Algernon Sidney, the Executed Englishman the Founders Kept Quoting

Most people who die for an idea at least get to publish it first. Algernon Sidney was executed for a book that was still in a drawer. The prosecution did not argue that he had printed treason, or preached it, or mailed it to anyone. It argued that he had written it, and that the writing, in a pinch, counted as a witness.

Think about that the next time someone says the First Amendment is a technicality. The men who wrote it had read about a case in which a manuscript was used to send a man to the block. It is one of the stories behind the Founders' insistence that the government may not punish a man for his thoughts, and it deserves to be better known than it is.

A cavalier's son who fought for Parliament

Algernon Sidney was born in 1623 into one of the great families of England. His father was the Earl of Leicester, and young Sidney grew up in the world of courts and embassies. When the English Civil War broke out in 1642 he sided with Parliament against Charles I, which surprised no one who knew him and distressed most of his family. He was wounded at the battle of Marston Moor in 1644 and went on to hold commands in the parliamentary army.

In January 1649, Parliament set up a High Court of Justice to try the king. Sidney was named one of the commissioners. Here the record shows an odd and instructive scruple. He opposed the trial and withdrew from it, and he gave his reason: that no court could try the king and that no man could be condemned by this one. He opposed the regicide as unlawful in form, though he was no friend of the king. Later he would defend the substance of Parliament's cause for the rest of his life.

When Oliver Cromwell dissolved the Rump Parliament by force in 1653, Sidney objected, and he stayed out of public life during the Protectorate. He was a republican in an age when it was dangerous to be one, and he was consistent in a way that cost him. He opposed Cromwell for the same reason he opposed Charles: both ruled by force. After the Restoration of Charles II in 1660, Sidney was abroad, and he did not come back for seventeen years.

Exile, and a line of Latin

In 1659 Sidney, travelling in Denmark, was asked to sign the visitors' album at the University of Copenhagen. He wrote a line of Latin that has outlived almost everything else he did: Manus haec inimica tyrannis, ense petit placidam sub libertate quietem. This hand, enemy to tyrants, seeks with the sword a quiet peace under liberty. The shortened form, Ense petit placidam sub libertate quietem, "by the sword she seeks calm peace under liberty", is the motto of the Commonwealth of Massachusetts to this day. It appears on the state's seal and coat of arms, whose crest above the shield is an arm holding a sword.

Notice the order of the words. Peace is the goal. The sword is a means. And peace is wanted only on one condition, that it be under liberty. A conservative can recognise that sentence as a summary of what Americans mean when they say they love order: not quiet at any price, but quiet that is freely kept.

The book in the drawer

Sidney returned to England in 1677 and entered a country in which the question of the succession divided everyone. Charles II had no legitimate heir. His brother James, a Catholic, would succeed him unless Parliament intervened. In the years from 1679 to 1681 a political crisis over the proposed exclusion of James from the throne produced the first party divisions in English politics, the Whigs and Tories. Sidney sided with the exclusionists.

During those years, he wrote the Discourses Concerning Government. It was an answer to Sir Robert Filmer's Patriarcha, published in 1680, which argued that kings hold power by divine right, inherited from Adam, the first father. In this theory, a king's authority over his subjects is just a father's authority over his children, and it is no more subject to the consent of the governed than a father's authority is to the consent of the toddler. Filmer's book was the intellectual armour of the Stuart monarchy. John Locke wrote his own answer to it, as the First Treatise.

Sidney's reply ran to hundreds of pages. Its main arguments are these.

1. Men are born free. No one is born with a right to rule others. If God had wanted one man to rule all others, he would have said so plainly, and Scripture, read carefully, does not say it.
2. Magistrates are created by the people for the people's good. Governments are set up to serve ends, and the people judge whether they are served.
3. A king who violates the trust forfeits it. The general revolt of a nation, he argued, is not rebellion but the exercise of a right that no ruler can abolish.
4. Liberty needs a mixed government. Sidney admired the ancient republics and drew from their history the lesson that power concentrated in one man is the road to servitude.

The Discourses were not published in his lifetime. The manuscript remained among his papers.

The Rye House Plot and the trial

In June 1683, the government announced the discovery of a conspiracy to assassinate Charles II and James as they travelled back from the races at Newmarket. It came to be called the Rye House Plot, after a farmhouse near the road. The plot, whatever its truth, gave the Crown the pretext to strike at the leaders of the Whig opposition. Several were arrested. Lord William Russell was tried and executed in July 1683. Sidney was arrested in June.

His trial opened in November 1683 before Lord Chief Justice George Jeffreys, a judge whose name became a byword for the abuse of the bench; the later trials he conducted after the Monmouth rebellion of 1685 are remembered as the Bloody Assizes. The legal problem was that English treason law required two witnesses to an overt act of treason. The Crown had one: Lord Howard of Escrick, a conspirator who had turned informer, whose character was bad and whose evidence was weak. It needed a second.

