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Political Theory and the Growth of Defensive Safeguards in Criminal Procedure: The Origins of the Treason Trials Act of 1696

Published online by Cambridge University Press:  28 October 2011

Alexander H. Shapiro
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Extract

The Act for Regulating of Trials in Cases of Treason passed by Parliament in 1696 (the Trials Act) commands a central place in the history of criminal procedure. Addressing a serious imbalance in treason trial procedure that favored the prosecution over the defense, the Trials Act established a set of procedural safeguards for the treason defendant that eventually became paramount elements of English due process. While much legal scholarship has concentrated on the legacy of this legislation in the eighteenth-century criminal trial, only a few historians have attempted to account for the act's origins in the seventeenth century, and none have linked this moment of legal change with contemporary developments in political theory.

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Articles
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Law and History Review , Volume 11 , Issue 2 , Fall 1993 , pp. 215 - 255
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Copyright © the American Society for Legal History, Inc. 1993

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References

1. See, e.g., Beattie, J. M., Crime and the Courts in England, 1600–1800 (Princeton: Princeton University Press, 1986), 356–62Google Scholar; Langbein, John H., “The Criminal Trial Before the Lawyers,” University of Chicago Law Review 45, 2 (1978): 307–14.CrossRefGoogle Scholar In rendering quotations from primary sources, I have modernized the spelling and have written out conventional abbreviations that appear in the originals. I have also corrected obvious misprints or misspellings. I have not, however, Americanized the spelling nor substituted modem forms of words, such as “innocence” for “innocency.” To facilitate the identification of the primary sources, the footnotes preserve the original spelling of the titles.

2. Rezneck, Samuel, “The Statute of 1696: A Pioneer Measure in the Reform of Judicial Procedures in England,” Journal of Modem History, 2, 1 (1930)CrossRefGoogle Scholar; Phifer, James, “Law, Politics, and Violence: The Treason Trials Act of 1696,” Albion 12 (1980).CrossRefGoogle Scholar See also Phifer's account of historiography, pp. 235–56n. Rezneck traces the status of various provisions of the act throughout the seventeenth century; Phifer analyzes the passage of the act from the perspective of parliamentary politics, providing the essential details of the legislative history.

3. As Lois Schwoerer has pointed out, it is possible to use the label “radical” in a relative sense to describe a grouo of Whig politicians and thinkers who advpcated progressive libertarian principles without embracing more extreme beliefs in economic/social or republican reform. Schwoerer, Lois G., The Declaration of Rights, 1689 (Baltimore: The Johns Hopkins University Press, 1981), 285.Google Scholar A few of these radicals, of course, did not in fact favor such democratic and socialist principles. See Ashcraft, Richard, Revolutionary Politics and Locke's Two Treatises of Government (Princeton: Princeton University Press, 1986).Google Scholar

4. Barbara Shapiro has commented that “whether legal change is ever an autonomous development driven by its own internal dynamics rather than caused by other economic, social, and intellectual forces is a subject of never-ending debate in the community of legal scholars.” Shapiro, Barbara, “‘To a Moral Certainty’: Theories of Knowledge and Anglo-American Juries 1600–1850,” Hastings Law Journal 38 (1986): 154.Google Scholar This article continues this discussion by arguing that the Trials Act originated as much as a result of broad intellectual developments as it did of internal institutional and practical pressures.

5. The Treason Act of 1352, 25 Edward III, st. 5, cap. 2 (1352); Plucknett, Theodore F. T., A Concise History of the Common Law, 4th ed. (London: Butterworth, 1948), 418Google Scholar; Bellamy, John, The Tudor Law of Treason: An Introduction (London: Routledge 1979), 9.Google Scholar

6. Phifer, “Law, Politics, and Violence,” 236–37; The Treason Act of 1696, 7 & 8 Will. III, cap. 3 (1696).

7. Rezneck, “The Statute of 1696,” 7.

8. Hill, L. M., “The Two-Witness Rule in English Treason Trials: Some Comments on the Emergence of Procedural Law,” American Journal of Legal History, 12 (1968): 93, 110.CrossRefGoogle Scholar

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10. Veall, Popular Movement, 226–27; Phifer, “Law, Politics, and Violence,” 238.

