminal trials who received conditional pardons, and were transported to Australia  – see C.  Pybus, “Patriot Exiles in Van Diemen’s Land” in Canadian State Trials II, 188. 29. See Ian Radforth, “Sydenham and Utilitarian Reform” in A. Greer and I. Radforth (eds), Colonial Leviathan: State Formation in Mid-Nineteenth Century Canada (Toronto, 1992), 64. 30. See Desmond H.  Brown and B.  Wright, “Codification, Public Order, and the Security Provisions of the Canadian Criminal Code 1892” in Barry Wright and Susan Binnie (eds), Canadian State Trials Volume 3: Political Trials and Security Measures, 1840–1914 (Toronto, 2009), 529– 31, 541–2. On developments in the law of treason generally see the Introductions to Canadian State Trials volumes 1, 2 and 3. The Statute of Treasons of Edward III, set out three major heads of treason (along with four other acts against the sovereign): Levying war/armed insurrection, adhering to enemies at war, and compassing/plotting sovereign’s death. Legislative and judicial constructions typically extended the definition to various forms of treasonous conspiracies and assisting enemies of the state outside war-time. The 1848 Treason Felony Act also modified procedural protections established in the 1696 Treason Act (advance sight of prosecutor’s evidence, two witness rule, right to defence counsel).

380 

B. Wright

31. Brown and Wright, “Codification”, in Canadian State Trials III, 531–2. On the Fenian raids and state responses, see R. Blake Brown, “Stars and Shamrocks Will Be Sown: The Fenian State Trials, 1866–7” in Canadian State Trials III and David A. Wilson, “The D’Arcy McGee Affair and the Suspension of Habeas Corpus” in Canadian State Trials III, 35, 85. 32. See Bob Beal and B. Wright, “Summary and Incompetent Justice: Legal Response to the 1885 Crisis” in Canadian State Trials III, 353; J.M. Bumsted, “Another Look at the Riel Trial for Treason,” in Canadian State Trials III, 411; Bill Waiser, “The White Man Governs: The 1885 Indian Trials” in Canadian State Trials III, 451.

Bibliography Calvin’s Case, 1608 (Case of the Postnati, 7 C0.Rep.1). 33 Geo. III c.27, Correspondence with Enemies Act, 1793. 34 Geo. III c.5, (Lower Canada), Aliens Act, 1794. 37 Geo. III c.1, (Upper Canada), Enemy Aliens Act, 1796. 44 Geo. III c.1, (Upper Canada), Sedition Act, 1804. 1 Vic. c.3, (Upper Canada), Lawless Aggressions Act, 1838. 11&12 Vic. c.12, Treason Felony Act, 1848. F.M.  Greenwood and Barry Wright (eds), Canadian State Trials Volume One: Law, Politics and Security Measures, 1608–1837 (Toronto, 1996). F.M.  Greenwood and Barry Wright (eds), Canadian State Trials Volume Two: Rebellion and Invasion in the Canadas, 1837–39 (Toronto, 2002). Barry Wright and Susan Binnie (eds), Canadian State Trials Volume Three: Political Trials and Security Measures, 1840–1914 (Toronto, 2009). R.  Baehre, “Trying the Rebels: Emergency Legislation and the Colonial Executive’s Overall Legal Strategy in the Upper Canadian Rebellion”, in Greenwood and Wright Canadian State Trials II, 41–61. John Barrell, Imagining the King’s Death: Figurative Treason, Fantasies of Regicide, 1793–1796 (Oxford: Oxford University Press, 2000). Bob Beal and B. Wright, “Summary and Incompetent Justice: Legal Response to the 1885 Crisis” in Wright and Binnie, Canadian State Trials III, 516–63. R. Blake Brown, “Stars and Shamrocks Will Be Sown: The Fenian State Trials, 1866–7” in Wright and Binnie, Canadian State Trials III, 35–84. Beverley Boissery, “The Punishment of Transportation as Suffered by the Patriotes Sent to New South Wales”, in Greenwood and Wright, Canadian State Trials II, 383–401

