Sparks Commentary: Blackstone condemned the execution of Algernon Sidney for high treason

“Treason, proditio, in its very name (which is borrowed from the French) imports a betraying, treachery, or breach of faith. It therefore happens only between allies, faith the mirror [footnote] : for treason is indeed a general appellation, made use of by the law, to denote not only offences against the king and government, but also that accumulation of guilt which arises whenever a superior reposes a confidence in a subject or inferior, between whom and himself there subsists a natural, a civil, or even a spiritual relation ; and inferior so abuses that confidence, so forgets the obligations of duty, subjection, and allegiance, as to destroy the life of any such his superior or lord.”

– Sir William Blackstone’s “Commentaries on the Laws of England” (1769), Book 4, Chapter 6

Algernon Sidney

Algernon Sidney was executed some four decades before Sir William Blackstone was born

Algernon Sidney was executed some four decades before Sir William Blackstone was born. Specifically, our subject Algernon Sidney was executed in 1683, and Sir William Blackstone would not be born until 1723. (But I’m getting ahead of myself here.) Blackstone was in his forties when he wrote his “Commentaries on the Laws of England.” This was a four-volume work, which gave a general overview of its chosen subject. Its fourth and final volume was published in the year 1769. This is the volume that I will be quoting from here. (Incidentally, all quotations from Blackstone’s “Commentaries” in this particular blog post will be from Book 4, Chapter 6 – a chapter entitled “Of High Treason.”)

Statue of Sir William Blackstone

The difference between “high treason” and “petit treason” (or lesser treason)

I should begin by saying that Sir William Blackstone was a British patriot, who believed his country’s laws to be generally good. But Blackstone found England’s criminal code to be rather severe, as I describe in another post. Among the laws that concerned him were the harsh laws regarding “high treason.” It was called “high treason” to distinguish it from “petit treason” (or lesser treason). What is “petit treason,” you might be wondering? In Blackstone’s words, “for a wife to kill her lord or husband, a servant his lord or master, and an ecclesiastic his lord or ordinary ; these being breaches of the lower allegiance, of private and domestic faith, are denominated petit treasons. But when disloyalty so rears its crest, as to attack even majesty itself, it is called by way of eminent distinction high treason, alta proditio ; being equivalent to the crimen laesae majestatis of the Romans, as Glanvil [footnote] denominates it also in our English law.” (Source: Blackstone’s “Commentaries”) This crime was punished most severely, as I show in another post. But here, let me focus on another aspect of this crime. Specifically, this crime was defined rather broadly, in a way that would later be foreign to Americans and their Constitution – not to mention the British themselves.

Sir William Blackstone

The laws of Britain then recognized seven categories of “high treason”

Specifically, there were seven offenses that were then considered to be “high treason” under British law, including the counterfeiting of money. Counterfeiting was then punishable by death, and punished in a somewhat brutal manner to boot. Of these seven categories of treason, only two would be permitted in the United States Constitution. In the words of the Constitution, “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” (Source: Article 3, Section 3, Paragraph 1) This is a much narrower definition of treason than that found in Britain at the same time. Blackstone seems to be all right with the British definition of treason being extended to these two categories, just as our Founding Fathers were all right with it – although the Founding Fathers did see some exceptions to this, as shown by their rebelling against Great Britain. However, Blackstone speaks out against classifying the counterfeiting of money as “high treason.”

Sir William Blackstone

What kinds of overt acts were then considered “high treason”?

So, then, what kind of treason had Algernon Sidney been charged with? As Blackstone puts it, “When a man doth compass or imagine the death of our lord the king, of our lady his queen, or of their eldest son and heir.” (Source: Blackstone’s “Commentaries”) Blackstone elaborates that “as this compassing or imagination is an act of the mind, it cannot possibly fall under any judicial cognizance, unless it be demonstrated by some open, or overt, act.” (Source: Blackstone’s “Commentaries”) So what, then, counts as an overt act? Blackstone then mentions that “to provide weapons or ammunition for the purpose of killing the king, is held to be a palpable overt act of treason in imagining his death [footnote]. To conspire to imprison the king by force, and move towards it by assembling company, is an overt act of compassing the king's death [footnote]; for all force, used to the person of the king, in its consequence may tend to his death, and is a strong presumption of something worse intended than the present force, by such as have so far thrown off their bounden duty to their sovereign: it being an old observation, that there is generally but a short interval between the prisons and the graves of princes. There is no question also, but that taking any measures to render such treasonable purposes effectual, as assembling and consulting on the means to kill the king, is a sufficient overt act of high treason [footnote].” (Source: Blackstone’s “Commentaries”)

Algernon Sidney

What about “treasonous” words, like those allegedly offered by Algernon Sidney?