11. Trial of William Lord Russel (1683), in A Complete Collection of State Trials, ed. Howell, T. B. (London: Hansard, 1816), 9:577, 584, 618–19Google Scholar; Trial of Colonel Algernon Sydney (1683), ibid. 9:817; Trial of Charles Bateman (1685), ibid. 11:467, 469; Trial of Henry Lord Delamere (1686), ibid. 11:509, 528, 566. See Phifer, “Law, Politics, and Violence,” 238.

12. Rezneck, “The Statute of 1696,” 11–13. See also “The Prisoners' Plea for Themselves, at Exeter, April 18, 1655,” in State Trials 5:784–89. (A document listing various legal and procedural strategies and tactics for treason defendants to employ at trial.)

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14. Rezneck, “The Statute of 1696,” 13; Atkyns, Defence, 1–8. Trial of Sydney (1683), State Trials 9:825, 833, 834.

15. Trials of John Fernley, William Ring, Elizabeth Gaunt, and Henry Cornish (1685), State Trials 11:381, 387, 390.

16. Phifer, “Law, Politics, and Violence,” 240–44.

17. Ashcraft, Revolutionary Politics, 85–87, 163–64.

18. Ibid., 85–87, 332, 345. Trial of Stephen College (1681), State Trials 8:549.

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20. Robert Harley noted the “misconstruction … in cases of trials in treason … [was] one of the heads of grievances against the late king.” Horwitz, Henry, ed., The Parliamentary Diary of Narcissus Luttrell (Oxford: The Clarendon Press, 1972), 237.Google Scholar

21. The Paper Delivered to the Sheriff by My Lord Russel, State Trials 9:685.

22. L'Estrange, Roger, Considerations upon a Printed Sheet entitled the Speech of the late Lord Russel to the Sheriffs (Edinburgh, 1683), 9.Google Scholar

23. Sir Bartholemew Shower, An Antidote Against Poison (1689) in State Trials 9:709; idem, The Magistracy and Government of England Vindicated (1689) in ibid. 9:741; idem, A Second Vindication of the Magistracy and Government of England, by way of Answer to Several Replies (1689) in ibid. 9:755.

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26. See Ferguson, No Protestant Plot.

27. See Burnett, Gilbert, History of His Own Time, 4 vols. (London, 1818), 2:38–39, 120–21Google Scholar; Historical Manuscripts Commission [HMC], “Tne Manuscripts of the Duke of Roxburghe,” Fourteenth Report, appendix, part 3 (London, 1894), 355Google Scholar (letter from William Hayhurst to Roger Kenyon, MP, Dec. 7, 1694).

28. Beattie, Crime and the Courts in England, 341. [SirHawles, John, Remarks Upon the Tryals of Edward Fitzharris, Stephen Colledge, Count Coningsmark, The Lord Russel, Collonel Sidney, Henry Cornish and Charles Bateman (London: Jacob Tonson, 1689), 23–24.Google Scholar

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30. Hawles, Remarks Upon the Tryals of Edward Fitzharris, etc., 23.

31. Ibid., 22; Atkyns, A Defence of the Late Lord Russel's Innocency, 8.

32. See Beattie, Crime and the Courts in England, 352, 356.

33. Trial of John Mordant, Esq. (1658), State Trials 5:907, 916.

34. Hawles, A Reply to a Sheet of Paper, 13; idem, Remarks Upon the Tryals of Edward Fitzharris, etc., 22.

35. Hawles, A Reply to a Sheet of Paper, 13.

36. Ferguson, No Protestant Plot, 16.

37. Atkyns, Lord Russel's Innocency, 10.

38. Ferguson, No Protestant Plot, 3.

39. Hawles, Remarks Upon the Tryals of Edward Fitzharris, 29, 75; Somers, Security of Englishmen's Lives, 6.

40. William Hayhurst to Roger Kenyon, MP, Dec. 7, 1694.

41. Trial of Sir John Friend (1696), State Trials 13:1, 49.

42. See e.g., Grey, Debates in the House of Commons 9:527 (Sir William Williams, Jan. 18, 1690); ibid. 10:174 (Attorney General Treby, Nov. 18, 1691).

43. Trial of Ambrose Rookwood (1696), State Trials 13:202.

44. Trial of Henry Cornish, in ibid. 11:412.

45. Horwitz, Diary of Narcissus Luttrel, 265 (Nov. 28, 1692); ibid., 281 (Dec. 1, 1692). Indeed, the first draft of the Treason Trials Act was titled a bill “for regulating constructions upon the statutes of treasons, and tryals, and proceedings on writs of error in cases of treason.” Grey, Debates in the House of Commons 10:209.