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J.M.  Bumsted, “Another Look at the Riel Trial for Treason,” in Wright and Binnie, Canadian State Trials III, 411–450. Desmond H.  Brown and B.  Wright, “Codification, Public Order, and the Security Provisions of the Canadian Criminal Code 1892” in Wright and Binnie, Canadian State Trials III, 516–63. Barry Cahill, “R v. Howe (1835) for Seditious Libel: A Tale of Twelve Magistrates”, in Greenwood and Wright, Canadian State Trials I, 547–75. C. Calhoun (ed.), Habermas and the Public Sphere (Cambridge, MA, 1992). Earnest A. Clarke and Jim Phillips, “Rebellion and Repression in Nova Scotia in the Era of the American Revolution” in Greenwood and Wright, Canadian State Trials I, 172–220. P. Corrigan and D. Sayer, The Great Arch: English State Formation as Cultural Revolution (Oxford, 1985). Clive Emsley, “An Aspect of Pitt’s ‘Terror’: Prosecutions for Sedition During the 1790s” Social History, 6 (1981), 155–84. Jean-Marie Fecteau and Douglas Hay, “Government by Will and Pleasure Instead of Law: Military Justice and the Legal System in Quebec, 1775–83” in Greenwood and Wright, Canadian State Trials I, 129–71. J-M Fecteau, J-P Wallot and F.M.  Greenwood, “Sir James Craig’s Reign of Terror and its Impact on Emergency Powers in Lower Canada, 1810–13”, in Canadian State Trials I, 323–78. Jean-Marie Fecteau, “This Ultimate Resource: Martial Law and State Repression in Lower Canada, 1837–8”, in, 207–247. F.M. Greenwood, Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution (Toronto, 1993). F.M. Greenwood and Barry Wright, “Parliamentary Privilege and the Repression of Dissent in the Canadas” in Greenwood and Wright, Canadian State Trials I, 409–49. F. Murray Greenwood, “Judges and Treason Law in Lower Canada, England, and the United States during the French Revolution, 1794–1800”, in Greenwood and Wright, Canadian State Trials 1, 241–95. F.  Murray Greenwood, “The General Court Martial at Montreal, 1838–9: Operation and the Irish Comparison”, in Greenwood and Wright, Canadian State Trials II, 279–324. A. Greer, “1837–38: Rebellion Reconsidered” Canadian Historical Review, 76 (1995), 1–18. Douglas Hay, “Civilians Tried in Military Courts: Quebec, 1759–64” in Greenwood and Wright, Canadian State Trials I, 114–28.

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N.  Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor, 2003). Otto Kirchheimer, Political Justice: The Use of Legal Process for Political Ends (Princeton, 1961). R.W.  Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford, 2005). L.W. Levy, Freedom of Speech and the Press in Early American History: A Legacy of Suppression (New York, 1963). John McLaren, Dewigged, Bothered and Bewildered: British Colonial Judges on Trial, 1800–1900 (Toronto, 2011). J.L. McNairn, The Capacity to Judge: Public Opinion and Deliberative Democracy in Upper Canada, 1791–1854 (Toronto, 2000). Jens Meierhenrich and Devin O. Pendas, Political Trials in Theory and History (Cambridge, 2017). F.K. Proschaska, “English State Trials in the 1790s: A Case Study”, Journal of British Studies, 13 (1973), 63–82. C.  Pybus, “Patriot Exiles in Van Diemen’s Land” in Greenwood and Wright, Canadian State Trials II, 188–204. Ian Radforth, “Sydenham and Utilitarian Reform” in A. Greer and I. Radforth (eds), Colonial Leviathan: State Formation in Mid-Nineteenth Century Canada (Toronto, 1992), 64–102. C. Read, “The Treason Trials of 1838 in Western Upper Canada”, in Greenwood and Wright, Canadian State Trials II, 100–129. Paul Romney, “Upper Canada in the 1820s: Criminal Prosecution and the Case of Francis Collins”, in Greenwood and Wright, Canadian State Trials I, 505–21. Paul Romney and Barry Wright, “State Trials and Security Proceedings in Upper Canada during the War of 1812”, in Greenwood and Wright, Canadian State Trials 1, 379–405. P. Romney and Barry Wright, “The Toronto Treason Trials, March-May 1838”, in Greenwood and Wright, Canadian State Trials II, 62–99. J.M. Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca NY, 1956). E.P. Thompson, “The Moral Economy of the English Crowd,” Past and Present, 50 (1971), 76–136. E.P. Thompson, Whigs and Hunters: The Origins of the Black Act (Harmondsworth, 1977). Bill Waiser, “The White Man Governs: The 1885 Indian Trials” in Wright and Binnie, Canadian State Trials III, 451–80.

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Steven Watt, “State Trial by Legislature: The Special Council of Lower Canada, 1838–41”, in Greenwood and Wright, Canadian State Trials II, 248–278. David A.  Wilson, “The D’Arcy McGee Affair and the Suspension of Habeas Corpus” in Wright and Binnie, Canadian State Trials III, 85–120. Barry Wright, “The Gourlay Affair: Seditious Libel and the Sedition Act in Upper Canada, 1818–19”, in Greenwood and Wright, Canadian State Trials I, 487–504. Barry Wright, “Migration, Radicalism and State Security: Legislative Initiatives in the Canadas and the United States c. 1794–1804” Studies in American Political Development, 16 (2002), 48–60. Barry Wright, “Libel and the Colonial Administration of Justice in Upper Canada and New South Wales, c. 1825–30”, in Hamar Foster, Benjamin Berger and A.R. Buck(eds), The Grand Experiment: Law and Legal Culture in British Settler Societies (Vancouver, 2008), 15–37. Barry Wright, “The Kingston and London Courts Martial”, in Greenwood and Wright, Canadian State Trials II, 130–159.

