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Book Review
| D. Alan Orr, Treason and the State: Law, Politics and Ideology in the English Civil War, New York: Cambridge University Press, 2002. Pp xii + 229. $55.00 (ISBN 0-521-77102-1).
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| Early modern England witnessed a phenomenal transformation in the conceptualization and employment of treason law as Parliament wrested sovereignty from the king in an effort to reshape public authority. D. Alan Orr has provided a sketch of this change by contextualizing crucial political concepts and analyzing how they fared in four state treason trials in the 1640s. Orr's main argument is that early Stuart jurists tweaked English treason law, defined by statute in 1352 as a crime against the person of the king, to mean a crime against the impersonal state. But Orr is not interested in simply telling the story of the development of treason law. Rather, he is intent on showing how the law of treason was used to define sovereign powers. Important to his story was the reemployment of alternative sources of political thinking on the eve of the Civil War. Roman and common law theories of sovereignty were especially used to shift authority away from the king to the state. Of course, making the distinction between the person of the king and the corporal state was not the same as separating the two, and to Orr's credit he sees kingship, although not the person of Charles Stuart, as persistently part of the construction and legitimization of public authority. Nevertheless, the application of treason to Charles and his key ministers reflected a profound shift in the understanding of sovereign powers and with it the emergence of the modern English state. |
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Orr structures his work by first tracing the development of treason law in early modern England and then analyzing what writers meant by the terms "sovereignty" and "state." These themes merged during the Tudor period as the Crown assumed control of the church to create a sovereign unitary state. Since 1352 the law only implied a crime of "usurpation or deprivation." Under Henry VIII treason was enlarged to include words against the king, especially those that claimed his office was illicitly held. Although the statute was controversial, Orr sees it as an instance in which treason was defined to include the capacity and power of kingship as well as the person of the king. Another important development had to do with the extension of English sovereignty over Ireland in the sixteenth century. The matter was complicated by unresolved jurisdictional claims between the Irish and English parliaments and the fact that no king or queen went to Ireland in the early modern period until James II. Here again the definition of treason needed to be expanded beyond a crime against the king's body. |
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Even more important to Orr's argument are the political theories underlying the law of treason. Orr rightly insists that what was at stake in understanding the shift in the law of treason from a crime against the king to one against the state was a definition of sovereign powers. Naturally, Orr uses as his model the French jurist Jean Bodin's concept of sovereignty, since Bodin argued that it was the powers and not the person that made sovereignty (36). It was Bodin who first saw sovereignty in strictly impersonal terms. His theory was complemented by the medieval notion of the king's two bodies, which defined kingship as containing both natural and corporate capacities. Accordingly, treason could be legitimately defined in two senses—as a crime of murder against the person of king and a usurpation of the state's sovereign authority. Since both Bodin's impersonal state and the notion of a supra-personal kingship coexisted, it was of little surprise that in 1641 Parliament's supporters claimed to be acting in the name of the king for the good of the state. |
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The bulk of Orr's work is dedicated to analyzing four state trials. He begins with the trial of Thomas Wentworth, the First Earl of Strafford, who was accused of attempting to destroy "the king and kingdom by dividing ruler from ruled" in Ire-land (98). These charges implied that he appropriated sovereignty unto himself. Orr meticulously details each article brought against Strafford to show how state prosecutors employed the theory of the king's two bodies in their effort to redefine treason as a crime against the king and the state. The case against William Laud rested on similar language, except that his usurpation of sovereignty stemmed from his attempt to create "an ecclesiastical state within a state" (139). Orr correctly sees parliamentary prosecutors conflating treason with praemunire and supposing that Laud's iuro divino claims undermined those powers of a godly king. Like the case against Strafford, prosecutors insisted that Laud's actions constituted treason because they flouted the fundamental law of the land. This ideological positioning continued in the case against Connor Lord Maguire, second Baron of Enniskillen. Here the rub was whether Maguire was to be afforded a trial by peers. As Orr keenly points out Maguire's fate was thus tied to theories of British imperialism. Since prosecutors wanted to keep Maguire from enjoying rights of peerage, they construed Ireland as a constitutionally "exceptional" kingdom. By doing so, prosecutors managed to have Maguire tried in England while retaining the notion that English law and the king's authority were inseparable. This inseparability was finally severed when Charles I was charged with treason against the state. The trial was a contest between shared discourses of sovereignty, with each side appealing to the ancient constitution. Charles's actions compelled prosecutors to act in the name of the public good and the interest of the state. As a result, only one of the king's two bodies remained. |
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Overall, Treason and the State is a sharply written and well-argued book. Orr has successfully contextualized the political problems that served as a backdrop to the rethinking of treason in early modern England. Yet one wonders how the 1640s reflected conceptions of public authority and its relation to treason in the immediate decades preceding it. Also, Orr might have considered how the extensive discourse surrounding James I's proposed union of kingdoms shaped early Stuart attitudes concerning both the limits of law and the nature of composite kingdoms. Nevertheless, Orr has provided historians and legal scholars with a wonderful look into how ideology drives political action and innovation. |
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| Brett F. Parker
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| University of South Carolina, Spartanburg |
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