46. See Shapiro, “‘To a Moral Certainty,’” 160–65.

47. Ferguson, Second Part of No Protestant Plot, 19.

48. Somers, Security of Englishmen's Lives, 6, 145–47.

49. In 1694, Ferguson himself admitted that in treason trials “juries are generally too credulous.” [Ferguson, Robert], A Letter to the Right Honourable Sir John Holt, Kt., Lord Chief Justice of the King's Bench; Occasioned by the Noise ofa Plot, 2d ed. (London, 1694), 9.Google Scholar See Atkyns, A Defence of the Late Lord Russel's Innocency, 8; Hawles, Remarks Upon the Tryals of Edward Fitzharris, etc, 24.

50. HMC, “The Manuscripts of the House of Lords, 1689–90,” Twelfth Report, appendix, part 6 (London, 1889), 34.Google Scholar

51. Trial of Ambrose Rookwood, Stale Trials 13:202. As these statutory and evidentiary issues were unique to the treason trial, it is not surprising that Parliament did not feel the need to extend its reforms to the ordinary criminal trial where such complexities of fact and law had not arisen to the same extent. Langbein has also argued that the need for defense counsel was less urgent in the ordinary criminal trial since prosecution counsel, which usually tipped the scales of justice against the accused in the treason trial, was virtually nonexistant in the regular criminal proceeding. Langbein, “Criminal Trial Before the Lawyers,” 310.

52. See Miller, John, Popery and Politics in England 1660–1688 (Cambridge: Cambridge University Press, 1973), 124.CrossRefGoogle Scholar In the early 1670s anti-Catholic publications began to increase dramatically, and by 1680 such hysteria had acquired a stamp of legal legitimacy in the trials that ensued from the Popish Plot scare.

53. See [SirCare, Henry], English Liberties: or, the Free-Born Subject's Inheritance (London, [1681])Google Scholar; Dugdale, Stephen, The Tryal and Condemnation of Two Popish Priests, Andrew Brommick and William Atkyns, for High Treason at Stafford Assizes, August 16, 1679 (London: John Amery, 1679), 7–8.Google Scholar

54. See, for example, “Pereat Papa, or Reasons Why a Presumptive Heir, or Popish Successor, Should not Inherit the Crown,” in A Collection of Scarce and Valuable Tracts, ed. Scott, Walter (London, 1812), 8:165.Google Scholar

55. See Rahn, B. J., “A Raree Show—A Rare Cartoon: Revolutionary Propaganda in the Treason Trial of Stephen College,” in Studies in Change and Revolution, ed. Korshin, Paul (Menston, York: Scolar Press, 1972).Google Scholar See also “The Speech and Carriage of Stephen Colledge,” in State Tracts: Being a Farther Collection of Several Choice Treatises Relating to the Government. From the Year 1660 to 1689 (London: Richard Baldwin, 1692), 271.

56. Trial of Colonel Algernon Sydney, State Trials 9:854–58. See Ashcraft, Revolutionary Politics, 332.

57. Shower, An Antidote Against Poison, 716.

58. L'Estrange, Considerations upon a Printed Sheet, 18.

59. Delamere, The Late Lord Russel's Case, 708, 702.

60. Hawles, Remarks Upon the Tryals of Edward Fizharris, etc., 31; see Ferguson, Second Part of No Protestant Plot, 19.

61. Atkyns, Lord Russel's Innocency, 3. See Hawles, A Reply to a Sheet of Paper, 32.

62. See Shapiro, “‘To a Moral Certainty,’” 165.

63. [Stephens, Edward], Important Questions of State, Law, Justice and Prudence, both Civil and Religious, upon the Late Revolutions (London: 1689), 9.Google Scholar

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66. As James I stated, “the king being the author of the law is the interpreter of the law.” Nenner, Howard, By Colour of Law: Legal Culture and Constitutional Politics in England 1660–1689 (Chicago: University of Chicago Press, 1977), 72.Google Scholar