Index

A

Abell, John, 254 Abercrombie, Lord, 90, 94 Adams, Daniel, 164 Adams, John Quincy, 302 Adams, William, 64, 65 Alexander, Jeffrey, 150 Alien Act (Canada), ix Alison, Archibald, 30, 31 Principles of Criminal Law, 28–29 Allen, John, 221 Allen, Robert, 51 America, see United States American Civil War, 373 American Revolution impact on Canada, 358, 361, 363 Analytical Review, 59–60 Anderson, James, 51–56, 82, 85, 86, 91 Andress, David, 285, 287 Antoinette, Marie, 269

Arasse, Daniel, 276 Armstrong, Captain John Warneford, 330–332 Armstrong, John, 250, 253, 254 Arthur, Sir George, 371 Ashhurst, Justice William, 125 Associationalism, 321, 325 Atchinson, William, 254 B

Bagguley, John, 195–197 Baird, Thomas, 24, 216, 217, 219–221 Balguy, John, 251–252, 253 Bamford, Samuel, 186, 197 Barclay, Katie, 324 Barrell, John, 6, 7, 90, 91, 148 Barrington, Jonah, 329, 340 Bartlett, Thomas, 330 Bastrop, Baron, 307

© The Author(s) 2019 M. T. Davis et al. (eds.), Political Trials in an Age of Revolutions, Palgrave Histories of Policing, Punishment and Justice, https://doi.org/10.1007/978-3-319-98959-4

385

386 Index

Bath riots, 254 Bayard, James, 302 Beck, George, 250, 253 Beeston Mill riots, 245, 249–250 Beiner, Guy, 324, 342 Beirne, Francis, 311 Bentham, Jeremy, 195 Bentley, James, 246–247 Bérard (Revolutionary Tribunal printer), 274 Beresford, John Claudius, 326, 328 Beresford, Marcus, 326 Berkins, Charles, 245, 250, 253 Bermuda Ordinance, 369 Berry, Walter, 53, 55 Biddle, William, 242 Binks, Samuel, 245, 250, 253 Black Dwarf, 188, 195 Blackstone, Sir William Commentaries on the Laws of England, 26, 126, 171 Blandford riots, 239, 254, 255 Bleathman, Richard, 255 Blennerhassett, Harman, 303, 308 Blennerhassett, Margaret, 304 Blennerhassett’s Island, 304, 310 Bloody Assize 1685, 244 Bloxham, Mark, 328 Boardman, John, 327 Bollman, Erick, 307–309 Bonaparte, Napoleon, 299, 312, 334, 361, 363 See also Napoleonic Wars Bond, Oliver, 330, 337, 340 Bonney, John Augustus, 164, 166 Bosanquet, Justice, 245 Botts, Benjamin, 308 Bradshaw, Brendan, 322 Brend, Mary, 120, 124

Brewer, John, 94 Briellat, Thomas, 114–115 Bristol Gazette, 238 Bristol riots, 240, 241, 243–244, 252, 255 British Convention, 22, 86 British North America British North America Act 1867, 373 state trials, ix, 357–375 See also Canada Bromhead, William, 142 Brossard, Louis, 279–280 Brougham, Henry, 198 Broughton, Thomas, 198 Browne, George Joseph, 326 Bruce, John, 95 Buck, Reverend Charles, 247 Bugg, John, 138 Burdett, Sir Francis, 193 Burke, Edmund, 111, 126, 139, 174, 331, 340 Burnett, John Criminal Law, 28 Burr, Aaron, 297–312 trial, 308–312 Burr Alston, Theodosia, 304 Butler, Simon, 325 C

Caledonian Chronicle, 50 Caledonian Mercury, 49, 51–53, 55, 56, 58, 60, 63, 65 Canada 1837–1838 rebellions, 368–371 Alien Act, 363–364 Better Preservation Act, 364 British–French tensions, 359–361

 Index 

British North America Act, 368 Canadian Criminal Code, 371 First Nations trials, 358 march on Toronto, 370 martial law, 359 Métis trials, 358 New France, 360 North West Rebellion, 373, 374 Quebec Act 1774, 362 revolutionary moment, 358, 359 Royal Proclamation, 361 Russell Resolutions, 368, 369 Sedition and Alien Act 1894, 364, 365, 367 Thirteen Colonies, 362–363 Tory elites, 359 See also British North America Canadian Freeman, 367 Captain Swing, 237 Carleton, Lord, 327, 341 Carlile, Richard, 193, 215 Cartwright, Major, 198, 204 Catholic Association (Ireland), 325 Cato Street conspirators, 192–194 Channes, Mary, 119 Chartist movement, 19, 25 view of trials, 3 Chase, Malcolm, 193 Chateau Clique (Canada), 359, 366, 368 Chidsey, Donald Barr, 311 Christenson, Ron, 7 Chronicle, The, 190 Clarke, Parker, 363 Clarke, William, 247, 252 Clarkson, Stephen, 242–243 Clerk, John, 217, 219, 221 Clinton, DeWitt, 303

