Great Palladium

According to the English statute of treasons drawn up in 1351, it was an offence to ‘compass or imagine the death of our lord the king’. The meaning of these strange words was already archaic in the early 1790s when William Pitt’s Government brought an array of British radical reformers to trial for high treason. The words ‘compass’ and ‘imagine’ had entered the English language from law French, and were usually glossed as meaning ‘design’ or ‘intend’. The 1794 treason trials turned on the interpretation of this obscure language: defining the meaning of ‘compass’ and ‘imagine’, and determining what ‘overt’ acts might constitute evidence of treasonable design assumed life-and-death importance – the punishment for high treason was to be hanged, drawn and quartered. While other treason laws had come and gone, the 1351 statute remained the sole law defining high treason in England, and since the Act of Union it had also been the law in Scotland. The statute was generally agreed to be ‘declaratory’: that is to say, it was intended not to enact but to state what the law was, to fix its meaning. Yet the treason trials of 1794 demonstrate how illusory the desire to fix judicial meaning, to free law from its moment, can be.

This particular moment was one of a general unhinging of meaning following the French Revolution. Key words in Britain’s political lexicon – ‘citizen’, for example – had been transformed. For conservatives, the great renaming which accompanied the Revolution – the abolition of aristocratic titles, new dictionaries, calendars and Revolutionary catechisms – signalled social and political disorder. For radicals, the language of Britain’s ancien régime was wrapped in subterfuge, artifice and mystery. They saw Burke’s writing, for instance, as an elaborate theatrical spectacle, appealing to the emotions instead of reason. At the centre of John Barrell’s exhaustive study of treason in the mid-1790s is a brilliantly sustained argument about the struggle to fix the character of the word ‘imagination’. Unlike the battle then being fought over such important political terms as ‘sovereignty’, ‘the people’ or ‘liberty’, the conflict over ‘imagination’ never ‘developed the character of a deliberate debate’: what was at stake, according to Barrell, was ‘more the ownership of the word’. Put most simply, the charges and counter-charges boiled down to the question of who was guilty of imagining treason, who actually imagined the King’s death.

The first part of the book talks about the terms available for such imagining. Barrell shows how Louis XVI’s last interview with his wife and family, which had widespread appeal in Britain, offered an image of the King as a family man, blurring the distinction between his private and public personality. Family affection was regarded as a qualification for good citizenship – in contrast to ‘universal benevolence’, or abstract cosmopolitan brotherhood. ‘We begin our publick affections in our families,’ Burke wrote. The pathos, suffering and vulnerability associated with the French King were easily transferred to George III, who was endlessly depicted as a loyal husband and kind father. Such images were not without ambiguity, however, since they also portrayed the King as feminised. ‘The King came to be presented as a kind of drag queen,’ Barrell writes, ‘whose feminised exterior did not quite conceal the man beneath, and was not quite intended to.’ Whether or not these links with Louis XVI made it easier to imagine George III’s death in the legal sense of purposefully planning or intending it, they made it easier in the sense of fantasising about it. This can be seen in the countless radical jokes, songs, irreverent toasts, squibs and pasquinades about the King.

The bulk of this book analyses the treason trials themselves and ‘the invention of modern treason’. Barrell, a literary scholar and art historian known for putting politics back into painting, landscape and poetry, shows himself to be a first-class historian. The archival sources and range of contemporary printed sources on which he bases his study are impressive. In addition, his training as a literary scholar serves him well as a reader of legal texts. Barristers and judges claimed that legal discourse was based on precise, if not always literal, meaning. Yet common law’s dependence on analogical reasoning, and ‘fictions’ that allow existing law to be expanded to cover new crimes and situations, leaves it open to doubt and ambiguity: at what point were judges and lawyers making new law?

The language of ‘modern treason’ had to be invented because experts had long agreed that only attempts to depose the King, or levy war against him, could be adduced as overt acts of compassing or imagining his death. But times had changed. It was unlikely that George III would go into battle against the forces of British Jacobinism, or that radicals would plan to imprison or capture the King. Modern treason didn’t look much like its medieval ancestor. The radical societies of the 1790s, notably the London Corresponding Society and the Society for Constitutional Information, never said they intended to kill or depose the King: their object was to reform Parliament. Even if the Government could show that radicals were conspiring to raise an insurrection to overthrow the Constitution, it was not certain that they could be charged with imagining the King’s death or any other kind of treason.