67. Grey, Debates in the House of Commons 9:526 (Jan. 18, 1690).

68. Ibid. 9:527 (Jan. 18, 1690).

69. Trial of Lord Delamere, Stale Trials 11:525 (emphasis added).

70. Hawles, Remarks Upon the Tryals of Edward Fitzharris, etc., 23.

71. Trial of Ambrose Rookwood, State Trials 13:139, 145. See Hawles, A Reply to a Sheet of Paper, 23.

72. Ferguson, Third Part of No Protestant Plot, 39.

73. Burnett, History of His Own Time 2:39.

74. Somers, Security of Englishmen's Lives, 63, 100.

75. Ibid., 93.

76. “Political Aphorisms: or the True Maxims of Government Displayed,” in A Collection of State Tracts, Publish'd on Occasion of the Late Revolution in 1688. And During the Reign of King William III (London, 1705), 1:399.

77. Ferguson, Third Part of No Protestant Plot, 139.

78. Locke, John, Two Treaties of Government, ed. Laslett, Peter (Cambridge: Cambridge University Press, 1988), 377.CrossRefGoogle Scholar

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80. Ferguson, Third Part of No Protestant Plot, 139 (emphasis added); idem, Second Part of No Protestant Plot, 4.

81. Somers, Security of Englishmen's Lives, 56.

82. Andrew Marvell, “An Account of the Growth of Popery and Arbitrary Government in England,” (1677) in The Complete Works in Verse and Prose of Andrew Marvell, ed. Alexander Grossart (1875), 4:249.

83. Ferguson, Third Part of No Protestant Plot, 139.

84. Shower, A Second Vindication, 757.

85. Nenner, By Colour of Law, 53, 57, 84. Schwoerer, Declaration of Rights, 291. Dickinson, Liberty and Property, 44–46, 89–90.

86. Nenner, By Colour of Law, 53–67.

87. Schwoerer, The Declaration of Rights, 297.

88. Shower, A Second Vindication, 755.

89. Ferguson, Third Part of No Protestant Plot, 39.

90. Trial of Ambrose Rookwood, State Trials 13:139, 145.

91. L'Estrange, Roger, The Case Put, Concerning the Succession of His Royal Highness, the Duke of York (London: M. Clark, 1679), 6.Google Scholar

92. “Some Remarks Upon Government,” in A Collection of State Tracts 1:152. See “A Brief Justification of the Prince of Orange's Descent into England, and of the Kingdom's Late Recourse to Arms,” ibid. 1:140–41.

93. “The Judgment and Decree of the University of Oxford, passed in their Convocation, July 21, 1683 against certain pernicious books, and damnable doctrines,” in Scott, A Collection of Scarce and Valuable Tracts 8:422.

94. [SirL'Estrange, Roger], An Account of the Growth of Knavery Under the Pretended Fears of Arbitrary Government, and Popery (London: Henry Brome, 1678), 56–57, 59.Google Scholar For a similar account, see Goddard, Thomas, Plato's Demon: or the State-Physician Unmaskt: Being a Discourse in Answer to a Book Call'd Plato Redivivus (London: H. Hills Jun., 1684), 173–75.Google Scholar (Goddard cites Grotius for the proposition, “The superior hath a lawful authority, as superior, to force an innocent man to suffer for the common good.”)

95. Scroggs, A Speech Made by Sir William Scrogg, 5.

96. Trial of Sir Richard Grahme (1691), State Trials 12:645, 664, 814.

97. Such arguments also fueled the Tory opposition to a higher standard of proof for grand jury indictments. Shapiro, Barbara J., “Beyond Reasonable Doubt” and “Probable Cause”: Historical Perspectives on the Anglo-American Law of Evidence (Berkeley: University of California Press, 1991) 59, 75, 81.Google Scholar

98. Grey, Debates in the House of Commons 10:251, 289 (Nov. 18, 28, 1692).

99. Horwitz, , Diary of Narcissus Luttrell, 25 (Lowther, Nov. 18, 1691)Google Scholar; ibid., 282 (Dec. 1, 1692).

100. Ibid., 25 (Nov. 18, 1691).

101. Trial of Sir Richard Grahme, State Trials 12:661. As these crities predicted, the safeguards accorded defendants by the Trials Act did significantly reduce the efficiency of the traditional criminal trial. In 1696 Bishop Burnett observed, “three other conspirators … were tried next. By this time the new act for trials in such cases began to take place; so these held long; for their counsel stuck upon every thing. But the evidence was now more copious.” Burnett, History of His Own Time 3:192.