387

Clinton, George, 301, 303 Clonmell, Lord, 339 Cobbett, William, 4, 327–328, 366 Cockayne, John, 330, 331 Cockburn, Henry, vii, 23, 27, 38, 79, 80, 88, 137, 215, 217–219 Examination of the Trials for Sedition, 4, 35–36 Colborne, Sir John, 369 Coleridge, Samuel Taylor, 127 Collins, Francis, 367 Colonial Advocate (Canada), 367 Colwick Hall riots, 245, 249 Committee of Public Safety (France), 267 political aspects, 268 See also French Revolution; Revolutionary Tribunal Complete Collection of State Trials, see State Trials Cork Gazette, 326 Corresponding societies, 185 Corrigan, Philip, 360 Cosway, Maria, 299 Cosway, Richard, 299 Coté, Cyrille, 369 Counter-revolutions, 7 Couthon, Georges, 281, 286 Craig, Malcolm, 51, 53, 56, 82, 85, 91 Cranstoun, George, 217, 220 Crees, William, 113 Crossfield, Robert Thomas, 144 Cullen, Louis, 323 Curran, John Philpott, 326, 327, 331, 337–339, 342 Curran, Sarah, 322, 327

388 Index D

Danton, Georges-Jacques, 267, 284, 287 Dantonists, 272, 283, 285 See also Indulgents Darby, John, 123, 124 D’Aubigny, Villain, 267 Daviess, Joseph Hamilton, 306 Davis, Christopher, 238, 247, 248 Davis, Michael, 48 Davis, Thomas, 332, 337 Davison, Richard, 192 Dayton, Jonathan, 305, 306 Democratic movement, 185–205 loyalist reaction, 186 See also Mass platform meetings Denman, Sir Thomas, 243, 245, 246, 250 Denney, Peter, 150 Derby riots, 239–241, 244, 256 Desmoulins, Camille, 284 Despard, Colonel Marcus, 192, 333 Dickinson, H. T., 5 Dodge, Edward, 255 Dodsley, Henry, 250 Douglas, Niel, 24 Dowling, Matthew, 326 Downie, David, 83, 90, 224–245 Drennan, William, 324, 336, 341, 345 Driscol, Denis, 326 Drummond, Samuel, 196, 197 Drummond, Simon, 54–56 Dublin University Magazine, 336 Dundas, Henry, 23, 95, 96, 139 Dundas, Robert, 23, 52, 88, 90, 91, 94 Dungan, Miles, 323

Dungannon Convention 1782, 338 Dunne, Tom, 323 Durham, Lord, 369 Report on the Canadas, 360, 371–372 Dutton, Frederick, 331 Dwight, Timothy, 301 E

Earle, Henry, 254–255 Eaton, Daniel Isaac, 85, 86, 91, 143 Edelstein, Dan, 279 Edinburgh Advertiser, 49, 50, 59 Edinburgh Courant, 49 Edinburgh Gazetteer, 49, 50, 53–60, 63–64, 67 Edinburgh Review, 217, 220, 221 Edwards, Jonathan, 301 Ehrman, John, 80, 88 82 Club, 338, 346 Elder, William, 84 Emmet, Robert, 3, 321–323, 325, 326, 328, 334, 335, 338, 340–342, 344–346 Emmet, Thomas Addis, 325, 326 Emotion emotional communities, 323 social function of emotion, 324 Emsley, Clive, 84, 138 Erskine, Thomas, vi, 2–3, 32, 92, 125, 145, 146, 187, 270, 331, 333 Eskgrove, Lord, 90 Evans, William, 200 Executions, 341 Exshaw, John, 328 Eyre, Sir James, 90, 94, 151, 165

 Index 

389

F

G

Fairfax-Cholmeley, Alex, 287 Farmer, Lindsay, 7 Faulkner, Thomas, 363 Faulkner’s Dublin Journal, 329 Fenian crisis, 371, 374 Ferguson, Bartimus, 367 Ferns, Sir John, 328 Finnerty, Peter, 326, 332–333, 342 Fitzgibbon, John (Lord Clare), 326, 340, 345 Fleming, Samuel, 198–200, 202–203 Foot, William, 113 Forman, John, 251 Foucault, Michel, 276 Fouquier-Tinville, Antoine, 7, 278, 279 Fox, Charles James, 22, 81, 88, 90, 214, 333, 340 See also Fox’s Libel Act Fox’s Libel Act 1792 (England), 22, 88, 90, 191, 363 France, ix, 267–288 Jacobin republic, ix, 271–272 war with Europe, 112 French Penal Code, 270 French Revolution, vii, ix, 5, 19, 22, 111, 117, 120, 163, 164, 218, 324 international impact, 50–51, 95, 96, 163, 359 See also Revolutionary Tribunal; Terror Friendly Brothers of St Patrick, 327 Friends of Liberty, 21, 58 Frost, John, 87, 94 Fyshe Palmer, Reverend Thomas, 8, 21, 32, 48, 56–67, 81, 83, 86, 94, 142

Gales, Joseph, 192 Gazelee, Justice, 249, 255 Geohegan, Patrick, 323 George, Denis, 338 Gerald, Joseph, 32 Gerrald, Joseph, vi, vii, 22, 48, 62, 63, 81–83, 87, 88, 90, 95, 142 Gibbons, John, 246 Gibbs, Reverend Philip, 110, 119–121 Gibbs, Vicary, 115, 118, 120, 146 Giffard, John, 329 Giles, Senator William, 311 Gilmartin, Kevin, 199 Gilray, James, 333 Girondins, 7, 269 Glasgow Advertiser, 50, 53 Glasgow Courier, 49, 55, 58, 62 Godfrey, Barry, 140 Godwin, William, ix, 79, 80, 170 Caleb Williams, 166–171, 174, 178, 179 Cursory Strictures, 166, 173 Goldsmith’s Hall Association, 23 Gosling, Edward, 92 Gourlay, Robert, 366–367 Granger, Gideon, 303 Grant and others, 34 Grant, John Peter, 217 Gray, James, 89 Great Famine, 336 Greenwood, Murray, 363 Greer, Allan, 368 Gregory, Thomas, 247, 248 Grenville, William, 95 Grey, Charles, 214 Griffin, Michael, 329