The Crown’s law officers came up with twin lines of attack. First, they ‘invented a new and essentially figurative account of what it meant to depose or restrain the King’, amounting to the destruction of his authority. Second, they invited juries ‘to imagine a sequence of events that might have resulted from the activities of the radicals, in order to demonstrate that as a result of those activities the King “may” have been killed, and “must” have been put in danger of his life’. These arguments were first unveiled in September 1794 in the indictments against Thomas Hardy, shoemaker and secretary of the LCS, John Horne Tooke, philologist and radical man of letters, and John Thelwall, Jacobin orator and poet.

In the months preceding these arrests most of the action had occurred north of the border. It was crucial to the Government’s case to demonstrate that the British Convention which had been held in Edinburgh in October 1793 as part of a campaign to obtain universal manhood suffrage constituted an overt act of treason: that Convention delegates planned to overthrow the Government and by extension intended the destruction of the King. This argument was first made at a series of Scottish trials: those of William Skirving, secretary of the British Convention, and Maurice Margarot and Joseph Gerrald, delegates from the LCS. Presided over by Lord Braxfield, a notorious opponent of reform, the High Court of Justiciary at Edinburgh proved a suitable testing ground: Braxfield regarded the demand for universal suffrage as itself little short of treason. Given that the jurors at these trials were creatures of the court, the verdicts were never in much doubt: all three men were found guilty and sentenced to 14 years’ transportation. For Gerrald, who was suffering from tuberculosis, this was a death sentence.

However, as Barrell notes, the Government had chosen to try these leaders for the Scottish crime of sedition, not for high treason – the law officers perhaps doubted whether the more serious charge would hold up. The trials of Robert Watt and David Downie, which revealed parallel plots for insurrection in London, Edinburgh and Dublin, set a more direct precedent. They were the first trials for high treason to take place in Scotland since the 1351 statute had become law there. The Government took its cue from Braxfield’s court, so guilt was ascribed to remote and arguably unintended consequences of words or actions. At Watt’s trial Robert Dundas, the Scottish Lord Advocate and brother of the Home Secretary, claimed that an overt act of imagining included ‘anything which has a tendency to touch the life of the sovereign, which in the smallest degree may in its consequences bring it into hazard’. Both Watt (who was also a Government informer) and Downie were found guilty and executed.

Barrell thinks that these indictments make sense only if the law officers were using the trials to try out arguments that redefined what it meant to ‘depose’ or ‘levy war against’ the King. They had discovered what they had been groping towards: a new, ‘modern’ type of treason – what prosecutors variously termed the ‘treason of the day’, ‘the treason of the hour’ or ‘French’ treason. Modern treason was figurative: it was enough merely to imagine the King’s death in the extra-legal sense of ‘thinking about’ it. This new approach was adopted at the English treason trials and confirmed in the charge the Chief Justice Sir James Eyre made to the grand jury. The most celebrated response to Eyre’s statement was that of William Godwin, who, ironically, had recently condemned the process of legal reasoning based on precedent. Now he described the medieval statute of treason as ‘one of the great palladiums of the English Constitution’, sanctioned ‘by the experience of more than four centuries’. Godwin had previously argued that the only principle worthy of replacing legal precedent was ‘that of reason exercising an uncontrolled jurisdiction upon the circumstances of the case’. Such ‘uncontrolled jurisdiction’ was just what Eyre now claimed for those interpreting the clause on compassing and imagining. The real issue came down to who had the power to say what these key terms meant. If, as is often supposed, Godwin influenced the defence’s case in the treason trials – made by Thomas Erskine, the most brilliant lawyer of the day – it was not on technical points of the law, but rather in having suggested that all the imagining was being done by Eyre and Government ministers.

The trial of Thomas Hardy was a cause célèbre. It was the longest and most expensive trial for high treason that had ever been heard in Britain. A great deal was riding on its outcome for Pitt’s Government as well as for the reform movement. The prosecution was conducted by a team of eight barristers led by the Attorney General, Sir John Scott. The defence team of five barristers included Erskine. On hearing of the extraordinary length of Scott’s opening address, the former Lord Chancellor Thurlow declared: ‘Nine hours? Then there is no treason, by God!’ Treason was supposed to stand out. The prosecution’s case relied on a series of sleights of hand. Something of its logic can be gathered from what Barrell delineates as ‘the Coronation Oath argument’, which was used as a way of helping the jury envisage the King’s death. As the King was bound by his Coronation Oath to resist any attempt to depose his authority or that of his government, the Crown suggested, his life would of necessity be placed in jeopardy by his duty to defend the Constitution against encroachments viewed as the levying of war. Arguing that the King could not, consistent with his Oath, accede to the democratic demands of the LCS or the British Convention, Scott invited the jurors to imagine the King’s ‘death’ in the ensuing battle.