102. See Grey, Debates in the House of Commons 10:289 (Nov. 28, 1692).

103. Locke, Two Treatises, 375 (emphasis added).

104. Ferguson, No Protestant Plot, 2. Ashcraft speculates that Locke may have helped Ferguson compose his pro-Shaftesbury pamphlets. Ashcraft, Revolutionary Politics, 349.

105. Somers, Security of Englishmen's Lives, 91.

106. Ibid., 91, 78–79.

107. Ferguson, No Protestant Plot, 13.

108. Ferguson, Second Part of No Protestant Plot, 1–2.

109. Delamere, The Late Lord Russel's Case, 702.

110. Locke, Two Treatises, 404. Ashcraft, Revolutionary Politics, 305–7.

111. See, e.g., Burnett, History of His Own Time 2:188; Ferguson, A Letter to the Right Honourable Sir John Holt, 9; Somers, Security of Englighmen's Lives, 145. Somers emphasized the importance of the grand jury inquest not only as a balance to the less effective petit jury but as a necessary institution in a system with no formal right of appeal. Ibid., 151. For a thorough analysis of the seventeenth-century debates over jury coercion and control see Green, Thomas Andrew, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800 (Chicago: University of Chicago Press, 1985), 140–43, 200–64.CrossRefGoogle Scholar See also Langbein, “Criminal Trial Before the Lawyers,” 284–300.

112. Locke hoped some redress could be found in the king's mercy. In his chapter on the royal prerogative, for example, he stressed a lawful remedy for injustice in the king's duty “to mitigate the severity of the law, and pardon some offenders.” Locke, Two Treatises, 375.

113. Hawles, A Reply to a Sheet of Paper, 31.

114. Grey, Debates in the House of Commons 10:234; Horwitz, Diary of Narcissus Luttrell, 126 (Jan. 1692). See also [SirShower, Bartholemew], Reasons for a New Bili of Rights. Humbly Submitted to the Consideration of the Ensuing Session of Parliament (London, 1692), 9.Google Scholar

115. From a practical perspective, Hawles despaired that the traditional procedure could ever work in a defendan's favor. “Vain is the reason that the judges are counsel for the prisoner.” Hawles, Remarks Upon the Tryals of Edward Fitzharris, etc., 22. More important, however, he decried the “foliy as well as injustice of the practice of imprisoning men without letting them know for what.” Ibid., 39 (emphasis added). Shower, on the other hand, denied that the treason trial was inherently injust. “It cannot be denied … that kings have bore too hard upon their subjects … but no man … pretended, that this is a reason to induce a belief that … every judgment of law … was arbitrary and unwarrantable.” Shower, A Second Vindication, 756.

116. See note 71 and accompanying text.

117. Ferguson, Letter to the Right Honourable Sir John Holt, 4.

118. Shower, Reasons for a New Bill of Rights, 5–6.

119. Trial of Sir Richard Grahme, State Trials 12:661–62 (emphasis added).

120. “The Judgment and Decree of the University of Oxford,” in Scott, Collection of Scarce and Valuable Tracts 8:422 (emphasis added).

121. Burnett, History of His Own Time 3:205.

122. SirGilbert, Geoffrey, The Law of Evidence (1754) (New York: Garland, 1979), 99.Google Scholar

123. See Gunn, J. A. W., Politics and the Public Interest in the Seventeenth Century (London: Routledge, 1969).Google Scholar See also Dickinson, Liberty and Property, 85.

124. Willan, Leonard, The Exact Politician, or Compleat Statesman (London, 1670)Google Scholar as cited in Gunn, Politics and the Public Interest, 271.

125. Willan, The Exact Politician, 32, 60 (emphasis added).

126. See Beattie, Crime and the Courts in England, 341; Carletone Kemp Allen, “The Presumption of Innocence,” in Legal Duties and Other Essays in Jurisprudence (Oxford: The Clarendon Press, 1931), 259.

127. See Barbara Shapiro's argument that the “beyond a reasonable doubt” standard emerged out of religious and philosophical theories of the late seventeenth century. “Beyond Reasonable Doubt,” 40.