390 Index

Griswold, Roger, 303 Groves, John, 127 Guillotine, ix, 276 See also French Revolution; Revolutionary Tribunal; Terror Gurney, John, 152 H

Haggart, John, 94 Hamilton, Alexander, 300–302 Hamilton, Lord Archibald, 224 Hamilton Rowan, Archibald, 326, 328–329, 331, 339, 342 Hardie, Andrew, 217 Hardy, Thomas, 2–3, 4, 83, 86–90, 92, 93, 96, 139, 143–145, 148, 149, 164, 165, 187, 270, 331, 364 Harling, Philip, 187–190 Harris, Bob, 48 Hart (publican), 113–114 Hay, Douglas, 58–59, 140 Hay, George, 308 Hay, William, 217 Hearson, George, 250, 253 Hébert, Jacques-René, 283–285 Hébertists, 269, 272, 283–285 Henderland, Lord Justice, 52, 82 Henderson, John, 152 Henderson, Lord, 90 Hesse, Carla, 270 Hibernian Catch Club, 326–328 Hilton, Boyd, 140 Hobsbawm, Eric, 368 Hobson, Charles, 309 Hockley, John, 193

Hoffer, Peter Charles, 298, 311 Holcroft, Thomas, ix, 164, 166 Memoirs of Brian Perdue, 177–180 Narrative of Facts, 177–178 Holt, Daniel, 125 Hone, William, 187, 226 Hope, Charles, 225 Hope, Lord Justice-Clerk, 30, 34 Horne Tooke, John, 83, 87, 88, 93, 94, 96, 139, 143–147, 164, 165, 187, 195, 203, 364 Howe, Joseph, 366 Howell, Thomas Bayly, 4 Complete Collection of State Trials, 55, 84 Howley, Henry, 341 Howlin, Niamh, 324 Hudson Bay Company, 374 Hullock, Serjeant, 225 Hume, Baron David, vii, 32, 33, 37 Commentaries on the Law of Scotland Respecting Crimes, 26–27 Hunt, Henry, 192, 193, 225, 366 I

Indulgents, 267–269, 283 Ireland, 3 Emancipation Act 1829, 372, 373 rebellion of 1798, 323 Treason Felony Act 1848, 373–374 See also Irish political trials; Republican Irish nationalism Irish political trials, 321–346 role of informants, 329–333

 Index 

Irish Rebellion, 186, 321 Isenberg, Nancy, 298

391

Kline, Mary-Jo, 303 Knight, John, 197, 199–200 Knox, Vicesimus, 140

J

Jackson, William, 328, 329, 342 Jacobite emergencies, 138 Jago, Margaret, 119 Jefferson, Thomas, ix, 299, 300, 302, 304–307, 311 Jeffrey, Francis, 217, 218, 221, 228 Jeffreys, Judge, 35, 81 Johnston, John, 196–197 Johnston, Kenneth Unusual Suspects, 138, 324 Johnston, William, 53–56, 64, 67 Jones, Claire Armon, 324 Jones, Colin, 272 Journal de Paris, 275 Joyce, Reverend Jeremiah, 164, 166 Juries guinea men, 195 packing of, 194–195, 328 use of special, 194 K

Kayes, Joseph, 247, 248 Keeling, William, 254 Keighley Chartists, 337 Kenrick, Samuel, 82 Kenrick, Timothy, 114 Kenyon, Lord, 125, 152, 153 Kilday, Anne-Marie, 49, 90–91 King, John, 113 King, Peter, 141 King, Rufus, 301, 303 Kinloch, George, 24

L

Latour-Lamontagne, 284 Lee, Charles, 308 Leinster Directory trials, 330, 331 Lemmings, David, 48, 49, 88, 141, 148 Le Père Duchesne, 283 Lése-majesté, 271 Lése-nation, 271 Le Vieux Cordelier, 285 literary representations of trials, 163–180 Littledale, Justice, 249 Lloyd, John, 191 Lobban, Michael, 36 Locke, John, 169 Lomask, Milton, 303, 311 London Corresponding Society, v, 22, 50, 62, 67, 79, 80, 83, 88 London Treason Trials of 1794, 163–180, 270 Long, George, 255 Longford, Lady Christine, 322, 335 The United Brothers, 329, 335, 339, 343 Lord Braxfield, see McQueen, Robert Loughborough riots, 239 Louis XVI, 271 Lovett, John, 164 Loyal Association, 91 Lucas, Colin, 287 Luddite machine-breaking, 190 Lynch, Patrick, 331