But Algernon Sidney had instead been charged with offering certain treasonous words. Thus, the next passage is particularly relevant to our present discussion. Specifically, Blackstone says that “How far mere words, spoken by an individual, and not relative to any treasonable act or design then in agitation, shall amount to treason, has been formerly matter of doubt.” (Source: Blackstone’s “Commentaries”) Furthermore, “Words may be spoken in heat, without any intention, or be mistaken, perverted, or mis-remembered by the hearers; their meaning depends always on their connexion with other words, and things; they may signify differently even according to the tone of voice, with which they are delivered; and sometimes silence itself is more expressive than any discourse. As therefore there can be nothing more equivocal and ambiguous than words, it would indeed be unreasonable to make them amount to high treason.” (Source: Blackstone’s “Commentaries”)

Algernon Sidney

And now, the Blackstone passage about Algernon Sidney himself …

But the allegedly “treasonous” words of Algernon Sidney had actually been written down, rather than spoken. What laws, then, would then have applied to the written forms of “treason”? As Blackstone put it, “If the words be set down in writing, it argues more deliberate intention; and it has been held that writing is an overt act of treason; for scribere est agree. But even in this case the bare words are not the treason, but the deliberate act of writing them. And such writing, though unpublished, has in some arbitrary reigns convicted its author of treason: particularly in the cases of one Peacham a clergyman, for treasonable passages in a sermon never preached [footnote]; and of Algernon Sidney, for some papers found in his closet: which, had they been plainly relative to any previous formed design of dethroning or murdering the king, might doubtless have been properly read in evidence as overt acts of that treason, which was specially laid in the indictment [footnote]. But, being merely speculative, without any intention (so far as appeared) of making any public use of them, the convicting the authors of treason upon such an insufficient foundation has been universally disapproved. Peacham was therefore pardoned: and, though Sidney indeed was executed, yet it was to the general discontent of the nation; and his attainder was afterwards reversed by parliament. There was then no manner of doubt, but that the publication of such a treasonable writing was a sufficient overt act of treason at the common law [footnote]; though of late even that has been questioned.” (Source: Blackstone’s “Commentaries”)

Algernon Sidney

Conclusion: Blackstone saw Sidney’s execution as a miscarriage of justice

Blackstone thus seems to have opposed the execution of Algernon Sidney. This might seem ironic, since Algernon Sidney had defended a right of revolution against a tyrannical government – something that Blackstone considered to be “unreasonable” under any circumstances. But even though Blackstone disagreed with John Locke and Algernon Sidney about a “right of revolution,” he still quoted Locke in certain other parts of the “Commentaries.” And Blackstone still considered this to be free speech, rather than treason. This is why Blackstone opposed the execution of Algernon Sidney, and the problematic laws regarding “high treason” upon which this execution was based. He believed that people have the unalienable right to an opinion, and that the execution of Algernon Sidney was thus a miscarriage of justice.

Algernon Sidney

Why did the judge have Algernon Sidney executed? (His own words)

People have often wondered why the chief justice had Algernon Sidney executed for treason. Thus, it might be helpful here to quote his own words on the subject. Here are the prominent parts of the judge’s reasoning in the verdict:

“This book contains all the malice, and revenge, and treason, that mankind can be guilty of: It fixes the sole power in the parliament and the people … The king, it says, is responsible to them, the king is but their trustee; that he had betrayed his trust, he had misgoverned, and now he is to give it up, that they may be all kings themselves. Gentlemen, I must tell you, I think I ought more than ordinarily to press this upon you, because I know, the misfortune of the late unhappy rebellion, and the bringing the late blessed king to the scaffold, was first begun by such kind of principles …”

– Lord Chief Justice Jeffreys, in the trial of Algernon Sidney (1683)

For more about the contributions of Algernon Sidney, see this blog post.