128. Shower, Reasons for a New Bili of Rights, 8. See Hawles, Remarks Upon the Tryals of Edward Fitzharris, etc., 72.

129. Ferguson, Second Part of No Protestant Plot, 1–2.

130. Ferguson, Third Part of No Protestant Plot, 143.

131. See Shapiro, “Beyond Reasonable Doubt,” 42–46, 62–78.

132. Trial of Sir John Friend (1696), State Trials 13:1, 48–49.

133. Trial of Sir Richard Grahme, State Trials 12:667, 669.

134. Burnett, History of His Own Time 3:203.

135. Allen, “Presumption of Innocence,” 266, 273. Allen echoes the thesis of Stephen who wrote in his account of sixteenth- and seventeenth-century criminal trial practice that “the consideration and humanity of our modem criminal courts for accused persons are due in a greater degree to the fact that the whole framework of society, and especially the government … is now immeasurably stronger than it ever was before.” Stephen, James Fitzjames, A History of the Criminal Law of England, 3 vols. (1883), 1:356.Google Scholar

136. See Plumb, J. H., The Origins of Political Stability: England 1675–1725 (Boston: Houghton Mifflin, 1967), 1–2, 66, 168–72.CrossRefGoogle Scholar

137. See Phifer, “Law, Politics, and Violence,” 247–48. Schwoerer in her Declaration of Rights, 284, describes similar factors at work in the contest over the Bill of Rights. With regard to the Trials Act, Phifer attributes the delay in passage to two basic conflicts in Parliament, one between the Lords and Commons, and another between the court and country parties. In its first version of the bili, the House of Lords had included a provision to reform the Lord High Steward's court, the body designed to try peers for treason or felony. The Commons resented this measure as an attempt to extend privileges of the nobility, and blocked the bill as long as that provision remained. The court faction was also opposed to the bill, for fear it would further weaken royal authority. Phifer suggests that the combination of the Lancashire fiasco, which I address here as well, and the strengthening of the country faction in the elections of 1695 helped create the necessary majority to pass the Act. Phifer, “Law, Politics, and Violence,” 253–54.

Historians agree that the Whigs were responsible for introducing the first treason trial bills. See Horwitz, Henry, Parliament, Policy, and Politics in the Reign of William III (Newark, 1977), 64, 74, 314Google Scholar; Clark, Sir George, The Later Stuarts 1660–1714 (Oxford, 1955), 184.Google Scholar Contrary to Phifer, Macaulay agreed. Macaulay, Thomas Babington, The History of England from the Accession of James II, 3 vols. (London, 1929) 3:34Google Scholar; Phifer, “Law, Politics, and Violence,” 236.

138. Landon, Michael, The Triumph of the Lawyers: Their Role in English Politics, 1678–1689 (University of Alabama Press, 1970), 160.Google Scholar

139. Phifer, “Law, Politics, and Violence,” 244.

140. See Schwoerer, Declaration of Rights, 290.

141. Macaulay, History of England 3:33–34. See Horwitz, Diary of Narcissus Luttrell, 237. Robert Harley commented, “I cannot but take notice though some gentlemen are now against this bili, yet they complained much of the misconstruction that was made in the last reign in cases of trials in treason” (Nov. 18, 1692). The Whigs, of course, were also naturally wary of compromising their already tenuous victory with concessions to potential traitors.

One also should not underestimate the power of the conservative bar in defending the inherited system. See Veall, Popular Movement, 228.

142. See Phifer, “Law, Politics, and Violence,” 253.

143. See ibid., 251; Schwoerer, Declaration of Rights, 290.

144. Trial of Richard Grahme, State Trials 12:654–55.

145. Burnett, History of His Ovin Time 3:158.

146. Goss, Alexander, ed., “An Account of the Tryalls at Manchester, October 1694,” in Remains Historical and Literary Connected with the Palatine Counties of Lancaster and Chester (Chetham Society, vol. 61, 1864), 41.Google Scholar

147. Burnett, History of His Own Time 3:158.

148. Phifer writes that “the rigorous trial of the accused in October at Manchester stood in sharp contrast to the more moderate procedure typical of State trials after the Revolution.” Phifer, “Law, Politics, and Violence,” 251–54. Phifer's cites for this account are not always reliable. Page 251, for example, includes a meaningless reference to Burnett, History of His Own Time 4:290.