392 Index

Lyne, Edward, 122–124 Lyster, John, 331 M

Macaulay, Thomas, 372 Macclesfield reform meeting, 197 Macdonald, Archibald, 85 MacGawley, Owen, 250, 253, 254 Mackenzie, Sir George, 27, 31, 33 Mackenzie, William Lyon, 367, 370 MacLeod, Gilbert, 24, 216 MacNally, Leonard, 326, 330, 334 Maconochie, Alexander, 218, 224, 228 Madden, Richard R., 322, 323, 331, 342 United Irishmen, Their Lives and Times, 322 Madison, James, 305 Magee, John, 324 Magna Carta, 186, 194, 204 Malone, Dumas, 306 Manchester Constitutional Society, 192 Manchester radicals, 12 Mansfield riots, 241 Marbury, William, 305, 309 Margarot, Maurice, vi, vii, 8, 22, 48, 62, 63, 81, 83, 87, 88, 94, 142, 146–147, 149, 152 Marshall, Chief Justice John, ix, 304–305, 307–312 Martial Law courts in Canada, ix Martin, Luther, 308 Mass platform meetings, 36, 185–205

See also Spa Fields riots Maule, George, 249, 251 Maxwell, trial of, 24 McCaleb, Walter Flavius, 304, 311 McDonald, Ronald, 225 McKinlay, Andrew, 216, 220, 223–224, 226–228 McLane, David, 364 McLaren, Alexander, 24, 216, 219–222 McLeod, Gilbert, see MacLeod, Gilbert McNevin, Thomas, 325 McQueen, Robert (Lord Braxfield), vii, 21, 23, 35, 54, 59, 80–81, 85, 86, 89–91, 93–96, 214 Meagher, Francis, 337 Mealmaker, George, 23, 81 Mee, Jon, 90, 91, 139 Meierhenrich, Jens, 9, 11 Melbourne, Lord, 237–238, 252 Melton, Buckner, 299, 312 Mennons, John, 53 Menzies, James, 84 Mercier, Louis-Sébastian, 274 Mercure de France, 275 Middleton, Lord, 243 Milka, Amy, 49, 148 Mitchel, John, 325, 337, 345, 373 Mitford, Sir John, 86, 94 Monk, Chief Justice James, 364 Moore, Thomas, 322 Morning Chronicle, 19–20, 60, 61 Morton, John, 51, 53, 56, 82, 85, 91 Muir, Thomas, 8, 21–23, 48, 56–67, 81–83, 86–89, 142, 214 Musters, John, 238

 Index  N

Nadin, Joseph, 198–200, 205 Napoleonic Wars, vii, 24, 185, 190, 217 Napper, James, 326 Nation, the, 342–343 National Convention (France), 88 National Intelligencer, 306 Navickas, Katrina, 8 Neil, Mary, 328 Nelson, Wolfred, 369 Neutrality Act 1794 (US), 308, 312 Newmyer, R. Kent, 309 Newspapers, see Press Norbury, Lord, see Toler, John Norris, Joseph, 82, 84 Northern Star, 336 Nottingham Review, 190, 245 Nottingham riots, 238, 241, 244, 245, 252, 253, 255 Nova Scotia, 362–363 O

O’Brien, Conor Cruise, 323 O’Brien, William Smith, 337 O’Coigly, James, 80, 83, 95, 142–143, 330, 333, 341 O’Connell, Daniel, 332, 338, 341, 344–346, 373 O’Connor, Arthur, 143, 329, 331, 333, 337, 344 O’Connor, Lawrence, 327 O’Connor, Valentine, 330 O’Doherty, Kevin Izod, 373 Opie, Amelia, 143 Opinion books, 189 Orme, Trent, 217

393

Orr, William, 324, 328, 332, 334, 339, 341, 342, 345 Osborne, Brian D., 89 P

Paddon, William, 113 Paine, Thomas, 21–23, 85, 93, 113 burning of effigies, 112 Rights of Man, 56, 93, 111 Palmer, Reverend Thomas Fyshe, see Fyshe Palmer, Reverend Thomas Pamphlets, 33–34 Papineau, Louis-Joseph, 369 Park, Mr., 198, 203 Parke, Judge James, 254 Parr, James, 191 Patterson, James, 81 Pearse, Pádraig, 344 Peel, Robert, 195 Pendas, Devin O., 9, 11 Pentland, Gordon, 8, 80 People, The, 190 Perrin, George, 328–329 Perry, James, 89 Perryn, Sir Richard, 94 Peterloo Massacre, 5, 24, 36, 192–193, 204, 216, 228 Six Acts, 204 Phillips, John, 240 Pigott, Charles, 109 Pike Plot, 224–225 Pitt, William, ix, 5, 95, 96, 164–165, 329 See also Pitt’s Terror Pitt’s Terror, ix, 4, 7, 138, 152, 324, 363, 366