It found one in Sidney's desk. Officers had seized the manuscript of the Discourses and the prosecution read out passages arguing that kings could be resisted and deposed. The prosecution's argument was that to write such words was the equivalent of an overt act and counted as the second witness. Sidney protested that scribbling in a study is not an act, that the passages were cut out of a long philosophical argument without their context and that the words had never been published. Jeffreys overruled him. The jury convicted.

Sidney was beheaded on Tower Hill on December 7, 1683. He gave the sheriffs a paper to be read after his death, in which he stood on the argument that he had made all his life, that the people's rights were not the king's to take. The government had managed to turn a thinker into a martyr, and the fact that it did so with the thinker's own unpublished words made the case a lasting scandal.

The aftermath: the Discourses and the Revolution

In 1688, five years after Sidney's death, James II, now king, was driven from the throne in the Glorious Revolution. The verdicts of 1683 were reversed by Parliament and Sidney's attainder was annulled in 1689. In 1698, the Discourses were finally published, and they quickly became one of the most popular statements of the Whig case for liberty.

They crossed the Atlantic. Sidney's work was found in colonial libraries from Boston to Williamsburg. The English essayists John Trenchard and Thomas Gordon, whom we meet in Cato's Letters, the Newspaper Essays That Taught the Colonies Liberty, quoted him. When the colonists reached for authorities to justify resistance to Parliament, Sidney was on the shelf.

Thomas Jefferson put the matter on the record. In a letter to Henry Lee in 1825, looking back on the Declaration of Independence, he said its purpose had been to place before mankind the common sense of the subject, and that its authority rested on the harmonising sentiments of the day, whether expressed in conversation, in letters, in printed essays or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, and others. That is Sidney by name in a list with Locke and Cicero, by the man who wrote the Declaration.

The steelman and the answer

Is Sidney's reputation exaggerated? A fair sceptic could say so.

Modern historians have pointed out that Sidney was an aristocrat and an admirer of the Roman Republic, and that his preferred government was a mixed one run by a landed elite. He was not a democrat. Some of his own politics, including contacts with the French court seeking money for the opposition, were less than pure. And whether he knew of any plot to kill the king is still disputed. The Whigs made much of Sidney, but the Whigs were also a party with interests, and a martyr is a useful thing for a party to have.

Every one of these points is fair. The answer is that the importance of Sidney does not depend on his personal virtue or even on his innocence of the plot. It depends on two things. One is the content of the Discourses, which gave the colonists a stock of arguments from natural liberty and the consent of the governed. The other is the manner of his death, which gave them a case study in what happens when a government can convict a man on his private writing. When the Constitution says in Article III, Section 3 that no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court, it is answering the trial of 1683. Treason, the Founders said, would be confined to levying war and adhering to enemies. Mere words and mere writings would not count. That clause is Sidney's memorial.

What a conservative should learn

Four lessons come out of this life.

Ideas outlive the people who suppress them. The Crown killed Sidney to silence him and instead made him a witness for liberty for two hundred years. A government that fears a manuscript has already lost the argument.

Treason must be defined narrowly. The two-witness rule and the limited definition in Article III are not technicalities. They protect the thinker from the prosecutor. A democracy that decides to punish what its citizens write, in the name of safety, is on the road that Jeffreys took. Our reading of the First Amendment's roots in Milton's Areopagitica of 1644 Is Still the Best Case Against Licensing Speech belongs next to this one.

Principle costs something. Sidney could have kept quiet. He wrote down what he thought, and he refused to retract. A republic needs people who will be inconvenient.

The inheritance is deliberate. The Founders did not invent their ideas from nothing. They received them from men like Sidney, and they said so. Conservatives who respect the Founders should respect what the Founders respected. See also Consent of the Governed Was a Precise Idea in Locke, Not a Slogan for the fuller theory.

The case in brief

1. Algernon Sidney fought for Parliament, opposed both Charles I's trial and Cromwell's rule, and spent years in exile with a Latin motto that Massachusetts still uses.
2. His Discourses Concerning Government answered Filmer's divine-right monarchy with natural liberty, rulers as trustees and the right of a nation to resist.
3. In 1683 Judge Jeffreys treated the unpublished manuscript as the second witness to treason, and Sidney was beheaded on December 7.
4. Jefferson named Sidney with Aristotle, Cicero and Locke as a source of the principles of the Declaration, and the Constitution's narrow treason clause answers the trial that killed him.
5. The lesson is that a free country protects the writer, defines treason narrowly and honours the dead who made its arguments.

What you can do: read Article III, Section 3 of the Constitution aloud, and then count how many of its words exist to protect a man who has merely written something.