149. While Phifer makes a compelling argument that the government invented the case against the Lancashire defendants, he fails to cite a source that suggests the issues was less clear-cut to contemporaries. Phifer, “Law, Politics, and Violence,” 252–53. Howell's edition of the State Trials reprints a document entitled “Tindal's Account of the Lancashire Trial.” Howell, State Trials 12:1286. This account contends that the prosecutors' case was sound and that the solicitors supporting the defendants contrived to sabotage the trial. Albeit strongly biased in favor of the government, this document does reveal that parliamentary investigations reached a similar conclusion.

150. “Tindal's Account,” Stale Trials 12:1288. See Goss, “An Account of the Tryalls at Manchester.”

151. Ferguson, Letter to the Right Honourable Sir John Holt, 17–20.

152. “Tindal's Account,” State Trials 12:1288–89.

153. Both Houses of Parliament conducted investigations of the case and concluded that the government had sufficient grounds to bring the treason indictments. “Tindal's Account,” ibid. 12:1289–90; Gross, “An Account of the Tryalls at Manchester,” xix.

154. William Hayhurst to Roger Kenyon, MP, Dec. 7, 1694.

155. Ferguson, No Protestant Plot, 15.

156. Trial of Sidney, State Trials 9:854–58.

157. See Hawles, A Reply to a Sheet of Paper, 31.

158. Impeachment of Sir Adam Blair (1689–90), State Trials 12:1207, 1212.

159. Horwitz, , Diary of Narcissus Luttrell, 281 (Dec. 1, 1692).Google Scholar

160. Hamburger, Philip, “The Development of the Law of Seditious Libel and Control of the Press,” Stanford Law Review 37 (1985): 714–25.CrossRefGoogle Scholar

161. Trial of William Anderton (1693), State Trials 12:1245, 1267.

162. Ferguson, Letter to the Right Honourable Sir John Holt, 8.

163. Hamburger, “Development of the Law of Seditious Libel,” 717, 722–23.

164. Ferguson, Letter to the Right Honourable Sir John Holt, 5, 10, 4.

165. See Dickinson, Liberty and Property, 61–63; Kenyon, J. P., Revolution Principles: The Politics of Party 1689–1720 (Cambridge: Cambridge University Press, 1977), 16–18.CrossRefGoogle Scholar

166. See Dickinson, Liberty and Property, 82.

167. Delamere, The Late Lord Russel's Case, 699, 705. See Atkyns, Defence of the Late Lord Russel's Innocency, 20; Grey, Debates in the House of Commons 9:31 (Jan. 29, 1689).

168. Delamere, The Late Lord Russel's Case, 699.

169. Hawles, A Reply to a Sheet of Paper, 15. The concern over the uncertainty of the common law also accounts for the increasing interest in the doctrine of stare decisis in the Late seventeenth century. Nenner, By Colour of Law, 52.

170. Such faith in the statutory regulation of legal affairs assumed that the judiciary would adopt a strict constructionist philosophy. Accordingly, Delamere made clear that “every statute is to be construed most strictly to restrain the mischiefs against which it was enacted.” Delamere, The Late Lord Russel's Case, 699. Some members of Parliament were sceptical about such assumptions, arguing that new statutes were merely grounds for further misinterpretations. Thus Solicitor General, Sir Thomas Trevor explained in reference to the Trials Act that “by making a new law this mischief [of misconstruction] will not be remedied, … as there were men found that abused former laws so there will be such as will venture to misconstrue this present act.” Horwitz, Diary of Narcissus Luttrell, 237 (Nov. 18, 1692).

171. Horwitz, Diary of Narcissus Luttrell, 237 (Nov. 18, 1692).

172. Hawles, A Reply to a Sheet of Paper, 2, 8. To add to Hawles's list: Bateman (State Trials 11:469) and Russell (ibid. 9:583–84) were allowed copies of the panel of jurors, while College (ibid. 8:587–88) and Cornish (ibid. 11:387) were not. College was also denied pen, ink, and paper (ibid. 8:581) which were generally available to others.

173. Trial of Sir Richard Grahme, State Trials 12:660.

174. Trial of Henry Cornish, State Trials 11:411–12

175. Hales commented that “I do dislike that clause … ‘the party indicted to have a copy of the panel;’ as if it were not the right of the prisoner before. Something of poison lies concealed in this bill.” Grey, Debates in the House of Commons 9:211.

176. Burnett, History of His Own Time 3:204.

177. See Beattie, Crime and the Courts in England, 557–57, 585.

178. Hawles, Remarks Upon the Tryals of Edward Fitzharris, etc., 72.