394 Index

Plamper, Jan, 153 Plunkett, William, 326–328 Political trials characteristics, 2 Poor Man’s Guardian, 252 Pop Gun plot, 92 Portland, Duke of, 241 Posner, Eric, 11 Prejudication, 10 Press bias, 48, 66–67 mediatization of world, 11–12 mouthpiece of Scottish courts, 49 radical, vii–viii Scottish trial reports, vii, 47–67, 213–230 Price, Richard, 111, 116 Priestley, Joseph, 109, 127, 299 Protestant Ascendency, 345 Public assembly, 36 See also Mass platform meetings; Public disorder; Unlawful assembly Public disorder, 37 Q

Quebec, 363, 364 British invasion, 362 Quebec Act 1774, 362, 368 See also British North America; Canada Quinn, James, 324 R

Radical orators, 192 See also Mass platform meetings

Rapport, Mike, 7 Reddy, William, 323 Reeve, Tapping, 301 Reeves, John, 112 loyalist associations, 112 Reform Acts, 237 Reform Bill riots, vi, 12, 237–256 Repeal clubs, 337 Repeal movement (Ireland), 325, 328 Republican Irish nationalism, 3 Republican, The, 193 Revisionist controversy, 322 Revolutionary Directory (France), 364 Revolutionary Tribunal (France), ix, 7, 267–288 arrêts, 274–275 Bulletin du tribunal révolutionnaire, 273 commissaires observateurs, 283 influence of ancient régime, 275 Law of Suspects, 282 pamphlets, 273–274, 282 posters, 273–274 Prairial Law, 282, 286 publicity for hearings, 272–273, 276, 277, 281 public nature of, 276–277 public response to, 272, 282–286 public spectacle, 275–276 role in educating public, x, 271 role of print, 275, 283 See also Terror Reynolds, Thomas, 330 Richards, William, 255 Richter, John, 164 Rickle, Thomas, 191

 Index 

Ridgeway, William, 327 Ridgway, James, 125 Riel, Louis, 358, 374 Rights of man, 164 liberty as function of property, 168 Robertson, James, 53, 55 Robertson v Berry, 32 Robespierre, ix, 7, 271, 281, 286 See also Revolutionary Tribunal; Terror Robins, Francis, 238 Robinson, John Beverley, 365, 370 Rogers, Nicholas, 147–148 Rolleston, Lancelot, 241–243, 245 Ronanyne, Dominick, 332 Rooke, Serjeant, 94, 116, 118, 122, 126 Roscoe, William, 198 Rosenwein, Barbara, 323 Russell, John, 61 Russell, Thomas, 331, 342, 345 S

Saint-Just, Louis-Antoine, 270, 277, 280, 286 Sampson, William, 325 Sayer, Derek, 360 Schneider, Euloge, 277–279 Schneider, Paul, 300 Scotland, 6, 19–38, 47–67, 83 See also Scottish martyrs; Sedition Scotsman, The, 226 Scott, Alexander, 64 Scott, Sir John, 93, 94, 267, 345 Scottish Act anent Wrongous Imprisonment, 84

395

Scottish martyrs, vii, 3, 47–67, 142, 213–214 Sedition, 8 English law, 85 laws, 6 legal definition, 34 object, 29, 30 principle of suspended terror, 36 real vs. verbal, 31–32 related crimes, 29 Scotland, 19–38, 47–67, 84–85 seditious libel, 187 See also Sedition trials; Treason Sedition and Alien Act (Canada), ix Sedition trials, 8 in England, vii in Scotland, vii, 6, 19–38, 47–67, 79–97 Seditious Meetings Bill 1795, 174 Shaw, Joseph, 238 Sheares, Henry, 141–142, 321, 325–328, 330, 331, 334, 340, 342–344, 346 Sheares, John, 141, 321, 322, 325–328, 330, 331, 334, 339, 342–344, 346 Sheares, Julia, 343 Sheares, Sally, 343 Sheffield Society for Constitutional Information, 142, 192 Shelley, Percy Bysshe, 322 Shelton, George, 250, 253 Shepheard, Benjamin, 120 Sherborne riots, 239, 254, 255 Sheridan, Richard Brinsley, 146, 333 Sherwin’s Political Register, 190 Sidmouth, Lord, 188 Silvester, Colonel, 198, 203

396 Index

Sinclair, Charles, 22, 32, 62, 63, 84 Skene, John, 86 Skinner, Thomas, 144 Skirving, William, 1, 2, 8, 22, 48, 62–64, 81, 83, 87, 88, 94, 142 Slater, Charles, 250 Slaughter, Thomas, 9 Smith, Charlotte, ix The Young Philosopher, 174–177, 178 Smith, James, 84 Smith, K. J. M., 36 Societies of the Friends of the People, 62, 83, 88 Society for Constitutional Information, 83, 88 Southey, Robert, 88, 322 Wat Tyler, 127–128 Spa Fields riots, 186, 188, 192–193 Special commission of oyer et terminer, 216 Spencean republicans, 192–193 See also Spa Fields riots Spirit of the Union, 24–25, 216 Stanhope, Lord Charles, 64 Statesman, The, 190 State Trials, 2, 4 Steele, Maria, 335 Steffen, Lisa, 192 Steinberg, Ronan, 271 Stevenson, Robert Louis, 214 Weir of Hermiston, 89 Stone, William, 152 Strathaven Union Society, 222 Stubbs, Thomas, 191 Styles, John, 94