For its part, the defence concentrated on establishing two basic principles: that the King’s authority or government must not be conflated with his person; and that the charge of imagining the King’s death could hold only when there was traitorous intent. Furthermore, Erskine insisted that it was for the jury to rule on the question of intent as a matter of judicial fact. ‘I protest,’ Erskine proclaimed, ‘against all appeals to speculations concerning consequences, when the law commands us to look only to INTENTIONS.’ Breaking with courtroom etiquette, he suggested that the charges were figments of Scott’s alarmist and deranged imagination. In the event, the jury – and Barrell fails to consider the importance of the presence of the jury, the crucial difference between Hardy’s trial and the trials in Edinburgh – returned a verdict of not guilty. Following the acquittals of Tooke and Thelwall, the Government released the rest of the radicals it had rounded up. Erskine was the hero of the day, and radical celebrations throughout the country toasted ‘trial by British jury’.

Whether Pitt’s Government sought to initiate a reign of ‘white terror’, as E.P. Thompson suggested, remains a matter of speculation. In his third section, ‘Alarms and Diversions’, Barrell produces two fine chapters on the ‘popgun’ plot and the strange case of Richard Brothers. Just before Hardy’s trial began, the London newspapers carried reports of an attempt to assassinate the King. Three members of the LCS – Peter Lemaitre, a watchcase maker, George Higgins, a shopman, and John Smith, a bookseller – were arrested and charged (although never brought to trial) for an ‘ingenious’ plot to use an air-gun to fire a poison arrow at the King, either as he was walking at Windsor or while he was in his box at Covent Garden. The Government charged the radicals with high treason, even though it knew that the plot was the invention of its own informer, Peter Upton, also an LCS member. Barrell concludes that with Hardy about to go on trial for high treason it would have been inconvenient for the Government immediately to release the three men who only ‘a fortnight earlier had been represented in the ministerial press as proven conspirators against the King’s life’.

A better case was to be had against Robert Crossfield, a physician, LCS member and the inventor of the notorious air-gun. In Barrell’s view, the Ministry was desperate to ‘literalise’ the figurative treasons of 1794, to vindicate its own imaginings. By the time Crossfield was brought to trial in 1796, the Government was able to point to an actual attack on the royal carriage in Old Palace Yard, which had occurred as the King returned from opening Parliament. George III, who escaped frightened but uninjured, believed that the small hole in the window of his carriage had been caused by a bullet, but it has never been discovered whether the missile was a bullet or merely a stone. At the opening of Crossfield’s trial Scott announced that the Government’s star witness was dead – in fact, Upton was alive but had gone to ground. In this unfortunate situation, Scott turned to Crossfield’s singing of the republican song ‘Plant, Plant, the Tree’ – which Crossfield may also have written – to show that the King’s death had indeed been imagined. The song, it was argued, explained the true nature of a visit Crossfield had made to the shop of a radical brass-turner, taking with him designs for making a metal tube. After lengthy deliberation, the jury returned a verdict of not guilty.

The millenarian prophet Richard Brothers, on the other hand, believed that he was the Prince of the Hebrews and that God had commanded him to confront George III and take possession of his crown. Brought face to face with the nephew of God, ‘the Privy Council was entirely at a loss.’ Not surprisingly, Brothers was pronounced to be a lunatic. He could not therefore stand trial for treason but was detained at the Lord Chancellor’s pleasure. That a charge of treason was entertained at all was, Barrell argues, an indication of ‘the slipperiness of the term “imagine” and its cognates’.

It is as if to imagine the King’s death had become an indeterminate sign of both insanity and violent republicanism; or as if ... the Government was so terrified by ... republican subversion, that the ‘wild imagination’ of the lunatic had become indistinguishable from the ‘wild imagination’ of the traitor.

It is difficult to resist the conclusion that the Government had scared itself into believing in its own collective fantasy of treason. In the wake of the attack on the King’s carriage, Parliament passed the ‘Treasonable Practices Bill’, which aimed at taking the doubt – the matter of intention as determined by the jury – out of the meaning of imagining and compassing; the Bill also included within the category of treason ‘figurative’ treason, or acts intended to subvert the King’s authority. The Government achieved through Parliament what it could not establish in court. As a coda to his study, Barrell returns to the literary imagination, to Coleridge and his discussion of the poetic imagination in Biographia Literaria. For the ‘mature’ Coleridge of the mid-1810s, poetic imagination tames passion rather than inflames it; it is a harmonising rather than a disruptive force. Barrell shows, however, that Coleridge’s attempt to remove poetry to a sphere beyond politics, covers the tracks of his earlier poetic imagining of the King’s death and re-establishes, in its denial, the connections between poetry and polities. Although art may plead its innocence, it is always complicit with the polities of the day.