Suspension of Habeas Corpus acts, ix, 186, 189–190, 195–196, 204, 224, 226, 227, 363 Swartout, Samuel, 305, 307–309 Swete, Alicia, 326 Swinton, Lord, 90 Sydenham, Lord, 260, 372 Sydney, Algernon, 338 Symonds, Henry, 125 T

Tallents, William Edward, 249–251 Tandy, Napper, 326–327, 329 Taunton, Justice W. P., 244–247 Taylor, John, 92 Teeling, Bartholemew, 340, 341 Teeling, Luke, 340 Terror, ix, 7, 112, 267–288 Great Fear, 285 mapping, 287 transformational purpose, 271, 281, 282 Tewkesbury riots, 239 Thelwall, John, 79, 83, 87, 93, 96, 127, 139, 143, 151, 164, 165, 364 Thirty Eight Manchester radicals, 187, 197–203 The Trial at Full Length of the Thirty Eight Men pamphlet, 200–201 Thompson, E. P., 4, 110, 140–141, 203, 358–359 Thompson, Hugh, 367 Thompson, Richard, 152, 153 Thomson, Thomas, 217 Thorpe, Robert, 365

 Index 

Tindal, Lord Chief Justice Nicholas, 245–246, 256 Toler, John (Lord Norbury), 325, 327, 334, 345 Tone, Wolfe, 323, 325, 326, 334, 345 Tooke, John Horne, see Horne Tooke, John Toryism, in Scotland, 225 Trades combinations, 185 Transitional justice, 271 Transportation of Scottish martyrs, 25, 81, 83, 215 Treason in America, 9, 297–312 English law, 84 imagination and, 166 See also London Treason Trials of 1794; Treason trials Treasonable Practices Bill 1795, 174 Treason Act of 1351, 307 Treason trials, 8 England, 6, 79–97 laws, 6 political sites, 5–6 reinvention of high treason, 7 Scotland, 6, 19–38, 213–230 Treatise writers, vii Trials causes célèbres, 49, 275 destructive, 11 empowering nature, 148–149 parading of defendants, 147 political culture, viii publication of decisions, 202 public emotion, viii, ix, 137–153, 324

397

public gallery, 202 public noise, viii, 137–153 reflection of age of revolutions, 10–13 self-defence, 217 show trials, v, 11 spectacle, viii, 143–144, 150–151, 202, 275–276 witnesses, 329–333 See also Juries; Literary representations of trials; Sedition trials; Treason trials Trinity College, Dublin, 325 True Briton, 149 Tunnicliffe, Joseph, 254 Tyrrell, John, 122 Tytler, James, 19, 21 U

United Irishman, 325 United Irishmen, 303, 321, 325, 326, 333–334, 337 Kildare United Irishmen, 329 United Scotsmen, 23–24 United States Confederation Congress, 298 Constitutional Convention, 298 French possession of Louisiana, 299 Great Compromise, 302 treason, 9, 297–312 Universal manhood suffrage, 163, 238 Unlawful assembly, 36 Upper Canada Herald, 367

398 Index V

Vaughan, Felix, 91, 114–115 Vines, Richard, 247, 248, 252 W

Walker, C. H., 247 Walker, Thomas, 192, 193 Walker’s Hibernian Magazine, 342, 343 Washington, William, 198, 199, 201 Watson, James, 192–193 Watt, Robert, 22, 80, 83, 90, 224–225 Wedderburn, Alexander, 65–66 Wedderburn, Robert, 193 Weekes, William, 364–365 Weekly Journal, 328 Werkmeister, Lucyle, 49 Wetherell, Sir Charles, 192, 238, 240, 243, 255 Wheatley, Hugh, 330 Wheelan, Joseph, 311 Whelan, Kevin, 323 Whiggish Aldermen of Skinner’s Alley, 326 Whigs commentary, 96 lawyers, 80 ‘new’ Whigs, 217 propaganda, 4 Scottish, 214, 215, 217, 220, 222–223, 230 view of trials, 2, 3 Whitbread, Samuel, 223 Whitestone, James, 326–327

Wickham, John, 308 Wilde, Lady Jane, 322 “The Brothers”, 332, 335–337, 340–341 “The Lament”, 344–345 Wilkinson, General James, 305, 310 Willcocks, Joseph, 365 Willis, John Walpole, 367 Wilson, James, 217 Wilson, Thomas, 24 Winterbotham, William, vi, 86, 87, 91, 94, 109–128 trial transcripts, 115 Wirt, William, 308 Wodrow, Reverend James, 82 Wolcott, Oliver, 303 Wold, Atle, 51–52 Wollaston, Charles, 252 Wollstonecraft, Mary, ix, 170–174 A Vindication of the Rights of Men, 170 A Vindication of the Rights of Woman, 170–173 The Wrongs of Woman; or, Maria, 170–171, 174, 179 Wolseley, Sir Charles, 196 Wood, Gordon, 298 Wooler, T. J., 187, 195, 204, 215, 226–227 Y

Yeovil riots, 239, 254 Yorke, Henry Redhead, 89, 91, 139, 192, 344 Young Ireland movement, 324, 325